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Is the Afghan detainee case unfinished business?

A defence minister who served in Afghanistan. A new International Criminal Court investigation. Ongoing calls for an inquiry. Will Canada’s handover of detainees come back to haunt this government?

By: /
14 June, 2017
A captured Taliban insurgent is presented to the media in Ghazni province June 12, 2012. REUTERS/Mustafa Andaleb

Last Wednesday, June 7, Defence Minister Harjit Sajjan released a new Canadian defence policy, telling Canadians, “We have much to offer the cause of global peace, stability and prosperity.”

His remarks came one year to the day after a letter signed by Joe Clark, Elizabeth May, Ed Broadbent, Ron Atkey and dozens of others called for a public inquiry into Canada’s handling of the transfer of Afghan detainees during its decade-long military mission in Afghanistan.

“By exposing hundreds of Afghans to such high risks of torture, Canada failed utterly to prevent the torture of many of them, thus flouting one of the most basic legal and moral obligations: the prohibition of torture, enshrined in customary international law,” the letter said. “This is unfinished business of the most serious kind.”

Last year, Sajjan said an inquiry was not needed into the case, but the issue — which has dogged the Canadian government, first under Stephen Harper and more recently under Justin Trudeau, for years — may resurface sooner than expected.

There are a number of reasons why: first, the International Criminal Court’s investigation into war crimes committed in Afghanistan is ongoing. Its findings, which could come at any time, are not expected to involve Canada, but may nevertheless put the issue back in the public eye.

Second, Sajjan’s role in Afghanistan continues to be questioned, despite Ethics Commissioner Mary Dawson ruling there was no conflict of interest for Sajjan, who served in Afghanistan, to make a decision on the inquiry. This week, that ruling was reiterated by Dawson, though she admitted “Sajjan’s account of his time in Afghanistan may have been downplayed.” Such a response may prompt new questioning over the decision.

Third, a deadly attack in Kabul on May 31, which damaged the Canadian embassy and killed more than 150 people, has prompted calls to rethink the Canadian military’s absence from the NATO-led training operations in Afghanistan, despite Trudeau saying recently he would not consider a return to the country.

Finally, the Toronto Star recently published photographic evidence of torture of detainees committed by members of the Iraqi Emergency Response Division — a group with whom the Department of National Defence says Canada is not working directly but is fighting ISIS alongside Canada in Iraq. The revelations once again raise questions over the ethics of Canada’s allies.

With this context as our backdrop, OpenCanada reached out to five people who were directly involved in the Afghan mission itself or have followed the detainee case closely over the years. We asked them: Have we learned lessons from the detainee issue for present or future operations? Should Canadians be hearing more on the Afghan detainee file? And if so, will we?

The answers below — from Alex Neve, Eileen Olexiuk, Craig Scott, Chris Alexander and Peggy Mason — reveal a shared passion for Canada’s legacy in the world. All but one are in favour of an inquiry. 

Neve: 'Without an inquiry, we cannot expect Canadian Forces will do better next time.'

— Alex Neve, Secretary
General, Amnesty International Canada

Canadian troops in Afghanistan. Seems like something mainly
for the history books? Think again.

Time has certainly passed. It is 15 years since Canadian
troops first deployed to Afghanistan. It is five years since combat operations
ended, and more than three years since the final phase of troop training
wrapped up. So, yes, time has passed and Canada has moved on. 

Against that backdrop, however, it is worth remembering the
timeline around one of the most troubling and contentious dimensions of
Canadian military operations in Afghanistan: the treatment of prisoners
apprehended by Canadian troops and then handed over to, for the first three
years, U.S. troops, and then, for the final seven years of combat, Afghan
troops. Over that decade, Amnesty International (AI), the British Columbia
Civil Liberties Association (BCCLA) and others raised concern that transferred
prisoners faced the risk of serious human rights violations, most notoriously a
well-documented risk of torture at the hands of Afghan security forces.

And even here, hasn’t time passed? It is 10 years since AI
and the BCCLA launched a court application and a complaint with the Military
Police Complaints Commission, challenging the practice of transferring
prisoners into the hands of likely torturers. It wasn’t our intention or
expectation that it would become the dominant political story of the day,
provoking a near constitutional crisis, prorogation of parliament and the
resignation of a minister. We just wanted to prevent torture.

