Mr. Chairman, members of the committee, colleagues....
good afternoon. I would like to thank the members of the committee for inviting me to briefly describe the legal framework for the transfer of detainees to the Government of Afghanistan. I will first briefly describe the role of the Judge Advocate General, the JAG, and I will then discuss the legal framework.
The National Defence Act provides for the appointment of the Judge Advocate General by Governor in Council. I am legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces, in matters relating to military law.
Military law means all international and domestic law relating to the Canadian Forces, including its governance, administration, and activities. This includes operational law, which is the domestic and international law applicable to all domestic and international Canadian Forces operations.
I also superintend the administration of military justice in the Canadian Forces. As former Chief Justice Lamer recognized in his 2003 report on the military justice system, the JAG has attorney general-like responsibilities. I exercise command over all legal officers working in the office of the Judge Advocate General, including those deployed to Afghanistan to advise commanders regarding Canadian Forces operations.
We are here today to discuss a fundamental question, the law governing the transfer of detainees to the Afghan authorities and concerns about the possibility that some detainees will be transferred to a risk of torture.
In spite of the factual and legal complexity of this issue, there are certain fundamental legal principles that are clearly settled. I am going to review them briefly.
Torture is abhorrent and can never be tolerated. The prohibition against torture is a peremptory and non-derogable norm of international law. The transfer of detainees to a real risk of torture or ill-treatment is contrary to international humanitarian law, also known as the law of war or the law of armed conflict. It is a specialized body of law that governs the conduct of Canada, its officials, and its military forces during the armed conflict in Afghanistan. The policies and procedures put in place by the Canadian Forces in Afghanistan and the legal test that must be satisfied before detainees can be transferred are all meant to ensure compliance with these international legal obligations.
The question of the transfer of detainees was recently addressed by Canadian courts. The case of Amnesty International Canada and the British Columbia Civil Liberties Association v. the Chief of Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, which I will refer to as the Amnesty case, dealt with the issue of the extraterritorial application of the Canadian Charter of Rights and Freedoms. Justice Mactavish of the Federal Court held that the charter does not provide rights to non-Canadians detained by the Canadian Forces in Afghanistan. She held that the detainees have the rights conferred upon them by the Afghan constitution, along with those conferred on them by international law and in particular international humanitarian law. The Federal Court of Appeal upheld her judgment on 17 December 2008, and the Supreme Court of Canada denied leave to appeal on 21 May 2009. This is the law of Canada.
In its judgment, the Federal Court reviewed the legal bases for Canada's involvement in Afghanistan. It confirmed that the authority for Canada's presence and the operations of the Canadian Forces in Afghanistan rest upon three interrelated bases in international law: the right to individual and collective self-defence, the authority granted by the resolutions of the United Nations Security Council, and the consent of the Government of Afghanistan.
In UN Security Council Resolution 1386 of 2001, the Security Council authorized the establishment of the International Security Assistance Force, ISAF. In succeeding resolutions, the Security Council has renewed ISAF's mandate to “assist” and “support” the Afghan government in the “maintenance of security” within Afghanistan, and it authorized states participating in ISAF to take “all necessary measures” to fulfill this mandate.
The Government of Afghanistan's consent to the Canadian Forces' presence and operations in Afghanistan is made explicit by its participation in the Afghanistan Compact of 2006, its support and acceptance of the Security Council resolutions authorizing ISAF and, more particularly, in the technical arrangements made between Canada and Afghanistan on 18 December 2005. The technical arrangements assert that,
the overall purpose of the Canadian assistance to the Government of Afghanistan includes the operational objectives of assisting the Government of Afghanistan in providing security and stability in the country.
They affirm the understanding of the Government of Afghanistan that Canadian personnel may take such measures as considered necessary, including the use of deadly force and the detention of persons, to accomplish their operational objectives. The technical arrangements expressly state that,
[d]etainees would be afforded the same treatment as prisoners of war. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.
The reference to detainees being afforded the same treatment as prisoners of war does not mean they have the status of prisoners of war. Rather, it demonstrates that we are extending well-established and comprehensive international law protection for such detainees.
The UN Security Council resolutions, the Afghanistan Compact, and the technical arrangements all reaffirm the international community and Canada's respect for and commitment to Afghan sovereignty and independence. They reflect the common understanding that it is the Government of Afghanistan that bears responsibility for providing Afghans with security, the rule of law, and the protection of their human rights and fundamental freedoms. The role of the international community, including Canada, is to assist and support the Government of Afghanistan in fulfilling those responsibilities.
The operations and activities of the Canadian Forces in Afghanistan take place in the context of an armed conflict involving the Government of Afghanistan; ISAF; and the Operation Enduring Freedom, OEF, coalition against elements of the Taliban, Al-Qaeda, and other organized armed groups. The characterization of the armed conflict is the subject of considerable international debate. However, for the purposes of the litigation in the Amnesty case, the Government of Canada accepted the applicants' characterization of the conflict as a non-international armed conflict.
More specifically, the Court found that Canada is not an occupying power in Afghanistan. The Canadian Forces do not exercise effective control of Afghan territory. The Government of Afghanistan, not the Government of Canada, exercises state powers. With one exception, the Government of Afghanistan has not consented to the application of Canadian law or the exercise of Canadian jurisdiction in Afghanistan. The exception involves offences committed by "Canadian personnel".
