But Germany isn't....

'Conservative Whip Jay Hill spoke of a recent dinner he and his wife had with Afghanistan's ambassador to Canada, who was interrupted by a phone call.

"I could see he was upset," said Mr. Hill, adding that he asked why. "Two young girls were murdered on the roadside while walking home from school. What was their crime? Their crime was that they wanted an education. ...

"To me, the discussion that night very clearly exemplified why we are there."'


Breaking News
the Globe and Mail
Wednesday, February 27

"The First Afghan War provided the clear lesson to the British authorities that while it may be relatively straightforward to invade Afghanistan...

...it is wholly impracticable to occupy the country or attempt to impose a government not welcomed by the inhabitants. The only result will be failure and great expense in treasure and lives."

The Battle of Kabul and the retreat to Gandamak
War: First Afghan War
Date: January 1842.
Place: Central Afghanistan.
Combatants: British and Indians of the Bengal Army and the army of Shah Shuja against Afghans and Ghilzai tribesmen..
Afghans attacking the retreating British and Indian army

Generals: General Elphinstone against the Ameers of Kabul, particularly Akbar Khan, and the Ghilzai tribal chiefs.

Size of the armies: 4,500 British and Indian troops against an indeterminate number of Ghilzai tribesmen, possibly as many as 30,000.

Uniforms, arms and equipment:The British infantry, wearing cut away red jackets, white trousers and shako hats, were armed with the old Brown Bess musket and bayonet. The Indian infantry were similarly armed and uniformed.

The Ghilzai tribesmen carried swords and jezail, long barrelled muskets.

Winner: The British and Indian force was wiped out other than a small number of prisoners and one survivor.

British Regiments: 44th Foot, later the Essex Regiment and now the Royal Anglian Regiment. Regiments of the Bengal Army:2nd Bengal Light Cavalry1st Bengal European Infantry37th Bengal Native Infantry48th Bengal Native Infantry2nd Bengal Native Infantry27th Bengal Native Infantry.Bengal Horse Artillery


The War: The British colonies in India in the early 19th Century were held by the Honourable East India Company, a powerful trading corporation based in London, answerable to its shareholders and to the British Parliament.


In the first half of the century France as the British bogeyman gave way to Russia, leading finally to the Crimean War in 1854. In 1839 the obsession in British India was that the Russians, extending the Tsar’s empire east into Asia, would invade India through Afghanistan.
This widely held obsession led Lord Auckland, the British governor general in India, to enter into the First Afghan War, one of Britain’s most ill-advised and disastrous wars.


Until the First Afghan War the Sirkar (the Indian colloquial name for the East India Company) had an overwhelming reputation for efficiency and good luck. The British were considered to be unconquerable and omnipotent. The Afghan War severely undermined this view. The retreat from Kabul in January 1842 and the annihilation of Elphinstone’s Kabul garrison dealt a mortal blow to British prestige in the East only rivaled by the fall of Singapore 100 years later.


The causes of the disaster are easily stated: the difficulties of campaigning in Afghanistan’s inhospitable mountainous terrain with its extremes of weather, the turbulent politics of the country and its armed and refractory population and finally the failure of the British authorities to appoint senior officers capable of conducting the campaign competently and decisively.


The substantially Hindu East India Company army crossed the Indus with trepidation, fearing to lose caste by leaving Hindustan and appalled by the country they were entering. The troops died of heat, disease and lack of supplies on the desolate route to Kandahar, subject, in the mountain passes, to constant attack by the Afghan tribes. Once in Kabul the army was reduced to a perilously small force and left in the command of incompetents. As Sita Ram in his memoirs complained: “If only the army had been commanded by the memsahibs all might have been well."


The disaster of the First Afghan War was a substantial contributing factor to the outbreak of the Great Mutiny in the Bengal Army in 1857.


The successful defence of Jellalabad and the progress of the Army of Retribution in 1842 could do only a little in retrieving the loss of the East India Company’s reputation.


Account: Following the British capture of Kandahar and Ghuznee Dost Mohammed, whose replacement on the throne in Kabul by Shah Shujah was the purpose of the British expedition into Afghanistan, despairing of the support of his army fled to the hills. On 7th August 1839 Shah Shujah and the British and Indian Army entered Kabul. The British official controlling the expedition was Sir William Macnaghten, the Viceroy’s Envoy, acting with his staff of political officers.


At first all went well. British money and the powerful Anglo-Indian Army kept the Afghan tribes in controllable bounds, pacifying the Ameers with bribes and forays into the surrounding districts.

In November 1840 during a raid into Kohistan two squadrons of Bengal cavalry failed to follow their officers in a charge against a small force of Afghans led by Dost Mohammed himself. Soon afterwards, despairing of his life in the mountains, Dost Mohammed surrendered to Macnaghten and went into exile in India, escorted by a division of British and Indian troops no longer required in Afghanistan and accompanied by the commander in chief Sir Willoughby Cotton.
In December 1840 Shah Shujah and Macnaghten withdrew to Jellalabad for the ferocious Afghan winter, returning to Kabul in the spring of 1841.


In the assumption that the establishment of Shah Shujah as Ameer was complete, the British and Indian troops were required to move out of the Balla Hissar, a fortified palace of considerable strength outside Kabul, and build for themselves conventional cantonments. A further complete brigade of the force was withdrawn, leaving the remaining regiments to settle into garrison life as if in India, summoning families to join them, building a race course and disporting themselves under the increasingly menacing Afghan gaze.


There were plenty of signs of trouble. The Ghilzai tribes in the Khyber repeatedly attacked British supply columns from India. Tribal revolt made Northern Baluchistan virtually ungovernable. Shah Shujah’s writ did not run outside the main cities, particularly in the South Western areas around the Helmond River.Sir William Cotton was replaced as commander in chief of the British and Indian forces by General Elphinstone, an elderly invalid now incapable of directing an army in the field, but with sufficient spirit to prevent any other officer from exercising proper command in his place.


The fate of the British and Indian forces in Afghanistan in the winter of 1840 to 1841 provides a striking illustration of the collapse of morale and military efficiency where the officers in command are indecisive and wholly lacking in initiative and self-confidence. The only senior officer left in Afghanistan with any ability was Brigadier Nott, the garrison commander at Kandahar. Crisis struck in October 1841. In that month Brigadier Sale took his brigade out of Kabul as part of the force reductions and began the march through the mountain passes to Peshawar and India. Throughout the journey his column was subjected to continuing attack by Ghilzai tribesmen and the armed retainers of the Kabul Ameers. Sale’s brigade, which included the 13th Foot, fought through to Gandamak, where a message was received summoning the force back to Kabul, Sale did not comply with the order and continued to Jellalabad.


In Kabul serious trouble had broken out. On 2nd November 1841 an Afghan mob stormed the house of Sir Alexander Burnes, one of the senior British political officers, and murdered him and several of his staff. It is the authoritative assessment that if the British had reacted with vigour and severity the Kabul rising could have been controlled. But such a reaction was beyond Elphinstone’s abilities. All he could do was refuse to give his deputy, Brigadier Shelton, the discretion to take such measures. Until the end of the year the situation of the Kabul force deteriorated as the Afghans harried them and deprived them of supplies and pressed them more closely.


On 23rd December 1841 Macnaghten was lured to a meeting with several Afghan Ameers and murdered. While the Kabulis awaited a swift retribution the British and Indian regiments cowered fearful in their cantonments. Attempts to clear the high ground that enabled the Afghans to dominate the cantonments failed miserably, because the troops were too cowed to be capable of aggressive action.


The beginning of the end came on 6th January 1842 when the British and Indian garrison, 4,500 soldiers, including 690 Europeans, and 12,000 wives, children and civilian servants, following a purported agreement with the Ameers guaranteeing safe conduct to India, marched out of the cantonments and began the terrible journey to the Khyber Pass and on to India. As part of the agreement with the Ameers all the guns had to be left to the Afghans except for one horse artillery battery and 3 mountain guns and a number of British officers and their families were required to surrender as hostages, taking them from the nightmare slaughter of the march into relative security. In spite of the binding undertaking to protect the retreating army, the column was attacked from the moment it left the Kabul cantonments.


The army managed to march 6 miles on the first day. The night was spent without tents or cover, many troops and camp followers dying of cold. The next day the march continued, Brigadier Shelton, after his ineffectiveness as Elphinstone’s deputy, showing his worth leading the counter attacks of the rearguard to cover the main body.


At Bootkhak the Kabul Ameer, Akbar Khan, arrived claiming he had been deputed to ensure the army completed its journey without further harassment. He insisted that the column halt and camp, extorting a large sum of money and insisting that further officers be given up as hostages. One of the conditions negotiated with the Ameers was that the British abandon Kandahar and Jellalabad. Akbar Khan required the hostages to ensure Brigadier Sale left Jellalabad and withdrew to India.


The next day found the force so debilitated by the freezing night that few of the soldiers were fit for duty. The column struggled into the narrow five mile long Khoord Cabul pass to be fired on for its whole length by the tribesmen posted on the heights on each side. The rearguard was found by the 44th Regiment who fought to keep the tribesmen at bay. 3,000 casualties were left in the gorge.


On 9th January 1842 Akbar Khan required further hostages in the form of the remaining married officers with their families. For the next two days the column pushed through the passes and fought off the incessant attacks of the tribesmen. On the evening of 11th January 1842 Akbar Khan compelled General Elphinstone and Brigadier Shelton to surrender as hostages, leaving the command to Brigadier Anquetil. The troops reached the Jugdulluk crest to find the road blocked by a thorn abattis manned by Ghilzai tribesmen. A desperate attack was mounted, the horse artillery driving their remaining guns at the abattis, but few managed to pass this fatal obstruction.


The final stand took place at Gandamak on the morning of 13th January 1842 in the snow. 20 officers and 45 European soldiers, mostly of the 44th Foot, found themselves surrounded on a hillock. The Afghans attempted to persuade the soldiers that they intended them no harm. Then the sniping began followed a series of rushes. Captain Souter wrapped the colours of the regiment around his body and was dragged into captivity with two or three soldiers. The remainder were shot or cut down. Only 6 mounted officers escaped. Of these 5 were murdered along the road. On the afternoon of 13th January 1842 the British troops in Jellalabad, watching for their comrades of the Kabul garrison, saw a single figure ride up to the town walls. It was Dr Brydon, the sole survivor of the column.


Casualties: The entire force of 690 British soldiers, 2,840 Indian soldiers and 12,000 followers were killed or in a few cases taken prisoner. The 44th Foot lost 22 officers and 645 soldiers, mostly killed. Afghan casualties, largely Ghilzai tribesmen, are unknown.


Follow-up: The massacre of this substantial British and Indian force caused a profound shock throughout the British Empire. Lord Auckland, the Viceroy of India, is said to have suffered a stroke on hearing the news. Brigadier Sale and his troops in Jellalabad for a time contemplated retreating to India, but more resolute councils prevailed, particularly from Captains Broadfoot and Havelock, and the garrison hung on to act as the springboard for the entry of the “Army of Retribution” into Afghanistan the next year.


