National Defence Committee on Dec. 11th, 2006

[The Acting Chair, Conservative, Russ Hiebert]

Thank you.

Mr. Neve.

[Alex Neve, Secretary General, English Speaking Section, Amnesty International Canada]

Thank you, Mr. Chair.

Good afternoon, committee members.

Amnesty International very much appreciates the opportunity to be here today to share our concerns and recommendations regarding the policy and practice of the Canadian government with respect to the treatment of battlefield detainees in Afghanistan.

I want to begin by highlighting that Amnesty International has been raising these concerns with the Canadian government for close to five years. This is not a recent phenomenon. We first raised these issues in January 2002 in a letter to then Minister of National Defence Art Eggleton. We urged Canadian Forces at that time to refrain from turning over any captured fighters to U.S. forces--that was the issue at that time--unless and until U.S. authorities agreed to accept application of the Geneva conventions and establish competent tribunals to determine whether detainees were eligible for prisoner of war status.

In response, seven months later, the minister's successor, Minister McCallum, indicated that Canada would continue to transfer detainees in Afghanistan to U.S. military authorities. The U.S. had stated it would treat detainees humanely and in a manner consistent with the Geneva conventions, while not formally recognizing the applicability of those conventions.

We wrote again to Minister McCallum in October 2002. We repeated our concern that U.S. authorities were continuing to fail to comply with the Geneva conventions. We raised the further concern that some prisoners might be sentenced to the death penalty. At that time, we first suggested that Canadian Forces should begin to consider the possible need to develop Canada's own detention capacity in Afghanistan.

In February 2005, Amnesty International wrote to both Minister Pettigrew and Minister Graham. We asked for clarification of reports that some prisoners who had been transferred to U.S. custody had subsequently been sent to the U.S. detention facility at Guantanamo Bay. We asked what steps Canada had taken to ensure that transferred prisoners would not be sent there. We also asked whether Canada had sought and received assurances that transferred prisoners would not be subject to the death penalty.

We wrote again to Minister Graham in October 2005. We pointed to the widespread and well-documented human rights concerns associated with U.S. detention in both Afghanistan and Guantanamo Bay. We stressed that U.S. assurances of a willingness to act in ways that were consistent with international legal obligations had clearly proven to be inadequate. We called for an end to prisoner transfers, and we again suggested that Canadian troops needed to consider taking responsibility for the detention of individuals apprehended in the course of operations in Afghanistan.

We next wrote to Minister Graham in November 2005, following a meeting with the minister, at which time we had been informed that Canada would be abandoning the practice of transferring to U.S. custody. Instead, a new policy would be adopted of transferring prisoners into Afghan custody. We stressed that there were serious concerns about treatment of prisoners in Afghan-operated detention centres. We raised questions about monitoring, about substantial resource and capacity problems in Afghan prisons, and the need for reliable assurances that there would be no subsequent transfers of prisoners into U.S. custody. We stated again that unless the serious human rights shortcomings we had identified could be addressed, Canada must be prepared to establish and operate its own detention facilities in Afghanistan, perhaps in concert with other nations that have contributed to ISAF.

Our next exchange was with the current government. On April 3 of this year, we wrote to Minister O'Connor. We had reviewed the written arrangement entered into between Canada and Afghanistan governing prisoner transfers. We were concerned it would not ensure the protection of the rights of prisoners transferred into Afghan custody by Canadian Forces. We asked again why Canada continued to choose not to develop its own detention capacity.

We wrote to Minister O'Connor again on May 12, following what was called the biggest ever capture of suspected Taliban insurgents by Canadian soldiers in Afghanistan. We drew attention to the important penal reform work that was being funded by CIDA and the concern that transfers of battlefield detainees into Afghanistan's rapidly worsening prisons would inevitably lead to human rights violations and serve only to exacerbate squalid, deteriorating prison conditions.

