Is Canada Violating International Law In Afghanistan?
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Legal Aspects of Canada’s Actions in Afghanistan Deeply Troubling
Canadian troops in Afghanistan are complicit in war crimes and crimes against humanity because of their new aggressive role in support of the U.S.-led war in Afghanistan and should be immediately pulled out of the war zone and returned to Canada or risk facing possible future criminal charges, according to a decorated Vietnam war veteran now turned Canadian peace activist.
This was the message sent directly to Canadian troops in Afghanistan Tuesday, Feb. 28, via a government website message board at the same time it was sent to Prime Minister Stephen Harper, all members of Parliament, and Gov. Gen. Michaelle Jean, who serves as Commander-in-Chief of Canadian forces. It came from military veteran John McNamer, 58, of Kamloops, British Columbia. McNamer was awarded the Bronze Star Medal for his service with the U.S. Army’s 4th Infantry Division in Vietnam and he is the author of a newly-released research brief examining the legality of Canada’s role in Afghanistan.
Attached to a letter to Harper is the five-page brief with 46 footnoted references documenting “criminal actions” resulting from ongoing Coalition procedures and actions in Afghanistan. The documentation relies primarily on published news accounts from mainstream media reports over the past several years, as well as the 2005 “Report of the Independent Expert on the Situation of Human Rights in Afghanistan” to the United Nations Commission on Human Rights.
McNamer said that some experts believe the legal basis for the war in Afghanistan is flawed to begin with, but that his primary concerns are based on “factual evidence” that the war is “demonstrably criminal in its execution.”
The research brief documents substantial allegations of illegal torture; illegal and abusive detainments – sometimes leading to deaths in custody; civilian deaths from bombing and other indiscriminate use of force, and collusion with illegal “renditions” of individuals to and from other countries for purposes of torture. It also charges that Canada is in violation of international law for allowing illegal CIA “torture flights” to use Canadian air space and airports, saying there is a link between the flights and Coalition activities in Afghanistan.
Canada is said to be in violation of international and Canadian law as well for its current policy of handing over detainees to American authorities, who do not treat them in accordance with the Geneva Conventions – which Canada is bound by. The brief disputes Canadian military assurances that prisoners are being handled humanely by the U.S., pointing to a recently-leaked high-level British government document which admits the British have no idea whether or not detainees they are handing over to the U.S. in Afghanistan and Iraq are being sent to secret CIA detention centres for torture.
The report details the worldwide system of an illegal CIA “extraordinary rendition” process of kidnapping people and transporting them to various countries for torture. It says the process includes secret illegal “dark prisons” in Afghanistan where detainees may end up, and charges that Coalition forces act in support of and collusion with these illegalities. It notes recent news articles asserting that one U.S. prison in Afghanistan is said to be “worse than Guantanamo Bay.”
McNamer said the information detailing Canada’s role in Afghanistan has been sent out to Canadian peace activists and that he expects his report will be a topic of concern when activists gather in various cities March 18 for a day of protest against the invasion of Iraq.
He said he sent a message to Canadian troops in Afghanistan offering to provide them with his complete report and the letter to Harper. The message was filed with the Department of National Defence website “Write to the Troops”, but McNamer said he is worried it may not get to the troops if officials decide to censure it by not posting it. He told the troops that his message is not hostile to Canadian Forces and that “you need to know this information.” McNamer said that he sent the message because he believes troops “have the right and obligation to understand that they may have personal responsibility for illegal actions they may be involved in while in Afghanistan, and the right to know what is being said about this situation in Canada.”
