Amnesty International was represented in this case by Paul Champ.
WHAT IS THIS CASE ABOUT?
Until late 2005 Canada’s policy and practice was to transfer prisoners apprehended in Afghanistan into the custody of US military forces. Amnesty International had consistently opposed that practice out of serious human rights concerns, including the United States’ refusal to recognize the applicability of the Geneva Conventions; concerns about torture and ill-treatment at US military detention sites in Afghanistan; the risk of the death penalty; and the possibility that detainees would be sent to Guantanamo Bay.
In November 2005, the government of Canada determined it would cease transferring Afghan detainees to US forces and finalized a new arrangement with Afghanistan to permit transfers of detainees to Afghan security forces instead. As details about the agreement emerged, Amnesty International expressed concerns that these transfers would likely lead to serious human rights violations. Despite these concerns, Canada declined to change its policy.
In February 2007, Amnesty International launched a legal application jointly with the British Columbia Civil Liberties Association (BCCLA) in the Federal Court of Canada, seeking a court order to cease transfers of detainees to Afghan authorities because of the serious risk that they would be subjected to torture and ill treatment.
That same month, Amnesty International and the BCCLA also filed a complaint to the Military Police Complaints Commission (MPCC) regarding the Military Police’s role in the transfer of detainees to Afghan authorities notwithstanding knowledge that the transfer system lacks effective safeguards against torture, and evidence that Afghan authorities routinely torture detainees. We requested that the Commission investigate the issue and reserve the possibility of a hearing in the public interest.
AMNESTY INTERNATIONAL AND THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION’S APPLICATION AT THE FEDERAL COURT OF CANADA AND COMPLAINT BEFORE THE MILITARY POLICE COMPLAINTS COMMISION
While Amnesty International typically gets involved in legal challenges before Canadian courts as an intervener, this case marks one of the few where Amnesty International brought an application as a party with public interest standing.
Application at the Federal Court of Canada
Together with the BCCLA, Amnesty International argued that the Federal Court should apply the protection of the Canadian Charter of Rights and Freedoms (Charter) and Canada’s international human rights and humanitarian law obligations to individuals detained by Canadian Forces operating in Afghanistan. The practice of interrogating detainees and then transferring them into the hands of Afghan authorities, despite overwhelming evidence that serious human rights violations are widespread in Afghan custody, exposes detainees to a substantial risk of torture, and offends the Charter. We also submitted a related application requesting an injunction requiring Canadian Forces in Afghanistan to stop all transfers of detainees until the court resolved the Charter challenge.
Before the case could be heard on its merits, the government of Canada brought a motion requesting that the Federal Court strike the case, arguing that Amnesty International and BCCLA lacked standing to bring the case on behalf of unknown persons. The government also argued that the issues were not justiciable because Canadian law – namely the Charter – cannot apply to Canadian Forces acting outside of Canadian territory. Amnesty International and the BCCLA emphatically opposed the motion, arguing that the Charter should apply because in depriving individuals of their liberty, Canadian Forces were bringing detainees under their effective control and thus within the jurisdiction of Canadian law. On 5 November 2007, the Federal Court agreed with Amnesty International and the BCCLA in what remains the only case in Canada recognizing that in some circumstances a human rights organization can seek personal Charter relief on behalf of another person.
However, on 7 February 2008, Amnesty International and BCCLA’s request for an injunction was dismissed by the Federal Court, on the basis that the Canadian Forces had temporarily ceased transferring Afghan detainees to Afghan authorities. If transfers were to resume, the Federal Court noted it was unclear whether new safeguards would be put in place to protect the human rights of transferred Afghan detainees. By 29 February 2008, the government of Canada announced that transfers of detainees to Afghan authorities had resumed.
Following these preliminary motions, the Federal Court was to determine whether the Charter applied to the conduct of Canadian Forces operating in Afghanistan and provided protection to Afghan detainees under their control.
Complaint before the Military Police Complaints Commission
In our 2007 complaint to the MPCC, Amnesty International and the BCCLA argued that Afghan authorities are known for routinely torturing detainees. Consequently, there is a substantial risk that detainees turned over to them by Canadian Forces will be tortured. We also provided an analysis of the Canada-Afghanistan Detainee Agreement, arguing that it fails to provide effective safeguards against torture. On the contrary, it creates a system in which detainees can be tortured without Canada ever becoming aware. As such, we requested that the Commission investigate and call a hearing into the matter.
Subsequent to filing the 2007 complaint, new evidence came to light through the Federal Court cases that (1) detainee transfer operations continued after the instances in 2006 which were the subject matter of the original complaint; and (2) that the risk of torture faced by detainees upon transfer was regrettably confirmed by first-hand accounts and physical evidence of torture. Consequently, in June 2008, Amnesty International and BCCLA commenced an additional complaint to the MPCC regarding the failure of the Military Police to investigate the officers having command responsibility for directing the transfer of detainees to Afghan authorities in the face of a known risk of torture.
