Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section A. Release and return without delay
Canada’s LOAC Manual (1999) provides:
While all PWs [prisoners of war] are to be released and repatriated immediately upon cessation of active hostilities, parties to the conflict are to repatriate, regardless of rank or number, all seriously wounded and sick when fit to travel.
The manual further states:
Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities.
The manual also identifies “unjustifiable delay in repatriating prisoners of war or civilians” as a war crime.
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status” that prisoners of war “must be released and repatriated without delay at the end of hostilities”.
In its chapter on the treatment of prisoners of war (PWs), the manual further states:
While all PWs are to be released and repatriated immediately upon the cessation of active hostilities, parties to the conflict are to repatriate, regardless of rank or number, all seriously wounded and sick when fit to travel.
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 provides:
Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities. However, internees who are in the territory of a belligerent and who are undergoing a sentence of confinement or against whom penal (that is, judicial) proceedings for offences not exclusively subject to disciplinary penalties are pending, may be detained until the close of the proceedings or end of the sentence.
In the same chapter, in a section entitled “Additional Protocol I”, the manual further provides:
Except in cases of arrest or detention for penal offences, [any person arrested, detained or interned for actions related to the armed conflict] shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “unjustifiable delay in repatriating prisoners of war or civilians” is a grave breach of the 1977 Additional Protocol I.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states: “Grave breaches of the [1949 Geneva Conventions] and [the 1977 Additional Protocol I] include any of the following actions[:] … Wilful and unjustifiable delay in the repatriation of PW [prisoners of war].”
In detailing the commander’s main responsibilities towards prisoners of war, the manual states: “At the end of hostilities PW are to be repatriated with the minimum of delay.”
Guidelines for the release and repatriation of prisoners of war at the end of hostilities are contained in Annex 3H of the manual, where it is reiterated that “[t]he repatriation process must take place with the minimum of delay as soon as possible after the end of active hostilities”.
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’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence.”
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. …
b) The Canadian Forces’ Detention of Individuals in Afghanistan
 As part of Canada’s military operations in Afghanistan, Canadian Forces are from time to time required to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.
 The Canadian Forces possess a broad discretion to detain Afghan civilians, including individuals who may have no active role in hostilities.
 That is, Canadian Task Force Afghanistan’s Theatre Standing Order 321A regarding the “Detention of Afghan Nationals and Other Persons” provides that the Canadian Forces may detain any person on a “reasonable belief” (defined as “neither mere speculation nor absolute certainty”) that he or she is adverse in interest. This includes “persons who are themselves not taking a direct part in hostilities, but who are reasonably believed to be providing support in respect of acts harmful to the CF/Coalition Forces”.
 Under Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of a third country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.
 It is both NATO and Canadian Forces’ policy to transfer or release detainees within 96 hours of their capture. However, the Canadian Forces has the ability to hold detainees for longer periods, and has done so for a variety of reasons.
 The Canadian Forces have the sole discretion to determine whether a detainee “shall be retained in custody, transferred to [the Afghan National Security Forces] or released.” These determinations are made on a case-by-case basis by the Canadian Commander of Task Force Afghanistan at regular review meetings.
 The respondents do maintain … that Canada has no legal authority to establish or run a long-term detention facility in Afghanistan. That is, according to the respondents, the Canadian Forces have not been authorized to detain for the long term, either by the Government of Canada or by ISAF commanders, who have operational control over Canadian Forces. Nor has the Government of Afghanistan authorized such an encroachment on their sovereignty.
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?
b) R. v. Hape
 R. v. Hape involved a question as to the admissibility of evidence obtained outside of Canada at a criminal trial in this country.
 Similarly, in this case, as a foreign state, Canada would not ordinarily have the power to detain non-Canadians, including Afghan citizens, on Afghan soil, without the consent of Afghanistan.
c) Has the Government of Afghanistan Consented to the Application of Canadian law, Including the Charter?
 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.
 In light of the foregoing, it is clear that while Afghanistan has consented to its citizens being detained by the Canadian Forces for the purposes described by the Afghan Compact, it cannot be said that Afghanistan has consented to the application or enforcement of Canadian law, including the Canadian Charter of Rights and Freedoms, to constrain the actions of the Canadian Forces in relation to detainees held by the Canadian Forces on Afghan soil.
 Furthermore, the Government of Afghanistan has not consented to having Canadian Charter rights conferred on non-Canadians, within its territorial limits.
 As a result, based upon the Supreme Court of Canada’s ruling in Hape, it would thus appear that the Charter does not apply to the conduct of the Canadian Forces in issue in this case.
d) “Effective Military Control of the Person” as a Test for Charter Jurisdiction
 Whatever its appeal may be, … the practical result of applying such a “control of the person” based test would be problematic in the context of a multinational military effort such as the one in which Canada is currently involved in Afghanistan. Indeed, it would result in a patchwork of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis.
 This would be a most unsatisfactory result, in the context of a United Nations-sanctioned multinational military effort, further suggesting that the appropriate legal regime to govern the military activities currently underway in Afghanistan is the law governing armed conflict – namely international humanitarian law.
 Indeed, international humanitarian law is a highly developed branch of international law comprised of both customary international law and treaties “that regulates the conduct of military operations and operated to protect civilians and other persons not actively participating in hostilities, and to mitigate harm to combatants themselves” …
 Moreover, international humanitarian law applies not only during times of war, but applies as well, albeit with some modifications, to non-international armed conflicts within the territory of High Contracting Parties …
 The application of international humanitarian law to the situation of detainees in Afghanistan would not only give certainty to the situation, but would also provide a coherent legal regime governing the actions of the international community in Afghanistan.
 Moreover, both military detentions and police searches and seizures involve the invasion of “the private sphere of persons”, which invasion is “paradigmatic of state sovereignty”: Hape at ¶87. According to the Supreme Court, such actions can only be authorized by the host state.
 In this case, the scope of the authority given to Canada by the Government of Afghanistan to detain individuals on its soil is limited, and specifically contemplates that Canadian actions in this regard be governed by international law. In addition, it is clear from a review of the documentation governing the relationship between Afghanistan and Canada that the rights to be accorded to detainees are those guaranteed by the Afghan constitution, and by international law.
 As a consequence, I cannot accept the applicants’ argument that the Charter applies to the conduct of members of the Canadian Forces in relation to detainees held by Canadian military personnel on Afghan soil, based upon the degree of control that the Canadian Forces exert over the detainees.
 … [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.