[Bloquez l'empire!] War Crimes: Mr. O'Connor and General Hillier

[Dru Oja Jay]

http://thetyee.ca/Views/2007/04/27/WarCrime/

April 25, 2007

Mr. Luis Moreno-Ocampo
Prosecutor
International Criminal Court
Maanweg, 174
2516 AB, The Hague
The Netherlands
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Dear Sir,

Re. War crimes and the transfer of detainees from Canadian custody in  
Afghanistan

We write to draw your attention to possible war crimes committed with  
respect to the transfer of detainees from Canadian custody in  
Afghanistan. In particular, we request that you open a preliminary  
examination under Article 15 of the Rome Statute of the International  
Criminal Court to determine whether there are reasonable bases to  
investigate Mr. Gordon O'Connor, the Canadian Minister of National  
Defence, and General Rick Hillier, the Canadian Chief of the Defence  
Staff.

Specifically, we are concerned that Mr. O'Connor and General Hillier  
have:

1. Chosen to allow detainees to be transferred to the custody of  
Afghan authorities despite an apparent risk of torture and other  
forms of abuse;

2. Chosen not to take reasonable and readily apparent steps to  
protect detainees against torture and other forms of abuse -- for  
instance, by seeking a renegotiation of the December 2005 Canada- 
Afghanistan Detainee Transfer Arrangement to bring it into line with  
pre-existing Denmark-Afghanistan, UK-Afghanistan and Netherlands- 
Afghanistan agreements, and now, following credible reports of the  
torture of transferred detainees, by ceasing any further transfers.

As a result, we are concerned that Mr. O'Connor and General Hillier  
might wilfully be placing detainees at well-documented risk of  
torture, cruel treatment and outrages upon personal dignity. If so,  
they would appear to be violating Articles 8 and 25 (and perhaps  
Article 7) of the Rome Statute of the International Criminal Court  
(ICC).1

Any such violations would clearly fall within the jurisdiction of the  
ICC, since Canada has ratified the Rome Statute, Mr. O'Connor and  
General Hillier are Canadian citizens, and the possible offences in  
question were committed after the coming into force of the Statute  
(as well as Canada's ratification of it).

But first, we will summarize the circumstances giving rise to our  
concerns.

1. The factual circumstances

(a) Canada-Afghanistan detainee transfer arrangement

The Arrangement for the Transfer of Detainees between the Canadian  
Forces and the Ministry of Defence of the Islamic Republic of  
Afghanistan ("Arrangement") was signed by General Hillier and the  
Afghan Defence Minister, Abdul Raheem Wardak, on December 18, 2005.2

The Arrangement "establishes procedures in the event of a transfer"  
of any detainee from Canadian to Afghan custody. It commits both  
countries to treat detainees "in accordance with the standards set  
out in the Third Geneva Convention" and stipulates that the  
International Committee of the Red Cross "will have a right to visit  
detainees at any time while they are in custody, whether held by the  
Canadian Forces or by Afghanistan." It does not provide the Canadian  
government with a right to visit and verify -- for itself -- the  
location, condition and status of any transferred detainee.

The Arrangement states that Canada and Afghanistan "will be  
responsible for maintaining accurate written records accounting for  
all detainees that have passed through their custody" and that "[c] 
opies of all records relating to the detainees will be transferred to  
any subsequent Accepting Power should the detainee be subsequently  
transferred."

Significantly, the latter sentence explicitly envisages that some  
detainees will be transferred onwards to the custody of third  
countries. Yet the Arrangement fails to guard against the possibility  
that Afghanistan might transfer a detainee onwards to the custody of  
a third country where he or she would be at risk of torture or other  
forms of abuse. This failure is all the more striking because Bill  
Graham, the Canadian defence minister at the time the Arrangement was  
negotiated and signed, has said that the Arrangement was established  
because of concerns that "it wouldn't be appropriate to hand them  
[the detainees] over to the Americans."3

Mr. Graham was rightly concerned about the legality of transferring  
detainees to U.S. custody, given credible reports of torture and  
other abuse at places such as Abu Ghraib and Guantanamo Bay, and of  
internal U.S. government legal opinions seeking to justify torture.4  
Some of the reports concerned mistreatment, torture and even murder  
at U.S. bases in Afghanistan;5 others indicated that at least some  
detainees captured by Western forces in Afghanistan were transferred  
from U.S. custody to Uzbekistan, which is notorious for particular  
severe forms of interrogation -- including boiling prisoners alive.6

In short, there is a reasonable basis to believe that torture, cruel  
treatment and outrages upon personal dignity have been (and are  
being) committed in countries to which detainees transferred from  
Canadian custody in Afghanistan might subsequently be transferred.

