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‘We have no worries about the possibility of prosecution’


 

On May 31, 2006, two days before the Canadian Press reported an estimate that 30 percent of transferred detainees were tortured, the Globe published a story from Washington after an interview with Gen. Michel Gauthier. He explained, regarding the Geneva Conventions, that detainees are “are not entitled to prisoner-of-war status but they are entitled to prisoner-of-war treatment.” Gordon O’Connor, the defence minister at the time, seemed to split the same difference when asked in the House about Gen. Gauthier’s comments.

Perhaps most interesting, in the current context, is the observation at the very end of that piece.

Gen. Gauthier said there is no risk that ordinary soldiers or junior officers could face war-crimes charges, even if detainees handed over to the Afghans were tortured or killed. “Our intention certainly isn’t to leave junior folks hanging out to dry at all on this,” he said. “We are on firm legal ground . . . we have no worries about the possibility of prosecution . . . or allegations of criminal wrongdoing for having transferred detainees.”

Full story after the jump.

Troops told Geneva rules don’t apply to Taliban
The Globe And Mail
Wed May 31 2006
Page: A1
Section: International News
Byline: Paul Koring
Dateline: WASHINGTON

WASHINGTON — Canadian troops in Afghanistan have been told the Geneva Conventions and Canadian regulations regarding the rights of prisoners of war don’t apply to Taliban and al-Qaeda fighters captured on the battlefield.

That decision strips detainees of key rights and protections under the rules of war, including the right to be released at the end of the conflict and not to be held criminally liable for lawful combat.

“The whole purpose of those regulations is to know if Geneva applies,” said Amir Attaran, a law professor at the University of Ottawa who has been pressing the Defence Department for details of its detainee policy for months.

The 1991 Canadian regulations — developed during the Persian Gulf war — included provisions to hold tribunals to determine a detainee’s status under Geneva if there is any doubt.

Captured fighters don’t deserve these rights because this isn’t a war between countries, says Lieutenant-General Michel Gauthier, who commands the Canadian Expeditionary Forces Command and thus oversees all Canadian Forces deployed abroad.

“They are not entitled to prisoner-of-war status but they are entitled to prisoner-of-war treatment,” he said, asserting that all detainees are humanely treated.

“The regulations . . . apply in an armed conflict between states, and what’s happening in Afghanistan is not an armed conflict between states. And therefore there is no basis for making a determination of individuals being prisoners of war,” he said.

Since Ottawa first sent fighting forces to Afghanistan after the Sept. 11, 2001, terrorist attacks, the government has said that anyone captured by Canadian Forces is treated humanely. For years, detainees were quickly turned over to the U.S. military. But, since last December, a new agreement with Kabul means Canadian troops now turn detainees over to the Afghan military, a move some have criticized because of the Afghans’ uneven record of observing human rights.

The decision to ignore the regulations without a legal test of whether detainees in Afghanistan are entitled to PoW status puts Canada “in a very odd situation . . . It’s completely irregular,” Prof. Attaran says.

He believes the government’s position that Geneva doesn’t apply may be correct but it needs to be tested in court.

According to Canada’s Prisoner-of-War Status Determination Regulations, “the commanding officer of a unit or other element of the Canadian Forces shall ensure that each detainee is screened as soon as practicable after being taken into custody to determine . . . whether or not the detainee is entitled to prisoner-of-war status.”

Last updated before Ottawa sent a field hospital to Saudi Arabia in the middle of the Persian Gulf war, the regulations are designed to make sure Canadian soldiers understand and correctly apply the 1949 Geneva Conventions with respect to detainees.

But Canada, following the Bush administration’s lead in the United States, had decreed that there are no lawful combatants among the enemy in the current conflict and no screening was required.

Gen. Gauthier concedes that the change in policy could open the door to criminal charges being laid against Taliban fighters.

If a captured enemy fighter is implicated in killing a Canadian soldier — for instance, the Taliban fighter who launched the rocket-propelled grenade that killed Captain Nichola Goddard on May 17 — Ottawa might order him charged with murder and tried.

“I would seek guidance that clearly would come from outside the Defence Department if we wished to pursue this any further from a prosecutorial basis,” the general said.