Research Brief
February 27, 2006
Prepared by John McNamer
With recent announcements of the commitment of more than 2,000 Canadian troops to southern Afghanistan, most being part of the U.S.-led Operation Enduring Freedom,
title="">[1] Canada is undertaking a dangerous new mission that will place troops in harm’s way for an indefinite period, possibly ten years or more.
name="_ftnref2" title="">[2] Canadian Gen. Ray Henault, chairman of NATO’s military committee said in late February 2006 that “We’re saying to nations that this will be a task for NATO for 10 years or so,†adding that he was confident NATO nations providing troops knew what they were getting into.
name="_ftnref3" title="">[3] After being appointed Canada’s Chief of the Defence Staff last year, Gen. Rick Hillier enunciated the shaping of Canada’s apparent new military ideology bluntly: The military’s job is to be able to “kill people,†he said, and those responsible for terrorism in Afghanistan and elsewhere are “detestable murderers and scumbags.â€
The new stance is deeply troubling because it places Canadian troops and political leaders squarely in the position of acting in ways that are legally indefensible and leaves them open to charges of violations of international and domestic law being laid against them. With this sea-change move away from its more traditional role of striving to act as a peacekeeper, Canada is deepening a subservient role by apparently reporting directly to U.S. forces[5] (and through the ISAF/NATO “Coalitionâ€)
in an aggressive war that has a questionable legal basis to begin with title="">[6] and one which is demonstrably criminal in its execution. Through its actions, Canada becomes vulnerable to charges of being an accomplice to, and participant in, well-documented allegations of international war crimes and crimes against humanity that are being produced as a result of established ongoing Coalition procedures and actions. These documented criminal actions include:
I. ILLEGAL ABUSES — Arbitrary arrests and detentions above and beyond the reach of law under conditions commonly described as constituting gross violations of human rights law and grave breaches of international humanitarian law. name="_ftnref7" title="">[7] Documented reports of serious violations by Coalition forces from victims, the Afghan Independent Human Rights Commission, NGOs and others include: Forced entry into homes; arrest and detention of nationals and foreigners without legal authority or judicial review — sometimes for extended periods of time; forced nudity; hooding and sensory deprivation; sleep and food deprivation; forced squatting and standing for long periods of time in stress conditions; sexual abuse; beatings; torture, and use of force resulting in death.
There are at least 8 cases of prisoners who have died while in United States custody in Afghanistan. title="">[8] No one knows for sure how many Afghan civilians have been killed by indiscriminate use of lethal force and bombing of civilians — Commanding General Tommy Franks said in 2002, “We don’t do body counts.†Credible independent research conservatively estimated in 2002 that initial bombing attacks killed between 3,700 and 5,000 civilians – surpassing the death toll of the September 11 attacks on the United States.[9] Persistent reports of ongoing civilian deaths indicate a pattern of disregard for the lives of civilians in attempts to kill suspected insurgents: An American air strike in a village in the eastern mountains of Afghanistan last summer killed 17 civilians, including women and children. As villagers gathered to look at the damage to a house from the initial strike, a U.S. warplane dropped a second bomb on the same target, Kunar provincial Gov. Asadullah Wafa told the Associated Press.[10] U.S. military refused to apologize in July 2002 following the mistaken bombing of a wedding party north of Kandahar which Afghan Foreign Minister Abdullah Abdullah said killed 40 people, all civilians, with a further 100 wounded. Afghans said the wedding party had been firing into the air — an Afghan wedding tradition, while the U.S. claimed its aircraft flying overhead had come under sustained hostile fire, forcing them to drop seven 2,000-pound bombs. U.S. forces killed 15 people earlier that year in the same area in a firefight which they later admitted was “ill-advised.†title="">[11]
Coalition forces are also killing civilians with apparently illegal air strikes across the border, in Pakistan. In January 2006, Pakistani officials angrily condemned a U.S. air strike on a Pakistani village near the Afghan border that killed at least 17 “innocent civilians†– women, children and men – while apparently trying to hit alleged al-Qaeda operatives purported to be in the village. title="">[12] The attack was the third suspected U.S. strike in less than two months inside Pakistan, which says it does not allow American forces based in Afghanistan to cross the border to hunt for members of the Taliban or al-Qaeda. The Pakistani government previously issued a protest after tribal leaders said U.S. helicopters opened fire on a cleric’s home in North Waziristan in early January, killing eight people. title="">[13]
