Torturegate Canada: Anatomy Of Incompetence In Action - Part I
The abuse of Afghan detainees after being transferred by Canadian Armed Forces on mission in Afghanistan is not new. Concerns about such abuses is not new either. And the recurring incompetent behavior of the Harper government regarding said abuses is likewise becoming quite familiar - if not actually expected.
Herein is Part I of a three-part in depth analysis of this matter which is critical not only for our national soul, but for our very Canadian identity as well.
Herein is Part I of a three-part in depth analysis of this matter which is critical not only for our national soul, but for our very Canadian identity as well.
It began all the way back in 2004, when numerous cases of mistreatment of detainees at various detention sites in Afghanistan began to surface - all instances reportedly perpetrated by U.S. military and intelligence personnel. In fact, it turned out that such abuses had been occurring since 2002 and had already resulted in the death of some detainees. This was a serious concern for Canada, considering that Canadian Armed Forces on mission in Afghanistan automatically turned over captured Afghan fighters (Taliban and/or al'Qaeda) to the Americans for detention.
Incidentally, two years earlier, concerns were already raised in Canada about the transfer of Afghan detainees to the Americans, because they, already there and then, refused to recognize these as prisoners of war by conveniently reasoning out the application of the Geneva Conventions. The LPC Chrétien government at the time was consequently rocked by scandal because then-Defense Minister Art Eggleton failed to immediately inform his Prime Minister of the capture and turn over of Afghan detainees by Canadian soldiers, in addition to dissembling about the whole affair before the House of Commons. However, since at the time there was no valid reason to even imagine a possible abuse of Afghan detainees by the Americans (especially considering Section 3 of Bush's Presidential Military Order of 11/2001), the matter quietly faded away - and after all, weren't the Americans good guys?
(Disclosure: sadly enough, yours truly stood among those whom naïvely thought as much, back then)
Which brings us back to 2004. About a year earlier, and thus about a year after the Eggleton scandal, the first reports of torture of detainees in Iraq became public. It was therefore no surprise when it came out later on that Afghan detainees were likewise abused by the Americans. So, the Americans were not good guys after all - however much they denied such abuses (yet gradually coming around over the subsequent years to actually publicly justify the torture of detainees, especially after the outing of the torture memos - yeah, all around good guys indeed).
These reports of detainee abuses (as well as renditions and indefinite detentions) by the Americans prompted Canada to craft a detainee transfer agreement with the Afghanistan government of Hamid Karzai by the end of 2005. The then-LPC Martin minority government at the time was worried by the prospect that Afghans captured by Canadian soldiers might end up in the limbo of Gitmo or Bagram. Under this agreement, detainees transferred by Canada were to "be afforded treatment consistent with the standards set out in the Third Geneva Convention, regardless of the legal status of those detainees", and that information on detainees would "be passed along in a timely way" to the International Committee of the Red Cross (ICRC), "which has the mandate and resources to track prisoners of war and detainees captured during armed conflict." However, this agreement had four fundamental flaws: A) it was not specified that the Red Cross had to report back to Canada on the condition of the detainees; B) unlike similar agreements reached by the Dutch and British, the agreement did not contain a guarantee that Canadian officials would follow up on transferred detainees; C) the agreement did not contain any right of notification or veto if Afghanistan wanted to transfer a detainee to a third country; and therefore D) Canada effectively relinquished jurisdiction over the detainees once the handover was made.
In other words: Canadian soldiers would transfer detainees to the Karzai government with only the Afghan government's word that the detainees would be treated humanely - and no more questions asked thereafter.
This was incompetence on the part of the Martin government, as this transfer agreement conveniently (but illegally) set aside Canada's legally-binding obligations under Article 12 of Geneva Convention III (emphasis added):
Now - granted that Afghanistan is indeed a party of the Geneva Conventions. However, the Martin government and the Canadian military brass (namely then-Chief of Defense Gen. Rick Hillier) knew that under their detainee transfer agreement, Canadian Forces were to typically hand over prisoners to the National Directorate of Security (NDS) - Afghanistan's notorious intelligence police.