The change aligns Canada’s position on the criminal culpability for battlefield violence with that of the United States. Omar Khadr, the only Canadian held at the U.S. prison in Guantanamo Bay, Cuba, is charged with murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier.

Canada has provided few details on the fate of detainees its forces have handed over to U.S. authorities since 2002; neither the number nor the names have been made public. All the government has said is that none are currently at Guantanamo Bay. But it’s unknown whether they have been released, or are being held at the Bagram Air Base in Afghanistan or in secret prisons in Eastern Europe.

Similar secrecy cloaks what happens to detainees handed over to Afghan authorities by Canadian Forces fighting in Kandahar province. Gen. Gauthier indicated such transfers occur regularly, if not daily then several times a week. But no numbers are publicly available.

“Our default setting is transfer,” he said. “We haven’t held anybody for more than a few hours and we would prefer not to.”

Canadian troops do screen detainees — determining on the spot whether a captive poses a threat and should be handed over to the Afghan authorities or should be freed. Gen. Gauthier said the decision to release those not considered dangerous happens routinely. Both decisions are checked up the chain of command, he said.

Prof. Attaran says the military’s policy on transfers doesn’t absolve Canada if detainees are then mistreated, tortured or killed.

He argues that if the government wants to be involved in this conflict, then it should take responsibility for those its soldiers detain, at least until a court or tribunal determines it can properly transfer them.

“It seems like they want to treat them as though they are radioactive,” he said.

But Gen. Gauthier said there is no risk that ordinary soldiers or junior officers could face war-crimes charges, even if detainees handed over to the Afghans were tortured or killed.

“Our intention certainly isn’t to leave junior folks hanging out to dry at all on this,” he said. “We are on firm legal ground . . . we have no worries about the possibility of prosecution . . . or allegations of criminal wrongdoing for having transferred detainees.”


 

‘We have no worries about the possibility of prosecution’

  1. Canadian troops in Afghanistan have been told the Geneva Conventions and Canadian regulations regarding the rights of prisoners of war don't apply to Taliban and al-Qaeda fighters captured on the battlefield.

    Notwithstanding the "legally" acceptable argument, what if they are not "Taliban and al-Qaeda fighters" but simply farmers and peasants who happened to be in the wrong place at the wrong time?

  2. How would they prove they are farmers or peasants? Hillier said they were killers and its not like farmers and peasants in Afghanistan can hire top lawyers.

  3. What if they're not even enemies?

  4. No – unless the wall had been constructed out of recently fired guns.

  5. I'll give the CF the benefit of doubt on this one. I really don't think they were haphazardly arresting noncombatants.

  6. And it's not like farmers shoot guns. That's why rural Canadians are strong proponents of long gun control, after all.

  7. Reminds me of a time many years ago in N. Alberta/BC. A construction camp (250?) being run for an O&G company in the middle of nowhere was designated as a dry camp (no booze). After a number of late night parties, empty bottles in the trash cans, and the wafting of marijuana down the hallways, one of the more zealous members of the O&G company management decided to do something about it (the guests when signing in acknowledged in writing it was a dry camp- a condition of their stay). So, signs went up reminding residents that it was a dry camp.

    Two days later, they flew in with choppers off duty law enforcement with a drug sniffing dog. While the crews were off working, the dogs walked the premises – and were escorted into the rooms. Any individual with traces of marijuana on their clothes (or booze in their cupboards) was banned from the camp, and effectively fired (there was no where else to stay). Eventually, they were all hired back, because you couldn't prove the residue had gotten onto their clothes through recreational time when they were off on the weekends, back in town, or outside of the camp.

    Same thing here – very questionable test if the yeah/nay positive results in being escorted off to the dungeons…

  8. In the early stages of conflict, erring on the side of caution (which may mean rounding up more rather than less) might also have existed. I think Colvin's testimony suggested many were not high value detainees, quickly released, or words to that effect.

  9. Its interesting that the right wing crazies are using this gun powder residue test as proof of guilt.

    So much for gun owners rights eh boys? Maybe we should go out to rural Canada and start testing people for gun powder residue. If it comes up positive, I suppose they must be with dem der terrorists!

  10. Colvin was speculating. He had no evidence whatsoever that Canadian Forces were arresting noncombatants. Hillier (who presumably had more direct knowledge of the situation) flatly rejected this hypothesis.