We had a detailed response from Minister O'Connor on July 26. The minister made it clear that Canada intends to continue the practice of transferring prisoners into Afghan custody and considers that to be consistent with the objective of strengthening the institutional capacities of the Afghan government. The minister indicates he is relying on the guarantee in the arrangement that detainees will be treated humanely and that concerns about transferred detainees experiencing torture or ill treatment were hypothetical scenarios about which he would not speculate.

He indicates he believes the monitoring role of the ICRC and the Afghan human rights commission are sufficient to ensure the humane treatment of detainees. He indicates it would be open to Afghan authorities to further transfer prisoners to another state as long as the “requirements of international law are met”. Finally, he indicates that Canada would not be developing its own detention capacity in Afghanistan because that would undermine the objective of strengthening the institutional capacity of the Afghan government.

We wrote, finally, to Minister O'Connor on November 14 of this year. We stressed that the core international obligation at the heart of Amnesty International's ongoing concern is the requirement that one state not transfer a prisoner to another state if there are substantial grounds for believing there is a risk of torture. We shared our findings, stemming from Amnesty International's ongoing, on-the-ground research, that torture and ill treatment in Afghan prisons continues to be routine and commonplace and that prison conditions continue to be abysmal. We highlighted in particular--and this is something I really want to stress--our concerns about torture at the hands of the national security directorate. We have asked for clarification as to whether Canada is transferring prisoners to the national security directorate. That information has not been provided, and Mr. Rigby today has again indicated this information will not be disclosed. I must say we have had some recent indication from a UN official that some, perhaps many, Canadian transfers have been to the national security directorate, and that is indeed worrying, as that is where the gravest concerns about torture and ill treatment and lack of accountability arise.

In our most recent letter to Minister O'Connor we have again raised concerns about transfers of detainees to third parties, and we've repeated our recommendation that Canada work with the Afghan government and NATO allies to develop detention facilities in Afghanistan in line with international standards and practice, and to do so in a manner that assists in developing the capacity of Afghan officials working in the penal and justice sectors.

Let me end by highlighting four key points.

First, Amnesty International is deeply concerned that given the prevalence and severity of torture and ill treatment in the Afghan prison system, particularly at the hands of the national security directorate, there are substantial grounds to believe that when Canadian Forces transfer a prisoner into Afghan custody, torture or ill treatment will occur. In doing so, Canada is in violation of its international human rights obligations.

Second, we do, of course, appreciate the monitoring role played by the International Committee of the Red Cross, as we do around the world, and also by the Afghan Independent Human Rights Commission. But the abuses continue despite the monitoring. The fact that monitoring exists cannot justify or excuse turning over a prisoner to a substantial risk of torture or ill treatment. It's important to highlight, as Mr. Byers has, that the ICRC does not publicly share details of any concerns it may document. That, coupled with the secrecy surrounding the details of the numbers of prisoners we're talking about, where they're being held, who they're being turned over to, what the basis for their detention is, etc., lead us to be deeply concerned that oversight is wholly inadequate. Absolutely, the monitoring and oversight provisions must be strengthened, and at the very least must be consistent with the provisions in the Dutch memorandum.

Third, we wholly support Canada's stated objective of penal reform in Afghanistan, including with respect to prison conditions and prison operations. That is something Amnesty International has called for, for many, many years. Transferring battlefield detainees to a crumbling, overstretched prison system undermines that objective. We continue to urge that Canada work with Afghan officials and other NATO allies to develop new detention capacity in the country, which should be operated in tandem with Afghan officials and could serve as an important institution and capacity-building initiative.

Finally, I want to stress that Amnesty International's stated concerns do not imply that we believe that detainees apprehended by Canadian Forces should not be imprisoned. We do not have information about the specific allegations made against any of these detainees. Clearly, those who may have committed crimes or violated international human rights or humanitarian law provisions should face justice. It is vitally important, however, that justice be delivered in a manner wholly consistent with international legal standards. Any other course of action fails to advance the long-term sustainable reforms that are so sorely necessary in Afghanistan.

Thank you.

[The Acting Chair, Conservative, Russ Hiebert]

Thank you for that testimony.

