The burden of proof (II) - Macleans.ca
 

The burden of proof (II)


 

Sébastien Jodoin, a public interest law fellow with Amnesty International in Ottawa, sends along a response to these questions.

To answer your question, under international law, the question is not whether the Canadian officials were presented with incontrovertible evidence of torture, the question is whether they were presented with evidence of the real risk of torture and what steps they took in response to this risk to preempt the perpetration of torture.

The U.N. Committee Against Torture, which has responsibility for ensuring state party compliance with the Torture Convention, has stated that the protections under the Torture Convention extend to detainees held by the military forces of a contracting party, regardless of where those forces are situated. The Committee considered this same armed conflict in Afghanistan and found that Denmark violated its non-refoulement obligation when it transferred detainees to the jurisdiction of another state.

He cites this report of the UN Committee Against Torture. The relevant paragraphs therein are as follows.

Non-refoulement

12. The Committee takes note of the information received that the Danish Special Forces captured 34 men and handed them over to allied forces during a joint military operation in Afghanistan in February-March 2002, in circumstances where allegations later emerged of ill- treatment while the men were in allied forces’ custody. The Committee also notes the State party’s assurance that it undertook a full investigation of the incident reaching the conclusion that it did not violate article 12 of the Third Geneva Convention by handing over the detainees. Finally, the Committee takes note of the State party’s assurances that all detainees were released shortly after their transfer to allied forces’ custody and that none of them were ill-treated while in the said custody.

13. The Committee recalls its constant view (CAT/C/CR/33/3, paras.4 (b)and (d), and 5 (e) and (f) and CAT/C/USA/CO/2, paras. 20 and 21) that article 3 of the Convention and its obligation of non-refoulement applies to a State party’s military forces, wherever situated, where they exercise effective control over an individual. This remains so even if the State party’s forces are subject to operational command of another State. Accordingly, the transfer of a detainee from its custody to the authority of another State is impermissible when the transferring State was or should have been aware of a real risk of torture. (art. 3)

With regard to the transfer of detainees within a State party’s effective custody to the custody of any other State, the State party should ensure that it complies fully with article 3 of the Convention in all circumstances.


 

The burden of proof (II)

  1. "To answer your question, under international law, the question is not whether the Canadian officials were presented with incontrovertible evidence of torture, the question is whether they were presented with evidence of the real risk of torture and what steps they took in response to this risk to preempt the perpetration of torture"

    The govt's line should be…we were fully cognizant of the real risk of torture. At no time did we attempt to play this down. And here are the real steps we took; steps we consider to be realistic and effective as can be expected in a combat zone…cue some evidence.
    Not…and over to you Colvin…present us with incontrivertable evidence that torture, that you personally witnessed, took place under our watch…and document it please.
    Even… what would you have done differently, would be an improvement…although that wouldn't necessarilly be Colvin's job either.

    ACs question: Why isn't the govt saying we fixed the problem? [ all be it a little slowly] the govt's main line? Very odd defence…still best to assume incompetence before malice.

  2. Exactly. The question isn't whether torture was known to be happening beyond all reasonable doubt, but whether there was sufficient evidence to suggest that it was likely. The latter should have led to an immediate halt of prisoner transfer to the Afghans.

    I have zero respect for international law (and negative respect for Amnesty International), but in this case Jodoin's assessment of the legality coincides with what I think is a fairly obvious ethical constraint.

  3. kcm asks why the Government has not been saying they fixed the problem. Well, actually Peter MacKay has said so on many occasions. The MSM doesn't seem to accept his assurances.

    • Except along with saying that they fixed it, he's also saying that there's no evidence there was a problem, and if there was evidence they weren't notified anyway.

      As Wells puts it, it's a bucket defense, and like any bucket defense, it reeks of being guilty but throwing up every excuse you have in hopes one will stick.

  4. ''.. the question is whether they were presented with evidence of the real risk of torture and what steps they took in response to this risk to preempt the perpetration of torture..''

    Risk of torture was evident in 2004, with detailed reports of torture in Afghan prisons by the Afghan Human Rights group.
    Common knowledge around the world.

    'what steps they took in response to this risk'
    stay tuned, 3:30 Rick Hillier will explain it to yah,
    and once the committee takes the muzzle off Mulroney,
    you will hear more.

    • There's no muzzle on Mulroney, I'm sure any news organization would be most interested in what he has to say. If, however, he would like to speak at a parliamentary committee, then he needs to submit to the authority of the committee to explore whatever it deems necessary and call who it pleases, when it pleases.

      Or is this a new Conservative approach, that you want unelected bureaucrats telling parliamentary committees what to do and when to do it?

      • Major backfire by the Cons:

        <blokquote>Fifty-one per cent of respondents said they believe Colvin's testimony to the committee last week. In stark contrast, only 25 per cent said they believe the government's contention that the diplomat's claims are flimsy and not credible…Moreover, fully 70 per cent said it's unacceptable that Canadian forces would hand over prisoners if it's likely they'll be tortured. No less than 60 per cent in any region and even a majority of Conservative supporters subscribed to this view.

    • The objections raised to Mulroney's testimony don't seem to be that he shouldn't speak, but that he shouldn't speak in a vaccuum. That is, if we're going to do an investigation and get all sides of the story, let's do it – letting the Government just present their defense without presentation of the full evidence for and against is, at best deliberately deceitful.

    • 'Risk of torture was evident in 2004, with detailed reports of torture in Afghan prisons by the Afghan Human Rights group"

      Wilson persists in lying, or at least obfuscating. We had no agreement to hand over prisoners to Afghan prisions prior to 2005. They were turned over to the US. Which may not turn out to be too great either…at least get your spin right Wilson.
      As an aside. Where did most of those US prisoners go? If they just went into the Afghan system then i guess Wilson is indirectly correct…although i doubt it was intended that way.

      • So you don't think that the use of torture in 2004 is reason to at least suspect there might be torture in 2005?