Playing Politics with Lives: Abuse Allegations in Afghanistan Cheapen our Sacrifices

An Afghan man is detained by Canadian Forces personnel.

In 1993, news of the ‘Somalia Affair’ broke in the Canadian Media and Canada’s NDHQ (National Defence Headquarters) was immediately inundated by requests for an inquiry and rapidly, allegations of a cover-up. The crisis in question stemmed from evidence that Canadian Airborne soldiers had been involved and were in fact directly responsible for the beating death of a Somali teenager Shidane Arone.(1) This incident was precipitated by acts of barbarism including the shooting deaths of looters, unarmed civilians and bandits by members of the same Airborne Unit. The subsequent inquiry into their conduct shook the defence establishment in Canada to its core, costing many personnel their careers from the ranks of private up to the lofty position of Lieutenant-Colonel. The two directly implicated in the attack were formally charged, but the supposed perpetrator of the attack Master Corporal Clayton Matchee hung himself, causing severe brain-damage and thus was rendered unfit to stand trial. Private Kyle Brown was sentenced to five years imprisonment and received a dismissal from the army in disgrace, but served only one year behind bars. The culminating effect of investigations was the disbandment in 1995 of the Canadian Airborne and the deepening of what former Chief of Defence Staff General Rick Hillier recalls in his recent memoirs A Soldier First: Bullets, Bureaucrats and the Politics of War as “The Decade of Darkness” for the Canadian Forces.

Fast forward to Kandahar, 2006 when Canadian Diplomat Richard Colvin wrote a report (as yet unpublished) detailing the extent of detainee abuses at the hands of Afghan Jailers.(2) Prisoners, captured by Canadian Forces on the battlefield were being turned over to local Afghan authorities for detainment. Colvin’s report alleged a systemic problem of detainee torture and abuse within the Afghan Government that was "serious, imminent and alarming." The long and the short of the issue seems to be that a lack of governmental oversight in the handling of detainees has resulted in numerous allegations of misconduct by Afghan Authorities in handling Canadian battlefield prisoners. Reports have surfaced, mostly through Human Rights Watch(3) that detainees are being abused, not directly at the hands of our men and women in uniform, but by their keepers once we have turned them over to their own legitimate national authorities.

"There's no explanation that one can find except that it's a cover-up
it's almost like an obstruction of justice,"

Bob Rae, Liberal Party Foreign Affairs Spokesperson(4)

It is beyond the scope of Canada’s agreement with the nation of Afghanistan (not to mention being against several international laws) to extradite prisoners from Afghanistan to Canada. Belligerents who are captured by our forces and the forces of other NATO countries are criminals within their own societies and not subject to Canadian detainment or prosecution. It is legally necessary for our government to have an agreement with the Afghan authorities governing the conditions of release by Canadian personnel of prisoners and to ensure access and oversight at all stages of the process by Canadian diplomats and human rights officials. There is a formal “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan”(5) (Unavailable for reference due to technical error or removal at the time of this article’s writing).

The agreement was signed by Chief of Defence Staff Rick Hillier in 2005, with the intent of facilitating the transfer of detainees, but the treaty critically failed to make provisions for Canadian access to or oversight of both detainees and the facilities at which they were being held. Given the ingrained presence of violence in Afghan society, the general perception of human life within that nation as having little worth and other systemic rights abuses, such an agreement can be demonstrated as preparing the groundwork for abuse, torture and extrajudicial executions. An American report through the State Department’s Bureau of Democracy, Human Rights, and Labor published in February 28, 2005 offers a brief summary of the conditions of human rights within the nation of Afghanistan.

"The Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. There were instances where local security forces and police committed extrajudicial killings, and officials used torture in prisons. Efforts to bring to justice serious human rights offenders were often ineffective; impunity from the law remained a serious concern. Punishment of officials usually took the form of administrative actions rather than prosecution. Prolonged pretrial detention and poor prison conditions led to deteriorating health conditions and death among some prisoners."

Bureau of Democracy, Human Rights and Labor
February 28, 2005 (6)

The situation is both alike and in many ways unlike the 1995 Somalia Affair which unfolded almost 10 years earlier. It appears to the casual observer that the lessons of Somalia which had widespread repercussions within the Canadian political and defence communities were not carried forward through subsequent missions, or in the policy governing Canada’s contribution to the ISAF mission in Afghanistan. Of course, the obvious differentiation being that the abuses are not occurring directly at the hands of our Canadian Forces personnel.

Michael Byers a respected authority on International Affairs and Tier 1 Research Chair at the University of British Columbia elaborates in his April 2006 submission to the Liu Institute for Global Issues(7) that Canadian Forces personnel overseeing or facilitating the transfer of detainees to the Afghan government under the auspices of our current agreement might face arraignment by the International Criminal Court. His supporting evidence of potential misconduct and Canadian culpability in the matter is derived from the Rome Statute of the International Criminal Court(8), which expressly dictates the inherent responsibilities by members of the international community to prisoners of war, detainees and any others involved in an armed conflict.

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention or any other cause:

(i) Violation to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

1998 Rome Statute of the International Criminal Court
Article 8(c)

The potential for Canadian soldiers to be held accountable and prosecuted in the International Criminal Courts casts a dark pall over the value of our participation in the Afghan mission. It serves also, to foment public opinion against a defence establishment badly in need of popular support. Little justice is afforded those brave women and men who have given their lives in defence of Human Security and Human Rights within the nation of Afghanistan. The ‘War on Terror’ has successfully uprooted Al Qaeda influence in Afghanistan and provisions have been made for the creation of a stable democracy. However, failure to oversee prisoner treatment undermines the moral authority or national prestige of Canadian and other ISAF participant nations, as well as to fray the moral fiber of the Canadian Defence establishment. Michael Byers cites Article 16 of UN International Law Commission’s Articles on State Responsibility (9) as a body of international legislation by which Canadian policy makers and personnel involved in detainee transfers might be held accountable.