The court found that under the technical arrangements the detention of persons adverse in interest or providing support in respect of acts harmful to the Canadian Forces and coalition forces, and the transfer to Afghan custody of such persons, is to be carried out in accordance with international law. Prior to transfer, detainees are held in a temporary Canadian facility on a multinational base. The decision to transfer such persons rests with the Canadian commander of Joint Task Force Afghanistan and is made on a case-by-case basis.
The court noted that the governments of Canada and Afghanistan have set out their shared understanding of their international legal obligations in a series of documents relating to the transfer of detainees. On December 18, 2005, the Afghan Minister of Defence and the Chief of the Defence Staff for the Canadian Forces signed an arrangement that establishes procedures for the transfer of a detainee from the custody of the Canadian Forces to a detention facility operated by Afghan authorities.
The arrangement reflects Canada's commitment to work with the Afghan government to ensure the humane treatment of detainees, while recognizing that Afghanistan has the primary responsibility to maintain and safeguard detainees in their custody. Among other things, this arrangement provides that the International Committee of the Red Cross, the ICRC, has the right to visit detainees at any time while the detainees are being held in either Canadian or Afghan custody.
In February 2007 the Canadian Forces signed an exchange of letters with the Afghan Independent Human Rights Commission, AIHRC, to emphasize the role of the AIHRC in monitoring detainees. These letters further provide that the AIHRC is to provide immediate notice to the Canadian Forces should it become aware of the mistreatment of a detainee who has been transferred from Canadian custody.
On May 3, 2007, Canada and Afghanistan concluded a second arrangement governing the transfer of detainees held by the Canadian Forces. This arrangement supplements the first detainee arrangement, which continues to remain in effect. The second arrangement requires that detainees transferred by the Canadian Forces be held in a limited number of detention facilities to assist in keeping track of the individual detainees.
It further provides that members of the AIHRC, the ICRC, and Canadian government personnel all have access to persons transferred from Canadian to Afghan custody.
It also requires that approval be given by Canadian officials before any detainee who had previously been transferred from Canadian to Afghan custody is transferred on to a third country.
Finally, the second detainee arrangement provides that any allegation of abuse or mistreatment of detainees held in Afghan custody is to be investigated by the Government of Afghanistan, and that individuals responsible for mistreating prisoners are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
Of particular concern in the Amnesty case was the suggestion that detainees transferred by the Canadian Forces to Afghan authorities might be subject to torture by the Afghan authorities. There is a common aspect to all definitions of torture under international law. The definition provided in article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the CAT, to which Canada is a state party, is the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, in order to obtain information or a confession, or to punish, intimidate, or coerce the victim or a third person, or for any reason based on discrimination of any kind. This is also the essence of the offence of torture provided for in section 269.1 of the Criminal Code.
Both conventional and customary international humanitarian law prohibit torture under all circumstances. It is accepted that the meaning of torture under IHL is essentially the same as the meaning of torture under the convention against torture.
In addition to torture, other forms of ill-treatment, such as cruel treatment and outrages upon human dignity, are also prohibited under IHL. The Canadian Forces have been and remain alert to this issue.
The transfer of detainees is a state responsibility and a whole-of-government issue. On the ground in Afghanistan, in addition to the Canadian Forces, DFAIT, CSC, and the RCMP all play a role in detainee-related matters. The Office of the JAG has operated as part of a broader Government of Canada legal team, including the Department of Justice, PCO, and DFAIT.
The legal test that must be met before a detainee can be transferred by the Canadian Forces to Afghan authorities, and this was confirmed by the Federal Court of Canada and the Federal Court of Appeal in the Amnesty case, is clear: the commander of Joint Task Force Afghanistan must be satisfied that there are no substantial grounds for believing that there exists a real risk that a detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities. In applying this test, the commander considers information from a variety of sources, including DFAIT and other government departments. For example, in November 2007, transfers were suspended as a result of a credible allegation of ill treatment that arose during a monitoring visit by a DFAIT official. Transfers resumed in February 2008.
It bears repeating that Canada has not operated alone in its engagement in Afghanistan. We are there as part of a UN-sanctioned, NATO-led team of 42 states in the International Security Assistance Force, ISAF, and we also operate closely with the United States armed forces as part of Operation Enduring Freedom, OEF. Like Canada, other ISAF partners transfer detainees to the Government of Afghanistan.
To summarize, Mr. Chair, it must be noted, as Justice Mactavish said in the Amnesty case, and as affirmed by the Federal Court of Appeal, that there is no "legal no-man's land" concerning the transfer of detainees to the Government of Afghanistan. International humanitarian law applies. Canada has "applied" the words of that code by making arrangements and establishing procedures to guarantee that detainees transferred by the Canadian Forces are protected.
While this concludes my remarks on the legal framework applicable to the transfer of detainees, I would highlight for the committee that much of my work is covered by solicitor-client privilege. As the Supreme Court of Canada has noted:
Solicitor-client privilege is fundamental to the proper functioning of our legal system.
Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.
I would therefore ask for the committee's understanding with respect to this issue.
Finally, it is clear that contemporary armed conflict, and in particular the complex security situation in Afghanistan, presents both operational and legal challenges. However, I want to emphasize that both I and the courageous men and women who serve under my command are committed to ensuring the Canadian Forces are able to meet our international legal obligations. I know that our fellow members of the Canadian Forces have demonstrated tremendous professionalism in their handling and treatment of detainees. Respect for the rule of law is an essential aspect of Canadian Forces operations. Fostering respect for the rule of law is a key reason why we are in Afghanistan.
This concludes my opening remarks. If committee members have questions on this subject, I will be happy to answer.
Thank you.