There is also substantial reason for concern with respect to the  
treatment of transferred detainees who remain within Afghan custody.

In March 2006, Louise Arbour, the UN High Commissioner for Human  
Rights, reported on the activities of the Afghanistan National  
Security Directorate (NSD) in the following terms:

The NSD, responsible for both civil and military intelligence,  
operates in relative secrecy without adequate judicial oversight and  
there have been reports of prolonged detention without trial,  
extortion, torture, and systematic due process violations. Multiple  
security institutions managed by the NSD, the Ministry of the  
Interior and the Ministry of Defence, function in an uncoordinated  
manner, and lack central control. Complaints of serious human rights  
violations committed by representatives of these institutions,  
including arbitrary arrest, illegal detention and torture, are  
common. Thorough, transparent and public investigations are absent  
and trials regularly occur without adhering to the due process rights  
enshrined in the Constitution. Serious concerns remain over the  
capacity and commitment of these security institutions to comply with  
international standards.7

In June 2006, the Canadian Press reported that the Afghanistan  
Independent Human Rights Commission office in Kandahar (where most of  
the Canadian soldiers in Afghanistan are based) had estimated that  
"about one in three prisoners handed over by Canadians are beaten or  
even tortured in local jails."8

In March 2007, the annual U.S. State Department Country Report on  
Human Rights Practice in Afghanistan reported that: "Complaints of  
serious human rights violations committed by representatives of  
national security institutions, including arbitrary arrest,  
unconfirmed reports of torture, and illegal detention were numerous."9

On April 23, 2007, the Globe and Mail reported on 30 face-to-face  
interviews with men recently captured by Canadian soldiers in  
Kandahar province and transferred to Afghan custody. According to the  
Globe and Mail , the interviews:

[U]ncovered a litany of gruesome stories and a clear pattern of abuse  
by the Afghan authorities who work closely with Canadian troops,  
despite Canada's assurances that the rights of detainees are  
protected.10

The abuse included "savage beatings, electrocution, whipping and  
extreme cold."11 Although Canadian soldiers were reported not to have  
engaged directly in the beatings, one of the detainees insisted that  
they would have heard his screams.12 As Mahmad Gul, 33, reportedly  
said: "The Canadians told me, 'Give them real information, or they  
will do more bad things to you.'"13

As the Globe and Mail concluded on its editorial page:

Canada is hardly in a position to claim it did not know what was  
going on. At best, it tried not to know; at worst, it knew and said  
nothing.14

In short, there is a reasonable basis to believe that detainees in  
Afghan custody have been subject to torture, cruel treatment and  
outrages upon personal dignity subsequent to being transferred by  
Canada, and subsequent to the conclusion of the Canada-Afghanistan  
Detainee Transfer Arrangement in December 2005.

(b) Wilfully ignoring best practice

When General Hillier signed the Canada-Afghanistan Detainee Transfer  
Arrangement, he had at least two (and probably three) models of best  
practice available to him -- in the form of detainee transfer  
agreements concluded with Afghanistan by close NATO allies of Canada.

On June 8, 2005, Denmark and Afghanistan finalized a "memorandum of  
understanding" concerning detainee transfers.15 The memorandum  
provides a right of full access to any transferred detainee, not just  
to the ICRC but also, crucially, to the Danish military. The Danish  
memorandum requires not only that the Afghan authorities maintain  
"accurate accountability" of any transferred detainees, but that they  
make the records available on request. It also requires that the  
Afghan authorities notify the Danish military prior to the initiation  
of legal proceedings, transfer to third parties or release of  
detainees, "or if other significant changes concerning such persons  
occur."

