Evidence of meeting #28 for National Defence in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was afghanistan.
A recording is available from Parliament.
The Clerk of the Committee Mr. Andrew Chaplin
Ladies and gentlemen, I see a quorum.
I have been informed by the chair that neither he nor the vice-chairs are available to chair the meeting, so the first item of business is to proceed to the election of an acting chair. I am now ready to receive motions to that effect.
Mr. Dosanjh.
The Clerk
Mr. Dosanjh has moved that Mr. Hiebert take the chair.
The committee has heard the terms of the motion. Is it the pleasure of the committee to adopt the motion?
The Clerk
We can only deal with one motion at a time. We must first of all vote on Mr. Dosanjh's motion.
The Clerk
If the motion is defeated, another may be moved.
The motion is that Mr. Hiebert do take the chair.
(Motion agreed to)
Conservative
The Acting Chair Conservative Russ Hiebert
Good afternoon.
It's a pleasure to have you all here today. We're looking forward to the testimony.
We have a tight schedule this afternoon, with two groups of witnesses before us.
I invite Ms. Swords to lead us off, and then perhaps we can move to Ms. Nölke. Then we'll go to the other side, with Colonel Herfst and Mr. Rigby, in that order.
Please begin.
Colleen Swords Assistant Deputy Minister, International Security Branch and Political Director, Department of Foreign Affairs and International Trade
Mr. Chairman, honourable members of the committee, I thank you for the opportunity to appear before you today in response to your request seeking to hear witnesses concerning any agreement allowing the transfer of prisoners in theatre from Canadian custody to any other.
I will provide you with a broad overview of Canada's approach to detainee issues in Afghanistan by highlighting some of the background to Canada's arrangement for the transfer of detainees, as well as by outlining the role of the International Committee of the Red Cross and the Afghan Independent Human Rights Commission. I will also touch upon our efforts to strengthen Afghan detention and correctional system capabilities.
My colleague from the Department of National Defence, Mr. Vincent Rigby, will provide you with additional information on the operational context in Afghanistan and how the Canadian Forces implement our arrangement.
I would also like to introduce, Sabine Nölke, Deputy Director within the Department of Foreign Affairs' UN Human Rights and Humanitarian Law Section, who will be able to provide additional legal background with regard to our detention policy.
As evidenced by the committee's recent work, Canada's engagement in Afghanistan has generated significant interest among Canadians and Parliamentarians. A key issue which has received attention is the question of detainee transfers in Afghanistan. This issue is of considerable importance to the government.
As evidenced by my appearance here as well as that of Mr. Rigby, Canada's detention policy in Afghanistan is a cross-governmental responsibility.
Let me begin by stating that Canada and its international partners are making a difference in Afghanistan. Helping to build a stable, secure, democratic, and self-sufficient Afghanistan is in our collective interest. The events of September 11 demonstrated that our security is linked to situations elsewhere in the world. Ensuring that Afghanistan never again becomes a terrorist haven and a source of regional and international instability is a global responsibility. Afghans, the United Nations, NATO, and our allies are deeply invested in this essential endeavour.
Our overall efforts in Afghanistan have been endorsed by successive United Nations Security Council resolutions. I want to cite a few excerpts from them because they are relevant to the question of how we handle detainees.
Security Council Resolution 1510 of 2003, which recognized NATO's leadership of the International Security Assistance Force, authorizes the expansion of the mandate of ISAF to allow it, as resources permit, to support the Afghan transitional authority and its successors in the maintenance of security in areas of Afghanistan outside of Kabul.
The most recent Security Council Resolution, number 1707 of September 12, 2006, reaffirmed the international community's commitment to the sovereignty of Afghanistan and to that country's responsibility for providing security and law and order throughout the country. The international community's efforts, including those of Canada and of NATO allies, aims precisely at strengthening that indigenous capacity.
As we defend our collective interest and assist the Afghan government to meet the needs of the Afghan people, there are those who are trying to prevent the international community and Afghans themselves from rebuilding their country. The insurgency, as we have seen, has targeted symbols of progress and normalcy, attacking schools, civilians—including aid workers—government offices, and officials.
