Afghanistan Committee on Dec. 2nd, 2009

[Laurie Hawn, Conservative, Edmonton Centre, AB]

In the context of what was happening at the time, in the legitimate understandings that Canada had, either the previous or current government, with respect to operating there, with respect to the responsibilities of the Government of Afghanistan, the International Red Cross, and the Afghanistan Independent Human Rights Commission, is it fair to say that Canadians were doing the job the best they could, given the context, given the information, given the situation at the time?

[Colleen Swords]

Yes, I'm confident of that, and I would also say that most of our NATO allies do exactly the same or even less than what we do.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

That's actually a good point. How much contact did you have, if any, with people at your level among our allies?

[Colleen Swords]

I had quite a bit of contact in the spring, when we were trying to develop the May 2007 arrangement. We were trying to understand exactly what they were doing and any difficulties they had, how they were going about it. For example, one of the things we learned from one country was to make sure that when you hand somebody over they know what their rights are, that you'll be going to visit them, and that they are transferred by your country. When we do transfer them, they're read.... It's translated into Pashto and Dari, so each Canadian detainee knows that he's kind of special.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Prisoners of any country are never shy about coming forward and talking about how they're being treated.

[The Chair, Conservative, Rick Casson]

A short response, Ms. Swords.

[Colleen Swords]

I wouldn't be able to answer that.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

[The Chair, Conservative, Rick Casson]

Mr. Rae.

[Bob Rae, Liberal, Toronto Centre, ON]

Just to be clear, Ms. Swords, the convention on torture says that if you have “substantial grounds for believing that he would be in danger of being subjected to torture”, you're not allowed to transfer. It goes on to say that in making that decision you “take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”.

We know that since 2005 there have been a significant number of reports, including from the Secretary General of the United Nations, the Afghanistan Independent Human Rights Commission, and the State Department report--which is in there as a general review of the human rights situation in Afghanistan--showing that there were actually very widespread concerns about a pattern of abuse and beatings, a pattern of what is legally defined as torture.

I'm not trying to put anybody on the spot and I'm certainly not trying to assign blame. What I'm trying to get at is the two principles you've established: first, recognizing the sovereignty of Afghanistan; and second, recognizing our international obligations. Would it be fair to say those principles come into conflict if in fact it is the case that there is substantial evidence of massive abuse of human rights in Afghanistan prisons?

[Colleen Swords]

As I explained, we're trying to balance those two principles, and that is exactly why this is such a difficult file. I'm not comfortable with giving a legal opinion on the convention against torture; that's not why I'm here.

[Bob Rae, Liberal, Toronto Centre, ON]

Understood.

[Colleen Swords]

I would say there is an understanding that there are a lot of problems in Afghanistan; I don't think we'd be there if there weren't. As a result of that, we entered into the December 2005 MOU. If we thought there were no problems, we wouldn't have done that. We have consistently ratcheted up what we're doing in order to try to minimize the risk and to make sure there is not a substantial risk.

[Bob Rae, Liberal, Toronto Centre, ON]

When we talk about problems and risks, I don't want to put words in your mouth, but are we talking about torture and abuse?

[Colleen Swords]

I've seen a lot of memoranda that try to define torture, and they're torturous, to be honest. I think the difference between inhuman treatment and torture is something lawyers enjoy, but I prefer to just say mistreatment.

[Bob Rae, Liberal, Toronto Centre, ON]

It's pretty clear that it covers a lot of ground.

[Colleen Swords]

It does.

[Bob Rae, Liberal, Toronto Centre, ON]

All you have to find is abusive treatment in order to get there. But would you agree with me that abusive treatment was the concern there? Is that the risk that you felt was in place?

[Colleen Swords]

No Canadian official wants to see anyone abused, let alone tortured.

[Bob Rae, Liberal, Toronto Centre, ON]

Of course not. But on the argument we're having--and it's not really fair to put everybody on the spot on this--what was the information available as to the pattern of abuse? What other options were considered, apart from simply transferring prisoners to the Afghan authorities? Were any other options seriously pursued?

Let's say you had a discussion at a meeting and somebody said, “You know what, the risk is just too great. Why don't we set up our own prison, set up an ISAP prison, and transfer them somewhere else?” Were any other options put in place that would have led to a different conclusion?

[Colleen Swords]

I think just about every option imaginable has been discussed and considered by officials. The option chosen is the one that provides the most realistic opportunity for Canada to continue to help the Afghan government and the Afghan people, while at the same time doing everything we can to minimize the risk of anyone we transfer being abused.

[Bob Rae, Liberal, Toronto Centre, ON]

So the decision was made to keep them in the Afghan facilities, upgrade the Afghan facilities, improve the monitoring, and improve the access. Yet from time to time you would regularly hear allegations and information being provided, not only on individual cases but on general review. Dutch authorities and other people were saying we had a problem.

Would it be fair to say that information was still widely available after the agreement was signed in 2007?

[Colleen Swords]

General statements like that...? But we have to transfer that into specific action in the context of the mission in Afghanistan.

[Bob Rae, Liberal, Toronto Centre, ON]

Under the law, one could argue that if you have evidence of a pattern you have to take that into account when you assess whether or not it's appropriate to transfer people. You can't just ask whether Harry is going to be tortured. You have say, what do I have to consider if Harry's going to be tortured? You have to consider how many other Harrys have been tortured in the last five or six months. If it's a lot, then you say, okay, we can't transfer him.

[The Chair, Conservative, Rick Casson]

Please give a short response, if you want.