OTTAWA — Human-rights lawyers pushing for a stop to prisoner transfers argued in court Thursday that Canada’s government cannot be trusted to tell the truth about what goes on in Afghanistan.
Lawyer Paul Champ told a Federal Court hearing that the government would clearly have covered up prisoner abuses by Afghan authorities had it not been for the ongoing legal battle.
In a secret policy shift almost three months ago, Canadian soldiers stopped transferring detainees to Afghan authorities after they were convinced some had been beaten in violation of the Geneva conventions.
“The government shouldn’t be making those decisions,” Mr. Champ said during a break in proceedings.
“It should be the court because (the government has) shown in the past they’re wrong and the consequence of their errors has been that torture had been committed.”
The move came after the government spent nearly a year dismissing abuse allegations and ridiculing opponents who raised them.
The policy shift only came to light after Mr. Champ fought in court for access to government documents, which he finally received along with a letter from a federal lawyer announcing the change.
Mr. Champ fears that many of the captives taken by Canadian troops are not even Taliban combatants but civilians sympathetic to the insurgency. Previously secret documents suggest some have disappeared in custody and he fears they could have been killed.
He wants transfers suspended indefinitely and is seeking a Federal Court injunction to that effect.
“Transfers could resume next week — or tomorrow — and no one would know,” said Mr. Champ, a lawyer for Amnesty International and the B.C. Civil Liberties Association.
“This is not a moot issue.”
He is pushing to have the Canadian Charter of Rights and Freedoms apply to interactions between Canadian soldiers and their prisoners — even in foreign countries.
Mr. Champ said other countries have adopted similar models and that Canada should follow suit.
A federal lawyer argued that Mr. Champ’s quest for an injunction is now moot because the transfers have stopped. But he was cut off by the judge when he suggested the controversy was over.
“Up until noon on Tuesday we thought there was a live controversy,” said Federal Court Justice Anne Mactavish.
She added that the prisoner policy could change at a moment’s notice and nobody would ever know.
But the federal lawyer said Afghan detainees are and will remain safe from torture.
“The facts that are before this court offer no indication that anyone’s rights are being threatened,” said federal attorney J. Sanderson Graham.
“What will happen in two weeks, or two months, is mere speculation.”
An army general told the court that Canadian troops stopped transferring enemy prisoners to Afghan authorities the day after a Nov. 5 prison visit found evidence of torture.
Brigadier-General André Deschamps, chief of staff to Canada’s Expeditionary Forces Command and the first witness to testify at the injunction hearing, said the decision was made by Col. Christian Juneau.
Col. Juneau was acting commander of Canada’s military effort in Afghanistan when Canadian officials heard stories of abuse from prisoners at a Kandahar prison.
The decision came after the Conservative government ridiculed its opponents for raising torture allegations and Prime Minister Stephen Harper accused them of being pro-Taliban.
Brig.-Gen. Deschamps said no prisoners have been transferred since that prison visit.
But human-rights lawyers were continually thwarted in their efforts to learn more as the defence sprang up and claimed National Defence Act protections following a number of Champ’s questions.
Mr. Graham rose and repeated, “I object,” when Mr. Champ asked why the government never told Canadians about the policy change, where the detainees are now, and how many there are.
Brig.-Gen. Deschamps did say the prisoner facility at Kandahar airfield has not been expanded since the decision.
During their Nov. 5 visit, Canadian officials saw what they described as credible evidence of torture.
They had documented a number of other allegations — at one point seeing scars on a man who said he received electric shocks — but they only shifted their policy after that visit.
On that day, a prisoner told the Canadians he’d been beaten unconscious, whipped with electrical cables, and belted with a rubber hose. He showed them his bruises and told them exactly where they could find the torture instruments.
He then led them to his prison cell, where they found the hose and cables under a chair.
The human-rights lawyers expressed doubt that the decision to halt transfers was made by a colonel in Kandahar.
They said it must have been made in Ottawa, and that the Prime Minister’s Office would likely have been aware of such a major policy shift.
The government kept its decision under wraps, even as it prepared to fight rights groups seeking a halt to transfers in court Thursday.
“Canadian authorities were informed on November 5, 2007, by Canada’s monitoring team, of a credible allegation of mistreatment pertaining to one Canadian-transferred detainee held in an Afghan detention facility,” the lawyers said in a letter to Amnesty International Canada and the British Columbia Civil Liberties Association.
“As a consequence there have been no transfers of detainees to Afghan authorities since that date,” the letter confirmed.
“It’s staggering,” Jason Gratl, president of the BCCLA said of the government’s belated admission. “In matters as important as complicity in torture and its conduct of war, the government owes Canadians some explanations in an open and frank manner.”
The government, which is trying to drum up support for extending the Afghan mission, only revealed it had ceased transfers as it tried to make a deal with Amnesty and the BCCLA to drop their application for an injunction.
But Ottawa refused a counteroffer in which it would have agreed to give seven days notice before resuming transfers.
It’s not clear whether troops are still taking prisoners only to release them, holding them in temporary cells run by Canadian Military Police on Kandahar Air Base or once again turning prisoners over to U.S. forces, which operate a prison at Bagram in Afghanistan.
