Afghanistan Committee on Nov. 4th, 2009

[The Chair, Conservative, Rick Casson]

Thank you.

Mr. Abbott.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

I'll be sharing my time with Mr. Kerr.

But I don't understand what my friend Mr. Rae doesn't understand.

[Bob Rae, Liberal, Toronto Centre, ON]

That's probably true. In fact, I think it's almost certain.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

The information to which he's referring was announced in the House, and there was a discussion on it in committee. What the government advised the general to do or not to do, or the advice that he gave the government, falls under solicitor-client privilege. Even as a non-lawyer, I can see that. That's why I don't understand Mr. Rae's question.

Mr. Walsh, I thought I heard you say that we could get this information by asking for it, extracting it. I thought you said that this was fine and that we were covered. We live in a democracy and we have freedom of information, freedom of the press, freedom of expression. We have people in the room who are exercising this freedom, and that's wonderful because that's what our work is all about. We've extracted information and it is in the public domain. It may or may not be able to be used in a legal way, but it is in the public domain. Yet there isn't a person in this room who would want to have anything in the public domain that would compromise our military efforts. So I don't understand the distinction.

[Rob Walsh]

I'm not sure what distinction you are referring to. But I understand the problem that you and all members of this committee face regarding information and the need, in some cases, to keep it from becoming public. We answered Mr. Hawn's questions about what we could do to try to avoid having certain information become public. The more basic question is, what information? If you don't get the information, you don't have a problem, because you don't have anything to talk about.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

The problem is that we don't know what we don't know.

[Rob Walsh]

That's exactly right. It's in the nature of ignorance that you don't know what you're ignorant of. The problem for the committee is to consider what it can do to ensure that the national interest, as opposed to the government's interest, is not compromised by making public what really shouldn't be made public. That's a difficult question in some circumstances. But you don't have the information to know what you ought to be concerned about.

[The Chair, Conservative, Rick Casson]

Mr. Kerr.

[Greg Kerr, Conservative, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you, gentlemen, for joining us.

This is becoming clearer by the moment. Putting that aside, I'm going to go to the general.

I know and I agree with the point that we can't get into the military directorate about what government does, but one of the questions I've always been concerned about is what kind of training the soldiers get. They're the ones who deal with these issues first-hand. What kinds of briefings and training do they have, what kinds of obligations do they undertake before they actually are on the ground, regarding the transfer of prisoners?

[BGen Kenneth W. Watkin]

In terms of prisoner handling, again there are certainly the other witnesses who are going to be called to go into great detail, but from a legal perspective it's a significant part of their training. Training before deployment includes prisoner handling. It includes the issue of a card, released as part of the litigation—not the one at the time—that specifically advises them on the appropriate treatment of detainees and includes not to torture or ill treat but to treat properly.

For anyone who has been watching the news over the last couple of years, on the news they've had pictures of Canadian Forces personnel handling detainees and doing it in a humane manner. The most recent example was with an IED, where a CBC film crew was directly behind, and when the IED went off, they were still taking the wounded CF members out of the armoured vehicle. The commentator was discussing the fact that they were detaining someone who they thought was involved in the incident, and again showing admirable professionalism in terms of their handling of a potential suspect.

[The Chair, Conservative, Rick Casson]

Thank you very much.

Over to Madame Lalonde, and then we're back to the government.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

I was the foreign affairs critic during that period and I remember very well reading the agreement signed by General Hillier, and comparing it with other agreements signed at that point, and thinking it was very weak. At that time, I said in the House of Commons, during question period, that it was weak.

Mr. Rae, if you read the second agreement, it includes provisions to ensure that Canada will be able to check at all times and consider the detainees' conditions, when that is not the case at all in the first agreement. There is even a provision in the first one that says: "No person transferred from the Canadian Forces to Afghan authorities will be subject to the application of the death penalty." They may tickle them to death or abuse them to death with no problem.

So in the House of Commons there were several members who pressured the government to sign a new agreement. At that time, Mr. O'Connor was the minister and I recall that I was not very nice to him. I told him that it made no sense. In fact, my concern was that Canadian soldiers could be prosecuted under international law, because they were the ones doing it.

