Ms. 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.
Mr. 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.
Ms. Diane Bourgeois:
I feel it is important for you to tell us what type of individuals these people are, whether they be insurgents, criminals or prisoners, as written in the document.
We know that the Afghan government is currently weak. I have here a study by Houchang Hassan-Yari, Professor and Director of the Department of Political Science and Economics at the Royal Military College of Canada. He says that the Afghan government is very weak, that the police, in particular, face rampant corruption and that the government must find a solution to the problem of poppy crops.
It is important for you to tell us who you have incarcerated. If the government is corrupt, if it is weak and if you hand over these insurgents or criminals to the government, what guarantees do we have that these people will remain in detention and will not turn against the people in the field? That is the first component.
Secondly, there are the warlords. All recent studies indicate not only that the Taliban are gaining ground, but also that the warlords, who we, as Canadians, have put in place, often violate human rights in Afghanistan and contribute to propagating the problems there.
Drafting regulations or concluding arrangements is good, but I question the safety and the security that such arrangements will provide.
Thirdly, in the Arrangement for the Transfer of Detainees signed by the Canadian Forces and the Defence Department of the Islamic Republic of Afghanistan, it says, in point 8, that:
||The Detaining Power will be responsible for classification of detainees' legal status under international law.
That goes back to what I was saying earlier. Let's say that a person is detained for opium trafficking in a corrupt government. Are you confident that will bring about much security? Will that prevent the government from releasing the person? How can we be sure that such a weak and corrupt government will pursue your action? I am sure that your action is excellent, but how can we ensure that it will be pursued?
Mr. 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.
Mr. Alex Neve (Secretary General, English Speaking Section, Amnesty International Canada):
Thank you, Mr. Chair.
Good afternoon, committee members.
Amnesty International very much appreciates the opportunity to be here today to share our concerns and recommendations regarding the policy and practice of the Canadian government with respect to the treatment of battlefield detainees in Afghanistan.
I want to begin by highlighting that Amnesty International has been raising these concerns with the Canadian government for close to five years. This is not a recent phenomenon. We first raised these issues in January 2002 in a letter to then Minister of National Defence Art Eggleton. We urged Canadian Forces at that time to refrain from turning over any captured fighters to U.S. forces--that was the issue at that time--unless and until U.S. authorities agreed to accept application of the Geneva conventions and establish competent tribunals to determine whether detainees were eligible for prisoner of war status.
In response, seven months later, the minister's successor, Minister McCallum, indicated that Canada would continue to transfer detainees in Afghanistan to U.S. military authorities. The U.S. had stated it would treat detainees humanely and in a manner consistent with the Geneva conventions, while not formally recognizing the applicability of those conventions.
We wrote again to Minister McCallum in October 2002. We repeated our concern that U.S. authorities were continuing to fail to comply with the Geneva conventions. We raised the further concern that some prisoners might be sentenced to the death penalty. At that time, we first suggested that Canadian Forces should begin to consider the possible need to develop Canada's own detention capacity in Afghanistan.
In February 2005, Amnesty International wrote to both Minister Pettigrew and Minister Graham. We asked for clarification of reports that some prisoners who had been transferred to U.S. custody had subsequently been sent to the U.S. detention facility at Guantanamo Bay. We asked what steps Canada had taken to ensure that transferred prisoners would not be sent there. We also asked whether Canada had sought and received assurances that transferred prisoners would not be subject to the death penalty.
We wrote again to Minister Graham in October 2005. We pointed to the widespread and well-documented human rights concerns associated with U.S. detention in both Afghanistan and Guantanamo Bay. We stressed that U.S. assurances of a willingness to act in ways that were consistent with international legal obligations had clearly proven to be inadequate. We called for an end to prisoner transfers, and we again suggested that Canadian troops needed to consider taking responsibility for the detention of individuals apprehended in the course of operations in Afghanistan.
We next wrote to Minister Graham in November 2005, following a meeting with the minister, at which time we had been informed that Canada would be abandoning the practice of transferring to U.S. custody. Instead, a new policy would be adopted of transferring prisoners into Afghan custody. We stressed that there were serious concerns about treatment of prisoners in Afghan-operated detention centres. We raised questions about monitoring, about substantial resource and capacity problems in Afghan prisons, and the need for reliable assurances that there would be no subsequent transfers of prisoners into U.S. custody. We stated again that unless the serious human rights shortcomings we had identified could be addressed, Canada must be prepared to establish and operate its own detention facilities in Afghanistan, perhaps in concert with other nations that have contributed to ISAF.
