Mattew Behrens

A little-noticed European Court of Human Rights decision regarding Polish complicity in torture may well have ripple effects on this side of the Atlantic and, hopefully, produce some accountability in the Ottawa bunkers of CSIS, the RCMP, and the foreign affairs and justice bureaucracies.

In addition, its precedent would be most useful in hauling some high-profile Liberals out of their comfortable retirement to inquire about their role in the CIA-led global kidnap and disappearance-to-torture regime that has marked much of the 21st century. (Bush-haters should keep in mind that the program’s contemporary incarnation was enhanced by Bill Clinton, building on previous models such as the notorious, U.S.-supported Operation Condor program that was used to terrorize Latin Americans in the 1970s and ’80s).

The case of Al Nashiri vs. Poland concluded that it was “inconceivable” that Poland did not know that its territory was being used for the landing and takeoff of rendition-to-torture flights, or that numerous of its on-the-ground facilities became black sites for so-called ghost prisoners — those who vanished from the face of the earth, denied access to counsel, courts and due process. That country’s “acquiescence and connivance” in the rendition program and, specifically, the torture of Abd al-Rahim al-Nashiri, were the foundations of a ruling declaring the Polish government in violation of the Convention Against Torture.

Canadian complicity

While various Canadian courts and limited judicial inquiries have found Canadian governmental complicity in the torture of their own citizens (from Omar Khadr at Guantanamo Bay to Abdullah Almalki, Maher Arar, Muayyed Nureddin and Ahmad El Maati in Syria and, in the latter case, Egypt), this country has been loathe to produce a full and public record of all of its complicity during the past 14 years, much less a process for true accountability and reparation. Such willful refusal to come clean on complicity violates the Convention Against Torture for, as the UN Special Rapporteur on Torture testified before the European Court, “where an allegation of torture was raised, States were obliged to carry out an investigation that was independent, promptly begun and promptly executed; was capable of leading to the identification and punishment of those responsible; was prepared to take reasonable steps to obtain evidence, and which would lead to adequate and prompt reparation.” In addition, such evidence should be made available and investigative “bodies should apply a presumption in favour of disclosure.”

In every instance where limited investigation has occurred in Canada, it has been with much foot dragging and only as a result of great public pressure. No official has been held to account, and in fact all those found to be complicit in torture were promoted or retired comfortably. Like Poland at the European Court, Canada has played coy, trying to use the “we didn’t know and were just doing what we felt was best” defence.

Thankfully, the court did not buy it in Poland’s case, providing instead a detailed look at state responsibility when it comes to such heinous crimes.

“States had obligations to take measures to prevent action by third parties leading to violations of Convention [Against Torture] rights,” the decision reads. “A State’s positive obligation to prevent would be breached where the State ‘knew or ought to have known’ that the individual in question was at real and immediate risk of violation of his or her Convention rights, and failed to take reasonable measures of protection.”

Poland “knew or ought to have known about the CIA extraordinary rendition programme,” the finding states, just as Canada must have or should have known that the transfer of detainees by Canadian soldiers in Afghanistan into the state security apparatus would result in torture. Canadians knew or should have known that the conscious sending of questions to proxy torturers in Syria who held individuals such as Mr. Almalki for almost two years in unspeakable conditions would have resulted in further torture. In fact, as the two judicial inquiries pointed out, the red flag of torture was raised on this side of the pond, but blithely accepted: damn the consequences and send the questions.

The Polish government investigation of torture was insufficient in the European Court’s eyes because it lacked transparency and was “continually shrouded in secrecy,” which “severely hampered the vindication of the applicant’s rights.” That language speaks to the process that further traumatized Canadian torture survivors when they returned home: the bulk of the O’Connor inquiry into the torture of Maher Arar was secret, and the Iacobucci inquiry regarding complicity in the torture of Mssrs. Almalki, El-Maati and Nureddin was shamefully held in complete secrecy.

In other instances, there has yet to be a public review of the case of Benamar Benatta, now a Canadian citizen who was, on September 12, 2001, handed over to the U.S. as a 9/11 suspect without any legal process and despite the lack of any proof — he was simply a Muslim who knew about airplanes, the Yanks were told — leading him to endure five years of detention under conditions that the United Nations declared were tantamount to torture. Then there is Canada’s role in the torture of Abousfian Abdelrazik in Sudan, for which he has received no public investigation, much less compensation. Omar Khadr was found by the Supreme Court of Canada to have been tortured with this government’s complicity, but no consequences have flowed therefrom.

