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.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
Would they then go into the custody of the Canadian military police?
Acting Assistant Deputy Minister (Policy), Department of National Defence
That's my understanding, and if it's done in the field, it's usually done with the commander who is at the location at that precise time.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
Are you aware of any problems with suspects being released by the Afghan authorities before there's been a chance for a full investigation to determine whether or not charges should proceed?
Deputy Judge Advocate General Operations, Department of National Defence
We choose not to speak in terms of suspects; they're detainees for us.
Deputy Judge Advocate General Operations, Department of National Defence
We transfer them, and then it's for the Afghans to take whatever appropriate measures under their regime they wish to take.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
I'm asking the question because there's a story in today's Globe and Mail by Graeme Smith that documents the case of a suspect, a detainee--excuse me if I don't have exactly the same language you do--who was detained over the death of Glyn Berry. He documents very forcefully in his article today that a Mr. Pir Mohammed was arrested as a main suspect. They said the police became more suspicious after they raided his home, finding weapons, documents, and a Kalashnikov, but before a proper investigation could take place, he was released after less than two days in custody because, according to this article, Mr. Mohammed had friends in high places, powerful men who gave him freedom before the police were satisfied that they had had an opportunity to properly investigate him. Apparently the key to his release was Mullah Naqib. It was said that Mr. Muhammed was lucky enough to be born as a member into this old warlord's tribe.
It does raise some very serious concerns, particularly when we're talking about the life of a Canadian diplomat and the investigation or lack of investigation thereafter.
Acting Assistant Deputy Minister (Policy), Department of National Defence
Perhaps I can just say, in the context of our detainee arrangement, that we in the Department of National Defence and the Canadian Forces are certainly not aware of any detainees we passed on to Afghan authorities who would then be released and come back onto the battlefield to inflict casualties or to wage operations against our forces. We're not aware, I don't think.
Acting Assistant Deputy Minister (Policy), Department of National Defence
If we were aware, we would certainly take action. We would certainly raise that directly with the Afghan national security authorities and national security forces, and we would, as part of our residual responsibilities of the arrangement, get some answers.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
I sent another written question to the minister, and the department made it clear to me in their response that detainees--anyone who's captured--had no right to counsel.
I'm wondering how the department came to this view and how the guilt of the detainee--I was going to say prisoner--is determined, or are they all basically presumed to be guilty?
Deputy Judge Advocate General Operations, Department of National Defence
No. These are detainees in the context of a very complex security operation or even combat, so we're not treating them in the same way you would treat, for example, a criminal suspect.
On the issue of whether the rights a criminal suspect here in Canada may expect at time of arrest are the same as when we capture and detain an individual on the battlefield, in our estimation that portion does not apply to the detainee.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
Okay. Is this arrangement--call it the arrangement--legally binding on Canada and on Afghanistan?
Deputy Judge Advocate General Operations, Department of National Defence
It's a morally binding document, if you will.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
I really wonder what the point is of signing an agreement if it's not binding.
Acting Assistant Deputy Minister (Policy), Department of National Defence
I think the notion is that it's not legally binding because it is meant to reinforce the commitments we've already made to, for instance, the third convention.
Acting Assistant Deputy Minister (Policy), Department of National Defence
They've done the same. They're party to the convention against torture. They're party to the--
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
It just seems a bit odd for two nations to sign something that doesn't have any legal standing.
Deputy Judge Advocate General Operations, Department of National Defence
It makes their responsibilities, when they have detainees, so much clearer for the people who are in theatre and on the ground and operating there. There's no more question of, do you do this or do you do that. It's very clear. It's very succinct. It says this is who you pass these detainees to.
Acting Assistant Deputy Minister (Policy), Department of National Defence
It's very important I think to get the procedures in writing. I think one of the main purposes of the arrangement is to make it absolutely clear between Canada and the Afghan government. It's also in the context of the International Committee of the Red Cross and the Afghan Independent Human Rights Commission knowing their roles.
Assistant Deputy Minister, International Security Branch and Political Director, Department of Foreign Affairs and International Trade
I will just add that it is actually quite common to have arrangements that get into a bit more detail than you could do in a treaty. We have them, for example, in the transfer of offenders. We have a treaty--the transfer of offenders treaties, the treaty between governments--but then we have administrative arrangements that lay out more specific details. It's really quite common to have an arrangement that gets into more detail than you do in the actual treaty. In this case, the actual treaties are Geneva conventions and all the human rights conventions that Afghanistan is a party to and we are a party to. So you wouldn't want to rewrite them.
Acting Assistant Deputy Minister (Policy), Department of National Defence
I know we have to move on, but as a final point, the arrangements other NATO countries have struck with the Afghan authorities are not legally binding either--for instance, with respect to the Dutch.
NDP
Dawn Black NDP New Westminster—Coquitlam, BC
It's a little stronger than ours, though, in terms of follow-up.