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) The act would be internationally wrongful if committed by that State.

UN International Law Commission’s Articles on State Responsibility
Article 16

Canadian Foreign Affairs Expert Michael Byers addresses the issue of Afghan detainee abuses and Canada's Human Rights track record through the War on Terror.

Now is the time to ask hard questions of Canadian Politicians and Defence leaders, as this question of detainee treatment has surfaced once again in the media. Public awareness of these issues is baffled by a marked unwillingness to accept responsibility or even to admit knowledge of verified findings by human rights investigators. It is the subordination of human rights at the political level and by the policy makers that cheapens the value of noble sacrifices made in this war. Prime Minister Harper, when confronted in 2007 with reports of detainee abuses, dismissed them as terrorist propaganda and went so far as to state that anybody questioning the ethics of turning detainees over to the Afghan authority cared more for the Taliban than they did for Canadian Forces personnel.
He made these statements in total ignorance or denial of the fact that Diplomat Richard Colvin’s 2006 report on the conditions for detainee rights in Afghanistan had already made the rounds of both the Foreign Affairs department and the Department of Defence chain of command. (10) General Rick Hillier, in his memoir recalls DoD reservations about the treatment of Afghans and details steps taken on the operational end to ensure the preservation of Canada’s prestige.

“…complaints that the Afghans were abusing some of those handed to them. Their judicial and prison systems were still somewhat nascent and there was always some risk that abuse could occur. That, unfortunately, is not abnormal in failed states and occurs even in solid countries like Canada. After indications that some abuse might have occurred, the CF felt it was a necessity to have Canadian officials make regular, unannounced visits to Afghan prisons to ensure the people we transferred were being treated humanely. The first visit noted details that caused us some concern and, in the view of the commander, Brigadier-General Guy Laroche, meant that we had to have those visits continue and other measures in place. Guy, who had my complete support, felt a variety of steps would allow him, hand over his heart, to say that he had confidence we were meeting not only the letter but also the spirit of international law.” (A Soldier First, 462) (11)

Footage from Parliamentary debates about the detainee abuse allegations underscore the controversial nature of the discussion and the use of rhetoric by Government figures to obfuscate the facts surrounding the transfers.

That the Prime-Minister’s office would seek to dismiss legitimate and credible allegations, acknowledged within the Department of Defence, indicates a political unwillingness to preserve Canada’s moral authority. In war, decisions made at the policy level can have unforeseen consequences for the personnel actively engaged in operational and tactical capacities. There is little doubt what with recent evidence, that the Prime Minister’s office, if not the prime minister himself were aware of the conditions facing detainees in Afghan custody, but decided to play ‘hot potato’ with the issue and to this day are seeking to block investigations by the Military Police Commission, including a request by the chief commissioner that Richard Colvin testify under oath about his findings in 2005.(12) The reason cited for blocking this request is the ‘threat to national security’ that publication of Colvin’s report or his direct testimony might create.

“The government of Canada was well aware of our decision, and Foreign Affairs, with CIDA, the RCMP and Correctional Service Canada, were mandated to help the Afghans improve...

…The previous fall, we had told Foreign Affairs, CIDA and the rest of the government that unless inspectors visited Afghan jails continually and built confidence that those detained by us were still being treated humanely, we were not going to transfer any more.”
(A Soldier First, 466)(13)

So is this a return to the political climate of the ‘Somalia Affair’ and Hillier’s ‘Decade of Darkness?’ The most effective and transparent thing that Canada’s politicians can do now, is to order a full review of the conditions surrounding their agreement with Afghanistan surrounding detainee transfers and to ensure that all future transfers occurring between now and the termination of the mission meet the requirements of international law. At a time where support for the U.S. led war in the impoverished nation is at an all time low, (both in Canada and elsewhere in the world) we must take stock of our successes, admit our failings and endeavor to forge at all levels of government and defence, a political, strategic, operational and tactical blueprint for success, that will enable us to bring our troops home as victorious providers of human rights and human security, not internationally persecuted participants in obfuscated injustice. We owe it to our heroes in uniform to provide the best, most supportive and positive environment in which to undertake what is undoubtedly one of the world’s most difficult and demanding jobs.



Sources:

1. CBC Digital Archives- The Somalia Affair
2. Macleans.ca- 'I have not seen those reports.'
3. Human Rights Watch- Afghanistan: Letter to NATO Secretary General Regarding Summit in Latvia
4. DefenceWeb- Canada covered up Afghan abuse allegations - critics
5. Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan(Dead Link)
6. U.S. State Department: Bureau of Democracy, Human Rights and Labour - Afghanistan
7. Byers, Michael. Legal Opinion on the December 18, 2005 "Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan" Liu Institute for Global Issues (April 7, 2006) 25 October 2009.
8. UNtreaty.org Rome Statute of the International Criminal Court
9. UNtreaty.org Report of the International Law Commission on the work of its fifty-third session
10. The Star - Ottawa Had Early Warning of Torture in Afghan Jails
11. Gen(ret.) Hillier, Rick. A Soldier First: Bullets, Bureaucrats and the Politics of War. Toronto: Harper Collins, 2009. Print. p. 462
12. The Ottawa Citizen - Canadian Diplomat Reported Afghan Prisoner Abuse in 2006
13. Gen(ret.) Hillier, Rick. A Soldier First: Bullets, Bureaucrats and the Politics of War. Toronto: Harper Collins, 2009. Print. p. 466