The Board of Inquiry report (III)

Sebastien Jodoin, a law fellow at Amnesty International who is participating in the Military Police Complaints Commission proceedings, sent along some unsolicited thoughts on the BOI report late last week. When I asked if I might post those thoughts here, he sent along more thoughts.

Mr. Jodoin was previously cited in this space here. You can judge his credentials and music tastes here. He obviously has a particular perspective on this matter. Make of his thoughts what you will.

Today’s Board of Inquiry report raises more questions than it answers. Turning to the report itself, the Board arrived at a number of findings that are concerning. First, the Board found that there was confusion across the chain of command in the definition of detainees, which resulted in a failure to comply with the detainee process, including a failure to properly report and document events and to notify the ICRC. Second, the Board reported that CF members had limited confidence in the reliability and professionalism of Afghan authorities and formed the opinion that the practice of corporal punishments by Afghan authorities was common. Third, the Board found that a number of war diary records for the period from 13 May to 17 June 2006 could not be located and considered that this was “of very significant concern.”

Despite these and other troubling findings, the Board did not make any recommendations of any kind. Apparently, the Board concluded that the issues raised by these findings had since been addressed by changes in CF policies and orders. However, it is less than clear how the Board could have arrived at this conclusion on the basis of a review of policies and orders alone since the issue in this incident was one of policy implementation. Rather, the evidence that continues to come light is that problems in implementation of existing detainee policies and arrangements continue.

More broadly, the Board did not have the mandate to examine the flaws in Canada’s detainee policies and procedures and whether they meet Canada’s international obligations under the Convention against Torture and the law of armed conflict. The Board did not consider the possibility that the many other detainees transferred in the field, whose transfers were not documented and not notified to the ICRC, were likely tortured or mistreated in Afghan custody. The Board also did not consider the issue of why transfers were not suspended or stopped following this incident as well as concerns expressed by CF members, both of which would tend to indicate that transferred detainees were at a significant risk of torture or mistreatment in Afghan custody.

We know from this report that a few CF members on the ground, despite confusion in the chain of command and Canada’s flawed transfer policy, understood that this particular transfer was wrong. They might not understand the legal test under international law which justified their decision, but they appear to have understood it at an intuitive, ethical level. By contrast, it is distressing that senior government and military officials refuse to admit to the serious issues that plague Canada’s transfer policy and continue to place CF members in the difficult position of having to make these sort of decisions on the ground. Equally distressing is the government’s continuing refusal to call a full, public commission of inquiry capable of inquiring into the many systemic issues that have given rise to serious violations of international law regarding the treatment of detainees and making recommendations to improve Canada’s approach to detainees for future military engagements.