  11. Lots of presuming going on there.

  12. Who says there was anything haphazard about it.

    The point seems to be that they had some suspicion and hauled them in. Fine. I have no problem with that. There is increased safety since some possible Taliban supporters are locked up. But we don't know for certain that they are Taliban supporters so let process take over from there.

    Problem is that point undermines the claim that "they are just Taliban who want to murder our troops so who cares if they are tortured" argument from the right.

  13. I don't think the two situations are analogous. Canadian soldiers weren't using dogs, they were using chemical kits to detect telltale powder burns and explosive residue on the hands and clothes of individuals who had recently surrendered in combat zones.

    I haven't seen any evidence that suggests that the tests were flawed, or that they produce false positives.

  14. He had as much or more evidence and it has since been corroborated that non-Taliban combatants were rounded up. Most of these were released. Some were not.

  15. I seem to recall a story (G&M?) where the alleged killers of some Canadian troops would not be allowed to be prosecuted in Canada as this would require that security/intelligence secrets would be divuilged. Cell phone traffic that was intercepted/monitored pointed the figer not at AlQaeda nor the Taliban, but at members of a supposedly friendly war lord and his clan. Or is my memory faulty?

  16. Do these tests have a time stamp/half life? If not, completely analagous.

  17. Ever seen middle eastern people shoot their guns off into the air as a form of celebration? Are you sure the practice doesn't exist elsewhere?

  18. If it floats like a duck, and weighs the same as a duck, it must be a witch!

  19. In combat zones? Generally speaking people who fire guns in a combat zone are combatants, not revelers.

    I'm sure you're imagining a hypothetical situation where Canadian troops detained innocent gun-toting civilians who were firing into the at a wedding party or something, but it's not like the CF on the tests alone – it also comes down to the decisions made by officers on the ground, interviews conducted through interpreters, etc. Also, for every detainee who was turned over to the Afghan prisons, I'm sure there were many more who were briefly held, then released because our soldiers made a judgment call.

  20. A combat zone today, could have been a wedding site yesterday.

    There very well, and should be, contributing factors that went into the final decision. However, it seems to me that the gun powder test , as I understand it, was in fact a litmus test – be it at the front, middle, or end of the process.

  21. I think you're right, CR. People are just used to statistics as for Bagram and Abu Graib, where something like 4 in 5 inmates were non-guerrillas. But in the case of Bagram, that's because the US was arresting people on suspicion of Al-Qaeda connections (whence the apparently true tales of neighbours getting revenge on each other by turning each other in as OBL); and in Iraq they were at one point actively interrogating more or less random Sunni young men, because early on their intelligence about the Iraq insurgents was literally nil.

    Both those scenarios are quite different from the CF taking battlefield prisoners. For one thing, if you're not fighting in the battle, you tend to flee the area, often well in advance. And there's the gunpowder test.

    The issue of torture, of course, is just as relevant if it happened to be "the worst of the worst" we were arresting. First, from the moral angle. But, second, from a very practical angle, in that the Taliban are less likely to surrender if they know surrender means torture. Our guys are pros, of course, and I don't recall hearing of lives lost on our side while clearing out pockets of Taliban who refused to surrender, but theoretically torture very much does endanger our troops in the field. At least, I'd much prefer, if I were in the infantry, to not risk my life lobbing a grenade at a position that should have surrendered already.

  22. Yes, I will too. That doesn't change anything about the possible torture of detainees though.

  23. People are just used to statistics as for Bagram and Abu Graib, where something like 4 in 5 inmates were non-guerrillas.

    Where do those statistics come from? An inquiry of sorts, perhaps?

  24. I completely agree with the moral angle, and I partly agree with the practical angle, wit hthe following caveat:

    While torture allegations may theoretically be endangering our troops, I think most Taliban already expect to be brutally treated if they get captured. It's probably their default assumption – it's the way of the world as they know it, after all. I also don't think the Taliban is even aware of the whole Canadian detainee controversy. (I could be wrong, though)

  25. I forget how we first became aware of it, back in 2004 I suppose it was, but nowadays we have things like the commanding officer at the prison saying that 90% of detainees there were innocent.

    "generally 90 percent of the security detainees being held at Abu Ghraib were just innocent, had no information at all."

