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< class="what-entry-title">Canadian Forces’ U-Turn: Detainee was abused>

It’s interesting that General Walter Natynczyk wasn’t briefed on the case that the BCCLA and Amnesty International launched against the Canadian Forces in 2007. If he had been, he wouldn’t have been compelled to call a news conference today to correct false information he gave to the Commons committee on Tuesday.

Chief of Defense Staff Canadian Army Gen. Walter Natynczyk

Yesterday, the top military commander denied that there was evidence that a detainee who was beaten by Afghan police was handed over to Afghans by Canadian troops in 2006. Today, Natynczyk did a complete about-face and admitted that the man was indeed captured by Canadian troops. Natynczyk’s embarrassing turnaround is the lead story today in the Globe.

Our litigation uncovered information related to the transfer of the beaten Afghan man in 2007. Colonel Stephen Noonan told us about the existence of the man. Noonan stated in his affidavit filed in the litigation:

There was one incident in which the CF took custody of [sic] detainee who had been turned over to the local ANP by the CF. In this case, the CF learned that the detainee had been beaten by the local ANP. When they learned of this, they approached the local ANP and requested that the detainee be given to them. The ANP complied and the CH subsequently transferred the detainee to the Provincial ANP.

Documents we received after Noonan filed his affidavit reaffirmed that the detainee Noonan referred to had been captured by the Canadian Forces – and that the transfer occurred before Canada and Afghanistan entered into the second agreement. The documents revealed that when the Canadian Forces examined the man, they discovered “a large contusion, cause from blunt force trauma to the back of his neck and shoulder contusions/abrasions on the upper back”. “Further examination revealed apparent shoe prints on the back of his vest/clothes.  These marks were consistent with his reports…of being beaten with shoes.”

Our lawyer, Paul Champ, cross-examined Brigadier General Joseph Deschamps on this very issue. See the transcript from our lawsuit at para. 81.

Finally the Canadian Forces are waking up to the information that has been right in front of them for years. Who knows, maybe they’ll even get around to reading those pesky human rights reports.

< class="what-entry-title">Torture hearings liveblog: Peter MacKay>

Today is the last session of the Special Committee on the Canadian Mission in Afghanistan before Parliament closes shop for the year. It promises to be an explosive day of testimony, as key government figures will be appearing, including the embattled Minister of National Defense, Peter MacKay.

MacKay’s repeated assertions that there have been no substantiated cases of transferred detainees being tortured or abused were challenged earlier today by Chief of the Defence Staff Walter Natynczyk. Natynczyk had backed up MacKay’s denials in his appearance before the committee but changed his story in a dramatic press conference this morning. The BCCLA’s thoughts on Natynczyk’s reversal are available here.

The video stream of the proceedings will be available on ParlVU when the committee meets at 12:30 Pacific time, 3:30 Eastern. We’ll also be live blogging our thoughts on the proceedings here, and posting a full summary later this evening.

LIVEBLOG

  • 2:22 – Meeting adjourned before an answer can be given.

