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Great White North

Canadian Troops May Be 'Subject to War Crimes Charges' in ICC

2006-04-11

anadian soldiers could be charged with war crimes in the International Criminal Court because of an agreement the government approved on the handling of detainees captured in Afghanistan, warns a report to be released today.

The legal opinion on the arrangement regarding prisoners, captured by Canadian troops and then turned over to the Afghan government, raises a number of red flags about the lack of safeguards to protect soldiers against prosecution. "Whoever negotiated this agreement did our soldiers a great disservice," said Michael Byers, an international law professor at the University of British Columbia, who wrote the opinion.

Read on, it wasn't the new government.

That report is one of two to be released today at a press conference involving Amnesty International, the Polaris Institute, an Ottawa-based think-tank, and legal experts.

The second report by University of Ottawa Prof. Amir Attaran, a constitutional human rights law specialist, also questions the detainee agreement that Chief of the Defence Staff Gen. Rick Hillier signed in Kabul in December. "The mere fact there is a possibility for Canadian troops to be charged demonstrates how fundamentally flawed this detainee transfer arrangement is," added Byers, author of the book War Law: Understanding International Law and Armed Conflict.

Conservative government and Liberal party officials, however, have dismissed any concerns about the agreement. Defence Minister Gordon O'Connor said last week he is satisfied with the pact and noted it met international law standards. "There is nothing in the agreement that prevents Canada from determining the fate of prisoners so there is no need to make any change in the agreement," O'Connor said.

Opposition leader Bill Graham, who was the Liberal's defence minister when the agreement was signed, approves the arrangement.

Of course he does.

Under international law Canada has an obligation to ensure any detainee is protected against torture, not only when they are transferred into Afghan custody but if they are sent onwards to a third nation, such as the U.S. Under a statute of the International Criminal Court, if soldiers transferred prisoners to another party knowing or even suspecting those individuals would be abused or tortured, then the troops, including their commanders who ordered the transfer, could one day face war crimes charges, according to Byers.

Unlike the Canadian Forces, the Dutch military has negotiated a more stricter agreement, Byers said. The Dutch military's agreement with the Afghan government provides its officers and diplomats the right to check on the condition of those originally captured by Dutch soldiers. The Dutch government would also be informed if the detainees are transferred to a third party. Canada's agreement does not provide for that.