Our next exchange was with the current government. On April 3 of this year, we wrote to Minister O'Connor. We had reviewed the written arrangement entered into between Canada and Afghanistan governing prisoner transfers. We were concerned it would not ensure the protection of the rights of prisoners transferred into Afghan custody by Canadian Forces. We asked again why Canada continued to choose not to develop its own detention capacity.
We wrote to Minister O'Connor again on May 12, following what was called the biggest ever capture of suspected Taliban insurgents by Canadian soldiers in Afghanistan. We drew attention to the important penal reform work that was being funded by CIDA and the concern that transfers of battlefield detainees into Afghanistan's rapidly worsening prisons would inevitably lead to human rights violations and serve only to exacerbate squalid, deteriorating prison conditions.
We had a detailed response from Minister O'Connor on July 26. The minister made it clear that Canada intends to continue the practice of transferring prisoners into Afghan custody and considers that to be consistent with the objective of strengthening the institutional capacities of the Afghan government. The minister indicates he is relying on the guarantee in the arrangement that detainees will be treated humanely and that concerns about transferred detainees experiencing torture or ill treatment were hypothetical scenarios about which he would not speculate.
He indicates he believes the monitoring role of the ICRC and the Afghan human rights commission are sufficient to ensure the humane treatment of detainees. He indicates it would be open to Afghan authorities to further transfer prisoners to another state as long as the “requirements of international law are met”. Finally, he indicates that Canada would not be developing its own detention capacity in Afghanistan because that would undermine the objective of strengthening the institutional capacity of the Afghan government.
We wrote, finally, to Minister O'Connor on November 14 of this year. We stressed that the core international obligation at the heart of Amnesty International's ongoing concern is the requirement that one state not transfer a prisoner to another state if there are substantial grounds for believing there is a risk of torture. We shared our findings, stemming from Amnesty International's ongoing, on-the-ground research, that torture and ill treatment in Afghan prisons continues to be routine and commonplace and that prison conditions continue to be abysmal. We highlighted in particular--and this is something I really want to stress--our concerns about torture at the hands of the national security directorate. We have asked for clarification as to whether Canada is transferring prisoners to the national security directorate. That information has not been provided, and Mr. Rigby today has again indicated this information will not be disclosed. I must say we have had some recent indication from a UN official that some, perhaps many, Canadian transfers have been to the national security directorate, and that is indeed worrying, as that is where the gravest concerns about torture and ill treatment and lack of accountability arise.
In our most recent letter to Minister O'Connor we have again raised concerns about transfers of detainees to third parties, and we've repeated our recommendation that Canada work with the Afghan government and NATO allies to develop detention facilities in Afghanistan in line with international standards and practice, and to do so in a manner that assists in developing the capacity of Afghan officials working in the penal and justice sectors.
Let me end by highlighting four key points.
First, Amnesty International is deeply concerned that given the prevalence and severity of torture and ill treatment in the Afghan prison system, particularly at the hands of the national security directorate, there are substantial grounds to believe that when Canadian Forces transfer a prisoner into Afghan custody, torture or ill treatment will occur. In doing so, Canada is in violation of its international human rights obligations.
Second, we do, of course, appreciate the monitoring role played by the International Committee of the Red Cross, as we do around the world, and also by the Afghan Independent Human Rights Commission. But the abuses continue despite the monitoring. The fact that monitoring exists cannot justify or excuse turning over a prisoner to a substantial risk of torture or ill treatment. It's important to highlight, as Mr. Byers has, that the ICRC does not publicly share details of any concerns it may document. That, coupled with the secrecy surrounding the details of the numbers of prisoners we're talking about, where they're being held, who they're being turned over to, what the basis for their detention is, etc., lead us to be deeply concerned that oversight is wholly inadequate. Absolutely, the monitoring and oversight provisions must be strengthened, and at the very least must be consistent with the provisions in the Dutch memorandum.
Third, we wholly support Canada's stated objective of penal reform in Afghanistan, including with respect to prison conditions and prison operations. That is something Amnesty International has called for, for many, many years. Transferring battlefield detainees to a crumbling, overstretched prison system undermines that objective. We continue to urge that Canada work with Afghan officials and other NATO allies to develop new detention capacity in the country, which should be operated in tandem with Afghan officials and could serve as an important institution and capacity-building initiative.
Finally, I want to stress that Amnesty International's stated concerns do not imply that we believe that detainees apprehended by Canadian Forces should not be imprisoned. We do not have information about the specific allegations made against any of these detainees. Clearly, those who may have committed crimes or violated international human rights or humanitarian law provisions should face justice. It is vitally important, however, that justice be delivered in a manner wholly consistent with international legal standards. Any other course of action fails to advance the long-term sustainable reforms that are so sorely necessary in Afghanistan.