Regimental anecdotes and traditions:

The First Afghan War provided the clear lesson to the British authorities that while it may be relatively straightforward to invade Afghanistan it is wholly impracticable to occupy the country or attempt to impose a government not welcomed by the inhabitants. The only result will be failure and great expense in treasure and lives.


The British Army learnt a number of lessons from this sorry episode. One was that the political officers must not be permitted to predominate over military judgments. The War provides a fascinating illustration of how the character and determination of its leaders can be decisive in determining the morale and success of a military expedition.


It is extraordinary that officers, particularly senior officers like Elphinstone and Shelton, felt able to surrender themselves as hostages, thereby ensuring their survival, while their soldiers struggled on to be massacred by the Afghans.

[....and equally interesting that American officers get helicoptered out of harm's way

http://www.nytimes.com/2008/02/24/magazine/24afghanistan-t.html?_r=1&ex=1361509200&en=2af41ac16189c49d&ei=5090&partner=rssuserland&emc=rss&pagewanted=all&oref=slogin

while their troops fight their way through an Afghan ambush...]


References:Afghanistan From Darius to Amanullah by Lieutenant General Sir George McMunn.

The Afghan Wars by Archibald Forbes.© britishbattles.com 2005.



© britishbattles.com 2007.

NATO: Eulogy for a Burial at Sea

We are gathered together in Placentia Bay in 2011 where, 70 years ago, Winston Churchill and Franklin Delano Roosevelt wrote the first draft of the Atlantic Charter, subsequently the basis for the North Atlantic Treaty Organization.

Our purpose today is to acknowledge that their goals have been fulfilled, and that protection of humanity from the scourge of war must pass into other hands. So it must be, or the purposes of Churchill and Roosevelt will be denied and defeated.

NATO itself has become, like Frankenstein, an organism beyond the imagination of its creators, a parallel organization to the United Nations, yet providing neither the peace nor the security long hoped for.

The attacks on September 11, 2001, aroused in the United States a desire to act alone. Under these circumstances, we must recall the words of George Orwell: "There is only one rule in power politics, and that is that there are no rules".

In times such as these, NATO has become an enabler of power politics. It has played its part, and we now consign it to the deeps. May the Lord have mercy on its intentions.

A National Disgrace

Cheating our veterans


Sean Bruyea, National Post Published: Thursday, February 14, 2008


This Valentine's Day, thousands of cards and good wishes will be sent to soldiers on the front lines in Afghanistan. But back home, a very different sentiment is being shown to more than 4,200 injured soldiers. While Canadians honour and thank our soldiers serving abroad, many disabled military members are forgotten once their uniforms come off.


Since October, 2000, Canadian law stipulates that a wounded soldier can collect his full salary as well as pain and suffering payments. If a soldier is so wounded as to be unemployable, he must be forced out of the military and paid a salary reduced to 75% of his previous income -- with pain-and-suffering payments deducted from the new, lower income. The injustice of this deduction policy attracted the attention of the standing committee on national defence and veterans affairs in 2003, which passed a motion imploring the minister of national defence to stop the deductions. Ironically, the current minister of national defence, Peter MacKay, as well as the current prime minister, president of the treasury board and minister of veterans affairs were all associate members of that committee when the motion was passed.


And yet nothing has been done to right this wrong. The reason is simple: The bureaucrats standing in the way of a just policy have little idea what it means to serve in the military. Ironically, these same senior bureaucrats receive free disability plans, paid for by Canadian taxpayers -- and their plan does not deduct pain and suffering payments.


Since Tuesday, a Halifax courtroom has been hearing a request to certify a class-action lawsuit that would force the federal government to stop deducting pain-and-suffering payments from disabled soldiers' long-term disability plans. The judge has read an affidavit from Andre Bouchard, the president of the Service Income Security Insurance Plan (SISIP), the disability plan mandatory for all Canadian forces personnel. Mr. Bouchard, who in fact served in the military for almost 30 years, claims that should the SISIP plan stop deducting pain and suffering payments, the result would be "exorbitant premiums which would impose significant hardship on the members of the Canadian Forces."


But how much more expensive would the higher premiums actually be? Currently, a corporal in the military pays approximately $9.40 per month for the long-term disability policy. Mr. Bouchard predicts that premiums would increase by 40%, or just $3.76 per month-- the price of a latte.


Mr. Bouchard makes further excuses, claiming that disabled soldiers "could effectively receive more than 100% of their former income" were the policy to be changed. But a senior federal public servant on rehabilitation can earn up to 100% of his former income -- and still collect veterans affairs payments if previously injured in the military. Why the double standard?
Such obvious discrimination led the previous department of national defence ombudsman Yves Cote to state "the inequity might very well be serious enough to attract the protection of human rights legislation, as well as the protection of the equality provisions set out in section 15 the Canadian Charter of Rights and Freedoms, which identify physical and mental disabilities as prohibited grounds of discrimination."


Canada must renew the broken trust with our forgotten soldiers and give them back the money that has been wrongfully taken from them. Only then will the soldiers consider trusting the very society for which they have sacrificed so much.


seankis@rogers.com - Sean Bruyea is a retired captain and disabled soldier who served as an intelligence officer in the Canadian Forces for 14 years. He is now an advocate for other disabled veterans.

NATO soldier killed in explosion in southern Afghanistan

NATO update

http://www.nato.int/isaf/docu/pressreleases/2008/02-february/pr080221-076.html

Meanwhile, a NATO soldier was killed and another wounded in an explosion in southern Afghanistan while two suspected Taliban leaders were killed and 22 others militants were detained.

The soldiers were patrolling in Viking vehicles to disrupt Taliban forces north of Sangin in the southern Helmand province when the explosion occurred, British defence ministry said in a statement.

NATO-led International Security Assistance Force (ISAF) also confirmed the death of one of its soldiers and the wounding of another, but provided no more details.


The deceased soldier became the 89th British fatality since the ouster of Taliban in late 2001 in Afghanistan. There are about 7,800 British soldiers deployed mainly to southern Helmand province, which is also the largest-opium-growing province in the country.

The Quick and the Dead

http://www.antiwar.com/orig/kitson.php?articleid=12379

I should explain that the "quick" is from the King James version of the Bible, meaning the "living".

Jus ad bellum et jus in bello

Robert Kolb is preparing a doctorate in international law at the Graduate Institute for International Studies in Geneva; his thesis is entitled La bonne foi en droit international public (Good faith in public international law).

The august solemnity of Latin confers on the terms jus ad bellum and jus in bello [1] the misleading appearance of being centuries old. In fact, these expressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice until after the Second World War, in the late 1940s to be precise. This article seeks to chart their emergence.The doctrine of just warThe terms jus ad bellum and jus in bello did not exist in the Romanist and scholastic traditions. They were unknown to the canon and civil lawyers of the Middle Ages (glossarists, counsellors, ultramontanes, doctors juris utriusque, etc.), as they were to the classical authorities on international law (the School of Salamanca, Ayala, Belli, Gentili, Grotius, etc.). In neither period, moreover, was there a separation between two sets of rules — one ad bellum, the other in bello. [2]From earliest times, the Western tradition sought to place war in a legal framework by formulating a doctrine of just war [3]. The aim was to reconcile might and right, Sein and Sollen, by making the former serve the latter, or by curtailing might with right. On the basis of those premises, war was seen as a just response to unprovoked aggression, and more generally as the ultimate means for restoring a right that had been violated (consecutio juris) [4] or for punishing the offender [5]. The material causes for which a just war could be waged fell into four categories: defence, recuperation of property, recovery of debts and punishment. An act of war was considered lawful if it was just; and it was considered just if it met the conditions enumerated above.In the doctrine of bellum justum, therefore, legal analysis bore exclusively on the act of resorting to war, and more particularly on the causes pursued.

War was viewed from the subjective angle as a concrete act carried out by a specific belligerent for specific reasons, and such an act brought into being a legal regime that reflected the validity of the causes invoked or, so to speak, the belligerent’s right to resort to force. This meant that war was not seen as a de facto situation to which the same set of rules applied in all cases. In other words, there was no general jus in bello; the rights and obligations of belligerents were unequal and depended exclusively on the causes which they claimed to be pursuing and on the material justness of those causes. [6]

Thus, for example, Grotius’s temperamenta belli (restrictions on warfare), which it is tempting to equate with contemporary jus in bello, applied only to belligerents resorting to war for a just cause [7]; they broadened the concept of just war while defining its limits. Here, too, everything revolved around the notion of just cause. A belligerent without a just cause had no rights; he was simply a criminal who might beexecuted.

Consequently, no legal restraints could be imposed on his behaviour. For these reasons, there was no room for jus in bello as we understand it today, that is, a body of independent, objective and suprapersonal rules applying to all belligerents alike and governing the conduct of hostilities in a de facto situation [8]. This explains why both the term jus in bello and the concept to which it refers are absent from the classical texts.

As for the term jus ad bellum, its absence is more surprising. However, the simple right to wage war that was vested in public authorities was also irrelevant in the doctrine of bellum justum [9]. Legal analysis looked deeper, focusing instead on causes and hence on the lawfulness of resorting to war. Moreover, the predominance of ad bellum considerations in general over the in bello aspect made it impossible even to conceive of such terms, whose existence would have implied a more extensive, evenly balanced and fully articulated development of two mutually exclusive branches of the law [10].

We are reminded of the early philosophers’ theory whereby a term or a concept can come into existence only in relation to its absolute opposite. They claimed, for example, that ugliness existed only in relation to beauty; it could not be conceived of except in contrast to beauty.

Although the time was clearly not ripe for the emergence of the terms that concern us here, they sometimes crept in, used in a non-technical sense far removed from their modern meaning. Grotius, for instance, wrote that he was “fully convinced (...) that there is a law common to all nations governing both recourse to war and the conduct of warfare...” [11]. This law ad bella and in bellis obviously remained subordinate to the doctrine of just war [12]. To sum up, the subjective notion of the right to wage war in pursuit of certain causes precluded the emergence of an independent jus in bello; at the same time, however, the doctrine of lawful causes for waging war inhibited the affirmation of the simple right to make war (jus ad bellum). In such a system, both concepts lay outside the scope of the law, which was concerned with antecedent issues.

War as a de facto situation.