Given the time, we're going to have to revert to the seven-minute round, starting with Ms. Bennett.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you very much.

Thank you for your presentation, particularly because it's giving us a way forward. We like the ones that come with recommendations.

In the right of access and right of notification gaps that you see there, did I understand correctly that the Dutch actually have a capacity for detention, or do they merely have a better agreement that has right of access and right of notification?

[Michael Byers]

As far as I know, they do not have a detention capacity that's any better than what the Canadians have. In fact, they're probably using the same detention capacity at Kandahar airfield. But they do have a stronger agreement that ensures that any detainees they transfer can be followed up by right of access--not by discretion of the Afghan authorities, but by right. That means they can go into these prisons that Alex has described and ensure that our detainees are not being mistreated in any way. That is the crucial difference.

The Canadian agreement does not provide for follow-up and leaves this to the ICRC, which will not, in practice, report back to us. Therefore, it is essentially allowing us to wash our hands of it, which under international law we are simply not allowed to do.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Just to capture this, you're saying you want the agreement renegotiated to include right of access, to include right of notification, which is actually made better if you have a veto power as well, and that we would help the Dutch and others build better detention facilities that would eventually become part of the infrastructure of Afghanistan.

[Michael Byers]

That is exactly it. I fully support the development of indigenous Afghan governmental capacity. In fact, by holding the Afghan authorities to the highest standards, liaising with them and following up, we're actually helping them to build up to meet our expectations.

The other thing is that although Alex was talking about problems in U.S. custody, the reason we need protections against onward transfers could hypothetically extend beyond concerns in terms of U.S. treatment. What if the Afghan authorities decided to transfer some of our detainees onwards to Uzbekistan or some other country with a particularly notorious record of torture? Having a right of notification and a right of veto simply ensures that the Afghan authorities uphold our expectations and the expectations of international law in any foreseeable circumstance.

The point I would again like to come back to is that the Dutch, after several months of very intensive work and study in committee meetings just like this, drafted an absolutely fine agreement that we should use as our model today, recognizing that our agreement was negotiated too quickly in the midst of a federal election campaign. It's easy to fix; I've just explained how. The Dutch agreement plus a right of veto solves all the problems, or at least 99% of the problems, and that's pretty good.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Can you explain the role of the ICRC, not only in Afghanistan but around the world? In terms of governance and what you call traditional practices, is this a problem not only in Afghanistan but in the way the ICRC operates in the rest of the world as well?

[Michael Byers]

The ICRC's policy of discretion is what makes the ICRC so effective. It gets access, even from the most repressive of regimes, because those regimes know that the ICRC will not turn around and tell other people what's going on. The discretion and the confidentiality is why the ICRC gets access to prisoners. The price it pays is that it cannot go public. It cannot talk to third countries. It cannot fulfil the kind of function the Government of Canada seems to be expecting of it in these circumstances. That is what I believe the ICRC representative would have told you today if he or she had felt they were able to show up.

[Alex Neve]

I would just echo that.

I would not want to imply at all that we're critical that the ICRC is using discretion and that it is quiet and behind the scenes in the way it goes about the work in Afghanistan. That is its role. That is the role that plays around the world. And it is vitally important.

But that's a particular function. To extend beyond that and infer somehow that therefore the ICRC becomes an adequate overall body that is capable of safeguarding the rights of detainees in a country such as Afghanistan is just too much of a stretch. Oversight and monitoring needs to come through other means and other mechanisms. The ICRC simply is not going to be able to play that role.

[Carolyn Bennett, Liberal, St. Paul's, ON]

So whether that works in other places, the message you're giving the committee is that because Canada is so implicated in this now, this isn't good enough for the fact that we could be held responsible for what happens behind closed doors. Is that the case?

[Michael Byers]

It would be a concern regardless of the degree of our implication. But given that we are detaining people and transferring them under an inadequate agreement, I do feel some urgency in pleading with the committee to recommend a renegotiation of this agreement to match the terms of the Dutch agreement. They have shown us how it can be done.

