Evidence of meeting #8 for Special Committee on the Canadian Mission in Afghanistan in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was nds.
A recording is available from Parliament.
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I will refer you to my written remarks detailing the problems that the European Court has found with diplomatic assurances. Human Rights Watch does not believe that diplomatic assurances are an appropriate method to—
4 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I'll take that as a less than 5, at least.
Are you familiar with the similar prisoner transfer arrangements negotiated by the British and Dutch governments around the same time in 2005?
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
Yes, I am.
4 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So on a similar scale of 1 to 10, how would you rate those arrangements with respect to the protection of prisoners' rights in compliance with applicable international law?
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
Without providing a number, I will note that the U.K. government is engaged in a judicial review right now about its transfer agreements, and the Dutch government has implemented the Copenhagen process in order to assess the best way to deal with detainees captured by NATO forces.
4 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So can you tell us what is different in those agreements in comparison with the agreement Canada entered into in 2005?
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
The 2005 agreement was somewhat weaker than the other agreements—which, I believe, is why the 2007 agreement was entered into. Nevertheless, taking both agreements together, Canada's international legal obligations are still not satisfied.
4 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Fair enough.
Is it possible that such abuses would have been prevented, or at least discovered, if the monitoring process, which was added in 2007, had actually been in place in 2005?
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
It's possible, but as I stated earlier, I don't believe that monitoring is an appropriate way to detect abuse.
4 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Certainly, in your view, something stronger was required in 2005 than what Canada actually had in place at that time.
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
What Canada has in place today is inadequate in terms of a mechanism for detecting abuse as well as for ensuring that detainees are not transferred to face torture.
4 p.m.
Conservative
4 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Just to recap, then, in your view, there was ample evidence that prisoners might be subject to abuse if turned over to Afghan detainees in 2005. You think the Canadian government had an obligation under applicable international law not to transfer them and not to accept simple diplomatic assurances. So was Canada, in your view, in compliance with its international obligations when that arrangement was entered into in 2005?
4 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I do not know the full scope of the information that the Canadian government had before it when it was making an individualized assessment.
4 p.m.
Conservative
4 p.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
Thank you for your presentation.
I'm also interested, as was the previous member, in the initial decision to not do more than the 2005 agreement. We were told by witness Gavin Buchan, for the record, that they were satisfied with legal advice that both diplomatic assurances and what I would have to call the commencement of capacity building, because they were only starting that process, were adequate in these circumstances and were in compliance with international legal obligations because—and this term was used—they respected Afghanistan's sovereignty. What's the role of Afghanistan's sovereignty in your understanding of international humanitarian law in these circumstances?
4:05 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
Whether a state is considered to be an independent sovereign nation, or the strength of the nation at that time--given that Afghanistan had just gone through a transition--is irrelevant to the assessment. The assessment is that Canada, the country that has custody of a person, must conduct an individualized assessment of whether each detainee it intends to transfer will face a substantial risk of torture.
Assurances from the receiving state are inadequate because they're unenforceable. Diplomatic assurances are diplomatic promises from high levels of government. The entity in the Afghan government that assigned the MOUs is the ministry of defence. It's unclear whether the NDS considers itself bound by the MOU since no NDS official signed those documents.
4:05 p.m.
NDP
Jack Harris NDP St. John's East, NL
We've also heard that, at least up until May 2007, there was inadequate record keeping kept. In fact, a senior official, David Mulroney by name, stated that after May 2007 they started to develop a database to keep adequate track of prisoners. Where does that fit into your understanding of what Canada's obligations would be under humanitarian law in dealing with such a state like Afghanistan and the kinds of prisoner MOUs we had?
4:05 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
There isn't a specific obligation that the country follow through for years on end to find out the results of the treatment of a detainee that they've transferred. But if Canada had detailed information about abuse that detainees had transferred to the custody of the NDS, if it had that information before it, it could use that in making any future assessment about whether a detainee might face a substantial risk of torture upon transfer.
4:05 p.m.
NDP
Jack Harris NDP St. John's East, NL
Given the record that you referred to and the knowledge of reports from groups like yours, diplomatic reports, U.S. government and Canadian government reports on human rights abuses, you've suggested that there was a real risk of torture in Afghanistan and in Afghanistan prisons. So would you need that specific information?
The reason I ask that is because our government has taken the position again and again that because there was no credible—that was the adjective—evidence that “Canadian” detainees had been tortured, everything was all right and Canada's obligations to act further ended.
4:05 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I think the evidence I've presented today makes it clear that there is credible evidence that many detainees faced torture in the custody of the NDS. That has been the way the NDS has operated for years. It's not a secret that the NDS has tortured detainees in its custody. Whether there is a specific guarantee that a detainee transferred by Canada will face torture, that's not the issue. The issue is, when looking at the context, is it reasonable to assess that the person will face a substantial risk of torture?
When you have a pattern and practice of abuse, which I believe is evident in the NDS treatment of detainees, I think it's incumbent upon that government to determine that indeed detainees do face the risk of torture and therefore they cannot be lawfully be transferred.
4:05 p.m.
NDP
Jack Harris NDP St. John's East, NL
The solution you've painted leads me to believe that you think what the U.S. is doing now is a good thing, that by running the prison themselves, training side by side Afghan nationals to take over these operations, is the way to go. I do recall, though, and I'm sure your organization had something to say about this at the time as well, that one of the reasons Canada was shy about doing that was the Abu Ghraib situation, which is obviously well known and notorious. Would that be a good reason to avoid setting up your own prison, or passing them over to the Americans at the time, lest you be complicit in the kinds of atrocities that occurred there?
4:05 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
Well, I absolutely have grave concerns about abuse that occurred at the hands of U.S. interrogators and guards in Bagram, and that may in fact be occurring in other U.S. facilities in Afghanistan right now. We have heard recent reports, recent allegations of abuse, but for the two facilities I've talked about specifically, the ANDF and the detention facility in Parwan, both of which I have personally visited, at the moment we have not received any reports of mistreatment, and they do present a model that Canada can consider. It's not the only option, but I think they are viable options and they are worth examining.
