What’s bogus?

The government is keeping us busy this week. Two days after tabling the “lawful access” bill, government tabled Bill C-31, the so-called “Protecting Canada’s Immigration System Act”, a draconian overhaul of the immigration laws aimed at “getting tough” on “bogus” refugees.

The Canadian Association of Refugee Lawyers (CARL) has put out a very helpful overview of the major problems with Bill C-31. We’re excerpting it in its entirety (primarily because we really couldn’t put any of this better ourselves, but also because it’s not up on their website):

1)      The omnibus nature of the bill hides key initiatives and detracts from proper scrutiny

  • This huge omnibus bill rolls together proposed anti-smuggling Bill C-4, the current refugee system, and the future refugee system, as well as additional new elements, including the use of biometrics.
  • Like Bill C-10 (the omnibus crime bill), this is a complicated omnibus bill whose bulk is designed to inhibit careful scrutiny and precise analysis of several controversial issues.

2)      The draconian measures of C-4 are rolled into this new bill

  • C-4’s proposed mandatory, unreviewable, warrantless, year-long detention is patently unconstitutional. The Supreme Court of Canada decided this issue in the clearest of terms.
  • Family separation for at least 5, and up to 8 or more years, will have disastrous consequences for refugees.

3)      Hasty timelines deny refugees a fair chance to prove their claims

  • Bill C-31 significantly changes our current refugee system, making it hasty and unfair. It imposes unrealistic deadlines on refugee claimants, and uses a failure to meet deadlines as a means to disqualifying refugee claimants without ever having a fair and reasonable opportunity to tell their story.
  • Refugees will only have 15 days to deliver a written version of their history, and 15 days to present an appeal.  This is not enough time to seek legal advice and respond to complicated legal requirements.

 4)      The designated “safe” country list, and the Minister’s unilateral power to list countries, dangerously politicizes the refugee system

  • Refugee claimants who are put on a designated safe country list are subjected to even shorter deadlines to submit a written claim, and will not have access to an appeal.
  • The Minister need not justify why he deems a country safe, nor does he have to take account of the differential risk faced by certain minorities in a country that is ‘safe’ for others. Refugees will be vulnerable to the political whims of the Minister and the government.

 5)      The Minister’s constant reference to “bogus” claims is an egregious misrepresentation

  • The refugee definition is very technical.  Many claimants come with a genuine fear of harm but may not meet the definition of a refugee.  That does not make them ‘frauds’ or ‘bogus’, or abusers of the system.  Their search for protection is genuine.

6)      Canada’s humanitarian safety net is gravely weakened

  • Bill C-31 forces people, upon arrival, to make an impossible choice between making a refugee claim or an application for humanitarian consideration.  Each of these processes is complicated and making an informed decision is simply not possible for persons who have just arrived.
  • Canada has long recognized that a broad humanitarian consideration process is necessary to preserve the flexibility of our protection system. Barring access to this is contrary to our humanitarian tradition.

Readers of these pages will know that we have long quarrelled with the proposed measures of C-4 (and its predecessor Bill C-49). We have also been concerned about the government’s rhetoric surrounding discussions of refugees, asylum seekers, and immigrants.

Bill C-31 reiterates, encompasses, and compounds these various mischiefs — and that’s what’s bogus.


No means no

Jim Bronskill is reporting today on a December 2010 directive recently obtained under the Access to Information Act, in which Public Safety Minister Vic Toews has apparently informed CSIS that the spy agency is expected to rely on information possibly obtained through torture in “exceptional circumstances.” As per Jim Bronskill:

The latest directive says in “exceptional circumstances” where there is a threat to human life or public safety, urgency may require CSIS to “share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment.”

In such rare circumstances, it may not always be possible to determine how a foreign agency obtained the information, and that ignoring such information solely because of its source would represent “an unacceptable risk to public safety.”

“Therefore, in situations where a serious risk to public safety exists, and where lives may be at stake, I expect and thus direct CSIS to make the protection of life and property its overriding priority, and share the necessary information – properly described and qualified – with appropriate authorities.”