Whether or not the Martin government would have acted to correct such incompetence on their part, we would never know - for the transfer agreement was signed without fanfare in December 2005, during the general election campaign which would oust Martin's Liberals and consequently install the CPC Harper minority government in early 2006.
And from the original incompetent transfer agreement by the Martin government, Canada would be thereafter served with nothing but rampant incompetence on the part of the Harper government regarding the abuse of Afghan detainees.
It began innocently enough, when in April 2006 the following occurred during a question period in the House of Commons (emphasis added):
One step forward in time, to May 2006, after Lt.-Gen. Gauthier (now retired), then the commander of Canadian Forces in Afghanistan, stated that Afghan detainees "are not entitled to prisoner-of-war-status but they are entitled to prisoner-of-war treatment. The regulations apply in an armed conflict between states, and what's happening in Afghanistan is not an armed conflict between states. And therefore there is no basis for making a determination of individuals being prisoners of war. Our default setting is to transfer. We haven't held anybody for more than a few hours and we would prefer not to." Talk about wanting fervently to wash your hands off the hot-potato-detainees.
In any case, the consequent following exchange ensued in the House of Commons (emphasis added):
We now step further forward to October 2006, while the U.S. Military Commission Act was being passed by Congress. As we know all too well, this act did more than allow the U.S. President to determine all by himself the meaning and application of the Geneva Conventions - it also striped U.S. courts of jurisdiction to hear challenges to his interpretation. Hence the ensuing exchange in the House of Commons (emphasis added):
And thus the table was fully set for our country to receive the first confirmed news of Afghan detainee abuses following their transfer to the Afghan government ....
(Continued in Part II)
Incidentally, two years earlier, concerns were already raised in Canada about the transfer of Afghan detainees to the Americans, because they, already there and then, refused to recognize these as prisoners of war by conveniently reasoning out the application of the Geneva Conventions. The LPC Chrétien government at the time was consequently rocked by scandal because then-Defense Minister Art Eggleton failed to immediately inform his Prime Minister of the capture and turn over of Afghan detainees by Canadian soldiers, in addition to dissembling about the whole affair before the House of Commons. However, since at the time there was no valid reason to even imagine a possible abuse of Afghan detainees by the Americans (especially considering Section 3 of Bush's Presidential Military Order of 11/2001), the matter quietly faded away - and after all, weren't the Americans good guys?
(Disclosure: sadly enough, yours truly stood among those whom naïvely thought as much, back then)
Which brings us back to 2004. About a year earlier, and thus about a year after the Eggleton scandal, the first reports of torture of detainees in Iraq became public. It was therefore no surprise when it came out later on that Afghan detainees were likewise abused by the Americans. So, the Americans were not good guys after all - however much they denied such abuses (yet gradually coming around over the subsequent years to actually publicly justify the torture of detainees, especially after the outing of the torture memos - yeah, all around good guys indeed).
These reports of detainee abuses (as well as renditions and indefinite detentions) by the Americans prompted Canada to craft a detainee transfer agreement with the Afghanistan government of Hamid Karzai by the end of 2005. The then-LPC Martin minority government at the time was worried by the prospect that Afghans captured by Canadian soldiers might end up in the limbo of Gitmo or Bagram. Under this agreement, detainees transferred by Canada were to "be afforded treatment consistent with the standards set out in the Third Geneva Convention, regardless of the legal status of those detainees", and that information on detainees would "be passed along in a timely way" to the International Committee of the Red Cross (ICRC), "which has the mandate and resources to track prisoners of war and detainees captured during armed conflict." However, this agreement had four fundamental flaws: A) it was not specified that the Red Cross had to report back to Canada on the condition of the detainees; B) unlike similar agreements reached by the Dutch and British, the agreement did not contain a guarantee that Canadian officials would follow up on transferred detainees; C) the agreement did not contain any right of notification or veto if Afghanistan wanted to transfer a detainee to a third country; and therefore D) Canada effectively relinquished jurisdiction over the detainees once the handover was made.