On September 30, 2005, the United Kingdom and Afghanistan finalized a  
"memorandum of understanding" concerning detainee transfers.16  
Theother relevant changes occur.17 memorandum provides a right of  
full access to any transferred detainee, not just to the ICRC but  
also, crucially, to the British authorities. A similar right of  
access is provided to "relevant human rights institutions within the  
UN system" -- a category which would include the UN Special  
Rapporteur on Torture.

The UK-Afghanistan memorandum also requires, not only that the Afghan  
authorities keep accurate records concerning the location, condition  
and status of any transferred detainees, but that they make the  
records available on request. It requires that the Afghan authorities  
notify the British authorities of "any material change of  
circumstance regarding the detainee including any instance of alleged  
improper treatment." And, significantly, it provides the British  
authorities with a right of veto over any onward transfer of a detainee.

Sometime in late 2005, the Netherlands also finalized a "memorandum  
of understanding" with Afghanistan. Like the British memorandum, the  
Dutch memorandum ensures that its own authorities and "relevant human  
rights institutions within the UN system" have full access to any  
transferred detainees. Dutch authorities must also be notified before  
a detainee is transferred onwards to a third country, or before any  
other relevant changes occur.17

This best practice confirms that the Canada-Afghanistan detainee  
transfer arrangement is flawed in at least two respects:

(1) It fails to provide Canadian authorities with the right to visit  
and verify -- for themselves -- the location, condition and status of  
any transferred detainee.

(2) It fails to guard against the possibility that Afghanistan might  
transfer a detainee onwards to the custody of a third country where  
he or she would be at risk of torture, cruel treatment and outrages  
upon personal dignity.

Again, this best practice by close NATO allies would have been  
readily available to General Hillier during the negotiation and  
signature of the Canada-Afghanistan Detainee Transfer Arrangement. It  
is reasonable to believe, therefore, that the failure to follow this  
best practice was the result of a wilful decision at the highest  
level of command.

(c) Wilfully refusing to seek a renegotiated arrangement

General Hillier and Mr. O'Conner (since he became defence minister in  
February 2006) have chosen not to seek a renegotiation of the Canada- 
Afghanistan Detainee Transfer Arrangement to bring it into line with  
readily available best practice and the ongoing requirements of  
international humanitarian law, even after its flaws were clearly and  
publicly identified. Instead, it seems that they have been seeking to  
conceal and play down the Arrangement's shortcomings.

For example, the Arrangement relies primarily on the International  
Committee of the Red Cross to monitor the treatment of transferred  
detainees, with a subsidiary and unspecified role accorded to the  
Afghan Independent Human Rights Commission. On repeated occasions,  
Mr. O'Connor told the Canadian House of Commons that the ICRC would  
inform the Canadian government if it had any concern about the other  
relevant changes occur.18 He maintained this position despite his  
officials having been told otherwise by the ICRC19 and non- 
governmental experts.20 It was only when the ICRC publicly  
contradicted him in February 2007 that Mr. O'Connor corrected this  
misrepresentation and apologized to his fellow Parliamentarians.

Also in February 2007, the Canadian government concluded an agreement  
with the Afghan Independent Human Rights Commission to clarify and  
bolster its role in monitoring the condition of transferred  
detainees. The efficacy of this new mechanism was immediately  
questioned, because the Commission acknowledged lacking the staff to  
monitor all the transferred detainees, and because Canada had not  
provided any funding to the Commission since 2002.21

In any event, no attempt has been made to renegotiate the Canada- 
Afghanistan Arrangement itself to introduce rights of notification,  
visit and verification for Canadian authorities, or to secure a right  
of veto over onward transfers. And this despite repeated calls for a  
renegotiation from opposition Parliamentarians, non-governmental  
experts, and two of Canada's leading newspapers: the Globe and Mail  
and Toronto Star.22

