Canadian troops in Afghanistan have been told the Geneva Conventions and Canadian regulations regarding the rights of prisoners of war don't apply to Taliban and al-Qaeda fighters captured on the battlefield.
That decision strips detainees of key rights and protections under the rules of war, including the right to be released at the end of the conflict and not to be held criminally liable for lawful combat.
"The whole purpose of those regulations is to know if Geneva applies," said Amir Attaran, a law professor at the University of Ottawa who has been pressing the Defence Department for details of its detainee policy for months.
The 1991 Canadian regulations -- developed during the Persian Gulf war -- included provisions to hold tribunals to determine a detainee's status under Geneva if there is any doubt.
Captured fighters don't deserve these rights because this isn't a war between countries, says Lieutenant-General Michel Gauthier, who commands the Canadian Expeditionary Forces Command and thus oversees all Canadian Forces deployed abroad.
"They are not entitled to prisoner-of-war status but they are entitled to prisoner-of-war treatment," he said, asserting that all detainees are humanely treated.
"The regulations . . . apply in an armed conflict between states, and what's happening in Afghanistan is not an armed conflict between states. And therefore there is no basis for making a determination of individuals being prisoners of war," he said.
Since Ottawa first sent fighting forces to Afghanistan after the Sept. 11, 2001, terrorist attacks, the government has said that anyone captured by Canadian Forces is treated humanely. For years, detainees were quickly turned over to the U.S. military. But, since last December, a new agreement with Kabul means Canadian troops now turn detainees over to the Afghan military, a move some have criticized because of the Afghans' uneven record of observing human rights.
The decision to ignore the regulations without a legal test of whether detainees in Afghanistan are entitled to PoW status puts Canada "in a very odd situation . . . It's completely irregular," Prof. Attaran says.
He believes the government's position that Geneva doesn't apply may be correct but it needs to be tested in court.
According to Canada's Prisoner-of-War Status Determination Regulations, "the commanding officer of a unit or other element of the Canadian Forces shall ensure that each detainee is screened as soon as practicable after being taken into custody to determine . . . whether or not the detainee is entitled to prisoner-of-war status."
Last updated before Ottawa sent a field hospital to Saudi Arabia in the middle of the Persian Gulf war, the regulations are designed to make sure Canadian soldiers understand and correctly apply the 1949 Geneva Conventions with respect to detainees.
But Canada, following the Bush administration's lead in the United States, had decreed that there are no lawful combatants among the enemy in the current conflict and no screening was required.
Gen. Gauthier concedes that the change in policy could open the door to criminal charges being laid against Taliban fighters.
If a captured enemy fighter is implicated in killing a Canadian soldier -- for instance, the Taliban fighter who launched the rocket-propelled grenade that killed Captain Nichola Goddard on May 17 -- Ottawa might order him charged with murder and tried.
"I would seek guidance that clearly would come from outside the Defence Department if we wished to pursue this any further from a prosecutorial basis," the general said.
The change aligns Canada's position on the criminal culpability for battlefield violence with that of the United States. Omar Khadr, the only Canadian held at the U.S. prison in Guantanamo Bay, Cuba, is charged with murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier.
Canada has provided few details on the fate of detainees its forces have handed over to U.S. authorities since 2002; neither the number nor the names have been made public. All the government has said is that none are currently at Guantanamo Bay. But it's unknown whether they have been released, or are being held at the Bagram Air Base in Afghanistan or in secret prisons in Eastern Europe.
Similar secrecy cloaks what happens to detainees handed over to Afghan authorities by Canadian Forces fighting in Kandahar province. Gen. Gauthier indicated such transfers occur regularly, if not daily then several times a week. But no numbers are publicly available.
"Our default setting is transfer," he said. "We haven't held anybody for more than a few hours and we would prefer not to."
Canadian troops do screen detainees -- determining on the spot whether a captive poses a threat and should be handed over to the Afghan authorities or should be freed. Gen. Gauthier said the decision to release those not considered dangerous happens routinely. Both decisions are checked up the chain of command, he said.
Prof. Attaran says the military's policy on transfers doesn't absolve Canada if detainees are then mistreated, tortured or killed.
He argues that if the government wants to be involved in this conflict, then it should take responsibility for those its soldiers detain, at least until a court or tribunal determines it can properly transfer them.
"It seems like they want to treat them as though they are radioactive," he said.
But Gen. Gauthier said there is no risk that ordinary soldiers or junior officers could face war-crimes charges, even if detainees handed over to the Afghans were tortured or killed.
"Our intention certainly isn't to leave junior folks hanging out to dry at all on this," he said. "We are on firm legal ground . . . we have no worries about the possibility of prosecution . . . or allegations of criminal wrongdoing for having transferred detainees."