As part of our ongoing operations since 2001, when Canada first informed the UN Security Council that it would commence military action in Afghanistan and the exercise of individual and collective self-defence against al-Qaeda and the Taliban, the Canadian Forces have captured and subsequently transferred individuals suspected of committing crimes or planning to commit terrorist acts against international forces or Afghans themselves.
I want to turn to the arrangement Canada has with the Afghan authorities. Following the Bonn accords in December 2001 and the Afghan compact of 2006, and in recognition of the newly formed Afghan government's sovereignty and responsibility for the handling of detainees captured within their own territory, Canada concluded an arrangement on the transfer of detainees from the Canadian Forces in Afghanistan to Afghan authorities.
This arrangement and how it is implemented is the main focus of your request for our appearance here today. I will therefore devote some time to outlining its genesis and its underpinnings.
The arrangement was signed by General Hillier on behalf of the Government of Canada and by the Afghan Minister of Defence, Minister Wardak, on behalf of the Islamic Republic of Afghanistan, on December 18, 2005. For ease of reference, we have provided the committee with a copy of the arrangement.
Intended primarily to provide commanders on the ground with clarity on what to do in the event of a transfer, the arrangement lays out two key principles.
The first principle is the recognition of the need for detainees to be treated humanely under any circumstance and in accordance with the standards set out for prisoners of war in the Third Geneva Convention.
The second relates to the principle that Afghan authorities, in exercising sovereignty over their own territory, should have the ultimate responsibility for detainees transferred and held within Afghanistan. This is consistent with Canada's key objective for Afghanistan, and indeed the international community's, namely to support Afghan authorities in strengthening local capacity and good governance.
I want to be clear that while the arrangement is not a treaty and is not legally binding, it captures in writing and reaffirms already existing legally binding commitments, in particular those in the Third Geneva Convention, as well as obligations undertaken by both Canada and Afghanistan under international law with respect to detainees. In this context, there was no need to enter into a separate legally binding agreement with the Government of Afghanistan.
I would note that the modalities for the transfer of detainees concluded between Afghan authorities and other NATO allies such as Denmark, the Netherlands, and the United Kingdom are also not of a legally binding nature.
The Canadian arrangement establishes the procedures to be followed in the event of a detainee transfer and reinforces the commitment of both participants to meet their obligations under international law. Specifically, the arrangement includes a commitment to treat detainees humanely and in accordance with the standards set out for prisoners of war in the Third Geneva Convention, which affords detainees with the highest treatment standard regardless of their status and obviates the need for status determination; an acknowledgment of the right of the ICRC to visit detainees at any time during their custody; an obligation for both parties to notify the ICRC upon transferring a detainee, in accordance with their obligations pursuant to international law; a commitment that persons transferred from the Canadian Forces to Afghan authorities will not be subject to the application of the death penalty; and lastly, a recognition by both parties of the legitimate role of the Afghan Independent Human Rights Commission with regard to the treatment of detainees.
Given the content of the arrangement, I would like to take a moment to review the respective roles of the ICRC and the Afghan Independent Human Rights Commission and of Canada's relation with both those organizations.
The ICRC is, of course, a highly regarded international humanitarian organization. It's an important and valued partner for Canada, and we strongly support their role in the promotion and protection of international humanitarian law. As part of its internationally recognized mandate, it visits and monitors the situation of detainees around the world to ensure they are treated humanely in accordance with the standards set out in the Geneva Convention.
Canada maintains an open and constructive dialogue with the ICRC on detention issues, both in the field and in Ottawa. The ICRC president, Dr. Jakob Kellenberger, was in Ottawa earlier this fall, and he expressed appreciation for Canada's continued cooperation on this issue.
Canada notifies the ICRC in a timely manner each time a detainee transfer occurs, and my colleague Mr. Rigby will be elaborating further on this point. Canada also notifies the Afghan Independent Human Rights Commission in recognition of their role. The AIHRC provides an additional avenue for Afghans to obtain information on the whereabouts of relatives if these are believed to have been detained by foreign forces, including Canadian Forces.
