Practice Relating to Rule 87. Humane Treatment
Section D. Persons deprived of their liberty
Canada’s LOAC Manual (1999) provides with respect to prisoners of war (PWs): “PWs must at all times be treated humanely and must be protected, particularly against any acts of violence or intimidation, as well as against insults and public curiosity.”
With regard to internees, the manual states: “In many respects the articles contained in [the 1949 Geneva Convention IV] as to the treatment of internees are comparable to provisions of [the 1949 Geneva Convention III] concerned with the treatment of PWs.”
Regarding non-international armed conflicts, the manual provides: “The wounded and sick among [persons whose liberty has been restricted] are to be treated humanely.”
Canada’s Code of Conduct (2001) states that Canadian forces must “treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention”.
The Code of Conduct specifies: “The concept of humane treatment towards those under your control and the standard of treatment which applies to all detained persons … is a long standing rule.”
The Code of Conduct further states: “Humane treatment includes not only the proper provision of necessities of life but also the type of treatment provided to detained persons.”
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”: “If captured, civilians who take a direct part in hostilities are not entitled to PW [prisoner-of-war] status, but they must nevertheless be treated humanely.”
In its chapter on the treatment of prisoners of war (PWs), the manual further states:
1013. Standard of treatment
1. Persons detained, regardless of status, shall in all circumstances be treated humanely. The standard for all detained persons is that of [the 1949 Geneva Convention III].
1016. Humane treatment mandatory
1. PWs must at all times be treated humanely and must be protected, particularly against any acts of violence or intimidation, as well as against insults and public curiosity.
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 “Aliens in the territory of a party to the conflict”, the manual states: “Protected persons who are deprived of their liberty pending proceedings against them or while serving a prison sentence must be humanely treated”.
In the same chapter, in a section entitled “Treatment of internees”, the manual further states: “In many respects the articles contained in [the 1949 Geneva Convention IV] as to the treatment of internees are comparable to provisions of [the 1949 Geneva Convention III] concerned with the treatment of PWs.”
In the same chapter, in a section entitled “Additional Protocol I”, the manual also states:
[The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
In the same chapter, the manual further states: “The wounded and sick among [persons whose liberty has been restricted] are to be treated humanely”.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states: “Detained persons must be treated humanely and in accordance with the basic standards for the treatment of PW [prisoners of war]”.
With regard to the key principles governing the interrogation and tactical questioning of prisoners of war, the manual states that “PW must be humanely treated at all times”.
This principle is reiterated in Annex 4A of the manual, governing Interrogation and Tactical Questioning.
Canada’s Code of Conduct After Capture Manual (2004) states:
CF [Canadian Forces] members who are PWs [prisoners of war] should expect, and demand if necessary, to be treated in accordance with all aspects of [the 1949 Geneva Convention III]. If CF members are detainees, they should expect treatment at least as well as the standards set out in [the 1949 Geneva Convention III]. In general, CF members have a right to demand that they and their subordinates be treated humanely and protected, particularly against any acts of violence or intimidation, as well as against insults and public curiosity.
Canada’s Code of Conduct (2005) instructs: “Those who surrender and who are no longer a threat must be protected and treated humanely.”
Rule 6 of the Code of Conduct states: “Treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention.”
The Code of Conduct further states:
3. … The concept of humane treatment toward those under your control and the standard of treatment which applies to all detained persons, without adverse distinction based on race, nationality, sex, religious belief or political opinion, is a long standing rule.
5. Humane treatment includes not only the proper provision of the necessities of life but also the type of treatment provided to detained persons. PWs and detainees must at all times be protected against insults and public curiosity. Detained persons shall be treated with all due regard to their gender. Searches will be conducted by persons of the same sex unless, in exceptional circumstances, they have to be conducted by a member of the opposite sex. Searches conducted by members of the opposite sex will be carried out in a respectful manner.
