What are Canadians doing with enemy combatants captured in Afghanistan?

A couple of weeks ago, I’d asked Department of National Defence officials what were the rules so far as enemy combatants captured by Canadian troops in Afghanistan. Here’s the response I received last week from a DND media affairs officer.

(AKIN) What happens to detainees when they are detained by Canadian Forces in Afghanistan? 

(DND) As a matter of policy, the Canadian Forces treats all detained persons humanely in accordance with the standards of treatment and care set out by the Third Geneva Convention (the Prisoner of War Convention).  All Canadian Forces personnel deployed on international operations are provided with pre-deployment briefings and training to ensure they understand prisoner of war status and the treatment of prisoners of war and detainees.

However, Canada does not maintain detention facilities in Afghanistan for non-CF members.  Persons detained by the Canadian Forces in Afghanistan are therefore transferred to other authorities – now to the Afghan authorities – in accordance with international law. 

On December 18, 2005, the Canadian Forces and the Government of Afghanistan – Ministry of Defence signed an arrangement with respect to the transfer of detainees from the Canadian Forces in Afghanistan to Afghan authorities.  This arrangement establishes the procedures in the event of a transfer, and reinforces the commitments of both Participants to meet their obligations under international law.    In light of this arrangement, it is the intent of the Canadian Forces that all detainees captured by the Canadian Forces in Afghanistan will be transferred to Afghan authorities. 

(AKIN) What is the process for turning them over to American forces?

(DND) As mentioned above, in light of the December 18, 2005 arrangement, it is the intent of the Canadian Forces to transfer all persons detained by the Canadian Forces in Afghanistan to the Afghan authorities.   This is consistent with Canada's support for the principle that Afghan authorities should have the responsibility for handling detainees captured in their sovereign territory, and with our goal to support Afghan authorities in strengthening local capacity and good governance.

The Canadian Forces procedures for transferring a detainee to the Afghan authorities are as follows:

Once an operational unit detains an individual, information that is needed to identify the individual is obtained.  The individual is then handed over to the Afghan authorities.  Following the transfer of the detained person, information concerning that person is relayed from NDHQ to the Canadian permanent mission in Geneva, which in turn advises the Protection Service of the ICRC through a diplomatic note.  Once the Canadian Forces have transferred a detainee in accordance with their obligations under international law (all CF operations comply with international law), including informing the ICRC of the transfer, the responsibility for tracking detainees lies with the ICRC. 

The arrangement reached between the Canadian Forces and the Afghan Government clearly recognizes the role of the ICRC to track detainees to ensure that they continue to receive humane treatment and protections in accordance with the standards set out in the Geneva Convention.

My Globe and Mail colleague in Washington, Paul Koring, had a piece this week which puts this issue into an interesting perspective:

… But, given Afghanistan's grim record of torturing and abusing prisoners, legal experts fear handing suspects and Taliban insurgents to Kabul may make Canadian soldiers complicit in their subsequent torture.

“[Gen.] Hillier is placing rank-and-file Canadian troops, unwittingly, in the position of very likely being accessories to torture and, therefore, war criminals under international and Canadian law,” Amir Attaran, a law professor at the University of Ottawa, said. Today, Prof. Attaran will host a symposium on whether Canada's military is “complicit in torture in Afghanistan”

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Kabul's treatment of prisoners has been harshly condemned.

“There continued to be instances in which security and factional forces committed extrajudicial killings and torture. Torture and abuse consisted of pulling out fingernails and toenails, burning with hot oil, sexual humiliation and sodomy,” the U.S. State Department said in assessing its Afghan ally this month.

The Afghan Independent Human Rights Commission found that “torture continues to take place as a routine part of police procedures” . . .