Throughout the seventeenth and eighteenth centuries, the doctrine of just war lost ground to the idea that States had discretionary powers to wage war and that those powers could be used as a means of pursuing national policy. That was the era of raison d’Etat. This concept of war became permanently entrenched in the nineteenth century, in parallel with the erosion of the concept of war as a just act. War was now seen as a de facto and intellectually neutral situation [13]. Quite logically, the result was a major shift in the legal emphasis from the subjective lawfulness of resorting to war to the rights and duties relating to hostilities as such, in other words to rights and duties durante bello [14]. This new edifice appears to be a mirror image of the previous one. A system based on the material lawfulness of war (war as a sanction) gave way to a system focusing on its formal regulation (rules pertaining to the opening of hostilities and the effects of war) [15]. To quote an eminent specialist on the subject: “Now that the field of vision had been restricted, greater attention could be paid to the conduct of hostilities: for owing to this indifference [to the causes of war], armed violence came to be seen first and foremost as a process to be regulated in itself, regardless of its causes, motives and ends.” [16]

This opened the door to jus in bello as it is understood today. The distinction which Vitoria had already begun to make between lawful reasons for resorting to war and just limits in the law of war [17] was upheld by Wolff, the first to see rights and duties durante bello as being independent of the underlying causes of war [18], and was later firmly established by Vattel, who incorporated into the law of nations a series of rules setting legal restrictions on means of warfare [19]. Kant made an explicit and modern distinction between the two branches of the law (Recht zum Krieg and Recht im Kriege) [20], but neither he nor any of the other authors mentioned used the terms jus ad bellum and jus in bello. The explanation for this lies in the lack of any doctrinal need to draw a conceptual distinction between the two branches of the law rather than in random developments of terminology or the decline of Latin.

The fact is that for reasons that were different in nature but identical as to their effect, the mere competence to resort to war (jus ad bellum) aroused no more legal interest than it had previously. As one of the sovereign’s absolute and discretionary powers [21], it was seen as the cornerstone of the rules of law relating to war, their logical prius, and thus basically remained an implicit dogma. Legal endeavours had focused entirely on the formalities to be observed in initiating hostilities and on the respective rights and obligations of belligerents, that is to say on matters subsequent to the subjective right to resort to war. Yet the term jus in bello was still not used. The lack of any opposition or equivalence between the two branches of the law prevented the emergence of such a term, which could only come into existence when the two aspects of war assumed approximately equal importance and it became necessary to underline the distinction between them.

It was at the time of the League of Nations that the two branches came to be considered on an equal footing and found their place in positive law. In the expression of the time, the aim was to “outlaw war” [22]. The former absolute power to resort to war was replaced by the rules of jus contra bellum. From then on, the problem of recourse to force was at the centre of legal concerns, standing in opposition to law in bello. The theoretical distinction between laws aimed at preventing war and the laws and customs of warfare was thus clearly established. All that remained to be done was to find appropriate terminological expression for this distinction, which had finally crystallized under the pressure of history.

The terminological aspect

Neither in the Middle Ages nor in the Age of Enlightenment did the law lack terms for what is now known as jus in bello. At least certain analogies can be drawn providing the conceptual differences outlined above are taken into account. Many texts from these periods contain terms such as jus belli [23], usus in bello [24], mos et consuetudo bellorum [25], modus belli gerendi [26], forma belli gerendi [27], quid quantumque in bello liceat et quibus modis [28], jus armorum [29], lex armorum [30], jus militare [31], jura et usus armorum [32], droiz de guerre [33], droit d’armes [34], drois, usaiges et coustumes d’armes [35], usance de guerre [36], droit et usage d’armes [37], Kriegsmanier [38], etc [39]. Not all these terms pertain to public international law as we understand it today: they did not apply only to armies set up under public authority. Jus armorum was the professional code for warriors [40] — knights, for example — and constitutes jus gentium. [41]

One important expression in the context of public international law is jura belli, which can be traced back to Livy[42]. In the nineteenth century it was sometimes used to mean jus in bello in the modern sense (Heffter used it this way in his influential handbook) [43]. The Latin terms jura belli and jus belli both seem to have been derived from the Greek expression “oi tou polemou nomoi” used by Polybius [44]. The English expression “laws of war” is also quite old. During the reign of Charles I, the Earl of Essex decreed the Laws and ordinances of war governing the conduct of the parliamentary forces during the civil war that brought Cromwell to power [45]. The term can be found in the literature as well [46]. In French, the expression lois de la guerre rapidly gained acceptance. [47]

It is extremely rare to find the terms jus ad bellum and jus in bello used before 1930. Neither was mentioned during the 1899 and 1907 Peace Conferences, among whose aims was codification of the law of war [48]. Enriques used the term jus ad bellum in 1928, having apparently invented it on the spot to serve a specific need[49]. Keydel drew a clear distinction between the two branches of the law in a well-researched thesis on recourse to war published in 1931 in a scholarly review edited by Professor Strupp, but did not use the terms in question [50]. Keydel, like Strupp himself [51], diligently enumerated all the Latin words and expressions relating to the matter. It may be concluded, therefore, that up to the early 1930s the terms jus ad bellum and jus in bello had no currency.

They began to gain recognition towards the middle of the decade, in particular, it would seem, at the prompting of the School of Vienna. [52] Among the first to use these terms was Josef Kunz, who may well be the one who coined them. Kunz had a gift for formulating precise concepts and giving them incisive Latin names (he later came up with the term bellum legale) [53]; the phrases we are concerned with appear in an article [54] he published in 1934 and a book that followed in 1935 [55]. Two years later, Alfred Verdross used the term jus in bello in exactly the same way as Kunz, placing it in parentheses after the word Kriegsrecht in his handbook on public international law [56].

The chapter on recourse to force was published only in the second edition, and here the term jus ad bellum appeared [57]. Around the same time, R. Regout made frequent use of both terms in his book on the doctrine of just war [58], making it clear from the outset that they reflected a fundamental distinction, and W. Ballis followed suit [59]. It is impossible to say whether these were independent developments or otherwise. Interestingly enough, neither term can be found in the texts produced by other major publicists during the interwar years, nor, according to our investigations, were they used in the courses on war and peace given at the The Hague Academy of International Law or in any other courses.

The breakthrough occurred only after the Second World War, when Paul Guggenheim, another disciple of the School of Vienna, drew the terminological distinction in one of the first major international law treatises of the postwar era [60]. A number of monographs subsequently took up the terms [61], which soon gained widespread acceptance and were launched on their exceptionally successful career. In a thesis written under Guggenheim’s supervision and published in 1956, Kotzsch gave them pride of place, treating them in the manner to which we have grown accustomed and which we now take for granted. [62] This article, the product of the author’s curiosity and of research carried out for another study [63], does not claim to provide a complete overview of the emergence of the terms jus ad bellum and jus in bello. Indeed, there would be a lot more to say: many omissions would need to be remedied, and many imprecise points clarified. T

he purpose here is simply to shed some light on the origin of those terms and to dispel the general illusion that they have been used since earliest times. This false impression and the fact that so little is known on the subject, even by specialists, make this a fascinating field of research that yields surprising results.

Notes :

