Rights groups to appeal Afghan detainees ruling
Federal Court’s decision not to halt transfer of captives into local custody ‘failed to acknowledge the Charter,’ Amnesty declares
The Globe and Mail (Canada)
April 2, 2008
Taliban fighters taken prisoner by Canadian troops in Afghanistan may be denied rights they would have if captured by British or U.S. forces, rights groups said yesterday as they announced an appeal of a Federal Court decision.
The case, which seems likely to end up in the Supreme Court of Canada, may determine whether the Constitution marches alongside Canadian troops waging war overseas.
Amnesty International and the B.C. Civil Liberties Association say that a ruling last month by Madam Justice Anne Mactavish “failed to acknowledge the Charter and international law obligations to prevent torture or ill treatment of prisoners” even after they are turned over to Afghan authorities.
Canadian handovers of detainees were stopped in November when compelling evidence of torture was found on a visit by Canadian diplomats to an Afghan prison. Prisoner transfers resumed three months later after yet another increase in monitoring arrangements and further promises from Kabul that abuse would stop and allegations of torture would be thoroughly investigated.
In the meantime, Judge Mactavish had refused to order a halt to transfers and ruled against the rights groups.
“British and American courts have ruled that some human rights protocols apply to detainees” captured by their armed forces in war zones, said Alex Neve, secretary-general of Amnesty International Canada. “Canada should be at the top of the heap in respect for human rights, not somewhere else,” he added.
The British and U.S. rulings haven’t been tested with respect to detainees captured and transferred in Afghanistan. The British case involved prisoners in Iraq. U.S. cases include some captured in Afghanistan and currently held in Guantanamo Bay, Cuba.
“This case is less about given rights to foreign detainees and more about preventing agents of our government from being ensnared in atrocities such as torture and genocide,” said Jason Gratl, president of the B.C. Civil Liberties Association.
The government has argued that international law coupled with deals with the Afghan government provide all the protection needed to ensure detainees are not abused or tortured.
Canadian law already applies to Canadian soldiers deployed abroad. For instance, a criminal investigation into allegations that Afghan detainees were beaten by Canadian soldiers has been under way for more than a year, but there has been no decision on whether to lay charges.
The appeal announced yesterday is expected to be heard some time this fall.
Among the 11 grounds cited for the appeal, the right groups says the judge “erred in law by finding that the Charter does not apply to the detention of individuals by the Canadian Forces in Afghanistan despite the fact the Canadian Forces have ‘complete control’ over these detainees and cannot be compelled to turn them over to the custody of any other country, including Afghanistan.”