The Taking of Afghan Prisoners 22, 23, and 24

by , March 31, 2010

So an unexpected benefit of the proroguing of Parliament in January 2010 was the refreshing absence of Laurie Hawn. The more I don’t hear from Laurie Hawn, the happier I am, you know? The air seems cleaner somehow…

But for me, this whole Afghan prisoner thing goes back to Aug. 17, 1917, when my Uncle Wilfred got part of his head shot off during The War to End All Wars, which wasn’t, and was subsequently shipped home with metal in his head and a medal on his chest – the Military Medal – and was never quite the same after.

Subsequently, we had World War II (tag line: Never Again).

After World War II, which as it turned out wasn’t the end, we had the Nuremberg Trials, the idea being, as Robert H. Jackson put it (speaking as it happens to the Canadian Bar Association in Banff, Alberta, Sept. 1, 1949, less than a month after the Geneva Conventions of 1949):

"It is possible that strife and suspicion will lead to new aggressions and that the nations are not yet ready to receive and abide by the Nuremberg law. But those who gave some of the best effort of their lives to this trial are sustained by a confidence that in place of what might have been mere acts of vengeance we wrote a civilized legal precedent and one that will lie close to the foundations of that body of international law that will prevail when the world becomes sufficiently civilized."

After the Nuremberg Trials, we had the Nuremberg Principles, built into the United Nations Charter, the 1949 Geneva Conventions that defined war crimes, the Statute of Rome in 1998 establishing the International Criminal Court, the enacting as required by the Rome Statute of the Crimes Against Humanity and War Crimes Act in Canada, 2000, blah, blah, blah.

For many of us Canadians, the blah, blah, blah is crucial. Otherwise, as George Orwell said somewhere, the only rule of power politics is that there are no rules, and we enter the twilight world of Dick Cheney, where we live not under "the rule of law, but the rule of men." Enter also Laurie Hawn, whose advice to concerned Canadian citizens is to "get real."

Reality in fact is found in the law. Here we go, people, stay with me for the ride. After World War II, the Nuremberg Trials, all that, we got the Geneva Conventions of Aug. 12, 1949, signed by, among others, Canada and the United States. The Third Geneva Convention deals with Prisoners of War. Before we get to that, though, it’s important to recognize that the Third Geneva Convention Regarding Prisoners of War is stated by the bulletin of the secretary-general of the United Nations of Aug. 12, 1999 (uncannily published exactly 50 years after the signing of the Third Geneva Convention Regarding Prisoners of War) to be the standard for UN forces in the field, and the existence of Canadian Forces in Afghanistan is justified by United Nations Security Council Resolution 1386, Dec. 20, 2001, and subsequent extensions at five-minute meetings, establishing ISAF, and therefore the legal cover for Canadians being in Afghanistan at all.

Whatever one thinks of the logic, or even sanity, of this line of reasoning, the fact is that the Third Geneva Convention of Aug. 12, 1949, is the law that applies to Canadian troops taking prisoners in Afghanistan from 2002 onward, as is implied in the document "Campaign Against Terrorism Detainee Transfer Log," which can be found in various forms in the Access to Information Act response by DFAIT to Amir Attaran, Nov. 14, 2007, and as explicitly stated by Madame Justice Mactavish in Federal Court (2008 FC 336), e.g., at paragraph 167.

So if we look at the "Campaign Against Terrorism Detainee Transfer Log" for April 8, 2006, we find that prisoners 22, 23, and 24 were transferred from the custody of Canadian Forces to a helpfully redacted "accepting power," which as it turns out in testimony before the Canadian Military Police Complaints Commission was the Afghan National Police, an Afghan authority unlikely to have signed the Third Geneva Convention, or read it, and which was self-evidently known to DFAIT not to meet the standards of the Third Geneva Convention.

Transfer log (click to enlarge)

Which brings us, relentlessly, once again, to the Third Geneva Convention of Aug. 12, 1949, regarding prisoners of war, and in particular, Article 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.

"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."

You don’t have to be an international lawyer, people, to see the intent of this legislation. In fact, it seems pretty clear this language is meant to be understood by everybody, and that includes ordinary soldiers in the field, as it was clearly understood by the Canadian Military Police.

You don’t have to be any kind of lawyer at all to understand that Canada is the detaining power within the meaning of the Geneva Conventions, and that the onus is on the detaining power to ensure that its prisoners are cared for properly. I point out, merely for entertainment, Article 25, which states:

"Prisoners of war shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health."

It’s a bit of stretch to imagine prisoners taken in Afghanistan by Canadian Forces, transferred to any Afghan "authority," were quartered in circumstances that were remotely similar to Canadian Forces in the same area, Kandahar, and particularly that allowed them to view the gold medal men’s ice hockey game between Canada and the USA, Feb. 28, 2010, with or without popcorn, or purchase a double-double at Tim Horton’s.

For those of us (I think many) Canadians who care, the whole Afghan prisoner thing comes down to whether Canada is upholding international standards to which it has subscribed for over 60 years, or whether some ignorant hosers who can’t or won’t read the law have hijacked Canada’s good name and trashed it. In the words of the Somalia Inquiry:

"We can only hope that Somalia represents the nadir of the fortunes of the Canadian Forces. There seems to be little room to slide lower. One thing is certain, however: left uncorrected, the problems that surfaced in the desert in Somalia and in the boardrooms at National Defense Headquarters will continue to spawn military ignominy. The victim will be Canada and its international reputation."

Ignominy has arrived. Many of us want our tainted national honor to be healed. Only the resumption and completion of Canada’s unfinished mandate – the Somalia Inquiry – will cut it.

Read more by Neil Kitson