Mr. Chairman, committee members, thank you for inviting me to speak with you on the matter of the Canada–Afghanistan arrangement for the transfer of detainees. My remarks today focus on the arrangement's effectiveness in guarding against the possibility of torture.
I've worked on the issue of torture since 1992, when the development of the legal prohibition against torture formed part of my PhD thesis at Cambridge University. In 1998, I served on the legal team that represented Amnesty International and other human rights groups in the Pinochet case in the House of Lords. In January 2002, I became involved with the issue of detainee transfers in Afghanistan when I drew Canada's legal obligations to the attention of The Globe and Mail.
I don't know how many of you have met torture victims. I'm almost always struck by the deadness in their eyes. It's as if someone has ripped out their soul. Torture, the deliberate infliction of severe pain, is a despicable and inhumane practice. That is why torture is absolutely prohibited by a wide range of treaties. That's why every civilized country has committed itself to preventing and punishing torture wherever it is found. That's also why, when we negotiate a detainee transfer arrangement, we should do what we can to protect against the possibility of detainees being tortured after they leave our hands.
Unfortunately, the Canada–Afghanistan arrangement does not even include some patently obvious and reasonable protections. To begin with, and contrary to what Mr. Dosanjh said, the arrangement does not provide Canadian officials with the right of access to our transferred detainees.
Compare this with the memorandum of understanding concluded between the Netherlands and Afghanistan prior to the negotiation of the Canada–Afghanistan arrangement and used, according to former Defence Minister Bill Graham, as a model for our arrangement. The Dutch memorandum provides their officials with the right of access to any of their transferred detainees. The Dutch memorandum also provides for a right of access for “relevant human rights institutions within the UN system”, a category that includes the United Nations special rapporteur on torture.
The Canadian arrangement fails to provide this. Instead, the Canadian arrangement relies solely on the International Committee of the Red Cross, an organization that normally does not inform other countries when any particular country fails to uphold the right of detainees.
On September 18, 2006, in a written response to a question posed by Dawn Black, MP, Minister of Foreign Affairs Peter MacKay acknowledged this fact. He said:
In all of its activities, in particular visits to prisoners, the ICRC's relations with its contacts and detaining authorities are based on a policy of discretion. ... In cases where the ICRC visits detainees we have transferred to Afghanistan, we are confident the ICRC would advise the Afghan authorities, as the current detaining authorities, if the ICRC had any concerns about a particular detainee or the conditions of detention.
Note that Mr. MacKay is careful not to suggest that the ICRC would inform the Canadian authorities, for, on the basis of past practice, they likely would not. So when Mr. Rigby, seated in this seat an hour ago, suggested that no information had been received from the ICRC of violations of detainees transferred from Canadian custody, that did not mean the ICRC hasn't come across violations. It's simply that we have not been told, in accordance with the standard practice of the ICRC. It is also, I would suggest, why there is no representative of the ICRC testifying here today. It's not part of their policy of strict discretion to comment on these factors to a third government, as Canada is in this instance.
As Madam Bourgeois said, Afghanistan is a poor country, a feeble country. Its military police and its judicial and correctional institutions are undergoing a deep-rooted transformation that is far from complete. It's no criticism of the Government of Afghanistan to acknowledge that. Corruption and human rights violations remain commonplace. We're helping them to improve, but they have not improved enough yet.
By relying on the ICRC to oversee the detainees and to liaise solely with the Afghan authorities in the event of violations, Canada is washing its hands of the detainees in a situation where their rights are hardly assured. The washing of hands extends to the possibility that Afghanistan might transfer some of the detainees onward to third countries, including countries with a demonstrated and recent record of torture. The Canada–Afghanistan arrangement does not even provide Canada with a right to be notified in advance of any such transfers. This again stands in contrast with the Dutch memorandum, which does provide a right of notification.
These omissions pose problems for Canada's obligations under common article 3 of the 1949 Geneva conventions, which, as Ms. Swords explained, applies to non-international conflicts of the kind that now exist in Afghanistan. Common article 3 protects “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms”, and it therefore applies to any detainees. Common article 3 specifies that a number of acts “are and shall remain prohibited at any time and in any place whatsoever”, including “cruel treatment and torture” and “outrages upon personal dignity”. The absolute, territorially unlimited, and time unlimited character of common article 3 imposes obligations on Canada that would be violated if a detainee transferred by us was tortured or otherwise mistreated in the custody of either Afghanistan or a third country.
The Canadian arrangement also fails to provide adequate protections against violations of the 1984 torture convention, article 3 of which specifies that “No State Party shall expel, return...or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The United Nations Committee against Torture has indicated that the term “another State” in article 3 encompasses any additional country to which a prisoner might subsequently be transferred. For this reason, Canada's obligation extends to ensuring that any detainee is protected against torture not just when transferred to the custody of Afghanistan, but also if transferred onward into the custody of a third country.
I disagree with Ms. Swords on the Rome Statute of the International Criminal Court. I believe the Canadian arrangement does not provide adequate protection against possible violations of the ICC statute. Article 8 of that statute identifies acts that constitute war crimes, and these include serious violations of common article 3, including cruel treatment and torture.
Article 25 of the Rome Statute identifies the circumstances in which a person shall be criminally responsible and liable for punishment within the jurisdiction of the court, and it specifies that those circumstances include aiding, abetting, or otherwise assisting such a crime, “including providing the means for its commission”. I would suggest that handing over a detainee provides the means for the commission of war crimes against him or her.
Canada ratified the Rome Statute in July 2000. Consequently, any torture, cruel treatment, or other outrages upon personal dignity that are aided, abetted, or otherwise assisted by Canadian soldiers in Afghanistan are subject to the jurisdiction of the ICC. I have sufficient confidence in the Canadian military justice system that any such crime would be prosecuted by a Canadian court martial, but that doesn't mean the possibility of an ICC action is precluded, and that's a shame, because this country fought very hard internationally to get the ICC. The Canadian arrangement thus fails to protect against the possibility that Canadian soldiers might one day face charges of war crimes in The Hague.
So where do we go from here? That's the big question. The Canada-Afghanistan arrangement should be renegotiated to include all the protections provided in the Netherlands-Afghanistan memorandum.
As the Dutch are demonstrating in southern Afghanistan today, these protections have no detrimental operational consequences. There is no reason to believe that the Afghan authorities would object to a renegotiation since they have already agreed to the terms of the Dutch memorandum. Nor indeed, as Ms. Swords suggested, would these protections interfere with the development of indigenous Afghan governmental capacity in any way.
Finally, there is one additional protection. It is an entirely reasonable protection that we should insert in the renegotiated agreement, namely, a right of veto over any proposed transfer to a third country. Clearly, without a right of veto, the right to be notified would be deprived of much of its practical effect.
Mr. Chairman and committee members, the current Canada-Afghanistan arrangement was drafted in a hurry. Canadian troops were already on their way to Kandahar. The then Minister of Defence was distracted by an election campaign. We all understand how easily mistakes can be made in situations such as these.
I'm not pointing fingers at anyone. But today, having had the opportunity to study the situation carefully, I hope you'll agree that it's time to renegotiate the arrangement. We can do better. Indeed, we must do better.
Thank you for your attention. Merci beaucoup de votre attention.