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Statement of Clarification-Reference to Amnesty International’s Position with Respect To Afghan Prisoner Transfers by the Honourable Bill Graham

    April 01, 2016

    The Honourable Bill Graham, former Canadian Minister of National Defence, states in his recently released biography that representatives of Amnesty International were “emphatic” in exchanges with him in 2005 that prisoners apprehended by the Canadian military on the battlefield in Afghanistan should be transferred to the custody of Afghan authorities.

    That was not the organization’s position at that time or at any time.  Amnesty International has never called on the Canadian government to transfer prisoners to the Afghan government.

    Until late 2005 Canada’s policy and practice had been to transfer prisoners apprehended in Afghanistan into the custody of US military forces.  Amnesty International had consistently opposed that practice because of a variety of serious human rights concerns, including the refusal of the US government 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 prisoners would be sent to Guantanamo Bay.  That position had been repeated most recently in a letter to Minister Graham dated October 11, 2005.

    In a meeting  with Amnesty International Canada’s Secretary General, Alex Neve, on November 15, 2005, Minister Graham indicated that the government would be ending the practice of transfers to US forces and that a new arrangement was being finalized to allow for transfers to Afghan security forces instead.  Amnesty International welcomed the decision to end transfers to US forces.  That did not mean, however, that the organization was in favour of or in any way endorsed a change of policy to instead transfer prisoners to Afghan forces.  While the terms of the agreement were not yet available at the time of the meeting, Amnesty International signalled that there would likely be continuing concerns under the new arrangement.

    In a follow up letter to Minister Graham on November 20, 2005, Amnesty international further elaborated those concerns and enclosed a copy of a comprehensive 2003 report about prison conditions in Afghanistan.  The letter notes that if these concerns could not be resolved it would be vital instead to explore options for developing capacity to hold prisoners in Canadian custody in Afghanistan, perhaps jointly with other ISAF allies, so as to ensure “scrupulous compliance with our obligations under international human rights law and international humanitarian law.”

    Amnesty International received a copy of the new agreement between Canada and Afghanistan several months later and wrote to the new Minister of National Defence, Gordon O’Connor, laying out a number of questions and concerns about its terms on April 3, 2006.  Those concerns were further elaborated in subsequent letters to Minister O’Connor as more information came to light about how the agreement was being implemented.  A detailed letter was sent to the Minister on November 14, 2006 urging that transfers cease.

    The government declined to change the policy and in February 2007 Amnesty International launched a legal application jointly with the British Columbia Civil Liberties Association in Federal Court, seeking a court order that transfers of prisoners to Afghan authorities cease because of concerns about torture.  The court challenge was ultimately unsuccessful as the Federal Court and the Federal Court of Appeal concluded that the Charter of Rights, the legal basis of the case, 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.  

    For further information, please see the letters to Hon Bill Graham attached.