  • 2:20 – Claude Bachand – I would like to be able to get answers about responsibility to know. What do you have to say about ministerial responsibility to know. Where is the ministerial responsibility?
  • 2:19 – MacKay – We’re concerned with detainees that we had taken in the field and then turned over. Hundreds of allegations are of great concern, but our focus and responsibility is on the prisoners that we’ve turned over.
  • 2:19 – Lalond – Were you or were you not aware of IAHRC’s report detailing torture in Afghan prisons?
  • 2:17 – MacKay – Cites Colleen Swords testimony – DFAIT became aware of ICRC being concerned about notification of transfers and over capacity. We took action. By Feb 2007 we had experts on the ground to increase capabilities and capacities of Afghan prisons.
  • 2:15 – O’Connor – We inherited a bad transfer agreement. We upgraded the agreement.
  • 2:13 – Francine Lalond, questions for O’Connor – Ministers have a responsibility to know things, not just to receive but to be informed. Were you aware of report prepared by IAHRC dealing with 398 prisoners that were tortured, 57 of them who were from Kandahar? Do you have responsibility to know about these things?
  • 2:10 – MacKay – Outrageous allegations that we would knowingly collude in sending anyone to torture. Completely without basis or proof that MacKay has personally withheld documents or evidence. MPCC chair made a choice to suspend hearings.
  • 2:09 – Dosanjh – International law – you don’t need actual knowledge of torture or specific allegations, just circumstantial evidence and overall risks. You had this but continued transfers. MPCC is sufficient? No, it has been obstructed. Frustrated committee by not providing disclosure. “You allowed our prisoners to be sent to torture, despite substantial knowledge of the risk of torture.”
  • 2:07 – MacKay – Ministers get information from deputies, etc. Information flows up through government departments to a minister for a decision. This is synthesized from many sources, seen through sources of diplomats and military. Some information we’ve heard came from emails sent in. Ministers’ inboxes receive thousands of emails brought forward for decision.
  • 2:06 – Dosanjh interrupts, speaker turns off mic.
  • 2:04 – MacKay – Discusses improvements in the new agreement. We didn’t deny general concerns, but when there were specific concerns, they were investigated.
  • 2:04 – Ujjal Dosanjh, question for MacKay – Asks for MacKay to step down.
  • 2:02 – Questions beginning.
  • 1:59 – “If I were asked to pick between a Corrections Canada Officer and an al-Qaeda tactic, I would pick Corrections Canada ten times out of ten” re: prisoners complaining of abuse.
  • 1:56 – “Can we shoulder responsibility for everything that happens in Afghan prisons? Of course not.”
  • 1:53 – Wonders why people are “fixated on the wellbeing of individuals who are suspected of being our enemies in this conflict” and to remember our own troops’ sacrifices… many detainees “had Canadian blood on their hands”

 

  • 1:48 – Hon. Lawrence Cannon, Minister of Foreign Affairs making opening statements

  • 1:47 – (Ed.- Is it really called the “Taliban prisoner transfer regime” or is that just a MacKayism?)
  • 1:45 – MPCC currently investigating detainee transfers. Federal Court has limited their jurisdiction, so it should resume soon.
  • 1:44 – Re: Colvin comments – Says at least seven witnesses say there is insufficient evidence to back up claims that were made. Not personal, and have never said “Taliban dupe”.
  • 1:43 – Careful review of information disclosed, vetted by all departments involved. Well-established procedure, free from political interference. Has been reviewed by Federal Court.
  • 1:43 – Must also protect relationships with partners in Afghanistan.
  • 1:42 – Have been concerns with disclosure, but gov has critical obligation to insure that lives of Canadians are not put at additional risk by the potential release of information that may be of an operational security nature.
  • 1:41 – Hon. Minister of National Defence Peter Mackay resuming opening statement.
  • 1:40 – Meeting called back to order.
  • 1:30 – Hearing still suspended. Will they extend the hearings past 3:30 or will time for questions be cut in half?

  • 12:56 – Hearing suspended for vote in House of Commons
  • 12:54 – Must rely on Afghans to meet their commitments, but must be sure that we are not transferring into a substantial risk of abuse, and that’s what we did.
  • 12:53 – Took allegations of abuse seriously and acted appropriately. Worked to make sure Afghan authorities were aware of Canada’s expectations. Reminds committee that Afghanistan is a sovereign nation.
  • 12:52 – Made new agreement because of concerns over prisoners’ conditions. Designed to enhance ability to meet obligations, both by Canada and Afghanistan.
  • 12:51 – Received information from a wide variety of sources. Considered information and used it to see how the arrangement could be improved. This led to May 2007 Supplementary Arrangement.
  • 12:51 – Received assurances from Afghan government that prisoners would be treated humanely.
  • 12:49 – Canada’s practices grounded in international law – laws of armed conflict, Geneva Convention.
  • 12:46 – It’s a difficult and dangerous mission. (Ed.- Yes, but what does that have to do with Canada’s obligations to prevent torture?)
  • 12:46 – Says Canada has never been complicit in torture or willfully blind to abuse, no one ever turned a blind eye
  • 12:45 – Hon. Peter Gordon MacKay, Minister of National Defence making opening statements
  • 12:44 – No abuse by Canadians, no condoning of abuse by Afghanis.
  • 12:42 – During visits never heard allegations of torture, never read reports from Colvin.
  • 12:40 – Says accusations of a coverup are “irresponsible”.
  • 12:39 – NATO recommended handing over prisoners within 96 hours of capture, “during my time as Minister I do not recall ever being advised of any abuse or torture of prisoners by Canadian Forces or any abuse or torture of prisoners they handed over”
  • 12:38 – O’Connor describing tactics used by Taliban – IEDs, etc.
  • 12:37 – Hon. Gordon O’Connor, Minister of State and Chief Government Whip making opening statements
  • 12:14 – Waiting for the hearings to begin. Check back in 15 minutes.
< class="what-entry-title">Proof of detainee abuse>

