Moral and Legal Responsibility with Respect to Alleged Mistreatment of Transferred Detainees in Afghanistan: Presentation to the House of Commons Special Committee on the Canadian Mission in Afghanistan

24 Pages Posted: 13 Feb 2010

See all articles by Craig Scott

Craig Scott

York University - Osgoode Hall Law School

Date Written: February 10, 2010


The present paper takes the form of presentation made on February 10, 2010, to the prorogued Canadian House of Commons Special Committee on the Canadian Mission in Afghanistan, with Members of Parliament from the Bloc Québécois, Liberal Party, and New Democratic Party in attendance. The subject of the presentation is a report and commentary on an all-day event organized by the Nathanson Centre on Transnational Human Rights, Crime and Security at York University’s Osgoode Hall Law School. The event, held in Toronto on February 8, 2010, was called the Special Forum on the Canadian Mission in Afghanistan. The thematic title of the Special Forum was “Moral and Legal Responsibility with Respect to Alleged Mistreatment of Transferred Detainees in Afghanistan.” In the wake of prorogation of Parliament at the end of December 2009 by Canada’s Prime Minister, the Special Forum sought to highlight the special importance of democratic scrutiny of, and debate over, conduct with respect to persons detained in Afghanistan by the Canadian Armed Forces – persons who, it has been alleged, were either mistreated or risked being mistreated after their transfer to Afghan authorities. Because prorogation prevented the Special Committee from continuing in February 2010 the official examination of witnesses and evidence that it had begun in 2009, the Nathanson Centre and Osgoode decided to invite experts on various aspects of the issue of detainee transfer to give presentations – and to respond to questions by a panel – so that ongoing reflection by Canadians on the morality and legality of conduct related to Afghan detainees might be facilitated, and also so as to assist the future work of this Special Committee when it reconvenes after prorogation. Nine experts presented and answered questions over a six-hour period: Alex Neve, William Schabas, Paul Champ, Willem de Lint, David Schneiderman, Michael Mandel, Christopher Waters, Kent Roach, and Michael Byers. A panel of questioners consisted of Craig Scott as Chair (the author), the Honourable Bob Rae (MP for Toronto Centre and a member of this Special Committee), and Retired Colonel Michel Drapeau. The agenda of the Special Forum is attached to the 11-page presentation as Appendix 1. A submission was requested and received by the Special Forum from Retired Commander William Fenrick; entitled “Observations Concerning the Canadian Mission in Afghanistan and the Treatment of Detainees”, it is attached as Appendix 2.

The presentation discusses the following issues: the failure of successive Canadian governments to develop a long-term detention capacity in Afghanistan; the reasons why Canada makes Afghanistan’s National Directorate of Security (NDS) the first place in the transfer chain for Afghans detained by Canada despite credible reports from credible actors on the propensity of NDS Kandahar to torture; whether proposals were received by Ottawa from Canada’s own embassy in Kabul to cut NDS Kandahar out of the transfer chain; whether NDS Kandahar remains to this day the first port of call for transfers; more generally, what Canada’s recent practice – in 2008, 2009 and now 2010 – has been, as contrasted to the main focus of debate so far on 2005-2007; the need for more robust approaches to accountability of the government and the military to Parliament; the need to know whether Canada receives – and, if so, uses – intelligence produced by interrogations by NDS Kandahar; access to legal opinions that have resulted in government witnesses before the Special Committee misapplying the “substantial risk of torture” test in the context of the available information in the Afghan detainee context, as well as other legal opinions relevant to decision-making on detainee policy and practice; why Canada’s obligations under article 12(3) of Geneva Convention III (on protection of prisoners of war) were not properly taken into account in both the 2005 and 2007 detainee-transfer agreements between Canada and Afghanistan; why the Department of National Defence so vigorously resisted the insertion of a monitoring clause in the 2005 agreement and why the 2007 “corrective action” clause is so weak; whether officials, including military officers, within the DND have inappropriately resisted, manipulated or mislead successive Ministers of Defence since the advent of the war in Afghanistan; whether there have been or whether there risk being practices or incidents beyond the detainee context that place Canada in danger of contravening international law; whether there have been erosions of the idea of a military accountable to both the rule of law and to civilian government that have manifested themselves during the Afghanistan conflict; whether we have reasons for serious concern about the health of Canadian democracy in light of a variety of gaps in institutional counterbalances to executive assertions of power; in the context of the vacuum in institutional protections, the need for a serious, fully resourced public inquiry presided over by a respected judge; the need to understand the practices of both documentation and non-documentation that have characterized decision-making, field operations and reporting related to the detainee question; the need for legislation that circumscribes the Crown prerogative asserted by the government relating to information requested by Parliament; whether there is a real possibility that one or more Canadian officials could be investigated and possibly charged by the International Criminal Court Prosecutor, under the ICC Rome Statute’s article 8 on war crimes related to torture, inhuman treatment and/or willfully causing great suffering or serious injury to body or health.

Keywords: International Humanitarian Law, International Human Rights Law, Law Of Armed Conflict, Torture, Canada, Afghanistan, War, Detainees, Transfer

JEL Classification: K33, K42

Suggested Citation

Scott, Craig M., Moral and Legal Responsibility with Respect to Alleged Mistreatment of Transferred Detainees in Afghanistan: Presentation to the House of Commons Special Committee on the Canadian Mission in Afghanistan (February 10, 2010). Available at SSRN: or

Craig M. Scott (Contact Author)

York University - Osgoode Hall Law School ( email )



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