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The disappearance of three Afghan detainees -- key prisoners in the investigation into alleged abuse by Canadian soldiers -- has prompted strong criticism over Canada's prisoner handover agreement.

"This is a tremendous failing on the part of the Department of National Defence and I worry about it," Amir Attaran, a law professor from the University of Ottawa, told Â鶹ӰÊÓnet on Friday.

"It's just minimal basic requirement of taking care of any living person that you treat them without any kind of risk of torture, that you shelter them properly and you do not give them to known torturers as the Afghans currently are."

He added, "The Canadian military has created that problem for themselves by not putting adequate thought into how we would handle detainees. It would be negligent to get into the detainee handling business without having facilities to confine the detainees, anymore so that you would have a dog without building a dog house."

This new development, first reported by The Globe and Mail on Friday, represents a serious breach in the prisoner handover agreement between Canadian and Afghan forces, and could hinder the investigation into charges that Canadian soldiers physically abused prisoners before handing them over.

The development may also fuel criticism of the prisoner handover agreement and cast doubt on government assurances that all prisoners are properly treated.

"The Canadian military has a golden reputation in the world because of peace keeping and we deserve that reputation for our country. But as the Americans have showed to us, one or two detainee scandals will destroy the reputation of a country and a military," Attaran said.

Robert Bell, the senior operations manager with the National Investigation Service, told The Globe that investigators are working on the case, but have so far been unable to locate the missing men.

The three prisoners were handed over to Afghan National Police on April 8, 2006, and investigators have been trying to locate them for nearly a month, The Globe reports.

Attaran first raised allegations of abuse in a letter of complaint sent to the Military Police Complaints Commission earlier this year.

The accusations are based on documents that Attaran obtained under the Access to Information Act.

Their disappearance could be due to countless factors, from poor record-keeping to torture or even execution -- a fate that human rights groups say is commonplace in Afghanistan.

The agreement, signed in 2005 by Chief of the Defence Staff Gen. Rick Hillier, stipulates that detainees won't face execution after Canadian troops hand them over. It also requires that "accurate written records accounting for all detainees" be kept by both Canada and Afghanistan.

"The agreement that Gen. Hillier signed with Afghanistan for detainees -- an agreement that is really not being honoured -- does say that the Afghans will keep paper records of the detainees. Clearly, they have not done so, or we would know where these three men are," Attaran said.

But Canada has no power to follow up and ensure those provisions are followed once the prisoners have been handed over. Other forces, such as the Dutch, British and Danish, have such stipulations written into their handover agreements.

Defence Minister Gordon O'Connor has said the agreement is adequate because it sets out that the International Committee of the Red Cross is responsible for the treatment and tracking of the prisoners.

However, the newspaper reports that the agreement doesn't actually require the Red Cross to report to Canada if prisoners aren't being treated properly.

The NIS is performing a criminal investigation into the abuse allegations against Canadian troops, while Hillier has ordered a board of inquiry to examine detainee handling and treatment.

Two "public interest" probes have also been launched by the Military Police Complaints Commission. One looks at the allegations of abuse against the three missing men, the other looks at whether the handover agreement violates international law and the Canadian Charter of Rights and Freedoms.

The position of Canada and the U.S. is that prisoners captured in Afghanistan don't fall under the Geneva Convention because they do not fight for a recognized state or wear a uniform. But O'Connor has said that although they don't have official prisoner of war status, they are still entitled to humane treatment.

Amnesty International has launched a court challenge of that position, said Michael Lynk, a professor of constitutional law at the University of Western Ontario.

"The argument, which I think is sound, is that our Charter of Rights follows Canadian troops wherever they may be in the world, and our turning over of Afghan detainees to the Afghan authorities without any kind of appeal process built in for their protection, and turning over to an authority that is likely to torture ... that these violate rulings from the Supreme Court of Canada with respect to torture and other countries," Lynk told Â鶹ӰÊÓnet.

The lawsuit, Lynk said, will attempt to determine Canada's obligations towards Afghan detainees under its Geneva Convention responsibilities. Canada signed on to the Geneva Convention in 1949.