Academic journal article University of Queensland Law Journal

Murphy's Law - the Canadian Treatment of Detainees in Afghanistan: Are Human Rights Law and International Humanitarian Law Obligations Circumvented?

Academic journal article University of Queensland Law Journal

Murphy's Law - the Canadian Treatment of Detainees in Afghanistan: Are Human Rights Law and International Humanitarian Law Obligations Circumvented?

Article excerpt

The manner in which persons captured are detained by NATO armed forces and in particular Canadian armed forces in Afghanistan presents a conundrum for military field commanders in determining how such persons are to be handled after capture and detention. This article will consider the nature of the conflict in Afghanistan, and attempt then to examine the various rights to which captured and detained persons are entitled. It will start from the premise that Afghanistan is either a failed (1) or failing state and will then move to consider the nature of the conflict. It will then review the manner in which members of the Canadian armed forces are dealing with detainees and the issues arising out of the same. It will then examine the manner in which NATO member countries should handle detainees, and as against this background will consider the overlap between International Humanitarian Law (IHL) and Human Rights Law (HRL).

I AFGHANISTAN--A FAILED STATE

This discussion is premised upon the supposition that Afghanistan is at best a failing and more likely a failed state. (2) Some of the hallmarks of failed states are (a) that they are subjects of deep conflict, are dangerous and are contested by warring factions; (3) (b) that they are incapable of, or are unwilling to, safeguard minimal civil conditions, i.e. peace, order and security for all those living within their borders; (4) (c) that they reflect a collapse and often a demise of normal governmental functions associated with an internationally recognized state; (5) and (d) that they often manifest internal problems that threaten their continued coherence or manifest serious challenges to their political order. (6) Perhaps lowering this bar are the suggestions that a state need not totally fall into either chaos or civil war, but rather a state need only be in a downward cycle of being unable to provide legitimate governance (7) to qualify as either a failed or failing state. Rotberg observes that states will either succeed or tail based on their ability effectively to deliver basic and fundamental services. (8) Based on the foregoing criteria from the time of the commencement of the American led military operation in 2001, that culminated with the removal of the Taliban regime, until the present, Afghanistan is at best a failing, and more likely, a failed state (9) with the current government able to exercise control over little more that the capital city of Kabul and its environs. (10) This article will also argue that because Afghanistan is a failed or failing state, its government remains in place primarily because of the presence of foreign military forces in that country. (11)

II THE AFGHANISTAN CONFLICT--INTERNATIONAL OR NON-INTERNATIONAL?

Pursuant to Security Council Resolution (UNSCR) 1386, the multinational military force in Afghanistan was afforded international legitimacy by establishing the International Security Assistance Force (ISAF), whose mandate was to assist the Transitional Afghanistan Authority. (12) NATO assumed control of ISAF in August 2003. (13)

The United Nations had earlier approved the invasion of Afghanistan by treating the then Taliban regime as the ruling government of Afghanistan. (14) it approved the use of force by considering the American led invasion as a conflict between two nations and noted that it was to be considered as armed conflict of an international nature, and therefore the provisions of the Geneva Conventions would apply. (15)

There remains the issue of whether the conflict in Afghanistan was, and still is, an armed conflict that is either international or, in the alternative, non-international in character. The definition of 'armed conflict' varies depending on whether the hostilities are determined to be international or non-international in character.

The basic rules applying to conflicts of an 'international" nature are contained in the Four Geneva Conventions of 1949 (16) as well as in the First Additional Protocol of 1977. …

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