Practice Relating to Rule 118. Provision of Basic Necessities to Persons Deprived of Their Liberty
Canada’s LOAC Manual (1999) provides that prisoners of war are to receive medical attention, if possible from doctors attached to their own forces or of their own nationality.
In respect of internees, the manual states: “The interning power is obligated to maintain interned persons and to provide them with medical care, all free of charge.”
The manual also states: “Effective measures must be provided with adequate food, water and clothing.”
The manual further specifies that persons undergoing punishment in occupied territories “must enjoy conditions of food and hygiene sufficient to keep them in good health and at least equal to those obtaining in prisons in the occupied country”.
With regard to non-international armed conflicts, the manual states that the persons whose liberty has been restricted must “receive such medical care as their condition requires” and “be supplied with food and water”.
Canada’s Code of Conduct (2001) provides: “For the provision of food, water and shelter, the idea is not to treat PWs or detainees better than CF [Canadian Force] members but to treat them at least as well.”
The Code of Conduct further provides: “All detained persons shall be afforded the necessary medical care.”
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1. The responsibility for the treatment of PWs rests upon the Detaining Power. Failure to properly care for PWs may make that power liable to pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur, are liable to be tried as war criminals.
1026. Medical and spiritual care
1. PWs are to receive medical and spiritual attention, if possible from doctors or chaplains attached to their own forces or of their own nationality.
2. The Detaining Power must provide retained medical and religious personnel with all the facilities necessary for the medical care and religious ministration to the PWs.
1. PWs … shall also be allowed to receive parcels containing clothing, food, medical supplies, religious and educational material, books, examination papers, musical instruments and the like. They may receive collective relief parcels in accordance with special agreements made between the parties or with the rules annexed to [the 1949 Geneva Convention III], and the distribution of these parcels shall be under the supervision of the Protecting Power or the ICRC.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Treatment of internees”, the manual states:
2. … The interning power is obligated to maintain interned persons and to provide them with medical care, all free of charge.
5. The buildings of internment camps must have adequate heat, light and sanitary conveniences. Premises for the holding of religious services must be made available. Canteens must be made available in the camps to purchase local goods unless adequate alternative facilities are available. An adequate number of air raid shelters for the use of internees must be built in every camp.
6. Effective measures must be provided with adequate food, water, and clothing. Internees shall be medically inspected once a month. They shall enjoy complete freedom to practice their own religion. They shall be given the opportunity to participate in educational, intellectual, and recreational pursuits but may not be compelled to participate.
In its chapter on rights and duties of occupying powers, the manual states:
[The 1949 Geneva Convention IV] contains stringent provisions concerning the treatment of persons undergoing sentence of imprisonment. These are as follows:
a. Protected persons accused of offences must be detained in the occupied country, and if convicted they must serve their sentences in that country. They must, if possible, be separated from other detained persons and must enjoy conditions of food and hygiene sufficient to keep them in good health and at least equal to those obtaining in prisons in the occupied country.
b. They must receive the medical attention required by their state of health. They have the right to receive any spiritual assistance, which they may require …
d. They have the right to receive at least one relief parcel monthly.
In its chapter on non-international armed conflicts, the manual states:
1. Since non-international armed conflicts often reflect ideological and emotional conflict even more than is the case in international conflicts, the need to protect those detained or in any way restricted for reasons connected with the conflict is very important. [The 1977 Additional Protocol II] therefore seeks to protect those whose liberty has been restricted, whether they are detained, interned or subjected to any limitations on their freedom.
2. The wounded and sick among such persons are to be treated humanely and receive such medical care as their condition requires, without discrimination. All detained persons are to be supplied with food and water, and to enjoy the same safeguards as regards health and hygiene and protection against the climate and the dangers of the conflict as the local civilian population. Detained persons are to receive individual and collective relief …
3. … Detained persons and internees shall receive the benefit of medical examination. Their physical and mental health and integrity shall not be endangered by any unjustified act or omission.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states that “PW [prisoner-of-war] evacuation [from point of capture to the PW facility] is to be effected humanely. [PW] are to be provided with sufficient food, in the same manner as [Canadian] troops but account is to be taken of their dietary habits, water, clothing and protection against the elements”.
