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Canadian soldiers may be subject to war crimes charges


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Hmmmm. Do ya suppose that it was to avoid having to deal with a recognized court, that the U.S. decided not to sign on to the agreement creating the International Criminal Court in the Hague? [color:purple]Unfortunately, Canada has more of a conscience, and we DID sign on, so we are now under the gun...

Canadian soldiers may be subject to war crimes charges

CanWest News Service

Mon 10 Apr 2006

Byline: Dave Pugliese

Dateline: OTTAWA

Source: CanWest News Service; Ottawa Citizen

OTTAWA - Canadian 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


"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.

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.

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


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.

Attaran said Hillier signed the agreement even though the Afghan

government's own human rights commission warned in 2004 that the torture of

prisoners is "routine."

That agency, the Afghan Independent Human Rights Commission, monitors the

conditions of detainees, a role recognized under the arrangement signed by

Hillier. But in its report the AIHRC wrote: "Torture continues to take place

as a routine part of police procedures. The AIHRC has found torture to occur

particularly at the investigation stage in order to extort confessions from


Louise Arbour, a Canadian who is currently the UN's high commissioner for

human rights, reached similar conclusions in her report in March. In

addition, the U.S. State Department warned in March that Afghan local

authorities "routinely" torture detainees, Attaran noted.

Byers said the agreement fails to safeguard Canada's obligations under the

Geneva Conventions, the 1984 UN Torture Convention and a statute of the

International Criminal Court.

However, the U.S.-based agency, Human Rights Watch, has noted there are

numerous safeguards in the International Criminal Court to prevent frivolous

or politically motivated cases from being brought against western troops. In

addition, the UN Security Council can adopt a resolution suspending the

court from investigating or prosecuting any crime, according to the agency.

Byers said while some may consider the likelihood of Canadian soldiers being

charged by the international court as remote, he noted any organization

could petition the chief war crimes prosecutor to look into the actions of

the soldiers.

The court has so far focused on abuses in wars in Africa.

The U.S. government opted out of supporting the court for fear its troops or

political leaders may one day be charged with war crimes. Canada, however,

played a key role in the development of the court.

Byers said he believes the agreement Hillier signed allows Canada "to

pretend to do a better job" in handling detainees while at the same time

allowing for important prisoners that may be captured by Canadian troops to

eventually end up in U.S. hands.

Canadian military officers, however, have continually said they are

confident any detainees turned over to the U.S. would be treated humanely.

So far, more than 100 detainees from Iraq and Afghanistan have died in U.S.

custody. The Pentagon acknowledges 27 of those cases are suspected or

confirmed homicides. Some of the individuals died while being interrogated.

Byers said Canada should operate its own detention facility, allowing U.S.

officials access to detainees but with interrogations conducted in the

presence of an RCMP officer.

Ottawa Citizen

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You can almost see the question on the poll - "Under which international treaty would you prefer to be blown to little bits?"

Not to be too glib; these treaties can spare some even worse atrocities, if only everyone would abide by them. The US still seems to fail to see the point - by abiding by conventions like Geneva, etc., it's a way of better guaranteeing that their own soldiers who are captured are treated more or less decently.


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