“Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society…It is in fact totalitarianism. I find this is very scary stuff.” (Stephen Harper, BC Report, January 11, 1999)

I have heard so many rumors and comments as of late and I wanted to address some of the major misconceptions that I so frequently hear about the Afghan detainee scandal. PM Stephen Harper’s recent proroguing of Parliament has been linked by Canadian media to the Special Committee on the Canadian Mission in Afghanistan interrogations into allegations of the torture of Afghan prisoners after they were handed over by Canadian Forces to Afghan authorities. The handing over of prisoners to torture is in breach of international laws and conventions, Canadian laws, as well as the technical agreements for the Canadian mission in Afghanistan that could result in possible war crime charges for some officials in the Canadian government. Michael Byers and William A. Schabas have formally requested the ICC investigate these allegations after pleas to apply the Canadian Charter of Rights and Freedoms during the armed conflict in Afghanistan in the Federal Court of Canada, were denied. Sadly, the vague nature of the international laws makes justice illusive.

Firstly, I completely disagree with some of the statements I have heard that essentially say that discussing the issue or calling for an inquiry on these allegations is tantamount to not supporting our troops. This couldn’t be further from the truth. The international laws and conventions that prohibit torture or handing over prisoners to torture are in place to protect soldiers and those involved in war. Ignoring international conventions and laws not only disgraces our public image and any moral ground for our military intervention anywhere, but also puts all our soldiers at greater risk.  How can our government expect to invoke these laws for our own troop’s protection when they don’t have respect enough to follow them or investigate internal breaches fully? I will repeat my favorite comment from Brigadier-General Kenneth Watkin during the November 4, 2009 Committee meeting, “Respect for the rule of law is an essential aspect of Canadian Forces operations. Fostering respect for the rule of law is a key reason why we are in Afghanistan.”

I would like to clarify that it is not individual soldiers who would be held responsible for war crimes, but rather those who ordered the troops and officials to ignore international laws. If you have doubts of this, please refer to the history of the International Criminal Court (ICC) and its proceedings. Brigadier-General Kenneth Watkin further details who has this authority in the Canadian Forces, “The decision to transfer such persons rests with the Canadian Commander of Joint Task Force Afghanistan and is made on a case-by-case basis.”

Secondly, some seem to believe that direct proof of torture must be found before we are to stop transferring detainees to Afghan officials. This is simply untrue. Those handing over prisoners or detainees “must be satisfied that there are no substantial grounds for believing that there exists a real risk that a detainee would be in danger of being subjected to torture or other forms of mistreatment“. Suspicion of torture is enough. Was there any suspicion of torture?  I think it is fairly clear that there was. Here is just one report by Graeme Smith from 2007. Amnesty International also reported on these concerns (and took the matter to the Federal Court of Canada), as did the Independent Afghanistan Human Rights Commission, Mrs. Ouimet of La Presse, the U.S. State Department, several UN reports and the Red Cross. Even General Hillier has suggested that he knew of allegations of torture when asked, “Were you aware of those reports about torture in Afghan prisons?”  he responded “yes, absolutely. You could not not be aware.” (November 25, 2009), but these reports were dismissed without full investigation or follow up to ensure the laws were being properly respected.

Sadly, there have also been allegations that there was a scripted cover-up ordered by the PM and allegations of intimidation of witnesses and the obstruction and interference of Committee work by Government officials in the Committee in the House of Parliament. I quote from the above document, “That the Committee believes a serious breach of privilege has occurred and members’ rights have been violated, that the Government of Canada, particularly the Department of Justice and the Department of Foreign Affairs and International Trade, have intimidated a witness of this Committee, and obstructed and interfered with the Committee’s work and with the papers requested by this Committee.” This does not sound like the behaviour of leaders. It sounds like the behaviour of criminals. For shame. The truth must be told and any problems immediately rectified. According to the Parliamentary Journals (see particularly under the sections labeled “Business of Supply”) the majority of the house voted in favor of being supplied with access to uncensored documents currently being withheld by members of the government invoking the Canada Evidence Act (YEAS: 146, NAYS: 143). Despite this majority vote, the documents have yet to be supplied. The Committee must continue and investigations to prove or disprove the allegations must be made. Richard Colvin recently put forth this document to refute some of the evidence that was brought out during committee. Colvin has stated that he sent several emails about the issue that went ignored, with those in charge claiming that they never received emails from him that detailed anything about possible torture.

Thirdly, I have heard the excuse to the effect of, “what were they supposed to do about it, they had little choice but to hand them over”. This is also simply not true. As mentioned below in the Committee meeting from November 18th, 2009, other countries in a similar position have acted in a more responsible manner. Please read up on the actions of the Dutch and British armies in relation to our actions (it’s lengthy so I won’t quote it all here). Clearly, there was a choice and the choice made was to ignore international laws.

I urge you all to actually read the transcripts of the evidence as it is quite substantial and in parts quite disturbing. You can find the full disclosed details of the Afghan committee here.

You can watch the Richard Colvin testimony here:

I have chosen to highlight some of the evidence before Parliament that I feel is incredibly important to not overlook.