We fear that we’re beginning to sound like a bit of a broken record here at the National Security Blog, but some things seem to need repeating: The prohibition against torture is absolute and non-derogable. That means it allows no exceptions, and there are no “extraordinary” circumstances under which torture is acceptable. The UN Convention Against Torture cannot be more clear on this point: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Like the prohibitions against slavery and genocide, the prohibition against torture is widely recognized as a peremptory norm of customary international law. Saying that there are exceptional circumstances where torture is acceptable is akin to saying that there are exceptional circumstances where slavery or genocide are acceptable. Under customary international law, Canada has an affirmative obligation to prevent torture. So it is not enough for Canada to say that it is not itself engaging in torture, because it has a legal responsibility to ensure that its actions don’t make it complicit in torture, or condoning of torture.

And using information derived from torture (or even potentially derived from torture) condones torture and abuse. As per usual, we can’t put it any better than Alex Neve, Secretary General of Amnesty International Canada:

“The bottom line is that as long as torturers continue to find a market for the fruit of their crimes, torture will continue,” he said.

Canada cannot become a market for torturers and their information. While the government has at various times insisted that it does not rely on information obtained through torture, this most recent report does little to assuage concerns that Canada is running seriously afoul of its international obligations and its own commitment to the most basic of human rights.

As the Supreme Court of Canada has observed, “torture is an instrument of terror and not of justice.” There can be no place for torture in Canadian society.

No exceptions.


Contrariwise, if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t.

Contrariwise, if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t. That’s logic. (1)

Happy 2012 from the BCCLA National Security Blog. We start off the year with a report that the Department of National Defence has decided to extend the protections of Canada’s Privacy Act to detainees captured by Canadian Forces operating in Afghanistan.

Wait.

What?

According to media reports, the DND’s invoking the detainees’ privacy rights as a means of resisting disclosure of photographs.

By way of background, Paul Champ and Amir Attaran sought, via an Access to Information request, photographs of detainees captured by Canadian Forces in Afghanistan. They had originally requested these photographs to determine whether they contained any evidence of detainee torture or abuse. Their request was refused.

Such secrecy and refusal to disclose even basic information about the treatment of CF-captured detainees is nothing new, of course. Readers of these pages will recall how difficult it was for the MPCC — and even Parliament — to get documentary disclosures relating to Afghan detainees from government. To test how far the government was willing to keep information about detainees out of the public eye, Professor Attaran modified his request: if maintaining the detainees’ privacy rights was a concern, then he would be willing to accept photographs that completely blacked out the detainees’ faces, but left their hair-styles unobscured. His request was again refused, despite a recommendation from the Information Commissioner of Canada that the blacked-out photographs be released.

The Ottawa Citizen is now reporting that the DND withheld these photographs based on a theory that their release would violate the detainees’ privacy rights. As reported:

“National Defence will not follow the recommendation made by the Information Commissioner of Canada regarding disclosure of photographs covered by this file and is prepared to defend the decision in court if necessary,” Julie Jansen, head of DND’s Access to Information branch, wrote in the October 2010 briefing note.

Jansen argued the photographs constituted “personal information” of the insurgents and releasing images of their hairdos would “probably cause injuries related to national security.”

The privacy rights of detainees are important, certainly. In fact, the Geneva Conventions make clear that proper treatment of prisoners of war means that their photographs should not be disseminated in any way that could be seen as degrading or humiliating them. But in the case of the photographs being requested by Professor Attaran, it’s far from clear as to what privacy rights are being protected by withholding their disclosure. And for the government to invoke the rights of the detainees in an effort to shield itself from public accountability and scrutiny is nothing short of astounding. We can’t put it any better than Professor Attaran:

“The same government that says those detainees have no rights under the Charter of Rights and Freedoms now embraces the idea that detainees have rights under the Privacy Act,” he explained. “The government’s position is that these persons have privacy rights but no constitutional right to avoid torture.”

And indeed, legal experts are already suggesting that by extending the jurisdiction of the Privacy Act to Afghan detainees, the government may be (inadvertently?) setting the stage for an argument that the protections of the Charter — our most basic law — should be likewise available.

This isn’t the first time we’ve heard the government invoke the Privacy Act and the need to protect detainees’ privacy rights, at the expense of ensuring accountability for violations of fundamental human rights. During the course of the Afghan Public Interest Hearings at the MPCC, the government made the argument that members of the military police didn’t have any reason to launch an investigation into whether detainees were being transferred to torture and abuse because they had no reason to suspect that detainees were being tortured, or that Canadian commanders disregarded the risk of torture. The subjects of the MPCC complaint largely claimed that they weren’t aware of first-hand accounts of torture and abuse, notwithstanding the fact that some of these reports were documented by Canadian diplomats and provided to Canadian military commanders. Furthermore, it was argued, members of the military police could not have reasonably been expected to know or access information relating to detainee abuse and torture because it would violate the detainees’ privacy rights.