II. ILLEGAL DETAINMENT – Coalition forces detain individuals at American bases at Bagram, Kandahar and outposts, and are believed to hold individuals at a number of additional undisclosed locations. International NGOs estimate that over 1,000 individuals have been detained, often after being arrested with excessive or indiscriminate force. Detention conditions are reported as below human rights standards set by the Geneva Conventions and the United Nations.[14]
III. TORTURE — Coalition forces are engaged in the use of torture, in violation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention). The Independent Expert reporting to the UN Commission on Human Rights in March 2005 noted and gave examples of reported actions by Coalition forces that fall under the internationally accepted definition of torture. The report also noted that while there is a published news story in the U.S. revealing a classified U.S. Criminal Investigation Command report recommending that 28 personnel be prosecuted in connection with the deaths of detainees, prosecutions have been limited, "raising the question about the interest of United States officials in investigating and prosecuting these cases." The Independent Expert also expresses serious concerns “about the alleged transfer of some prisoners from Guantanamo Bay to Afghanistan as well as the process of informal rendition, whereby detainees are transferred to third-party countries where they are subjected to abuse and torture in clear violation of international human rights and humanitarian law.â€[15]
IV. COLLUSION WITH ILLEGAL ‘RENDITIONS’ — Coalition forces act in support of and collusion with the internationally widespread and systematic U.S. practice of “extraordinary rendition†— the covert practice of kidnapping suspects and their subsequent rendering to countries known to use torture to extract information. Again, the Independent Expert expressed serious concern about involvement in this practice by Coalition forces in Afghanistan in his March 2005 report.[16] Since that report, it has been widely reported in worldwide media that there is a large-scale international covert rendition system facilitated by the U.S. Central Intelligence Agency (CIA). Amnesty International reported in December 2005 that six planes used by the CIA for renditions have made some 800 flights in and out of European airspace
The Washington Post says the estimate of 100 detainees sent by the CIA into the covert system does not include prisoners picked up in Iraq.[20] International detainees are known to have been taken to Afghanistan in the rendition process, including Mamdouh Habib, an Egyptian-born Australian in American custody who was transported from Pakistan to Afghanistan to Egypt to Guantanamo Bay title="">[21] and German Khaled el-Masri, who says in a lawsuit against the CIA that he was kidnapped while on vacation in Macedonia, beaten, drugged and transported to a secret CIA facility in Afghanistan. While being held at the CIA prison, el-Masri says, he was subjected to inhumane conditions and coercive interrogation. name="_ftnref22" title="">[22] Accounts from detainees at Guantanamo reveal that the United States as recently as a year ago operated a secret prison in Afghanistan where detainees were subjected to torture and other mistreatment. The largest CIA prison in Afghanistan was code-named the “Salt Pit.†In November 2002 a CIA case officer reportedly ordered guards to strip naked an uncooperative young detainee, chain him to the concrete floor and leave him there overnight without blankets. He froze to death, according to four U.S. government officials.
The CIA officer has not been charged in the death.[23] Eight detainees now held at Guantanamo told their attorneys they were held at a facility near Kabul at various times between 2002 and 2004. They called the prison a “dark prison,†with guards not wearing uniforms, where they were chained to walls, deprived of food and drinking water and kept in total darkness with loud rap, heavy metal music or other sounds blared for weeks at a time. Most of the detainees said they were arrested in other countries in Asia and the Middle East and then flown to Afghanistan. Some detainees who were kept at the facility were transferred at times to and from another secret facility near Kabul and they said they were later transferred to the main U.S. military detention facility near Bagram.[24]
A Pentagon official was recently quoted in the Telegraph asserting that “Anyone who has been to Bagram would tell you it is worse (than Guantanamo.)â€
title="">[25] Human rights groups estimate that some ten thousand foreign terrorist suspects are being held in U.S. detention facilities in Afghanistan, Iraq, Cuba and other countries, almost entirely hidden from public view, with an unknown portion of this population in the custody of the CIA.
