Afghanistan Committee on March 17th, 2010

[Paul Champ]

I have no idea or information of the 210 visits. The only direct information I have are visits that were conducted up to the end of December 2007. I've reviewed all of those reports, so I know what occurred for all visits from May 2007 to December 2007. I don't know the details since that time or how they count them.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

The second question is, for 2005, I understand that there were no detainees being transferred to the Afghan authorities before 2006.

[Paul Champ]

There was a handful, I believe, in 2002. As you recall, the Canadian Forces were deployed in Kandahar Province in December 2005. From 2004 and 2005, Canada had a small force around Kabul. In 2002 they were involved in some counter-insurgency operations and Canada did detain some individuals. I think it's somewhere in the range of 12, and they were handed over to the American authorities.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Absolutely, but they were not transferred to the Afghan authorities.

[Paul Champ]

That's correct. I don't think there were any, until April 2006, who were handed over to Afghan authorities.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

You've talked about the ongoing serious and substantial risk of torture, and we're sending Afghan detainees to the Afghan authorities with a potential risk of torture.

As a lawyer for Amnesty International, you have been asked for different opinions. Different parties have asked you. I'm going to ask you a very blunt opinion. You've essentially given it, but I just want you to be very clear. Are you suggesting that we as Canadians, the Canadian government in particular—with all of the evidence that's before us, both publicly or otherwise—that the Canadian government is in breach of its obligations vis-à-vis the Geneva Conventions?

[Paul Champ]

The Geneva Conventions, and also the Convention against Torture, and the International Covenant on Civil and Political Rights—I'd say we're in breach of all of those conventions.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Is it your view that the Government of Canada today, if taken to court, would most likely be found to be in breach of its international obligations?

[Paul Champ]

I do.

I would point back again to the Federal Court judgment in 2008. There were two judgments, one in February 2008 and one in March 2008, where Justice Anne Mactavish found that the charter does not apply and so dismissed our application on that basis. However, she took care to go through all the evidence of torture that we had led, and also problems with the May 2007 agreement. She had pointed out that prisoners had gone missing--when we showed up to interview prisoners, they were going missing and sometimes we were refused access--and then she outlined all of those allegations of abuse. She said that her conclusions were very troubling--the fact that she found that the charter did not apply had very troubling consequences for the concerns to those—

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

For our troops.

[Paul Champ]

Well, for troops, absolutely. She said detainees, and then she turned to troops and she said she had some concerns there, because it would seem the only Canadian law that applies is Canadian criminal law, and this raises a live concern, and she pointed that out. So if she had been asked to apply international law, I have no doubt in my mind that she would have found that we were in breach.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

[The Chair, Conservative, Kevin Sorenson]

You do have another minute.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Chairman, I have a question with regard to the collection and dissemination of intelligence, which I think is relevant to this issue.

If the federal government, or Canadian intelligence agents in the field, or military intelligence, CSIS, gets information, they often get information from the NDS. Is it logical to assume that a product of these interrogations that are done by the NDS would be that one would not only analyze what information they received from NDS, but how this information came about? In other words, what kind of interrogations were conducted--i.e., was torture applied?

What is your comment?

[Paul Champ]

I think that is a very serious concern, and I think that's one big question that remains unanswered. Are the Canadian Forces receiving intelligence back from NDS interrogations and are they inquiring to satisfy themselves that it wasn't the product of torture? I think that's a very serious issue. It would breach Canada's obligations under the Convention Against Torture.

I will go back to one of Mr. Dechert's good questions about whether the circumstances change in an armed conflict or a theatre of war. The prohibition against torture is a non-derogable duty. So when you have international human rights law and international humanitarian law going on top of each other, there are some cases where international humanitarian law would supersede some of the more strict requirements of international human rights law. That would not be the case with respect to relying on evidence obtained from torture. We would be very concerned if that is the case.

Based on a lot of the documents I've seen, I'm not sure if the Canadian Forces would ask the question. From many of the reports we've seen, it seems in many cases the Canadian Forces have taken the view that the human rights of detainees is a Department of Foreign Affairs issue, and we're not worried or concerned with that. I think that's something we've seen in other cases, for example, with CSIS acting abroad, saying or taking the view that whether someone was tortured in providing that information, that's not our concern or we don't have to inquire into that. But that is a very serious concern.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Champ.

We'll move back to Mr. Abbott.

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

Mr. Champ, I was rather troubled with the question that Mr. Dosanjh asked. I consider it to be very irresponsible. I wonder if you could give us a little clarity. As a lawyer who is responsible to Amnesty International, would you agree with me that the Geneva Convention does not apply in Afghanistan because it is not a state-to-state conflict?

Your answer, if I understood you correctly, was that you were worried that we could be or the soldiers could be subject to the laws under the Geneva Convention. Considering that it doesn't apply, would you agree? Why would you answer that irresponsible question with an irresponsible answer?

[Paul Champ]

Well, I would disagree with you that the Geneva Conventions do not apply to the armed conflict in Afghanistan--

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

Who is the other state? Pardon me, I'm sorry to interrupt.

[Paul Champ]

Well, there's some dispute about whether it's an international armed conflict or not, but regardless, common article 3, which is the obligation or duty not to subject individuals to inhumane or cruel treatment, applies both in internal civil armed conflicts or international armed conflicts. So that applies regardless of whether it's an armed conflict or not, and I think almost any lawyer would agree with me on that.

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

Are you doing the same cherry-picking that you did with the Canadian Constitution in applying whichever part of the Canadian Constitution you thought would be valid and ignoring the other parts of the Canadian Constitution? Are you cherry-picking the Geneva Convention as well?

[Paul Champ]

No, I don't think so. I don't think there would be any lawyer who would disagree with me that common article 3 applies. That's an article that's in all the Geneva Conventions, 1, 2, 3, and 4. It's the prohibition against cruel and inhumane treatment, and I think any lawyer would agree with me that this applies in this conflict.

I agree with you completely that it's likely that the third Geneva Convention, with respect to prisoners of war, does not apply to this armed conflict.

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

Then perhaps you might want to go and take a look at the transcript of the answer to the question that Mr. Dosanjh put, because that was not my understanding of your answer.

[Paul Champ]

Common article 3 is part of the Geneva Conventions, and I believe they're in violation of common article 3.

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

I don't recall you invoking common article 3 when you answered Mr. Dosanjh's question.

I'd like to go to the issue of the redacted documents. Do you happen to recall the accidental leaking by American congressmen that the CIA was tracking Osama bin Laden by cellphone, and in fact it sent Mr. bin Laden back to his caves? Do you happen to recall that?