Torture: The Transfers of Afgan Prisoners
Letter to Canada's House of Commons


by Lawyers Against the War
LAW
December 22, 2009


Monday, December 21, 2009

Open letter to the Parliamentary Special Committee on the Canadian Mission in Afghanistan


Dear Committee Members:

Chair: Rick Casson, Vice-chair: Bryon Wilfert, Members: Jim Abbott, Ujjal Dosanjh, Francine Lalonde, Claude Bachand, Laurie Hawn, Dave MacKenzie, Paul Dewar, Greg Kerr, Deepak Obhrai:

Lawyers against the War (LAW) urges the Parliamentary Special Committee on the Canadian Mission in Afghanistan to recommend:

The immediate cessation of transfers of people taken prisoner in Afghanistan (prisoners) by Canada, to third countries, including Afghanistan; and,

That Canada immediately undertake effective protective and remedial measures with respect to all prisoners already transferred by Canada to third countries; and,

The creation of a judicial inquiry mandated to inquire into allegations that the transfers violate Canadian and international law and to recommend the civil and criminal remedies required by law.

Concerned Canadians know that people taken captive in Afghanistan and transferred to either U.S. or Afghan custody are at risk of torture and other grave violations of their internationally protected rights. The facts establishing the illegality of the transfer of prisoners have been a matter public record since, at the latest, early 2004. Under Canadian and international law transfer to risk of such harm violates both Canadian and international law. Knowledge of the applicable law is presumed.

Evidence that Canada was and is, violating Canadian and international law by transferring people taken captive in Afghanistan to either U.S. or Afghan authorities has long been part of the public record. Since November 13 20011, the world has known that the U.S. intended to illegally detain non-Americans taken prisoner in Afghanistan and to deny them access to properly constituted courts and other due process in violation of international law.2 The world has known since February 7, 20023 that such prisoners transferred into U.S. custody would be denied the protection of the Geneva Conventions and subjected to whatever treatment, including torture and/or other prohibited treatment, the President or Secretary of Defense arbitrarily determined was ‘required by the exigencies of the war on terror’. By the end of September 2004, concerned people and those in positions of responsibility knew, from the report of the Independent Expert on the Situation of Human Rights in Afghanistan, that prisoners were routinely subjected to torture and other internationally prohibited treatment in both Afghan-run and U.S.-run prisons within Afghanistan.4

Statements by Canadian officials that there was no torture or that, if there was they didn’t know about it, ring hollow and remind us of similar statements by U.S. officials. Suggestions by Canadian officials that the law doesn’t apply to ‘those people’ also remind us of the statements of the Bush administration to justify treatment of people taken captive in Afghanistan. Such statements do not alter the known fact that these transfers violate the internationally protected rights of prisoners: nor do they alter the law. Canada has the legal duty to act effectively to ensure that past violations are remedied and future violations prevented. It is instructive to consider that some U.S. officials who used their status to facilitate the illegal detention and treatment of people taken prisoner in Afghanistan are now being prosecuted5 and sued for damages for torture.6

Some of the reports detailing evidence of the likelihood and/or certainty that prisoners transferred to either U.S. or Afghan authorities would be subjected to criminal violations of their internationally protected rights including, but not limited to torture, are cited below. The Prime Minister and other political authorities responsible for ensuring adherence to the law received notice of these reports. They had a duty to ensure that military leaders were properly advised and instructed as a result.

On 11 March 2005, the Report of the Independent Expert on the Situation of Human Rights in Afghanistan, M. Cherif Bassiouni, to the UN Commission on Human Rights, indicated there were reasonable grounds to believe that prisoners in Afghanistan were being subjected to torture. Professor Bassiouni reported that while he had difficulty gaining access to detention facilities, he had interviewed prisoners who alleged that, “ …Coalition forces and special units of the Afghan security agencies and police act above and beyond the reach of the law by engaging in arbitrary arrests and detentions and committing abusive practices, including torture.â€