From November 4, 2009:
Brigadier-General Kenneth W. Watkin (Judge Advocate General, Department of National Defence– the legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces, in matters relating to military law.): “Torture is abhorrent and can never be tolerated. The prohibition against torture is a peremptory and non-derogable norm of international law. The transfer of detainees to a real risk of torture or ill-treatment is contrary to international humanitarian law, also known as the law of war or the law of armed conflict. It is a specialized body of law that governs the conduct of Canada, its officials, and its military forces during the armed conflict in Afghanistan. The policies and procedures put in place by the Canadian Forces in Afghanistan and the legal test that must be satisfied before detainees can be transferred are all meant to ensure compliance with these international legal obligations.”

” The technical arrangements expressly state that, [d]etainees would be afforded the same treatment as prisoners of war. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to
negotiated assurances regarding their treatment and transfer. The reference to detainees being afforded the same treatment as prisoners of war does not mean they have the status of prisoners of war. Rather, it demonstrates that we
are extending well-established and comprehensive international law protection for such detainees.”

“The court found that under the technical arrangements the detention of persons adverse in interest or providing support in respect of acts harmful to the Canadian Forces and coalition forces, and the transfer to Afghan custody of such persons, is to be carried out in accordance with international law. Prior to transfer, detainees are held in a temporary Canadian facility on a multinational base. The decision to transfer such persons rests with the Canadian commander of Joint Task Force Afghanistan and is made on a case-by-case basis.”

“The legal test that must be met before a detainee can be transferred by the Canadian Forces to Afghan authorities, and this was confirmed by the Federal Court of Canada and the Federal Court of Appeal in the Amnesty case, is clear: the commander of Joint Task Force Afghanistan must be satisfied that there are no substantial grounds for believing that there exists a real risk that a detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.”

“…that there is no “legal no-man’s land” concerning the transfer of detainees to the Government of Afghanistan. International humanitarian law applies. Canada has “applied” the words of that code by making arrangements and establishing procedures to guarantee that detainees transferred by the Canadian Forces are protected.”

And my personal favorite: “Respect for the rule of law is an essential aspect of Canadian Forces operations. Fostering respect for the rule of law is a key reason why we are in Afghanistan.”

From November 18, 2009:

Mr. Richard Colvin: “What was the nature of our detainee system in Kandahar? Perhaps a good place to start is to compare our practices to those of our principal NATO allies in southern Afghanistan: the United Kingdom and the Netherlands. What we were doing differed in five crucial respects.

First, we took and transferred far more detainees. …As of May 2007, Canada had transferred to the Afghan authorities six times as many detainees as the British, who were conducting military operations just as aggressive as ours and had twice as many troops in theatre, and we had transferred twenty times as many detainees as the Dutch.

Second, we did not monitor our own detainees after their transfer. Again, unlike the British and Dutch, Canada’s memorandum of understanding on detainees, signed by General Rick Hillier in December 2005, had no provision for our own officials to follow up on what happened to our detainees after they were handed to the Afghan intelligence service, the NDS, or National Directorate of Security.”

” Instead, our detainee system relied upon two human rights groups to monitor the well-being of detainees after transfer: the Afghanistan Independent Human Rights Commission, or AIHRC, and the International Committee of the Red Cross. Unfortunately, the AIHRC had very limited capacity, and in Kandahar were not allowed into the NDS prisons. So for the purposes of monitoring our detainees, they were unfortunately quite useless. The Red Cross is a very professional and effective organization. However, they were also no good for us as monitors. Once a detainee had been transferred to Afghan custody, the Red Cross, under their rules, could only inform the Afghan authorities about abuse. Under those strict rules, they are not permitted to tell Canada.

The third important difference is that, again unlike the Dutch and British, Canada was extremely slow to inform the Red Cross when we had transferred a detainee to the Afghans. The Canadian Forces leadership created a very peculiar six-step process. Canadian military police in Kandahar had to inform the Canadian Forces command element at Kandahar airfield, who in turn informed Canadian Expeditionary Force Command, or CEFCOM, in Ottawa.”

“The Dutch and British military, by contrast, had a one-step process. They simply notified the Red Cross office in Kandahar directly. The Dutch did so immediately upon detaining an Afghan, and the British within 24 hours.

In other words, in the critical days after a detainee was first transferred to the Afghan intelligence service, nobody was able to monitor them. Canada had decided that Canadians would not monitor. The AIHRC could not do so, because they had very weak capacity and were not allowed into NDS jails. The Red Cross in practice could not do so either, because we did not inform them until days, weeks, or months after we had handed over the detainee.

During those crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured.”

” The most common forms of torture were beating, whipping with power cables, and the use of electricity. Also common was sleep deprivation, use of temperature extremes, use of knives and open flames, and sexual abuse–that is, rape. Torture might be limited to the first days or it could go on for months.

According to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure.”

” The final difference, which is a very important one, is that Canada, unlike the U.K. and the Netherlands, cloaked our detainee practices in extreme secrecy. The Dutch government immediately informed the Dutch Parliament as soon as a detainee had been taken. The Dutch also provided their Parliament with extremely detailed reporting on every stage of detention and transfer and on the results of monitoring after transfer. The U.K. also announced publicly the number of their detainees.

