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Thursday, December 18, 2008

Civil liberties group lose court battle to protect Afghan detainees from torture

On December 10th, the Universal Declaration of Human Rights turned 60 today, a birthday celebrated every year with International Human Rights Day.

The British Columbia Civil Liberties Association (BCCLA) celebrated International Human Rights Day this year at the Supreme Court. With Amnesty International at their side, the BCCLA challenged the Canadian Forces’ practice of transferring detainees apprehended in Afghanistan into the custody of Afghan officials.

Amnesty International (AI) and the BCCLA turned to the Court out of concern that prisoners transferred into Afghan custody faced the risk of torture and other human rights violations, particularly at the hands of the country’s intelligence agency, the National Directorate for Security (NDS).

The civil liberties groups were appealing a March 2008 ruling by Federal Court Justice Anne Mactavish that the court challenge on behalf of Afghan detainees could not go ahead because the Charter did not apply to the actions of Canadian soldiers outside Canada.

That decision was upheld today by the Federal Court of Appeal.

The BCCLA is disappointed with the decision, arguing that the courts of a number of other countries, including the United States and the United Kingdom, have recognized that the constitutional and other national human rights protections of those countries do extend to the actions of their military personnel when operating abroad.

“Canada is increasingly isolated among its allies in maintaining the view that this country’s preeminent human rights document has no application to military forces once they leave Canadian soil,” stated Grace Pastine of the BCCLA.

Earlier this year, the Supreme Court of Canada concluded that the Charter of Rights did extend to the actions of Canadian officials who interrogated Omar Khadr in Guantánamo Bay because of the fact that his detention did not meet international human rights requirements. The Federal Court of Appeal concluded that the reasoning in the Khadr decision did not apply to the handling of prisoners by Canadian soldiers in Afghanistan.

According to BCCLA, the Court ruling implies that the distinction may be because Omar Khadr is a Canadian citizen and prisoners apprehended in Afghanistan are not.

Posted by Matthew Johnston

Posted by westernstandard on December 18, 2008 in International Affairs | Permalink


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I cannot and will not take AI seriously until they send delegates to the Kingdom to protest their civil rights violations. Until then I regard them as a political leftist group with an agenda to disarm the West.

Posted by: Faramir | 2008-12-18 11:40:52 PM

I gotta agree with the Supreme Court on this one. A constitution and documents like the US Bill of Rights and Canadian Charter of Rights should not be treated like 'mission statements' about how we wish the world would operate. They should be foundational documents that spell out the rules and obligations that a government has to its citizens and visitors to its soil and to territories under its control. Afghanistan is not a territory under the control of the government of Canada. Afghanistan has its own government. Individuals in Afghanistan must abide by Afghan laws and the Afghan government should be accountable to the citizens of Afghanistan, not to the constitution of a foreign country like Canada. The Canadian military is currently in Afghanistan only with the consent of the Afghan government, and as such the Canadian military should play by the Afghan government's rules. My opinion would be different if the Canadian military was an occupying force with the responsibility of administering civic life in Afghanistan. During the period betwen the start of the invasion and the election of the new Afghan government, I would be much more receptive to the idea that Canadian forces should follow the Charter, because the territory under the Canadian military's control was effectively a de facto Canadian protectorate. Once the elected Afghan government was internationally recognized, the requirement to conform to the Charter disappeared. One can certainly argue that maybe the Canadian military should not be used to support a foreign government whose laws differ too greatly from our own, but it is not within the jurisdiction of the Supreme Court of Canada to tell another country's government how to manage their own affairs, which a Charter requirement on Canadian forces would ultimately amount to.

Posted by: Anonymous | 2008-12-19 10:46:51 AM

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