[Carolyn Bennett, Liberal, St. Paul's, ON]

And would you suggest that the committee not wait for the full report on the mission in Afghanistan but send a letter to the minister now?

[Michael Byers]

I take the view that my suggestions are so patently reasonable that you should send a letter now.

[Alex Neve]

I would echo that.

And I would stress, whether it be Amnesty International or legal academics or through media coverage or the work of parliamentarians, these issues are in front of the government. It's not that this is a new issue coming out of left field. The need to develop an approach to handling detainees in Afghanistan that doesn't lead to human rights violations has been in front of the government in various forms for quite some time--since early 2002, in fact. So I think the sooner the better.

[The Acting Chair, Conservative, Russ Hiebert]

Thank you.

Moving on to the next round, Madame Bourgeois.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank you, Mr. Chairman. Good afternoon, gentlemen.

I don't know where to start, because you have raised aspects—especially you, Mr. Byers—that deal with the questions I asked and for which I did not get an answer. I now understand why I did not get an answer. I remember seeing one of the witnesses look down. I would like to start by congratulating you, Mr. Byers, for having had the courage to come and tell us that something is going on and that by looking at the detainee transfer arrangement...

Point 8 of the arrangement reads as follows:

The Detaining Power will be responsible for classification of detainees' legal status under international law.

Why are they detained? What are the reasons for detention? I asked that question earlier, perhaps not as clearly as that, because I am not a member of this committee. I am now asking both of you, gentlemen.

Who are these detainees? Are they terrorists? But there are many terrorists in Afghanistan... Tell me about them; tell me about these people.

[Michael Byers]

They could be a number of different things. They could be terrorists. They could be insurgents. They could be common criminals. They are detained on the battlefield or in the proximity of the battlefield, and that's perfectly appropriate. It's also perfectly appropriate, in accordance with international law, for them to be interrogated--not tortured, not abused, but interrogated. It's appropriate for them to be charged and prosecuted if they are suspected of crimes.

My concern is to ensure that, in this fragile country in transition, their rights and our obligations are not violated in the course of that investigative and prosecutorial process. In this country we investigate people, we interrogate people, and we prosecute people without torturing or abusing them. This is what we should expect and demand of the Afghan authorities also.

We are in Afghanistan in part because of human rights. If we're going to negotiate a detainee transfer agreement, let's make sure it protects human rights. Let's not simply rely on the day-to-day practice of a handshake or on the day-to-day assurances of goodwill. We would not do that in this country. That's why we have legislation instead of simply practices of behaviour. That's why we have a Criminal Code. That's why we have courts.

If we're there for human rights, let's do this properly. All I'm asking is that we do this properly, because we can. It wouldn't interfere in any way with what we are trying to do in Afghanistan and with what we hope the Government of Afghanistan will be able to do.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I would like to continue on this topic, because you are using terms that I am not familiar with.

The Afghan people are poor. If we take away their poppy crops and tell them to try and get by, to try and live, how will they do that? Will they live off the land by laying bombs or by working for the Taliban? I would like to know. It might be a young 20-year-old who has been paid to steal something. Is that a young thief, or someone who would want to destroy a Canadian tank?

It is all well and good to say that they are terrorists, or whatever the term used, but who can guarantee that they really are terrorists and that they are not prisoners under law? Do you understand what I'm asking? In terms of human rights, these are poor people. They are prepared to do anything to obtain food.

[Alex Neve]

Those concerns are fundamental. It's instructive I think to remind ourselves of the experience of Guantanamo Bay. It's a different detention regime, but many of those individuals are of course individuals who were apprehended on the battlefield in Afghanistan amidst vague, unspecified allegations that they were horrific individuals responsible for committing terrorism or aiding terrorists. Again, no legal regime was put in place to deal with those cases, no charges were brought against them, and there was no access to lawyers--a lot of the same things we're concerned about in Afghanistan.

With many of those cases, yes, there are still some against whom there seem to be allegations of some credence, and some sort of legal process, a highly problematic legal process, will be launched eventually. But large numbers of those individuals have simply been released, let go--not after 72 hours or two weeks but after several years of detention in very harsh, difficult prison conditions in Guantanamo Bay.