Finally, I'd like to note that we also notify the NATO-led International Security Assistance Force, ISAF, of any detainees transferred. The information shared with NATO is similar to that provided to the ICRC and the AIHRC.
Let me say a word on capacity building. Based on the premise that Afghan authorities should have the ultimate responsibility for detainees transferred and held within Afghanistan, Canada has been actively contributing to efforts to assist and strengthen Afghan capabilities in this field. This is assisting Afghanistan to fulfill its obligations regarding the humane treatment of detainees and conditions of detention. Consistent with our leadership role on justice and security system reform in southern Afghanistan, particularly in Kandahar, and in light of our strong commitment to international humanitarian and human rights law standards, Canada recently deployed a corrections expert to the United Nations assistance mission in Afghanistan for the past three years.
More recently, a senior expert from the Correctional Services Canada undertook a needs assessment of the facilities in Kandahar and provided recommendations for future Canadian engagement in the corrections and detentions sector.
As part of the assessment, the Canadian expert consulted with ICRC representatives in Afghanistan, as well as with other relevant stakeholders. That report provided recommendations for immediate and long-term activities for capacity building in the corrections and detention centre, including in Kandahar province in particular. We are reviewing the recommendations of that report, which could include deployment of Correctional Service Canada officers to the PRT, the Provincial Reconstruction Team, to contribute to training activities and capacity-building projects in Kandahar province.
In conclusion, Canada strives to maintain an open, transparent process with respect to detainee issues, and Canada is fully supportive of efforts to strengthen Afghan capacity and good governance.
I'll be pleased to answer questions the committee may have that fall within the competence of the Department of Foreign Affairs.
Conservative
The Acting Chair Conservative Russ Hiebert
Thank you, Ms. Swords.
Unless there is further comment to be made, we'll move to the second set of witnesses.
Please proceed.
Vincent Rigby Acting Assistant Deputy Minister (Policy), Department of National Defence
Thank you very much, Mr. Chairman.
Honourable members of the committee, perhaps I could begin by echoing the sentiments expressed by Ms. Swords. Thank you for the opportunity to be here today to discuss Canada's approach to detainee issues in Afghanistan. It's a great privilege.
I'd like to introduce Colonel Bert Herfst, who is the Deputy Judge Advocate General Operations. He'll be able to provide the Canadian Forces legal background to our detainee policy on deployed operations, including those specifically in Afghanistan.
My colleague, Ms. Swords, has laid out the principles and specific provisions of our detainee arrangement with the Government of Afghanistan in some detail, including the essential roles of the International Committee of the Red Cross and the Afghan Independent Human Rights Commission. She has also touched on the important question of supporting the Afghan authorities in strengthening their detention and correctional system. With your permission, I would like to describe how the Canadian Forces on the ground are implementing the arrangement.
Before I get into the details of our detainee policy with respect to Afghanistan, perhaps I could provide some background on our detention policy writ large under national operations.
First and foremost, let me stress that the Canadian Forces conduct all of their international operations in accordance with applicable Canadian and international law. As a matter of policy, they are to treat all detained persons humanely, in accordance with the standards of treatment and care set out by the Third Geneva Convention, relative to the treatment of prisoners of war.
Moreover, our military personnel are specially trained to carry out this policy. I'm aware that the committee recently visited Canadian Forces bases in Edmonton and Petawawa. You were no doubt informed during these visits that all Canadian Forces personnel deployed on international operations are provided with pre-deployment briefings and training. This process includes training specifically designed to ensure that deployed personnel understand prisoner of war status, the treatment of prisoners of war, and detainees.
I should also point out that the Judge Advocate General offers a course entitled, “The Law of Armed Conflict”. The purpose of this is to educate Canadian Forces members about the laws and treaties to be followed when taking part in international military operations, including the proper treatment and care of sick and/or wounded civilians, detainees, and prisoners.
The JAG has also produced a publication entitled, Code of Conduct for CF Personnel, which is used for unit-level instruction on the basic laws of armed conflict, including detainee standards of treatment.
If I could, Mr. Chairman, let me now turn specifically to Afghanistan.