There is a military base in my riding, but everyone is concerned about this question. So could you tell us, yes or now, whether soldiers, not the upper echelons of the military, could or could have been convicted under international law for transferring detainees to the prisons?

At the time, there were articles saying that mistreatment was widespread. It was not as hard-hitting as in Richard Colvin's report, but there were a lot of articles. I recall that witnesses said that detainees were mistreated, tortured. Was that Mr. Colvin, at that time? I don't know.

Is that a question I may ask and you can answer? As an M.P., this subject concerns me.

[BGen Kenneth W. Watkin]

Madame Lalonde, you talked about the arrangements from December 2005. I might just start with that.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Those were the first arrangements.

[BGen Kenneth W. Watkin]

Right. As I mentioned, the law that applies is international humanitarian law, and the provisions found in there, such as providing access to the ICRC and such, are patterned after what the law says with respect to Geneva Convention Common Article 3 for detainees.

For instance, for treatment in accordance with the standards of Geneva Convention Common Article 3, it's the receiving state that is responsible for the treatment of the persons who are transferred to them, care for the sick and wounded, the right of the ICRC to visit, all of that. Of the additional provisions found in the 2007 arrangement, some of those are additional to what is required in law.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Can I say something to you, generally? I don't know whether this is in fact your rank. Where I come from, in my riding, the soldiers are used to it and don't hold it against me if I can't figure out their rank based on their insignia.

In the first agreement, Canada did not ensure that it had the capacity to do constant monitoring, either for itself or for the Red Cross, as was the case in other agreements. The agreement signed later says: "Representatives of the ... (AIHRC) and Canadian Government personnel ... will have full and unrestricted access to any persons transferred by the Canadian Forces ... ."

I could find the question I asked Mr. O'Connor about this, when I said that was what should have been included in that agreement.

I will repeat my question: could soldiers be convicted?

[BGen Kenneth W. Watkin]

If I could just take two seconds in response, the addition of Canadian authorities' monitoring is not something you will find under international humanitarian law. It's something additional that the government has put into place.

With respect to the question of the jurisdiction, it's clear that torture is a grave breach. It's clear that it is subject to potential penal sanctions. It's clear that it's prohibited and outlawed, and there is a jurisdiction under the National Defence Act that we incorporate—for instance, subsection 269(1)—in regard to torture. In fact, a Canadian Forces member has been prosecuted for torture in the past under the military justice system, and there's been a prosecution for torture under the civil justice system in Canada.

So the potential is there, but of course that would only happen after following all of the mechanisms that are in place with respect to a proper investigation, where appropriate, and where each functioning actor within the justice system carries out their responsibilities. And it's the same in the military justice system as the civilian criminal justice system, in that those actors are given independent roles to ensure there are checks and balances in the provision of those roles.

[The Chair, Conservative, Rick Casson]

Thank you, sir.

Mr. MacKenzie, and then Mr. Wilfert.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair. Thank you to the panel.

I'm not a lawyer, just an old policeman. Sitting here today, I am listening to a few truisms. Number one is that if you have two lawyers, you will get three opinions. I think we've heard that. Also, police officers tend to be kind and gentle people; they don't yell at you. And there is a difference between an investigation and an inquisition, and I think some of what we're trying to do here is almost an inquisition.

In looking at the material you've provided for us, I think Madame Lalonde has brought something forward that is important. If you go to the 2007 agreement, I think paragraph 10 puts the obligation on people who have an allegation to take it to the Government of Afghanistan. I think all of what we've seen—as reflected, I believe, in the brigadier-general's comments—reflects the common understanding that the Government of Afghanistan bears responsibility for providing Afghans with...and so on and so forth.

So when Madame Lalonde asked whether Canadians could have been charged, I would note that there's never been an allegation that I'm aware of in which Canadians have ever been accused of torturing detainees. In that regard, when we look at all of the things that are going on here—and I think you've illustrated that the Geneva Convention is between nations at war with uniformed forces—all of the agreements that we have are one-sided only. We appreciate that; we understand it and know it's important for us. But these agreements don't apply to the insurgents; they don't abide by any of these terms and conditions.