And so (again): in the name of protecting detainee privacy, government shuts the door to any scrutiny of its conduct, to any attempts at discerning what has happened to the men and children our troops have delivered to the Afghan government, and to any true accountability to the Canadian public.

(1) h/t Lewis Carroll.


Extraordinary assistance

The CBC is reporting today that U.S. flight logs show Canadian involvement in CIA extraordinary rendition flights:

Reprieve, based in London, said a chartered plane long suspected of transferring prisoners repeatedly stopped in Gander, central Newfoundland, on its way to Afghanistan from Guantanamo Bay in 2004.

In the United States, “extraordinary rendition” was used to apprehend and detain foreign nationals suspected of involvement in terrorism. The practice, as described by the ACLU:

The suspect would be arrested and secretly transferred to prisons run by foreign intelligence agencies in countries known to torture, or to CIA-run “black sites.” Once detained, these men experienced unspeakable horrors — often kept in squalid conditions, many of them faced interrogation under torture, including waterboarding, electrocutions, beatings, extreme isolation, and psychological torture.

Maher Arar is the most famous Canadian victim of the extraordinary rendition program. Based on faulty intelligence provided by the Canadian government, the United States arrested and detained him during a stopover at a New York airport, and delivered him to torture in Syria.

Maher Arar, like other extraordinary rendition victims, was forcibly disappeared via a private flight chartered by the CIA. And according to the evidence obtained by Reprieve, some of these rendition flights stopped in Canada before continuing on to CIA black sites in Lithuania. As reported by the CBC:

“The evidence suggests that Canada, by virtue of its location, was a very vital, logistical point for the extraordinary renditions program. That is evidence more and more clearly as time goes on,” said Crofton Black, who is with Reprieve.

Black said that’s verified by flight logs provided by the FAA, one of the 28 aviation authorities that received an access to information request from Reprieve.

This evidence of Canadian involvement in the CIA’s extraordinary rendition program is enormously important.

Torture and enforced disappearance are crimes under international law. And international law makes clear that states can be held responsible for aiding and assisting other states in their violations of international law, if they know that their aid and assistance is facilitating the misconduct. What that means here is if Canada was aware that the planes at issue were part of the CIA’s extraordinary rendition program (which were delivering individuals to enforced disappearance, torture or other ill-treatment), Canada should not have allowed its territory to be used to facilitate these flights.

There have long been concerns about Canadian complicity in facilitating rendition flights. In 2005, Amnesty International Canada wrote to then-Minister of Transport Jean Lapierre requesting information, following media reports that rendition flights were landing in Newfoundland. Receiving no response, Amnesty then followed up in January 2006 with then-Minister of Public Safety Anne McLellan. But as Alex Neve, Secretary General of Amnesty International Canada, told the CBC today:

“We could not get a clear answer at all, including, whether or not Canada was specifically reviewing these flights with Canada’s specific human rights obligations in mind. We couldn’t even get confirmation about that.”

As Amnesty noted in 2006, the Canadian response to these concerns was distressingly subdued. Unfortunately, not much has changed in the intervening years. While the Council of Europe has conducted inquiries into alleged CIA activities in Europe, and a number of European states have investigated the role of their own government officials in assisting the CIA’s rendition program, no similar inquiries have taken place in Canada.

Canada needs to clarify what has happened here, or risk being itself accused of violations of international law. This is not an academic concern: in the face of continued American refusal to provide a proper accounting for the CIA’s extraordinary rendition program, groups such as the Open Society Justice Initiative have launched litigation against states thought to be complicit in the CIA’s activities.

The CIA’s extraordinary rendition program represents some of the worst excesses of the “global war on terror.” In light of this most recent report of potential complicity, Canadians need to know what role — if any — their government played in facilitating renditions.


Anti-smuggling, or anti-Charter?

The Canadian Association of Refugee Lawyers (CARL) may be only a little over a month old, but they’ve already published a terrific paper on the unconstitutionality of Bill C-4, the so-called “anti-smuggling” bill.

