Abuse of Detainees in Afghanistan and the Rule of Law

Photo - MCpl Brian Walsh/DND

As we mentioned in an earlier post, we believe that the rule of law ought to be an issue in this election. In particular, how each of the parties would likely conduct itself as a government from the perspective of the rule of law. To what extent would a government formed by any particular party respect and give effect to individual rights? To what degree would it comply with its obligations under domestic and international law? Moreover, combining aspects of the rule of law and related principles of democratic accountability, how would the government respond to allegations that government agencies had violated the law? How confident could the public be that such charges would be investigated in an objective and transparent manner, with full disclosure of information to the inquiry, and to the public?

Redacted Email on Treatment of Detainees

We plan to explore these questions, in part by looking at some of the incidents of the past few years. There is, for example, the allegations that Canadian Forces personnel were complicit in or at least had knowledge of the abuse and possible torture of suspected Afghan insurgents detained and turned over by the Canadian Forces, at the hands of agents of the Afghan government. There is considerable evidence that detainees captured and turned over by the CF were indeed tortured, though there remain questions regarding the extent to which the government knew or should have known that they would be tortured. These questions raise the possibility that Canada was in violation of the Geneva Conventions, to which it is a party, and possibly even guilty of war crimes and violations of the torture convention.


We leave for another day the more detailed exploration of these questions. But the incident does raise issues that ought to be front and center in this election campaign. Not only questions regarding the legality of the conduct of an agency of the Canadian government, and the extent to which the governments of either Paul Martin or Stephen Harper pursued a policy that they knew or ought to have known was in violation of the country's international law obligations. But also how the government of Stephen Harper responded once the allegations were made, and evidence of wrong doing began to accumulate. The failure to disclose documents, the stonewalling of the inquiry, the proroguing of parliament to escape further questions on the issue, are all indicia of a government that does not have much respect for concepts of political accountability and transparency, or much understanding of the rule of law.

We will spend some time exploring these and related issues in the weeks ahead. - CM