Unfortunately, a Federal Court judge ruled, back in 2008,
that the Canadian courts were not the right venue for that concern to be
resolved as the Charter of Rights (the Canadian legal window through which we
sought to enforce Canada’s international legal obligations regarding torture)
didn’t apply to our soldiers once they left Canadian soil.

All of that is in the past. Or is it?

“Would it be any different next time? We have no assurance, not even close.”

Recent weeks have once again seen much political discussion of those days, in particular with respect to Minister of National Defence Harjit Sajjan and what the nature of his role was during the Canadian Armed Forces’ Operation Medusa offensive in 2006.

But what about the torture issue? It was never resolved. The Federal Court did not even remotely rule that transferred prisoners were not facing torture. In fact, preliminary rulings in that case had agreed that there was very real concern about torture. The judge’s conclusion was that Canadian courts and Canadian law did not provide the solution. 

So what is the solution?

Certainly it requires a very different approach to how Canadian troops handle prisoners when there are obvious concerns that an ally, to whom we contemplate turning prisoners over, is notorious for torture and other grave human rights violations. 

But would it be any different next time? We have no assurance, not even close.

AI and the BCCLA, stymied by the courts, backed the call for a Commission of Inquiry — to thoroughly study how things had been handled, understand why concerns about torture had been so readily dismissed and propose changes to avoid this happening again. 

That call was rejected by the Harper government. It has also now been dismissed by the Trudeau government, which supported an inquiry when in opposition, but apparently no longer sees it as necessary. That decision was in fact made by Sajjan, who arguably should not have been involved in those deliberations given that he was a player at the time when these issues were very much contested. 

Yes, time has passed. But we do need to revisit the sad history of Canada’s approach to battlefield detainees, prisoner transfers and torture in Afghanistan. 

We do need a Commission of Inquiry to ensure that the next time our troops are on the battlefield, we are confident that we have an approach to the handling of prisoners that will not force them into complicity in torture.

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Olexiuk: 'I produced reports that mentioned torture in Afghanistan. How was that knowledge lost?'

— Eileen Olexiuk, a
career diplomat who served in Afghanistan from 2002 to 2005, becoming deputy
head of mission in 2003

In the three
years I spent in Afghanistan, I produced three annual human rights reports; all
included descriptions of torture that was occurring in the country at the hands
of Afghan officials.

Before the first
arrangement on the transfer of detainees between the
Canadian Forces and the Afghan Defence Ministry was signed by Canada’s chief of
defence staff in 2005, I cautioned my foreign affairs colleagues on transfering
without the right of Canada to monitor the treatment of prisoners.

My concern was
brushed away.

International Committee of the Red Cross (ICRC) and the Afghan Independent
Human Rights Commission (AIHRC) were assuming this monitoring responsibility —
yet I knew both had difficulty gaining access to a detainee immediately post
transfer, when most torture is said to occur. The obligations and procedures
were more clearly spelled out in a May 2007 follow-up arrangement, this time
signed between the Afghan and Canadians governments and giving Canada “full and
unrestricted access.” 

Then, after
resigning from the Department of Foreign Affairs and International Trade
(DFAIT) in 2007, I was contracted for pre-deployment readiness exercises for
military commanders and their headquarter staff destined for Kandahar. During
these exercises, I saw that the military improved upon the transfer procedures
and diligently followed the standing order on detainees during training. It was
clear a DFAIT policy advisor was to be informed on detainees and was expected
to report to the department.

My final
involvement on this issue was at the Special Committee on the Canadian Mission
in Afghanistan in April 2010. Richard Colvin — the foreign service officer who
helped bring the detainee issue to light — had spoken frankly when he appeared
before the committee in 2009. He was shamefully maligned by the government in
the House of Commons. I agreed to speak to the CBC in March 2010 in support of
him. Following the airing of the CBC interview, I was also called to the committee.
It quickly became apparent that committee proceedings were more about
attributing blame than assessing whether or not Canada had complied with
international law. I was repeatedly asked if the foreign affairs minister
during my time in Afghanistan (then a Liberal) had seen my reports. Certainly
embassy reporting on torture gained the attention of senior officials. Is it
not their responsibility to inform the minister?

