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Canada
Practice Relating to Rule 124. ICRC Access to Persons Deprived of Their Liberty
Canada’s LOAC Manual (1999) provides:
In accordance with [the 1949 Geneva Convention III], delegates or representatives of Protecting Powers and of the ICRC shall be permitted to visit all places where PWs [prisoners of war] may be, including places of detention and labour, and may interview PWs and PWs’ representatives without witnesses, either personally or through interpreters. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 51.
Concerning persons undergoing sentence of imprisonment, the manual provides: “Protected persons who are detained have the right to be visited by delegates of the Protecting Power and of the ICRC.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-7, § 62(c).
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
In accordance with [the 1949 Geneva Convention III] delegates or representatives of Protecting Powers and of the ICRC shall be permitted to visit all places where PWs may be, including places of detention and labour, and may interview PWs and PWs’ representatives without witnesses, either personally or through interpreters. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1037.
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:
c. Protected persons who are detained have the right to be visited by delegates of the Protecting Power and of the ICRC. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1233.1.c.
In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual further states:
In accordance with Common Article 3 of the [1949 Geneva Conventions], the ICRC may offer its services to the parties to the conflict. Good offices, mediation and PW visits and exchanges are examples of such services. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1502.3.
In its chapter on non-international armed conflicts, the manual also states:
Common Article 3 [of the 1949 Geneva Conventions] also provides that the International Committee of the Red Cross (ICRC), or some other impartial humanitarian body, is authorized to offer its services to parties to a non-international armed conflict. This is known as the right of initiative, which is recognized under the LOAC. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.2.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Representatives and Delegates of Protecting Powers and ICRC Delegates have the right to investigate the treatment and administration of PW [prisoners of war] wherever they may be and are to be allowed to interview PW without witnesses. They are to be given support and cooperation in this work. For Canada, this right can be temporarily delayed for reasons of imperative military necessity by the MND (Minister of National Defence) in Canada and the Joint Task Force (JTF) Commander outside Canada. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 106.4.
Canada’s Code of Conduct After Capture Manual (2004) states:
In accordance with [the 1949 Geneva Convention III], delegates or representatives of Protecting Powers and of the ICRC shall be permitted to visit all places where PWs [prisoners of war] may be, including places of detention and labour, and may interview PWs and PWs’ representatives without witnesses, either personally or through interpreters. 
Canada, The Code of Conduct After Capture for the Canadian Forces, B-GJ-005-110/FP-010, National Defence Headquarters, 28 October 2004, § 313.
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. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, §§ 402.1 and 407.3–4.
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:
[13] 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?
[16] 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.
II. Background
[44] 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.
[47] 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. …
[59] 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?
[162] 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.
[166] … [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.” …
[179] 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.
[180] 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.
[181] 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”. …
VI. Conclusion
[336] … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
[337] 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 …
[338] 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” …
[342] 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.
[343] 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. 
Canada, Federal Court, Amnesty International Canada case, Judgment, 12 March 2008, §§ 13, 16, 44, 47, 59, 162, 166, 179–181, 336–338 and 342–343.
[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. 
Canada, Federal Court of Appeal, Amnesty International Canada case, Judgment, 17 December 2008, § 36.
In 2005, in response to a question concerning respect for the 1949 Geneva Conventions, Canada’s Minister of National Defence stated:
[I]f we take prisoners in Afghanistan, some are released immediately because they are of no interest whatsoever. Any who are kept, because of suspicion of being involved in terrorist or other activity, are treated by Canada and by our Canadian troops in accordance with all standards of humanitarian and international law. When they are then turned over to either Afghan or American authorities, the Red Cross is notified in accordance with conventions so it can take the inspections. Members of the House have heard the assurances of the American government and others that prisoners will be properly treated in accordance with humanitarian standards. 
Canada, House of Commons Debates, Statement by the Minister of National Defence, 30 September 2005, Canadian Yearbook of International Law, 2006, volume XLIV, p. 646.
In 2006, in response to a question concerning an agreement signed by Canada’s Chief of Defence Staff with the Government of Afghanistan relating to the transfer of prisoners, Canada’s Minister of National Defence stated that “[t]he Red Cross and the Red Crescent are charged with ensuring that prisoners are not abused” and that “[t]here is nothing in the agreement that prevents Canada from determining the fate of prisoners”. 
House of Commons Debates, Statement by the Canadian Minister of National Defence, 5 April 2006, Canadian Yearbook of International Law, 2006, volume XLIV, p. 647.
In 2007, in a report on “Canadian Forces in Afghanistan”, the Standing Committee on National Defence of Canada’s House of Commons noted:
The agreement acknowledges the right of the International Committee of the Red Cross (ICRC) to visit detainees at any time during their custody and an obligation for both parties to notify the ICRC upon transferring a detainee, in accordance with their obligations pursuant to international law. It also establishes a commitment that persons transferred from the Canadian Forces to Afghan authorities will not be subject to the application of the death penalty. Finally, it features recognition, by both parties, of the legitimate role of the Afghan Independent Human Rights Commission (AIHRC) with regard to the treatment of detainees. Canada notifies the ICRC in a timely manner each time a detainee transfer occurs and Canada also notifies ISAF [International Security Assistance Force] of any detainees transferred. The information shared with NATO is similar to that provided to the ICRC. 
Canada, House of Commons, Report of the Standing Committee on National Defence, Canadian Forces in Afghanistan, 39th Parliament, 1st session, June 2007, p. 103.
In 2007, in a joint letter from the United Kingdom, the United States, Canada, the Netherlands, Norway and Denmark, addressed to the Government of Afghanistan, regarding third-party access to transferred detainees, it was stated:
Access to Afghan facilities is to be permitted to organizations that are already afforded access under that government’s bilateral arrangements with the Government of Afghanistan including, where applicable, the International Committee of the Red Cross and Red Crescent (ICRC), relevant human rights institutions within the UN system, and the Afghan Independent Human Rights Commission (AIHRC). 
Canada, Letter regarding access to detainees transferred to the Government of Afghanistan, signed by Ambassadors of the United Kingdom, the United States, Canada, the Netherlands, Norway, and the Chargé d’affaires of Denmark, 27 August 2007, p. 1.