Original: French1. Jus ad bellum refers to the conditions under which one may resort to war or to force in general; jus in bello governs the conduct of belligerents during a war, and in a broader sense comprises the rights and obligations of neutral parties as well.2. P. Haggenmacher, Grotius et la doctrine de la guerre juste, Paris, 1983, pp. 250 ff. and 597 ff., and “Mutations du concept de guerre juste de Grotius à Kant”, Cahiers de philosophie politique et juridique, No. 10, 1986, pp. 117-122. 3. There is an abundant literature on the concept of just war. For the Graeco-Roman period in particular, see S. Clavadetscher-Thürlemann, Polemos dikaios und bellum iustum: Versuch einer Ideengeschichte, Zurich, 1985; M. Mantovani, Bellum iustum: Die Idee des gerechten Krieges in der römischen Kaiserzeit, Bern/Frankfurt am Main, 1990; S. Albert, Bellum iustum: Die Theorie des gerechten Krieges und ihre praktische Bedeutung für die auswärtigen Auseinandersetzungen Roms in republikanischer Zeit, Lassleben, 1980; H. Hausmaninger, “Bellum iustum und iusta causa belli in älteren römischen Recht”, Oesterreichische Zeitschrift für öffentliches Recht, 1961, Vol. 11, pp. 335 ff. For the Middle Ages in particular, see F.H. Russell, The just war in the Middle Ages, Cambridge/London, 1975; G. Hubrecht, “La guerre juste dans la doctrine chrétienne, des origines au milieu du XVIe siècle”, Recueil de la Société Jean Bodin, 1961, Vol. 15, pp. 107 ff.; J. Salvioli, Le concept de la guerre juste d’après les écrivains antérieurs à Grotius, 2nd ed., Paris, 1918; A. Vanderpol, La doctrine scolastique du droit de la guerre, Paris, 1925, p. 28 ff., and Le droit de la guerre d’après les théologiens et les canonistes du Moyen Age, Paris/Brussels, 1911; G. Beesterm-Iler, Thomas von Aquin und der gerechte Krieg: Friedensethik im theologischen Kontext der Summa Theologica, Cologne, 1990.On the notion of just war in general, see Haggenmacher, Grotius, op. cit.; J.B. Elshtain, The just war theory, Oxford/Cambridge (Mass.), 1992; R. Regout, La doctrine de la guerre juste de Saint Augustin à nos jours, Paris, 1935; D. Beaufort, La guerre comme instrument de secours ou de punition, La Haye, 1933; M. Walzer, Just and unjust wars: A moral argument with historical illustrations, 2nd ed., New York, 1992; Y. de la Brière, Le droit de juste guerre, Paris, 1938; G.I.A.D. Draper, “The just war doctrine”, Yale Law Journal, Vol. 86, 1978, pp. 370 ff.; K. Szetelnicki, Bellum iustum in der katholischen Tradition, Fribourg, 1992.On the relationship with the Muslim doctrine of war, see J.T. Johnson, Just war and Jihad: Historical and theoretical perspectives on war and peace in Western and Islamic tradition, New York/London, 1991; R. Steinweg, Der gerechte Krieg: Christentum, Islam, Marxismus, Frankfurt am Main, 1980.4. Haggenmacher, Grotius, op. cit., pp. 457 ff., and “Mutations”, art. cit., pp. 108-109.5. Grotius, De iure belli ac pacis (1625), Book II, chap. I, 2, 1. See Haggenmacher, Grotius, op. cit., pp. 549 ff.6. Haggenmacher, Grotius, op. cit., pp. 457 ff., 547 ff., and 568 ff., and “Mutations”, art. cit., pp. 110-113.7. Grotius, op. cit., Book III, chaps. XI-XVI (see Haggenmacher, Grotius, op. cit., pp. 600 ff.).8. Haggenmacher, Grotius, op. cit., pp. 600 ff.9. The rule limiting the competence to wage war to the public authorities (i.e. the sovereign) is affirmed in an oft-quoted passage of St Thomas Aquinas which sets out the three prerequisites for such competence: auctoritas principis, justa causa and recta intentio (Summa theologica, II, II, 40, 1). See O. Schilling, Das Völkerrecht nach Thomas von Aquin, Freiburg im Breisgau/Berlin, 1919. On recta intentio, see Haggenmacher, Grotius, op. cit., pp. 401 ff.10. See below.11. Grotius, op. cit., prolegomena, para. 28: “Ego cum ob eas, quas jam dixi, rationes, compertissimum haberem, esse aliquod inter populos ius commune, quod & ad bella & in bellis valeret...”. See also Book I, chap. I, 3, 1: “De iure belli cum inscribimus hanc tractationem, primum hoc ipsum intelligimus, quod dictum jam est, sitne bellum aliquod iustum, & deinde quid in bellum iustum sit”. (In giving our treatise the title The law of war, we first wish to examine, as we have said, whether war can be just and what is just in war. — ICRC translation.)12. Haggenmacher, Grotius, op. cit., p. 601.13. Haggenmacher, “Mutations”, art. cit., pp. 113-117.14. Haggenmacher, Grotius, op. cit., pp. 599 and 605 ff., and “Mutations”, art. cit., pp. 117 ff.15. On this dichotomy, see Haggenmacher, “Mutations”, art. cit., pp. 107-108.16. Haggenmacher, Grotius, op. cit., p. 599.17. De iure belli relectiones, Nos. 15 ff. (lawful motives for war) and Nos. 34 ff. (just limits in the law of war). See Haggenmacher, Grotius, op. cit., pp. 171-172 and 611.18. Jus gentium methodo scientifica pertractatum (1749), paras. 888 ff. See Haggenmacher, Grotius, op. cit., pp. 607-608, and “Mutations”, art. cit., pp. 118-189.19. Le droit des gens (1758), Vol. III, chap. VIII. See Haggenmacher, Grotius, op. cit., pp. 609-610, and “Mutations”, art. cit., p. 119.20. Metaphysik der Sitten, Rechtslehre, para. 53.21. As N. Politis puts it with his usual elegance in Les nouvelles tendances du droit international (Paris, 1927, pp. 100-101): “Sovereignty killed the theory of justum bellum. The States’ assertion that they did not have to account for their deeds led them to claim the right to use the force at their disposal as they saw fit” — ICRC translation).22. H. Wehberg, The outlawry of war, New York, 1931, and “La mise de la guerre hors la loi”, Recueil des Cours de l’Académie de droit international de La Haye (RCADI), 1928-IV, Vol. 24, pp. 146 ff.; C.C. Morrison, The outlawry of war: A constructive policy for world peace, Chicago, 1927; and Q. Wright, “The outlawry of war”, American Journal of International Law (AJIL), 1925, Vol. 19, pp. 76 ff.23. See for example Saint Augustine, De civitate Dei, I, 1, and Epistula CXXXVI.24. Saint Augustine, De civitate Dei, I, 1; I, 6; XIX, 23.25. Ibid.26. Grotius, De iure praedae, chap. VII, art. III-IV.27. Ibid.28. Grotius, De iure belli ac pacis, Book III, chap. I, 1.29. P.C. Timbal (ed.), La guerre de Cent Ans vue à travers les registres du Parlement (1337-1369), Paris, 1961, p. 541.30. H. Knighton, Chronicle, Vol. II, London, 1985, p. 111. Also see the note of Edward III concerning the Ivo de Kerembars affair, in M.H. Keen, The laws of war in the Middle Ages, London/Toronto, 1965, p. 29, note 1.31. G. Baker of Swinbrook, Chronicon, Oxford, 1889, pp. 86, 96 and 154.32. M.H. Keen, “Treason trials under the law of arms”, Transactions of the Royal Historical Society, 5th series, 1962, Vol. 12, p. 96. See also the letter from N. Rishdon to the Duke of Burgundy, in Keen, The laws of war, op. cit., p. 17.33. M. Hayez, “Un exemple de culture historique au XVe siècle: la Geste des nobles français”, Mélanges d’archéologie et d’histoire de l’Ecole française de Rome, 1963, Vol. 75, p. 162; Keen, The laws of war, op. cit., p. 1.34. See the cases of David Margnies vs Prévôt de Paris (Parlement de Paris, ca 1420) and of Jean de Melun vs Henry Pomfret (Parlement de Paris, 1365), in Keen, The laws of war, op. cit., pp. 18 and 260.35. S. Luce, Histoire de Bertrand du Guesclin et de son époque. La jeunesse de Bertrand du Guesclin, 1320-1364, Paris, 1876, pp. 600-603.36. J. de Bueil, Le Jouvencel, Vol. II, Paris, 1889, p. 91.37. P. Contamine, Guerre, état et société à la fin du Moyen Age. Etudes sur les armées des rois de France, 1337-1494, Paris/The Hague, 1972, p.187.38. G.F. de Martens, Précis du droit des gens moderne de l’Europe, 3rd ed., Gottingen, 1821, p. 462, quoting an author writing in 1745; C. Lüder, in F. Holtzendorff (ed.), Handbuch des Völkerrechts, Vol. IV, Hamburg, 1889, p. 254.39. For all these examples and others, see Contamine, Guerre, état et société, op. cit., pp. 187 ff.; Keen, The laws of war, op. cit., pp. 1 ff.; E. Audinet, “Les lois et coutumes de la guerre à l’époque de la guerre de Cent Ans”, Mémoires de la Société des Antiquaires de l’Ouest, 1917, Vol. 9.40. Keen, The laws of war, op. cit., pp. 7-22. It was only in the sixteenth century, at the time of the School of Salamanca, that jus belli took on the meaning that it has today in public law. See Haggenmacher, Grotius, op. cit., p. 283.41. Keen, The laws of war, op. cit., p. 10 ff. On the concept of jus gentium, see inter alia M. Voigt, Das ius naturale, aequum et bonum und ius gentium der Römer, 4 vol., Aalen, reprint, 1966 (1st ed., Leipzig, 1856-1875); G. Lombardi, Sul concetto di ius gentium, Milan, 1974; M. Kaser, Ius gentium, Cologne/Weimar, 1993; M. Lauria, “Ius gentium”, Mélanges P. Koschaker, Vol. I, Weimar, 1939, pp. 258 ff.; P. Frezza, “Ius gentium”, Revue internationale des droits de l’Antiquité, 1949, Vol. 2, pp. 259 ff.; Haggenmacher, Grotius, op. cit., pp. 313 ff.42. History of Rome, Book II, 12, and Book XXXI, 30: “Esse enim quaedam belli jura, quae ut facere ita pati sit fas”.43. A.G. Heffter, Le droit international de l’Europe, 4th ed., Berlin/Paris, 1883, p. 260.44. Histories, Book V, 9, 11.45. E. Nys, Les origines du droit international, Bruxelles/Paris, 1894, p. 208.46. See for example R. Ward, An enquiry into the foundations and history of the law of nations in Europe, Vol. II, London, 1795, p. 165; and R. Phillimore, Commentaries upon international law, Vol. II, London, 1857, p. 141.47. See for example de Martens, Précis du droit, op. cit., p. 461, para. 270, “Loix de la guerre”.48. See Actes et documents relatifs au programme de la Conférence de la Paix, The Hague, 1899; and Actes et documents: Deuxième Conférence internationale de la Paix, La Haye, 15 juin-18 octobre 1907, 3 vol., The Hague, 1907.49. G. Enriques, “Considerazioni sulla teoria della guerra nel diritto internazionale”, Rivista di diritto internazionale, 1928, Vol. 20, p. 172.50. H. Keydel, Das Recht zum Kriege im Völkerrecht, Frankfurter Abhandlungen zum moderne Völkerrecht, No. 24, Leipzig, 1931, p. 27.51. K. Strupp, “Les règles générales du droit de la paix”, RCADI, 1934-I, Vol. 47, p. 263 ff.52. On the Vienna neopositivist school of philosophy, see V. Kraft, Der Wiener Kreis: Der Ursprung des Neopositivismus, 2nd ed., Vienna/New York, 1968. On the legal school of Vienna, see J. Kunz, The changing law of nations, Toledo, 1968, pp. 59 ff.; and J. Stone, The province and function of law, Cambridge (Mass.), 1950, pp. 91 ff.53. “Bellum justum and bellum legale”, AJIL, 1951, Vol. 45, pp. 528 ff.54. “Plus de lois de guerre?”, Revue générale de droit international public (RGDIP), Vol. 41, 1934, p. 22.55. Kriegsrecht und Neutralitätsrecht, Vienna, 1935, pp. 1-2.56. Völkerrecht, Berlin, 1937, p. 289.57. Völkerrecht, 2nd ed., Berlin, 1950, p. 337.58. La doctrine de la guerre juste de saint Augustin à nos jours, Paris, 1935,pp. 15 ff.59. The legal position of war: Changes in its practice and theory from Plato to Vattel, The Hague, 1937, p. 2.60. P. Guggenheim, Lehrbuch des Völkerrechts, Vol. II, Basel, 1949, p. 778.61. See for example F. Grob, The relativity of war and peace, New Haven, 1949, pp. 161 and 183-185.62. The concept of war in contemporary history and international law, Geneva, 1956, pp. 84 ff.63. A contribution to the new edition of the Dictionnaire de droit international, edited by Jean Salmon and Eric David.

PROPOSAL FOR A DEBATE:

Resolved that Canada’s Involvement in Afghanistan is Lawful


Proposed Teams:

1. For the Affirmative

John Manley
Derek Burney
Pamela Wallin
Alternate: Jack Granatstein

2. For the Negative

Lloyd Axworthy
Michael Byers
Eric Margolis
Alternate: Amir Attaran

Time and date: tba

J.L. Granatstein; Military Historian, American Apologist, Space Cadet

Who is this guy? Whoever he is, I don't think his grandiose ideas would play well at The Legion on Saturday night.

As for being friends with The United States of America is concerned....part of real friendship is being able to say frankly when one thinks a friend has gone off the rails. The current American administration has gone off the rails, and most of the world recognizes that fact, as well as the fact that the American Congress is also off the rails, imbued in its own Disney-like fantasy of how the world was meant to be. Canada is doing nobody any favours by sucking up to this fantasy, and the best thing we can do is tell them with great affection that they're out to lunch.

Resolve in Ottawa

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*
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Derek Burney's idealism.....


“To the critics who say fundamentally that we should not be in Afghanistan, I ask the following question: If we are not willing to commit our military resources when asked to do so by the United Nations, for a mission co-ordinated by NATO, in a country whose democratically elected government wants us and whose citizens desperately need us, then precisely where and when would Canada be prepared to do so?”

OK Derek,

1. We were not asked to do anything by the United Nations; Canada invaded Afghanistan as part of NATO's "collective right of self-defence" two years before the UN Security Council got involved, after the fact;
2. The “mission” is undefined and not “co-ordinated” or anything else by NATO, NATO being unable to agree on anything to do with Afghanistan , or indeed, as the Australians would say, to "organize a chook raffle";
3. The legitimacy of the “democratically elected government” of Afghanistan is highly debatable.

By the way Derek, do you have any family members with their lives on the line in Afghanistan? Does anyone on the Manley Committee have any family members at risk in Afghanistan? Does anyone in the House of Commons have family members at risk in Afghanistan?

Dogfight at the OK Corrall

It’s a mess. About 80 people were killed by a suicide bomb in Kandahar while watching a dogfight. What do we make of this?

