Special Forum on the Canadian Mission in Afghanistan (February 2010)

Session Theme: Moral and Legal Responsibility with Respect to Alleged Mistreatment of Transferred Detainees in Afghanistan

On Monday, February 8, 2010, 10am – 4pm, the Nathanson Centre on Transnational Human Rights, Crime and Security hosted a special event in York University’s Senate Chamber.

Context and Purpose: The Prime Minister of Canada requested and was granted prorogation by the Governor-General at the end of December 2009.  One of the effects of prorogation is that the House of Commons Special Committee on the Canadian Mission in Afghanistan, made up of Members of Parliament from all parties, cannot officially meet because Parliament’s business is totally ended by the act of prorogation.  In this context, The Nathanson Centre on Transnational Human Rights, Crime and Security of York University and Osgoode Hall Law School seek to highlight the special importance of democratic scrutiny of, and debate over, conduct with respect to persons detained in Afghanistan by the Canadian Armed Forces who, it has been alleged, were either mistreated or risked being mistreated after their transfer to Afghan authorities by the Canadian military.  Were it not for prorogation, the House of Commons Special Committee would be meeting again in February, following a January break for MPs.  Because prorogation has prevented the Special Committee from continuing the examination of witnesses and evidence that it had begun in 2009, the Nathanson Centre and Osgoode invited experts on various aspects of the issue of detainee transfer to give presentations throughout the day on February 8, 2010, so that reflection by Canadians on the morality and legality of conduct related to the Afghan detainee could be facilitated.

The invited experts made presentations  at the below-indicated times on various issues related to the detainee-transfer issue. Questioning was carried out by a panel consisting of:

  • Professor Craig Scott, Chairperson of the Special Forum (Professor of Law, Osgoode Hall Law School; Director, Nathanson Centre);
  • The Honourable Bob Rae, Member of Parliament (Toronto Centre – Lib.);
  • Colonel (Ret’d) Michel W. Drapeau, Michael Drapeau Law Offices and Professor of Law, University of Ottawa

A written submission from Commander (Ret’d) William Fenrick, now a professor at Dalhousie University Schulich School of Law, was invited and received by the Special Forum.  Entitled “Observations Concerning the Canadian Mission in Afghanistan and the Treatment of Detainees” (dated February 4, 2010).  The Fenrick submission can be found to the right or by clicking here.

Two days after the Special Forum,  Professor Craig Scott presented a report and commentary on the Special Forum to the (prorogued) House of Commons Special Committee on the Canadian Mission in Afghanistan on Wednesday, February 10, 2010, at the Parliament Buildings in Ottawa.  The presentation was at the invitation of the Special Committee at the initiative of the Bloc Québécois.  The Scott submission can be found to the right or by clicking here.

Below is the list of presentations. Under each presentation title is either an audio or video recording of the session, including a question-and-answer period.  (Written transcripts will later be uploaded as well.)

10:00 am Alex Neve, Secretary General of Amnesty International (Canada), English branch

Responsibility of the Canadian State under International Law and in Canadian Law: Charter Review, Public Inquiries, and Civil Liability Lawsuits

Alex Neve Session (audio)
Transcript of Neve Session

10:30 am (by video-conference) William Schabas, Dir. Irish Centre for Human Rights, NUI Galway

Individual Criminal Responsibility under International Law and in Canadian Law: From Field-level to Cabinet-level Conduct

William Schabas Session (audio)
Transcript of Schabas Session

11:00 am  Paul Champ, Barrister, Champ & Associates, Ottawa

Proving Facts and Seeking Evidence in the Charter Litigation by Amnesty International against the Minister of Defence: Shadow Boxing with Ottawa

Paul Champ Session (audio)
Transcript of Champ Session

Situating the Colvin Testimony Within the (Non-) Documentation Practices of the Department of Foreign Affairs and Other Government Agencies

11:30  am Willem de Lint, Head of the Dept. of Sociology, Anthropology, & Criminology, U. Windsor

Willem de Lint (audio)
Transcript of de Lint Session

12:00 am David Schneiderman, Professor of Law and Political Science, U of T

The Law , Ethics and Politics of Invoking the Executive Prerogative Power against Parliamentary Efforts to Access Documents on Detainee Policy and Practice

David Schneiderman Session (video)
Transcript of Schneiderman Session

1:00 pm Michael Mandel, Professor of Law, Osgoode Hall Law School

What Right Do We Have to Be in Afghanistan in the First Place? Why the Prisoner Transfer Issue Cannot be Detached from the Legality and Legitimacy of the War Itself

Michael Mandel Session (video)
Transcript of Mandel Session

1:30 pm Christopher Waters, Associate Dean, Faculty of Law, U. Windsor

The Erosion of Civilian Oversight Mechanisms: How the Transfer of Afghan Detainees Represents a Betrayal of the Somalia Legacy

Christopher Waters Session (video)
Transcript of Waters Session

2:00 pm Kent Roach, Prichard-Wilson Chair of Law and Public Policy at the U of T Faculty of Law

Linking Government Refusal to Implement the Arar Commission’s Recommendations on Review Mechanisms to Judicial Abstention on the Detainee Transfer Issue:  How Should the Military and the Government’s Conduct be Overseen?

Kent Roach Session (video)
Transcript of Roach Session

2:30 pm Frédéric Mégret, CRC in the Law of Human Rights and Legal Pluralism at McGill (Professor Mégret was unable to attend due to illness.)

Does or Will the International Criminal Court Have Jurisdiction to Investigate and Prosecute Canadian Government Officials?

3:15 pm Michael Byers, Canada Research Chair in Global Politics and International Law at the University of  British Columbia Faculty of Law

Canada’s Moral Standing in the World: Does Our Detainee Transfer Record Matter?

Michael Byers Session (video)
Transcript of Byers Session