With regard to medical attention, the manual states:
1. [The 1949 Geneva Convention III] requires each camp to have medical facilities for the treatment of PW. …
Each PW establishment is to have a medical centre the size and capability of which will be linked to the role of the PW establishment. … Where specialist attention is required, PW will normally be transferred to a field hospital or evacuated from the AOO [Area of Operations] as appropriate. … Where possible maximum use should be made of captured medical staff in order to reduce the burden on our own medical staff.
6. All PW are to have a medical inspection on arrival at the PW camp and the results of the inspection, including the PW’s weight, are to be recorded in the PW’s records. A dental inspection is also to be carried out where possible. Thereafter, medical inspections are to be carried out at least once a month and the results again recorded in the PW’s records.
With regard to the clothing of prisoners of war, the manual states:
The Detaining Power is to provide PW with underclothes, footwear and outer clothing of a type appropriate to the climate of the region in which the PW camp is located. The camp staff will ensure that this is maintained in a reasonable state of repair and replaced when it is no longer serviceable. PW engaged in work will be issued with whatever special or protective clothing is appropriate to the particular task on which they are employed.
With regard to food rations, the manual states:
The basic daily food ration must be sufficient in quantity, quality and variety to maintain the health of the PW and to prevent loss of weight or any nutritional deficiency. An adequate supply of drinking water must be available to PW. Collective punishments involving restriction of food allowances are not to be imposed.
With regard to relief supplies, the manual states: “PW are allowed to receive individual parcels or collective relief shipments containing articles such as food, clothing, medical supplies and religious, educational, cultural or recreational articles”.
With regard to the constraints placed on the interrogation and tactical questioning of prisoners of war, the manual states: “PW retain the right to the same standard of medical, ration, accommodation and welfare support as the CF [Canadian Forces]”.
Rule 6 of Canada’s Code of Conduct (2005) instructs: “Treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention.”
The Code of Conduct further states:
1. Rule # 6 deals with the treatment of anyone detained by CF [Canadian Forces] personnel in the course of an operation. At the tactical level, the legal status of those who are detained does not matter. All persons held by CF personnel without their consent, both PWs and detainees, shall be treated in accordance with the standard set by the Third Geneva Convention on the Treatment of Prisoners of War.
Food, Water and Shelter
7. Food and water will be provided as soon as is feasible and will not be arbitrarily or unreasonably withheld. For example, if CF personnel are scheduled to eat at a certain time, PWs and detainees will be allowed to eat at that time as well. More timely provision of food and water may be medically necessary due to climatic conditions. Detained persons will be provided shelter from both the elements and hostile action to the same extent as is available to CF personnel. For the provision of food, water and shelter, the idea is not to treat PWs or detainees better than CF members but to treat them at least as well.
Protection and Medical Care
8. Detained persons must be protected from the effect of hostilities. In the presence of an NBC [nuclear, biological, chemical] threat for example, PWs and detainees must be allowed to use their protective gear. If they don’t have any, they should be provided with the necessary gear where this is practically possible. Similarly, if there is a risk of indirect fire and shelling, detained persons will be allowed to use their protective gear. Again if they don’t have any, they should be provided with the necessary gear where this is practically possible.
9. Every PW and detainee should be given a medical examination as soon as practicable after capture and the condition of each person shall be recorded. All detained persons shall be afforded the necessary medical care.
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces’ agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN missions. Once a mission or operation has been completed, the coalition is normally disbanded;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
 To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
 For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
 Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
 The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer. …
 Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities?
 Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
 … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.” …
 The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
 In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
 Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
 … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
 As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
 Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
 That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
 Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law.