The Taliban, nominally “The Enemy”, outlawed dog fighting, along with opium production, and there are presumably few “right thinking” western democrats who would argue against bans on opium growing or dog fighting. Nevertheless, we find ourselves on the side of normal Afghan citizens who apparently enjoy dogfights to the death. We could of course bring back bear-baiting, and gladiatorial combat, all conducted at dog fighting pits located next to the drive-throughs at the many Tim Hortons franchises that will spring up with enlightenment and the education of girls in Afghanistan, under the benign influence of NATO.

But it is a little awkward. There are of course the incomprehensible conclusions of the Manley Report:

“Canadians have carried a heavy burden in Afghanistan. The toll in Canadian lives has been grievous, and it is painfully felt. The financial cost has been significant. The course of the conflict has caused us all to question whether Canada’s involvement has been right or effective, and whether it will succeed.

The Panel’s Report and Recommendations present our best answers to those hard questions. Taken together, the Recommendations would establish a Canadian strategy that integrates military, diplomatic and development actions for a more coherent, effective engagement in Afghanistan. We have recommended that some of these actions be contingent on timely actions by other governments, and on measurable progress in Afghanistan itself. For best effect, all three components of the strategy—military, diplomatic and development—need to reinforce each other.

"The importance of Canada’s engagement in Afghanistan has earned Canadians considerable influence among the countries cooperating in Afghanistan’s progress. Helping to build a more stable, better governed Afghanistan with a growing economy is, we believe, an achievable Canadian objective. But success is not a certainty. The war in Afghanistan is complicated. The future there is dangerous and can frustrate the most confident plan or prediction.
After our three months of study, however, it is our conviction that the Recommendations in our Report—with their attached conditions—together carry a reasonable probability of success. In the circumstances now prevailing, that is the strongest assurance that can be credibly given.

“The Panel is convinced that Canadian objectives in Afghanistan are both honourable and achievable. The aim there is not to create some fanciful model of prosperous democracy. Canadian objectives are more realistic: to contribute, with others, to a better governed, stable and developing Afghanistan whose government can protect the security of the country and its people. This is why we believe that Canada should press diplomatically, at the highest level, for a comprehensive political-military strategy and for more coherent leadership of international commitments to Afghanistan, combined with the strongest possible efforts of Afghan authorities.
A premature military withdrawal from Afghanistan, whether full or partial, would imperil Canadian interests and values. It would diminish the effectiveness of Canadian aid in Afghanistan, by further constraining the ability of Canadian aid workers to move among Afghans. It could encourage insurgents. It could weaken the confidence of some Afghans living in Kandahar in their own future and in their own government, increasing their susceptibility to the Taliban insurgency. It would undermine Canada’s influence in the UN and in NATO capitals, including Washington. It could curtail Canada’s capacity (and raise questions abroad about our future willingness) to act, and persuade others to act, in enforcing peace and restoring security where peace and security are threatened. In sum, an immediate military withdrawal from Afghanistan would cause more harm than good. Even an ill-prepared partial withdrawal would risk undercutting international confidence in Canadian commitments and impose new burdens on others obliged to take our place in Kandahar.

"Canadians are not (as the Panel was reminded by an acknowledged expert in Afghan affairs) obliged to do the impossible. But to view the Canadian mission in Afghanistan as impossible is a belief the Panel does not share. Indeed, to withdraw now would make futility certain, and failure inescapable. Neither do we accept any parallel between the Afghanistan mission and the U.S.-led war in Iraq. To confuse the two is to overlook the authority of the UN, the collective decisions of NATO and the legitimacy of the Afghan government that has sought Canada’s engagement. What is evident is that the commitment to Afghanistan made by successive Canadian Governments has not yet been completed. “

Bring on the dogs!

Feudal reality in Pakistan...

In the heart of the Punjab, feudal landowners are the also the political elite holding tenant-voters firmly in their grip. Half-hearted land reform in the 1950s failed to break their dominance. In the remote lush-green district of Patokki, 80 kilometres southwest of the provincial capital Lahore, I met a group of sharecroppers harvesting clover with sickles. They intend to vote for the local PML-Q candidate, who is also the biggest local landowner and their employer.


"We're poor and he's rich, so of course we'll vote for him," they say with resignation. In the nearby village, posters of the candidate are plastered over every building. Everyone I meet voices unquestioning support for him. On the outskirts of the village, a group of gypsies sit in a scruffy tented camp surrounded by cows and donkeys. "We'll vote for the landlord," a man holding two small children tells me. "Otherwise we wouldn't be able to stay here." His family survives on about $20 (just over £10) a month earned by selling wooden toys. Like 30 per cent of Pakistan's population, they live in grinding poverty, malnourished and illiterate. Despite Pakistan's recent economic boom, the poor have lost out to spiralling inflation which has seen flour and sugar prices doubling over the past year, an appalling irony in Punjab's super-fertile lands.

Eurosynthesis: The biochemistry of getting rich....

"When the foreigners leave us alone...."

In Scott Taylor’s review of the book “Where War Lives” (Globe and Mail, 1 September, 2007), the author Paul Watson is quoted:

“Whenever I asked ordinary Afghans if they thought they'd live long enough to see an end to war, invariably they answered, `When the foreigners leave us alone, we will have peace.' ''

In today’s Globe and Mail, Stephane Dion says:

“We are in agreement that we cannot abandon the people of Afghanistan, as there remains much to do to ensure that the stability and governance institutions are in place to allow Afghans themselves to resolve their differences.”

I can’t help but notice that Paul Watson wasn’t invited to be on the Manley committee, and that the Liberals don't any better information than Manley.

Afghanimal House: Tripping the Light Fantastic in Kabul

Even from here you can tell it’s a zoo. Everybody’s in town, UNICEF, NATO, the UN, the EU, the Asia Development Bank, and even the Aga Khan runs a five star hostelry, the unfortunately named Serena Hotel. The Brits have airlifted in an ambassador called Sir Sherard Cowper-Coles – the name alone would make anyone nostalgic for the retreat from Kabul - and tried to get two for the price of one in the form of Paddy Ashdown but he had the door slammed in his face, the door shown the two guys apparently trying to arrange for several thousand Taliban to “change sides”. The White Man’s Burden, there’s nothing like it.

Meanwhile, well heeled thrill seekers are falling over each other in Kabul. The Serena takes only cash, and hosted the British Embassy black-tie New Year’s Eve bash, which must have cost substantially more than even an Afghan poppy farmer could imagine in a year. The horrific gate crashing at the Serena featured some American woman from an NGO having to “step over the body” of a staff member while retreating from the hotel gym, but the Serena’s back in business, a genteel memorandum from the Board of Directors arguing for Resolve in the face of Barbarism. One might argue that the existence of a luxury hotel in the midst of the hideous poverty of Afghanistan is itself an act of barbarism: and that precisely is the case.

Who are these people? OK, I’ll tell you. They’re ambulance-chasers from another dimension. The New York Observer article offers up quotes like half-submerged cow udders to half-starved piranha. As Malcolm Muggeridge said of the BBC Times, “You just can’t compete with it”, speaking in that particular case of an article on the role of the potato in English folk-lore. But get a load of this:

“In some ways, being an “international” in Kabul is one of the last great colonial adventures, complete with armed guards, drivers and the occasional attack”

“Social life in Kabul has evolved with economic development: some say for the better, and some say for the worse. In 2002—the satellite-phone-only, carry-in-all-the-cash-you-need stage—foreigners were a rough-and-ready lot, comprising disarmament and demining experts, well-diggers, road-builders and a few hardy entrepreneurs. They were a transient, overwhelmingly male group whose idea of social life was slinging back beers at the only bar in town (and, rumor had it, frequenting the brothels masquerading as Chinese restaurants). As one young American woman who worked on disarmament said, ‘The odds are good, but the goods are odd’.”


“A recent American arrival is Victoria Longo, a pretty 26-year-old George Washington University graduate working for AISA, Afghanistan’s private-sector investment-promotion organization. ‘You wouldn’t imagine such a thriving social scene in a place like Kabul, but it exists’, said Ms. Longo. ‘You meet a lot of adventurous types, and eccentricity is the norm.’”
“’This is college for eternity’, countered Sarah Takesh, Columbia ’95, a vivacious Iranian-American designer behind the local apparel company Tarsian & Blinkley. ‘People become addicted to the cozy insularity of life here. They say they’re fed up and they leave—and then they come back six months later.’ Ms. Takesh, who is a descendent of the Qajar dynasty of Iran, moved to Afghanistan in July 2003. Her company includes a small semi-couture business aimed at internationals.”


“’I started bringing over my real shoe collection—Sigerson Morrison, Marni, Sonia Rykiel and so on’ said Ms. Takesh. ‘I keep them in little bags in my closet and look at them every once in a while. I wear sad sandals, a $20 tunic and no makeup most days of the week—but it’s comforting to know that they are there’.”


“Naturally, as with college sorority and fraternity houses, there are more and less fashionable houses. Two English-speaking clusters, known for their well-connected residents, are the large compound where Ms. Takesh lives with eight others, and Lisa Pinsley’s five-person house. A graduate of Deerfield Academy and Harvard (’97) and a quiet, regal beauty, Ms. Pinsley shares a three-story 60’s-style bungalow and its spacious garden with the Australian filmmaker Sophie Barry, often named one of the “coolest girls in Kabul”; the stylish, petite Canadian brunette Kate Khamsi, Harvard ’95, one of Kabul’s most social; and two others.


“Ms. Khamsi, a half-Iranian, half-Irish-Canadian lawyer who is a direct descendent of Muhammad on her father’s side, arrived in December 2005 after working for almost two years in East Timor. ‘In Kabul, I associate with a broader cross-section of society than I do at home,’ she said. ’In New York, I hang out mainly with other young professionals and Ivy League graduates. I didn’t know anyone in the Army. Here, by necessity, you’re thrown into a more diverse group’.


“One of the more chic recent parties was the 30th birthday of Holly Ritchie, a slim, pretty English blonde who works for an N.G.O., at her home. Among the guests sampling the buffet from a local Lebanese restaurant was fellow Brit Rory Stewart, the very thin Old Etonian founder of the local Turquoise Mountain Foundation (preserving traditional Afghan building techniques) and best-selling author of The Places in Between.

Ms. Ritchie, who arrived in Afghanistan in 2004 after receiving a master’s in international development, said: ‘Ever since I saw Indiana Jones, I wanted to be an archaeologist or do something where I would experience other places and their realities. From 13, I knew I wanted to work in developing countries, and if you are British, Afghanistan above all will always hold a certain challenge and fascination’.”

If I was a poor Afghan peasant I’d want to know how I could get in on the action. If I was a principled religious fanatic, I’d want to nuke the whole thing.

....and I reply to Mr. Marleau

Mr. Marleau replies....