“Perhaps an internal inquiry of the relevant government departments would establish accountability.”

Before initiating a new public inquiry, perhaps an internal inquiry of the relevant government departments, starting with DFAIT (now Global Affairs Canada), would establish accountability and help to ensure that due process is followed in future.

Overall, however, I doubt Canadians can expect to hear more on the Afghan detainee issue given the government’s reluctance to research any lessons learned from our involvement in Afghanistan. And it is doubtful an International Criminal Court (ICC) decision to investigate war crimes will have a bearing on the Canadian experience.

It is shocking that after a year, Justin Trudeau has not responded to a letter signed by over 40 prominent Canadians urging a Commission of Inquiry relating to the transfer of detainees. Why not? What has changed from the time they were an opposition party and voted in favour of such a public inquiry? 

As I said during the 2010 CBC interview: Frankly, I don’t think anyone cared that the detainees were being tortured or to know the truth about what went on in Afghanistan. I believe that still to be the overriding reason we cannot expect to hear more on the Afghan detainee case. 

That is not to say I believe the issue should be swept under the carpet without, at the very least, an internal audit of the legal bureaus of foreign affairs, defence and justice.

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Scott: 'An inquiry is unlikely under the Trudeau government. Here’s why.'

— Craig Scott, Professor
of Law, Osgoode Hall Law School; former Member of Parliament for

In my contribution to this discussion of a Commission of Inquiry
on Afghan detainees, I refer the reader to House of Commons electronic
petition e-70
, which I initiated, for a
citation of the general reasons an inquiry is needed. 

I also draw to the
reader’s attention several propositions from an open
to Prime Minister Justin Trudeau headlined by former Prime Minister
Joe Clark. 

Clark and dozens of others joining him (including myself) observed
that “[n]o one knows exactly how many detainees who were in Canadian custody
were tortured, disappeared or died under Afghan custody — partly due to the
lack of a rigorous monitoring regime for the conditions of detainees, and
partly due to the cloud of secrecy the previous government relentlessly
maintained over this matter.” They end: “This is unfinished business of the
most serious kind: accountability for alleged serious violations of Canadian
and international laws prohibiting perpetration of, and complicity in, the
crime of torture. As a result of the previous government’s stonewalling, there
were no lessons learned, and no accountability.”

Having sketched out the need for an inquiry, my purpose here
is simply to list 10 of the reasons why an inquiry is unlikely under the
present Trudeau government.

1. There
has been constant doubling down on the Liberal government’s initial refusal to
call an inquiry when Minister Harjit Sajjan rejected electronic petition e-70.
Trudeau has not even replied to the Joe Clark letter, a full year later. In the
House of Commons, he and Sajjan have turned to characterizing various processes
as having investigated and got to the truth, a claim that is palpably untrue.
Doubling down has turned into a political problem if they back down now: losing

2. Canadians
have already learned that the Trudeau government is not wedded to pre-electoral
commitments. So, it basically means zero that the Liberals voted for a Dec. 1,
2009, NDP motion that called for an inquiry and that was adopted by the House.

3. But why are they resisting? The standard
view is the Liberals are circling the same wagons as the Harper Conservatives
because it was under the pre-Harper Liberal government that a completely
inadequate transfer arrangement with Afghanistan was negotiated in 2005.
Because it was so weak, the Liberals worry that any inquiry would assign them a
share of the blame, especially if it comes out that the Liberal government
allowed General Rick Hillier to lock in an arrangement that the government knew
was far less rigorous than the ones already signed by the Danes and the

4. Which
brings us to civil servants, existing and retired. Yes, there are civil
servants who want to see the truth come out because of what they witnessed or
suspect. But the civil service also has plenty of people whose conduct would be
questioned by an inquiry — notably in the Department of National Defence, Global
Affairs Canada and the Department of Justice, as well as in the Privy Council
Office (to the extent it was not kept partly in the dark by the Harper Prime
Minister’s Office).

“There are civil servants who want to see the truth come out…but the civil service also has plenty of people whose conduct would be questioned by an inquiry.”

