Choices

"But, again, the question is what value we put on our adherence to human rights and what value we put on strengthening the infrastructure and institutions of the Afghan government over the long term."

- Dr. Michael Byers, speaking to the parliamentary Standing Committee on National Defence, December 11, 2006

Just over a week ago, I was asked to comment at length in the mainstream media on whether the detainee transfer imbroglio was being overblown. I declined.

I declined because I hadn't given the core issue much consideration, to be frank. My disgust and anger over the past month has been towards those who would throw flimsy accusations of abuse at Canadian soldiers in order to further a separate policy agenda. My frustration has been that such a dishonourable tactic might work. Whether people like Amir Attaran, Alex Neve, or their cheering section in the "unbiased" media - or even more reasonable people like Michael Byers had an underlying point worth considering wasn't my concern.

But I'll address the issue here: our detainee transfer policy is flawed, but the outrage over it is still overblown.

For those who would like to read the source document that has caused all this fuss, here's the text of the arrangement between Canada and Afghanistan regarding detainees. And here's a link to the text of the Third Geneva Convention, if you're hard up for a solution to your chronic insomnia. Fill your boots.

Where does our transfer agreement fall short? Well, Dr. Byers laid out the case quite well in his testimony to the SCOND in December of last year:

• No guaranteed right of access for Canadians to detainees transferred to the Afghans


• No guaranteed right of access for "relevant human rights institutions within the UN system" to detainees transferred to the Afghans


• No right to be notified, let alone veto, any transfer of detainees captured by Canadians to a third power

Byers also made three additional noteworthy points: he asserted that the Canadian agreement leaves our soldiers open to prosecution for war crimes by facilitating torture with this transfer agreement (I'm not a legal scholar, so I'll leave that alone - although DND lawyers disagree); he stated that we cannot abdicate our responsibilities to the ICRC as Minister O'Connor was suggesting up until last week; and he suggested that renegotiating the agreement to insert further safeguards shouldn't pose a problem, as the Dutch already have an agreement in place that incorporates many of these safeguards, and the Afghans don't have a problem with that.

[Aside: if anyone can get me a copy of the Dutch or British MOUs on this issue, I'd appreciate it - can't seem to find them anywhere online.]

I'd suggest you read Dr. Byers' entire testimony - unlike some on his side of the discussion, he explained his case without resorting to inflammatory accusations. Start at page ten of the SCOND testimony.

One additional flaw in the current system that Dr. Byers didn't address was the fact that detainees can sometimes bribe their way out of Afghan custody, and conceivably go back to fighting Canadians. That's a serious concern as well.

His recommendations are entirely reasonable. I don't see any legitimate reason we couldn't modify our agreement with the Afghan government to take a more active interest in the fate of detainees we transfer into their custody.

But here's the problem: is strengthening the language of the agreement going to achieve any better results?

For example, if most Afghan police and prison guards are illiterate, how does insisting on better record-keeping help matters? They simply can't comply. Or to take another example, what if we exercise our right-of-access in an upgraded agreement and discover detainees being tortured in an Afghan prison? What if we complain to Karzai's government, and nothing happens? What do we do then?

Everyone seems to agree that the Dutch agreement is much better than the Canadian one. I'm sure it is, on paper. But I'd be curious to find out what has happened to Dutch-captured prisoners compared to Canadian-captured ones. And I'd be just as curious to find out how the Dutch would enforce compliance if they needed to. Remarks like this one by the Dutch Foreign Minister aren't encouraging:

Our Memorandum of Understanding with the Afghan authorities meets our parliamentary conditions: no capital punishment, access to information about individuals' status and decent treatment in conformity with international treaties. But final responsibility for the justice system falls to the Afghan government, not the member states participating in ISAF. Even if the Afghan authorities transferred prisoners to a third country, they could only do so in consultation with the Dutch government. We will resist any transfers to Guantanamo Bay and insist on the right to follow prisoners' movements. But we cannot guarantee that no one would ever be transferred to Guantanamo because any such decision would be within the sovereign power of the Afghan government. [my emphasis]

I'm reminded of the old joke about the weight of a British Bobby's threats: "Stop! Or I'll yell Stop! again!"

If a stronger agreement failed to satisfy the human rights organizations - and I'd say there's a damned good chance it would, the minute we discovered we couldn't force the Afghans to do anything they don't really want to - the activists would clamour for Canada to operate its own prisons. Both Neve and Attaran have already done that. The obvious stumbling block to that idea is that we're capturing Afghans on Afghan soil at the invitation of the Afghan government. How can we tell them we're not handing the detainees over, when capacity-building is one of the fundamental pillars of the mission?

On this point, Dr. Byers suggests a compromise: co-manage a facility for Canadian-captured prisoners with the Afghans. That way, we could cover our human rights obligations and still build infrastructure and good governance capabilities within Afghan society by showing them how a proper jail should be run. It's a fantastic idea.

But here's the kicker: there are a million fantastic ideas to move Afghan society forward, and we simply can't do all of them.

Does it make more sense to spend money on rehabilitating irrigation canals for Afghan food crops so a village can feed itself, or to spend that money on a prison so that incarcerated Taliban fighters get three squares a day? Should we be more concerned with providing a Village Medical Outreach to a hamlet that hasn't seen a real doctor in a decade or more, or with providing basic electrical service to a town, or with stocking a hospital's maternity ward with supplies and equipment, or with training children how to avoid land-mines, or with teaching police how to conduct a decent checkpoint or investigation, or with digging a well and providing a clean water supply to a collection of families without one now, or with building a school where the future of Afghanistan learns to read and add, or with providing a secure pay system for essential workers like doctors and teachers to help curb graft and corruption, or should we really be most concerned with heating a jail in the winter?

That was a run-on sentence, because the list of projects we could undertake would make for a run-on mission if we let it.

At this point, we can't fix everything. We need to focus our efforts on a limited spread of achievable goals. Protecting detainees better than we do is certainly achievable if we want it to be - but what other goals will be sacrificed to make it so?

Right now, this mission is about choices for Canada. It's about the difficult process of triage for an entire nation. Civilized countries are meticulous about human rights, even those of detainees. Has Afghanistan progressed to the point where this is the highest priority?

Dr. Byers hit the nail on the head when he said "the question is what value we put on our adherence to human rights." I'm just not sure he understands the opportunity cost of putting a higher value on it than we already do.