One would think that Mr. O'Connor and General Hillier would have  
recognized, not just the need for an improved arrangement, but also  
the considerable likelihood that a renegotiation would succeed --  
since the Afghan government had already accepted the terms of the  
Danish, British and Dutch memoranda. Instead, they have sought to  
defend the existing Arrangement. For example, General Hillier was  
quoted by the Toronto Star as saying that "It [Afghanistan] is their  
country, under their laws and their government. We hand the prisoners  
to them, the detainees to them. It's the right thing to do."23

The failure to renegotiate changes to the Arrangement has had real  
consequences for individual detainees. In February 2007, the Globe  
and Mail reported that when the Canadian government was asked to  
account for the location and condition of 40 detainees captured prior  
to April 2006 and several dozen taken since then, it refused "to say  
what has happened to them or even if it knows whether any have been  
tried, charged, or released, or how they are treated."24 In March  
2007, Canadian military investigators admitted to the Globe and Mail  
that they were unable to find three men who Canadian troops had  
handed over to the Afghan National Police on April 8, 2006, and who  
it is now alleged -- on the basis of official military documents  
released under the Access to Information Act -- were physically  
abused before being transferred.25

In short, there is manifestly well-founded information concerning the  
inability of the Canadian government to account for the location,  
condition or status of individual detainees transferred to Afghan  
custody -- in circumstances where there are reasonable bases for  
believing that they might be subject to torture, cruel treatment and  
outrages upon personal dignity.

There is also manifestly well-founded information concerning the  
choice, by Mr. O'Connor and General Hillier, not to seek  
renegotiation of the detainee transfer arrangement to bring it into  
line with best practice and the requirements of international  
humanitarian law. In short, they have deliberately avoided taking  
reasonable and readily available measures to ensure that they are not  
facilitating clearly foreseeable torture, cruel treatment and  
outrages upon personal dignity.

(d) Wilfully refusing to cease the transfer of detainees

As explained above, on April 23, 2007, an extensive Globe and Mail  
report "uncovered a litany of gruesome stories and a clear pattern of  
abuse by the Afghan authorities who work closely with Canadian  
troops, despite Canada's assurances that the rights of detainees are  
protected."26 The abuse included "savage beatings, electrocution,  
whipping and extreme cold." The Globe and Mail concluded on its  
editorial page that "Canada is hardly in a position to claim it did  
not know what was going on. At best, it tried not to know; at worst,  
it knew and said nothing."27

Faced with these extremely serious allegations by a widely respected  
newspaper, Mr. O'Connor (and Prime Minister Stephen Harper) told the  
House of Commons that Canada would continue transferring detainees to  
the Afghan authorities.28 They repeatedly insisted that the February  
2007 agreement with the Afghan Independent Human Rights Commission  
was sufficient to protect the rights of transferred detainees.29 The  
next day, the Globe and Mail reported that Amir Mohammed Ansari, the  
chief investigator for the AIHRC in Kandahar, had "conceded in a  
recent interview that his staff are being prevented from visiting  
detainees in the National Directorate of Security's detention cells  
in Kandahar."30 The Globe and Mail quoted Mr. Ansari as saying: "We  
have an agreement with the Canadians, but we can't monitor these  
people."31

All three opposition parties (collectively representing the majority  
of Members of Parliament) called for the immediate cessation of  
detainee transfers -- a call that Mr. O'Connor (and Prime Minister  
Stephen Harper) refused to heed.32

In the circumstances, there are reasonable bases to believe that Mr.  
O'Connor (and General Hillier) is engaged in a policy of wilfully  
transferring detainees to a significant, known risk of torture.

2. Temporal and personal jurisdiction and the absence of immunity

(a) Temporal jurisdiction

As Article 11 of the Rome Statute indicates, the Court has  
jurisdiction over crimes committed after the entry into force of the  
Statute. Since the Statute entered into force on July 1, 2002, and  
our concerns arise out of activities occurring after that date,  
temporal jurisdiction exists in this instance.

(b) Personal jurisdiction

As Article 12(b) of the Rome Statute indicates, the Court has  
personal jurisdiction over the national of any State which has  
ratified the Statute. This jurisdiction exists regardless of the  
location of the alleged violation.