In other words: Canadian soldiers would transfer detainees to the Karzai government with only the Afghan government's word that the detainees would be treated humanely - and no more questions asked thereafter.
This was incompetence on the part of the Martin government, as this transfer agreement conveniently (but illegally) set aside Canada's legally-binding obligations under Article 12 of Geneva Convention III (emphasis added):
Art 12. Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.In short: Canada remains legally responsible for any detainee transferred to another detaining power (i.e. Afghanistan, here).
Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.
Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.
Now - granted that Afghanistan is indeed a party of the Geneva Conventions. However, the Martin government and the Canadian military brass (namely then-Chief of Defense Gen. Rick Hillier) knew that under their detainee transfer agreement, Canadian Forces were to typically hand over prisoners to the National Directorate of Security (NDS) - Afghanistan's notorious intelligence police.
Whether or not the Martin government would have acted to correct such incompetence on their part, we would never know - for the transfer agreement was signed without fanfare in December 2005, during the general election campaign which would oust Martin's Liberals and consequently install the CPC Harper minority government in early 2006.
And from the original incompetent transfer agreement by the Martin government, Canada would be thereafter served with nothing but rampant incompetence on the part of the Harper government regarding the abuse of Afghan detainees.
It began innocently enough, when in April 2006 the following occurred during a question period in the House of Commons (emphasis added):
NDP defense critic Dawn Black: "Why does a very similar agreement signed with the Netherlands allow its government to ensure full compliance with all international conventions while ours does not?"This was pure ignorance-based incompetence on the part of O'Connor - on several counts: 1) the ICRC's was indeed not responsible for monitoring the Canada-Afghanistan detainee-transfer agreement (see also above); 2) the ICRC has a long standing procedure of not notifying any foreign government of detainee abuses, other than the detaining government; 3) the Canadian transfer agreement was severely flawed (see above) regarding all other points raised by O'Connor in defense of the agreement. Incidentally, O'Connor reiterated the same ignorance-based fallacies in a subsequent question period some six days later.
CPC Defense Minister Gordon O'Connor: "This is a more mature arrangement than the Netherlands has. Nothing in the agreement prevents the Canadian government from inquiring about prisoners. We are quite satisfied with the agreement. It protects prisoners under the Geneva agreement and all other war agreements."
Dawn Black: "The agreement does nothing to stop prisoners from being transferred to a third party. Once Canadians hand a prisoner over to the Afghan government we wash our hands of the entire matter (...) Will the minister ensure that Canadian government officials have the same rights as Dutch officials when it comes to tracking, interviewing and ensuring that no human rights violations or torture will take place? When will the minister redraft the agreement to better reflect our values as Canadians?"
Defense Minister Gordon O’Connor: "We have no intention of redrafting the agreement. The Red Cross and the Red Crescent are charged with ensuring that prisoners are not abused. There is nothing in the agreement that prevents Canada from determining the fate of prisoners so there is no need to make any change in the agreement."
One step forward in time, to May 2006, after Lt.-Gen. Gauthier (now retired), then the commander of Canadian Forces in Afghanistan, stated that Afghan detainees "are not entitled to prisoner-of-war-status but they are entitled to prisoner-of-war treatment. The regulations apply in an armed conflict between states, and what's happening in Afghanistan is not an armed conflict between states. And therefore there is no basis for making a determination of individuals being prisoners of war. Our default setting is to transfer. We haven't held anybody for more than a few hours and we would prefer not to." Talk about wanting fervently to wash your hands off the hot-potato-detainees.
In any case, the consequent following exchange ensued in the House of Commons (emphasis added):
BQ MP Francine Lalonde: "General Gauthier says that Canadian soldiers serving in Afghanistan do not have to follow the Geneva Convention with respect to individuals who are taken prisoner because the conflict in Afghanistan is not—or is no longer—the result of a state of war between conflicting nations. Can the Minister of Defense guarantee that Afghan combatants who are taken prisoner will receive the same treatment they would have been entitled to as prisoners of war?"And thus once again O'Connor spoke out of utter ignorance, visibly having been not inclined to actually get fully informed on: A) what the transfer agreement actually said (see above); B) what the ICRC does and does not (see above); and C) the fact that the transfer agreement effectively relinquished Canadian responsibility of detainees after their turn over, in clear breach of Article 12 of Geneva Convention III (see above).