Today, the Globe and Mail’s Paul Koring reported on evidence contradicting Defence Minister Peter MacKay’s repeated assertions that there has never been proof that Canadian-transferred detainees were abused by Afghan security forces.  This evidence was uncovered during the federal court challenge the BCCLA launched with Amnesty International.

From the Globe and Mail:

In one well-documented case in the summer of 2006, Canadian soldiers captured and handed over a detainee who was so severely beaten by Afghan police that the Canadians intervened and took the detainee back. Canadian medics then treated the man’s injuries. The incident is documented in the field notes of Canadian troops, recounted in a sworn affidavit by a senior officer and confirmed in cross-examination by a general.

The incident, which was previously known, takes on new and greater significance given the chorus of denials from Mr. MacKay.

The Globe and Mail also has a tidy round-up of MacKay’s repeated denials of detainee abuse.

Proof of detainee abuse exists, despite MacKay’s denials (Globe and Mail)

Verbatim: MacKay on detainees (Globe and Mail)

< class="what-entry-title">Richard Colvin Documents>

Welcome to the BCCLA’s National Security blog.  Right now, we’re tracking the Afghan detainee hearings in Parliament and will be providing commentary and updates as testimony progresses.

Today, documents that support Mr. Richard Colvin’s testimony are being made publicly available for the first time by the BCCLA and Amnesty International.

Mr. Colvin, a senior diplomat who was stationed in Afghanistan, recently testified before a parliamentary committee that Canadian officials at the highest levels of seniority were made aware of serious concerns that Afghan prisoners were being subjected to torture and other human rights violations.

Prior to his testimony before Parliament, Mr. Colvin was called as witness before the Military Police Complaints Commission. The documents that are being released today were originally released to the Military Police Complaints Commission after being heavily censored by the Canadian government.

The BCCLA and Amnesty received those documents on November 23, 2009, but confidentiality agreements prevented the BCCLA and Amnesty from making the documents public. Those confidentiality agreements were lifted today, so the BCCLA and Amnesty are making those censored documents available to the public in their entirety.

The documents contain a series of 2006-2007 email correspondences and reports shared between officials involved in the Canadian mission in Afghanistan. They discuss detainee transfer agreements and the possibility that detainees transferred by Canadian Forces could be tortured by Afghan police.

The BCCLA and Amnesty are shocked that many of Mr. Colvin’s documents were not disclosed during the course of the lawsuits our organizations launched in 2007 and 2008. The government failed to disclose these documents despite the fact that they were obviously of direct relevance to the issues before the court and were certainly covered by requests for disclosure of documents that were made by our legal team. There is a legal duty for parties to disclose such documents, and the failure to disclose these documents raises serious questions about whether the government met their legal obligations.

The documents focus on inadequate tracking mechanisms that sometimes lost track of transferred detainees, and Richard Colvin’s concerns that Canadian Forces were sending detainees into almost certain torture at the hand of Afghan police.

The messages from Mr. Colvin became increasingly blunt as the severity of the situation and the government’s failure to address the situation became clear. He summed it up best in an email dated October 24, 2007:

“There seems to be a continued reluctance to acknowledge the scope or severity of the detainee problem, instead claiming that the “alleged” abuse is a Taliban fabrication or stressing fictitious ‘Afghan investigations.’ Our systemic failure to operationalize our human-rights rhetoric runs contrary to Canadian values and interests, and has needlessly damaged public support for the Afghan deployment.”

The documents are available online here.

To learn more about the BCCLA’s work on Afghan detainee issues and how you can help in the fight against torture, please visit our Afghan detainee section.

< class="what-entry-title">Reactions to December 2, 2009 Afghan Detainee Hearings>

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.