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Canada court limits probe into transfer of Afghan detainees

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The Canadian Federal Court has ruled that the Military Police Complaints Commission (MPCC) lacked the authority to investigate complaints that Canadian forces illegally transferred detainees to Afghan custody with the Canadian government's knowledge. Noting that the MPCC is limited to complaints regarding "the conduct of a member of the Military Police in the performance of police duties," Justice Sean Harrington said that detention, release, and transfer of detainees "relate to military operations that resulted from established military custom or practice." has no jurisdiction to inquire into the conduct of the military at large, much less the conduct of persons who are not members of the military. Thus, while the Commission may legitimately inquire as to what any member of the Military Police knew, or had the means of knowing, it would be an excess of jurisdiction to investigate government policy and to inquire as to the state of knowledge of the Government of Canada at large, and more particularly the Department of Foreign Affairs and International Trade (DFAIT), and to the extent, if any, it had relevant information to question why that information was not shared with the Military Police.The decision does not limit the MPCC's jurisdiction to pursue claims that Canadian forces "failed to investigate alleged abuse of Afghan detainees." Harrington noted that the limitation on MPCC jurisdiction does not "give the Military Police or any member of the Canadian Forces free reign to ignore or violate Canadian and international laws pertaining to human rights," but only that the MPCC was not an appropriate forum for such investigations.Earlier this month, the MPCC subpoeaned records relating to the claims from senior government officials, including Canadian military commanders and officials from the Department of Foreign Affairs and International Trade, and sought a court order compelling their release. In April, the MPCC released a report concluding that three Afghan detainees were not mistreated while in Canadian military police custody in Kandahar in 2006. In February 2007, the MPCC announced that it would investigate complaints brought by Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) that Canadian forces transferred detainees to Afghan custody knowing that they would likely be tortured, in violation of the Canadian Charter of Rights and Freedoms and international law. Following public outcry, Canada signed a new agreement regarding detainee transfers with the Afghan government in May 2007, giving Canada the right to inspect detainees following their transfer.

Full post as published by JURIST - The Paper Chase on September 24, 2009 (boomark / email).