That sticky little problem - "In-field Transfers"

The other shoe is finally starting to drop. The transfer of prisoners detained by Canadian troops isn't nearly as serious as those who were transferred to Afghan authorities without any period of detention in a Canadian processing facility. (Emphasis mine)

Diplomatic reports from the same period show that Mr. Colvin wasn't the only foreign service officer relaying criticisms about detainee transfers to Ottawa. A Sept. 11, 2006, memo from a Canadian NATO staffer alerted the government to the fact that the ICRC had singled out Canada's practice of handing over prisoners to the Afghans on the battlefield, a practice it feared could result in human-rights monitors losing track of detainees.

Over the past few years I've heard that same thing from a number of Afghanistan theatre veterans. And every one of them feared that if it ever became public there would be hell to pay.

Let's put one thing out in the open. From the perspective of a ground combatant, prisoners are a huge pain in the ass. Not only do they require a great deal of care and processing, but they put an immediate drain on the resources of a small unit, interfering with the ability to maintain field security and disrupting the mission. Not to mention that immediately after a close-quarters action the heart-rate, adrenaline and fear are still fuelling a mind-set which previously interrupted a person's more humane tendencies.

The prisoner transfer agreement entered into by Hillier and then "fixed" later on has to do with Afghan (or other imports) detained by Canadian troops and then sent back for processing by Canadian authorities. That, no matter how you'd like to measure it, is a lot of work, and it means you have to have among your forces the manpower and the structure to accomplish it. That saps your strength elsewhere - as in "rifles in the field".

From the point of view of intense field operations, both economy of personnel and tactical efficiency appear to be enhanced if you don't have to keep and process prisoners. All the better if you hand them over quickly and get reasonably good intelligence in return.

Canada, apparently from the start of the Kandahar mission, seems to have been playing at a flawed technicality: That suspected or confirmed enemy apprehended in the field and turned over in the field to the Afghan authorities were never technically detainees under Canadian control.

Louie Palu, a Canadian freelance photo-journalist who spent a lot of time outside the wire in Afghanistan made this comment in the Toronto Star: (Emphasis mine)

... what concerns him more is the increasing number of so-called "in-field" detainees – Afghan men taken into custody in Afghan-led operations, with Canadian or U.S. soldiers (or both) present as advisors. "When the blended mentoring teams capture a detainee, who does he belong to? They become Afghan detainees because the Afghans are in the lead."

And, yes, that's a problem. The greater problem however, is ISAF-led operations where detainees are handed over to the integrated Afghan forces. It's economical, efficient and their problem... if you ignore this little bit from Koring's Globe article.

Canada wasn't providing details even to its allies on what happened to the suspects it picked up. That is despite the fact that ISAF, the command structure for the war in Afghanistan, imposes legal and operational requirements aimed at ensuring detainees are looked after, transferred and held in accordance with international law.

The truth, however, is that troops would proceed with whatever procedure they were instructed to pursue. If the direction from NDHQ was to effect in-field transfers wherever possible then that's what they would do. And that was the what and the where of direction from on high.

Almost everyone I've spoken to was extremely uncomfortable with that. It's an awkward position to be in and smacks of the senior denizens of 101 Colonel By Drive intentionally playing in a legal gray area with an explosive perimeter. Except that ISAF didn't agree that the gray even existed.

(It doesn't help that the Chief of Defence Staff of the day had declared that the opposition was nothing but "murderers and scumbags" to expand the "prisoners shouldn't be our problem" ethos.)

Bruce over at Flit mentioned in November the same thing I had been hearing from friends earlier:

Over the last couple years, dozens of Afghans have been taken on ISAF-led ops in Kandahar Province and handed over at the point of capture by ISAF personnel to participating Afghan security forces. Because they were never technically in Western hands for any extended period, there is no reporting requirement imposed on the Afghans under our existing protocols. Unavoidable? Probably. But supporters of the mission might want to continue to keep their arms braced on the seat-back in front of them, because at some point the media may connect those dots.

Indeed, they have started to do just that. Yesterday, Bruce, added this:

Look, here's the facts. The NDS is still the NDS. We don't mentor them, and they haven't changed. All Afghan detainees to this day still are at their mercy eventually. Also, the vast majority of detainees taken in Kandahar Province up to eight months ago were taken by the Afghan security forces without documentation, whether Canadians were also involved in their capture or not. No one, Afghans included, has any real idea where any of those people are now. The protocols we have with the Afghan government only govern the tiny minority who spent time in the Canadian detainee cage in KAF before that transfer took place, because those are the only official detainees we have followup responsibilities to under our interpretation of our Geneva obligations.

I would recommend that you read that again, particularly the last sentence. How NDHQ interpreted the obligation agreed to with ISAF differs, quite obviously, from the way NATO interpreted it.

The Afghan government's detainee apparatus I worked with was simply not designed to generate POWs, or intelligence for that matter. It presumably was more successful at generating ransoms, given its revolving-door nature at the time. And sure, maybe things have gotten better, but in April 2009, in my last report to my highers after watching this through the ANA G2's office for over half a year, I said I was watching it get worse by the month. Hey, T.I.A. (This. Is. Afghanistan), as I've said before: the fact that getting taken prisoner is really a 72-hour time out pass for those who can pay promptly was nowhere NEAR the biggest problem in Kandahar at the time. But the idea that all our detainee issues were "fixed" two years ago and remains anywhere near fixed today, by any definition you want to use of the word "fixed," can be impeached by any of a thousand Afghan veterans with stories to tell who might want to contradict the PM on this ...

If you missed the other huge problem in that last bit, you should read it over again.

The long and short of it is that Canadian troops on the ground, who have had their personal obligations under international protocols hammered into them from the start of basic training, are aware of those obligations and have demonstrated that they will fulfill them to the extent instructed by NDHQ. The question then becomes, are NDHQ's instruction legal?

And this can come back to bite very very hard. Look at what's happening in New Zealand after they transfered prisoners to the Americans.

Oh! Uh oh.