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Canada's Retreat from Laws of War

Why do we still collude with torturers?

Michael Byers 15 Nov

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[Editor's note: UBC professor of international law Michael Byers, author of the new book War Law, was invited to deliver the F.C. Cronkite Lecture in the College of Law at the University of Saskatchewan in Saskatoon on November 14. What follows is taken from his address.]

The government of this country -- our country, our government -- has, since September 11, 2001, repeatedly and cynically disregarded fundamental rules of the laws of war.

The laws of war are also referred to as "international humanitarian law", since these rules are designed to prevent unnecessary suffering during armed conflict. They are paralleled, in times of peace, by international human rights. And they include the prohibition on the use of chemical or biological weapons, the prohibition on the intentional targeting of civilians and the prohibition on torture; cruel or inhuman treatment or punishment.

For decades, Canadians were at the forefront of efforts to protect human beings during times of both peace and war. In 1948, McGill law professor John Humphrey drafted the Universal Declaration of Human Rights. In 1956, then-Foreign Minister Lester B. Pearson pioneered the concept of UN peacekeeping-and won the Nobel Peace Prize. In 1994, then-Lieutenant General Romeo Dallaire served as force commander of the UN peacekeeping mission in Rwanda and fought valiantly to convince the member states of the UN Security Council to enforce the prohibition on genocide. In the late 1990s, then-Foreign Minister Lloyd Axworthy threw his weight, first behind a new multilateral treaty banning anti-personnel landmines and then behind the creation of a permanent international criminal court. Today, a Canadian, Philippe Kirsch, serves as the first president of that judicial body. Another Canadian, Louise Arbour, is the UN High Commissioner for Human Rights.

Humphrey, Pearson, Dallaire, Axworthy, Kirsch, Arbour -- great names, Canadian names, that epitomize the pursuit of justice and dignity for all.

For decades, the Canadian government - or, rather, previous Canadian governments -- took international human rights and the laws of war seriously.

In 1976, Canada was one of the first countries to ratify the Optional Protocol to the International Covenant on Civil and Political Rights. In 1977, Sandra Lovelace, a Maliseet woman from New Brunswick, used this mechanism to file a complaint against Canada with the UN Human Rights Committee. She alleged that the Canadian government had violated international law when it stripped her of her status and rights under the Indian Act after she married a non-native man.

The Human Rights Committee upheld her complaint. And the Canadian government responded by doing the right thing: amending the Indian Act to make it consistent with international human rights standards.

Today, Sandra Lovelace sits as a Senator in the Canadian Parliament.

More than lip-service

In 1993, members of the Canadian Airborne Regiment tortured and killed a teenager during a peacekeeping mission in Somalia. Their actions were violations of international humanitarian law and the Canadian government responded accordingly. Several paratroopers were court-martialled for their role in the atrocities; one served five years in jail. And, in a move that signalled just how serious the offences were, the entire Canadian Airborne Regiment was disbanded.

Even this was arguably not enough; a commission of inquiry found that most of the senior officers involved in the deployment had failed in the performance of their duties, but none of them were tried and the commission was prematurely shutdown. Still, much more than lip-service was paid to the rules governing the treatment of detainees.

Canada also took the protection of civilians seriously when it came to the selection of military targets. During the 1999 Kosovo War, Canadian CF-18 fighter pilots, who train with their American counterparts, were never assigned as wingmen to them.

Our pilots were not so assigned because Canada has ratified the First Addition Protocol to the 1949 Geneva Conventions, while the United States has not. Canadian pilots are, therefore, subject to more stringent requirements concerning the protection of civilians. Accordingly, they could not be counted on to respond to some threats, such as anti-aircraft fire coming from a school or hospital, in the same way that an American pilot would. While the American pilot would attack the source of the anti-aircraft fire, the Canadian pilot would -- quite properly -- turn his plane on its tail and leave.

The 9/11 shift

After September 11, 2001, there was a discernable change of approach on the part of the Canadian government to these and other rules.

