Scofflaw

Canada is a signatory to the Convention Against Torture and by handing prisoners over to countries we know commit torture, we are breaking international law. By requiring our soldiers to hand prisoners over, we are putting those soldiers at risk of facing charges. The common wisdom is that we need not worry because charges will never be brought forth, but there is no statute of limitations on this law and a relatively small change in the international political situation can change the common wisdom rather abruptly.

Our soldiers seem to have at least some awareness of being at risk of running afoul of international law. There have been at least two cases of Canadian soldiers refusing to hand over prisoners to Afghan officials because those officials were likely to kill the prisoners immediately. The prisoners were handed over to other officials later on though, as per our agreement with the Afghan government. While the latter officials were less likely to perform a summary execution, the prisoners still face beatings and torture, as well possible extradition to a third country that commits torture. The prisoners may still face a death sentence.

According to legal opinions written for the Polaris Institute by Professor Michael Byers of the University of British Colombia and Professor Amir Attaran of the University of Ottawa, our handing over of prisoners puts our soldiers at risk of facing charges at the International Criminal Court and may have them violating our own Charter of Rights and Freedoms.

According to Byers, “The Canada-Afghanistan Arrangement, by failing to safeguard Canada’s obligations under the 1949 Geneva Conventions, the 1984 UN Torture Convention and the 1998 Rome Statute of the International Criminal Court, is an inadequate basis for the transfer of detainees to the custody of Afghanistan.

“In these circumstances, Canada should, at a minimum, renegotiate the Arrangement to include all the protections found in The Netherlands-Afghanistan Memorandum. A better approach would be for Canada to build its own detention facility in Afghanistan, perhaps in conjunction with The Netherlands or some other country which wishes to maintain its soldiers in Afghanistan while adhering to the requirements of international law.”

Attaran, dealing with the subject of Charter violations, writes, “Putting these threads of Charter law together, it stands to reason that the Arrangement, which has as its object to authorize Canadian Forces to arrest and detain persons, and to transfer them to Afghanistan, despite credible evidence of a substantial risk of torture, infringes section 7 of the Charter. Whether this infringement is unconstitutional depends on whether it is done, in the words of section 7, “in accordance with the principles of fundamental justice”. In several cases, the Supreme Court has held that “fundamental justice” means giving the affected person a judicial, quasi-judicial or administrative process or hearing, in which the person or competent legal counsel has a fair opportunity to oppose the infringement of section 7 rights. The requirements of “fundamental justice” run along a spectrum, such that the more serious is an infringement of rights—and torture is extremely serious—the more thoroughgoing that process or hearing must be.”

The solution put forth by Byers and Attaran is for Canada, possibly in collaboration with The Netherlands or another nation that abides by international law, to open our own prison in Afghanistan. While that solution is logistically difficult and would prove to be expensive, it is the best way to meet our international obligations and ensure that our soldiers do not face charges in the future because they followed orders based on what was convenient for our politicians.

Building a prison run by the Afghans, but overseen by Canada and other NATO countries, would allow us to train Afghan officials to abide by international conventions and leave something lasting behind, as Professor Attaran pointed out to CTV Newsnet.

Attaran is right. If Canada wants to help to solve problems in countries such as Afghanistan, a logical step would be to insist that they rise to our level of respect for international law. Instead we seem to be all too willing to sink to the level of those who see international law as an obstacle to be overcome. Cooperating with those who choose to ignore international law is not only damaging to Canada’s reputation as a champion of human rights, but serves to undermine our stated mission of spreading democratic values.

General Rick Hillier sees nothing wrong with handing prisoners over to the Afghans under the present deal. In fact, he signed the deal. “Under their laws and their government, we hand the prisoners to them.

“It's the right thing to do and we take steps to try and ensure in all the best ways we possibly can that their treatment is absolutely right and appropriate. We're confident in that,” Canada.com quoted Hillier as saying.

Hillier is not an expert on international law, has made questionable statements in the past, and is in a position where there are political pressures on him. He may be confident, but many experts on international law have many questions about the possible ramifications of our actions as detailed in John McNamer’s Research Brief that was released in February 2006. The issue of handing over prisoners to Afghan authorities is just the latest in a long line of highly questionable practices that we have allowed ourselves to become involved in as part of our commitment to George Bush’s “war on terror.”

The Canadian government needs to look at legal opinions such as those of Byers and Attaran, and consider their actions carefully. Mr. Harper and Mr. O’Connor are not above domestic or international law, no matter how inconvenient they may find those laws. More importantly, members of Canada’s military are not above those laws and should not be put at risk of prosecution no matter how convenient our politicians find putting them at risk to be.

There are many, Stephen Harper and Gordon O’Connor very vocally among them, who would have us believe that anyone who dares question the political decisions that drive our involvement in Afghanistan is somehow unsupportive of our troops or even putting those troops at risk. The truth is that by putting our troops in a position where they may face charges under international law, it is those who would stifle all dissent who are putting our troops at risk.

Canada is not, and should not try to be, immune from international laws. To stay the course with our present flawed policy on prisoners in Afghanistan is unconscionable. If he will not change the policy, Stephen Harper will be just another international scofflaw cutting and running from our international obligations for political convenience.