AI Calls for a Canadian Judicial Review of Detainee Transfers in Afghanistan

During a press conference today, representatives from Amnesty International Canada and the British Columbia Civil Liberties Association called for a judicial review of the practice of the Canadian military handing detainees over to Afghan officials without any assurances that they will not be tortured.

The transfer by Canadian Forces of individuals captured or detained in Afghanistan must not lead to the possibility of torture, say Amnesty International and the British Columbia Civil Liberties Association. An application for judicial review of the actions of Canadian Forces regarding the transfers that have taken place under the Canada-Afghanistan Detainee Agreement signed on 18 December, 2005 has been launched by the two organizations today.

“Canadian Forces handling detainees in Afghanistan operate under the Canadian Charter of Rights and Freedoms and are bound by Canada’s international human rights obligations”, says Alex Neve, Secretary General of Amnesty International Canada. “Everyone has the right to life, liberty and security of person under the Charter and international law. Individuals detained by Canadian Forces must not face the threat of torture after being transferred.”

The Canada-Afghanistan Detainee Agreement does not provide adequate safeguards to ensure that detainees will not be tortured by Afghan forces. Canadian officials are not given the right to monitor detainees after they have been transferred. And although the agreement anticipates that detainees first held by Canada may be moved onwards to the custody of a third country it fails to provide safeguards to ensure they will not be subject to torture or even execution. The previous practice by Canadian Forces of transferring detainees directly to United States forces led to serious human rights violations in Afghanistan and Guantanamo Bay. The clear possibility of further transfer of detainees to United States custody remains under the current agreement...

Further:

The Chief of the Defence Staff, General Hillier has also refused to allow these detainees access to legal counsel before being transferred to the Afghanistan authorities. Amnesty International and the British Columbia Civil Liberties Association state that this is also contrary to the right of individuals detained by Canadian Forces to retain and instruct legal counsel without delay under section 10(b) of the Canadian Charter of Rights and Freedoms.

This call for a judicial review comes on the heels of the recent story about 3 Afghan detainees who were allegedly mistreated by Canadian troops. When that story broke, Hillier had this to say about the Canadian agreement with the Afghanistan government on the handling of detainees:

Gen. Rick Hillier, chief of the defence staff, defends the agreement that he signed with the Afghanistan government in December 2005.

"We have a policy in place to handle them humanely and appropriately, and ... we hand them off to the Afghan authorities," Hillier says.

Obviously, that "policy" is not enough, especially when there are Canadian and international laws that the military is bound to uphold. Hillier has quite the legal battle ahead of him, not only as it relates to this court filing, but also in the case of the detainees who alleged abuse since evidence has already come out that shows the military knew about those allegations for months and did nothing. Suddenly, when cornered, the defence department launched 3 seperate investigations into that matter this month. It shouldn't take incidents like that or a legal threat for our military brass to fulfill its commitment to our laws or the Geneva Conventions.

Further, the Canadian-Afghanistan Detainee Agreement isn't even legally binding. Therefore, the Afghanistan government can choose to do whatever it wants to with detainees handed over to them by Canadian forces and consequently Canadian soldiers could be held to account by the International Criminal Court for abetting in the transfer of detainess who end up being tortured since to do so is a war crime.

As Amnesty International's Alex Neve testified before the defence committee just months ago, his organization has been pressing Canada's government over these detainee issues since the beginning of the Afghanistan war. That it's now taken a court challenge to attempt to rectify such a bad policy ought to be a major concern for all Canadians who value human rights.

Related: Standing Committee on National Defence, December 2006