During operations in Afghanistan, Canadian soldiers were ordered by their American commander to lay anti-personnel landmines around their camp. When the Canadians refused -- citing our obligations under the 1997 Landmines Convention -- American soldiers, who are not subject to the same restrictions, laid the mines instead.

The fact that American, rather than Canadian, soldiers laid the mines makes it possible for the Canadian government to argue that there was no violation of the convention. Our government interprets the prohibition on the "use" of anti-personnel mines as not extending to reliance on mines laid by others -- providing that Canadian soldiers do not request the mines be laid.

In my view, this is a strained interpretation and hardly one that reinforces our claim to be the leading proponent of the total elimination of anti-personnel mines. For the same reason, I am concerned that Canadian forces at Bagram Airbase near Kabul have benefited from the protection provided by anti-personnel landmines laid by Soviet forces during the 1980s.

Handing over detainees

Then, there is the issue of detainees. In January 2002, Canadian soldiers captured suspected Taliban and al-Qaeda fighters in Afghanistan and handed them over to U.S. forces. The transfers took place despite the fact that U.S. Defence Secretary Donald Rumsfeld had publicly refused to convene the "status determination tribunals" required by the Third Geneva Convention of 1949, to investigate whether individuals captured on the battlefield are prisoners of war. Canada, by choosing to hand the detainees over, also violated the Third Geneva Convention. The transfers did not, however, violate Canada's obligations under the 1984 Torture Convention, since there was no reason to believe that U.S. forces would mistreat the detainees.

Today, we know better. Photographs, news reports and official investigations into abuses at Abu Ghraib Prison in Iraq, Bagram Air Base in Afghanistan and Guantanamo Naval Base in Cuba indicate that, at best, the U.S. military has failed to educate its soldiers about human rights and international humanitarian law. At worst, the revelations suggest a policy of law-breaking that extends all the way up the chain of command, to the Secretary of Defence and perhaps the commander-in-chief himself.

The denial of access to legal counsel, the removal of detainees from occupied Iraq (in blatant violation of the Fourth Geneva Convention), and leaked legal opinions that seek to justify torture provide additional cause for concern.

Just last month, television footage appeared showing a group of U.S. soldiers burning the bodies of two dead Taliban fighters. Desecrating the bodies of dead opponents is a war crime. At the same time, the American Civil Liberties Union reported autopsies on 44 prisoners who died in U.S. custody in Iraq and Afghanistan indicated that 21 were victims of homicide. Killing a detainee is a war crime.

Republican Senator John McCain, who spent five and a half years as a prisoner of war in Vietnam, and was tortured there, has been the strongest advocate within the United States for respecting the rights of detainees. Last month, McCain sponsored a bill in the U.S. Senate that would bar cruel and degrading treatment of any prisoners in U.S. custody. The bill has been fiercely opposed by Vice-President Dick Cheney, who suggested a compromise that would have seen the CIA excluded from the prohibition.

Despite Cheney's objections, the Senate voted 90-9 in favour of McCain's bill. Yet Congress will prevail, since President Bush has indicated that he will veto the legislation if it is passed by the House of Representatives, which seems likely.

'American gulag'

Then there is the American gulag. Earlier this month, the Washington Post reported that the CIA was operating a series of covert prisons-so-called "black sites"-in a number of foreign countries, including in Eastern Europe.

According to the Post, "Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long." Worse yet, "CIA interrogators in the overseas sites are permitted to use the CIA's approved 'Enhanced Interrogation Techniques,' some of which are prohibited by the U.N. convention [on torture] and by U.S. military law."

The techniques include "waterboarding", whereby a prisoner is made to believe that he or she is drowning. In addition to covert prisons, the United States also subcontracts interrogations to the notorious intelligence services of Egypt, Jordan and Syria. This practice-referred to as "extraordinary rendition"-has resulted in the torture of a number of Canadians, including Maher Arar, Abdullah Almalki, Ahmad El Maati and Muyyed Nureddin.

