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From: "Richard Fidler"
<[email-masked]>

Sender: [email-masked]

Subject: [peacetalk-l] FW: Soldiers risk war-crimes
charges, report warns (Ottawa Citizen)

Date: Mon, 10 Apr 2006 15:55:59 -0400

To: "Peacetalk"
<[email-masked]>

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

Soldiers risk war-crimes charges, report warns

Deal on detainees does ‘great disservice’ to Canadian
troops

BY DAVID PUGLIESE

Canadian soldiers could find
themselves charged with war crimes in the International Criminal
Court because of an agreement the government approved on the
handling of detainees captured in Afghanistan, warns a
report to be released today.
The legal opinion
on the arrangement regarding prisoners captured by Canadian troops
and then turned over to the Afghan government raises a number of red
flags about the lack of safeguards to protect soldiers against later
prosecution.
“Whoever negotiated this
agreement did our soldiers a great disservice,” said Michael Byers,
an international law professor at the University of
British
Columbia, who wrote the opinion.

That report is one
of two to be released today at a news conference involving Amnesty
International, the Polaris Institute, an Ottawa-based thinktank, and
legal experts. The second report, by University of Ottawa professor Amir Attaran, a
constitutional human rights law specialist, also questions the
detainee agreement that Chief of the Defence Staff Gen. Rick Hillier
signed in Kabul in late December.
“The mere fact there is a
possibility for Canadian troops to be charged demonstrates how
fundamentally flawed this detainee transfer arrangement is,” said
Mr. Byers, author of the book War Law: Understanding International
Law and Armed Conflict.
Conservative
government and Liberal party officials, however, have dismissed any
concerns about the agreement. Last week Defence Minister Gordon
O’Connor said he was satisfied with the pact and noted it met
international law standards. “There is nothing in the agreement that
prevents Canada from determining
the fate of prisoners so there is no need to make any change in the
agreement,” Mr. O’Connor said.
Opposition
leader Bill Graham, who was the Liberals’ defence minister when the
agreement was signed, has also voiced approval for the arrangement.

Under international
law, Canada has an obligation to ensure any detainee is protected
against torture, not only when they are transferred into Afghan
custody, but if they are sent onward to a third nation, such as the
U.S.
Under a statute of the International
Criminal Court, if soldiers transferred prisoners to another party
knowing or even suspecting that at some point those individuals
would be abused or tortured, then the troops, including their
commanders who ordered the transfer, could one day face war crimes
charges, according to Mr. Byers.
Unlike the Canadian Forces,
the Dutch military has negotiated a more strict agreement, Mr. Byers
said. The Dutch military’s agreement with the Afghan government
provides its officers and diplomats the right to check on the
condition of those captured by Dutch soldiers. The Dutch government
would also be informed if the detainees are transferred to a third
party. Canada’s agreement does
not provide for that.
Mr. Attaran notes that
Gen. Hillier signed the agreement even though the Afghan
government’s own human rights commission warned in 2004 that the
torture of prisoners is “routine.” That agency, the Afghan
Independent Human Rights Commission, monitors the conditions of
detainees, a role recognized under the arrangement signed by Gen.
Hillier. But in its report, the commission wrote: “Torture continues
to take place as a routine part of police procedures. The AIHRC has found torture to occur
particularly at the investigation stage in order to extort
confessions from detainees.”
Louise
Arbour, a Canadian who is currently the UN’s high commissioner for
human rights, reached similar conclusions in her report in March. In
addition, the U.S. State Department warned in March that Afghan
authorities “routinely” torture detainees, Mr. Attaran noted.

Mr. Byers said the agreement fails to
safeguard Canada’s obligations
under the Geneva Convention, the 1984 UN Torture Convention and a
statute of the International Criminal Court.
But the U.S.-based agency
Human Rights Watch has noted there are numerous safeguards in the
International Criminal Court to prevent what might be viewed as
frivolous or politically motivated cases from being brought against
western troops. In addition, the UN security council can adopt a
resolution suspending the court from investigating or prosecuting
any crime, according to the agency.
But Mr.
Byers said some may consider the likelihood of Canadian soldiers
being charged by the international court remote, but he noted any
organization could petition the chief war crimes prosecutor to look
into the actions of the soldiers. The prosecutor has a large amount
of independence and could at some point consider sending a signal
that western nations are not above being investigated, he added.

The court has so far
focused on abuses in wars in Africa. The U.S.
government opted out of supporting the court for fear its troops or
political leaders may one day be charged with war crimes.
Canada, however, played a
key role in the development of the court.
Mr.
Byers said he believes the agreement Gen. Hillier signed allows
Canada “to pretend to do a better job” in handling detainees while
at the same time allowing for important prisoners that may be
captured by Canadian troops to eventually end up in U.S. hands.

Canadian military officers, however, have
continually said they are confident any detainees turned over to the
U.S. would be humanely
treated.
So far,
more than 100 detainees from Iraq and Afghanistan have died in
U.S. custody. The
Pentagon acknowledges 27 of those cases are suspected or confirmed
homicides. Some of the individuals died while being interrogated.

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