The permanent state runs the show in Ottawa more than most people realize, and Liberals have long known, as the so-called ‘natural governing party,’ that civil servants can turn on the elected government if it does not ‘have their back.’ This is especially the case in the Department of National Defence, which can hang its ministers out to dry at a moment’s notice.

5. The alliance with the U.S. tends to overshadow everything when it comes to military and intelligence relations. Generally speaking, the Pentagon and the CIA would not want this inquiry because they know that any inquiry would look at the U.S.’ treatment of detainees after Canada transferred prisoners to the U.S. from 2001 to some time before 2006 and would also look at the connections of the U.S. (notably the CIA) to the Afghan torture factory known as the National Directorate of Security (NDS), to which we transferred prisoners from 2006 onward. Not rocking that particular boat is easily rationalized into a ‘good’ reason for Trudeau not to make more trouble with Trump than he already has. 

The above are the most on-the-surface reasons why you should not hold your breath. Now for reasons that go a little deeper.

6. Do not forget that Canada’s policy was to transfer all captives in our control to the Americans until a certain point prior to us assuming control in Kandahar in 2006. How many people did our forces, notably Special Forces, transfer to the Americans — and did we continue to do so after ministers and senior military officers knew or had every reason to know there was a risk of torture, disappearance and/or execution at the hands of Americans? This was all on the Liberals’ watch, and therefore the current Liberals may fear what an inquiry would reveal on that front. 

7. It may turn out to be even uglier. Any inquiry could get into senior-level contacts between the Office of the Chief of Defence Staff and the Pentagon and whether there was any quid pro quo for convincing the U.S. to agree to Canada’s pleading to be given responsibility in Kandahar province (in preference to the UK, which also wanted Kandahar instead of Helmand province). Behind the scenes, it is generally assumed that top Canadian generals were miffed in 2003 when Canada did not join the U.S. in invading Iraq. This generated extra pressure to make up for this with their American military partner. Did senior Canadian military agree to a detainee-transfer policy that would maximize sending captives on to the CIA’s client agency, the Afghan NDS, for interrogation?

8. As a consequence of his decision to deny the call for an inquiry in e-70, Sajjan has now made himself another reason why Trudeau may feel he cannot afford an inquiry. Because it appears Sajjan kept from the House of Commons Conflict of Interest and Ethics Commissioner his central role as an intelligence liaison with the NDS during a key period of transferring many detainees, Trudeau now knows (if he did not know before) that he appointed someone as Minister of Defence who would be a key witness at any inquiry. For a variety of reasons, Trudeau is standing behind Sajjan as minister, and, as such, he likely is under advice that having an inquiry could become a political quagmire. An inquiry could highlight that Sajjan had no business blocking an inquiry in the first place, precisely because of his central role. 

9. Trudeau now shares some responsibility in an ex post facto sense. In a letter I wrote to him on Sept. 19, 2016, requesting he revisit Sajjan’s refusal to call an inquiry, I drew to his attention some indicators that the former Harper government may have deliberately misled me in answering questions I sent to the government when I was a Member of Parliament. Such deception was with specific regard to whether there may have been an ‘off the books’ category of prisoner transferred by Canada to the Afghans without record-keeping or notifying the International Committee of the Red Cross. One of the elephants in the room for an inquiry could be such prisoners — who may sometimes have been called PUCs (“persons under control”) — and the fact that Trudeau was alerted to this dimension almost a year ago by me, but has apparently sat on this information, which may make it less likely for him to reverse course now and call an inquiry.

10. The government does not appear to fear pressure from the International Criminal Court, at least not yet. In the fall of 2016, the Prosecutor of the ICC signalled in her annual report that she was on the cusp of applying to a chambers of the Court for authorization to open a formal investigation into the treatment of prisoners by both Afghanistan and the United States. Although Canada’s possible complicity (in sending prisoners to torture) was nowhere mentioned, Canada has to know that the law of the ICC’s Rome Statute treats aiding and abetting torture as a core crime and, as such, the ICC Prosecutor’s investigation could start to put pressure on Canada to show it is taking accountability seriously for Canadian actors’ roles in transferring to torture. Over half a year later, nothing further has come from the ICC Prosecutor. This may reflect some form of backing off due to the realpolitik implications of the Trump election. Also, note Canada’s own diplomatic strategy of playing itself up as a friend of the Court (former Foreign Minister Stéphane Dion having gone on a support-the-ICC tour of Europe and Africa in fall 2016).

