Having researched and written on this issue for the last three years, it comes as no surprise that questions are once again being raised in the House of Commons regarding the tactics which have been and are being employed in handling Canadian captured Afghan detainees.

Nonetheless, the narrow scope in which the issue is being examined tends to mitigate the original circumstances that laid the foundation for these abuses to take place.

The US led coalition’s initial victory over the Taliban came very quickly with the campaign beginning on October 7, 2001 and the instillation of an Afghan Interim Government taking office on December 22, 2001. During this time, a limited number of Special Forces ground troops were used by Operation Enduring Freedom which included Canada’s Joint Task Force 2 in Operation K-Bar. This initial phase of the conflict has been consistently classified as an international armed conflict which dictates that the Geneva Conventions were applicable law for all signatory states – including Canada.

In 2005, it was reported that JTF2’s involvement in K-Bar (which extended to March 2002) contributed to the killing of at least 115 Taliban and Al Qaeda fighter and the capture of 107 senior Taliban leaders.

Although JTF2 participated in K-Bar as part of an integrated, multinational operation which was effectively under the tactical command, or even the operational command of US forces, the Government of Canada still maintained full command or national command over these troops; thus retaining responsibility for their conduct and adherence to Canadian binding Geneva Convention commitments.

As such, the then Liberal Minister for the Department of Defence, Art Eggleton, must have formulated a policy regarding JTF2 soldiers taking prisoners. In fact, it could be argued that American Secretary of Defence Donald Rumsfeld set the Canadian policy by stating in December 2001, “Either a country will indicate that they will turn them [detainees] over to us… or they will be positioned in places where they’re unlikely to come in contact with someone that we would like to have control over”. Eggleton conceded to the arrangement with the commitment and role of CF troops.

At this point, it was widely know that the US was denying captured Taliban and Al Qaeda fighters POW status and was holding detainees in Guantanamo Bay, Cuba where they endured torturous conditions (it was for this reason the British refused to handover their captured and eventually criticised the Americans publically).

As a result of this, any of the 107 Taliban fighters captured between October 7 and December 22, 2001 by JTF2 soldiers and subsequently turned over to US forces would constitute a breach of Geneva Convention Relative to the Treatment of Prisoners of War, article 12, which clearly states:

‘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.‘

It is within these initial circumstances that Canada began outsourcing our responsibilities and violating international humanitarian law. Transfer of Canadian captured detainees continued to US forces until 2005, when international pressure regarding the conditions at Guantanamo finally forces a slight change in the government’s policy.

On December 18, 2005, Canada signed its first of two agreements with the Government of Afghanistan establishing the conditions for transferring Canadian captured detainees into Afghan custody. It is only after this date the Official Opposition seem to generate any interest in the issue.

For those captured by Canadian forces, the only difference has been a shorter commute to a torturous cell.

Marc Gionet

Marc Gionet is a rabble.ca blogger and Project Manager and Researcher at the Atlantic Human Rights Centre.