V. ILLEGAL DETAINEE HANDOVERS — Canada appears to be breaching international human rights laws by handing over Afghan prisoners to American authorities – and into the shadowy world of torture and denied justice. name="_ftnref30" title="">[30] The recently-leaked UK document mentioned above clearly establishes that even the most-trusted Coalition partners have no idea whether or not such prisoners are being transferred to secret CIA prisons for torture. title="">[31] This calls into question recent assurances from Canadian military authorities that detainees they are handing over to the U.S. in Afghanistan are being treated in accordance with international law. The issue first arose in 2002, when deep concern was expressed by high-ranking Canadian officials about whether the United States is fully complying with international law in its handling of prisoners captured in Afghanistan.
The U.S. designates many captives as “unlawful combatants†and not “Prisoners of War,†denying them PoW protection under the Geneva Conventions, all the while maintaining the captives are being treated humanely. Canadian military officers have said recently they were happy with U.S. assurances that detainees would be treated humanely, and at the same time refused to say how many detainees have been turned over. name="_ftnref32" title="">[32] Brig.-Gen. Mike Ward has said detainees are turned over only after conditions of transfer have been accepted and the International Committee of the Red Cross is informed. The detainee authority in the American-led Coalition is the U.S., he said, and Washington has accepted Canada’s conditions, including requirements of humane treatment and third-party monitoring.[33] Brig.-Gen. Ward also said “Unlawful combatants are still entitled to humane treatment. It’s the fact of the treatment that we specifically get into detail about, not whether in fact their status is identified as ‘prisoner of war’ or ‘unlawful combatant.’†name="_ftnref34" title="">[34] Deputy Prime Minister John Manley stated in 2002, however, that the process of determining the status of captives must comply with the Geneva Conventions. The Conventions say “should any doubts arise†as to captives’ status, they are entitled to PoW status until a competent tribunal determines otherwise. University of Ottawa Law Professor Nicole Laviolette said in a 2002 interview that Canadian Forces in Afghanistan have an obligation to refuse to turn over prisoners to the U.S. until they “are sure that the conventions are being complied with.†name="_ftnref35" title="">[35] The issue still has not been resolved, according to Alex Neve, secretary-general for Amnesty International Canada.
Concerns have deepened in the wake of revelations of prisoner abuse at U.S.-operated detention centres in Guantanamo Bay and in Iraq. “Canada can’t turn a blind eye to that,†Neve said in September, 2005. “Canada needs clear, unequivocal†assurances from the United States that they are going to apply and abide by relevant international law which includes the Geneva Convention.†Neve said that the definition of prisoners as unlawful combatants does not go far enough to protect them. title="">[36]
VI. CANADA AND EXTRAORDINARY RENDITIONS – The Canadian government is in a position of legal liability from actively participating in or facilitating by default the illegal CIA “extraordinary rendition†process by allowing private CIA aircraft used for this purpose to utilize Canadian airspace and to land for maintenance and refueling at Canadian airports. A St. John’s Newfoundland airport has been publicly identified as a “hub†for covert American air operations
title="">[37] and a DeHavilland DHC-6-300 aircraft owned by a reported CIA front in the U.S. landed at Bar River airport near Sault Ste. Marie, Ontario, in early October, 2005, after taking off from Michigan. The Bar River airport is home to a company that specializes in work on DeHavilland aircraft. An airport official who asked not to be named said “I have no knowledge of any CIA aircraft,†and told an inquiring reporter “I suggest you don’t pursue this any further.†[38] Montreal’s La Presse newspaper has reported at least 55 flights operated by the CIA have passed through Canada in the last several years, and Deputy Prime Minister Anne McLellan acknowledged in an article December 7, 2005, that she had ordered officials to track down details of 55 flights.[39] However, a spokesman for the Canadian government said in a story published the next day that the government has no intention of questioning the U.S. about the flights, saying a preliminary review has turned up no evidence of illegal U.S. activity.[40] Newly declassified memos just obtained under the Access to Information Act reveals government knowledge of at least 20 planes with alleged CIA ties having made 74 flights to Canada. Considerable portions of the memos obtained were blacked out for secrecy reasons.