Readers of these pages will know that C-4 (and its predecessor C-49) has been of significant concern to the BCCLA, and the subject of criticism from many quarters. CARL’s paper lays out in detail the various ways the proposed legislation in Bill C-4 is unconstitutional. It’s worth reading in its entirety, but here’s a teaser:

In presenting Bill C-4 to Parliament, the Government of Canada has expressed its confidence that the bill is Charter-compliant and constitutional. The Government has chosen not to articulate any basis for its confidence. Since recent judicial pronouncements from the Supreme Court of Canada directly contradict the Government’s position, it is our opinion that this confidence is misplaced. The drafters of the bill have paid insufficient attention to the carefully worded doctrines that the Supreme Court of Canada has developed to express the basic principles of our Constitution. The government has haphazardly cast an unconstitutionally harsh, wide and arbitrary net in order to deter and punish human smuggling. The consequences inflicted on these individuals will be dramatic, painful and undeserved. It is our hope that the unconstitutionality of the Bill will be recognized before it is enacted as law. If this hope is dashed, it is our hope that it will be recognized by judicial authorities. However, it is our worry that, should we need to rely on the Courts to provide the needed remedy, much hardship will be endured in the interim.

Download the paper here.


46 percent

Today, the BCCLA and Amnesty International Canada renewed calls for the Canadian government to convene a public inquiry into the Afghan detainee scandal, following yesterday’s publication of a report by the United Nations Assistance Mission in Afghanistan (UNAMA) documenting widespread and systematic torture in Afghan detention facilities. Our public statement is available here. We also sent a letter to the Minister of National Defence, requesting that Canada confirm the actions it plans to take in response to serious issues raised by the UNAMA’s findings.

We’ve been waiting for the UNAMA to make its report public for some time now, ever since NATO announced in early September that it would be suspending all detainee transfers to Afghan authorities, following its advance review of the UNAMA report.

The full report is available here. Some key points, from our reading of the report:

  • The UNAMA’s team found “compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS detention experienced interrogation techniques at the hands of the NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.”
  • The UNAMA team found that children were tortured by NDS officials.
  • Of the 89 detainees who were transferred to Afghan security forces after being captured by international forces, 19 of them were tortured in NDS custody, and three in ANP (Afghan National Police) custody.
  • The methods of torture used are consistent with what was reported by detainees to Canadian diplomats making their first post-transfer monitoring visits in 2007.
  • The UNAMA “definitively ruled out the possibility of collective fabrication — where a group of detainees would share stories of real or rumoured abuse and, either spontaneously or by design, arrive at and deliver a common account.”

The UN’s findings are disturbing, to say the least. In 2005, the Canadian government announced its prisoner transfer policy in Afghanistan. Given the well-documented, prevalent, and systematic use of torture in Afghan prisons, the BCCLA and Amnesty called on the government to cease transfers to Afghan authorities. While the government has insisted on maintaining this policy, it has, over the years, occasionally suspended transfers for brief periods, though always ultimately resuming the practice after receiving assurances from the Afghan government that it would no longer engage in torture. And each time, we have asked: how can Canada trust these assurances? How can Canada know that it is not transferring individuals to risk of torture, in clear violation of international law? How can Canada be justified in insisting that there is no substantial risk of torture, in the face of the information gathered by its own diplomats and numerous reports from international authorities? How can Canada know that Afghan authorities will stop torturing prisoners?

The distressing fact of the matter is that Afghan authorities never stopped torturing prisoners, notwithstanding repeated suspensions of transfers and repeated commitments to respect basic human rights.

More than five years after we first raised concerns about torture in Afghan prisons, after years of litigation in the Federal Court and two complaints before the Military Police Complaints Commission, and after years of government insistence that its detainee transfer policy did not and would not expose individuals to risk of torture, the United Nations is still finding “compelling evidence” that 46 percent of the NDS detainees they interviewed were tortured.

46 percent.

How’s that for substantial risk?


“Gentlemen at home, hoodlums elsewhere.”