The Canadian Forces, by contrast, refused to reveal even the number of detainees they had taken, claiming this would violate operational security.

When the Red Cross wanted to engage on detainee issues, for three months the Canadian Forces in Kandahar wouldn’t even take their phone calls. The same thing happened to the NATO ISAF command in Kabul, who had responsibilities to report detainee numbers to Brussels. They were told, “We know what you want, but we won’t tell you.”

Further from November 18, 2009:

Why should we care about Afghan detainees being tortured?:

Mr. Richard Colvin: “As a final section, asking kind of a rhetorical question, even if Afghan detainees were being tortured, why should Canadians care? I think there are five compelling reasons.

First, our detainees were not what intelligence services would call “high-value targets”, such as IED bomb-makers, al-Qaeda terrorists, or Taliban commanders. High-value targets would be detained under a completely different mechanism that involved special forces and targeted intelligence-driven operations. The Afghans I’m discussing
today were picked up by conventional forces during routine military operations, and on the basis typically not of intelligence but suspicion or unproven denunciation.

According to a very authoritative source, many of the Afghans we detained had no connection to the insurgency whatsoever. From an intelligence point of view, they had little or no value. Frankly, the NDS did not want them.
Some of these Afghans may have been foot soldiers or day fighters, but many were just local people: farmers, truck drivers, tailors, peasants, random human beings in the wrong place at the wrong time, young men in their fields and villages who were completely innocent but were nevertheless rounded up. In other words, we detained and handed over for severe torture a lot of innocent people.

The second reason that Canadians should care is that seizing people and rendering them for torture is a very serious violation of international and Canadian law. Complicity in torture is a war crime. It is illegal and prosecutable.

Third, Canada has always been a powerful advocate of international law and human rights. That is a keystone of who we are as Canadians and what we have always stood for as a people and nation. If we disregard our core principles and values, we also lose our moral authority abroad. If we are complicit in the torture of Afghans in Kandahar, how can we
credibly promote human rights in Tehran or Beijing?

Fourth, our actions were counter to our own stated policies. In April 2007, Prime Minister Stephen Harper said publicly that Canadian military officials don’t send individuals off to be tortured. That was indeed our policy. But behind the military’s wall of secrecy, that unfortunately is exactly what we were doing.

Finally, even if all the Afghans we detained had been Taliban, it would still have been wrong to have them tortured. The Canadian military is a proud and professional organization, thoroughly trained in the rules of war and the correct treatment of prisoners.”

** A side note (RS- not from the transcript): There has been a great attempt to discredit Mr. Colvin since this evidence was given. Here is my favorite quote dealing with that issue:

“If [Colvin] had no credibility, why was he promoted from Afghanistan to a senior intelligence position in the Canadian embassy in Washington? That is a very senior job that that man is holding so there is no credibility on trying to discredit him.” (Bob Fife, CTV Power Play, November 18, 2009)

From November 25, 2009:

Hon. Ujjal Dosanjh (Vancouver South, Lib.): “I want to talk to you about the issues about law, the command responsibility. You know that better than anybody else. It requires no actual knowledge of the risk of torture. If the risk of torture is widely known, as it was to the U.S. State Department, UN reports, Afghan Independent Human Rights reports, Human Rights Watch, Amnesty International, our own human rights reports, their knowledge can be imputed. In fact, ignorance is not a defence either, for want of reports, and you know that better than I do.”

“…Justice Anne Mactavish in February 2008? She stated that: “Eight complaints of prisoner abuse were received by Canadian personnel conducting site visits in Afghan detention facilities between May 3, 2007 and November 5, 2007.” Moreover, she noted that in some cases prisoners bore physical signs.”

Mr. Claude Bachand: “Everyone here recognizes that the suspected torture we are dealing with has certainly not being inflicted by Canadian soldiers. What we are trying to find out is if Canadian soldiers like you, on the ground, knew that torture was being practiced and if, despite that, they still transferred detainees. That is our main concern.”

“Can you explain to me how you can state that absolutely nothing happened when Amnesty International, the Independent Afghanistan Human Rights Commission and the Red Cross all stated that torture was being practiced in the prisons? Even a guard in the Sarposa prison stated that torturing prisoners it was routine. International diplomats said the same thing. Today, a Canadian diplomat repeated statements made by Mr. Colvin as well as by many reporters. You referred to the Globe and Mail but I can also mention Mrs. Ouimet of La Presse who reported on what she saw there. All the Opposition parties believe that torture was being practiced. Why are you trying to convince us that it was not?”

Mr. Paul Dewar to Gen. Rick Hillier: “Were any of you aware of these independent groups’ assessments on torture in Afghan prisons from 2005, 2006, and onwards?I guess by 2006 everyone knew, so were you aware of the independent assessments by other groups? They’ve all been listed: the Afghan Independent Human Rights Commission, the Red Cross, the State Department, etc. Were you aware of those reports about torture in Afghan prisons?”