National Post editorial board: When in Afghanistan...
Posted: October 16, 2009, 8:30 AM by NP Editor
Editorial
The Conservative government continues to face accusations that it is deliberately trying to sandbag an inquiry into when Canadian military police first knew they might be transferring Afghan prisoners to Afghan detention facilities where they might be tortured or made to suffer privations by other Afghans. The issue, at this point, is the period of time between May 2006, when Canadian diplomat Richard Colvin first warned of the possibility that Canadians were indirectly implicated in “serious” prisoner abuse by the sovereign government of Afghanistan, and May 2007, when the government agreed to strengthen procedures for following up on Canadian captives in Afghan custody.
Or alternatively, the issue at this point is whether the transfer of prisoners from Canadian to Afghan custody was ever legal in the first place.
Many of the news stories about this controversy are careful to mention that Canada is bound to comply with the Geneva Conventions on the treatment of prisoners and victims of war. If it were the case that the totality of the Conventions applied, there might be good reason for the expectation of civilian oversight and deep investigation. But most of the provisions of the Conventions don’t apply directly to the war in Afghanistan, since it is not a conflict of “international character” under their terms. The full Conventions are relevant only by a sort of verbal game which turns them into a permanent, universal norm for wars featuring non-state actors.
Willem Keitel, who was hung at Nuremberg for violation of The Hague Convention, would be interested to hear that the Geneva Conventions are "a sort of verbal game." The judgement of the International Military Tribunal states in part:
"On 4th August, 1942, Keitel issued a directive that paratroopers were to be turned over to the SD. On 18th October Hitler issued the Commando Order which was carried out in several instances. After the landing in Normandy, Keitel reaffirmed the order, and later extended it to Allied missions fighting with partisans. He admits he did not believe the order was legal but claims he could not stop Hitler from decreeing it."
"When, on 8th September 1941, OKW issued its ruthless regulations for the treatment of Soviet POW's, Canaris wrote to Keitel that under international law the SD should have nothing to do with this matter. On this memorandum in Keitel's handwriting, dated 23rd September and initialled by him, is the statement:" The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures." Keitel testified that he really agreed with Canaris and argued with Hitler, but lost. The OKW Chief directed the military authorities to cooperate with the Einsatzstab Rosenberg in looting cultural property in occupied territories."
........
"There is nothing in mitigation. Superior orders, men to a soldier cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification."
The magnitude of Keitel's crimes was horrendous, but like murder, the principle is the same. What worries us "liberal critics" is that the law is very clear - and this is Canadian law - if we take prisoners, we're responsible for their welfare and the standard is that of the Geneva Conventions. If we can't meet that standard, then the operation is illegal.
Just to be clear about the law, in the Federal Court of Canada, which presumably has jurisdiction in whatever dark little world is inhabited by the National Post Editorial Board, Justice Mactavish stated in 2008 FC 336 at paragraphs 179 and 180 among other places that the Third Geneva Convention applied to prisoners taken by Canadians.
Furthermore, the Secretary-General of the United Nations in his Bulletin of 1999, stated that the Third Geneva Convention was the standard for United Nations Forces acting in the field. There are those of us - liberal fools presumably - who thought that the Third Geneva Convention of August 12, 1949 regarding the treatment of prisoners of war was a fact, and that exactly fifty years later, on August 12, 1999, the Secretary General of the United Nations merely confirmed that this standard applied to UN forces in the field.
This is part of a questionable trend in international law that began even before 9/11: Liberal critics generally would like to eliminate the distinction between our obligations to a traditional warring state and our obligations to insurgent and guerrilla groups. This includes groups such as the Taliban that use terror against civilians and themselves regard the Geneva code as ridiculous.
There is a certain John Yoo-like quality to this rhetoric. It doesn't matter what anybody thinks about the Geneva Conventions. The fact is that they apply to Canadian forces in Afghanistan as everywhere. I draw the Post's attention to Section 8 of the Secretary-General's Bulletin.
There are core rules that do apply to the Conventions’ contracting parties in absolutely all military conflicts: namely, that noncombatants and the wounded should not suffer murder or assault, should not be used as hostages, should not be gratuitously humiliated, should not be subject to summary execution, and must receive medical treatment and the necessities of life. But combatants healthy enough to be jailed instead of hospitalized — such as those Afghan prisoners at the root of the current controversy — aren’t entitled even to this second-hand protection. This fact makes the case for running roughshod over our own military and national security, in pursuit of the rights of those combatants, much weaker.