In its judgment in the Brocklebank case
in 1996, in the context of events that occurred during UN operations in Somalia, the Canadian Military Court of Appeal stated that it was a general principle of law that a person who had custody of a prisoner had the duty to protect him or her.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review with respect to detainees held by the Canadian Forces in Afghanistan and to the transfer of these individuals to Afghan authorities. The questions before the Federal Court were as follows:
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?
The Federal Court answered both questions with “no” and stated:
 [Canadian Task Force Afghanistan’s] Theatre Standing Order 321A … provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF [Canadian Forces] Doctrine”.
 On December 19, 2005, the Afghan Minister of Defence and the Chief of the Defence Staff for the Canadian Forces signed an agreement entitled “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan” (the “first Detainee Arrangement”).
 The first Detainee Arrangement was intended to establish procedures to be followed in the event that a detainee was to be transferred from the custody of the Canadian Forces to a detention facility operated by Afghan authorities. The Arrangement reflects Canada’s commitment to work with the Afghan government to ensure the humane treatment of detainees, while recognizing that Afghanistan has the primary responsibility to maintain and safeguard detainees in their custody.
 … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements [between the government of Canada and the government of Afghanistan] provides that detainees are to be afforded “the same treatment as Prisoners of War”
The Federal Court also held that “international humanitarian law prohibits the mistreatment of captured combatants”.
The Federal Court of Appeal subsequently upheld the findings of the Federal Court.
In 2008, in the Carrasco Varela case, Canada’s Federal Court reviewed a decision by the Immigration and Refugee Board that had found the applicant inadmissible to Canada on grounds of war crimes or crimes against humanity. The Court stated:
 The Immigration and Refugee Board found there were reasonable grounds to believe that Mr. CARRASCO Varela, a Nicaraguan citizen and a member of the Sandinista Front of National Liberation, was an active and willing participant in combat against the Contras, armed guerrillas opposed to the government. His activities included the committing of atrocities against individuals under his guard, the killing of peasants in the mountains and the execution of four prisoners responsible for the kidnapping of a Soviet military attaché, all part of a widespread and systematic attack against any civilian population operating contrary to Sandinista rule. Mr. Carrasco was determined to be a person described in section 35(1) (a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA), and as such inadmissible to Canada. He was ordered deported.
 This is a judicial review of that decision, which held he violated human or international rights for having committed an act outside Canada that constituted an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. …
 It must be borne in mind that crimes against humanity are considered in two different Canadian contexts. Persons are not normally charged in Canada with respect to alleged crimes committed in other jurisdictions. However, war crimes and crimes against humanity are considered so heinous that those alleged to have committed them may be charged in Canada with an indictable offence and, if found guilty, are liable to life imprisonment. Mr. Carrasco has not been charged with a crime against humanity, or any crime, here or elsewhere.
 The second context arises in refugee and immigration matters. It may be determined that the United Nations Convention Relating to the Status of Refugees is not applicable because section 1F thereof specifically excludes its application to persons who have committed crimes against peace, war crimes or crimes against humanity, or that a putative refugee or immigrant is not admissible for having committed an act outside Canada that constitutes either a war crime or a crime against humanity. The burden of proof is neither on the criminal standard of beyond a reasonable doubt nor on the civil standard of the balance of probabilities. Section 33 of IRPA only requires that there be “… reasonable grounds to believe …”
i) El Chipote prison
 Mr. Carrasco served as a prison guard from mid-1984, except for a brief sojourn at San Jose de los Ramates, until he left Nicaragua in 1989. El Chipote was a prison in the capital of Managua where political prisoners were held, although thereafter they might be transferred elsewhere.
 According to Mr. Carrasco’s own testimony, prisoners were held in what can only be considered brutal and inhumane conditions. Many were held in tiny bare cells with no means of removing their excrement. They were regularly deprived of food and water … Interrogation techniques included subjecting prisoners to extremes of hot and cold, so much so that some died of heart failure. Reprisals were threatened against their families. Many left, and Mr. Carrasco did not hear of them again. He did not have sufficient authority to make inquiries. I doubt there is clear and compelling evidence to give reason to believe that they were “disappeared” as that term is now used. According to Mr. Carrasco, all he did was escort prisoners to and from their cells and their interrogation rooms.