The United Nations and Canada's cover story in Afghanistan

Section 8 - Treatment of detained persons

The United Nations force shall treat with humanity and respect for their dignity detained members of the armed forces and other persons who no longer take part in military operations by reason of detention. Without prejudice to their legal status, they shall be treated in accordance with the relevant provisions of the Third Geneva Convention of 1949, as may be applicable to them mutatis mutandis.

In particular : (a) Their capture and detention shall be notified without delay to the party on which they depend and to the Central Tracing Agency of the International Committee of the Red Cross (ICRC), in particular in order to inform their families ; (b) They shall be held in secure and safe premises which provide all possible safeguards of hygiene and health, and shall not be detained in areas exposed to the dangers of the combat zone ; (c) They shall be entitled to receive food and clothing, hygiene and medical attention ; (d) They shall under no circumstances be subjected to any form of torture or ill-treatment ; (e) Women whose liberty has been restricted shall be held in quarters separate from men's quarters, and shall be under the immediate supervision of women ; (f) In cases where children who have not attained the age of sixteen years take a direct part in hostilities and are arrested, detained or interned by the United Nations force, they shall continue to benefit from special protection. In particular, they shall be held in quarters separate from the quarters of adults, except when accommodated with their families ; (g) ICRC's right to visit prisoners and detained persons shall be respected and guaranteed.

kandahar

"Relevant provisions" of the Third Geneva Convention, 1949

(emphasis added)

Art 10. The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.When prisoners of war do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross to assume the humanitarian functions performed by Protecting Powers under the present Convention.Any neutral Power or any organization invited by the Power concerned or offering itself for these purposes, shall be required to act with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate functions and to discharge them impartially. 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.Whenever in the present Convention mention is made of a Protecting Power, such mention applies to substitute organizations in the sense of the present Article.

Art 12. Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.

The Origins of NATO, Placentia Bay 1941

The President of the United States of America and the Prime Minister, Mr. Churchill, representing His Majesty's Government in the United Kingdom, being met together, deem it right to make known certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world.

First, their countries seek no aggrandizement, territorial or other;

Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned;

Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them;

Fourth, they will endeavor, with due respect for their existing obligations, to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity;

Fifth, they desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement and social security;

Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want;

Seventh, such a peace should enable all men to traverse the high seas and oceans without hindrance;

Eighth, they believe that all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential. They will likewise aid and encourage all other practicable measures which will lighten for peace-loving peoples the crushing burden of armaments.

Signed by: Franklin D. Roosevelt & Winston S. Churchill

2008 FC 162, Re-Imagined

Date: 20080207
Docket: T-324-07
Citation: 2008 FC 162
Ottawa, Ontario, February 7, 2008

PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AMNESTY INTERNATIONAL CANADA and BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Applicants and
CHIEF OF THE DEFENCE STAFF FOR THE CANADIAN FORCES, MINISTER OF NATIONAL DEFENCE and ATTORNEY GENERAL OF CANADA Respondents
REASONS FOR ORDER AND ORDER
[1] Amnesty International Canada and the British Columbia Civil Liberties Association (“the applicants”) seek an interlocutory injunction prohibiting General Rick J. Hillier -the Chief of the Defence Staff for the Canadian Forces, the Minister of National Defence and the Attorney General of Canada from transferring detainees captured by the Canadian Forces to Afghan authorities, or to the custody of any other country, pending the final disposition of the applicants’ application for judicial review.
[2] The evidence adduced by the applicants clearly establishes the existence of very real concerns as to the effectiveness of the steps that have been taken thus far to ensure that detainees transferred by the Canadian Forces to the custody of Afghan authorities are not mistreated.
[3] That said, the Court has been advised that the transfer of detainees by the Canadian Forces have ceased, at least temporarily. At this point, we do not know when, and indeed, if, detainee transfers will ever resume.
[4] Furthermore, in the event that transfers do resume at some point in the future, we do not know what safeguards may have been put into place by that time to protect detainees while they are in the hands of the Afghan authorities.
[5] In order to be entitled to an interlocutory injunction, the applicants have to demonstrate, amongst other things, that irreparable harm will likely result unless the injunction is granted. This must be established on the basis of clear and non-speculative evidence.
[6] The applicants have established that irreparable harm will almost certainly occur, and has already occurred, both to Afghan detainees and members of the Canadian Armed Forces, unless such an injunction is granted. As a consequence, the applicants’ motion for an interlocutory injunction will be granted.

The Underlying Application for Judicial Review
[7] The applicants have brought an application for judicial review with respect to “the transfers or potential transfers, of individuals detained by the Canadian Forces deployed in the Islamic Republic of Afghanistan”.
[8] The application seeks to review the conduct of the Canadian Forces with respect to detainees held by the Canadian Forces in Afghanistan, and the transfer of some of these individuals to Afghan authorities.
[9] In particular, the applicants allege that the formal arrangements which have been entered into by Canada and Afghanistan do not provide adequate substantive or procedural safeguards so as to ensure that individuals transferred into the custody of the Afghan authorities are not exposed to a substantial risk of torture.
[10] It is in this context that the applicants now seek an interlocutory injunction prohibiting the transfer of detainees captured by the Canadian Forces to Afghan authorities, or to the custody of any other country, pending the determination of their application for judicial review.

Background
[11] Canadian Forces personnel are currently deployed in Afghanistan, both as part of the NATO-led multi-national International Security and Assistance Force (“ISAF”), and as part of the American-led “Operation Enduring Freedom” (“OEF”). The majority of Canadian personnel are deployed in Kandahar province as part of ISAF.
[12] In the performance of Canada’s military operations in Afghanistan, the Canadian Forces are required from time to time to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.
[13] In accordance with Task Force Afghanistan’s Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of another country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.
[14] Before transferring a detainee into Afghan custody, the Commander must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.
[15] It is the position of the respondents that if this standard is not met, transfers will not take place.
[16] On December 19, 2005, the Afghan Minister of Defence and the Chief of the Defence Staff for the Canadian Forces signed an agreement entitled “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan” (the “first Arrangement”).
[17] The first Arrangement was intended to establish procedures to be followed in the event that a detainee was transferred from the custody of the Canadian Forces to a detention facility operated by Afghan authorities. The Arrangement reflects Canada’s commitment to work with the Afghan government to ensure the humane treatment of detainees, while recognizing that Afghanistan has the primary responsibility to maintain and safeguard detainees in their custody.
[18] Amongst other things, the first Arrangement provides that the International Committee of the Red Cross has the right to visit detainees at any time, while the detainees were being held in either Canadian or Afghan custody.
[19] In February of 2007, the Canadian Forces signed an exchange of letters with the Afghan Independent Human Rights Commission, which letters emphasize the role of the AIHRC in monitoring detainees. These letters emphasize the role of the AIHRC in monitoring detainees, and further provide that the AIHRC is to give immediate notice to the Canadian Forces, should it become aware of the mistreatment of a detainee who had been transferred from Canadian custody.
[20] On February 1, 2007, the applicants filed their application for judicial review with respect to the “actions or potential actions” of the Canadian Forces in Afghanistan. Amongst other relief requested in their Notice of Application, the applicants sought to prohibit further transfers of detainees until adequate safeguards were put in place. To this end, the applicants also sought an interim injunction restraining the transfer of detainees until the hearing of the application for judicial review.
[21] The applicants’ motion for an injunction was originally scheduled to be heard on May 4, 2007.
[22] On May 3, 2007, Canada and Afghanistan concluded a second Arrangement governing the transfer of detainees held by the Canadian Forces (the “second Arrangement”). This second Arrangement supplements the first Arrangement, which continues to remain in effect.
[23] The second Arrangement requires that detainees transferred by the Canadian Forces be held in a limited number of detention facilities, to assist in keeping track of individual detainees. The designated institutions are the National Directorate of Security detention facility in Kandahar, Kandahar central prison (Sarpoza), National Directorate of Security detention facility No. 17 in Kabul, and Pul-e-Charki prison, also in Kabul.
[24] The second Arrangement further provides that members of the Afghan Independent Human Rights Commission, the International Committee of the Red Cross and Canadian Government personnel all have access to persons transferred from Canadian to Afghan custody.
[25] The second Arrangement also requires that approval be given by Canadian officials before any detainee who had previously been transferred from Canadian to Afghan custody is transferred on to the custody of a third country.
[26] Finally, the second Arrangement provides that allegations of abuse and mistreatment of detainees held in Afghan custody are to be investigated by the Government of Afghanistan, and that individuals responsible for mistreating prisoners are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
[27] As a result of the negotiation of the second Arrangement, the applicants’ motion for an interim injunction was adjourned sine die.
[28] The applicants subsequently developed concerns with respect to the efficacy and sufficiency of the protections afforded to detainees under the second Arrangement. As a consequence, in November of 2007, the applicants renewed their motion for an interlocutory injunction, and the matter was scheduled to be heard on January 3, 2008. At the request of the respondents, this date was subsequently pushed back to January 24, 2008.
[29] On January 22, 2008, the applicants were advised by the respondents that the Canadian Forces had suspended detainee transfers until such time as transfers could be resumed “in accordance with Canada’s international obligations”.
[30] The decision to suspend detainee transfers was made on November 6, 2008. The decision was the result of a “credible allegation of mistreatment” having been received the previous day by Canadian personnel monitoring the condition of detainees transferred to Afghan authorities.
[31] As a result of the receipt of this allegation, no detainee transfers have taken place since November 5, 2007.
[32] On January 24, 2008, prior to the commencement of the hearing of the applicants’ motion for an interlocutory injunction, Brigadier General Joseph Paul André Deschamps testified with respect to recent developments in this matter.
[33] Brigadier General Deschamps works with the Canadian Expeditionary Forces Command in Ottawa, and is the Chief of Staff responsible for overseeing operations for the Canadian Forces deployed outside of Canada, including those stationed in Afghanistan.
[34] Brigadier General Deschamps testified that the day following the receipt of the November 5 allegation of detainee mistreatment, Colonel Christian Juneau, the Deputy Commander of Task Force Afghanistan, made the decision to suspend further detainee transfers. This decision was made by Colonel Juneau, in the absence of General Laroche, who was on leave at the time.
[35] According to Brigadier General Deschamps, the suspension of transfers is temporary in nature, and the Canadian Forces remain committed to the ISAF policy of transferring Afghan detainees to the custody of Afghan authorities. He further testified that the resumption of detainee transfers remains a real possibility.
[36] The respondents further advise that detainee transfers will not resume until such time as Canada is satisfied it can do so in accordance with its international legal obligations.

