Afghanistan Committee on May 5th, 2010

[Andrea Prasow]

Absolutely.

I don't in any way wish to minimize the breadth of difficulties faced by Canadians and other international forces in Afghanistan. The conflict has been long and has required a great deal of sacrifice. The fact that it is difficult is not an excuse for Canada to violate international law. I firmly believe that the Canadian Forces and the Canadian government have within them the capacity, skills, knowledge, and ability to improve the situation. I look forward to Canada doing that going forward.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Canada could look at the possibility of a partnership with other forces on the ground. That is your suggestion that would allow Canada to comply with international law. It would mean using suitable facilities and sharing the time there to ensure a constant presence.

This is the first time that I have understood that forced confessions were considered necessary. Is this is a practice in Afghan criminal law? That could be the explanation for some cases where the attempt has been made to extract confessions by abuse and torture, instead of gathering evidence, which can be difficult to do.

Could you give us your specific thoughts on that?

[Andrea Prasow]

Absolutely.

One example, which I detailed in my written remarks but didn't mention earlier, is the case of a man whose brother was interviewed by the Afghanistan Justice Project. After the brother was tortured in the custody of the NDS, after he had been rendered unconscious, his thumbprint was placed on a document that included a confession. In Afghanistan, thumbprints are often used in lieu of signatures. He was then revived medically and beaten until he was rendered unconscious again.

I think that presents a very good example of the incentive behind the torture of many of the detainees in the custody of the NDS. If they don't know how to prosecute a case without a confession, the motivation, particularly with the eyes of the international community on the Afghanistan justice system to actually prosecute cases, is present for them to use coercive means and torture.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

So your suggestion to Canadian authorities—I imagine you have made the suggestion to the United States as well—is to work at improving the knowledge and the abilities of investigators and prosecutors so that forced confessions are no longer seen as necessary. Given the current situation, that kind of training must be very inadequate. It can require a lot of time and effort, correct?

[Andrea Prasow]

I don't think I can assess how long it would take. I do think it would require further commitment of resources. I don't specifically mean personnel. Resources might be people who have particular skills who are not currently in the field. It might mean more direction about the implementation of resources in the field. But I think it's essential. I don't think it is available to Canada to not do this, to not improve the state of the legal system in Afghanistan and also comply with its international legal obligations.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Preparing the Afghan people to develop a justice system worthy of the name would be one way to help them prepare to govern themselves. Is that what you mean when you say that, by so doing, we would be providing the Afghan people with a genuine, long-term benefit?

[Andrea Prasow]

That's right, and I think that's consistent with Canada's mission in Afghanistan to create lasting change and actually improve the lives of Afghans.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Lalonde.

We will move to the government side. Mr. Dechert, please.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you, Ms. Prasow, for being here today and sharing your views with us. It's really much appreciated.

According to Mr. Gavin Buchan, who was here last week, and other Department of Foreign Affairs officials, the decision to transfer prisoners detained by Canadian Forces to Afghan authorities was necessary because Canada is not an occupying force and is in Afghanistan at the request of the democratically elected Government of Afghanistan, assisting it to fight what is essentially a civil war.

Do you agree with this analysis of the Canadian government's decision to transfer prisoners to Afghan authorities?

[Andrea Prasow]

No.

I do agree that Canada doesn't have the legal authority to detain people in Afghanistan for some prolonged periods. As I mentioned before, we continue to have problems with U.S. long-term detention in Afghanistan.

But even if Canada doesn't have that authority, it doesn't obviate its legal obligation not to transfer people to the custody of a state where they face torture.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

Did Canada have another option with respect to the transfer of prisoners in 2005, given that the mission in Afghanistan is deemed to be a non-international armed conflict under the laws of war? Was there another option available?

[Andrea Prasow]

Protocol II of the Geneva Conventions, which Canada ratified in 1990, specifically provides that after someone has been deprived of his liberty, before he is released, it is the obligation of the state that has custody of him in a non-international armed conflict to take into account his security upon release.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So you think there should have been another option?

[Andrea Prasow]

I think it was incumbent on Canada to make that assessment at that time.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

In your presentation you've stated that it was well known in 2002, 2003, and 2004 that torture and abuse of prisoners were widespread and common in Afghanistan. Yet in the context of that, the government of Prime Minister Martin, the previous Government of Canada, chose to transfer Canadian detainees to the Afghan NDS in 2005.

You further pointed out in your written presentation that the international body known as the Committee Against Torture submitted in its conclusions and recommendations to Canada in July 2005 that Canada unconditionally undertake to respect the absolute nature of common article 3 of the Geneva Conventions in all circumstances.

So do you believe then that the former Government of Canada in 2005 knew, or ought to have known, that it was likely that prisoners would be abused if transferred to Afghan authorities, especially the NDS?

[Andrea Prasow]

I believe there has been ample evidence for many years to suggest that when making an individualized assessment of whether a detainee faces a substantial risk of torture, the evidence was available at the time suggesting that an appropriate conclusion would have been that detainees would face torture. I think that is why the transfers were stopped—although, as I noted, there were some serious problems—

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So there was certainly ample evidence in 2005 when that decision was made. Okay.

Ms. Prasow, other lawyers better qualified than me in matters of international law will ultimately determine if Canada was bound by common article 3 of the Geneva Conventions in these circumstances. However, assuming for the sake of argument that your analysis is correct and that Canada should not have accepted diplomatic assurances from the Afghan government when transferring detainees, is it your view that Canada was in breach of its obligations under international law when it entered into the 2005 prisoner transfer arrangement?

[Andrea Prasow]

I don't have all the evidence available to the Canadian government in 2005, so I don't think I can make that assessment. But I would note that I don't think it is open to debate that common article 3 applies at all times in any form of conflict, whether an international armed conflict or a non-international armed conflict.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So it's your view that, certainly, Canada was bound by that provision of article 3 in 2005 and that there was ample evidence in 2005 that abuse might occur?

[Andrea Prasow]

I believe, based on the reports of Human Rights Watch and other non-governmental organizations, there has been evidence of abuse. I don't know what the evidence was available to the government, beyond what I have referred to already.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Other witnesses have said the same thing.

As you know, there was a new and revised 2007 prisoner arrangement. Going back to the 2005 arrangement, are you familiar with that?

[Andrea Prasow]

I am.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

On a scale of 1 to 10, how would you rate the arrangement in terms of the protection of prisoners' rights and compliance with Canada's requirements under international law?

[Andrea Prasow]

I will choose not to give a number on the quality of the arrangement.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Would it be lower than 5?