NATO Knew Afghans Tortured Prisoners

SOURCE: NATO Aware of Prisoner Abuse in Afghanistan, General Says
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Now a condensation of an article by Michael Byers
He holds the Canada research chair in global politics and international law at the University of British Columbia. His new book, Intent for a Nation, is published by Douglas & McIntyre.

Transfer of detainees is complicity
Amnesty International summarizes the applicable law on torture.

It points out that torture is a "grave breach" of the Geneva Conventions, "may also constitute a crime against humanity or a war crime under the jurisdiction of the International Criminal Court," and is absolutely prohibited under international human rights law.

As part of this absolute prohibition, "states must never expel, return or extradite a person to a country where they risk torture or other ill-treatment."

More specifically, under the UN Convention Against Torture, countries may never transfer a person to a situation "where there are substantial grounds for believing that he would be tortured." Any country that does so is, under universally accepted rules of "state responsibility," no less culpable than the country directly engaged in the abuse.

As Amnesty International explains, the situation is analogous to a country which knowingly releases detainees in a minefield while claiming that their safety is no longer its responsibility.

Now, the world's most respected human rights organization has just accused this country of complicity in torture.

Back in December 2005, Canada and Afghanistan concluded an "arrangement" on detainee transfers that lacked basic verification mechanisms, such as the right for Canadian officials to visit transferred detainees. Last May, under the threat of a federal court injunction, the Canadian government negotiated an improved arrangement.

But the new arrangement has failed to work. According to Amnesty International, transferred detainees remain "at substantial risk of torture and other ill-treatment."

The human rights organization cites two reports from the UN secretary general, the most recent from just two months ago, pointing to the use of torture in a "significant number of cases." It collates a number of media reports to the same effect, as well as statements from the Afghan Independent Human Rights Commission. It highlights the admission, by the Canadian Department of Foreign Affairs and International Trade last summer, that Canadian officials had received at least six first-hand reports of torture.

As Amnesty International explains, Canada's current reliance on occasional verification visits is misplaced. Monitoring "is a technique to detect torture only after it happens, and cannot substitute for prior precautions that prevent torture from happening in the first place."

The human rights organization also criticizes Canada for downplaying the number of transfers that occur. It suggests that as many as 200 detainees may have been moved from Canadian custody, not including the many immediate transfers that take place during joint Canada-Afghan military operations.

And it expresses concerns that the Canadian government's investigation into abuse claims early this year may have been neither "competent" nor "impartial."

The report concludes by calling – quite reasonably – for a temporary moratorium on the transfer of detainees. The moratorium would allow for their rights to be protected while a comprehensive effort was made to reform the Afghan detention system.

The response misses the point. Canada is a sovereign country, too. We have our own constitutional and international legal responsibilities that are engaged whenever our soldiers act overseas. And we had, until recently, a strong reputation as a human rights respecting state.

Amnesty International is right. It's time to stop the transfer of detainees.

Note: NATO Aware of Prisoner ... Transfer of detainees i...