More on Canada and the Afghan Detainee Question

Driving home from Halifax tonight I caught this discussion on CBC's the Current featuring two professors of international law, including Payam Akhavan, a former prosecutor with the International Criminal Tribunals Court in the Hague.

So as I understand these two professors, here's what the questions viz our treatment of Afghan detainees boils down to:

1) The issue isn't what's happening in Afghan prisons now. The period in question is May 2006 and the eighteen months afterwards.

2) It doesn't matter if any torture of Afghan detainees actually took place. According to international law, what matters is whether there was a known risk of mistreatment. If Canadian officials had reasonable cause to fear the risk of mistreatment of detainees at the hands of Afghan authorities, then they shouldn't have handed over anyone.

3) The conduct of Canadian soldiers in the field is not at issue, as they had reason to believe that they were following lawful orders. The issue is higher up in the chain of command, up to the Minister of Defence, and if they can be accused of violating the Geneva Convention by knowing of the risk of mistreatment during this sixteen month period.

All of which raises the question - if we thought at the time that the risk of mistreatment existed, what were we supposed to do with detainees? Keep them ourselves? Give them to the Americans? Send them to the Hague? Also, at what point are we free of the risk of mistreatment of detainees by the government we're supposed to be helping? When the next round of Afghan elections is totally free of corruption and transparent? When the Afghan police stop extorting bribes from their own people?

Are we talking about moral and ethical absolutes, or about works in progress?