Politics is of course unpredictable. While the odds are that the Liberals will not want any inquiry at all or, if they are forced into it, not to start before the next election in 2019, if at all, the ground could still shift. 

Following a letter from NDP Leader Tom Mulcair, the Conflict of Interest and Ethics Commissioner may possibly be re-opening her assessment of whether Sajjan was in a conflict of interest by refusing an inquiry. If she or her successor comes back with the conclusion either that Sajjan misled her or that he both misled her and was in a conflict, Trudeau might feel some pressure to reverse course — that is, if the media does not continue with its general lack of interest in this issue (call that the 11th factor). Beyond media coverage, much would depend on whether a critical mass of disgruntled Liberal MPs would become advocates for an inquiry, contrary to what currently seems a rallying behind Sajjan and, as a consequence, his decision not to have an inquiry.

All in all, the Trudeau government is forcing those of us committed to truth and accountability on this issue to finally turn to the very last resort, namely, making the case to the International Criminal Court that it must conduct a full investigation of both the U.S. and Afghanistan — and must add Canada to that investigation from the outset.

Stay tuned.

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Alexander: 'There are other issues relating to Afghanistan more deserving of Canadians’ attention.'

— Chris Alexander, Canada’s first resident
ambassador to Afghanistan (2003-2005), a former minister of immigration and
recent candidate for leadership of the Conservative Party of Canada

Over the period from 2001 to 2014, the human rights of
detainees in Afghanistan were violated, in many cases repeatedly and
systematically. There is evidence of torture committed by officials of several
Afghan state agencies. These reports are well documented by the United Nations
Assistance Mission in Afghanistan’s human rights unit, the Afghan Independent
Human Rights Commission (AIHRC) and other human rights organizations active in
Afghanistan over that time — I was directly involved in funding, directing or
overseeing some of this work. It remains the responsibility of Afghanistan’s
leaders, and all its security, institution-building and development partners,
to ensure such abuses end, and that those responsible are held to account.

From a Canadian perspective, the findings of these reports
are conclusive: these serious abuses were not committed by members of the
Canadian Armed Forces. In fact, at every stage precautions were taken by Canada
to ensure Canadian soldiers would not be complicit in such abuses; thorough
parliamentary review of available documents did not find evidence of such
complicity. In addition, Canada was a leading donor throughout this period to
the UN’s work in Afghanistan, to the AIHRC and to reform of Afghanistan police
and justice institutions.

In my strong view, the following seven serious issues
relating to Afghanistan deserve more attention from Canadians:

: The Taliban continue to commit acts of terrorism resulting in
the deaths of thousands of civilians every year. These atrocities are war
crimes and should be documented as such, with those responsible indicted under
the authority of the International Criminal Court;

State sponsorship of
: The Taliban (alongside their allies in the Haqqani Network, ISIS
and other groups) now control at least one third of Afghan territory because of
a military and terrorist campaign directed and supported by Pakistan’s
military, principally by Pakistan’s Inter Services Intelligence (ISI). This
state sponsorship of terrorist activity should be documented by the
international community and international sanctions enacted against Iran,
Pakistan and any other state sponsors of such groups;

“NATO continues to support Afghanistan with the Resolute Support Mission…It is in my view unacceptable for Canada to be absent from this.”

