November 11, 2007

My grandfather, Arthur Earl Kitson, survived about 3 years in the trenches in World War I, serving with the Canadian Signal Corps. When the Armistice was declared, he spend a further 24 hours in a shell hole, refusing to come out, on the grounds that he had survived the war up until then, and he didn't want to get killed by some lunatic when the war was over. My grandfather was a sane man. I'm quite sure he would have regarded Canada's Afghan involvement as lunacy.

It's time to ask the hard and obvious questions.

1. What, exactly, is Canada doing in Afghanistan?

2. What is the legal justification for NATO's presence in Afghanistan?

3. What, exactly, is NATO's plan?

4. Who is paying for NATO's plan?

Executive Summary - Canadian Prisoners of War in Afghanistan

This is the story of an attempt to get information from the Canadian government. The basic questions are:

1. What is the legal basis for Canadian troops being posted to Afghanistan?

2. What is the legal basis for Canadian troops taking prisoners in Afghanistan?

3. What is the legal status of prisoners taken by Canadian troops in Afghanistan?

DND's "Best effort" reply, Sept 17, 2007 (exactly one year after NATO announced it had captured 136 Taliban in "Operation Medusa")....

All 73 pages are posted here: http://picasaweb.google.com/nkitson/DNDBestEffort17Sep07

None of the information I requested is in this response. For Kafka fans and others who have been driven mad dealing with large organizations, I point out that the complete lack of information in this response is of three types:

1. The letter from Julie Jansen stating that the attached is their "best effort" response, and that some information may have been omitted pursuant to Sections 15 (security) and 19 (privacy) of the Access to Information Act. The letter contains no other information.

2. The attached 73 pages of operational reports from the field, excepting page 53 which has been omitted pursuant to Sections 15 and 19 of the Access to Information Act, from which all information other than headings has been redacted.

3. Page 53, which has been omitted altogether, pursuant to Sections 15 and 19 of the Access to Information Act.

You have to admire the ruthless efficiency. It's not clear to me why page 53 was singled out for particular attention, maybe it contained information that the DND believes is even more secret than in the other 72 pages that were merely whited out. It's a distinction that only a few of us Kafka enthusiasts would make.

Appeal to Information Commissioner, 22 Sep 07

I apologize for the spelling mistakes in people's names, but after 9 months of waiting for 73 pages of .... nothing.....I wasn't in a mood to be too particular.

Agreement for transfer of prisoners between Canada and Afghanistan

http://www.forces.gc.ca/site/operations/archer/agreement_e.asp

I note that Afghanistan was a party to the Geneva conventions as of 1936. Since there is a new government in Afghanistan (not to be confused with The New Government of Canada), which has a new constitution (again, not to be confused with the existing Canadian constitution), the Afghan government is presumably not bound by any of International Humanitarian Law. I'm only saying.

__________________________________________________________

"No derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied."

--Third Geneva Convention with respect to Prisoners of War, 1949

Legal status of Canadian prisoners in Afghanistan

This is the view of Michael Byers, a professor of international law at the University of British Columbia.

http://www.ligi.ubc.ca/?p2=modules/liu/publications/view.jsp&id=25

http://www.ceasefire.ca/atf/cf/%7B0A14BA6C-BE4F-445B-8C13-51BED95A5CF3%7D/Michael%20Byers%20Opinion%20Canada-Afghanistan%20Arrangement%207%20April%202006.pdf

Prisoners of War when they aren't......

"It is impossible to complete this account without referring to a terrible decision of policy adopted by Hitler towards his new foes, and enforced under all the pressure of the mortal struggle in vast barren or ruined land and winter horrors. Verbal orders were given by him at a conference on June 14, 1941, which to a large extent governed the conduct of the German Army towards the Russian troops and people, and led to many ruthless and barbarous deeds. According to the Nuremberg documents, General Halder testified:

Prior to the attack on Russia the Fuehrer called a conference of all the commanders and persons connected with the Supreme Command on the question of the forthcoming attack on Russia.....At this conference the Fuehrer stated that the methods used in the war against the Russians would have to be different from those used against the West....He stated that since the Russians were not signatories of the Hague Convention the treatment of their prisoners of war did not have to follow the Articles of the Convention.....

And according to Keitel:

Hitler's main theme was that this was the decisive battle between the two ideologies and that this fact made it impossible to use in this war [with Russia] methods, as we soldiers knew them, which were considered to be the only correct ones under international law."

