Undermining Canadian ideals bit by bit

2006–10-06 (Michael Byers, The Tyee) Afghanistan: Wrong Mission for Canada:

It’s even possible that Canada’s involvement in the counter-insurgency mission is contributing to a decline in this country’s commitment to strong rules of international humanitarian law.

In 2002, Canadian soldiers in Afghanistan were ordered by their American commander to lay anti-personnel landmines around their camp. When the Canadians refused—citing our obligations under the 1997 Ottawa Landmines Convention—American soldiers, who are not subject to the same restrictions, laid the mines for them. More recently, Canadian forces in Kabul and Kandahar have benefited from the protection provided by anti-personnel landmines laid by Soviet forces during the 1980s. The Canadian government argues that the Landmines Convention has not been violated, since the prohibition on the “use” of anti-personnel mines does not extend to reliance on mines laid by others. This is a strained interpretation, and one that hardly reinforces our claim to be the leading proponent of the total elimination of these devices.

Also in 2002, Canadian soldiers in Afghanistan captured detainees and transferred them to U.S. custody. The transfers took place despite the fact that U.S. Defence Secretary Donald Rumsfeld had publicly refused to convene the “status determination tribunals” required by the Third Geneva Convention of 1949, to investigate whether individuals captured on the battlefield are prisoners of war. Canada, by choosing to hand the detainees over in these circumstances, also violated the Third Geneva Convention.

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We’ve also been taking chances with the 1984 Torture Convention. Article 3 of this treaty decrees that “no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Given what we now know about practices at Abu Ghraib and elsewhere, the possibility that our detainees will be tortured in U.S. custody is real—as real, perhaps, as if we sent them to Syria.

What’s more, the UN Committee on Torture has stated that the term “another state” in Article 3 of the Torture Convention encompasses any additional country to which a prisoner might subsequently be transferred. For this reason, transferring detainees to Afghan custody instead of U.S. custody cannot relieve Canada of responsibility, since Kabul may be expected to comply with a U.S. request for a further, onward transfer. Yet that’s precisely what Canada has been doing since December 2005, when Chief of Defence Staff Rick Hillier signed a detainee-transfer agreement with the defence minister of Afghanistan.

Under the agreement, Afghanistan committed to the humane treatment of any individuals received, and to allow representatives of the International Committee of the Red Cross to visit them. At the same time, the agreement explicitly envisages that some detainees will be transferred onwards to the custody of a third country, and does nothing to guard against that country being one in which detainees are at risk of being tortured or otherwise abused. Professor Amir Attaran of the University of Ottawa has accurately described the document as a “detainee laundering agreement,” for it enables Canada to move its detainees indirectly into U.S. custody without the scrutiny and approbation that might attach to direct transfers.