Earlier this year, Professor Stephen Toope, formerly Dean of Law at McGill University, was retained as an independent fact-finder by the Canadian judicial inquiry into the Arar affair. Toope determined conclusively that Arar had been tortured, including by being subjected to 18 straight hours of interrogation during which he was beaten on his palms and wrists with a steel cable two inches thick, and by being confined for 10 months to a cell three feet wide, by six feet long, by seven feet high.

Toope concluded: "The effects of that experience, and of consequent events and experiences in Canada, have been profoundly negative for Mr. Arar and his family. Although there have been few lasting physical effects, Mr. Arar's psychological state was seriously damaged and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been devastated." Toope added, with reference to Arar's battle to clear his name: "Mr. Arar strikes me as a person with what one might describe as moral courage."

For more than one year, the Canadian government resisted pressure to establish an inquiry into possible involvement by the RCMP or CSIS in Arar's rendition and torture and would successfully have resisted were it not for the determined efforts of Arar and his wife, Monia Mazigh.

It is still resisting establishing an inquiry into what happened to Almalki, El Maati and Nureddin, even though Toope found all three to be credible witnesses.

After Arar

Fortunately, we now know something of what happened.

In September 2004, an internal RCMP investigation revealed that at least one of their officers learned of the U.S. plans to deport Arar before he was flown to the Middle East, but did not immediately convey this information to other officers. The same internal investigation concluded that RCMP officers considered and then rejected the idea of going to New York, where Arar was first arrested, to question him because none of their own aircraft were available and commercial flights were too expensive!

Earlier this year, in testimony before the Arar Commission, Superintendent Michel Cabana, the senior officer in the RCMP investigation into Arar, said they later suspected he was being tortured but nevertheless offered to share their information with the Syrians. Cabana said, "If all my supervisors around the table and all my seniors, people more senior than me, think that it's my mandate and protecting the Canadian public, I will go forward and share the information."

We're still awaiting the final report of the Arar Commission, more than two years after Arar was released. In the interim, the Canadian government has provided no financial assistance to the Arar family, or to the other Canadian torture victims.

It is in this broader context that we must assess the announcement, just two months ago, that Canadian soldiers in Afghanistan have again acquired detainees and again transferred them to U.S. custody.

The full scope of the Geneva Conventions no longer applies to Canada's operations in Afghanistan, because our soldiers are there with the full consent of the sovereign government in Kabul. But Canada is still bound by a provision, "Common Article 3," that applies to armed conflicts which are "not of an international character occurring in the territory of one of the High Contracting Parties." Afghanistan is one such party, having ratified the Conventions in 1956.

Common Article 3 stipulates that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms," are absolutely protected from "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." Common Article 3 also proscribes "outrages upon personal dignity, in particular, humiliating and degrading treatment."

Canada, by transferring detainees to a foreign military that has recently committed violations of precisely this kind, is risking complicity in breaches of the Geneva Conventions.

Toying with torture

We're also taking chances with the Torture Convention, Article 3 of which decrees that "no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Just last week, in a report presented to the UN General Assembly, the UN Special Rapporteur on Torture singled out Canada and five other countries for violating human rights conventions by deporting terrorist suspects to countries, such as Egypt and Syria, where they may have been tortured.

Given what we now know about practices at Abu Ghraib, Bagram, Guantanamo and elsewhere, the possibility that our detainees will be tortured in U.S. custody is very real-as real, perhaps, as if we sent them to Syria.

The UN Committee on Torture has stated that the term "another state" in Article 3 of the Torture Convention encompasses any additional country to which a prisoner might subsequently be transferred. For this reason, transferring detainees to the Afghan authorities will not relieve Canada of responsibility, since Kabul may be expected to comply with a U.S. request for custody.