“Concerning the matter of detainees, the number of detainees, if they are being transferred or not, these are all operational matters and are the responsibility of the Canadian Forces. The Government will not provide any comment on operational matters,” said Sandra Buckler, spokeswoman for Mr. Harper.
The letter to Amnesty and the BCCLA continued: “Canada will resume transferring detainees when it believes it can do so in accordance with its international legal obligations.”
Among those obligations is a Geneva Conventions prohibition against handing prisoners over to those who would abuse or torture them.
Given the widely documented and widespread abuse and ill-treatment that is rife in Afghan prisons, Mr. Gratl said he “could not foresee detainee transfers resuming in the foreseeable future.
“The government’s decision amounts to a concession that the May, 2007, monitoring agreement has failed to prevent torture by Afghan authorities,” he said.
That agreement, which allows for follow-up inspections, was negotiated only after former defence minister Gordon O’Connor’s assurances that the International Committee of the Red Cross would report abuse of transferred prisoners back to the Harper government were shown to be wrong.
More than a month after it stopped handing prisoners over to Afghanistan’s National Directorate of Security, the Harper government sent a senior general to give a sworn affidavit in the case brought by Amnesty and BCCLA.
The rights groups wanted transfers banned, claiming the government is bound by both international law and the Canadian Constitution from delivering detainees to those likely to torture or abuse them.
Building a NATO detention facility, perhaps on the Kandahar base, which currently houses more than 10,000 troops, has been repeatedly suggested by international human-rights groups. Canada and most NATO nations are opposed.
Detainee timeline
2001
Dec. 19: Then-defence-minister Art Eggleton reveals that Canadian forces, specifically commandos from Joint Task Force 2, have joined the war, sparking concerns about whether troops would turn captured Afghans over to U.S. authorities.
2002
Jan. 21: Canadian commandos turn three captured al-Qaeda fighters over to the U.S. military.
Jan. 28: Then-prime-minister Jean Chrétien says the government is reviewing its policy on prisoners and that opposition concerns are “hypothetical” because none have been taken.
Jan. 29: Mr. Eggleton admits he learned eight days earlier that Canadian commandos had turned over prisoners without any assurances about whether they would be treated as prisoners of war.
Feb. 6: U.S. President George W. Bush says that Taliban prisoners would be considered POWs under the Geneva Conventions, but al-Qaeda prisoners would not.
Feb. 7: Both Mr. Chrétien and Mr. Eggleton say they are satisfied with this guarantee.
2005
Dec. 18: General Rick Hillier, Chief of the Defence Staff, signs an agreement with Afghanistan’s Defence Minister stipulating that detainees handed from Canadian to Afghan custody will be treated in accordance with the third Geneva convention, which forbids torture and other inhumane treatment.
2006
May 31: Defence Minister Dennis O’Connor says the International Committee of the Red Cross is monitoring detainees, and will report prisoner abuse to Canada.
2007
February: Investigations are launched into the treatment of Afghan detainees after The Globe and Mail publishes allegations of abuse.
Feb. 21: Amnesty International and the British Columbia Civil Liberties Association file an application in Federal Court seeking a judicial review of the military’s detainee-handover policy, questioning whether Canadian soldiers abroad are legally bound by the Geneva Conventions.
March 21: Mr. O’Connor apologizes for providing inaccurate information. “I would like to be clear: The International Committee of the Red Cross is under no obligation to share information with Canada on the treatment of detainees transferred by Canada to Afghan authorities,” he tells the House of Commons. “The International Committee of the Red Cross provides this information to the country that has the detainees in its custody, in this case, Afghanistan.”
April 23: During 30 face-to-face interviews with The Globe and Mail, Afghans detained by Canadian soldiers and sent to Kandahar’s notorious jails say they were beaten, whipped, starved, frozen, choked and subjected to electric shocks during interrogation.
April 24: Stephen Harper brushes off calls for his Defence Minister’s head and dismisses the furor over the torture of Afghans captured by Canadian soldiers as “allegations of the Taliban. … We do not have evidence that [the torture] is true.”
April 26: The Harper government buckles and announces a new deal providing Canadian officials with full access to Afghan jails.
July 9: It is learned that Gen. Hillier’s office has halted the release of documents relating to detainees captured in Afghanistan under the federal Access to Information Act, claiming that disclosure of any such information could endanger Canadian troops.
Sept. 22: Canada is unable to account for at least 50 prisoners it captured and turned over to Afghan authorities, frustrating efforts to put to rest concerns the detainees were subject to torture. Canadian sources blame the Afghans’ shoddy record-keeping and suggest the detainees have likely returned safely to their homes. But officials familiar with Kandahar’s justice system say the possibility of foul play cannot be dismissed.
Nov. 13: Turning Afghan detainees over to known torturers breaks international law, and Canada, along with other NATO countries should impose an immediate halt to transfers, Amnesty International says.
Nov. 15: Canadian officials confirm they have evidence a Taliban detainee showed signs of physical abuse, the seventh such allegation made by detainees since Canada began systematically visiting Afghan prisoners in May.
2008
Jan. 22: Compelling evidence that Canadian-transferred detainees are still being tortured in Afghan prisons emerges from the government’s own follow-up inspection reports.
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