CPC Defense Minister Gordon O’Connor: "That is a standard procedure for our military no matter what operation it is on throughout the planet. When it takes prisoners, it will always follow the rules of the Geneva Convention. There is no lower standard than that. That is in every case whether the operation is under the Geneva Convention or not."
Francine Lalonde: "Under these conditions, can the minister explain why Canada did not follow Holland’s example and sign an agreement with the Afghan government to allow continued contact with prisoners for constant information on their fate? What is the government waiting for to renegotiate this agreement?"
Gordon O’Connor: "The agreement we had with the Afghan government fulfills the needs that we have from the point of view of security of the prisoners. The Red Cross or the Red Crescent is responsible to supervise their treatment once the prisoners are in the hands of the Afghan authorities. If there is something wrong with their treatment, the Red Cross or Red Crescent would inform us and we would take action."
We now step further forward to October 2006, while the U.S. Military Commission Act was being passed by Congress. As we know all too well, this act did more than allow the U.S. President to determine all by himself the meaning and application of the Geneva Conventions - it also striped U.S. courts of jurisdiction to hear challenges to his interpretation. Hence the ensuing exchange in the House of Commons (emphasis added):
NDP defense critic Dawn Black: "Canadians recognize that this government is too close to George Bush, especially when it comes to foreign policy. Incredibly, the U.S. Congress is passing a law that will give the President the power to interpret the meaning and application of the Geneva conventions. Documents show that this government is fully aware of the fact that prisoners we hand over to the Afghans can be given to U.S. authorities. What assurances is this government seeking that prisoners handed over to Afghan authorities are not sent on to Guantanamo Bay or to secret U.S. prisons?"More ignorance-based incompetence, this time on the part of Hiebert. Not only were we parotted the same fallacies, we were then also served with throws of cheap Bushie-like "support the troops" and "no cut and run" political slogans in lieu of actual, factual, answers.CPC Parliamentary Secretary to the Minister of National Defense, Russ Hiebert: "We signed a bilateral agreement with the government of Afghanistan. We have been assured by them that any time a prisoner is detained that they will be held under the Geneva conventions to the highest standards. As well, the International Red Cross will be monitoring these detainees and will keep track of them at every possible opportunity. I urge the member from the NDP to provide some support for our troops in Afghanistan. That party is the one that is calling for our troops to cut and run."
Dawn Black: "The previous Liberal administration took the U.S. on its word and look what happened to Maher Arar. The Canadian government has not asked to follow up on one single detainee. Canadians want assurances that our soldiers’ values and international law are not compromised if Afghani authorities hand over prisoners captured by Canadians to the U.S. In light of what happened to Mr. Arar, does the government really trust the U.S. administration to tell the truth about where it holds Canadian captured insurgents?"
Russ Hiebert (Parliamentary Secretary to the Minister of National Defence, CPC): "As I outlined in my earlier answer, we have an agreement with the government of Afghanistan. When detainees are captured they are passed on to this particular government. We have been assured by the President of Afghanistan that all necessary treatment and standards are kept so that these detainees are not injured or harmed and that they are kept out of harm’s way."
And thus the table was fully set for our country to receive the first confirmed news of Afghan detainee abuses following their transfer to the Afghan government ....
(Continued in Part II)
Good. Comprehensive, clear guide to this issue. You're right. This speaks to what we're supposed to be as a country.
ReplyDeleteIf the majority don't see the horror of this yet, they will.
I don't want to speak too cold-bloodedly, but if these smoking guns on torture and therefore on the wider corruption and futility of "the mission" are able to help us lock up several high-ranking ignoramuses and scum-bags and get us out of Afghanistan, then we are right to pursue this.
We *must* pursue and investigate this indeed, Thwap.
ReplyDeleteOtherwise, we are nothing but hypocritical flakes as we keep on boasting our so-called noble principles and values as a society, as a nation.