Transferring our detainees to U.S. or Afghan custody might even violate the Canadian Charter of Rights and Freedoms, which safeguards "security of the person" and affirms that "everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

The Supreme Court of Canada has held-in the February 2001 case of Burns and Rafay-that extraditing an accused murderer to face capital punishment would violate the Charter. Consequently, the Charter's provisions would seem to apply to transfers of detainees from Canadian custody in Afghanistan, especially if the death penalty might be applied, but also if torture were possible.

According to the Department of National Defence, Canada has received assurances from the United States that any detainees received by it will be treated properly. This is insufficient. Torturing governments always deny and seek to conceal their actions. What matters is the recent track record of the United States.

'Expediency is no excuse'

Defence Minister Graham says that Canada must transfer detainees to U.S. custody because we lack the facilities to hold them and that building such facilities would be impracticable. I disagree. Expediency is no excuse for violating fundamental international human rights and international humanitarian law. If compliance requires building our own detention facilities, so be it. As the eighth largest economy in the world, this is something we can afford.

The real question is whether we're prepared to stand up to our southern neighbour, even when it's torturing people.

The favourite argument of those who advocate following in Washington's footsteps, whatever it decides to do, is that the Americans will do whatever they want regardless of what we say. Moreover, so the argument goes, with 86 percent of our exports going to the United States, we've a great deal to lose by opposing their policies.

The argument fails on multiple counts. First, Canada is an influential country in its own right. We've the world's second largest territory, a massive share of its natural resources, a highly educated, healthy and remarkably harmonious population with strong fiscal foundations. Our influence is reflected in the fact that we're a member of the G-7 group of leading industrialised countries as well as the "Quad" negotiating group in the WTO.

In fact, we're the United States' largest trading partner -- as well as its largest single supplier of both natural gas and oil. And our influence is augmented by our middle-power tradition of multilateral leadership, which has always included promoting the peace and defending human rights.

Second, when Canada stands up to the United States, it rarely incurs a penalty. In the last three years, Canada stayed out of both the Iraq War and missile defence. Instead of losing, we gained from these decisions, by avoiding the quagmire in Iraq and signalling to other countries that Canada remains an independent country-open, among other things, to its own diplomatic and trading relations.

Canada's opportunity

Just last month, Canada scored a major victory with the adoption of a multilateral convention on the protection of cultural diversity at UNESCO, the United Nations Educational, Scientific and Cultural Organization in Paris. The new convention, which will help keep Canadian content requirements exempt from unrestricted free-trade, was adopted over the objections of the United States. And it would never have been proposed, let alone adopted, had Canada meekly followed U.S. policy on that issue.

In terms of fundamental human protections, the recent pattern of law-breaking by the United States creates an opportunity for Canada. For decades, Washington provided considerable leadership with regard to international human rights and international humanitarian law. In the last four years, that role has been abdicated, opening space for a determined, experienced, well-minded middle power such as Canada. But if we're to exercise leadership on this or any other international issue, we have to be on our best behaviour-and not let standards slip in the way they have next door.

Those standards were set by a generation that lived through two world wars, the rise and fall of fascism in Germany, Italy and Japan and the Holocaust. Their commitment to the rules I've discussed today finds expression in the first three stanzas of the UN Charter of 1945:

We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, ...

There you have it-the prevention of war, protection of human rights and promotion of international law-three foundational pillars of the post-war international order, all of which came together in the Universal Declaration of Human Rights of 1948 and the four Geneva Conventions of 1949.

Democracy is not a spectator sport. Please contact Bill Graham, our Minister of National Defence, and tell him what you think about our soldiers transferring detainees to U.S. or Afghan custody. All of his contact details are on his website.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He is the author of War Law: Understanding International Law and Armed Conflict (Douglas & McIntyre, 2005).

Frederick Clinton Cronkite, for whom this lecture was named, was Dean of the University of Saskatchewan at Saskatoon from 1929-1961, a specialist in public law, and an adviser to Tommy Douglas when he was Premier of Saskatchewan from 1944 to 1961.  [Tyee]

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