Is the Motion Now Moot?
[37] The first issue to be considered is whether the applicants’ motion for an interlocutory injunction is moot, in light of the suspension of detainee transfers.
[38] The respondents submit that the application for judicial review seeks to review the Canadian Forces’ practice with respect to the transfer of detainees. Given that there is currently no Canadian Forces practice to transfer detainees, the case is therefore moot, and the Court should refuse to grant an injunction on that basis.
[39] Moreover, the respondents say that transfers will not resume until such time as the Canadian Forces can be satisfied that detainees will not face a substantial risk of torture. As a consequence, there is currently no possibility that any individual detainee will be transferred to the custody of Afghan authorities if there is a substantial risk that the individuals would be tortured.
[40] Finally, the respondents submit that if and when transfers do begin again, such transfers will take place on a new set of facts, necessitating the production of an entirely new evidentiary record.
[41] The applicants argue that they are seeking injunctive relief on a quia timet basis – that is, on the basis of apprehended future harm. Such future harm remains a real possibility, the applicants say, in light of the evidence of Brigadier General Deschamps as to the Canadian Forces’ ongoing commitment to the ISAF policy of transferring detainees to the custody of Afghan authorities, and the fact that the resumption of detainee transfers remains a real possibility.
[42] Moreover, the applicants submit that the motion for an injunction should be entertained, as it is clear from the record that no amount of post-transfer monitoring will suffice to protect the detainees.
[43] A review of the Notice of Application confirms that the application for judicial review is directed, in part, to the policy or practice of denying detainees access to counsel, and transferring them to the custody of Afghan authorities where they face a substantial risk of torture: see Amnesty International Canada et al. v. Canada (Canadian Forces), [2007] F.C.J. No. 1460, 2007 FC 1147, at ¶68.
[44] The evidence of Brigadier General Deschamps confirms that the policy of the Canadian Forces remains unchanged – that is, to transfer individuals detained by the Canadian Forces to the custody of the Afghan authorities, unless those individuals have already been released by the Canadian Forces.
[45] There is no question that the situation on the ground in Afghanistan with respect to detainee transfers is extremely fluid. This is evidenced by changes that have occurred since the commencement of the application for judicial review.
[46] Amongst other developments, there has been the negotiation of the second Arrangement, the day before the applicants’ injunction motion was originally scheduled to be heard. Other changes include the establishment of monitoring arrangements involving representatives of both Canada and the Afghan Independent Human Rights Commission, and the November 6, 2007 suspension of detainee transfers.
[47] I agree that what the respondents describe as a temporary suspension of transfers creates problems for the applicants in seeking an interlocutory injunction restraining future detainee transfers. These difficulties will be addressed further on in this decision.
[48] However, I am not persuaded that the matter is ‘temporarily moot’, as the respondents contend, as I am satisfied that there remains a live controversy between the applicants and the respondents: see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
[49] In coming to this conclusion, I have taken into account the fact that:
1) The applicants’ application for judicial review is directed to the policy of detainee transfers, as well as the practice; 2) It remains the policy of the Canadian Forces to transfer detainees into the hands of the Afghan authorities unless the detainees are first released from custody by the Forces; 3) It is the avowed intention of the Canadian Forces to resume the practice of transferring detainees as soon as satisfied that it can do so in accordance with its obligations at international law; 4) There is thus a very real possibility that detainee transfers will resume at some point in the future; 5) The respondents have refused to advise the applicants in the event that the decision is made to resume the transfer of detainees to the custody of the Afghan authorities; and 6) The injunction is being sought quia timet, to prevent apprehended future harm.
[50] Furthermore, if the Court were to grant an injunction, the Court’s order would have the effect
of resolving a controversy which affects or may affect the rights of the parties: see Borowski,
previously cited, at ¶15.
[51] That is, the order would affect the ability of the Canadian Forces to resume detainee
transfers. The dispute between the parties in this regard has not disappeared.
[52] As a consequence, I will deal with the applicants’ motion.
[53] However, before turning to address the merits of the applicants’ motion, I would simply note that as a result of my granting of the injunction sought, the respondents’ arguments with respect to the availability of injunctive relief against the Crown, Crown Ministers and servants, are moot.

The Test for Injunctive Relief
[54] In determining whether the applicants are entitled to an interlocutory injunction restraining future detainee transfers, the test to be applied by the Court is that established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[55] That is, the applicants must establish that: 1) There is a serious issue to be tried; 2) They will suffer irreparable harm if the injunction is not granted; and 3) The balance of convenience favours the granting of an injunction.
[56] Given that the test is conjunctive, the applicants have to satisfy all three elements of the test before they will be entitled to relief.

Serious Issue
[57] In RJR-MacDonald, the Supreme Court of Canada observed that the threshold for establishing the existence of a serious issue is a low one. In this regard, the Supreme Court noted that:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. (at pp. 337-338)
[58] The respondents submit that the applicants have not demonstrated the existence of a serious issue in this case, as the Canadian Charter of Rights and Freedoms does not apply to the conduct of the Canadian Forces in Afghanistan. The respondents further argue that even if the Charter does apply, the specific sections of the Charter relied upon by the applicants are not engaged on the facts of this case.
[59] The question of the applicability of the Canadian Charter of Rights and Freedoms to the conduct of the Canadian Forces deployed in Afghanistan is the subject of a separate motion brought under the provisions of Rule 107 of the Federal Courts Rules. A decision in relation to that motion is currently under reserve.
[60] However, in addressing the applicants’ motion for an interlocutory injunction, I am not required to finally determine the applicability of the Charter to the conduct in issue here, and nothing in these reasons should be read to decide that question.
[61] Rather, I am simply called upon to determine whether the applicants have satisfied the burden on them to establish the existence of a serious issue in this regard.
[62] In October of 2007, the Court ruled on the respondents’ motion to strike the applicants’ Notice of Application. In this regard, the Court found that while the issues raised by the applicants were novel, the applicants had raised one or more serious issues: see Amnesty International Canada et al, previously cited. No appeal has been taken by the respondents from that decision.
[63] In particular, this case requires the determination of the extent to which, if at all, a constitutional bill of rights such as the Canadian Charter of Rights and Freedoms “follows the flag” when Canadian Forces personnel are deployed outside of Canada.
[64] While the application of the Charter to the actions of the Canadian Forces in relation to the Afghan detainees is by no means free from doubt, I am satisfied that the applicants have demonstrated that the issue is neither vexatious nor frivolous, and have thus satisfied the serious issue component of the tripartite injunctive test.
[65] The next question, then, is whether the applicants have demonstrated that irreparable harm will result between now and the time that the application for judicial review is decided, in the event that an interlocutory injunction is not granted.

The Law Regarding Irreparable Harm
[66] Before examining the evidence adduced by the parties in relation to this issue, it is helpful to start by considering what the Courts have said on the question of irreparable harm.
[67] It is well established by the jurisprudence that an interlocutory or interim injunction should only be granted in cases where it can be demonstrated that irreparable harm will occur between the date of the hearing of the motion for interim relief and the date upon which the underlying application for judicial review is heard, if the injunction is not granted: Lake Petitcodiac Preservation Assn. Inc. v. Canada (Minister of the Environment) (1998), 149 F.T.R. 218, at ¶23.
[68] Moreover, the burden is on the party or parties seeking injunctive relief to adduce clear and non-speculative evidence that irreparable harm will follow if their motion is denied: see, for example, Aventis Pharma S.A. v. Novopharm Ltd. 2005 FC 815, (2005), 40 C.P.R. (4th) 210, aff'd 2005 FCA 390, 44 C.P.R. (4th) 326, at &59.
[69] Indeed, as was noted by Justice Rothstein in Ciba-Geigy Canada Ltd. v. Novopharm Ltd. (1994), 83 F.T.R. 161, 56 C.P.R. (3d) 289, at ¶117, while a motions judge may draw logical inferences that reasonably flow from the evidence before the Court, at the end of the day, even where quia timet injunctive relief is sought, the applicant’s evidence of irreparable harm must nevertheless be clear, and non-speculative: see also Bayer HealthCare AG v. Sandoz Canada Inc. [2007] F.C.J. No. 585, 2007 FC 352, at ¶34.
[70] Furthermore, in order to be entitled to quia timet injunctive relief, the applicants must show a high degree of probability that a breach of the rights in issue will occur imminently, or in the near future: see Merck & Co. v. Apotex Inc. (2000), 8 C.P.R. (4th) 248 (F.C.A.).
[71] With this understanding of the jurisprudence, I turn now to consider the evidence relating to the issue of irreparable harm.

The Evidence on the Issue of Irreparable Harm
[72] The applicants have led substantial evidence with respect to the alleged inadequacies in the safeguards that have been put into place to this point to protect detainees transferred to Afghan authorities by the Canadian Forces.
[73] Of particular note are the following matters:
1. Deficiencies in Record Keeping
[74] Both the first and second Arrangements impose an obligation on Afghanistan to maintain accurate written records accounting for all detainees that pass through their custody. This does not appear to be happening.
[75] Indeed, the documentation relating to the period between the negotiation of the second Arrangement on May 3, 2007, and the suspension of transfers on November 6, 2007, is replete with references to the ongoing difficulties facing the Canadian Forces and the Department of Foreign Affairs and International Development (“DFAIT”) in tracking down detainees once they leave Canadian custody.
[76] These difficulties seemingly arise from the poor level of record keeping by the Afghan authorities. Amongst other shortcomings, Canadian documents refer to the fact that Afghan records do not note the nationality of the military personnel originally detaining individuals. Also leading to confusion are the multiple ways of transcribing Afghan names into the Latin alphabet, and the unreliability of, or inconsistencies in, the information provided by detainees themselves.

2. Missing Detainees
[77] Due in part to the problems of record keeping identified above, Canadian personnel appear to have lost track of a number of individuals who have been handed over to Afghan authorities by the Canadian Forces.
[78] While some of these individuals have subsequently been located, according to the testimony of Nicholas Gosselin, the DFAIT Human Rights Officer in Kandahar responsible for detainee monitoring, at this point there are at least four detainees who were taken into Canadian custody after May 3, 2007 and then subsequently transferred to the Afghan authorities, whose current whereabouts are unknown.
[79] As a consequence, it has not been possible to determine whether these individuals have been subject to abuse while in Afghan detention.
[80] In addition, Canadian personnel do not follow up on the condition of detainees after they have been handed over to Afghan authorities, where those individuals have allegedly been subsequently released by the Afghan authorities.
[81] For example, on June 26, 2007, Canadian personnel attended at the National Directorate of Security detention facility in Kandahar City. In preparation for this visit the Canadian Provincial Reconstruction Team prepared a list of 12 individuals who had recently been transferred by the Canadian Forces to the NDS detention facility. On the arrival of the Canadian personnel at the detention facility, they were advised that ten of the individuals had been released the day before.
[82] It appears that Canada has no ability to verify this information, with the result that it has not been possible to ascertain whether these ten individuals had indeed been released, or were still in detention. Moreover, there is no way of knowing whether these individuals had been mistreated while they were in Afghan custody.
[83] The second Arrangement specifically imposes an obligation on Afghanistan to notify the Government of Canada prior to the release of Canadian-transferred detainees from Afghan custody. Based on the events of June 26, 2007, it is clear that this does not always occur.

3. Denial of Access to Afghan Detention Facilities
[84] The documentation produced by the respondents relating to the period after the negotiation of the second Arrangement on May 3, 2007 confirms that on one occasion, Canadian personnel attempting to visit detainees following their transfer to Afghan custody were denied access to detainees being held at Sarpoza prison, allegedly because of security concerns relating to the large number of visitors in the facility for a family visiting day.

