International law issues raised by the transfer of detainees by Canadian forces in Afghanistan.

• Author: Sassoli, Marco

The transfer of Afghan detainees to Afghan authorities by Canadian forces raised concerns in public opinion, in Parliament, and was the object of court proceedings and other enquiries in Canada. This article aims to explore the rules of international law applicable to such transfers. The most relevant rule of international humanitarian law (IHL) applies to prisoners of war in international armed conflicts. However, the conflict in Afghanistan, it is argued, is not of an international character. The relevant provision could nevertheless apply based upon agreements between Canada and Afghanistan and upon unilateral declarations by Canada. In addition, international human rights law (IHRL) and the very extensive jurisprudence of its mechanisms of implementation on the obligations of a state transferring a person to the custody of another state where that person is likely to be tortured or treated inhumanely will be discussed, including the standard of care to be applied when there is an alleged risk of torture. While IHL contains the rules specifically designed for armed conflicts, IHRL may in this respect also clarify as lex specialis the interpretation of concepts of IHL. Finally, the conduct of Canadian leaders and members of the Canadian forces is governed by international criminal law (ICL). This article thus demonstrates how IHL, IHRL, and ICL are intimately interrelated in contemporary armed conflicts and how the jurisprudence of human rights bodies and of international criminal tribunals informs the understanding of IHL rules.

Le transfert des detenus afghans par les forces canadiennes aux autorites afghanes a ete l'objet de preoccupations, au sein de l'opinion publique et du Parlement, et a mene a certaines procedures judicaires et enquetes au Canada. Cet article explore les regles du droit international qui s'appliquent particulierement a de tels transferts. Les regles du droit international humanitaire (DIH) les plus pertinentes sont celles relatives aux prisonniers de guerre et applicables dans les conflits armes internationaux. Cependant, on peut estimer que le conflit en Afghanistan n'est pas de caractere international. Neanmoins, ces regles pourraient s'appliquer dans ces circonstances, puisque le Canada a signe un accord aveec l'Afghanistan et a fait certaines declarations unilaterales. De surcroit, cet article presente le droit international des droits de l'homme (DIDH) et la jurisprudence portant sur l'obligation d'un Etat d'agir avec la diligence necessaire lorsqu'il transfere la charge d'une personne a un autre Etat ou il existe un risque reel de torture ou de traitement inhumain. Bien que le DIH contiennent les regles applicables aux conflits armes, le DIH pourrait, en tant que lex specialis. guider l'interpretation des concepts du DIH. Finalement, la conduite des dirigeants canadiens et des membres des forces canadiennes est regie par le droit penal international (DPI). Par consequent, cet article demontre l'interrelation intime entre le DIH, le DIDH et le DPI en ce qui a trait aux conflits armes contemporains et a la facon dont la jurisprudence des organismes de droits de l'homme et les tribunaux penaux internationaux contribuent a notre comprehension des regles de DIH.

Introduction I. International Humanitarian Law A. The Classification of the Conflict and its Impact on die Applicable Rules of IHL 1. The Definition of International Armed Conflicts 2. The Definition of Non-International Armed Conflicts 3. Classification of the Conflict in Afghanistan 4. Possibility of Applying Rules of IHL of International Armed Conflicts to Non-International Armed Conflicts B. The Prohibition of Torture in IHL C. Restrictions as to die Transfer of Prisoners of War 1. Article 12 of Convention III and its Meaning 2. Applicability of Article 12 to the Transfers in Afghanistan a. Is Canada Bound to Apply Article 12 Based Upon . its Agreements with Afghanistan? b. Applicability of Article 12 to Repatriations? c. Repatriation in Non-International Armed Conflicts d. The Obligations of Canada under Article 12 in Afghanistan 3. Canada's Obligations if Article 12 Does Not Apply II. International Human Rights Law A. Simultaneous Applicability of IHL and IHRL in Aimed Conflicts B. The Extraterritorial Applicability of IHRL C. What is die Impact of a UN Mandate? D. The Prohibition of Torture and Inhuman or Degrading Treatment in IHRL E. The Prohibition of Transferring Persons to a State Where They Risk Being Tortured or Ill-Treated 1. Scope of the Prohibition 2. Extraterritorial Application of the Prohibition 3. The Standard of Care Applicable to a Transfer when the Risk of Torture is Alleged III. International Criminal Law A. The Concept of Grave Breaches of the Geneva Conventions B. The Concept of War Crimes C. The Concept of Aiding and A betting in International Criminal Law Conclusion Introduction