Canada ratified the Rome Statute on July 7, 2000. And the individuals  
who took the decisions at issue here are Canadian citizens. As a  
result, personal jurisdiction exists in this instance.

(c) The absence of immunity

As Article 27 of the Rome Statute indicates, elected representatives  
and government officials do not benefit from immunity from  
investigation and prosecution by the International Criminal Court --  
regardless of any immunities or special procedural rules which might  
otherwise attach to their official capacity under national or  
international law.

3. Subject matter jurisdiction

(a) Torture, cruel treatment and outrages upon personal dignity in  
non-international armed conflicts

The situation in Afghanistan today is properly characterized as "an  
armed conflict not of an international character", since Canadian and  
other NATO forces are operating against non-state actors with the  
consent of a sovereign Afghan government. This characterization is  
accepted by the Canadian government.33

Article 8(2)(c) of the Rome Statute concerns war crimes committed in  
the context of "an armed conflict not of an international character."  
And it accords the status of "war crimes" to certain specified acts  
"committed against persons taking no active part in the hostilities,  
including members of armed forces who have laid down their arms and  
those placed hors de combat by sickness, wounds, detention or any  
other causes."

Detainees in Canadian custody constitute "persons taking no active  
part in hostilities" -- as the specific inclusion of the word  
"detention" confirms.

The acts constituting "war crimes" under Article 8(2)(c) include:

(i) Violence to life and person, in particular murder of all kinds,  
mutilation, cruel treatment and torture; (ii) Committing outrages  
upon personal dignity, in particular humiliating and degrading  
treatment.

Given the information summarized above, there are reasonable bases to  
believe that war crimes have been committed against detainees in  
Afghan custody as well as in the custody of third countries.

It is also possible that torture and other forms of abuse conducted  
by Afghanistan and third countries may be part of a widespread or  
systematic attack on a civilian population, in which case they would  
amount to crimes against humanity as well -- under Article 7 of the  
Rome Statute.

But it is the transfer of detainees from Canadian custody that  
concerns us here and, in particular, the choice not to seek to  
renegotiate the Canada-Afghanistan Detainee Transfer Arrangement to  
include reasonable and readily available measures that would help to  
prevent such crimes from occurring, and now, the choice -- in the  
face of serious and credible accusations of torture -- not to cease  
immediately the practice of transferring detainees.

(b) Aiding and abetting crimes committed by the officials of another  
country

Article 25(3) of the Rome Statute indicates that individual persons,  
including Canadian soldiers, could be criminally responsible if they  
transferred a detainee into a situation where they knew he or she  
would be at risk of torture, cruel treatment or outrages upon  
personal dignity, and such violence or outrages occurred. Article 25 
(3) reads:

3. In accordance with this Statute, a person shall be criminally  
responsible and liable for punishment for a crime within the  
jurisdiction of the Court if that person ...

(c) For the purposes of facilitating the commission of such a crime,  
aids, abets or otherwise assists in its commission or its attempted  
commission, including providing the means for its commission; (d) In  
any other way contributes to the commission or attempted commission  
of such a crime by a group of persons acting with a common purpose.  
Such contribution shall be intentional and shall either: (i) Be made  
with the aim of furthering the criminal activity or criminal purpose  
of the group, where such activity or purpose involves the commission  
or a crime within the jurisdiction of the Court; or (ii) Be made in  
the knowledge of the intention of the group to commit the crime.

Transferring a detainee contributes to -- indeed, it provides the  
means for -- the commission of torture, cruel treatment or outrages  
upon his or her personal dignity. And, in current circumstances, the  
intent to contribute to the crime could well be implied. There is a  
growing body of information concerning torture and other abuses in  
Afghan custody (including against detainees transferred by Canada),  
as well as in the custody of other countries to which detainees from  
Afghanistan are known to have been transferred. There is also a  
growing body of information concerning the shortcomings in the Canada  
Afghanistan Detainee Transfer Arrangement -- shortcomings that could  
have the consequence of rendering any detainee transfer a possible  
war crime (and perhaps a crime against humanity) if the detainee is  
subsequently abused.

