AFGHAN DETAINEES – FACT SHEET
On April 6, 2010, the Military Police Complaints Commission (MPCC) resumed hearings on the Afghan Detainees. At issue is whether Canada transferred detainees knowing they were at risk of torture by the Afghan National Security Directorate (”NDS”). Testimony by Richard Colvin and others argues that Canada did have notice that the NDS was torturing transferred detainees. In March 2010, new allegations were made that Canada relied on the NDS to interrogate the transferred detainees and provide the ensuing ‘intelligence’ to Canada.
CCLA has called for an independent public inquiry to determine what actions Canada took and whether those actions complied with Canada’s legal obligations in international law. This fact sheet sets out some of Canada’s legal obligations regarding detainees in international law.
Canada’s Role with ISAF in Afghanistan
Canada is part of the International Security Assistance Force (”ISAF”) in Afghanistan. The ISAF is a multinational coalition mandated by the UN, and under the command of NATO, to promote stability and security in Afghanistan. For more information on ISAF click here http://www.isaf.nato.int/
Application of International Humanitarian Law – “The Laws of War”
Application of international humanitarian law (”IHL”) – also referred to as the laws of war — is triggered by armed conflict. This body of law is part of international law, but only applies to situations of armed conflict. It sets out rules to govern the conduct of the parties to limit suffering and to protect prisoners of war, civilians and civilian targets, and persons who are no longer taking part in the hostilities. IHL is found in treaties and customary international law principles. The major applicable treaties or rules are found in the four 1949 Geneva Conventions (to access the four Conventions, click here http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/genevaconventions) and the 1977 Additional Protocols , and the 1998 Rome Statute of the International Criminal Court . To access the First Additional 1977 Protocol, click here: http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079. To access the Second Additional 1977 Protocol, click here: http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/d67c3971bcff1c10c125641e0052b545. To access the ICC Rome Statute click here:http://untreaty.un.org/cod/icc/statute/romefra.htm.
The Conflict in Afghanistan
Armed conflict can either be international, non-international or internal. Characterization of the conflict determines which laws and rules apply to the conflict.
Following the overthrow of the Taliban by the US in 2001, the conflict in Afghanistan ceased to be an international conflict (i.e. ceased to be a conflict between or among the armed forces of at least two States), and became a “non-international conflict” (i.e. a struggle between insurgents and the Afghan State; Canada and other members of the ISAF are assisting Afghanistan in maintaining security).
Does IHL Apply to Canada as a member of the ISAF in Canada?
Canada is signatory to and bound by the 1949 Geneva Conventions, the 1977 Additional Protocols, and the 1998 Rome Statute.
Furthermore, IHL applies to countries involved in multinational operations in armed conflict (see for instance, http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQ7L), and accordingly would apply to Canada in its capacity as a member of the ISAF in Afghanistan.
Finally, Canada entered into an agreement with Afghanistan regarding the transfer of detainees. This agreement specifies that the parties will treat detainees as “prisoners of war”, in accordance with the Third Geneva Convention 1949 Relative to the Treatment of Prisoners of War. Although the Third Geneva Convention applies to international armed conflicts, it is relevant to Canada and Afghanistan regarding the transfer of detainees because the two countries committed themselves to apply the Third Convention’s standards to protect detainees. To access Canada’s arrangement with Afghanistan for the Transfer of Detainees signed December 18th, 2005, click here http://www.afghanistan.gc.ca/canada-afghanistan/assets/pdfs/Dec2005.pdf; and to access the 2007 supplemental arrangement which allows Canada “full and unrestricted access” to monitor the conditions of Afghans in custody, click here:http://www.afghanistan.gc.ca/canada-afghanistan/assets/pdfs/agreement_detainees_030507.pdf.
What does IHL say about Transferring Detainees?
IHL applies to the treatment of detainees.
Torture is expressly prohibited at all times in IHL and in international law. Common Article 3 of the 1949 Geneva Conventions absolutely prohibits torture in conflicts “not of an international nature”. The 1977 Additional Protocols also prescribe humane treatment (see Article 75(1)) of persons “in the power of a Party to the conflict who do not benefit from more favourable treatment under the Conventions or Protocol”, and prohibit torture (see Article 75(2)). Customary international humanitarian law is also considered to prohibit torture against persons hors de combat, which would include detainees (see Rules 87 and 90 of the ICRC Study on Rules of Customary International Humanitarian Law, available at http:/www.icrc.org/web/eng/siteeng0.nsf/html/customary-law-rules-291008).
The Third Geneva Convention 1949 establishes the humane treatment of prisoners of war. Under Article 12, any State that transfers a prisoner of war must ensure the Receiving State will apply the Convention. If the Transferring State learns that the Receiving State failed to apply the Convention, the Transferring State must request the correction of the situation, or request the return of the prisoners of war. Article 130 of the Third Convention lists “torture” as a “grave breach of the Geneva Convention”.
