The Canadian Afghan detainee issue concerns questions about actions of the executive branch of the Government of Canada during the War in Afghanistan (2001–present) in regards to Canada transferring Afghan detainees to the Afghan National Army (ANA) or the Afghan National Directorate of Security (NDS). This issue has at least two distinct subcategories:
First, at issue is the question of whether or not the executive branch of the Government of Canada knew about alleged abusive treatment of Afghan detainees by those Afghan forces. Particularly at issue are questions of when the government of Canada had this alleged knowledge. The question of "when" is important because it pertains to their responsibility to act on knowledge of mistreatment of detainees. That responsibility is outlined in the Third Geneva Convention, and Canada is party to that Convention. Article 12 states that "the Detaining Power [(in this case Canada)] is responsible for the treatment given [to prisoners of war]" as outlined in the Convention.
A second, more serious issue arose on March 5, 2010, when the CBC News published the following statement "Until now, the controversy has centred on whether the government turned a blind eye to abuse of Afghan detainees. However, [ University of Ottawa law professor Amir Attaran ] said the full versions of the documents show that Canada went even further in intentionally handing over prisoners to torturers."[1] "If the allegation is true, such actions would constitute a war crime, said Attaran, who has been digging deep into the issue and told CBC News he has seen uncensored versions of government documents released last year."[1]
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| “ | These assertions of prisoner abuse are no small matter. Under international law, Canadian soldiers cannot knowingly hand prisoners over to authorities that engage in torture. If they do, they are liable under international criminal law. | †|
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—The Unexpected War, 2007[2] |
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On December 18, 2005, then-Chief of Defence Staff Rick Hillier signed an agreement between Canada's Department of National Defence and the Government of Afghanistan The agreement did not include any explicit right of access by Canada to Afghan detainees. Members of the opposition requested Gordon O'Connor to renegotiate the prisoner transfer agreement, but this request was dismissed, with O'Connor saying the Red Cross and the Red Crescent fulfilled the duty of ensuring fair treatment of detainees, and Canada could be notified and take action in any cases of abuse.[3][4][5] However, the Red Cross has stated that their mandate was being misunderstood, and it was the Canadians' responsibility.[2] It maintained that it had no role in monitoring the Canada-Afghanistan detainee-transfer agreement, and that following long-established operating procedure, the Red Cross would not reveal to any foreign government any abuses it might find in Afghan prisons.[6] While maintaining otherwise until March 2007, O'Connor apologized to the House for previously misleading them on the Red Cross issue.[7]
| Prime Ministers of Canada | ||
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| Paul Martin December 2003 – February 2006 |
Stephen Harper February 2006 – present |
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| Chiefs of Defence Staff | ||
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| Rick Hillier February 2005 – July 2008 |
Walter Natynczyk July 2008 – present |
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| Ministers of Defence | ||
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| Gordon O'Connor February 2006 – August 2007 |
Peter MacKay August 2007 – present |
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| Diplomats | ||
| Eileen Olexiuk Canadian Embassy |
Richard Colvin Foreign Affairs Dept., Canadian Embassy |
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In early February 2007, University of Ottawa law professor Amir Attaran produced documents he had received through an Access to Information request showing that three prisoners in the custody of Canadian military police were brought in by their Afghan interrogator for treatment of similar injuries to the head and upper body, all on the same day. Attaran argued this could be evidence of torture on the part of the interrogator and should be investigated.[8] Attaran has maintained these allegations, stating in 2010 that the documents show torture of detainees was an actual tactic used to obtain information during interrogation.[9]
In April 2007, The Globe and Mail published interviews with 30 men who claimed they were "beaten, starved, frozen and choked after they were handed over to Afghanistan's National Directorate of Security".[10] It also revealed that it had received an expurgated report by the government on human rights in Afghanistan through a freedom-of-information request, and it contained "negative references to acts such as torture, abuse, and extra judicial killings were blacked out without an explanation." [11] This prompted intensive questioning in the House, to which O'Connor claimed that a new agreement had been reached, saying "we have, in the last few days, entered into a local agreement in the Kandahar province to enter the detention facilities any time we want." [12] This would be reaffirmed by Prime Minister Stephen Harper, stating that there was "no evidence that access is blocked to the prisons" and said that Afghan authorities had agreed to "formalize that agreement so there is no potential misunderstanding"[13][14] Regardless, the North Atlantic Treaty Organization (NATO) Secretary General Jaap de Hoop Scheffer announced that the Afghan government was to launch an inquiry about the fate of detainees.[15]
In January 2008, it was revealed that the Harper government, months earlier, quietly ceased the detainee transfers after an internal investigation revealed the allegations to be credible.[16] Allegations regarding the treatment of Afghan detainees resurfaced in November 2009 via parliamentary testimony by Richard Colvin, the second highest ranked member of Canada’s diplomatic service in Afghanistan from 2006 to 2007. Colvin claimed that many detainees were probably tortured, and it was a standard operating procedure for Afghan interrogators. He also said the torture involved beatings, whipping with power cables, the use of electricity, knives, open flames and rape.[17] The Canadian government dismissed opposition calls for a public inquiry the next day. "There has not been a single, solitary proven allegation of abuse involving a transferred Taliban prisoner by Canadian forces" Defence Minister Peter MacKay said in the House of Commons, with his parliamentary secretary suggesting Colvin was not credible.[18].After testifying the day prior that one particular abused detainee was never in Canadian Forces custody, General Walter Natynczyk corrected himself upon receiving new information showing the contrary. Canada's top military commander went on to say that he would investigate the incident and why the information about it was so slow to surface.[19]
