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Publication:=20 Ottawa Citizen; Date:2006 Apr 10; Section:Front Page; Page = Number:=20 A1

Soldiers risk war-crimes charges, report = warns=20

Deal on detainees does =91great disservice=92 = to Canadian=20 troops

BY DAVID PUGLIESE=20

   Canadian soldiers could = find=20 themselves charged with war crimes in the International = Criminal=20 Court because of an agreement the government approved on the = handling of detainees captured in Afghanistan, = warns a=20 report to be released today.
   The legal = opinion=20 on the arrangement regarding prisoners captured by Canadian = troops=20 and then turned over to the Afghan government raises a = number of red=20 flags about the lack of safeguards to protect soldiers = against later=20 prosecution.
   =93Whoever negotiated = this=20 agreement did our soldiers a great disservice,=94 said = Michael Byers,=20 an international law professor at the University of=20 British=20 Columbia, who wrote the opinion. =
   That = report is one=20 of two to be released today at a news conference involving = Amnesty=20 International, the Polaris Institute, an Ottawa-based = thinktank, and=20 legal experts. The second report, by University of Ottawa professor Amir Attaran, a = constitutional human rights law specialist, also questions = the=20 detainee agreement that Chief of the Defence Staff Gen. Rick = Hillier=20 signed in Kabul in late December. =
   =93The mere fact = there is a=20 possibility for Canadian troops to be charged demonstrates = how=20 fundamentally flawed this detainee transfer arrangement = is,=94 said=20 Mr. Byers, author of the book War Law: Understanding = International=20 Law and Armed Conflict.
   Conservative=20 government and Liberal party officials, however, have = dismissed any=20 concerns about the agreement. Last week Defence Minister = Gordon=20 O=92Connor said he was satisfied with the pact and noted it = met=20 international law standards. =93There is nothing in the = agreement that=20 prevents Canada from = determining=20 the fate of prisoners so there is no need to make any change = in the=20 agreement,=94 Mr. O=92Connor said. =
   Opposition=20 leader Bill Graham, who was the Liberals=92 defence minister = when the=20 agreement was signed, has also voiced approval for the = arrangement.=20
   Under = international=20 law, Canada has an obligation to ensure any detainee is = protected=20 against torture, not only when they are transferred into = Afghan=20 custody, but if they are sent onward to a third nation, such = as the=20 U.S.
   Under a statute of the = International=20 Criminal Court, if soldiers transferred prisoners to another = party=20 knowing or even suspecting that at some point those = individuals=20 would be abused or tortured, then the troops, including = their=20 commanders who ordered the transfer, could one day face war = crimes=20 charges, according to Mr. Byers.
   Unlike the Canadian = Forces,=20 the Dutch military has negotiated a more strict agreement, = Mr. Byers=20 said. The Dutch military=92s agreement with the Afghan = government=20 provides its officers and diplomats the right to check on = the=20 condition of those captured by Dutch soldiers. The Dutch = government=20 would also be informed if the detainees are transferred to a = third=20 party. Canada=92s = agreement does=20 not provide for that.
   Mr. Attaran = notes that=20 Gen. Hillier signed the agreement even though the Afghan=20 government=92s own human rights commission warned in 2004 = that the=20 torture of prisoners is =93routine.=94 That agency, the = Afghan=20 Independent Human Rights Commission, monitors the conditions = of=20 detainees, a role recognized under the arrangement signed by = Gen.=20 Hillier. But in its report, the commission wrote: =93Torture = continues=20 to take place as a routine part of police procedures. The AIHRC has found torture to occur=20 particularly at the investigation stage in order to extort=20 confessions from detainees.=94 =
   Louise=20 Arbour, a Canadian who is currently the UN=92s high = commissioner for=20 human rights, reached similar conclusions in her report in = March. In=20 addition, the U.S. State Department warned in March that = Afghan=20 authorities =93routinely=94 torture detainees, Mr. Attaran = noted.=20
   Mr. Byers said the agreement fails to=20 safeguard Canada=92s = obligations=20 under the Geneva Convention, the 1984 UN Torture Convention = and a=20 statute of the International Criminal Court.
   But the U.S.-based = agency=20 Human Rights Watch has noted there are numerous safeguards = in the=20 International Criminal Court to prevent what might be viewed = as=20 frivolous or politically motivated cases from being brought = against=20 western troops. In addition, the UN security council can = adopt a=20 resolution suspending the court from investigating or = prosecuting=20 any crime, according to the agency. =
   But Mr.=20 Byers said some may consider the likelihood of Canadian = soldiers=20 being charged by the international court remote, but he = noted any=20 organization could petition the chief war crimes prosecutor = to look=20 into the actions of the soldiers. The prosecutor has a large = amount=20 of independence and could at some point consider sending a = signal=20 that western nations are not above being investigated, he = added.=20
   The court = has so far=20 focused on abuses in wars in Africa. The U.S.=20 government opted out of supporting the court for fear its = troops or=20 political leaders may one day be charged with war crimes.=20 Canada, = however, played a=20 key role in the development of the court. =
   Mr.=20 Byers said he believes the agreement Gen. Hillier signed = allows=20 Canada =93to pretend to do a better job=94 in handling = detainees while=20 at the same time allowing for important prisoners that may = be=20 captured by Canadian troops to eventually end up in U.S. = hands.=20
   Canadian military officers, however, = have=20 continually said they are confident any detainees turned = over to the=20 U.S. would be = humanely=20 treated.
   So far,=20 more than 100 detainees from Iraq and = Afghanistan have died in=20 U.S. custody. = The=20 Pentagon acknowledges 27 of those cases are suspected or = confirmed=20 homicides. Some of the individuals died while being = interrogated.=20

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