4. Complaints of Mistreatment Prior to November 5, 2007
[85] Eight complaints of prisoner abuse were received by Canadian personnel conducting site visits in Afghan detention facilities between May 3, 2007 and November 5, 2007. These complaints included allegations that detainees were kicked, beaten with electrical cables, given electric shocks, cut, burned, shackled, and made to stand for days at a time with their arms raised over their heads.
[86] While it is possible that these complaints were fabricated, it is noteworthy that the methods of torture described by detainees are consistent with the type of torture practices that are employed in Afghan prisons, as recorded in independent country condition reports, including those emanating from DFAIT.
[87] Moreover, in some cases, prisoners bore physical signs that were consistent with their allegations of abuse. In addition, Canadian personnel conducting site visits personally observed detainees manifesting signs of mental illness, and in at least two cases, reports of the monitoring visits describe detainees as appearing “traumatized”.

5. The Need to Rely on Afghan Investigations of Allegations of Mistreatment
[88] The second Arrangement specifically provides that allegations of mistreatment at the hands of Afghan authorities are to be investigated by the Government of Afghanistan. It further provides that those alleged to be responsible for the abuse of detainees are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
[89] Canada has no independent capacity to investigate allegations of mistreatment of detainees in Afghan custody, as to do so would encroach on Afghan sovereignty. Moreover, Canada’s offers of assistance with respect to the investigation of allegations of detainee mistreatment have thus far been refused by the Afghan authorities.
[90] As a result, Canada is entirely reliant on investigations of detainee abuse carried out by Afghan officials.
[91] The allegations of mistreatment occurring in the period between May 3, 2007 and November 5, 2007 were allegedly investigated, and found to be without merit. Even though Afghan authorities considered the allegations to be unsupported, a number of additional preventative measures were put into place as a result of the allegations, including the implementation of visits to detention facilities by doctors, increased monitoring, and enhanced human rights training for Afghan officials.
[92] It is not clear, however, whether the investigation carried out in relation to these allegations was an independent one. No written report of the investigation has been produced to Canadian personnel, nor have any details of the investigation been provided thus far. As a consequence, there is no way of knowing whether the investigation was fair, thorough or impartial.
[93] All of these considerations raise concerns as to the reliability of the findings of the investigation that all of the allegations were unfounded.
[94] Furthermore, in many cases, detainees were unwilling to be identified in complaints, for fear of reprisals at the hands of Afghan prison officials. While this is perfectly understandable, it does further constrain the extent to which a meaningful investigation of detainee allegations of mistreatment could be carried out.

6. The November 5, 2007 Allegation of Detainee Mistreatment
[95] On November 5, 2007, Canadian personnel, including Mr. Gosselin, attended at the National Directorate of Security detention facility in Kandahar City on a site visit. In the course of the visit, a detainee stated that he had been interrogated by his captors on more than one occasion -the precise number of interrogations having been redacted from the record on the grounds of national security and diplomatic relations.
[96] At least one of the interrogations had evidently taken place in the room in which the interview was being conducted. The detainee stated that he could not recall the details of that interrogation, as he had allegedly been knocked unconscious early on. He did report, however, that he had been held to the ground and beaten with electrical wires and a rubber hose.
[97] The detainee then pointed to a chair in the interview room, stating that the instruments that had been used to beat him had been concealed under the chair. Canadian personnel then located a large piece of braided electrical wire and a rubber hose under the chair in question.
[98] In the course of the interview, the detainee also revealed a large bruise on his back, which was subsequently described by Canadian personnel as being “possibly … the result of a blow”. In cross-examination, Mr. Gosselin conceded that the bruising that he observed was consistent with the beating described by the detainee.
[99] This allegation was reported to Afghan authorities, and is currently under investigation by them. While the investigation is ongoing, an employee at the detention facility has evidently been suspended from his position and placed in detention.
[100] However, once again, the detainee making the allegation of mistreatment refused to allow his name to be disclosed to Afghan prison officials, necessarily limiting the extent to which a meaningful investigation can be carried out.
[101] It was as a consequence of the receipt of this complaint that the decision was made by the Deputy Commander of Task Force Afghanistan to suspend further detainee transfers until such time as the Canadian Forces was satisfied it could do so in accordance with its international legal obligations.

7. Afghanistan’s Human Rights Record
[102] All of the foregoing concerns must also be considered in the context of Afghanistan’s human rights record.
[103] In this regard, entities such as the Department of State of the United States, the Afghan Independent Human Rights Commission, the United Nations High Commissioner for Human Rights and the United Nations Assistance Mission in Afghanistan have all recognized the serious systemic problem of detainee torture and abuse in Afghan prisons.
[104] These problems are noted as being particularly prevalent in Kandahar and Paktia provinces.
[105] Moreover, Canada’s own Department of Foreign Affairs and International Trade has recognized the pervasive nature of detainee abuse in Afghan prisons in its annual reviews of the human rights situation in Afghanistan. For example, DFAIT’s 2006 report, released in January of 2007, concluded that “Extra-judicial executions, disappearances, torture and detention without trial are all too common”.
[106] The Afghan National Directorate of Security is often singled out for particular attention in the country reports, as being responsible for the torture and mistreatment of prisoners. Of particular note is the fact that Louise Arbour, the United Nations High Commissioner for Human Rights, has described torture in NDS custody as being “common”.
[107] Many of the detainees turned over to Afghan authorities by the Canadian Forces are in fact handed over to the NDS.

8. The Expert Evidence With Respect to Post-transfer Monitoring as a Means Of Preventing Torture
[108] The applicants have also adduced expert evidence with respect to monitoring as a means of preventing torture in the form of an affidavit from Dr. Vincent Iacopino, the Medical Director of Physicians for Human Rights. Dr. Iacopino is also one of the authors of the “Istanbul Protocol”, which is a United Nations-sanctioned set of international guidelines for the investigation and documentation of torture.
[109] Dr. Iacopino’s evidence raises serious questions as to the usefulness of post-transfer monitoring as a means of preventing torture.
[110] Dr. Iacopino’s view that post-transfer monitoring mechanisms are not effective to mitigate the risk of torture is shared by numerous international organizations, including the United Nations Special Rapporteur on Torture and the United Nations High Commissioner for Human Rights.

Have the Applicants Shown that Irreparable Harm will Likely Occur in the Future if the Injunction is not Granted?
[111] The evidence adduced by the applicants is very troubling, and creates real and serious concerns as to the efficacy of the safeguards that have been put in place thus far to protect detainees transferred into the custody of Afghan prison officials by the Canadian Forces.

[112] As a result of these concerns, the Canadian Forces will undoubtedly have to give very careful consideration as to whether it is indeed possible to resume such transfers in the future without exposing detainees to a substantial risk of torture.
[113] Careful consideration will also have to be given as to what, if any, safeguards can be put into place that will be sufficient to ensure that any detainees transferred by Canadian Forces personnel into the hands of Afghan authorities are not thereby exposed to a substantial risk of torture.
[114] That said, it bears repeating that the applicants’ application for judicial review is directed to the respondents’ policy or practice of denying detainees access to counsel prior to transfer, and transferring them to the custody of Afghan authorities without adequate safeguards in place, with the result that the detainees face a substantial risk of torture.
[115] The Canadian Forces has indicated that it will not resume detainee transfers unless it is satisfied that it can do so in accordance with its international obligations, which would include obligations under the Convention Against Torture.
[116] The Canadian Forces other obligations under international humanitarian law, most importantly the Third Geneva Convention of 1949
[117] In the event that the Canadian Forces does resume transferring detainees into the hands of Afghan prison authorities at some point in the future, we do not know what additional safeguards may have been put into place by that time, so as to ensure that the detainees are not exposed to a substantial risk of torture.
[118] Indeed, as the applicants conceded in argument, there are scenarios under which detainee transfers could potentially take place in the future, in circumstances that would address the applicants’ concerns.
[119] That is, the applicants indicated that their concerns would be adequately addressed if, by way of example, Canada was able to negotiate an arrangement with Afghan authorities whereby a Canadian monitor was stationed in the detention facilities holding Canadian-transferred detainees.
[120] We have no way of knowing whether such an arrangement would be possible, or would be dismissed out of hand as an unacceptable encroachment on Afghan sovereignty. What the above example does serve to illustrate, however, is that whatever concerns may exist as to the adequacy of past efforts to protect detainees, it is by no means clear at this point that future transfers will necessarily take place in circumstances that would expose detainees to a substantial risk of torture.
[121] The applicants submit that notwithstanding the uncertainty surrounding the conditions under which future transfers might take place, an injunction should nonetheless be granted, in light of the respondents’ refusal to undertake to notify the applicants in advance, in the event that the decision is made to resume detainee transfers.
[122] Given the appalling evidence I have heard with regard to conditions in Afghan prisons, I am satisfied not only that irreparable harm may be done to future captives taken by Canadian forces, but that members of the Forces are themselves at risk of committing Grave Breaches of International Humanitarian Law, and so be irreparably harmed.
[123] The United Nations Security Council has endorsed the International Security and Assistance Force (ISAF) role in establishing security in Afghanistan, “for international personnel engaged in reconstruction and humanitarian efforts”.
[124] The Secretary-General of the United Nations issued a Bulletin in 1999 (“Observance by United Nations forces of international humanitarian law”) which in Section 8 “Treatment of detained persons” stated that such persons “…shall be treated in accordance with the relevant provisions of the Third Geneva Convention of 1949”..
[125] I find that such conditions cannot currently be met in Afghanistan when Canadian forces transfer captives to Afghan authorities.



ORDER

THIS COURT ORDERS that:
1. 1. The applicants’ motion for an interlocutory injunction is granted
2. 2. The question of whether the evidence submitted on this motion should be considered as evidence submitted for the purposes of the hearing of the application for judicial review is left to the applications judge; and
3. 3. Each side shall bear their own costs of the motion.

“Anne Mactavish”Judge
FEDERAL COURTSOLICITORS OF RECORD
DOCKET:
T-324-07
STYLE OF CAUSE:
AMNESTY INTERNATIONAL CANADA ET AL v.

ATTORNEY GENERAL OF CANADA ET AL
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
January 24, 2008
REASONS FOR ORDER

AND ORDER:
MACTAVISH J.
DATED:
February 7, 2008
APPEARANCES:

Mr. Paul Champ

Prof. Amir Attaran
FOR THE APPLICANTS
Mr. J. Sanderson Graham

Commander Sheila M. Archer
FOR THE RESPONDENTS
SOLICITORS OF RECORD:

Raven, Cameron, Ballantyne

& Yazbeck LLP

Barristers & Solicitors

Ottawa, Ontario
FOR THE APPLICANTS
John H. Sims, Q.C.

Deputy Attorney General of Canada
FOR THE RESPONDENTS