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Afghan Detainees: Why the BCCLA is concerned and calling for a public inquiry

June 27, 2012 Update:  The Military Police Complaints Commission (“MPCC”) released its Final Report following its inquiry into the conduct of the military police relating to the transfer of detainees captured by Canadian Forces in Afghanistan to risk of torture in Afghan prisons.  See here for a summary and link to the report.

Why the BCCLA Is Concerned About the Torture of Afghan Detainees

The use of torture is absolutely prohibited under Canadian and international law. What this means is that torture is prohibited under all circumstances, and that there can never be situation where the use of torture can be justified. The universal prohibition against torture does not simply mean that the government shouldn’t engage in torture or be complicit in torture, however. It also means that a government has a duty to prevent the perpetration of torture and to ensure that it is not responsible for delivering individuals to situations in which they would be at risk of torture or other cruel, inhuman or degrading treatment. During the course of its military operations in Afghanistan, Canadian Forces routinely take prisoners. In this context, Canada’s obligation to prevent torture means two things:

First, Canadian troops are not allowed to engage in acts of torture against these prisoners.

Second, Canada cannot transfer these prisoners to the Afghan government if it has any knowledge that these prisoners would face a substantial risk of torture at the hands of the Afghans.

If the Canadian government was aware that prisoners were being tortured by Afghan officials, and yet continued to transfer individuals into Afghan custody, Canada would acting in violation of the universal prohibition against torture. Since 2002, information obtained from human rights monitoring groups and through judicial, administrative and parliamentary inquiries all suggest strongly that Canada’s conduct in Afghanistan is in serious breach of its international obligations and fails to live up to basic Charter principles. The Canadian government has stated on numerous occasions that its military and agents do not torture. Canada has confirmed its commitment to preventing torture by entering into international agreements aimed at eradicating torture. Canada can maintain fidelity to these commitments only if it ensures that it neither engages in torture, is complicit in torture, nor knowingly delivers individuals to the risk of torture.

In 2007, along with Amnesty International, the BCCLA launched a Federal Court application for an order to halt the transfers and filed two complaints with the Military Police Complaints Commission (“MPCC”) challenging the transfers.


Why the BCCLA Is Calling for a Public Inquiry

There is simply no other way to learn whether Canadian officials knew whether prisoners captured by the Canadian forces were being transferred to torture.

We have no recourse in the courts, given the government’s successful application to have our case dismissed. The MPCC process has been derailed by the government’s procedural challenges and refusal to provide the Commission with crucial information. Parliament’s own inquiry into detainee transfers has been badly hampered by its protracted to-and-fro with government over access to relevant documents. Thus, the only remaining option to ensure that there is proper accountability for Canada’s conduct in Afghanistan is to establish a full, public Commission of Inquiry into all aspects of the laws, policy and practice that has governed Canada’s approach to handling prisoners in Afghanistan.

The need for a full public inquiry — where the Commission of Inquiry would have full access to the relevant documents and witnesses — has been made apparent by the obstacles encountered by both the MPCC and Parliament this past year. The MPCC hearings, which began in April 2009, were stalled for six months because of a lack of the necessary documentation. The Commission adjourned once again over the summer because it was still waiting for government to disclose the relevant and necessary documents. Parliament has also faced obstacles in terms of document disclosure. Government’s refusal to make documents available to the House of Commons culminated in an historic ruling by the Speaker of the House that the government was obligated to disclose all documents related to the detainee issue at the request of Parliament.

Nonetheless, the recently concluded “document deal” does not reflect the Speaker’s ruling in favor of full disclosure; indeed, it still permits a panel of judges to withhold certain documents from the Commons Committee, creating the worrying possibility that critical documents will never be disclosed for Committee review.

The BCCLA maintains that access to documents is essential to resolve inconsistencies between government-issued statements, and those documents that have been made public thus far. The jurisdictional mandate of the MPCC is limited and information coming out of the Parliamentary document review may be incomplete. We need an independent commission with full access to documents and witnesses to resolve these inconsistencies and get to the truth. There is simply no other way to learn whether Canadian officials knew whether prisoners captured by the Canadian forces were being transferred to torture.

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