An EU investigator said in his initial official report in mid-December that CIA prisoners were apparently abducted and moved between countries illegally, possibly with the aid of national secret services who did not tell their governments.
title="">[43] Jack Straw, British Foreign Minister, in December wrote U.S. Secretary of State Condoleezza Rice a letter on behalf of the EU asking for information about rendition reports. If true, the activities could be “â€violations of international law…and the EU would therefore be grateful for clarification,†Straw said in the letter.
A UK newspaper reported in mid-December that a recently uncovered EU/U.S. meeting-minutes document from 2003 shows that the EU secretly agreed to allow the U.S. to use transit facilities on European soil to transport “criminalsâ€, which contradicts repeated EU denials that it knew of rendition flights by the CIA. The EU agreed to give America access to facilities – presumably airports – in the confidential talks in Athens, during which the war on terror was discussed, the original minutes show. But all references to the agreement were deleted from the record before it was published. The section including the agreement for “increased use of European transit facilities to support the return of criminal/inadmissible aliens“, and others referring to U.S. policy, were deleted – as a “courtesy†to Washington, according to recent comments by a spokesman for the EU Council of Ministers.
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name="_ftn1" title="">[1] “NATO to send up to 6,000 troops, including Canadians, to southern Afghanistan,†Canada Press, Dec. 8, 2005
name="_ftn2" title="">[2] “Graham: 10 years in Afghanistan,†Hill Times, Sep. 26, 2005
name="_ftn3" title="">[3] “Afghanistan needs help for 10 years, NATO nations told,†by Paul Koring, Globe and Mail, Feb. 23, 2006
name="_ftn4" title="">[4] “Politicians and Public Stand at Attention,†by Dawn Walton, Globe and Mail, Dec. 30, 2005
name="_ftn5" title="">[5] “Attack reminds soldiers of their mission’s risks,†by Barrie McKenna, Globe and Mail, Jan. 16, 2006
name="_ftn6" title="">[6] Destroying World Order, U.S. Imperialism in the Middle East Before and After September 11, by Francis A. Boyle, Ch. 6, Clarity Press, Inc., 2004
name="_ftn7" title="">[7] Report of the Independent Expert on the Situation of Human Rights in Afghanistan, M. Cherif Bassiouni, to the UN Commission on Human Rights, March 11, 2005, p. 5 & 6, #4
name="_ftn8" title="">[8] ibid, p.16, #44
name="_ftn9" title="">[9] “Afghanistan’s civilian death tolls mount,†BBC News, Jan. 3, 2002
name="_ftn10" title="">[10] “Afghan civilians killed in air strike,†Thunder Bay Chronicle-Journal (AP) July 5, 2005
name="_ftn11" title="">[11] “No US apology over wedding bombing,†Guardian, July 5, 2002
name="_ftn12" title="">[12] “Pakistan protests U.S. air strike,†Globe and Mail (AP), Jan. 15, 2006
name="_ftn13" title="">[13] “U.S. Alliance with Pakistan Strained,†Washington Post (AP) Jan. 17, 2006
name="_ftn14" title="">[14] ibid, Report of the Independent Expert, p.17, #45