Allied commitment: NATO continues to support Afghanistan with the Resolute Support Mission (RSM) to train, advise and assist Afghan forces. This mission has a troop contingent of 13,459 from every NATO member state (except Canada and France), as well as 10 other allies. It is in my view unacceptable for Canada to be absent from this mission. The United States is now increasing its commitment in response to a request from General John Nicholson, the Force commander — as a founding member of NATO with an unbroken record of service on every major mission, Canada should redeploy a contingent of trainers as part of RSM;

Proxy wars: These conflicts, fought by violent terrorist or separatist groups sponsored covertly by states, remain the greatest threat to international peace and security. Canada and Canadians should hear much more about who is backing these terrorist and separatist insurgent groups; how they are cooperating; how they recruit, finance and deliver their military effort; and what can be done by diplomatic, political and military means to stop them, from the Democratic Republic of Congo to Ukraine, from Syria, Lebanon and Iraq to Yemen, Afghanistan and Pakistan. These are the groups that will make or break the future of peace in today’s world;

Defence spending: Even if modest, highly backloaded spending increases recently announced are ultimately delivered, Canada will remain a laggard on military spending and effort, as well as a free rider dependent on U.S. strategic assets. But we will also see our ability to shape global outcomes curtailed. We are at present the only NATO ally without a combat role over Iraq/Syria or troops in the continuing NATO train, advise, assist mission in Afghanistan.  Canadians deserve to hear much more about our under-performance as a NATO ally; our withdrawal or absence from key missions in Mali, Afghanistan and Syria; and our under-investment in conflict resolution and prevention, as well as defence of the global commons;

Displacement: This year around 70 million people will be facing displacement as refugees outside their own countries, or as victims of conflict within their home states. Those who flee now face additional hardships as they seek asylum in Europe and elsewhere. The solution is stronger, sustained refugee resettlement, a more effective and humane asylum regime, better migration policies and more concerted action to resolve conflicts to allow displaced populations to return home; and

The rule of law, human rights and war crimes: The world is facing a growing range of dictatorships; dwindling commitment to human rights, freedom or free media; and an increasing number of conflicts. Canada should be at the forefront of efforts to strengthen international law, indict those responsible for war crimes, crimes against humanity and other atrocities, and support the rule of law and human rights in all parts of the world.

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Mason: 'For Canadians who care about international law, we can’t let this go.'

— Peggy Mason, former Canadian ambassador for disarmament to
the UN, is the president of the Rideau Institute on International Affairs

can certainly expect to hear more about the Afghan detainee case in my view,
for one because there are a number of open files directly bearing on the issue
of alleged Canadian complicity in the torture of Afghan detainees.

These include both an ongoing
investigation by the Military Police Complaints Commission, and a renewed investigation by the Ethics Commissioner. The
latter investigation is probing whether Minister of National Defence Harjit
Sajjan inappropriately ruled against a public inquiry, and did so despite the
fact that were one to be held, he would be a potential witness. But an equally
important reason the detainee case will persist is that the many Canadians who
care deeply about Canada’s traditional role of strong support for international
law will not let it go.

“Only by facing the music ourselves, through an independent public inquiry, can we ever hope to convince others to do the same.”

Recall that exactly a year ago, 40 eminent Canadians including current and former parliamentarians, diplomats, jurists, lawyers, academics and civil society leaders wrote to Prime Minister Justin Trudeau urging him to launch a Commission of Inquiry “into Canada’s policies and practices relating to the transfer of hundreds of detainees to Afghan authorities during Canada’s military mission in that country.”

They cited the “overwhelming evidence” that, during this mission, many of the transferred detainees were tortured, having been transferred despite very clear and credible risks of torture.

They recalled that the Harper government “systematically blocked” all efforts to investigate what happened.

That letter ends as follows:

As a result of the previous government’s stonewalling, there were no lessons learned, and no accountability. In a future military deployment, the same practices could reoccur. A public inquiry would serve to authoritatively investigate and report on the actions of all Canadian officials in relation to Afghan detainees, and to review the legal and policy framework that attempted to justify these actions. Based on this review, the Commission would issue recommendations with a view to ensuring that Canadian officials never again engage in practices that violate the universal prohibition of torture. 

All of this remains as true now as it was one year ago. The only new element, shamefully, is that the Trudeau government has continued the pattern of obfuscation and non-accountability begun by its predecessor. 

Canada played a major role in the creation of the International Criminal Court, in recognition of which a Canadian became its first president. It is not too late for Trudeau to build on this proud legacy by putting into action his many fine words about the centrality of transparency, accountability and rule-of-law to the functioning of a mature, vibrant democracy such as we believe ours to be. Only by facing the music ourselves, through an independent public inquiry, can we ever hope to convince others to do the same. 

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