Yesterday, government witnesses continued to toe the party line, asserting that there was no credible evidence of torture prior to the May 2007 transfer arrangement. In light of the reports which were being issued by authoritative and credible human rights observers about the serious risk of torture faced by detainees in Afghan custody, it is difficult to understand how the government can maintain this position.
Colleen Swords, an assistant deputy minister at Foreign Affairs, who was also a government witness during our federal court challenge to the Afghan detainee transfers, testified yesterday that for her, credible evidence of torture meant specific evidence that the individual detainee being transferred would be tortured by Afghan authorities.
Liberal MP Bob Rae asked Ms. Swords: “”If you find an instrument of torture in the office of the director of investigations of the national directorate of security, what is that?” he asked Swords.
She responded that the “standard is a substantial risk of torture, and it has to be with respect to the individual, not just generally.”
Ms. Swords statement is a shocking misunderstanding of Canada’s obligations under international and domestic law. It strikes us as incredible that a senior diplomatic official responsible preventing the mistreatment of Canadian transferred detainees was not better briefed on the relevant legal standards concerning the universal prohibition against torture.
Canada’s international treaty obligations impose upon it a positive obligation to prevent acts of torture. The principle of non-refoulement is a fundamental and inherent component of the prohibition against torture, and is enshrined in Canada’s domestic laws and in international human rights instruments to which Canada is a signatory. Under the principle of non-refoulement, Canada cannot transfer an individual to another country if he or she would be at risk of torture or other cruel, inhuman or degrading treatment there.
In order to demonstrate that an individual would be at risk of torture or abuse, it is not necessary to show with certainty that an individual would be tortured or abused. (It is, of course, impossible to predict the future with certainty.) All that is needed is a showing that there is a substantial risk that the individual being transferred would be subjected to torture or abuse.
There are a number of ways in which substantial risk of torture can be demonstrated. One way is to present credible evidence that individuals in certain groups are targeted for torture, and to establish that the individual being transferred is a member of that targeted group. This is precisely the evidence we have here — that detainees in Afghan prison are routinely tortured, and that the individuals being transferred by Canadian forces would necessarily be detainees in Afghan prisons. This is sufficient to trigger Canada’s obligations to refrain from transferring individuals under the principle of non-refoulement.
The Canadian government’s assertion that it needed specific evidence of the torture of an individual transferred by Canadian Forces before it was required to halt the detainee transfers mischaracterizes its obligations under the law.