However, more than the possible criminal responsibility of individual  
Canadian soldiers is at issue. Our principal concern arises with  
respect to the political and military decision-makers who have chosen  
not to cease the practice of transferring detainees, and who for more  
than a year refused to renegotiate the Canada Afghanistan Detainee  
Transfer Arrangement to secure rights of notification, visit and  
verification for Canadian authorities. In short, the policies  
decisions taken by Mr. O'Conner and General Hillier have caused  
detainees to be transferred into a situation of significant, known  
risk. It follows that, if and when any of the transferred detainees  
were in fact tortured or otherwise abused, Mr. O'Connor and General  
Hillier may have aided, abetted or otherwise assisted the commission  
of war crimes or crimes against humanity -- which, of course, are  
themselves war crimes or crimes against humanity. And if any  
detainees are transferred from now on, and then tortured, the  
possibility of the decision to transfer being a war crime will only  
be increased.

5. The absence of "complementarity"

Under Article 17 of the Rome Statute, a case that is "being  
investigated or prosecuted by a State which has jurisdiction over it"  
may be declared inadmissible "unless the State is unwilling or unable  
genuinely to carry out the investigation or prosecution." Assessing  
admissibility is of course relevant to the determination that you, as  
Prosecutor, need to make before seeking authorisation to initiate an  
investigation.

There is no evidence that Canadian officials are investigating their  
own Defence Minister and Chief of the Defence Staff -- especially  
when the decisions in question have received the support of the  
Canadian prime minister and his cabinet. Indeed, under the Canadian  
implementing legislation for the Rome Statute -- the War Crimes and  
Crimes Against Humanity Act -- it is member of the federal cabinet,  
namely the Attorney General of Canada, who has the exclusive power to  
determine whether proceedings are initiated.

6. An investigation would serve the interests of justice

Article 8(2)(c) (and Article 7(1)(f) & (k)) of the Rome Statute  
concerns some of the most fundamental rules of international  
humanitarian law. In particular, the prohibition on torture  
(including complicity in torture) is widely regarded as having  
achieved the status of a peremptory, jus cogens rule.

Since September 11, 2001, there has been considerable concern about  
the practice of "extraordinary rendition" and other legally  
questionable transfers of detainees, and about dubious practices of  
interrogation and treatment -- including on the part of countries  
traditionally supportive of international human rights and  
international humanitarian law. Such practices appear to be  
widespread, potentially involving dozens of countries and thousands  
of detainees.

The covert nature of the crimes -- and especially the fact that many  
detainees remain in custody indefinitely or simply "disappear" --  
often makes the determination of specific violations difficult. Yet  
such crimes could successfully be investigated by an institution,  
such as the International Criminal Court, having sufficient  
expertise, resources, objectivity and legitimacy. The fact that the  
International Criminal Court is uniquely positioned to get to the  
bottom of this difficult-to-investigate matter strengthens the  
argument in favour of conducting an investigation.

Additionally, thanks to the recent Globe and Mail reports, we are now  
able to identify specific individuals who have allegedly been  
tortured or otherwise abused. They include: Mohammed Ashraf, 37, who  
reportedly claims to have been "beaten for eights hours at a U.S.  
base", then "thrashed with bundles of electrical cables in NDS  
custody"34; Tila Mohammed, 18, who reportedly claims to have  
"suffered beatings and electrical shocks that were so painful that he  
blacked out for several hours"35; and Isa Mhammed, 32, who reportedly  
claims to have been "beaten with a length of black cable" and  
electrocuted "with a hand cranked generator" so that he "was flopping  
like a fish on dry earth."36

Moreover, intent -- at least in terms of wilful inaction or blindness  
-- might be relatively easy to establish in this instance. For it  
seems clear that the Canadian defence minister and the chief of the  
defence staff consciously chose not to take reasonable and readily  
apparent measures to prevent torture, cruel treatment and outrages  
upon personal dignity -- despite being fully aware of the risks of  
detainee abuse, the requirements of international law and the ready  
availability of a more legally consistent approach.