The Fourth Geneva Convention 1949 Relative to the Protection of Civilians in Time of War may also apply to the Afghan Detainees if for some reason they were not specifically protected by the Third Geneva Convention. The Fourth Convention protects individuals who find themselves in the hands of a Party to an armed conflict or an Occupying Power, of which they are not nationals. The Fourth Convention does not protect individuals who would be protected by the First, Second or Third Geneva Conventions. (The First Geneva Convention 1949 protects the wounded and sick in the Field, the Second Geneva Convention 1949 protects the wounded, sick and shipwrecked at sea, and the Third Geneva Convention 1949 as stated above protects Prisoners of War). Article 45 of the Fourth Geneva Convention 1949 permits transfers of individuals only to another State which is a member of the Convention, and only after the Detaining Party has satisfied itself of the willingness and ability of the Receiving State to apply the Convention and treat the detainees humanely. If the Detaining Party learns that the detainees are being mistreated after transfer, the Detaining Party must take “effective measures to correct the situation or shall request the return of the protected persons.”
The Rome Statute of the International Criminal Court in Article 8 defines war crimes as a “grave breach” of the 1949 Geneva Conventions, including “torture”, and “unlawful deportation, or transfer or unlawful confinement”.
International Human Rights Law and the Principle of Non-Refoulement
International human rights law applies at all times (i.e. during peace and during armed conflict or emergencies), and governs the conduct of States towards individuals in their control. Torture is prohibited in international law in the Universal Declaration of Human Rights, and in the International Covenant on Civil and Political Rights (ICCPR, Article 7), and in the Convention Against Torture (CAT). Canada is legally bound as a signatory by the ICCPR and CAT, and the UDHR is considered to have attained the status of customary international law. Further, the absolute prohibition against torture is considered to be jus cogens, a peremptory norm of international law. There can be no derogation from the absolute prohibition against torture, not even in times of emergency or war.
The principle of non-refoulement, a component of the prohibition against torture, absolutely prohibits the transfer of an individual by one State to another State, if the individual faces a risk of torture. This principle, which is considered to be customary international law, applies to the the transfer of “effective control” over an individual from the jurisdiction of one State to another, and therefore would apply to the actions of Canada transferring detainees to the NDS. The principle also requires the Transferring State to engage in procedural and substantive safeguards to ensure that an individual is not being transferred to the risk of torture, and that the Receiving State would not then transfer the individual to a Third State where the individual would face the risk of torture.
CCLA calls for public inquiry into Afghan detainees
Confirming reports continue to accumulate about Afghan detainees having been transferred to torture. The issue of transfer of prisoners to potential torture must be publicly discussed. At this stage, a public inquiry is the only possibility to respond to Canada’s obligations to deter and denounce the practice of torture.
Join CCLA’s call for a full public inquiry by signing the petition below!! Please send an email to “firstname.lastname@example.org” with a subject line “sign petition”. In the email please include your full name and indicate if you would prefer that your name not appear on the website. Thank you.
PETITION TO THE HONOURABLE PRIME MINISTER STEPHEN HARPER TO CALL A PUBLIC INQUIRY INTO THE ACTIONS OF CANADA REGARDING THE TRANSFER OF AFGHAN DETAINEES TO SUBSEQUENT TORTURE
Dear Mr. Harper:
We are writing to express our concern over the reported transfers, by Canadian forces, of Afghan detainees to subsequent torture. Canadians deserve to know what actions have been taken in their name. Our signatures below indicate that we stand with the Canadian Civil Liberties Association in calling for an immediate impartial, independent, and transparent public inquiry into the transfer of Afghan detainees to subsequent torture.
Canada believes in the prohibition against torture. We understand that Canada must act to protect our national security, and to participate in multinational efforts to protect international peace and security and to counter terrorism.
We also understand that Canadian forces have legal obligations in international law to ensure that any person in their effective control is never transferred to torture. Canadian forces are legally obligated to ensure that any person they have transferred is not subsequently tortured. If reports of torture are made, Canada is legally obligated to intervene to stop the torture, or to request the return of the detainees being tortured.
Accordingly, we demand an immediate public Commission of Inquiry to determine exactly what happened in Afghanistan, to identify what policies and practices of Canada contributed to the torture of Afghan detainees, and to make recommendations in keeping with Canada’s legal obligations to ensure that Canada is never again complicit in torture.
Michael de Pencier,
Walter R. Fryers,
Timothy L. Grier,
Todd S. Schneider,
Jon V. Oliver,
Francis J Farrell,
Dr. R. M. Husband,
John S. Webb,
Donald J Kerr,
Dirk van Wyk,
Dr Margaret Tweddle,
Richard H. Boehnke,
Rev. barb janes,
M. Roy Parry,
Aldo and Laverna Marchese,
Hon. Allan Blakeney,
William C. Wees,
Howard L. Krongold,
Rev. Donald Gillies,
Michael John Longland,
Joe D. Wheeler,
Janelle Johnstone LaCroix,
Peter K. Vickers,
Garry J. VanGelderen,
V. Meghan Roberts,
Daniel G. Ross,
Sarah Marie Ewanyshyn,
Rev’d Fr. Bill White,
Brian K. Stewart,
David A. Herrington,
Gregory Scott Finney,
Marc Robert North,
Frank F. Bedek,