Well, this is bullshit. What are "Afghan prisoners at the root of the current controversy"? Farmers who don't like violent foreigners on their land? Sunni fundamentalists who've grown up in poverty and war, and want to strike back at the most obvious of targets? Taliban "contractors" from Uzbekistan? By the way, is Uzbekistan on the list of nations like to shelter al-Qaeda? Or how about Yemen? What does "running roughshod over our own military" mean? Application of the rule of law? In case the Post thinks international law is some kind of nebulous standard to be used for political purposes, I draw its attention to the Crimes Against Humanity and War Crimes Act (2000), and in particular to Section (2)(a)(vii) on page 22 that defines "unlawful transfer" of prisoners of war as a war crime.
The fact is that Canada, as an invited participant in a foreign civil war on behalf of the sovereign power there, faces an intractable logical difficulty. We’re fighting for a backward culture that does not accept all of our ideas about human rights — against an even worse subculture that not only has the most attenuated notions of human rights conceivable, but is a standing threat to the peace of the whole world. In such an environment, it is inevitable that Canadian soldiers will be complicit, if only indirectly, in procedures that do not meet our own rarefied due-process standards. Short of Canadians building their own prison and court system in Afghanistan, or sending every single detainee we catch to face Canadian criminal justice, Afghanistan’s dirty fight will always leave some kind of black mark on those Canadians who are fighting it.
Not to belabour the point, dear Editors, but the Canadian military were also under the impression that the Geneva Conventions applied to their prisoners, since the International Committee of the Red Cross was notified of the capture of all of them, as shown in this nice cumulative log:
You might also notice that this log stops at the end of April 2006, which is about the time Mr. Colvin started gathering information about such prisoners in Kandahar. I was advised by Counsel for the Department of National Defence at a hearing April 20, that the statistics were not kept after the end of April, although this seems improbable on the face of it.I didn't know we could be invited to be a "participant" in a "foreign civil war". Who invited us? I had thought, perhaps wrongly, that we were in Afghanistan by flimsy legal cover of NATO's right to "collective self defence", Article 5, corresponding to Article 51 of the UN Charter, the rationale for this being that Afghanistan had "attacked" New York, or harboured those who did, and unless NATO invaded Afghanistan in self-defence, attacks might occur endlessly - masterminded by evil geniuses holed up like malignant termites in the Hindu Kush or Tora Bora or wherever - and the fact that there were terrorist attacks in London and Madrid subsequent to the invasion doesn't mean anything: things would have been much worse if Afghanistan hadn't been invaded.
Our one message to the government’s liberal critics is that Canada may someday be involved in a war on this particular model that they actually favour, even if they don’t favour this one. Wars these days tend not to be fought in Belgium and Britain — but in places such as Darfur and Chechnya, where the concepts of human rights and due process are bad jokes. Do they want to make it impossible for us ever to do battle against the truly intolerable on behalf of the merely questionable?
The question, dear Editors, is who decides what is "the truly intolerable"? Do we, like, decide in a bar on the back of a beer coaster? If yes, who is "we"? Do we debate the matter in Parliament and then decide to "participate" in a civil war, if invited? Is Canadian foreign policy decided in a back room at NATO HQ in Brussels? At the United Nations Security Council? If so, using what rules? The legal problems of the "Responsibility to Protect" are considerable, and as Somalia showed, it's easier to get in than get out, and even more difficult to get out leaving a lasting peace.
That is the question that non-government intervenors and academics increasingly seem to be raising: not whether the Canadian military should have been in Afghanistan, but whether it can ever go anywhere and still conform to their notions of right conduct.
The question, members of the NP Editorial Board, is whether we live under the rule of law or whether we don't. The law is not a "notion of right conduct". As Orwell said, there's only one rule in power politics, which is that there are no rules. If we live under the rule of law, and I believe we do, then that law is clear, it includes the Third Geneva Convention, and that Convention definitely applies to prisoners taken by Canadian forces in Afghanistan. If the National Post Editorial Board prefers arbitrary rule, it can move to Guantanamo. With luck, they might be struck by hurricanes and have to watch endless Leafs games in their shelters.
In matters of human rights overseas, let us not permit the great to become the enemy of the good.
In matters of human rights overseas, the good may necessarily become the enemy of the great.
Read more: http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/10/16/national-post-editorial-board-when-in-afghanistan.aspx#ixzz0UEHB209X
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