name="_ftn15" title="">[15] ibid, p.17, #46
name="_ftn16" title="">[16] ibid, p.17, #46
name="_ftn17" title="">[17] Amnesty International Press Release, AI Index: AMR 51/198/2005
name="_ftn18" title="">[18] “We did not mislead on rendition,†The Guardian, Jan. 20, 2006
name="_ftn19" title="">[19] “Extraordinary Renditions, Human Rights Watch, www.hrw.org/reports/2005/us0405/4.html
name="_ftn20" title="">[20] “CIA Holds Terror Suspects in Secret Prisons,†by Dana Priest, Washington Post, Nov. 2, 2005
name="_ftn21" title="">[21] ibid
name="_ftn22" title="">[22] “CIA sued over extraordinary rendition practices, wrongful imprisonment,†JURIST, University of Pittsburgh School of Law, Dec. 6, 2005
name="_ftn23" title="">[23] ibid, “CIA Holds Terror,†By Dana Priest, Washington Post, Nov. 2, 2005
name="_ftn24" title="">[24] “U.S. Operated Secret ‘Dark Prison’ in Kabul, press release by Human Rights Watch, Dec. 19, 2005
name="_ftn25" title="">[25] “U.S.-run jail in Afghanistan ‘worse than Guantanamo,’†by Alex Russell, Telegraph, Feb. 27, 2006
name="_ftn26" title="">[26] “A Deadly Interrogationâ€, The New Yorker, Nov. 14, 2005
name="_ftn27" title="">[27] 1503 Complaint and letter to UN Commission on Human Rights, by Prof. Francis A. Boyle and Lawyers Against the War (LAW), Nov. 23, 2005
name="_ftn28" title="">[28] “Torture flights: What No. 10 knew and tried to cover up,†by Richard Norton-Taylor, Guardian, Jan. 21, 2006
name="_ftn29" title="">[29] ibid
name="_ftn30" title="">[30] “Canada Draws Fire Over Afghan Prisoners,†Toronto Star, Sep. 23, 2005
name="_ftn31" title="">[31] ibid, “Torture flights…â€
name="_ftn32" title="">[32] ibid, “Canada Draws Fireâ€
name="_ftn33" title="">[33] “Elite Unit Engaged in Deadly Operations,†The Province, Sep. 21, 2005
name="_ftn34" title="">[34] “Canucks in Afghan militant hunt,†http://cnews.canoe.ca/CNEWS/Canada/2005/09/20/pf-1227680.html
name="_ftn35" title="">[35] “Captives’ status worries Ottawa,†by Jeff Sallot, Globe and Mail, Feb. 5, 2002
name="_ftn36" title="">[36] ibid, “Canada Draws Fire…â€
name="_ftn37" title="">[37] “Plane Linked to CIA Prisoner Transport Made Stop in Canada,†Victoria Times-Colonist, Nov. 20, 2005
name="_ftn38" title="">[38] “CIA-linked Plane Landed in Ontario,†(CP) The Leader-Post (Regina), Dec. 5, 2005
name="_ftn39" title="">[39] “Canadians Probe 55 Suspicious Flights,†by Rick Cash, Globe and Mail, Dec. 7, 2005
name="_ftn40" title="">[40] “Ottawa will not query U.S. over ‘spy planes,’ National Post, Dec. 8, 2005
name="_ftn41" title="">[41] “CIA flights uncovered by memos,†by Jim Bronskill, CP, Feb. 22, 2006
name="_ftn42" title="">[42] ibid. “Ottawa will not queryâ€
name="_ftn43" title="">[43] “Europe’s Secret Support for CIA Prisons,†Sydney Morning Herald, Dec. 15, 20051
name="_ftn44" title="">[44] ibid, “Ottawa will not queryâ€
name="_ftn45" title="">[45] “EU Concealed Deal with US to allow ‘rendition’ flights,†The Daily Telegraph, Dec. 11, 2005
name="_ftn46" title="">[46] Extraordinary Rendition Briefing (UK APGER), JURIST, Univ. of Pittsburgh School of Law, Dec. 5, 2005
@ March 13, 2006