From 2002 to 2010: Canada Must End Complicity in Torture

When Canada’s Parliament resumes in just over two weeks time, there is expected to be considerable debate about two issues that have become emblematic of the worrying ways that human rights have been undermined and sold short in the name of security: the fate of Omar Khadr and the handling of prisoners apprehended by Canadian troops in Afghanistan.

Both have been prominent on the public, political and media agenda in recent months. Both raise very troubling questions about Canadian complicity in torture. Both remain unresolved. And both begin on the battlefield in Afghanistan, back in 2002.

2002 is when Canadian troops first deployed in Afghanistan. From the outset Canadian military brass and political leaders decided that those troops would not hold on to prisoners taken during fighting. Instead, prisoners captured by Canadian soldiers would be handed over to other countries’ forces. Until late 2005 transfers were to US forces in Afghanistan, even though the US government had refused to recognize the applicability of the Geneva Conventions to the Afghan conflict. But as it became clear that some of those prisoners were ending up at Guantánamo Bay and as disturbing reports of abuses at US detention facilities within Afghanistan emerged, it became increasingly untenable for Canada to continue to rely on the US as our detention partner.

But one problem was simply traded for another when Canadian officials opted, in late 2005, to hand battlefield prisoners over to Afghan authorities instead. The new arrangement was instituted even though it was notoriously well known that torture was rampant and systematic throughout the Afghan prison system. The new arrangement just made Canada complicit in human rights violations carried out by a different country; complicit in torture.

And that is precisely what has happened. The public record is now replete with credible reports of prisoners being badly tortured after being transferred from Canadian to Afghan custody. Yet the government has resisted all efforts and suggestions to adopt a different approach. My own organization, Amnesty International, jointly with the British Columbia Civil Liberties Association, eventually turned to the courts in an effort to stop the transfers. The government fought the lawsuit aggressively. And in the end, the courts ruled the case could not go ahead because the Canadian Charter of Rights and Freedoms, the legal basis to the case, did not apply to Canadian soldiers operating outside Canada. It is a very worrying legal precedent to say the least.

Now back to 2002; for 2002 is also when 15-year old Omar Khadr, a Canadian citizen, was captured in Afghanistan by US forces after a firefight in which a US military medic was killed. He was badly injured at the time. He was held in US custody in Afghanistan for several months before being transferred to Guantánamo Bay in October 2002. 7 ½ years later that is where he remains.

And throughout that time he has received no meaningful help from his own government. The fact that he has been subject to torture and ill-treatment has never been addressed. The fact that he was only 15 years-old at the time of his capture – making him a “child soldier” under international laws championed by Canada – has never been addressed. The fact that the legal proceedings he faces in front of a US military commission are unfair and lack independence appears to be of no concern. For several years the Canadian government has faced pressure to intervene and seek Omar Khadr’s repatriation to Canada. In 2009 both the Federal Court and Federal Court of Appeal ordered the government to request his repatriation. But the government’s defiance has appeared to only deepen with time.

Both of these issues have come to a head recently. In November 2009 Canadians heard explosive testimony from Richard Colvin, a Canadian diplomat who was posted to Afghanistan in 2006 and 2007. Among his many duties, Mr. Colvin was responsible for looking into concerns about how prisoners were faring after being transferred into Afghan custody. In his testimony before a parliamentary committee he indicated that he had reported back to senior Canadian military officials, diplomats and politicians raising grave concerns about widespread torture of prisoners. Perhaps most worrying of all, he testified that his warnings were largely ignored and that eventually he was instructed to stop putting his concerns down in writing and to raise them in phone calls instead.

When Richard Colvin’s testimony became public in November, government ministers and other senior officials responded by trying to attack his integrity and credibility. No one was buying that defense however. Outrage grew and the issue came to dominate the Canadian political landscape in late 2009, with many – including Amnesty International – calling for a public inquiry into the entire issue of how Afghan prisoners had been dealt with, going back to early 2002.

The debacle about Afghan prisoners is widely seen to be one of the primary reasons that Prime Minister Harper chose to prorogue Parliament at the end of the year, hoping to lower the heat. No doubt political sparks will fly again when Parliament resumes in March. It is crucial that it not just be about the politics however. At the heart of it, this is all about ensuring Canada is not complicit in torture. While the political firestorm rages, prisoners are still being transferred into Afghan custody and still face a very real risk of torture. That must be the primary concern.

Meanwhile, also at year’s end, the government found itself in front of the Supreme Court of Canada, asking the country’s top judges to overturn the two lower level court rulings ordering the government to seek Omar Khadr’s repatriation to Canada. The Supreme Court’s decision came down just three weeks ago, on January 29th. The judges did not feel it was their role to tell the government whether repatriation was the appropriate course of action to take. But they did, unanimously, rule that Canada has become complicit in the human rights violations Mr. Khadr has suffered.

In particular the Supreme Court justices condemned Canadian intelligence officials for conducting interrogations of Mr. Khadr at Guantánamo Bay, knowing that he was young, without legal counsel and had been subject to the US’s notorious ‘frequent flyer’ sleep-deprivation program, a form of torture or cruel treatment meant to soften individuals up for questioning. The Court concluded that violations of Mr. Khadr’s rights under the Canadian Charter continue to this day.

While the country’s nine most senior judges did not specify what action the government is to take to remedy those violations; clearly action is expected and required. Inaction is no longer acceptable. Complicity must come to an end. No doubt the government will also face pressure and questions about Omar Khadr when Parliament resumes.

Canada’s dismal efforts to address complicity in torture over the past eight years are certainly no source of pride. It extends as well to the failure to implement key Arar Inquiry recommendations, refusal to provide an apology and compensation to Abdullah Almalki, Ahmad Abou El-Maati and Muayyed Nureddin, and ongoing efforts to use unfair immigration security certificate proceedings to deport individuals to the risk of torture. These are issues I intend to come back to in upcoming articles on Prism.

It is time to turn this sorry record around. That is what Canadians need to hear from the government when Parliament resumes in early March. Halting Afghan prisoner transfers, convening a public inquiry into the handling of Afghan prisoners, and seeking Omar Khadr’s repatriation would be a very good start.