Last week, the European Court of Human Rights (“ECHR”) issued an excellent judgment on the issue of extraterritorial application of human rights instruments in the case of Al-Skeini and Others v. The United Kingdom. (h/t Paul Champ)

As readers may recall, in 2007, the BCCLA and Amnesty International (Canada) launched a Federal Court application for an order to halt the transfer of prisoners captured by Canadian Forces during military operations in Afghanistan to Afghan authorities. We sought this order because we were concerned that CF-transferred detainees faced risk of torture in Afghan prisons.

In response to our application, which argued that the fundamental human rights protections guaranteed by the Charter of Rights and Freedoms should extend to the conduct of Canadian soldiers acting in Afghanistan, the Government of Canada claimed that the Charter had no such extraterritorial reach. The Government of Canada made this claim notwithstanding the fact that our concern focused on individuals who had been captured by Canadian Forces and held in Canadian military custody at the time of their transfer to the Afghans. The motions judge at the Federal Court agreed with the Government, and dismissed our application. The Federal Court of Appeal affirmed the lower court’s decision. The Supreme Court of Canada denied our application for leave to appeal.

Al-Skeini deals with the question of whether the United Kingdom breached its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”) for its alleged failure to effectively investigate the deaths of six Iraqi civilians who were said to have been killed by British soldiers operating in Iraq. In its submissions before the ECHR, the UK admitted that it did have jurisdiction over a killing that occurred in a British military prison, but that it did not have jurisdiction over the other deaths, which took place in southern Iraq. Accordingly, while the European Convention could be found to apply to the death that took place in the British military facility, it could not be said to extend to conduct occurring in other places where the UK was engaged in military operations because it did not have “effective control” over those areas.

The ECHR disagreed, and found that extraterritorial jurisdiction could attach in various ways. Of particular relevance to the Afghan detainee issue, the ECHR stated that in its previous cases dealing with the extraterritorial application of the European Convention, jurisdiction did not arise “solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.” The ECHR also additionally stated that in determining whether the UK had effective control over certain areas in Iraq,

it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 [of the European Convention] to secure, within the area under its control, the entire range of substantive rights set out in the [European Convention]. It will be liable for any violations of those rights.

Thus, the ECHR unanimously dismissed the United Kingdom’s preliminary objections based on extraterritorial jurisdiction. So far, so good: much of what is said about the UK’s effective control over persons and places can be readily applied in the context of Canada’s conduct with respect to Afghan detainees. But where this decision really gets terrific is in the concurring opinion of Judge Giovanni Bonello, where he returns to first principles and considers what it means to commit to “universal” recognition and observance of fundamental human rights.

For example, Judge Bonello addresses what he terms as the UK’s “indivisibility of human rights” argument, which he describes as follows: “as human rights are indivisible, once a State is considered to have extra-territorial ‘jurisdiction’, then that State is held to be bound to enforce all the human rights enshrined in the Convention. Conversely, if that State is not in a position to enforce the whole range of Convention human rights, it does not have jurisdiction.” He flatly rejects this argument, observing:

Extraterritorially, a Contracting State is obliged to ensure the observance of all those human rights which it is in a position to ensure. … I believe that it ill suits the respondent Government to argue, as they have, that their inability to secure respect for all fundamental rights in Basrah, gave them the right not to respect any at all.

Judge Bonello’s comment reminds us of something we have long argued in the context of Afghan detainee transfers. Those wishing to hand-wave away Canada’s responsibility over detainee transfers often point to Canada’s inability to control what happens in Afghan prisons, saying that it’s the Afghans who are engaging in torture, not Canadians. But that misses the point — Canada can most certainly control whether its forces hand over detainees to other countries. To borrow Judge Bonello’s words: Canada is in a position to ensure that it is not placing individuals at risk of torture, and by virtue of being in such a position, it has obligations to ensure that individuals under its custody and care are not delivered to harm.

Judge Bonello quite precisely observes:

… For me the primary questions to be answered boil down to these: when a State ratifies the Convention, does it undertake to promote human rights wherever it can, or does it undertake to promote human rights inside its own confines and to breach them everywhere else? Did the Contracting Party ratify the Convention with the deliberate intent of discriminating between the sanctity of human rights within its own territory and their paltry insignificance everywhere else?

I am unwilling to endorse à la carte respect for human rights. I think poorly of an esteem for human rights that turns casual and approximate depending on geographical coordinates. Any State that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not, as far as I am concerned, belong to that comity of nations for which the supremacy of human rights is both mission and clarion call. In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere.

Well said, indeed.