Taliban prisoners in Shibirgon prison in the northern Afghanistan (courtesy of UZNEWS.NET).

A Canadian Parliamentary committee recently heard testimony suggesting that Canada’s policy of transferring Afghan detainees to Afghan security forces amounted to complicity in torture. On August 11, 2003, the North Atlantic Treaty Organization (NATO) assumed control of the International Security Assistance Force (ISAF) and its mandate to assist the Afghan Interim Authority in maintaining security. Initially, ISAF transferred detainees to U.S. forces operating under Operation Enduring Freedom. However, since 2005 NATO has transferred detainees directly to the National Directorate of Security (NDS), Afghanistan’s intelligence service. International obligations, such as Common Article 3 of the four Geneva Conventions, International Convention on Civil and Political Rights (ICCPR), and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibit NATO member states from exposing detainees to a substantial risk of torture. However, several civil society and government representatives have expressed concern that detainees transferred to the NDS may be subject to torture. Under external pressure, by 2008, Canada had quietly suspended detainee transfers.

Richard Colvin, former senior diplomat with Canada’s mission in Afghanistan, remarked in 2009 to a Parliamentary committee on the Afghanistan mission, “[a]ccording to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure.” Mr. Colvin’s testimony is the first ever by a Canadian government official that says the country’s military handed over detainees to certain torture. As a member of NATO, Canada’s reticence to continue NATO’s practice of detainee transfer raises important questions for NATO and its other constituent forces.

According to the International Committee for the Red Cross, the conflict in Afghanistan ended with the establishment of the transitional government in 2002; nevertheless, all parties to the armed conflict are obliged, at a minimum, to abide by Common Article 3 of the Geneva Conventions. Common Article 3 requires the humane treatment of all individuals not taking part of the conflict, including civilians and wounded, captured, and surrendered combatants. Thus, under Common Article 3 and the rules of customary international humanitarian law, transferring detainees to a state where they may be tortured is a serious breach of Canada’s international legal obligations. In addition, allegations of torture, if substantiated, could constitute a violation of Afghanistan’s compliance with Common Article 3.

Prohibition of torture is also embodied in international treaties including the ICCPR and the CAT, to which Canada and Afghanistan are state parties. Article 4 of the ICCPR provides that “[In] time[s] of public emergency” states may not derogate from the prohibition on torture Moreover, the non-refoulement principle of customary international law, contained in Article 3(1) of CAT, specifically prohibits the expulsion, return or extradition of a person to a state where there are substantial grounds for believing that he may be subject to torture. Under Article 1 of the CAT, the obligations of states parties also extend to official complicity in, consent or acquiescence to acts of torture. Article 2 of the CAT, requires state parties to take effective measures to prevent torture in any territory under its jurisdiction and Article 4 of CAT requires all State Parties to prohibit participation and complicity in torture. According to the Human Rights Committee (HRC), the absolute prohibition on transferring detainees to where they risk torture or other ill-treatment is incorporated in the prohibition on torture and other ill-treatment itself. In turn, some have argued that a States’ obligation not to torture or ill-treat detainees extends to the conditions in which, or to which, detainees are released or transferred. As Amnesty International USA points out, “A state cannot claim to be treating detainees humanely while knowingly handing them over to torturers — be they within one state outside it, citizens of the same state or officials of another – anymore than it can knowingly ‘release’ detainees in a minefield and claim that their safety is no longer its responsibility.”

In a legal opinion prepared for the HCR in 2001, international lawyer Elihu Lauterpacht and Queen’s Counsel to the Foreign Office of the United Kingdom, Daniel Bethlehem, argued that a state’s obligation under the principle of non-refoulement has no limitation or exceptions. As a state party to the CAT, Canada is not permitted to transfer detainees if there are substantial grounds to believe that this person may be tortured. Canadian military officials received numerous warnings from diplomatic staff regarding the potential for torture and were aware of incidents in which a prisoner with marks on his body was found near “a pair of suspicious cables.” This information may constitute grounds for believing that detainees face the risk of torture in Afghan custody.

Given indications of the possible practice of torture, in February 2007, Amnesty International Canada in conjunction with the British Columbia Civil Liberties Association filed an application in the Federal Court of Canada seeking an order to cease the practice of transferring detainees and required Canada to account for individuals previously transferred. The Federal Court of Canada and the Military Police Complaints Commission, an independent quasi-judicial body established by the Parliament of Canada, are both currently evaluating the military’s knowledge of the risk of torture in Afghan prisons.

NATO forces are faced with a difficult decision. The institutional arrangement between NATO and the Afghan security forces has failed to protect detainees from torture. The findings of the Federal Court of Canada and the Military Police Complaints Commission will be internationally significant as it could amount to a critique of NATO policy regarding the transfer of Afghan detainees – a policy that many other countries have adopted.