After going quiet, more pieces of information came to light as parliament reconvened in March 2010. The Canadian Press reported that documents filed with the Military Police Complaints Commission showed that the Canadian Security Intelligence Service had starting playing a role in the interrogation of Afghans captured by Canadian Forces in 2006, and that their decision to hand captives over to the National Directorate of Intelligence was sometimes based on the recommendations of CSIS interrogators.[20] Eileen Olexiuk, another Canadian diplomat in Afghanistan, also revealed in an interview with the CBC that she had warned the government in 2005 about torture problems. She said that the government, which was under the Liberal leadership of Paul Martin at the time, ignored her advice.[21]
Opposition MPs in the House of Commons have called for all documents the government had regarding the detainee issue, including reports to the government by Richard Colvin. Foreign Affairs Minister Lawrence Cannon assured the House of Commons that the documents would be handed over to a special committee in charge of looking into the issue.[22] Defence Minister Peter MacKay claimed the documents had to be reviewed for possible security risks. "There's a mandatory obligation on public officials to ensure that when information is released that it is in compliance with the Canada Evidence Act," MacKay said last Wednesday. However, opposition MPs and other critics have stated that this is an absurd argument, as Parliament has the constitutional right to have access to the documents uncensored.[23] This view was shared by law professor Amir Attaran, who claimed he had personally seen the documents unredacted before through an access to information request.[24] Regardless, the government has stuck to this line, and even boycotted an Afghan committee meeting, failing to make it meet quorum and rendering it useless.[25]
On December 18, 2009, the House of Commons of Canada passed a motion requiring the release of unredacted documents concerning the Afghan detainees to the committee hearing the issue. However, the government has refused to abide by the motion. Critics repeated that the government was violating the Constitution of Canada and will be in contempt of Parliament if it continues to refuse to release uncensored documents regarding the Afghan detainee issue.[26][27] On March 2, 2010, MP Derek Lee announced that, as soon as he can, he will introduce a privilege motion that calls for an official reprimand of Defence Minister Peter MacKay and a reproach of a Department of Justice official. If his motion is successful, it could see the Commons sergeant-at-arms using a never-before-exercised power to seize the documents which Parliament requested in December, 2009. He also wrote to the Governor General warning that she may need to wade into the fray if the government decides to keep flouting the December 2009 Parliamentary order to produce documents related to the treatment of Afghan detainees.[28]
On March 5, 2010, Justice Minister Rob Nicholson announced to the House of Commons that former Supreme Court of Canada judge Frank Iacobucci was appointed to advise Nicholson if any "injurious" effects would result from making the Afghan detainee documents public. However, University of Ottawa law professor Amir Attaran pointed out that Iacobucci was not a sitting judge and therefore had no power except to give lawyer advice to Nicholson.[29] The opposition expressed deep disappointment with the decision, saying that they did not doubt the competence of the former justice, but believed that it was nothing more than another way to delay the issue.[30] The Parliamentarians were never given a copy of the exact question (Terms of Reference) that the government posed to Frank Iacobucci.[31]
In an interview with Evan Solomon, Liberal and NDP defence critics Ujjal Dosanjh and Jack Harris, respectively, repeated that Parliament has the the constitutional right to review unredacted documents, and that there are systems in place to decide what is and is not appropriate to release to the public.[32] Referring to those "systems," Reg Whitaker noted that members of the "Military Police Complaints Commission, whose investigation of the Afghan detainee issue actually led to the calling of the parliamentary inquiry ... are [already] fully security cleared [to see the unredacted documents]"[33] but, as of March 5, 2010, have not been given that access.
On December 30, 2009, Parliament was prorogued at the request of Prime Minister Harper. According to his spokesman, he sought this prorogation to consult with Canadians about the economy.[34] The move caused cries from opposition MPs who labelled it as an attempt to "muzzle parliamentarians amid controversy over the Afghan detainees affair."[34] Prorogation prevented the parliamentary committee from continuing to probe the issue. Although informal committee meetings continued, they had no power to compel testimony or grant immunity, and Conservative MPs would not be represented.[35][36] Bob Rae has not ruled out a formal censure of the government in response to the prorogation of parliament preventing the parliamentary committee from investigating the issue.[37]
An EKOS poll was conducted from December 2 to December 8, 2009, and asked 2,388 Canadians about their opinions on the Afghan detainee issue. The poll revealed that 83% of the respondents believed the government knew Afghan detainees were tortured. This was a consistent result across all age groups, genders and geographic locations. It also concluded that 41% of respondents were dissatisfied with the governments transparency on the issue, and only 24% were satisfied. The remaining 35% were still undecided or had no opinion.[38] A poll done by Angus Reid prior to January 9, found that 38 per cent of Canadians believed that Harper used the December 30, 2009 prorogation to curtail the Canadian Afghan detainee issue.[39]
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