A note from the Chairperson of the Special Forum on the Canadian Mission in Afghanistan, Professor Craig Scott, Osgoode Hall Law School:
William Fenrick is unable to attend the February 8, 2010, Special Forum on the Canadian Mission in Afghanistan, but, at the request of the Special Forum, submitted this background note on February 4, 2010. It may be circulated and quoted at will. Please cite as William J. Fenrick, “Observations on the Canadian Mission in Afghanistan and the Treatment of Detainees”, Written Submission to the Special Forum on the Canadian Mission in Afghanistan (Nathanson Centre on Transnational Human Rights, Crime and Security of Osgoode Hall Law School, Toronto, February 3, 2010).
William Fenrick teaches International Humanitarian Law at the Schulich School of Law at Dalhousie University. He was a Senior Legal Adviser in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia from 1994 to 2004 and as such he was the senior adviser on all international law matters. He was a legal officer in the Canadian Forces from 1974 to 1994. As a legal officer, he was, at various times, Director of International Law (1979-82, 1985-91), Director of Legal Training (1983-85), and Director of Law for Operations and Training (1991-94).
Observations Concerning the Canadian Mission in Afghanistan and the Treatment of Detainees
William J. Fenrick
- I believe the deployment of Canadian troops to Afghanistan in a combat role is legally and morally defensible. I also have the greatest respect and admiration for the courage, professionalism, and integrity of the members of the Canadian Forces (CF) in Afghanistan who are carrying out the mission in difficult and dangerous circumstances. In brief, I support the troops and I support the mission.
- I retired from the CF in 1994. I have had access to no classified information concerning the mission and my friends and former colleagues in the CF have been particularly reticent concerning the detainee issue. I had an excellent understanding of how the CF implemented Canada’s International Humanitarian Law/Law of Armed Conflict (IHL/LOAC) obligations while I was a member of the CF. In particular: (i) I established the initial formal IHL/LOAC training program in the CF when I was Director of Legal Training and I was actively involved in such training throughout my career; (ii) I wrote an earlier draft of the current CF LOAC Manual; (iii) I was the senior IHL/LOAC adviser at National Defence Headquarters (NDHQ) during the 1990-91 Gulf Conflict; and (iv) I was the first Director of Law for Operations from 1991 to 1994. I have had some peripheral involvement with IHL/LOAC training in the CF since my retirement and I believe I have a good understanding of how IHL/LOAC issues have been treated in the CF since my retirement.
- The CF has as good an IHL/LOAC training program as any other country’s armed forces and a better program than the vast majority of armed forces. There are ample training materials available. The major materials are a Joint Doctrine Manual, Law of Armed Conflict at the Operational and Tactical Levels, which is a basic legal text book, and a Collection of Documents on the Law of Armed Conflict which contains the texts of all relevant treaties and Canadian legislation. Both of these are accessible by the public. There is also a Code of Conduct for CF personnel which includes the following provisions: “4. Treat all civilians humanely and respect civilian property. 5. Do not attack those who surrender. Disarm and detain them. 6. Treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention. Any form of abuse, including torture, is prohibited.” All members of the CF receive training in the Code of Conduct. It too is accessible to the public. As a well informed educated guess, I would think all members of the CF who are deployed on operations such as Afghanistan would receive additional training in IHL/LOAC, including the Code of Conduct.
- The CF also complies with Art 82 of Additional Protocol I (AP I) which requires that Canada “in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of (IHL/LOAC) and on the appropriate instruction to be given to the armed forces on the subject.” All CF legal officers, beyond those at the most junior level, will have received one or more short courses on IHL/LOAC and, more recently, on Operations Law. Several legal officers at the intermediate and senior level have post graduate legal degrees in international law, including IHL/LOAC. There are legal officers at the NDHQ level who work full time on international law issues, including IHL/LOAC, and who have a great deal of expertise in this area. In addition, legal officers are deployed on operations and some or all their time is devoted to advising on IHL/LOAC. Some legal officers in DFAIT also possess a high level of expertise in IHL/LOAC.
- I do not have first hand knowledge of how detainees, including those transferred to other authorities, have been treated in Afghanistan. I read and listened to the testimony of Richard Colvin. To me, he appears to be an honourable man and a credible witness without an axe to grind. At the very least, his testimony indicates that Canadian record keeping concerning transferred detainees was unbelievably sloppy and that some transferred detainees may have been mistreated or even tortured. CF members have been deployed in Afghanistan in varying numbers and roles since 2001. When, to whom, and how many detainees have been turned over by the CF since 2001 I do not know.
