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.
4:10 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Okay. Other than actually being there and seeing it, other than allegations and anecdotal evidence, I'd be hard-pressed to find a better way to identify it than actually being there and seeing it.
4:10 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
It's very difficult to detect torture. People who perpetrate torture are clever. They do not chop limbs off and take people into interview rooms to be seen by visiting officials.
4:10 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
You've said several times that Canada has been in violation of international law. That's a strong opinion. It is a legal opinion that I respect. There are many others who don't share that opinion, who are lawyers, who have worked very directly with the situation in Kandahar, with the Afghans—obviously, with that whole situation.
With respect, yours is a strong opinion. Do you appreciate that it is just an opinion?
4:10 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
It's a legal opinion. I personally believe it's correct, but I understand that people have taken a different opinion.
4:10 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
So I understand, and quite a few people.
You mentioned talking to the Government of Canada in the fall of 2006. Have you talked to the Government of Canada since then directly?
4:10 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I am not aware of any specific meetings between Human Rights Watch representatives and the Government of Canada since then.
4:10 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
And you yourself have not talked, obviously, to anybody in the government.
4:10 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I myself haven't, and I personally did not conduct the meeting in 2006; it was Sam Zarifi. I did not work for Human Rights Watch at the time.
4:15 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Have you ever had a conversation with any of the commanders on the ground in Kandahar—General Grant, General Laroche, General Fraser?
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I think they would be better people to ask that question.
4:15 p.m.
Conservative
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I personally have not, and I don't believe anyone in the organization has.
4:15 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Thank you.
You mentioned—in your statement, I think it was—that:
While we have received anecdotal reports that the conditions of recently transferred detainees have improved, we have been unable to verify these reports. Furthermore, those reports pertain only to the specific detainees identified as transferred by Canadian forces.
We are responsible for detainees transferred by the Canadian Forces. Is that correct?
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
That is correct.
4:15 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Now, correct me if I'm wrong, but you don't seem to accept this anecdotal evidence of improvements, but you do seem prepared to accept anecdotal evidence from elsewhere of wrong-doing. I think there's a dichotomy there.
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
Well, when the question is whether someone faces the risk of torture, without being able to verify the evidence I'm not confident in relying on it.
Additionally, as I noted earlier, the specific detainees who are identified as being transferred by Canadians are the ones who are being monitored, but we have received reports of captures taking place in the field, where ISAF forces are present and are effectively taking custody of the person, but the Afghan National Army personnel physically take custody and therefore that person doesn't fall within the scope of any monitoring.
4:15 p.m.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
If it is an Afghan National Army operation and they are running the operation, does it make sense that they would be the ones who would be detaining prisoners on their own operation?
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I can't speak to operational concerns.
4:15 p.m.
Conservative
4:15 p.m.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
Thank you, Mr. Chairman.
Thank you very much. I found your report very thorough, and I was very impressed with the sections that you brought to bear, particularly dealing with international law obligations.
Whether it's a 2005 transfer or a 2007 transfer, the issue still is whether or not we have the obligations under international law, and you've indicated the MOU was not in fact sufficient. In our own situation, the Judge Advocate General indicated, I think in a letter of 2007, that the military was very close to the line with regard to the transfer issue, again, recognizing our legal obligations.
You indicate that we should immediately stop the transfers. There were discussions with other NATO allies, including the British and Dutch, about a separate prison, etc. What would you suggest we do today to immediately fulfill those obligations, given the fact that time is obviously running out?
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
As I mentioned before, I think it's incumbent upon Canada to increase the efforts it is engaged in to build capacity and train Afghan officials on rule of law issues, particularly about how to build a criminal prosecution.
Afghanistan doesn't have an administrative detention statute. Detainees who are held by the NDS are essentially pretrial detainees, although many are released without charge. They are being held for the purpose of future criminal prosecution, which means there's an opportunity to train the national security prosecutors, who are operated by the attorney general's office, about how to treat detainees properly.
As I'm sure you know, if a prosecutor is strict with the police and explains that he will not accept evidence that hasn't been obtained by lawful means, there's a strong disincentive for the police to use those unlawful means. That's an area in which Canada truly excels, and it's an opportunity for Canada to take that rule of law knowledge to the Afghan forces.
4:15 p.m.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
Concerning your advice on an interim step, I agree that capacity building, etc., all needs to be done. But given that if there were any doubt that we were violating international law we would have to do something today, what would you recommend?
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I recommend that Canada cease transferring detainees and I recommend that Canada engage in this rule of law capacity building. I understand that this takes time, and while we do not support long-term, indefinite detention, if it is necessary for a limited number of detainees that they be detained by Canadian Forces, I think that might be the lesser of two evils right now.
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
For a very limited period of time, for the limited purpose of protecting them from torture.