There is also the sensitive issue of avoiding the appearance of  
double standards. At the moment, the International Criminal Court is  
focused almost exclusively on situations in sub-Sahara Africa.  
Although the situations there are very deserving of attention, over  
the long term the legitimacy of the Court could suffer if it came to  
be seen as directed solely at crimes committed within one particular  
region of the world, or solely within or by developing countries. In  
its decision on issuance of an arrest warrant in the Lubanga case,  
Pre-Trial Chamber One focussed on the issue of "gravity" in  
determining admissibility. Responding to your request for a warrant  
in a case involving enlistment and conscription of child soldiers,  
the Pre-Trial Chamber said this was justified because of the "social  
alarm" surrounding the phenomenon of child soldiers. The issue of  
detainee transfers to jurisdictions where they are at apparent risk  
of torture and other forms of abuse would seem to meet this test.  
Indeed, "social alarm" about the practice of transfers to torture has  
been manifested, not just in Canada, but in international fora such  
as the institutions of the Council of Europe and the European Union,  
as well as in various components of global civil society. Finally, it  
bear repeating that the possible crimes at issue here extend well  
beyond individual acts of torture or abuse, to include policy  
decisions taken at the highest levels of military command and  
political responsibility. In such a situation, it is not the number  
of possible crimes that should matter, but rather that an entire  
military and political apparatus has been put in the service of  
possible war crimes and crimes against humanity. For this reason,  
above all, the opening of a preliminary examination under Article 15  
of the Rome Statute of the International Criminal Court would seem to  
be called for.

7. Conclusions

This letter is intended to draw your attention to possible war crimes  
and crimes against humanity committed with respect to the transfer of  
detainees from Canadian custody in Afghanistan. In particular, we  
request that you open a preliminary examination under Article 15 of  
the Rome Statute of the International Criminal Court to determine  
whether there are reasonable bases to investigate Mr. Gordon  
O'Connor, the Canadian Minister of National Defence, and General Rick  
Hillier, the Canadian Chief of the Defence Staff.

We are concerned that Mr. O'Connor and General Hillier have refused  
to cease immediately the practice of transferring detainees -- in the  
face of serious and credible accusations of torture -- and, before  
that, refused to seek to renegotiate the December 2005 Canada- 
Afghanistan Detainee Transfer Arrangement in order to bring it into  
line with pre-existing Denmark-Afghanistan, UK-Afghanistan and  
Netherlands-Afghanistan agreements. As a result, they would seem  
wilfully to be placing detainees at well-documented risk of torture,  
cruel treatment and outrages upon personal dignity. If so, they would  
appear to be committing war crimes in violation of Articles 8 and 25  
(and perhaps crimes against humanity in violation of Articles 7 and  
25) of the Rome Statute of the International Criminal Court -- in  
circumstances that clearly fall within the Court's jurisdiction.

With thanks for your attention to this matter, we are,

Yours respectfully,

Prof. Michael Byers
Canada Research Chair in
Global Politics & International Law
University of British Columbia
Vancouver, Canada
Tel: +1 (604) 822-3049
michael.byers at ubc.ca 	Prof. William A. Schabas OC
Director, Irish Centre for Human Rights
National University of Ireland, Galway
Galway, Ireland
Tel: +353.91.493726
william.schabas at nuigalway.ie


Footnotes:

