In a ruling that has clear implications for Canada's military, a British court has found there is "plainly a possibility of torture and serious mistreatment" of prisoners in Kandahar.
The High Court of Justice, however, found prisoner transfers by the British military to Afghan authorities can continue in Kandahar, provided U.K. officials step up monitoring and tracking programs. Such safeguards could protect against "a real risk of torture or serious mistreatment," says the ruling released Friday.
Overall, the U.K. judgment found the Afghan National Directorate of Security (NDS) cannot be taken at its word when it says it won't torture prisoners. Concerns about NDS abuse have mounted to the point that the British court has ordered U.K. soldiers to stop transferring any detainees to NDS jails in Kabul.
"On the available evidence there is, in our judgment, a real risk that U.K. transferees will be subjected to torture or other serious mistreatment at NDS Kabul," the high court found.
But the U.K. ruling draws a distinction between Kabul and other NDS prisons, in part citing Canada's position on prisoner transfers to the Kandahar jail. "Canada assessed it safe to resume its own transfers to the facility and has evidently remained satisfied they can properly continue," the U.K. ruling says.
Still, Canadian officials must take heed of the ruling, says Amir Attaran, a lawyer and University of Ottawa law professor who has waged a multi-pronged legal battle to stop the Canadian Forces' prisoner transfers.
"We've been put on notice by our closest ally that torture is real in their experience," he said.
He added the British ruling flies in the face of the Canadian Conservative government's positions that Ottawa has never exposed itself to credible allegations of complicity in torture in Afghanistan.
Mr. Attaran says Canadian officials must now change their prisoner-transfer policies, or run the risk of criminal charges. He said he may even try to initiate some proceedings himself.
"I have zero compunctions about taking steps of prosecuting Canadians for war crimes," he said.
Canada's role in transferring Afghan prisoners to the NDS facility in Kandahar - the province that has been the Canadian Forces' area of operations for the past four years - has emerged as a major political issue. Prime Minister Stephen Harper's government prorogued Parliament earlier this year, as opposition parties rallied to see secret documents concerning handover practices.
Canada and other Western countries have set up programs to monitor detainees transferred to Afghan custody. Yet Britain will now probably have the most stringent safeguards.
Under the U.K. ruling, handing over prisoners to the NDS in Kabul is now illegal, while transfers to NDS officials in Kandahar and Helmand provinces are to be closely scrutinized. The high court urges that British officials better track individual handovers and undertake more follow-up visits.
The court made these findings relying on British investigators who went to Afghanistan to probe complicity in torture. For the British, compelling and direct proof of torture was harder to come by in Kandahar, given the U.K.'s light military footprint there.
So officials turned to Canadian sources, some of which were cited in the ruling. "For initial allegations we can turn to an article in The Globe and Mail," the British court ruled, describing an April 2007, exposé recounting Kandahar prisoners' claims of beatings, whippings and electric shocks.
The court also pointed out Canadian diplomat Richard Colvin has said "the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar it was standard operating procedure."
The British high court said it found the issue a "difficult and troubling" case.