Certainly, when we look at all of the things that have come before us here today, and the questions you're being asked, I would ask—whether or not you can answer it—if there are any areas dealing with the transfer of Afghan detainees to Afghan authorities where Canadians would, ultimately, be held liable for what they do.

If people follow the rules that are here—and it seems to me that we have obligations—the ultimate obligation is that of the Afghan authorities for the handling of the detainees. I'm wondering if you can expand on that or give us your response.

[BGen Kenneth W. Watkin]

Yes, sir, I could.

The Amnesty case, in fact, reinforced that it is Afghanistan that's responsible. The case dealt with non-Canadians. They're responsible for the acts that take place in their country. The fact that it's characterized as a non-international armed conflict, in fact, reinforces that. It's the sovereignty of Afghanistan that governs, and they're responsible for the enforcement of their laws.

There is one point you mentioned, sir, that I would like to clarify. That is the question of whether the obligations under international and humanitarian law apply to all the actors on the battlefield. One of the unique characteristics, perhaps, of that law is that it applies to both sides, whether you're a state or non-state actor.

As you highlighted, one of the challenges in contemporary conflict is the “abiding by” issue. That is a challenge. The ICRC is doing tremendous work in terms of addressing that by trying to get better abiding by other state actors, as are other NGOs.

For the Canadian Forces, that's irrelevant. As I mentioned in my comments, we are, obviously, committed to the rule of law and Canadian values. We will apply the law regardless of whether our opponents do. This is a significant part for us in terms of maintaining discipline. It's a slippery slope in terms of not complying with the law.

[The Chair, Conservative, Rick Casson]

Thank you.

We'll go to Mr. Wilfert, then back to the government, and then the NDP finishes up.

Go ahead, sir.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you, Mr. Chairman.

Thank you, gentlemen, for being here.

General, I don't know if you'll be able to answer this, but during the period from November 7 to February 8, at a time when the opposition was raising these issues in the House, the government was denying that there was in fact any issue.

From a legal standpoint, in November 2007 the transfers stopped. What procedure was undertaken, and who was informed in the government? And with those lawyers on the ground in Afghanistan, how is it reviewed? How do you determine that it could in fact be resumed, in terms of the transfer of those prisoners? Who gets that information? Allegations were made. We know that Mr. Colvin sent reports in.

Colvin notwithstanding, from your standpoint, within your responsibilities, how is it communicated? What is the litmus test to say that this agreement is now being adhered to? The government obviously saw that there was a problem, and they had to make changes to the existing agreement.

From a legal standpoint, what and how is it reviewed? Who's informed during that period in order for it to be resumed?

[BGen Kenneth W. Watkin]

Mr. Wilfert, again, you're getting into asking questions that, because of my involvement in the file as legal counsel, are subject to solicitor-client privilege.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

I'm having a hard time determining where your role as lawyer ends and the role of advocate general begins. I just want to know in terms of procedure, any procedure.

Let's not use this example, then. If in fact there was an agreement between two parties, and we decided, for whatever reason, that there was misuse or mistreatment, what would be the normal channels used? And how would that be communicated so we could determine whether there should be changes made and one could therefore allow the resumption of the transfer of prisoners?

[BGen Kenneth W. Watkin]

Mr. Wilfert, again, you're asking me to answer a hypothetical question. You've brought it back to the transfer of prisoners again. I can certainly tell you that in my capacity I provide advice on military law, and I have lawyers who provide advice at various levels in the chain of command. I also superintend the military justice system, which involves various roles with respect to when that justice system becomes engaged. In terms of a lawyer being asked for advice or providing advice in terms of knowing the issues, that's how legal advice would be engaged.

I also mentioned in my opening comments that this is a whole-of-government issue as well. I can certainly only speak with respect to my role in respect of the functions as Judge Advocate General.