  26. Can you find an ad for a field GSR test that claims 100% accuracy? I can't. Most of them advertise 90% accuracy which implies 1 in 10 are either false positives or false negatives. From what I've read, false positives are possible.

  27. Hillier (who presumably had more direct knowledge of the situation) flatly rejected this hypothesis.

    Yes, and it was extremely helpful to get Hillier's objective, dispassionate, disinterested perspective on the matter… ;)

  28. Surely, even the armchair brigade-majors who've taped portraits of Rick Hillier onto the doors of their gym lockers understand the phrase "the fog of war".

    Battlefields are profoundly confused and confusing places, and low-level, counter-insurgency theatres are arguably the most confusing of all. Anyone who really believes that 100% of detainees handed over by our forces to Afghan torturers were hardened, inflexibly committed Taliban marauders also believes that some supernatural force–perhaps the demiurge, perhaps Merlin– banished the fog of war, completely, from our operational sectors.

    Fair enough, but those of us in the reality-based community will continue to assume that some tragic mistakes were made.

  29. Surely, even the armchair brigade-majors who've taped portraits of Rick Hillier onto the doors of their gym lockers understand the phrase "the fog of war".

    Battlefields are profoundly confused and confusing places, and low-level, counter-insurgency theatres are arguably the most confusing of all. Anyone who really believes that 100% of detainees handed over by our forces to Afghan torturers were hardened, inflexibly committed Taliban marauders also believes that some supernatural force–perhaps the demiurge, perhaps Merlin– banished the fog of war, completely, from our operational sectors.

    Fair enough, but those of us in the reality-based community will continue to assume that some tragic mistakes were made.

  30. Of course, you're right that some tragic mistakes were probably made, given the fog of war. The question is whether the CF took reasonable precautions to avoid such mistakes. (I assume they did, but I'm an optimist at heart).

    Hopefully the Government will get its act together, stop baffling us with BS, and release the appropriate documents so that we can judge for ourselves whether Canada's government and military leaders acted correctly in 2006/07 with regards to the detainee transfer issue.

  31. That's why Cdn soldiers test for gunpowder residue.

  32. …what if they are not "Taliban and al-Qaeda fighters" but simply farmers and peasants who happened to be in the wrong place at the wrong time?

    Well, my inquisitive friend, they would be enemy non-combatants rather than enemy combatants and thus even farther outside the Convention's jurisdiction.

  33. Because in a country like Afghanistan, there's vitually no possibilty that someone could get gunpowder residue on them from leaning against a wall somewhere.

  34. By the fact that you are asking a question, you are obviously a Taliban dupe who hates our soldiers. Why do you hate Canada so much?

  35. Indeed. Thx

  36. The General is right that whether or not detainees have "prisoner of war" status under the Genva Conventions, ALL prisoners have minimum rights under Common Article 3, as decided by the US Supreme Court and there is no reason the Canadian Supreme Court would see it differently. In fact they've referred to the decision in other cases.

    Those minimum rights include a right to humane treatment and a right to a trial if accused of a crime – according to some process that would be acceptable to "all civilized" people. That's NOT a big order.

  37. It was Bush who decided to treat all detainees as accused criminals, either accused of war crimes, if caught in battle (like Khadr) or accused of a civilian crime, like people who blow up civilians on purpose, e.g. 9/11.

    He put them in Guantanamo thinking they would be out of reach of ALL laws, but the Supreme Court shot that idea down. This is why they have minimum rights (humane treatment and a trial).

    This complicates matters, in my opinion. US forces in Iraq are fed up with having to collect evidence on every prisoner they take because they all have to be tried as criminals, instead of just locking them up until the war is over, or until they are considered safe to release, as with prisoners of wars.

  38. Obama said he would consider treating at least some people as prisoners of war and that makes sense to me. It's not clear to me why he didn't do that with Khadr who would qualify as much as anybody. The people in question don't fully meet the definition of "prisoner of war" under the Geneva Conventions but there's no reason for not adapting that, both the definition and the entitlements if necessary.

    This would mean he could be just detained without a trial until it's decided safe to release him. He could return to Canada for detention here. And the issue of possible release could then be dealt with subsequently. Trying him for war crimes committed, especially at age 15, because he was caught after a battle where somebody was killed, especiially with no solid evidence he was responsible, is ridiculous.

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