Rights and democracy

By Aaron Wherry - Friday, June 10, 2011 at 3:33 PM - 41 Comments

Speaking at this weekend’s Conservative convention, Jason Kenney explains the Conservative ethos.

“We don’t depend on the bloated bureaucracies of the nanny state; we thrive on our freedom and are upheld by the law,” he said. “We don’t assume that history began in the Summer of Love; we honour a tradition reaching back to the Magna Carta … Our adversaries were focused on the obsessions of the chattering classes – like Taliban prisoners – rather than the practical bread-and-butter concerns of hard-working families.”

Though neither are as old as the Magna Carta (established in 1215), both the Universal Declaration of Human Rights (adopted in 1948) and the Geneva Conventions (agreed to in 1949) predate the Summer of Love (1967).

Article 39 of the Magna Carta is translated as follows. Continue…

Where are they now?

By Aaron Wherry - Thursday, January 27, 2011 at 2:22 PM - 36 Comments

Immigration Minister Jason Kenney has hired Howard Anglin as his chief of staff.

In recent years, Mr. Anglin stepped forward to defend the Conservative government’s position that Omar Khadr was not a child soldier. In 2008, he testified before the subcommittee on international human rights.

In 2006, he and Alykhan Velshi, currently Mr. Kenney’s director of communications, penned a piece for National Review, in which they stated their objections to the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld.

The rest of Anglin’s writing for National Review is here. His writing for the Daily Caller is here.

Parliament will fight

By Andrew Coyne - Monday, December 21, 2009 at 12:10 PM - 263 Comments

We are not yet in a constitutional crisis over the government’s refusal to release the Colvin memos to Parliament, but we probably should be. A secretive and overbearing government has turned an ordinary political dispute into an extraordinary confrontation over the powers and privileges of Parliament. Unless some compromise is found, Parliament will fight, and Parliament will be right.

What began as a manageable controversy over the Harper government’s faltering attempts to deal with a problem it inherited from the Liberals—what to do with the prisoners our forces captured in Afghanistan—has been transformed, via the Conservatives’ reflexive paranoia and insularity, into a full-blown political debacle, complete with martyred whistle-blower, outraged former ambassadors, self-correcting generals, and befuddled ministers. And running throughout, a drumbeat of press reports contradicting virtually every aspect of the government’s story.

It now appears, contrary to the government’s repeated assurances, that at least some of the prisoners we transferred to the Afghan police and security services were tortured, or at least abused; that at least some of our troops knew this; and that serious concerns about the treatment of these prisoners, and about our own procedures for reporting on their whereabouts, were relayed to government and Defence officials, not only from Richard Colvin, the diplomat at the centre of the storm, but from multiple sources. Continue…

'We have in front of us a dilemma'

By Aaron Wherry - Wednesday, December 2, 2009 at 1:18 PM - 5 Comments

Yesterday’s House debate on an Afghanistan inquiry begins here, with contributions from Paul Dewar, Peter MacKay, Ujjal Dosanjh, Bob Rae, Jack Harris and Lawrence Cannon, among others. After turning to other business, the House resumed debate here. One argument of note: Peter MacKay would seem to agree with Gen. Michel Gauthier’s contention that the situation somehow falls outside the Geneva Conventions.

It is important to understand, first, that Afghan detainees are not prisoners of war. However, they are treated as if they were prisoners of war. We do not treat them differently, keeping in mind that they do not fit that definition.

John Geddes dealt with this yesterday.

In simpler times

By Aaron Wherry - Wednesday, December 2, 2009 at 12:23 PM - 16 Comments

A not disinterested observer passed on this QP exchange, from Feb. 6, 2002, yesterday.

Mr. Gilles Duceppe (Laurier—Sainte-Marie, BQ): Mr. Speaker, on January 29 the Prime Minister told the House that Canada had reached an agreement with the United States regarding the transfer and treatment of prisoners captured in Afghanistan that is based on compliance with the Geneva convention. However, if this agreement does exist, it is so vague that the Americans must now provide clarification. Did the Prime Minister, as head of a government, not act imprudently by authorizing the transfer of prisoners without having first received firm assurances from the United States that the Geneva convention would be respected?

Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speaker, I have been in politics for many years and I know that Canada, the United States, Great Britain and all western countries have always respected the Geneva convention. Therefore, it was not imprudent on the part of the government, in the context of our fight against terrorism, to side with a nation that was attacked and not become the defenders of terrorists, as the Bloc Quebecois has.

Years later, it’s difficult to say which part of the answer is more unsettling: Mr. Chretien’s suggestion that the Bloc is sympathetic to terrorism or Mr. Chretien’s assurance that the United States could be counted on to follow the Geneva conventions. The rest of the exchange is here.