- It is not a simple task to determine the status of persons initially detained by the CF in Afghanistan. One can argue about the nature of the conflict, is it international or non-international, and one can argue about whether the detainees should be regarded as civilians, civilians taking a direct part in hostilities, combatants (lawful or unlawful) or prisoners of war. One can not argue about torture. No detainee should be tortured or mistreated either by members of the CF or by authorities to whom detainees have been transferred by the CF. That is a legal line in the sand which simply must be drawn. Bearing in mind the provisions of the CF Code of Conduct quoted in para 3 above, I will presume that all CF members are aware of their own obligation not to torture or mistreat any detainee and that CF authorities will do their best to ensure such actions do not occur and will take appropriate corrective action if CF members do torture or mistreat detainees.
- Although it is reasonable to assume all CF members are aware of their individual obligation not to torture or mistreat detainees in their custody, one might query whether or not one can make a similar assumption about their state of knowledge concerning continuing obligations after transfer.
- In my view, any lawyer involved in giving advice on IHL/LOAC knows (or should know): (i) the role of the ICRC and how it works; and (ii) Art 12 of the 3rd Geneva Convention (Prisoners of War). Both of these are part of IHL 101.
- The ICRC does not report to third parties. It reports on what happened during its detainee visits to the power which actually has custody of the detainees and also up its own (ICRC) chain of command.
- Art 12 of the Third Convention states in part: “ Prisoners of war may only be transferred by the Detaining Power (Canada) to a Power which is a party to the Convention (Afghanistan) and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests shall be complied with.”
- Bearing in mind the facts: (i) that there is no Protecting Power in Afghanistan; (ii) that the ICRC would/could not report to Canada on the treatment of detainees in Afghan custody; and (iii) that Canada had/has a continuing responsibility to ensure proper treatment of such detainees under the 3rd Convention, Canada should have taken certain measures. These include: (i) establishing an effective record keeping system concerning transferred detainees commencing when the first detainee was transferred; and (ii) establishing an effective Canadian monitoring system to ensure transferred detainees were properly treated and to protest if problems occurred. One might argue that such detainees were not really prisoners of war and therefore Art 12 of the 3rd Convention did not really apply. It is suggested such an approach is inappropriate. If the CF is going to treat all of its detainees as if they are prisoners of war, as required by its own Code of Conduct, it should ensure similar treatment for detainees it transfers.
- We do not know if detainees were transferred by the CF prior to 2005 or to whom and we do not know if detainees have been transferred to anyone other than Afghan authorities since 2005. On 18 Dec 2005 an Arrangement for the Transfer of Detainees Between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan was concluded by the Canadian Chief of Defence Staff on behalf of the Minister of Defence and the Afghan Minister of Defence. This Arrangement, which in my view was prepared with, at the least, legal input from the Canadian Forces, provided that: (i) detainees would be treated in accordance with standards set out in the 3rd Geneva Convention; (ii) both parties would establish an effective record keeping system; (iii) the ICRC would be able to visit detainees, and (iv) the Afghan Independent Human Rights Commission would have a “legitimate role”. Unfortunately, this Arrangement was flawed by the absence of any provision for an effective Canadian monitoring role. On 3 May 2007, the 2005 Arrangement was supplemented by an Arrangement between the Government of Canada and the Government of the Islamic Republic of Afghanistan which did provide for effective monitoring by Canadian Government personnel. From a strictly legal perspective, the 2007 supplement does make possible Canadian compliance with all of its IHL/LOAC obligations.
- Unless it can be adequately established that no detainees transferred by Canada have been tortured or mistreated subsequently, and this appears to be very difficult to do, the Afghan detainee process will bring considerable discredit on Canada even if, as is my view, it is unlikely a prosecution case with a reasonable likelihood of conviction can be brought against any Canadian officials.
- Even if one disregards the risk of potential prosecution, it is essential that Canada occupy the moral and legal high ground when Canadian soldiers go into combat for several reasons: (i) it is just the right thing to do; (ii) failure to do so will lose popular support in Canada; (iii) failure to do so will lose hearts and minds in Afghanistan; (iv) we aren’t good at being villains (fortunately); and (v) we are even worse at covering up our villainy (also fortunately).