Afghanistan Committee on May 12th, 2010

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

So in your view, it would be more likely that prisoners would be abused by the American authorities in 2005 than by the Afghan authorities.

[William Graham]

No, I didn't say that.

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

Okay. Fair enough.

[William Graham]

No, no, I wouldn't say that. That would be a very unfair characterization. No, I certainly would not say that, sir.

[The Chair, Conservative, Kevin Sorenson]

Thank you. That's our five minutes.

The second round is a five-minute round.

Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Mr. Graham, you said that in drafting or negotiating this agreement, you had the advice from the officials of JAG.

Do you recall the names of the JAG officials who advised you or drafted the agreement?

[William Graham]

The principal advice I would have gotten would have been from the then Judge Advocate General himself, General Pitzul. He had two colonels with him, one of whom I was told had a doctorate in international law and was an experienced international lawyer.

But obviously, as General Pitzul pointed out, his role was that of legal adviser to the Minister of National Defence, and I very much took his advice. He was a very scrupulous, careful lawyer.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Do you recall the name of the colonel?

[William Graham]

No, I couldn't recall that.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

There have been arguments, Professor Graham--if I might call you that, affectionately--advanced by various legal authorities and others that the evidence that's known in the public domain, or otherwise, establishes a substantial risk of torture for any detainees transferred to Afghanistan. Some of that evidence, according to Madam Olexiuk, who testified before this committee, relates to the period when you were the minister.

The arguments have been made that if you are capacity building and you are only trying to alleviate the problems, but you continue to transfer even in the face of that substantial risk of torture, somehow you can be immune to any allegations of offences under the Geneva Conventions. Is that your view?

[William Graham]

No, I wouldn't have accepted that view. You're suggesting, in other words, that because one is capacity building, one could go and make a transfer in the face of total knowledge that in fact this was going to result in torture.

No, I wouldn't accept that. Obviously that's not a justification for that.

The responsibility is under the Rome Statute. The Crimes Against Humanity and War Crimes Act, which is part of the legislation of Canada, part of our Criminal Code, doesn't have a proviso saying that if you're capacity building you can go ahead and do it.

No, I wouldn't accept it.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Nor does simply transferring detainees to Afghan authorities absolve us of our responsibility. Is that your understanding?

[William Graham]

Yes, but that responsibility is not absolute.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

How so?

[William Graham]

You'd have to get some international lawyers to help you with that, but the transfer, having taken place in good faith, with the full understanding that the responsibility of the Afghan authorities would be properly exercised.... If something is subsequently done, the Canadian authorities can't be held responsible a year later if the Afghan authorities do something crazy. I mean, no criminal code system operates, to my knowledge, in that respect. You'd have to get a lawyer to tell you that.

What we do is that we're responsible if...in the face of, as I understand it, a knowledge of what you do. You can't be responsible for what you don't know about. It's not an absolute responsibility; there's no such thing.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Let me make the argument that is made sometimes by legal scholars, that if you know, or you ought to have known--because there's a positive duty to find out--that there was a substantial risk of torture and you continue to transfer, if something happens to a prisoner or prisoners, we are responsible as a country despite the fact of transfer. That's my understanding of the law. Just because it happened after the fact does not absolve us.

I'm making that argument because the argument made by some colleagues from the government has been that you ought to have known because there were reports in the public domain in 2005. Madam Olexiuk argued that there was sufficient evidence in the human rights reports that she wrote.

I'm saying this because I want to give you a chance to respond.

[The Chair, Conservative, Kevin Sorenson]

We'll move back to Mr. Dechert, please.

I have to get used to this five-minute and not the seven-minute round.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I think he wants to--

[The Chair, Conservative, Kevin Sorenson]

You can answer very quickly, Mr. Graham.

[William Graham]

Mr. Chairman, the honourable member—and I don't want to get into a legal argument with him—has totally jumbled up the difference that international lawyers make between the law of war and the law in war.

There's personal responsibility, under the Geneva Conventions, for individuals who do certain things under the law in war. The law of war, which governs the responsibility of countries, is a different matter--wars of aggression and so on.

So I don't accept what the member said in terms of a country's responsibility, because what he's talking about under the war crimes act, as I understand it, is a war crime of individuals, and therefore would have to be proved in a court of law that they knew or ought to have known and failed to exercise their responsibility.

But there are greater international lawyers around than I, and maybe they can help the House with that. But it is a problem.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Graham.

Mr. Dechert.

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

Thank you, Mr. Chair.

Just quickly, because we're running short of time, I just want to clarify that I was telling you what Amnesty International and Human Rights Watch lawyers had said, not what I believe.

[William Graham]

Okay.

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

Did you read the Dutch or U.K. transfer agreements in 2005 while the Canadian agreement was being negotiated?

[William Graham]

No, we did not have—