Winston Churchill, The Grand Alliance, 1950, Houghton Mifflin, Boston, pg. 368

Wilhelm Keitel was hung at Nuremberg, 16 Oct 1946

Leaving Afghanistan: "Cut and Run"?

During Churchill's visit to Moscow in August 1942, Stalin consistently nagged the Allies to open a "second front" in France, so as to take pressure off the Soviet Army. Churchill consistently expressed the Allied view that such an undertaking would be folly until it could be realistically attempted. On August 13 he told Stalin:

"Compared with 'Torch' [the North African landing], the attack with six or eight Anglo-American divisions on the Cherbourg peninsula and the Channel Islands would be a hazardous and futile operation. The Germans have enough troops in the West to block us in this narrow peninsula with fortified lines, and would concentrate all their air forces in the West upon us. In the opinion of all the British naval, military and air authorities, the operation could only end in disaster. Even if the lodgement were made it would not bring a single [German] division back from Russia. It would also be far more of a running sore for us than for the enemy, and would use up wastefully and wantonly the key men and the landing-craft required for real action in 1943." --The Hinge of Fate, pg 491

Six days later, the Dieppe Raid was launched and did indeed end in disaster. Troops and equipment (in large part Canadian) were indeed used up wastefully and wantonly. As stated on the Government of Canada's historical web site :

"After nine hours fighting ashore, the force withdrew. [Emphasis added] Over one thousand were dead and two thousand prisoners were in German hands, more prisoners than the whole Canadian Army lost in either the North West Europe or Italian campaigns."

I have never heard it suggested that Canada "cut and ran". Abandoning a stupid operation seems smart; pursuing it..... stupid.

For law geeks: S.C.R. 66, 2003 SCC8

From the decision of the Supreme Court in the case of the Information Commissioner of Canada V. Commissioner of the Royal Canadian Mounted Police and Privacy Commissioner of Canada:

Paragraph 15 states in part,

"It is also noteworthy that s.2(1) indicates that it is a purpose of the Access Act to ensure that 'decisions on the disclosure of government information should be reviewed independently of government'. The absence of a privative clause is not determinative by itself (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748). However, that factor, in conjunction with the explicit provision for the court to review refusals, and the importance ascribed by the Access Act to independent review, are indicative of a Parliamentary intention that the court have broad powers of review."

Citizen Kitson

In October 2006, a piece I wrote was posted on Counterpunch.org (http://www.counterpunch.org/kitson10232006.html), entitled, "Canadians in Afghanistan: Bloody, Unbowed, Stoned?". It was written in the form of a memo to Rick Hillier, Chief of the Defence Staff, and in one of the many digressions, I wondered what had become of the prisoners taken by Canadian troops during Operation Medusa, really wondering whether they had been afforded the rights of Prisoners of War, as described by the Geneva Conventions to which Canada has subscribed.

I didn't hear back from Rick, not surprisingly, so I asked his alleged boss, then Gordon O'Connor, Minister for Defence, a guy who seemed a few Afghans short of a drug deal. He sent me a flatulent email that answered none of my questions, but in the meantime I also heard, in response to my posting, from an impeccable source who said that at least one of the prisoners taken by Canadians, before Operation Medusa, had ended up in Guantanamo. I'm not a lawyer, but to me, that's a pretty clear case of what I understand to be "a grave breach of international humanitarian law"; a.k.a., War Crime. Anyone who thinks that Guanatamo is OK should visit the ACLU files containing FBI eyewitness accounts(http://www.aclu.org/safefree/torture/27807lgl20070102.html).

A readable and horrific extract can be found at the Harper's Magazine website, http://www.harpers.org/archive/2007/03/0081421.

These accounts can be measured against the Geneva Conventions (http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5ZMGF9) , which state in part:

"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

So, I applied, under the Access to Information Act, for the following information:

1. How many prisoners were taken by Canadian troops during Operation Medusa?

2. In what jurisdiction are those prisoners now held?

3. Where are the records of these prisoners kept?

How it started.....

Some insane time ago, Canadians ended up fighting in Afghanistan as part of the War on Terror. During that time, Canadian troops took prisoners. The legal basis for taking prisoners, and the legal basis for transferring them to other jurisdictions, is not clear, at least not to me. This occurred to me when I wrote a little memo on the subject to Rick Hillier, Chief of the Defence Staff.

Subsequently, I decided to ask the Department of National Defence those very questions:

The rest....followed....