This op-ed was originally published on July 1, 2011 on Canada.com
The federal government’s ongoing attempts to shield documents relating to Canada’s actions in the transfer of Afghan detainees are deeply disturbing.
As much as we may look forward to the day when the controversy is over and the case closed, sweeping this issue under the rug does our country and our fundamental values serious disservice.
If we believe true democracy demands a transparent government committed to human rights, then we must continue to demand answers.
Canada’s role in transferring human beings to the risk of torture is a serious question. What did Canada know prior to the transfers? What did Canada know after the transfers? And at every step, what did Canada do?
International law imposes strict legal obligations upon states regarding the absolute prohibition against torture. A transferring state (i.e. Canada) must ensure the receiving power (i.e. Afghan National Directorate of Security) will uphold the 1949 Geneva Conventions and treat detainees humanely.
Following a transfer, the transferring state must monitor the conditions in which detainees are kept, and if torture is suspected or identified, must take immediate actions to stop the torture or seek the return of the tortured detainees.
Did Canada take these steps?
A failure to take these steps can lead to ‘grave breaches’ of the Geneva Conventions. It is not surprising the Prosecutor of the International Criminal Court has commented that if Canada does not take action, he will.
Are we as a country really unwilling or incapable of thoroughly and transparently investigating whether our actions resulted in the torture of human beings?
The 1984 UN Convention Against Torture, which Canada ratified a long time ago, requires states to promptly and impartially investigate allegations of torture, where there is reasonable suspicion torture may have occurred in territories under its jurisdiction. This “jurisdiction” includes the transfer of individuals from Canada’s `effective control’ to another actor.
Are we as a country really going to ignore these binding legal obligations?
It is worth remembering the underlying purposes of these obligations are to respect human dignity, and to ensure our society does not condone or be a party to torture. A loose attitude toward torture is incompatible with a free and democratic society, and incompatible with international justice, peace and security.
In releasing recently a large volume of Afghan detainee documents, the federal government asserted they showed conclusively Canada has acted properly and declared the Afghan detainee controversy “over”.
If you haven’t been paying attention to this issue over the last four or five years, you may be inclined to believe this line. You may not know the government has waged a relentless legal battle to avoid disclosing these documents to the Military Police Complaints Commission, or that it prorogued Parliament to avoid disclosing documents to duly elected MPs.
You may have forgotten the Speaker had to compel the government to work with parliamentarians to find a solution to facilitate disclosure, and it was only at his urging that a novel ad hoc committee, along with a panel of arbiters, was formed to address the sensitive document issues. Finally, in all of the government fanfare around the “end” of the process you may not have noticed there are still thousands of documents that haven’t been disclosed (indeed, estimates are the released documents make up only about 10 per cent of the total), and some have not even been independently reviewed.
In other words, there are some documents that have only ever been seen by those inside government, and, if the government gets its way, will never be subjected to independent scrutiny. For the government to assert they have been exonerated and the matter is now concluded is an affront to the principle of open government.
We cannot accept this kind of stonewalling from our government. Nor can we accept the argument national security concerns will always trump democratic values like transparency and accountability, and that the government (i.e. the executive) is the sole arbiter of what is and is not harmful to national security.
If we do, what are we protecting? International law has repeatedly affirmed that national security and the threat of terrorism or war is never an excuse to justify torture.
There is no justification for torture, or for failing to investigate serious allegations of torture.
We need to recognize that protecting our national security includes protecting the values that we hold dear – values that categorically ban torture, and that include an open and accountable government that is responsible to Parliament and the people of Canada.
Canada has a real opportunity here to demonstrate, on the international stage, commitment to its legal obligations to protect human dignity and ensure accountability in a truly free and democratic society.
Keeping these documents in secrecy not only sets a dangerous precedent in terms of the transparency of our government, it smacks of impunity and contravenes Canada’s legal duty to properly investigate allegations of torture – a duty these documents may help fulfill.
We need to establish an independent process that would allow for the thorough review of these documents, perhaps through the use of something akin to the special advocates that already exist for other national security-related matters. If we can’t or won’t force our government to be straight with us on this issue, we should not be surprised if the international community chooses to take action.
Sukanya Pillay is the director of the Canadian Civil Liberties Association’s National Security Program
Cara Faith Zwibel is the director of the Canadian Civil Liberties Association’s Fundamental Freedoms Program
