Intent For A Nation: What is Canada For. Michael Byers
law and the Canadian government responded accordingly. Several paratroopers were court martialled for their role in the atrocity; one served five years in jail. And, in a move that signalled just how serious the offences were considered, the entire Canadian Airborne Regiment was disbanded.
Canada also took the protection of civilians seriously when it came to the selection of military targets. During the 1999 Kosovo War, Canadian CF-18 fighter pilots, who train with their American counterparts, were never assigned as wingmen to them. Canada has ratified the First Addition Protocol to the 1949 Geneva Conventions, whereas the United States has not, and for this reason our pilots are subject to more stringent requirements concerning the protection of civilians. Accordingly, in Kosovo they could not be counted on to respond to some threats, such as anti-aircraft fire coming from a school or hospital, in the same way that an American pilot would. Where the American pilot would attack the source of the anti-aircraft fire, the Canadian pilot would—quite properly—turn his plane on its tail and leave.
Unfortunately, there was a discernible change of approach on the part of the Canadian government to these and other rules after September 11, 2001.
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, whose government has not ratified the convention and who are thus 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. As I explain in Chapter 5, this strained interpretation hardly reinforces our claim to be the leading proponent of the total elimination of these viciously indiscriminate devices, which have killed more than one million people over the past three decades.
Yet this compromise on landmines is less serious than the manner in which we have shirked our responsibilities concerning suspected Taliban or Al-Qaeda fighters captured by Canadian soldiers in Afghanistan. For here we have been complicit in the erosion of the prohibition on torture, the very erosion that Louise Arbour condemned.
TRANSFERRING TO TORTURE
In 1998 and 1999, I met dozens of torture victims as I worked with a coalition of London-based human rights groups trying to have former Chilean president Augusto Pinochet extradited from Britain to Spain to face criminal charges. The next year, when I arrived at Duke University, my new secretary was a former special-forces soldier who had been tortured by a Colombian drug cartel; fifteen years later, the scars from cigarette burns were still visible on his arms. More recently, I’ve had the honour of meeting Maher Arar, a Canadian who was wrongfully arrested in the United States in 2002 and forcibly handed over to Syria, where he was tortured while imprisoned for a year without charge.
On each occasion, the first thing that struck me about these torture victims was the deadness in their eyes. Torture—the deliberate infliction of severe pain—is a despicable and inhumane practice. That’s why it is absolutely prohibited by a wide range of treaties. That’s why every civilized country has committed itself to preventing torture and punishing it wherever it’s found. That’s also why, whenever we transfer individuals into the custody of another country, we should do what we can to protect against the possibility of their being tortured after they leave our hands.
Canadian soldiers in Afghanistan took their first prisoners in January 2002 and promptly transferred them to U.S. custody. They handed the men over despite the fact that then U.S. defence secretary Donald Rumsfeld had publicly refused to convene the “status determination tribunals” required by the Third Geneva Convention to investigate whether individuals captured on the battlefield are “prisoners of war,” a legal term referring to a category of prisoners entitled to special treatment. Canada, by choosing to hand over the prisoners in these circumstances, also violated the Third Geneva Convention. But the transfers did not undermine the prohibition on torture, since there was, at that time, no reason to believe that U.S. forces would mistreat the men.
Today we know better. The photographs from Abu Ghraib were only the first pieces of a growing body of evidence indicating that, at best, the U.S. military has failed to educate its soldiers about international humanitarian law. At worst, the revelations— including a series of leaked legal memoranda that seek to justify torture—suggest a policy of law breaking that extended all the way up the chain of command, to Rumsfeld and perhaps the commander-in-chief himself.
It’s in this context that we must assess the announcement, in September 2005, that Canadian soldiers in Afghanistan had again transferred prisoners to U.S. custody. The full scope of the Third Geneva Convention no longer applies to Canada’s operations in Afghanistan, because our soldiers are there with the full consent of the sovereign government in Kabul. But Canada is still bound by a provision, Common Article 3, that applies to armed conflicts that are “not of an international character.” Common Article 3 specifies that a number of acts “are and shall remain absolutely prohibited at any time and in any place whatsoever,” including “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Canada, by transferring prisoners to a foreign military that has recently committed violations of precisely this kind, has been risking complicity in breaches of the Geneva Conventions.
We have also been taking chances with the 1984 Torture Convention, which 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 U.S. military detention centres at Abu Ghraib, Guantanamo Bay Naval Base in Cuba, Bagram Air Base in Afghanistan and elsewhere, the possibility that our prisoners will be tortured in U.S. custody is real. It does not suffice, as the Department of National Defence has argued, that Canada has received assurances from the United States that any detainees received by it will be treated properly. Torturing governments always deny and seek to conceal their actions; what matters is their track record.
Transferring prisoners to Afghan 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 this is precisely what Canada has been doing since December 2005, when Chief of the Defence Staff Rick Hillier signed a detainee-transfer “arrangement” with the defence minister of Afghanistan. Under it, Afghanistan promised to treat humanely any individuals received and to allow representatives of the International Committee of the Red Cross (ICRC) to visit the detainee. Yet the Afghan government is hardly a beacon of humanitarian law: according to the UN-funded Afghanistan Research and Evaluation Unit, nineteen of Afghanistan’s newly elected members of Parliament are suspected war criminals. Moreover, the Afghan government is very susceptible to being influenced by the United States, which still has nineteen thousand troops in the country, eight thousand of them operating independently from the NATO–led international security assistance force.
Indeed, the Canada-Afghanistan arrangement explicitly envisages that some prisoners will be transferred onward to the custody of a third country, but it does nothing to guard against that country being one where prisoners are at risk of being tortured or otherwise abused. Amir Attaran of the University of Ottawa has accurately described the document as a “detainee laundering agreement,” for it enables Canada to move its prisoners indirectly into U.S. custody without the scrutiny involved in direct transfers.
The limitations of the Canada-Afghanistan arrangement become even more evident when compared with a Memorandum of Understanding concluded several months earlier between the Netherlands and Afghanistan. That memorandum provides Dutch officials with a right of access to any of their transferred prisoners; the Canadian arrangement does not. The Dutch memorandum provides for a right of access for “relevant human rights institutions within the UN system”; the Canadian arrangement does not. Instead, the Canadian arrangement relies solely on the ICRC, an organization that normally does not tell other countries about any evidence of abuses it discovers. In September 2006, Canadian foreign affairs minister Peter MacKay