Canada's military presence in Afghanistan started as participation in the post 9/11 US-led Operation Enduring Freedom. (1) In 2003, Canada became involved in the International Security Assistant Force (ISAF) created under the authority of the United Nations to "assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas." (2) The ISAF was authorized to take "all necessary measures"; that is, including the use of military force, to fulfill its mandate. (3) The transfer and treatment of Afghan nationals arrested and detained by ISAF member states, especially by the United States at Guantanamo Bay, have raised legal issues and concerns in public opinion for years now. Canada is no exception in this regard. In 2005, an Arrangement for the Transfer of Detainees Between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan (2005 Arrangement) was concluded, which contained detailed rules on the treatment, by both Canada and Afghanistan, of detainees arrested by Canadian forces and transferred to Afghan authorities. (4) Following allegations that some of the detainees transferred by Canadian forces to Afghan authorities were being mistreated, (5) it was supplemented by a second agreement in 2007, which prescribed measures for monitoring by Canadian diplomats, the Afghan Human Rights Commission and the International Committee of the Red Cross (ICRC) of the treatment of such detainees in Afghan hands (2007 Arrangement). (6) Nevertheless, the transfer of Afghan detainees to Afghan authorities by Canadian forces continued to raise concerns due to serious allegations that, despite the new agreement, some of these detainees held by Canadian forces and transferred to Afghan authorities were then tortured (7). Whether this involved violations by Canada of international law or Canadian domestic law, was the object of court proceedings (8) and parliamentary debates. (9) A House of Commons special committee was established (10) and the Military Police Complaints Commission opened an inquiry into whether Canadian military police should have started criminal enquiries against members of Canadian forces involved in transfers in Afghanistan. (11) This article aims to explore the rules of international law applicable to such transfers.

On the one hand, Canada, as a state, is bound by International Humanitarian Law (IHL) and International Human Rights Law (IHRL). On the other hand, the conduct of Canadian leaders and members of the Canadian forces is governed by International Criminal Law (ICL). The two levels, the state level and the individual level, interact. The jurisprudence of international criminal tribunals interprets the underlying rules of conduct of IHL addressed to states. Conversely, individual criminal responsibility, at least under Canadian domestic law, may arise for members of Canadian forces from conduct contrary to Canada's international obligations.

While IHL contains the rules specifically designed for armed conflicts, IHRL may clarify as lex specialis the interpretation of concepts of IHL or of ICL. In particular, the prohibition of torture and inhuman and degrading treatment in IHRL is violated by a state transferring a person to the custody of a state where that person is likely to be tortured or treated inhumanely. All three branches of international law may inform the interpretation of Canadian domestic law, (12) including the offences of torture, assault, and criminal negligence of the Criminal Code, (13) and the service offences of cruel or disgraceful conduct, negligent performance of a military duty, and conduct to the prejudice of good order and discipline under the National Defence Act. (14)

1. International Humanitarian Law

   International Humanitarian Law, often also referred to as the laws of war or the laws of armed conflict, is the branch of international law limiting the use of violence in armed conflicts, in particular by protecting those who do not or no longer directly participate in hostilities, including all persons detained in connection with an armed conflict. IHL applies to both sides in every armed conflict, giving them the same rights and obligations under IHL, independently of the legitimacy or otherwise of their cause. (15) Even Security Council authorization, self-defence, or the consent of the territorial government do not make IHL inapplicable. IHL is largely codified in treaties, in particular the four 1949 Geneva Conventions (Conventions) (16) and the two 1977 Additional Protocols (Protocols). (17) Canada and Afghanistan are parties to all these instruments. The Protocols, however, were only accepted by Afghanistan on 10 November 2009 and therefore only entered into force for Afghanistan on 10 May 2010. (18)

   The Geneva Conventions only apply to armed conflicts. They make a strict distinction between international and non-international armed conflicts, the latter being governed by less detailed and less protective rules. As for customary international law, a recent comprehensive study undertaken under the...