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.
4:15 p.m.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
And that certainly would, then, fulfill the obligations you've outlined.
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
It would specifically fulfill the obligation of not transferring someone to face torture.
4:15 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
There are other obligations, of course, to which I can't speak.
4:15 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
Coming back to this question of the standard, I don't want to take issue with my friend, Mr. Hawn, but I want to try to be clear. One of the arguments the government has been making, and I think it's a very sincere argument on their part, is to say, we don't have evidence of torture having taken place with respect to any of the people we transferred—what we would call the “Canadian detainees”—and therefore we've met the test. That seems to be the argument that comes from the government.
I want to get from you a sense, from a legal perspective, of whether that is the test or whether there is another test that should be applied. I think it's very important that we understand this. We'll hear from other lawyers too, and there will be lots of different opinions, but I want to understand: is that the right test, or is there another test that has to be applied?
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
Even if it is true, and I don't believe it's been confirmed, that detainees recently transferred by Canadian Forces have not been abused, I believe that anyone making a fair assessment of whether a detainee captured by Canadians would face a substantial risk of torture if transferred to the NDS has to conclude that the answer is yes.
4:20 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
I'm not going to make Mr. Hawn's case for him, but I want to say that one of the things that would occur to me to say, if you were a Canadian lawyer in court, would be that the counter-factual to what you've just said is that we have put in place measures that have proven sufficiently stringent that we do not believe, on the basis of our reviews.... We're not relying on the word of the Afghan government; we're not doing as in the Chahal case, in which they were relying on the word of the Indian government, and as in the other case, in which they were relying on the word of the Tunisian government. Under the most recent agreement that's been signed, we're not relying on the word of the Afghan government but relying on Canadian eyes and ears, which are going into those facilities and checking on whether or not our detainees are subject to abuse.
Is that good enough?
4:20 p.m.
Conservative
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I don't have confidence, no matter how well-meaning or well-trained a monitor is, that they can adequately determine whether or not someone has been tortured in the custody of the NDS, particularly because evidence suggests that torture occurs within the first 72 hours of custody.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Ms. Prasow, we've been discussing that the former government chose to transfer prisoners to the NDS in 2005 rather than detain them in a Canadian facility or transfer them to an alternative facility, such as the U.S. facility at Bagram at that time or other ISAP force facilities. You described in your written materials a number of these alternative facilities that Canada could possibly have chosen.
How would you compare those facilities and the treatment of prisoners at, say, the U.S. Air Force base at Bagram to the facilities operated by the NDS and the treatment that might have occurred to prisoners there?
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
As I stated before, I haven't personally visited Sarposa or any NDS facilities. I have visited the ANDF and the detention facility in Parwan, but based on credible accounts of the treatment that has occurred at NDS facilities, I believe the difference is night and day. We have received no credible reports of mistreatment in either of those U.S.-run facilities.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So there were other options available to the Canadian Forces in 2005. They could have chosen to send the prisoners to, say, U.S. forces at Bagram.
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
These specific options were not available to the same degree in 2005. What I'm concerned about with respect to the ANDF and the U.S. detention facility in Parwan is that, as of today, transferring people to their custody is an option, as is building a similar model.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So when the Canadian government first decided to transfer prisoners and they knew or ought to have known that there was a substantial risk of abuse, what, in your view, should they have done at that time with any prisoner they captured?
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I don't know about the operational tools they had at their disposal. What I do know is that there is an obligation not to transfer people if they torture.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So you are saying they should not have transferred them.
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
They should not have transferred them—although I am speaking specifically based on information I have as of today in 2010. As I said before, I don't know the full scope of the information that was available to the Canadian government in 2005, although Human Rights Watch has been reporting on this issue for years.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Since at least 2002. And you mentioned that the Committee Against Torture had given a specific report to the Government of Canada in July of 2005.
As we have been discussing, the 2007 prisoner transfer arrangement added things that didn't exist in the 2005 arrangement. For some strange reason, there was no procedure for monitoring or follow-up in the 2005 arrangement. When there was any kind of allegation of abuse, the Canadian authorities moved quickly to revise that agreement and add monitoring.
Would you say that the 2007 agreement was an improvement upon the 2005 arrangement?
4:20 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
I think the 2007 agreement was an improvement, but I don't think it's possible to decrease the level of your violation of international law.
4:20 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
It doesn't go far enough; I take your point on that. But it certainly was an attempt to do things better than in 2005, in your opinion. Is that a fair statement?
4:25 p.m.
Senior Counsel, Terrorism and Counterterrorism Program, Human Rights Watch
It was an attempt to put into place a mechanism that I believe the international community has been clear is inadequate.
4:25 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Were they clear at that time, or have they been clear since that time?