STATUS OF THE CASE
The Federal Court concluded that the Charter did not apply to the actions of Canadian soldiers while operating in another country. There was no court ruling on the substance of the case. On appeal, the Federal Court of Appeal upheld the lower court’s judgment. The Supreme Court of Canada declined to hear an appeal of the Federal Court of Appeal’s judgment.
Military Police Complaints Commission
On 26 February 2007, the MPCC announced that it would launch a public interest investigation into Amnesty International and the BCCLA’s complaint. On 12 March 2008, the MPCC decided to hold public interest hearings regarding the Afghan detainees case.
The government of Canada challenged the MPCC’s decisions to investigate and to call public hearings before the Federal Court, arguing the Commission lacked jurisdiction to hear the Amnesty International and the BCCLA’s complaints. The government argued that the MPCC was attempting to review government policy decisions and as such was acting outside of its mandate.
The Federal Court determined that the Commission lacked jurisdiction to hear the complaint regarding the transfer of Afghan detainees, but that the MPCC did have jurisdiction to consider the claim that Military Police failed to investigate commanding officers for transferring detainees to a known risk of torture. The court also specified that the Commission could only investigate what the Military Police “knew or had the means of knowing” with regards to the failure to investigate complaint.
The MPCC proceeded with its investigation and hearings, which were limited to examining whether eight specific members of the Military Police failed in their duties in not investigating potential misconduct in the transfer of detainees to Afghan authorities. Amnesty International and BCCLA provided their final submissions to the MPCC on 2 February 2011, and the MPCC released its final report on 27 June 2012.
The MPCC report found no wrongdoing on the part of the eight individuals named in the investigation. However, the report noted that throughout the course of hearings, the government of Canada failed to cooperate and adopted “an overall attitude of antipathy … towards the Commission and its task.” The Commission also found that there were “serious problems with reporting, accountability and information flow” within the Military Police and between the Military Police and Canadian Forces. Despite this finding, the MPCC found that it is “for others to examine the overall appropriateness of Canada’s detainee transfer policies, and the results achieved.”
Reacting to the report, Amnesty International Canada Secretary General Alex Neve stated:
But it has never been clear who those ‘others’ are. And the government has made it clear that they do not invite or welcome scrutiny of that nature when it comes to detainee transfers. There is much that remains unexamined, such as the legality and appropriateness of relying on non-binding state to state agreements and prison visit and monitoring arrangements in the face of a well-documented and serious risk of torture. There is still, also, a pressing need to impartially and independently establish an accurate picture of the numbers of prisoners transferred, the numbers of allegations of torture and ill-treatment, the response to those allegations by both Canadian and Afghan officials, the frequency, nature and outcome of monitoring visits, and many other crucial factual questions.
In June 2016, new allegations came forward through an anonymous letter from members of the Canadian Military Police regarding the Canadian military’s detention policies and practices. The authors of the letter charge the Canadian Armed Forces of covering up abuse, torture, and war crimes; and alleged that high-ranking military officers ordered abuse of Afghan detainees, nearly half of which were not even involved in the Taliban. The revelations propelled Amnesty International and over forty other civil society groups, lawyers, academics, and prominent Canadians to renew their call for a Commission of Inquiry in order to ascertain the full facts and to identify the reforms needed to ensure that such abuses do not continue.
Responding to a petition to call an Inquiry, the Canadian government stated that “[t]hroughout military operations in Afghanistan, the government of Canada ensured individuals detained by the [Canadian Armed Forces] were treated humanely and handled, transferred or released in accordance with our obligations under international law … Therefore the government of Canada does not believe an independent judicial commission of inquiry is necessary.”
Federal Court of Canada
Additional legal documents from the Federal Court of Canada proceedings can be found on the British Columbia Civil Liberties Association Website
Amnesty International and BCCLA’s request for an interlocutory injunction to stop Canadian Forces in Afghanistan from transferring detainees
The government of Canada’s motion to strike Amnesty International and BCCLA’s application
Federal Court of Appeal
Amnesty International and BCCLA Factum in the Afghan Detainees case before the Federal Court of Appeal
Canadian Civil Liberties Association Intervener Factum in the Afghan Detainees case before the Federal Court of Appeal
Supreme Court of Canada
Amnesty International and BCCLA Notice of Application for Leave to Appeal the Federal Court of Appeal’s Judgment in the Afghan Detainees Case to the Supreme Court of Canada
Amnesty International and BCCLA Memorandum of Argument Requesting Leave to Appeal the Federal Court of Appeal’s Judgment in the Afghan Detainees Case to the Supreme Court of Canada
Military Police Complaints Commission
“Final report in Afghanistan Public Interest Hearing released” (27 June 2012)
“The BCCLA in snowy Ottawa: final submissions at the MPCC” (2 February 2011)
“Commission hears final submissions on transfers to torture” (1 February 2011)
“Canada/Afghanistan: Rights groups condemn handling of child soldier detainees” (2 December 2010)