Afghanistan Committee on May 12th, 2010

[Paul Dewar, NDP, Ottawa Centre, ON]

But he's not an elected official.

[William Graham]

No, and neither is David Sproule, the ambassador.

[Paul Dewar, NDP, Ottawa Centre, ON]

No, but he was delegated--

[William Graham]

These were signed by officials. He's an official of the Government of Canada.

[Paul Dewar, NDP, Ottawa Centre, ON]

The reason I am asking this, Mr. Graham, is that they're delegated these authorities--

[William Graham]

Right.

[Paul Dewar, NDP, Ottawa Centre, ON]

--as diplomats and as generals.

In my view of the world, when we're talking about delegated authorities that are as important as the transfer of detainees, and realize the role of DFAIT officials after--if we get a chance to talk about that, we'll get into that, because they ended up having to do monitoring--what I'm hearing is that the delegated authority was to the general, not to the diplomat. And you don't have any reason other than to say that it was convenient for the general.

[William Graham]

Look, I don't disagree with you that it's unusual. But there are lots of cases of international agreements where they're signed by military people or others. There are lots. You can go back into history to see all sorts of them.

I mean, the rendition of Germany was signed by a bunch of generals and admirals. That was the ending of a war.

[Paul Dewar, NDP, Ottawa Centre, ON]

It was a delegated authority. And we were in the middle of a war, though.

[William Graham]

That was a big deal; that was a really big deal.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Graham.

We'll come back to the government side.

Mr. Dechert, please.

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

Thank you, Mr. Chair.

Thank you, Mr. Graham. I appreciate you being here this afternoon. When we first met, you were a professor of international law at the University of Toronto, Faculty of Law, when I was a student there, so it's very interesting for me to be at the other end of the questioning spectrum today. I have a question for you as a noted expert in the international law.

In your view, does the prohibition against refoulement, pursuant to Common Article 3 of the Geneva Conventions, apply to the transfer of detainees by Canadian armed forces to the Afghan authorities in these circumstances, the circumstances of our current mission?

[William Graham]

Whenever I went to all candidates meetings and somebody called me a “professor”, I knew it was usually because I was going to get into trouble

[Some hon. members]

Oh, oh!

[William Graham]

So I can tell that the member is using unfair, unfair tactics.

Somebody mentioned to me this term refoulement, which, as I understand it, is a term that deals with refugees, if they're turned back at a border by a government, coming across--they're refouled, in other words--and being put in harm's way by being returned.

I haven't studied this situation with that in mind, so I wouldn't want to give you an instant opinion on it--

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

You don't recall whether you got any advice on that at the time?

[William Graham]

—but I wouldn't have thought at first blush that this was a case of refoulement, in that sense, as I understand the use of the term.

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

That's interesting, because Amnesty International and Human Rights Watch, for example, or the lawyers who presented here from each of those organizations, absolutely do think that it does apply in this case and that Canada is bound by that.

[William Graham]

Well—

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

But that's their opinion. I'm not taking their side; I'm just pointing it out. I just wanted to hear your views on that.

[William Graham]

Yes; as long as we understand that opinions in international law tend to be many and varied.

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

Like any legal matter, of course.

Human Rights Watch and Amnesty International and several DFAIT officials, such as Eileen Olexiuk, all stated that the allegations of abuse of prisoners by the Afghan NDS were common knowledge in 2005 and in earlier years. In fact, Human Rights Watch told us they had presented reports dating back to 2002, 2003, 2004, alerting the international community about serious allegations of abuse by Afghan authorities.

Were you aware of those allegations in 2005?

[William Graham]

No, I honestly was not. I have to say that I have great respect for Human Rights Watch--they do extraordinary work--so I wouldn't dispute what they would have said. But they were not reports that had been brought to my attention about Afghanistan, either when I was foreign minister or defence minister.

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

Okay.

That's interesting. The lawyer for Human Rights Watch who appeared before this committee last week mentioned to us that she thought that transferring prisoners to the U.S. at Bagram probably would have been a better choice.

How do you respond to that?

[William Graham]

I honestly don't know how to respond to it. You probably could make a case that, in general, the United States authorities probably had a better capacity to deal with prisoners than anybody else. They had more personnel, more experience. But the problem was that we were dealing with a situation with the American authorities where I do not believe we would have been able to get an agreement with them, either about the Geneva Conventions or the way in which the prisoners would have been...and if somebody were transferred to Bagram and then sent to Guantanamo, or one of these other places, what recourse would Canada have had?

That was the position we were in. I'm not suggesting that the Americans are evil or anything, but they had serious problems at that time. As I said, if I can go back to the debates in the House--if you had been present then, sir, it was very clear--all parties in the House at the time were clearly of the view that it was much better to deal with the Afghan authorities than the Americans.