The possibility that some of those same scenarios are playing out with respect to prisoners being taken by Canadian Forces, transferred to Afghan custody, and held, again in circumstances where we don't know if any charges are being brought against them.... We're not being told the status of the cases. We're being told it's actually secret, and something that we can't know. They're not being given access to any legal representation of any kind. The oversight and monitoring mechanisms are inadequate to be able to follow what's going on in the cases.

That leads you back almost to the same scenario.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

My last question will be brief, Mr. Neve.

You work in the area of human rights. In a country where there are no means of communication, how do families meet when someone is taken prisoner? I assume that there is only one detention site. The site may be far from where the prisoner normally lives. In terms of human rights, does that pose a problem?

[Alex Neve]

Certainly it does. One of the fundamental rights that attach to any detention regime, be it in the midst of an armed conflict or not, is ongoing, reliable access to family members. Amnesty International has not done particular research on that, so I can't say we know of a certain number of cases where family contact has been impeded or difficult. But I think you're quite right to imagine that in the circumstances prevailing in Afghanistan, with the very difficult prison conditions that have really been deteriorating and not improving recently, it will be a real problem.

[The Acting Chair, Conservative, Russ Hiebert]

Thank you, Mr. Neve.

Ms. Black.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Thank you very much, Mr. Chair.

Thank you both for coming here today and sharing your expertise and experiences with this committee.

I was struck, Mr. Neve, to hear you talk about the five years of repeated communications with a variety of defence ministers. You talked about how many times you made representation as Amnesty International to these different ministers. You didn't really say what response you got back. I'm assuming it wasn't a response that satisfied you in any way; otherwise you wouldn't have felt the need to keep communicating for five years. I think Amnesty plays a very important role, not only here in Canada but internationally. I just wanted to say that.

It seems to me, after listening to Dr. Byers and you, it would be quite a simple thing to change this agreement. So I don't really understand the reluctance to do that.

I want to ask you, Professor Byers, why you think the government hasn't taken the steps you've indicated should be taken to rectify the deficiencies in this agreement and make sure that no prisoners could be passed on through the Afghan authorities to a third party, as you talked about.

[Michael Byers]

With all respect, Ms. Black, the current government has only been in power for ten months. This was entered into by the previous government, and I'm hopeful that the current government will realize that some improvements are needed to a job that was done by another government. I think there's a real opportunity here for the current government to rectify a problematic situation.

I will also say in that context, because I know I'm speaking to a former military officer, that I've never met a military officer who wanted to violate the rules of international humanitarian law. In fact, they pride themselves on adherence to international humanitarian law. They simply want clear direction from their political masters. That clear direction includes a detainee transfer agreement that upholds the obligations of international humanitarian law.

I see no reason why the military would object to us renegotiating the Canadian agreement to incorporate the standards of the Dutch agreement. It's good enough for one of our most important NATO allies. They put a lot more time and thought into it. This is a chance for us to improve our side of things.

On the reluctance of the prior government, I did mention that this agreement was negotiated in a bit of a hurry. The troops were on their way to Kandahar and there was a federal election campaign. Prior to that, the situation in Afghanistan was in transition. It was initially an international armed conflict based upon article 51, the right of self-defence in the United Nations charter. It was initially focused on al-Qaeda and removing the Taliban government. It is a transition to an operation that's as much focused on reconstruction as it is on counter-insurgency.

The concerns and perspective of Canadian governments have changed over time. If there's one thing we have learned from various things, from Guantanamo Bay to the Maher Arar affair, it's that we have made mistakes. Reflection and study now put us in a position to rectify those problems.

I'm delighted you are meeting on this. I think it's so simple to fix this, and I really hope you will give a clear indication of this to Parliament so they can fix this problem before we get into any problems. I simply don't want someone to be tortured or abused because my government hasn't taken the time and the care to ensure that we have a good agreement governing how we behave.