How the Geneva Conventions applied in Afghanistan

By John Geddes - Tuesday, December 1, 2009 at 12:24 PM - 4 Comments

The interesting question of how the Geneva Conventions apply to detainees taken by Canadian troops in Kandahar and then handed over to Afghan authorities is the subject of this post by colleague Wherry.

Here’s what I take to be an authoritative answer from inside the Department of National Defence, from the consistently helpful Feb. 6, 2009, report of the military Board of Inquiry into In-theatre Handling of Detainees: Continue…

'We have no worries about the possibility of prosecution'

By Aaron Wherry - Tuesday, December 1, 2009 at 12:10 PM - 40 Comments

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. Continue…

The Danish experience

By Aaron Wherry - Wednesday, November 25, 2009 at 12:58 PM - 5 Comments

Further to this, it seems the Danish government is currently being sued by a former detainee who was seized by Danish forces and turned over to the Americans.

The Danish defence ministry went on trial here Tuesday in a case brought by a man who claims he was tortured while a prisoner in Afghanistan. Ghousouallah Tarin has alleged he suffered torture at the hands of US troops in Afghanistan after he was turned over to the Americans by Danish soldiers…

According to Tarin’s lawyer, Tyge Trier, the central question in the trial is what the Danish government knew about the US treatment of Afghan prisoners, which his client alleges was in violation of the Geneva Conventions on prisoners of war.

The burden of proof (II)

By Aaron Wherry - Wednesday, November 25, 2009 at 11:04 AM - 10 Comments

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. Continue…

What they said

By Aaron Wherry - Sunday, November 22, 2009 at 7:42 PM - 2 Comments

Richard Colvin testified that he and his colleagues in the field began informing Ottawa about the treatment of detainees in May 2006. He left Afghanistan in October 2007 and most of his testimony covered events in between.

Herein, in the first of three posts covering relevant public comments made during Question Period, a collection of QP exchanges from April 5, 2006 to October 2, 2006. Continue…

'At this point there is no program to vaccinate detainees'

By Aaron Wherry - Tuesday, November 10, 2009 at 9:30 PM - 16 Comments

Global gets a statement from National Defence.

“Vaccinations against H1N1 are being offered to members of the Canadian forces and Canadian civilian personnel deployed in Afghanistan. The Canadian forces are providing appropriate medical care to those in their custody. Offering vaccinations to detainees for H1N1 would be based on medical need and at this point there is no program to vaccinate detainees. No vaccine has been provided to any detainee.”

Canadian Press gets the same statement and reviews the claims.

About those Geneva Conventions (II)

By Aaron Wherry - Tuesday, November 10, 2009 at 6:55 PM - 5 Comments

An exchange from last week’s meeting of Parliament’s special committee on the mission in Afghanistan. The full and official transcript of the meeting is not yet online.

Mr. Laurie Hawn (Edmonton Centre – Conservative – Parliamentary Sec. to Minister of Defence): You mentioned that the Afghan prisoners are not POWs but we’re treating them like POWs. That suggests to me that we are perhaps going above and beyond what would be our legal international obligations. Is that a fair statement or not?

BGen Kenneth W. Watkin: One of the challenges with respect to, particularly contemporary armed conflict is so few are between states. The vast majority of the treaty law is with respect to one state fighting another state. With respect for instance to the four Geneva Conventions and in particular Geneva Convention 3 that deals with POWs and Geneva Convention 4 that deals with civilians, there’s a set treaty regime. There’s Common Article 3 to the four conventions which will provide for non-international armed conflicts.

There is a treaty and additional protocols to the Geneva Conventions which specifically deals with non-international armed conflict. In terms of customary international law which relies that assessment on the treaties themselves, that sets a well established and a high standard of treatment. Certainly the approach of the Canadian Forces is a matter of doctrine is to apply that high standard in terms of anyone who they detain and in that is standards of humanity and care in treating.

About those Geneva Conventions

By Aaron Wherry - Tuesday, November 10, 2009 at 4:44 PM - 35 Comments

The military says prisoners in Afghanistan will be offered the H1N1 vaccine. The military says this is in accordance with the Geneva Conventions. Health Minister Leona Aglukkaq says this is outrageous. Canadian Press says Canada doesn’t recognize the mission in Afghanistan as falling under the Geneva Conventions.

I confess some confusion. But here are the Geneva Conventions. And here is an excerpt from a joint statement issued a year ago by Prime Minister Stephen Harper and Dutch Prime Minister Jan Peter Balkenende.

First, we need to ensure security in the five southern Afghan provinces. This is where Canada has just recently transferred command of ISAF forces to the Netherlands. There is still hard work to be done there with boots on the ground. We are confident that Allies understand the importance of standing together and ensuring that ISAF has the forces, resources and flexibility for success in these provinces. It is our shared interest to always adhere to International Law. We operate in strict accordance with Geneva conventions. That will also improve NATO’s image in that part of the world.