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Legal expert sees trouble in Canadian war role
By ALAN FREEMAN
Tuesday, January 15, 2002 – Page A1
Globe & Mail
LONDON -- Canadian soldiers who are being sent to Afghanistan to fight under U.S. command could find themselves in violation of the 1949 Geneva Convention if they hand over suspected members of al-Qaeda to the U.S. authorities, says a Canadian expert on international law.
Michael Byers, who teaches international law at Duke University, said yesterday that Canadian troops could be placed in a conflict of interest because of Washington‘s decision to ignore the convention covering prisoners of war and treat al-Qaeda and Taliban suspects captured in Afghanistan not as PoWs but as "unlawful combatants."
"Canada‘s obligations under the Geneva Convention exist regardless of what the U.S. does," Prof. Byers said in an interview.
That means a Canadian soldier may find himself torn between obligations to his own government and to his U.S. military commander.
"I would not want to be that Canadian soldier, and I don‘t think it is right for the Canadian government to put our soldiers in that position," he said.
In Ottawa yesterday, a spokesman for the Department of National Defence could not say what Canadian troops would do if they take prisoners.
So far, 50 captured Taliban and al-Qaeda suspects have been chained, manacled, hooded and sometimes sedated before being flown for 27 hours to the U.S. naval base at Guantanamo Bay, Cuba. They will be held in cages built of chain-link fencing on concrete pads with metal roofs; the cages measure 1.8 by 2.4 metres and are partly exposed to the elements.
Nearly 400 other detainees being held by U.S. forces in Afghanistan or on U.S. warships in the Arabian Sea are expected to follow and the prison is being expanded to hold 2,000. Many will face military tribunals.
Prof. Byers, who is on sabbatical at Oxford University, said U.S. Secretary of Defence Donald Rumsfeld is violating the Geneva Convention in deciding that the captives are not PoWs, rather than leaving that decision to an independent tribunal.
"Anyone detained in the course of an armed conflict is presumed to be a PoW until a competent court or tribunal determines otherwise," Prof. Byers said.
The International Red Cross, which is seeking access to the prisoners, said yesterday that however they are described, they are covered by the convention, which prohibits "cruel, degrading and inhumane" treatment.
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Prof. Byers is also concerned about the decision to send the prisoners to Guantanamo.
Washington considers it foreign territory, which means the prisoners have no rights under the U.S. Constitution, much less those guaranteed under the international convention.
Prof. Byers can‘t understand why the Americans are not treating the captives better.
"It wouldn‘t cost them anything to treat them as PoWs," he said, adding that "we would not want our soldiers to be held in those cages."
Putting hoods on the men violates the 1984 international convention against torture and forcible sedation is against international law, Prof. Byers said.
As for shaving the beards of Islamic fundamentalists, he believes "it can only be designed to humiliate them."
Human-rights groups including Amnesty International and Human Rights Watch are also sharply critical of the U.S. treatment of the captives.
"Prisoners of war under the Geneva Convention are supposed to be housed in accommodations that are similar to those that regular troops are kept under," said Jim Ross, senior legal adviser for Human Rights Watch. "If U.S. troops were being held in a different country, under similar kind of conditions, I think the U.S. government would complain about it."
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By ALAN FREEMAN
Tuesday, January 15, 2002 – Page A1
Globe & Mail
LONDON -- Canadian soldiers who are being sent to Afghanistan to fight under U.S. command could find themselves in violation of the 1949 Geneva Convention if they hand over suspected members of al-Qaeda to the U.S. authorities, says a Canadian expert on international law.
Michael Byers, who teaches international law at Duke University, said yesterday that Canadian troops could be placed in a conflict of interest because of Washington‘s decision to ignore the convention covering prisoners of war and treat al-Qaeda and Taliban suspects captured in Afghanistan not as PoWs but as "unlawful combatants."
"Canada‘s obligations under the Geneva Convention exist regardless of what the U.S. does," Prof. Byers said in an interview.
That means a Canadian soldier may find himself torn between obligations to his own government and to his U.S. military commander.
"I would not want to be that Canadian soldier, and I don‘t think it is right for the Canadian government to put our soldiers in that position," he said.
In Ottawa yesterday, a spokesman for the Department of National Defence could not say what Canadian troops would do if they take prisoners.
So far, 50 captured Taliban and al-Qaeda suspects have been chained, manacled, hooded and sometimes sedated before being flown for 27 hours to the U.S. naval base at Guantanamo Bay, Cuba. They will be held in cages built of chain-link fencing on concrete pads with metal roofs; the cages measure 1.8 by 2.4 metres and are partly exposed to the elements.
Nearly 400 other detainees being held by U.S. forces in Afghanistan or on U.S. warships in the Arabian Sea are expected to follow and the prison is being expanded to hold 2,000. Many will face military tribunals.
Prof. Byers, who is on sabbatical at Oxford University, said U.S. Secretary of Defence Donald Rumsfeld is violating the Geneva Convention in deciding that the captives are not PoWs, rather than leaving that decision to an independent tribunal.
"Anyone detained in the course of an armed conflict is presumed to be a PoW until a competent court or tribunal determines otherwise," Prof. Byers said.
The International Red Cross, which is seeking access to the prisoners, said yesterday that however they are described, they are covered by the convention, which prohibits "cruel, degrading and inhumane" treatment.
...
Prof. Byers is also concerned about the decision to send the prisoners to Guantanamo.
Washington considers it foreign territory, which means the prisoners have no rights under the U.S. Constitution, much less those guaranteed under the international convention.
Prof. Byers can‘t understand why the Americans are not treating the captives better.
"It wouldn‘t cost them anything to treat them as PoWs," he said, adding that "we would not want our soldiers to be held in those cages."
Putting hoods on the men violates the 1984 international convention against torture and forcible sedation is against international law, Prof. Byers said.
As for shaving the beards of Islamic fundamentalists, he believes "it can only be designed to humiliate them."
Human-rights groups including Amnesty International and Human Rights Watch are also sharply critical of the U.S. treatment of the captives.
"Prisoners of war under the Geneva Convention are supposed to be housed in accommodations that are similar to those that regular troops are kept under," said Jim Ross, senior legal adviser for Human Rights Watch. "If U.S. troops were being held in a different country, under similar kind of conditions, I think the U.S. government would complain about it."
...
