Turning Scandal into Opportunity: Toward a Rights-Respecting Transfer Policy

Margaret Satterthwaite. Published on April 2, 2010

Ottawa has many questions to answer about Canada’s policies concerning the transfer of detainees in Afghanistan.  The answer to the most important of those questions — what a rights-respecting transfer policy should look like — could guide other governments struggling with the same issues.  Canada is not alone in facing controversy over its transfer policy.  The United States, Denmark, and the United Kingdom have, like Canada, been sued by individuals and groups concerned that detainees have been abused following handovers in Afghanistan and Iraq.  Unfortunately, none of these countries have set out clear rules about transfer that ensure their policies are consistent with human rights.

To be fair, the issues at stake are not simple.  Several bodies of international law provide overlapping standards. While domestic and regional courts have answered some related questions, no international court has clearly set out a rule to guide states in this setting.  Despite the complexity, there are some clear protections that should be applied whenever one country hands over a detainee to another country.  This is because international law protects individuals within the effective control of a state no matter where that detainee is held.  Examining human rights law, refugee law, and humanitarian law norms together, a baseline standard can be developed that should be applied to all transfers.  This minimum standard, described below, is based on—and progressively develops — case law and doctrine.  It draws on widely-ratified international human rights conventions such as the International Covenant on Civil and Political Rights and the Convention Against Torture and All Forms of Cruel, Inhuman or Degrading Treatment, as well as and the 1948 Geneva Conventions.

Were Canada to uphold this minimum baseline, the country would set the global standard for lawful detainee transfers.  There are four main elements.  First, the transferring state must have a valid legal basis for holding the individual.  Through the right to be free from arbitrary detention, human rights law requires that such bases be both valid and set out in existing law.  The content of the norms about the legality of the detention depend on whether the detention occurs within or outside the context of armed conflict.  Certain limits apply across the board, however; for example, detaining individuals for the purpose of intelligence-gathering alone is unlawful.

Second, the individual must be protected against refoulement, or involuntary return to a risk of ill-treatment.  There are several specific risks that must be guarded against.  Countries must ensure that they do not transfer detainees to a risk of: torture or ill-treatment; persecution; enforced disappearance; or arbitrary deprivation of life.

• Both human rights law and international humanitarian law prohibit handovers to torture or ill-treatment.  In the context of armed conflict, Article 3 common to the four Geneva Conventions forbids “cruel treatment and torture”; this provision should be understood to include a protection against transfer to a risk of such treatment.

• According to international refugee law and international humanitarian law, countries should ensure that individuals are not transferred to a risk of persecution.  While the Refugee Convention does exclude certain persons from its protection for security reasons, excluded individuals retain the protection against transfer to other risks, including the risk of torture and cruel treatment under international human rights law, since these protections contain no exclusions.

• Detainees may not be handed over to countries where they risk enforced disappearance.  An enforced disappearance entails the detention of an individual by a state that either refuses to acknowledge the detention or conceals the fate and whereabouts of the detainee, placing the individual outside the protection of the law.  Enforced disappearances are violations in themselves as well as amounting to cruel, inhuman and degrading treatment and—depending on the circumstances—possibly torture and a deprivation of the right to life under international human rights law.  As such, transfers to a risk of enforced disappearance are prohibited.  In addition to these protections, which apply at all times, enforced disappearance is understood as forbidden by the Geneva Conventions, meaning that transfers to such a risk should be prevented.

• Countries must also ensure that they do not transfer detainees to a risk of arbitrary deprivation of life.  In combination, international human rights law prohibiting the arbitrary deprivation of life and the requirement that states respect and ensure the human rights of those within their custody impose an obligation on states not to transfer individuals to a risk of arbitrary deprivation of life.  This includes non-transfer to extrajudicial executions and the imposition of the death penalty in circumstances where basic procedural guarantees have not been observed.

Third, in addition to these substantive protections, countries should uphold a number of procedural guarantees whenever they transfer individuals from their custody.  Detainees should be given the ability to challenge their transfer on the basis that they fear mistreatment at the hands of the receiving country.  This procedural requirement has been understood to be inherent in the various norms of non-refoulement set out above.  The ability to challenge transfer must take place prior to the transfer and before an independent decision-maker who has the ability to halt the transfer while the review is pending.

Finally, countries that use “diplomatic assurances” — promises given by the receiving country not to mistreat the detainee — have a number of specific hurdles to cross under international law.  Due to their well-known ineffectiveness, countries should not, as a matter of course, rely upon assurances to protect against concerns about ill-treatment.  If they are used, states must ensure that assurances are obtained using “clear” and established procedures; that they are subject to judicial review; and that they are followed by effective post-return monitoring of the treatment of the individual returned subject to assurances.  In no instance may assurances be relied upon when transferring an individual to a country that systematically uses torture and ill-treatment.

The Canadian government can turn the Afghan detainee scandal into an opportunity for change.  If it adopts protective rules concerning detainee transfers, sets up procedures for detainees to challenge their transfers, and rejects diplomatic assurances where they are ineffective, Canada could lead the way toward national security policies that enhance safety while promoting human rights instead of destroying bodies, violating law, and creating enemies.