Canada's prisoners and their rights

Since news broke that Canadian forces have stopped handing over prisoners to Afghan authorities, questions have been raised about what has been done with detainees since the change of practice. Last week, as we blogged here, Michael Valpy of the Globe and Mail relayed anonymous information that Canadian troops were still managing to transfer prisoners to Afghan authorities using unofficial means. He also revealed allegations that Canada was holding prisoners in their base in Kandahar. Soon, the CBC ran an interview of an Afghan NGO official who confirmed that Canada is indeed holding prisoners:

In an interview with As it Happens, [Farid Hamidi] from the Afghanistan Independent Human Rights Commission said Canadian officials have told his office they are holding 18 to 20 prisoners at the base, all captured since Canada stopped handing over detainees to the Afghans in November. ...

In the interview Thursday, [Hamidi] said his commission found out about the change in Canadian policy through media reports. Since then, though, Canadian officials had: "sent to our office in Kandahar official letters about information about the people they arrested (with) their names and other information," he said. (link to CanWest story)

The following day, the Globe's Graeme Smith reported on the attitude of Afghans towards foreign forces' prisons. It seems that Afghans figure that the Bagram prison, "larger and more secretive" than the Guantanamo Bay prison (NYT), has set a standard that they don't want to see emulated by other foreigners. So the Afghan Independent Human Rights Commission wants to see Canada resume the transfer prisoners to Afghan authorities.

Many ordinary Afghans have a deep mistrust of foreign prisons, which they associate with U.S. detention centres in Guantanamo Bay, Cuba and Bagram, Afghanistan.

The AIHRC recently had difficulty inspecting the Kandahar detention facilities of the National Directorate for Security, the Afghan intelligence service, but those problems have recently been solved, Mr. Hamidi added. ...

The Afghan commission may also push for access to the detention facility operated by Canada, because of the recent decision to hold detainees longer than the customary 96 hours allowed under existing agreements, the lawyer said. ... (link)

Of course, the BC Civil Liberties Assoc. and Amesty International are still trying to get the courts to rule on the applicability of the Charter of Rights and Freedoms to prisoners of war in Afghanistan. Alex Neve of Amnesty and Jason Gratl of the BCCLA write in an Op-Ed for the Globe and Mail:

... Is it so outlandish to assert that the same Charter that applies when the military responds to Canadian weather emergencies, such as floods and ice storms, is still relevant when soldiers are deployed outside the country, involved in activity that will, much more readily, lead to imprisonment and loss of life?

On the line are Canada's international obligations under human-rights treaties and the Geneva Conventions that set out minimum humanitarian rules for armed conflict. Both prohibit torture and secret imprisonment. But those international laws cannot automatically be enforced at the national level. Canadian law is very clear — treaties cannot be argued in their own right in Canadian courts. They can only be enforced through the lens of Canada's own domestic laws, notably the Charter.

And they regularly are. A long line of court cases has interpreted various sections of the Charter so as to ensure that Canada's international human-rights obligations are upheld. Why should that no longer matter if the activities under question are happening outside Canada? International human-rights standards themselves know no borders, nor should they. Imagine if the way around being held accountable for such obligations was to simply commit violations offshore.

Nor does the Charter draw these kinds of distinctions. Some rights in the Charter are strictly worded to apply only to "citizen[s] of Canada," but the right to life, liberty and security of the person, which is central to this case, is differently worded and applies to "everyone." And the application of the Charter itself extends to Parliament and the government, with respect to "all matters within the authority of Parliament." Nothing is said about that only being the case within Canada's land borders. Hard to imagine how that could not apply to a Canadian military deployment. The Charter was not written with an eye to protecting only Canadian citizens. And it was not written with artificial territorial limits in mind. Similar to international treaties, it was written to ensure that official government action does not violate human rights. ... (link)