As everybody in this room knows, our mission in Afghanistan is extremely complex and covers a wide range of military operations, including armed conflict. But whatever the specific operational circumstances in which the Canadian Forces might find themselves in theatre in Afghanistan, they are to apply the standards of international humanitarian law, including those found in the Geneva Convention—and at all times.
As Mr. Swords has explained, it is Canada's intent, under our arrangement with the Afghan government, to transfer persons detained by the Canadian Forces to the Afghan authorities. Our detainee arrangement applies to all Canadian Forces in Afghanistan, regardless of the command structure in which they are operating—in other words, whether our personnel are operating under national command; under ISAF, NATO's International Security Assistance Force; or under the U.S.-led operation, Enduring Freedom.
The Canadian Forces conduct virtually all of their operations jointly with Afghan national security forces. The preferred approach is for the Afghan authorities themselves to carry out all aspects of detention, if possible. After all, they have the lead responsibility for law enforcement in their own country. If, however, Canadian Forces personnel capture an individual, they are authorized, both nationally and in accordance with ISAF's operational procedures, to temporarily hold that person, prior to transferring him or her to Afghan authorities at the earliest possible opportunities.
The Canadian Forces compound at the Kandahar airfield has a small transfer facility for captured individuals prior to the transfer to the Afghan authorities, although it should be noted that transfers also take place in the field.
In accordance with Canadian Forces doctrine, designated, specially-trained Canadian military personnel may conduct initial questioning and screening of persons under our custody to obtain information of immediate tactical value.
Questioning is conducted through the use of Canadian Forces-authorized questioning and interview techniques, and is in complete accordance with Canadian law as well as with all relevant international laws and conventions, including the Third Geneva Convention. Initial screening is also conducted to determine if captured persons should be released or detained, to obtain details for our own records, and to notify the ICRC, ISAF, and the Afghan Independent Human Rights Commission.
When an individual in Canadian custody is transferred to the Afghan national security forces, information concerning that person—for example, name, age, sex, physical condition—is relayed from Canadian Forces in theatre, through National Defence Headquarters here in Ottawa, to the Canadian permanent mission in Geneva, which in turn advises the protection service of the International Committee of the Red Cross through a diplomatic note.
Similar information is passed locally, as Ms. Swords pointed out, to ISAF and the Afghan Independent Human Rights Commission. This information is treated confidentially.
The Canadian Forces may delay the transfer of individuals to local Afghan authorities at the place of capture if there is reason to believe the detainees might be mistreated. In such circumstances, they would not conduct the transfer until contact was made with Afghan authorities in whom we have total confidence.
The committee may recall a publicized incident this past spring when Canadian soldiers detained two suspected insurgents during a cordon and search operation. The Canadians had reason to question the intentions of the local Afghan authorities in that particular area. They therefore transported the individuals to Kandahar and transferred them to trusted interlocutors of the Afghan national security forces.
Everything I've talked about up to this point has one common theme. That is that all individuals detained by Canadian Forces personnel in Afghanistan are treated humanely in accordance with the standards of the Geneva conventions to ensure their safety and welfare respecting their health, customs, and their religious tenets.
For example, if an individual were wounded when captured, he or she would be provided medical care in accordance with Canadian Forces standards. The individual would not be transferred until Canadian medical officers were confident that recovery would not be put at risk in any way, shape, or form.
If Canadian Forces personnel were to detain a female—this has not happened yet—every effort would be made to ensure treatment in accordance with applicable religious and cultural practices, to the extent that this is operationally feasible. Specifically, female detainees would be segregated from male detainees; female Canadian Forces personnel would be employed to guard them; and male personnel would not be permitted in the female detainee holding area unless escorted by a female guard.
Let me offer one final issue that is often raised in the context of detainees. I'm referring to the details surrounding individual detainee cases. Because of operational requirements and taking into account section 51 of the Access to Information Act dealing with military operations, information regarding numbers of detainees transferred, the current status of detainees apprehended by Canadian Forces in Afghanistan, and the identity of the specific authorities to which these individuals were transferred is not releasable to the public.
