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Ruling permits review of Afghan prisoner transfer policy

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Richard Foot
CanWest News Service
Tuesday, November 06, 2007

The Defence Department has lost its bid to kill a court challenge of its controversial Afghan detainee policy.

The military had asked the Federal Court of Canada to throw out a case by Amnesty International and the British Columbia Civil Liberties Association, which in February requested a judicial review of the way Canada treats Taliban suspects arrested in Afghanistan.

The military argued that the human rights groups has no legitimate “standing” to question the government’s overseas wartime policies in a Canadian court. It also said any such challenge is bound to fail because the human rights law governing Canada’s conduct abroad – specifically, the Charter of Rights and Freedoms – does not apply in Afghanistan, where Canada operates as part of an international military coalition.

Federal Court Justice Anne Mactavish dismissed those arguments Monday, saying the human rights case is not “bereft of any chance of success.”

Canada’s treatment of its Afghan prisoners has come under scrutiny since allegations surfaced that Taliban suspects, apprehended by Canadian troops, have been mistreated and tortured by Afghan security forces and in Afghan government prisons.

When Canada began its combat mission in Kandahar, it agreed to hand over any detainees to Afghan authorities, despite that country’s poor human rights record. Unlike other coalition countries such as Holland, Canada did not initially write safeguards into its detainee agreement with Afghanistan, such as a system to monitor the treatment and the fate of Canadian-transferred prisoners.

Soon after Amnesty International began challenging the policy in court, the Defence Department amended its transfer policy to include monitoring safeguards.

But Amnesty says the new transfer agreement between Ottawa and Kabul is no guarantee that prisoners won’t be tortured in Afghan jails.

In fact, new allegations of torture suffered by unidentified prisoners were published last week in a Montreal newspaper.

Amnesty and its B.C. partner are now seeking a temporary court injunction against further detainee transfers. They are also looking for an early date for a full court review of the transfer policy.

“We are delighted that the court has now ruled that our case can go ahead,” says Alex Neve, secretary general of Amnesty International Canada.

“Given that the risk of torture for transferred prisoners continues to be a very real one, we’re asking the court to order that the practice of transferring prisoners cease, and that transfers should only resume if the changes necessary to diminish that risk are in place.”

Neve says no amount of monitoring is likely to solve the problem. He says a better solution is for NATO to take charge of battlefield detainees, and in the process build a system that could serve as a model for Afghanistan’s future prisons.

It’s not clear yet if the government is going to appeal Monday’s ruling. A Defence Department spokesman said the military had no immediate response to the ruling.

In her judgment, Mactavish was careful to point out that if a court hearing on the detainee policy proceeds, her decision has no bearing on its outcome.

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Written by afghandevnews

November 7, 2007 at 3:59 pm

Posted in Human Rights

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