Intent For A Nation: What is Canada For. Michael Byers

its activities, in particular visits to prisoners, the ICRC’s relations with its contacts and detaining authorities are based on a policy of discretion… In cases where the ICRC visits detainees we have transferred to Afghanistan, we are confident the ICRC would advise the Afghan authorities, as the current detaining authorities, if the ICRC had any concerns about a particular detainee or the conditions of detention.

      MacKay was careful not to suggest that the ICRC would inform the Canadian authorities.

      Amazingly, Canada did not even secure the right—as the Dutch did—to be notified by the Afghan authorities before they send one of our transferred prisoners onwards to a third country.

      In February 2007, the Globe and Mail reported allegations that at least one Afghan was beaten while in the custody of Canadian soldiers. The allegations are serious—and must be subject to a rigorous criminal investigation—but just as serious was the revelation that the Canadian Forces cannot account for the location or condition of the forty prisoners they captured prior to April 2006 or the several dozen taken since then. All we know is what General Hillier has said: “We hand them over to either the Afghan national police or the Afghan national army. We’re trying to help build a country; you’ve got to help build their rule of law, a justice system, which includes a prison system.”

      But surely the fact that Afghanistan is a broken-down country is a reason for caution rather than blind trust. Afghanistan’s military, police, judicial and correctional institutions are undergoing a far-reaching transformation that is far from complete. Corruption and human rights violations remain commonplace. By relying solely on the ICRC to oversee transferred prisoners, and by failing to secure a right of notification as to any change in their location or condition, the Canadian government is washing its hands of them in a situation where their human rights—and our obligations—are clearly at risk.

      We also need to worry about our soldiers, who have been placed at legal risk as a result of the transfer arrangement. The Torture Convention requires countries to “ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” The convention thus affirms a basic principle of criminal law: those who aid or abet a crime are criminals themselves. Complicity in torture is subject to the universal jurisdiction of national courts, making it possible for a Canadian soldier to be tried in the courts of any other country for transferring a prisoner into a situation where there is an apparent risk of such abuse. Indeed, in some circumstances, complicity in torture could even be considered a war crime subject to the Rome Statute of the International Criminal Court. Canada ratified the Rome Statute in 2000; as a result, any Canadian solider who aids, abets or otherwise assists in torture could end up being prosecuted in The Hague.

      The situation is clearly unacceptable. So, where do we go from here? The Canada-Afghanistan arrangement should be renegotiated to include all the protections provided in the Dutch memorandum. As the Dutch are demonstrating in southern Afghanistan today, these protections have no detrimental operational consequences. Nor is there any reason to believe that the Afghan authorities would object to a renegotiation, since they have already agreed to the terms of the Dutch memorandum. Nor, indeed, would these protections interfere with efforts to improve the Afghan police, prison and judicial systems; if anything, they are likely to enhance them. And there is one more protection that we should insist on including: a right of veto over any proposed transfer to a third country. For without a right of veto, the right to be notified would be deprived of any real effect.

      In November 2005, then defence minister Bill Graham gave a lecture to one of my classes at the University of British Columbia. The former professor of international law told the students that Canada had no choice but to transfer prisoners to U.S. or Afghan custody, because we lacked the facilities to hold them and building such facilities would be impracticable. One of the students challenged this assertion, arguing that expediency is no excuse for violating fundamental human rights. Indeed, if compliance required building our own detention facilities, so be it; as the eighth-largest economy in the world, this is something we could afford.

      Finally, there is the additional issue of how our actions are perceived in Afghanistan, not just by the local authorities, but by ordinary people. In that increasingly hostile region, those who risk complicity in torture risk losing the most important battle—the battle for hearts and minds.

       EXTRAORDI NARY RENDITION

      Just six days after the September 2001 terrorist attacks on New York and Washington, George W. Bush signed a “presidential finding” that provided the Central Intelligence Agency (CIA) with broad authorization to disrupt terrorist activity, including by killing, capturing or detaining Al-Qaeda members anywhere in the world. On this basis, the CIA began secretly transferring suspects, either to the intelligence services of countries notorious for torture or to clandestine prisons located outside the United States and, therefore, beyond the reach—or at least the scrutiny—of U.S. courts.

      This practice, which the Americans refer to as “extraordinary rendition,” has directly affected a number of Canadians. In September 2002, Maher Arar—a Canadian who is also Syrian by virtue of that country’s refusal to accept renunciations of citizenship—was arrested while transiting through New York’s JFK Airport. After twelve days of questioning, he was taken to Syria, where he was imprisoned.

      Stephen Toope, an independent fact-finder appointed by a Canadian judicial inquiry, determined conclusively that Arar was tortured while in Syrian custody, including by being beaten on the palms and wrists with an electrical cable and being confined for ten months to a cell some two metres long, one metre wide and slightly more than two metres high. Toope concluded:

      The effects of that experience, and of consequent events and experiences in Canada, have been profoundly negative for Mr. Arar and his family. Although there have been few lasting physical effects, Mr. Arar’s psychological state was seriously damaged and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been devastated.

      Toope then added, with reference to Arar’s battle to clear his name: “Mr. Arar strikes me as a person with what one might describe as moral courage.”

      For more than three months, the Canadian government resisted pressure to establish an inquiry into possible involvement by the RCMP or Canadian Security Intelligence Service in the rendition and torture of Maher Arar. However, we now know some of what happened.

      In September 2004, an internal RCMP investigation revealed that at least one of its officers learned of U.S. plans to deport Arar before Arar was flown to the Middle East but did not immediately convey this information to other officers. The same investigation concluded that, after Arar’s arrest, RCMP officers decided not to travel to New York City to question him, because no RCMP aircraft was available and commercial flights were supposedly too expensive.

      Finally, in testimony before the commission of inquiry that eventually was established, the senior officer in the investigation into Arar said the RCMP suspected that he was being tortured in Syria but nevertheless decided to share with the Syrians dubious information the force had about him.

      In September 2006, the inquiry commissioner, Justice Dennis O’Connor, concluded that the decision to remove Arar to Syria was “very likely” based on inaccurate and misleading information from the RCMP. He also refuted any doubts about Arar’s innocence: “I am able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constituted a threat to the security of Canada.”

      Along with the renditions, the United States was, and maybe still is, operating clandestine prisons. In November 2005, the Washington Post reported that the CIA ran a series of covert prisons, so-called black sites, in a number of foreign countries, including in Eastern Europe. According to the Post, “Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.” The parallels to these secret prisons—such as the Soviet Gulag and Latin American “disappearances”—are