Let me close by reiterating some of the key principles that underpin our detention policy on deployed operations globally and in Afghanistan specifically. Ms. Sword has touched on many of them, but they really do bear repeating.
The Canadian Forces conduct all their operations, including in Afghanistan, in accordance with applicable international and domestic law.
The Canadian Forces treat all detained persons, in Afghanistan and around the world, humanely, in accordance with the standards of treatment and care set out by the Third Geneva Convention relative to the treatment of prisoners of war.
All Canadian Forces personnel deployed on international operations including in Afghanistan, are provided with pre-deployment briefings and training to ensure they understand prisoner of war status and the treatment of prisoners of war and detainees.
The Government of Canada supports the principle that Afghan authorities should have the responsibility for handling detainees captured in their sovereign territory.
The development and implementation of Canada's detention policy in Afghanistan is an interdepartmental responsibility. National Defence officials work closely with our colleagues in Foreign Affairs, Correctional Services, and other departments and agencies across government to ensure that this policy is applied properly and effectively.
With that, Mr. Chair, I'll conclude. I'd be delighted to answer any questions you may have with respect to National Defence's role in carrying out our detainee policy in Afghanistan.
Merci beaucoup.
Conservative
The Acting Chair Conservative Russ Hiebert
Thank you, Mr. Rigby.
We're going to now proceed to a seven-minute round, with Mr. Dosanjh leading off.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
Thank you.
Mr. Rigby, you have indicated the restrictions on what you can disclose to us. I must tell you from my personal perspective that I don't know how the country's security could be jeopardized by telling us, without naming names, how many prisoners our forces have taken, how many have been transferred to the Afghan government, and how many have gone to third countries.
Is this restriction placed at the discretion of the minister or someone else in the department, or is this embedded in some legislation?
Acting Assistant Deputy Minister (Policy), Department of National Defence
Mr. Dosanjh, this has been standard operating procedure for the Department of National Defence for some time. My understanding is that virtually all our NATO allies carry out the same standard.
It's a bit of a slippery slope if we start providing some information with respect to numbers or with respect to some details on specific issues. It can lead to other questions that get into specific operational requirements, which could technically jeopardize soldiers' lives and could put us in a difficult situation.
That's the idea behind this practice. As I say, it is pretty much a standard practice right across NATO, as far as I know.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
I really don't much care whether it's standard practice with NATO. The question I have is that you're saying this is standard practice with us.
Can you explain to me how the anonymous number of people captured and the number of people transferred to the Afghan government or to third countries other than Afghanistan could jeopardize any security? Security of our personnel is uppermost in my mind. I'd like to be persuaded--if it is just a policy not embedded in law and there is no legislative prohibition, I'd like to know how that can lead to a breach of security that might endanger operational information or the lives of our troops.
Acting Assistant Deputy Minister (Policy), Department of National Defence
Mr. Dosanjh, all I can say is that an operational decision has been taken not to release specifics with respect to detainees.
Liberal
Acting Assistant Deputy Minister (Policy), Department of National Defence
It would be our military commanders, as far as I know.
Liberal
Acting Assistant Deputy Minister (Policy), Department of National Defence
I believe it goes right up the chain of command.
Acting Assistant Deputy Minister (Policy), Department of National Defence
I believe so.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
All right.
As a general question, I'd like to know what the experience has been under this arrangement that Canada has vis-à-vis our own Canadian access to these individuals, if we so choose to exercise that right of access, or the International Red Cross access to them. What has been the experience on the ground?
Acting Assistant Deputy Minister (Policy), Department of National Defence
Up to this point, Mr. Dosanjh, I think the experience has been excellent. There is nothing in the arrangement with Afghan authorities that prevents Canada and Canadian Forces members from asking Afghan authorities to follow up with detainees. Certainly we have had Canadian Forces personnel following up in detention centres with respect to detainees we've actually transferred. So that's been our experience up to this point.
With respect to the International Committee of the Red Cross, again, they have an international mandate to follow up in this regard with detainees who are transferred to Afghan authorities. Our relationship with the ICRC has been excellent. They have all the information we've provided to them, and certainly they've had access and have been following up with detainees we've transferred to Afghan authorities.