 A case very much on point, and a case frequently cited, is the decision of the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration),  2 F.C. 306. In speaking for the Court, Mr. Justice MacGuigan held that simple membership in an organization which, from time to time, commits international offences is not normally sufficient to tar a mere guard with same, unless the organization is principally directed to a limited brutal purpose such as secret police activity. The Sandinistas formed the government and so cannot be considered as being limited to brutal purposes (Moreno v. Canada (Minister of Employment and Immigration),  1 F.C. 298 (C.A) and Murillo v. Canada (Minister of Citizenship and Immigration),  3 F.C. 287 per Lemieux, J. at para.42).
 Mere presence at the scene of an offence is not enough to qualify as personal and knowing participation, and as Mr. Justice MacGuigan added, one must be careful not to automatically condemn everyone engaged in conflict under conditions of war as the law does not demand immediate benevolent intervention at a person’s own risk. “Usually, law does not function at the level of heroism.” However, he went on to say: “With respect to the appellant’s serving as a guard, I find it impossible to say that no properly instructed tribunal could fail to draw a conclusion as to personal participation”.
 He added that Mr. Ramirez:
 […] was an active part of the military forces committing such atrocities, he was fully aware of what was happening, and he could not succeed in disengaging himself merely by ensuring that he was never the one to inflict the pain or pull the trigger.
 Mr. Ramirez only had 20 months of service. Mr. Carrasco had six years; six years which afforded him ample opportunity to withdraw his services and to leave Nicaragua. He did not. The finding that he participated in these atrocities should not be disturbed.
Crimes against humanity and Mr. Carrasco
 I have no doubt that the Board was correct in holding that Mr. Carrasco had committed crimes against humanity not only with respect to the murder of the kidnappers, but also with respect to his participation in the abuse of other prisoners at El Chipote Prison. As mentioned above, and relying on Gonzalez, there is insufficient evidence to give reasonable grounds to believe he participated in the murder of peasants in the mountains.
 Regardless how the matter is considered, Mr. Carrasco was rightly ordered deported. The order states: “The Immigration Division determines that you are a person described in 35(1) (a) of the Act.” Both crimes against humanity and war crimes are covered.
 By the same token, the prisoners in El Chipote Prison were either Contras or ordinary political dissidents. It matters not whether Mr. Carrasco’s involvement could be characterized as ill-treatment of prisoners of war or inhumane acts committed against a civilian population. As Madam Justice Tremblay-Lamer noted in Harb, above, even if the prisoners had been soldiers, they were not involved in hostilities at the time of their ill-treatment in prison. She concluded that they could be considered as civilians, basing herself on the decision in International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 in Prosecutor v. Blaskic, IT-95-14-T, ICTY, March 3, 2000, Trial Chamber.
Defences and mitigation
 The defences of superior orders and duress do not apply. Section 14 of the Crimes Against Humanity and War Crimes Act
repeats the long standing rule in international law that the defence of superior orders has no application if the order was manifestly unlawful. Cold blooded murder is always manifestly unlawful. Over time Mr. Carrasco also had to come to learn that the treatment of inmates at El Chipote Prison was manifestly unlawful.
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.
In 2007, in response to a question relating to prisoners of war in Afghanistan, Canada’s Leader of the Government in the House of Commons stated:
It is our policy in Afghanistan to ensure that all detainees are treated in accordance with the Geneva conventions. We have an agreement with the Afghan government that it shall do that. We expect it, as a sovereign government, to honour that agreement. We have recently entered into an agreement with the Afghan independent commissioner of human rights. This will also ensure that we have another check to ensure the human rights of detainees are respected.
In 2009, in its third and fourth periodic reports to the Committee on the Rights of the Child, Canada stated under the heading “Optional Protocol on the involvement of children in armed conflict”: “All persons apprehended and detained by the Canadian Forces in a theatre of hostilities are treated humanely and in a manner consistent with international legal standards.”