Official impunity

The Rapporteur on Torture also noted before the European Court that, “The experience of the past decade had shown that there were various means by which the right to truth and the principle of accountability could be and had been frustrated, perpetuating effective impunity for the public officials involved in these crimes.”

The Court found that any “investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.” As has been clear for quite some time, everyone complicit in the torture of Canadians abroad has been promoted or retired comfortably, and it barely raises an eyebrow in the media or Parliament when a new memo confirms yet another government department will use information gleaned from torture or trade information with torturers.

The Court found that Polish officials must have known about CIA activities under their jurisdiction, and concludes “they did nothing to prevent those activities, let alone inquire into whether they were compatible with the national law and Poland’s international obligations.” The Liberals under Jean Chretien acknowledged in the early part of the war of terror that upwards of 100 rendition flights had been allowed to use Canadian air space and had access to refuelling as well.

More recent research by The Rendition Project finds that those numbers were in fact far higher. The Guardian newspaper notes that the U.K. was involved in some 1,600 rendition flights as part of the global torture program, adding, “only the U.S. and Canada were visited more frequently.” This suggests that upwards of 2,000 flights used Canadian airspace or landed for refuelling, among other contributions to the global torture regime. Who was on these flights and what happened to them? Will they be able to seek justice from Canadian officials who oversaw or rubberstamped the use of Canadian territory for their trip to torture? Who approved of these flights? Who will be held accountable? While Canadians hold their noses in disgust at Harper government repression, keep in mind that the Liberals, under the likes of Bill Graham, Jean Chretien, Paul Martin, Anne McLellan, Wayne Easter and Denis Coderre must have or should have been aware of what was going on and need to be held to account as well.

Similarly, the long-quashed investigation into the transfer of Afghan detainees to torture would need to be part of any inquiry into Canada’s role in the global torture program. B.C. resident John McNamer has filed a complaint with the International Criminal Court seeking an investigation into Canadian complicity in war crimes.

Closer to home is the daily deportation of tens of thousands of asylum-seekers, often despite the risk of torture or other cruel and inhumane treatment awaiting them upon landing overseas. Canada’s Supreme Court has yet to weigh in on whether it will finally close the door on deportation to torture, one it left open in the notorious Suresh decision of 2002, which famously declared that deportation to torture would be allowed under certain undefined “exceptional” circumstances.

Homegrown rendition to torture

Ultimately, Canada may have great difficulty coming to terms with its participation in the rendition to torture because to do so is to recognize that the country was built on its own homegrown rendition program: the kidnapping and disappearance of Indigenous children by the thousands into so-called “residential schools,” where, in the same manner that overseas prisoners are beaten until they provide the words a torturer wants to hear, children here were dealt the same abuse until they conformed to the so-called Christian values that were allegedly being inculcated. Indeed, the vast majority of claims filed by survivors of this program for medical compensation include hearing loss, respiratory illness and broken bones.

“People talked to us about hearing loss that came with being whacked at the side of the head,” says Dr. Marie Wilson of the Truth and Reconciliation Commission. “There were a number of accounts of children being very severely physically treated, including sometimes being thrown downstairs or shoved downstairs.” Others were intentionally exposed to frostbite, and many were subjected to forced labour.

Canadian complicity in torture is certainly not confined to the post-9/11 world. Throughout the 1970s and ’80s, the Canadian government supplied aid and material to the torture states of Latin America, Turkey and Greece, among others, and Pierre Trudeau’s Liberals were among the first to recognize the Pinochet dictatorship in Chile following the 1973 coup. Canada turned away those who faced torture under Nazi rule during the 1930s and deported thousands of others to similarly grave fates during that decade. But the roots of such complicity go much deeper than that. Like the U.S., Canada is a country of colonial conquest, and one of the tools it notoriously used in the subjugation of First Nations was its own homegrown version of rendition to torture: the mass kidnapping and brutalization of generations of Indigenous children.

The approach taken by much of the world is Obama’s “let’s move on from this unfortunate chapter in history.” It’s the perfect formula to allow for repeated violations of law and human dignity, and one that must be rejected. Only relentless persistence by returnees from torture, along with their advocates, will ultimately ensure justice in their cases and prevention of further such atrocities.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. ‘national security’ profiling for many years.

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