National Defence Committee on Dec. 11th, 2006

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

I have two more questions, and I want to put them out there because I know the clock is ticking away.

One, is it normal practice in international affairs for the Chief of Defence Staff to be the person who signs an international agreement with a foreign government? I know it was a minister in Afghanistan who signed on behalf of Afghanistan, so I just wondered if that's a bit odd.

My second question is more of a hypothetical one to which I'd like you both to respond. In terms of Canadians taking detainees, suppose that Canadians came across one of the very highly valued al-Qaeda operatives that we hear about. If Canadians were in the position of taking that operative as their detainee, what would happen? How would that work if they are a highly valued person that the Americans are looking for, that the international community is looking for, or that perhaps Pakistan has some interest in? How would that be handled?

[Michael Byers]

On the first question, there are some unusual aspects to this situation. Yes, it was unusual for the Chief of Defence Staff to sign an arrangement like this. It should have been done by the ambassador to Afghanistan. It doesn't mean that it's fatally flawed, but it is unusual.

It's also unusual, to be frank, that the civil servants are insisting that this is not a treaty. It fulfills the conditions of a treaty under the Vienna Convention on the Law of Treaties, and I would think we would want it to be a treaty, because then we can demand that the Afghan government fulfill its side of the bargain on legally binding terms.

With respect to your second question, I would certainly hope that we have a plan for when or if we apprehend a senior al-Qaeda operative, just like I hope we have a plan for if we apprehend someone who we think has been targeting the Canadian Forces. Mr. Rigby suggested there wasn't a plan. He said we'd have to check back with Ottawa. Well, let's get on top of this in advance so that we know what we're going to do. If we capture Osama bin Laden, how are we going to ensure that he provides high-value intelligence for our NATO partners and that at the same time our obligations under international humanitarian law are not violated?

There are ways to do this, but you have to plan them in advance. One way you could do it, just to throw out a suggestion, would be to say that regardless of who we transfer to, for high-value operatives a Canadian official will always be present during the course of the interrogations. Problem solved.

[Alex Neve]

I agree completely with that. I think foresight is absolutely what's necessary here. Obviously the agreement does not rule out the possibility of third-party transfers to almost any state. The range of actors that could involve is staggering and of grave concern. To figure that out on the run once that high-profile, very difficult, sensitive case arises would obviously be inadequate. There would be extreme pressure coming at Canadian officials from any number of different corners, so I think we need to have some clear policy and practice established in advance.

[The Acting Chair, Conservative, Russ Hiebert]

Thank you, Mr. Neve.

We have seven minutes left. That will leave me with Mr. Blaney.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much. I will be sharing my time with my colleagues.

Thank you for sharing your concerns and your constructive comments with us. I am going to ask some questions. Perhaps you could answer them, and after that, I will give the floor to my colleagues.

First of all, you say that an arrangement similar to the one signed by the Netherlands and Afghanistan on the transfer of detainees would resolve 99% of the concerns that you have raised and that you would like to see improved in the Canadian arrangement. You say that the former minister said he used the first agreement as a model and that he was in a hurry. Under these conditions, would it not be simpler to do what we call a cut and paste? Why change things? That is what I am wondering. Perhaps you could answer that, and if I know that you are not necessarily the one who made those changes.

Secondly, would your proposed changes prevent transferred detainees from being exempt from the death penalty?

Thirdly, did Afghanistan sign the 1984 Convention against torture and the 1998 treaty that led to the creation of the International Criminal Court?

[Michael Byers]

The first question that I'll deal with is the death penalty. Our arrangement with Afghanistan does preclude the death penalty being applied to any detainee we transfer.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

At present?

[Michael Byers]

Yes, and this is one of the reasons why I would like us to be considering this to be a treaty. If we consider this to be a treaty, then they are legally bound not to apply the death penalty. If it's simply a code of conduct, then they are not legally bound to refuse to apply the death penalty. There's a reason why we should be talking about this as a treaty, rather than denying that possibility. I think it works better for us if it's a treaty.

On the question about the 1984 torture convention, I believe Afghanistan has ratified it. As far as I know, they have not ratified their own statute of the International Criminal Court, but that does not matter because we have ratified it. Therefore, any Canadian national anywhere in the world who commits a war crime or a crime against humanity is subject to the jurisdiction of the ICC. Our soldiers are still exposed even though the Afghan government has not ratified the Rome Statute.

On your first question, why are things missing, as I said, it was negotiated quickly in the course of a federal election campaign. Also, I suspect—but I am not sure—that it was actually modelled on another pre-existing arrangement, one that may well have been with the United States of America, that was probably entered into in 2002 or 2003 concerning our transfers to U.S. custody during that period. The reference is to the Geneva Convention and common article 3, which would suggest that interpretation. I'm not sure, but one thing is obvious to me. Contrary to what then Minister of National Defence Bill Graham said, the Dutch agreement was not used as a close model, although it may have been a quite distant model. Certainly, some very good things that I think any reasonable person would have recognized the value of in the Dutch agreement did not find their way into the Canadian arrangement. That is what you need to rectify.

[Alex Neve]

If I can just add one other point on the death penalty, it's absolutely true that both the Canadian and Dutch agreements do make it clear that the death penalty should not be used. But in addition to the concern we have about this not being a legally binding treaty—thus, what is the weight of that guarantee?—we also have the secondary issue of the possibility of transfers to other countries. In the agreement between Canada and Afghanistan, it becomes a little unclear as to whether the death penalty won't be used. Would it in turn apply if the individual is transferred to another country that readily does make use of the death penalty? The United States would be one example, but certainly not the only one.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you for coming and sharing your opinions with us.

As a quick question, you were talking about being leery of countries with a recent record of torture. What would you call a recent record of torture? Five years? Ten years? Fifteen? Ever?

[Michael Byers]

Mr. Neve is a better spokesman on this issue because Amnesty International tracks very closely the records of different countries. Afghanistan is in a part of the world where there are a number of countries with serious human rights records. Mr. Neve has mentioned the recent problems the United States has had, and I certainly had concerns about the practice of transferring directly to U.S. custody when we were doing that because of things like Guantanamo Bay. But it's a more general concern. With all respect, the current government has shown some real backbone when it comes to human rights in places like China and Burma, and I would think that improving this agreement would be entirely consistent with this government's stance.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

The reason I asked that question is not intended to be cheeky. It's intended to go to the aspect of labelling. With our experience in Somalia, would Canada not have been called a country with a recent history of torture?

[Michael Byers]

The response is that it was not a systematic practice of torture. Those were a couple of soldiers who of course were treated to the full rigour of the Canadian military justice system. What I'm more concerned about, and what I think Amnesty International is concerned about, are countries with systematic problems, where the governmental regime is not either intent or able to deal with the bad apples.

[Alex Neve]

Just to build on that, our concern has to be with respect to countries where their record—and the record, of course, comes from a variety of different sources, such as research from organizations like my own, UN sources, media reports, etc.—gives us reason to believe there's a contemporary risk of torture. I don't think the temporal limit is probably the right test.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

As a quick question, have the Dutch ever used their right of access, to your knowledge?

[Michael Byers]

I don't know, but knowing what I know of the seriousness with which the Dutch government takes these matters, I would expect they have.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I think you may be selling plans a little bit short when you make the assumption that there's no plan for a high-value target. I'm not privy to any, but I think I can guarantee from my background that there are contingency plans for those kinds of high-value targets.

You talked about Canada paying for infrastructure and operating prison facilities in Afghanistan. How much and how long are we talking about? Have you given any thought to that?

[Michael Byers]

I'm not sure whether we need our own detention facility, but certainly building one or helping the Afghan authorities to build one that could be co-managed to deal with these kinds of detainees would cost some money. But, again, the question is what value we put on our adherence to human rights and what value we put on strengthening the infrastructure and institutions of the Afghan government over the long term. I think this is entirely consistent with what we're trying to do in that country.

[The Acting Chair, Conservative, Russ Hiebert]

All right. I think we'll have to wrap it up there.

Again, thank you both for your insightful testimony this afternoon. It was very much appreciated.

I understand Mr. Byers has a flight to catch, so we'll have to wrap up on time.

That's the end of this meeting. We're adjourned.