• Reiterated their call for a public inquiry to be convened into
Canada’s approach to handling battlefield prisoners in Afghanistan.
Under international human rights and humanitarian law, the Government of Canada retains the responsibility of ensuring that prisoners transferred by the Canadian Forces are not subject to mistreatment in Afghan custody. Canadian government officials frequently stated that Canadian diplomats were monitoring Afghan detention facilities in order to meet that obligation. Under the circumstances, Canada should confirm that monitoring will continue and that it will take immediate and appropriate action to determine the physical condition of all prisoners transferred to Afghan custody.
While Canadian soldiers are no longer detaining individuals in Afghanistan, it is entirely possible that similar challenges and human rights concerns will arise in future deployments of Canadian forces, in Afghanistan or any other country. For this reason, only a comprehensive public inquiry into all aspects of the issue will ensure that the truth comes to light and that appropriate measures can be adopted to guard against this happening again.
To date there has been a troubling lack of transparency and accountability with regard to this issue in Canada. Given the well-documented and longstanding prevalence of torture in Afghan prisoners, Amnesty International and the British Columbia Civil Liberties Association began to press Canada to revise its prisoner policy as soon as it was announced in late 2005. However, the government steadfastly maintained that the policy was lawful and would not expose prisoners to a risk of torture.
Over time and only after considerable pressure, some reforms were instituted, including agreement from Afghan authorities that Canadian officials would be allowed access to detention centres to monitor prisoners after they were transferred. It later came to light, however, that confidential internal reports from Canadian diplomats who conducted those monitoring visits and documented concerns about torture were generally given very little weight. One diplomat, Richard Colvin, was publicly rebuked by government Ministers and other senior officials when he later was called to testify about his concerns before a parliamentary committee.
In 2007, Amnesty International and the British Columbia Civil Liberties Association launched an application in Federal Court seeking an order that would stop prisoner transfers. The government argued that the court case should not go ahead, because the Canadian Charter of Rights and Freedoms, the legal basis of the application, did not cover the actions of Canadian soldiers when they were outside Canada. Regrettably, the Federal Court and Federal Court of Appeal agreed with that position and the Supreme Court of Canada, in May 2009, declined to hear a further appeal. As a result, no court ever considered the substance of the matter. A complaint before the Military Police Complaints Commission, examining only the limited role played by military police personnel in the transfers, completed hearings in February 2011 and has not yet issued its report.
At the same time, the issue sparked a highly contentious political and constitutional debate between the government and opposition parties, focused largely on the right of Members of Parliament to transparency and accountability from the government on this matter and leading to a highly controversial decision by the government to prorogue Parliament in December 2009. A slow and cumbersome process of document review involving 3 of the 4 federal political parties was then agreed to, the partial results of which were released in June 2011 but which failed to shed any meaningful light on key concerns.
Against this backdrop of secrecy, refusal to acknowledge the problem, efforts to silence critics and strenuous efforts in the courts and in Parliament to obstruct accountability, it is deeply troubling to see how soon after Canada’s withdrawal from a combat role in Kandahar NATO came to recognize and act on the need to suspend prisoner transfers. While NATO’s decision was based on their advance review of the UNAMA report, that report did not document or reveal anything that had not already been well-documented by the UN, governments, international and Afghan human rights groups and investigative journalists, going back many years. All of that information had been repeatedly put in front of Canadian officials.