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.

The BCCLA has long been concerned with the treatment of prisoners apprehended by Canadian Forces during military operations in Afghanistan.

As early as 2002, when Canada first entered into the current conflict in Afghanistan, the BCCLA called for a halt to the transfer of prisoners to U.S. custody, given the serious human rights’ concerns about the treatment of prisoners in U.S. detention facilities in Afghanistan and the troubling likelihood that prisoners would be further transferred to Guantánamo Bay.

We advocated for a system of handling prisoners which would conform to Canada’s international human rights obligations and be consistent with the principles enshrined in the Charter of Rights and Freedoms.

In 2005, the Canadian forces began transferring prisoners to the custody of Afghan officials. We voiced our concerns about this arrangement, given the widespread use of torture in Afghan prisons. Along with Amnesty International, we instead urged that Canadian forces work with the Afghan government and NATO allies to develop a system for handling detainees which would ensure that prisoners would be protected from torture and abuse.

We saw this as an opportunity for Canada to assist Afghanistan in reforming its notorious prison system and to play an important role in further the goal of eradicating torture worldwide.

By 2007, we saw little effort being made by the government to ensure that Afghan detainees were being treated humanely, so we were compelled to turn to the courts and tribunals for assistance. Along with Amnesty, we 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. These actions have been aggressively contested by the Canadian government. The government sought to have the Federal Court application dismissed on procedural grounds, and was successful in its argument that the protections of the Charter of Rights and Freedoms did not apply to Canadian forces acting in Afghanistan. However, during the course of that litigation, we learned important evidence of Canada’s knowledge of torture in the Afghan prison system and the risks faced by prisoners transferred by Canadian forces to Afghan custody. More information about the Federal Court litigation, including copies of emails and other documents relating to the detainee transfers obtained from the government, is available here.

Meanwhile, the government has thrown up innumerable roadblocks to stall and delay the MPCC process. In response to our complaints, the MPCC established public interest hearings to investigate the conduct of the military police, which is the branch of the Canadian forces responsible for prisoner transfers from Canadian to Afghan custody. Rather than permitting the hearings to proceed, the government challenged the jurisdiction of the MPCC to conduct an investigation; as a result of the government’s judicial challenges, the scope of the MPCC’s inquiry was significantly curtailed.

The government has also been largely unresponsive to the Commission’s request for documents and witnesses, taking over a year to censor and hand over records to the MPCC and refusing to grant access to crucial witnesses. MPCC hearings were suspended from October 2009 to April 2010 because of delayed document disclosure by government. It nonetheless soon became apparent through the course of the April hearings that the government was continuing to withhold crucial information from the Commission.

Concerned by the government’s secrecy and continued obstruction of the MPCC process, Parliament began calling witnesses to testify about the detainee transfer process in late 2009. Despite repeated requests to the government for documents relating to the detainee transfers, government refused to provide Parliament with the necessary materials, citing national security concerns. In March 2010, however, the Speaker of the House issued a ruling that government would be in contempt of Parliament if it failed to provide the requested materials. Since then, government, together with two of three opposition parties, has signed a “document deal”, allowing security-cleared members access to detainee documentation. Our commentary on the limitations of this document arrangement is available here. These document review meetings have yet to begin.

Testimony that has been given in parliamentary and MPCC sessions has been deeply troubling. Senior diplomat Richard Colvin testified that Canadian officials at the highest levels of seniority were aware of serious concerns that Afghan prisoners were being subjected torture and other human rights violations. Memos drafted by DFAIT and Canadian Forces officials advocated for Colvin’s dismissal because of the frank nature of his reports of torture and abuse of detainees held in Afghan custody. Nicholas Gosselin, a former DFAIT official, testified about having discovered implements of torture in one of his prison investigations, and though transfers were briefly suspended following his discovery, they were nonetheless resumed several months later, without any evidence that the risk of torture in Afghan facilities had been eliminated. David Mulroney, the former chief diplomat for Afghanistan and the current ambassador to China, conceded during his Parliamentary testimony that he was aware, as early as 2006, that there were problems in Afghan prisons, and testified that he was also aware of allegations that the governor of Kandahar ran a series of torture chambers.

Willful blindness and blame-shifting appear to be recurrent themes at the MPCC hearings. A number of senior officials in the Canadian Forces, Foreign Affairs, and the Department of National Defense have testified that they were unfamiliar with the federal court ruling and numerous reports issued by the U.S. State Department, the UN and the Afghan Human Rights’ Commission which attest to the occurrence of torture in Afghan jails. The Commission also heard from Brigadier-General Guy Laroche, Commander of Task Force Afghanistan, who stated that he relied on assessments provided by his DFAIT Political Advisor on the risk of torture facing Canadian-transferred detainees. The day after B-Gen. Laroche’s testimony, Ed Jager, the DFAIT Political Advisor, testified that such assessments were not part of his mandate. The MPCC adjourned in June 2010 due, once again, to continued delays in document disclosure by government. Hearings are set to resume in September 2010.


Further Resources: