National Defence Committee on Dec. 11th, 2006

[The Acting Chair, Conservative, Russ Hiebert]

Thank you.

We'll go to Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you very much, Mr. Chair, and thank you for coming.

Actually, I'll just follow up for a second on Ms. Black's question. The arrangement is not legally binding, and I think I understand why, and why that's practical, but some have suggested that what Canadians do now might land them in the International Criminal Court later on. If this arrangement is not legally binding, do you see that as a serious concern, assuming that the Canadian authorities do carry out their jobs in accordance with the agreement?

[Colleen Swords]

In order to land yourself in the International Criminal Court, you have to have done a crime against humanity or a very serious crime. International law actually provides for and allows for the transfer of detainees, so it doesn't make any sense at all to suggest that somebody would end up in the International Criminal Court.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

We make assumptions sometimes--and it does come out in most groups like this--and we attribute Canadian standards to places like Afghanistan. Clearly that's not going to be the case.

Can we ever make meaningful long-term progress and improvements in what the Afghans are doing without taking what people who assume Canadian values would call risk? Do we not have to take some of those risks ourselves, if we're ever going to work with groups like Afghan authorities to bring them up to where we like to think we are? Is this about risk assessment?

[Colleen Swords]

In a way it is, and in a way that's exactly what we're trying to do. I think we have to bear in mind that Afghanistan is I think the fifth-poorest country in the world. It has huge economic challenges across the board, not the least of which relate to their justice system and their correctional service system. We need to help them. We need to help them across many, many fronts, and this is just one more.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Things that somebody in Canada might consider a violation or a concern under our Charter of Rights and Freedoms may be things that in practical terms we really have to expose ourselves to in working with the Afghanis to bring them along. Is that a fair statement?

[Colleen Swords]

I think there is never any excuse for something as serious as human rights violations that rise to the level of torture or something like that. If we're talking about whether you have a cell that is a certain size and has a flush toilet, a different standard will obtain in some of the really poor countries. So I think we need to be a bit careful on the standards we're speaking of.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Exactly. Thank you.

I'll pass it on to my colleague.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

It was reported that the prime suspect in the killing of Glyn Berry was released by the Afghan police on the recommendation or request of a local mullah, and the suspect hasn't been seen since.

If our soldiers ensnared this fellow in one of their operations and the mullah came calling and demanded that he be released, what would our troops be required to do?

[Vincent Rigby]

It's very clear in terms of what our forces' role is with respect to capturing insurgents or suspected insurgents: we are to pass these detainees on to the Afghan national security forces. It is very clear what their mandate is. It's as simple as that.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

So even if we were to capture this person, by the rules, he could be just let go again?

[Vincent Rigby]

Obviously the commander on the ground can show discretion. In the specific context you provided here, you could have the commander calling back to Ottawa or taking this issue up the chain of command and asking for direction. I should clarify that point. In this specific context in which we potentially capture somebody who we have reason to believe launched an attack specifically against Canadian Forces personnel, the commander would in all likelihood get back to Ottawa and ask for the next step to follow, because the issue you're laying out is a very delicate and very sensitive one.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Our prime goal is keeping our security forces as safe as possible and protecting their lives. On that note, should the Taliban capture one of our soldiers, would they be afforded the same type of adherence to international rules as we are required to adhere to for their sakes?

[Col G. Herfst]

Thankfully that has not been a situation we've had to deal with.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

And if they were to be captured?

[Col G. Herfst]

We just simply don't know what the Taliban would do.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I will share with my colleague, Mr. Blaney.

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

Good afternoon and thank you.

Essentially, we are talking about an arrangement that was signed just under a year ago, on December 18, 2005. Basically, the cornerstone of the arrangement is the Third Geneva Convention. You say that both Canada and Afghanistan have committed to treating detainees in accordance with requirements set out in this agreement.

Can you tell me what the legal requirements are for detainees?

[Colleen Swords]

This is probably one the lawyers should deal with. The Third Geneva Convention deals with prisoners of war. It deals with prisoners of war in the context of an international armed conflict--which this is not, per se, because we're in there helping the Afghan government. There's an article 3 that applies to non-international armed conflict. Basically we've decided that we're going to apply the standards of humane treatment that are set out in the Geneva Convention, no matter what.

Article 12 in the Third Geneva Convention does provide the possibility for states to hand over a detainee to another party. That's basically what we're implementing through this arrangement. I'm a lawyer; I didn't want to say it with two lawyers in the room, but there are two who are actively engaged in humanitarian law, so perhaps they would like to add something.

[Sabine Nölke, Deputy Director, United Nations, Human Rights and Humanitarian Law Section, Bureau of Legal Affairs, Department of Foreign Affairs and International Trade]

The Third Geneva Convention, of course, contains a large number of standards, not all of which would necessarily apply to a detainee taken in this particular conflict.

The primary one that is important, of course, is the humane treatment provision--i.e., the individual is entitled to his physical integrity and is not to be tortured. The primary one that is of most interest as well is the right of access to the International Committee of the Red Cross. That would not normally be granted in cases of unprivileged belligerence; it's a privilege in that particular case.

The Third Geneva Convention also contains a number of other privileges that are given to.... If you have seen movies of the Second World War, you'll have seen the way prisoners would be grouped in various detention camps. These are not the kinds of rights we're talking about. We're talking about the prima facie standards of treatments, namely humane treatment and right of access. Those are provided by the Third Geneva Convention.

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

If I understand correctly, the Red Cross has authority for oversight. In the document that he presented, Mr. Kellenberger welcomed the Canadian government's cooperation. To your knowledge, have there been concerns with detainees that the Canadian Forces have transferred to Afghanistan? Has the Red Cross mentioned problems that may have arisen?

[Vincent Rigby]

We're not aware of any specific instances, as I mentioned before, of the Canadian Forces transferring a detainee to Afghan authorities and then hearing through either the ICRC or directly from the Afghanistan Independent Human Rights Commission that these detainees have been mistreated by Afghan authorities. We're not directly aware, no; there's anecdotal evidence that occasionally will come up, but we certainly have not heard directly that any of these detainees has been mistreated.

[The Acting Chair, Conservative, Russ Hiebert]

Thank you, Mr. Blaney. We're out of time.

On behalf of all the members of the committee, I want to thank you for appearing before us today. Your expertise is greatly appreciated.

At this point, members, we will suspend for just a few moments as we prepare for the next set of witnesses. We'll resume shortly.

[The Acting Chair, Conservative, Russ Hiebert]

Members, could I have your attention, please? We're going to continue now. We have a tight schedule.

Again, I'm going to propose that we follow the same order, with each party in the first round having eight and a half minutes. That seems to work well and it uses up all of our time.

Seeing no problems with that, I'd like Mr. Byers to lead us off, if he could, for ten minutes.

[Michael Byers, Professor and Canada Research Chair (Tier One) in Global Politics and International Law, University of British Columbia]

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.