1 For the Rome Statute, see: < http://www.un.org/law/icc/statute/ 
romefra.htm >.
2 See Annex 1 below, or < http://www.forces.gc.ca/site/operations/ 
archer/agreement_e.asp >.
3 Paul Koring, "Handover deal lacks key detainee protections," Globe  
and Mail, March 30, 2006, A1.
4 See, e.g.: Dana Priest & R. Jeffrey Smith, "Memo Offered  
Justification for Use of Torture; Justice Dept. Gave Advice in 2002,"  
Washington Post, June 8, 2004, A1; Neil A. Lewis & Eric Schmitt,  
"Lawyers Decided Bans on Torture Didn't Bind Bush," New York Times,  
June 8, 2004, A1; Karen J. Greenberg & Joshua L. Dratel, The Torture  
Papers: The Road to Abu Ghraib (Cambridge: Cambridge University  
Press, 2005).
5 Dana Priest & Barton Gellman, "U.S. Decries Abuse but Defends  
Interrogations; 'Stress and Duress' Tactics Used on Terrorism  
Suspects Held in Secret Overseas Facilities," Washington Post,  
December 26, 2002, A1; Don Van Natta Jr., "Questioning Terror  
Suspects In a Dark and Surreal World," New York Times, March 9, 2003,  
p. 1; Carlotta Gall, "U.S. Military Investigating Death of Afghan in  
Custody," New York Times, March 4, 2003, A14.
6 Stephen Grey, Ghost Plane: The True Story of the CIA Torture  
Program (St. Martin's Press: New York, 2006) 181-2 & 187.
7 "Report of the High Commissioner for Human Rights on the situation  
of human rights in Afghanistan and on the achievements of technical  
assistance in the field of human rights, Advanced edited version," ,  
UN doc. E/CN.4/2006/108, para. 68, available at: < http:// 
www.ohchr.org/english/bodies/chr/docs/62chr/ecn4-2006-108.doc > .
8 Sue Bailey and Bob Weber, "Canada's top general defends handling of  
Afghan prisoners as torture reported," Canadian Press, June 4, 2006.
9 See: < http://www.state.gov/g/drl/rls/hrrpt/2006/78868.htm >.
10 Graham Smith, "From Canadian custody into cruel hands," Globe and  
Mail, April 23, 2007, A1.
11 Ibid.
12 Ibid.
13 Ibid.
14 "The truth Canada did not wish to see," Globe and Mail, April 23,  
2007, A18.
15 See Annex 2 below.
16 See Annex 3 below.
17 See Annex 4 below.
18Paul Koring, "Red Cross contradicts Ottawa on detainees; Aid agency  
confirms it does not monitor Canada-Afghan deal on prisoner  
treatment," Globe and Mail, March 8, 2007, A1.
19 Bruce Campion-Smith, "Defence minister facing a new battle,"  
Toronto Star, March 17, 2007, F04.
20 See, e.g.: Standing Committee on National Defence, No. 28, 1st  
Session, 39th Parliament, Evidence, Monday, December 11, 2006, pp. 11  
& 13, available at: < http://cmte.parl.gc.ca/Content/HOC/Committee/ 
391/NDDN/Evidence/EV2598745/NDDNEV28-E.PDF >.
21 Paul Koring, "CIDA contradicts Ottawa on funding Afghan monitor,"  
Globe and Mail, March 23, 2007, A1.
22 Editorial, "O'Connor's untruth on the Afghan pact," Globe and  
Mail, March 9, 2007, A16; Editorial, "Ottawa's Afghan Duty," Toronto  
Star, March 13, 2007, A16.
23 Tonda MacCharles, "Prisoner hand-off policy in Afghanistan  
defended," Toronto Star, June 9, 2006, A19.
24 Paul Koring, "Ottawa silent on fate of captured terror suspects;  
No accounting for scores of detainees that have been handed to  
Americans, Afghans," Globe and Mail, February 6, 2007, A15.
25 Paul Koring, "Canada loses track of Afghan detainees; Military  
investigators unable to locate three men allegedly abused by troops,"  
Globe and Mail, March 2, 2007, A1.
26 Graham Smith, "From Canadian custody into cruel hands," Globe and  
Mail, April 23, 2007, A1.
27 "The truth Canada did not wish to see," Globe and Mail, April 23,  
2007, A18.
28 Daniel Leblanc, "PM defends policy on detainees," Globe and Mail,  
April 24, 2007, A16.
29 Ibid.
30 Graeme Smith, "Watchdog: 'We can't monitor these people'," Globe  
and Mail, April 24, 2007, A1.
31 Ibid.
32 Daniel Leblanc, "PM defends policy on detainees," Globe and Mail,  
April 24, 2007, A16.
33 See: Paul Koring, "Troops told Geneva rules don't apply to  
Taliban," Globe and Mail, May 31, 2006, A1.
34 Graeme Smith, "Don't bleed on the carpet," Globe and Mail, April  
24, 2007, A17.
35 Ibid.
36 Ibid.