Thank you very much, Mr. Chairman, and thanks to the committee for inviting me to speak to you this afternoon about this important issue.
I just want to say at the outset that I wish the committee well in dealing with an issue that I think is very important, not only for the future of the Canadian Forces but for the way in which we will be able to deploy them in future actions that I'm sure they'll be called upon to serve for Canada, as they have so well in the past.
I am sorry, but I am going to give my initial remarks in English. Of course, I will be willing to answer questions in French afterward.
Mr. Chairman, with your permission, perhaps I could just outline a few observations of my own, at the opening. I believe at this point I could perhaps be helpful to the committee in understanding the circumstances around which the original agreement was drafted with the Afghan authorities, which dealt with the transfer of detainees.
You'll know that, to some extent, this matter was covered extensively in Janice Stein and Gene Lang's book The Unexpected War. The chapter on this is pretty extensive. Much of what I will say will replicate what is said in that book.
Members of the committee will recall that we decided to undertake the combat mission after we had put our PRT in place, and to support our PRT as a process to move control of the southern area of ISAF from the exclusive area of operations of the Americans. I think that's part of the picture, part of what we were doing in southern Afghanistan at that time.
A political issue for the Afghans was that we were transferring authority from an exclusively American command to an ISAF command, which would have taken place after we'd had our original combat mission, you will recall...but took place in June of the following year.
It was a very different type of mission. The role of the Canadian Forces was to provide primarily security for the political process to take place, which was coordinated with CIDA and DFAIT, essential partners in the three-D process.
I'd like to emphasize that in our view, the rule of law was an important component of our campaign in Afghanistan, both from a legitimacy point of view and our credibility with the Afghan population. The question of detainees was a difficult one that we had to resolve. There was no capacity in the Canadian Forces to manage large numbers of detainees. That was clear. We didn't have the number of troops or the type of infrastructure that would have allowed us to do that.
Early discussions with NATO had indicated that NATO had no intention of providing a detainee holding capacity. The Americans had capacity in Bagram, but in our view, not only was this getting to the point where they were resistant about taking more detainees, it also was true, at that point, that because of both Guantanamo and our experience with Abu Ghraib, we were not of the view that the Americans would be appropriate authorities to receive prisoners from Canada. And that matter was raised in debate in the House, which I'll come to later.
That takes us to the point that we were in Afghanistan. We were in Afghanistan, so the Afghans were the logical and appropriate partners, with built-in protections for the prisoners, of course. The Dutch, the British, the Danes were working on this solution as well. We had a sense of promise that things were improving in Afghanistan.
From a chronology point of view, in May 2005 Foreign Minister Abdullah and I met. We agreed that an agreement was necessary and it would have the support of both the Afghan and Canadian governments. We discussed the idea of a transfer with Afghan authorities, again when I was in Kabul in October. Foreign Minister Abdullah was keen. President Karzai gave his okay. Defence Minister Wardak, however, made the point that the Afghan forces had no capacity to deal with detainees but that the President agreed that a special force would be trained to handle them.
We therefore proceeded to work on our agreement, which was drafted with senior members of the Judge Advocate General's division in the Department of National Defence, in fact one of whom was a doctor in international law. They were in contact with and had complete support of their colleagues in Foreign Affairs and PCO. There was an understanding that the Dutch and British were working on similar agreements and would be transferring prisoners to the Afghan authority as well.
The agreement contained, as you know, amongst other provisions, the Geneva Convention protections whatever the detainee's classification; the Red Cross was to be notified; and a provision that the Afghan human rights commission was to be engaged. This, I want to emphasize, colleagues, we believed was an extremely important provision. It was a part of what we believed was building civil society in Afghanistan at that time, giving capacity to the human rights commission of Afghanistan.
I have to say that I have subsequently had the opportunity of meeting Dr. Samar, who, you will recall, was the president of the commission. She was in Toronto as recently as a couple of weeks ago, attending a meeting. I met with her and she assured me that the Afghan commission at that time took their role extremely seriously. They investigated prisons. While they had problems, they certainly were doing their best to ensure that prisoners were looked after, and they did take their role extremely seriously.
We added a provision that there would be no death penalty, which was added, as you'll recall, as a result of conversations that we had in the House.
When we finished drafting the agreement, our officials assured me—and I pushed them hard on this—that our agreement contained the best language possible for the protection of prisoners.
I think it's appropriate at this point to emphasize that the agreement was drafted in anticipation. We had very limited experience with prisoners in the system at that time. While we were aware that the Afghan prison system was not perfect and was in fact wanting in many respects, we had no reason to believe they would not be capable of treating prisoners in accordance with the international humanitarian obligations set out in the agreement.
In November of 2005, we met here with NGO representatives. I can say there was general agreement that the appropriate approach to this issue was to transfer prisoners to the Afghans rather than the Americans at that time. Concerns were expressed about Afghan prison conditions, which was something we were going to address through CIDA, but there was every support for the policy of transferring prisoners to Afghanistan at that time.
Some members in the room will recall that the question of prisoners was raised in the debate in the House of Commons in November of 2005. I raised the agreement. Various opposition members raised similar concerns about any transfer to U.S. authorities, but as I understood it, they supported the transfer to Afghan authorities provided the proper provisions respecting the Geneva Conventions were present.
It is true this agreement lacked a right to follow prisoners, which was something contained in other agreements. This agreement was criticized for that. With hindsight, it could have contained such a provision, which the present government in its wisdom has added. I must emphasize, however, that we believed at the time that we had an agreement that contained the highest level of protection for any possible prisoners.
In the end, the agreement was not perfect. No agreement is. Every agreement depends as much on the way in which it's applied as to how it is written.
For myself, members and Mr. Chairman, I want to assure you that I was motivated in pushing on this issue because I believed this was a political struggle in Afghanistan and required demonstrating that we as Canadians operated under the rule of law. Mistreatment of prisoners would weaken the legitimacy of our role in Afghanistan itself and the support that Canadians would give the mission at home. It's a position that I believe I fully canvassed with members of the House during the debate at which I spoke, and I welcomed the observations of the honourable members of the opposition.
You will also recall the subsequent debate about extending the mission. I have read Hansard. I saw that the question of prisoners, when we discussed extending the mission in May of 2006, was only mentioned on two occasions in that lengthy six-hour debate.
Mr. Chairman, I remain confident that the Canadian Forces are imbued with a sense of operating under the rule of law, which is something that General Hillier and General Natynczyk have emphasized on many occasions, and which I personally experienced, whether dealing with our soldiers or members of the Judge Advocate Division.
I'd also like to pay tribute to the members of the Judge Advocate Division, the legal officers, and the many other officials who, as you may know, serve in the field at risk to their lives and provide instant advice to ensure that our troops conduct themselves in accordance with the obligations under the Rome Statute and the relevant provisions of international humanitarian and Canadian law.
As I said at the opening, I wish you well, sir, and honourable members of committee, in dealing with this issue in a way that ensures the reputation of Canada as a promoter of international humanitarian laws is preserved and the integrity of our armed forces is protected.
Thank you very much.
