Practice Relating to Rule 127. Respect for Convictions and Religious Practices of Persons Deprived of Their LibertyNote: For practice concerning respect for convictions and religious practices in general, see Rule 104. For practice concerning respect for the religious beliefs of the dead, see Rule 115, Section B.
Hague Regulations (1899)Article 18 of the 1899 Hague Regulations provides:
Prisoners of war shall enjoy every latitude in the exercise of their religion, including attendance at their own church services, provided only they comply with the regulations for order and police issued by the military authorities.
Hague Regulations (1907)Article 18 of the 1907 Hague Regulations provides:
Prisoners of war shall enjoy complete liberty in the exercise of their religion, including attendance at the services of whatever church they may belong to, on the sole condition that they comply with the measures of order and police issued by the military authorities.
Geneva Convention IIIArticle 34 of the 1949 Geneva Convention III provides:
Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities.
Adequate premises shall be provided where religious services may be held.
Article 35 of the 1949 Geneva Convention III provides:
Chaplains who fall into the hands of the enemy Power and who remain or are retained with a view to assisting prisoners of war, shall be allowed to minister to them and to exercise freely their ministry amongst prisoners of war of the same religion, in accordance with their religious conscience.
Geneva Convention IVArticle 76, third paragraph, of the 1949 Geneva Convention IV provides that protected persons in occupied territory who are accused or convicted of offences “have the right to receive any spiritual assistance which they may require”.
Article 86 of the 1949 Geneva Convention IV provides: “The Detaining Power shall place at the disposal of interned persons, of whatever denomination, premises suitable for the holding of their religious services.”
Article 93, first paragraph, of the 1949 Geneva Convention IV provides:
Internees shall enjoy complete latitude in the exercise of their religious duties, including attendance at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining authorities.
Additional Protocol IIArticle 4(1) of the 1977 Additional Protocol II states:
All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their …convictions and religious practices.
Article 5(1)(d) of the 1977 Additional Protocol II provides that persons whose liberty has been restricted “shall be allowed to practise their religion and, if requested and appropriate, to receive spiritual assistance from persons, such as chaplains, performing religious functions”.
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Standard Minimum Rules for the Treatment of Prisoners Rule 6(2) of the 1955 Standard Minimum Rules for the Treatment of Prisoners provides: “It is necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs.”
European Prison Rules Rule 2 of the 1987 European Prison Rules provides: “The religious beliefs and moral precepts of the group to which a prisoner belongs shall be respected.”
Basic Principles for the Treatment of Prisoners Paragraph 3 of the 1990 Basic Principles for the Treatment of Prisoners provides that it is “desirable to respect the religious beliefs and cultural precepts of the group to which prisoners belong, whenever local conditions so require”.
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ArgentinaArgentina’s Law of War Manual (1969) provides that prisoners of war and internees “shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities”.
Argentina’s Law of War Manual (1989) provides: “Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith.” It adds: “Adequate premises shall be provided where religious services may be held.”
AustraliaAustralia’s Defence Force Manual (1994) provides: “PWs [prisoners of war] are completely free to exercise their religious duties and must be provided with adequate premises where religious services can be held.”
Australia’s LOAC Manual (2006) states:
PW [prisoners of war] are completely free to exercise their religious duties and must be provided with adequate premises where religious services can be held. Chaplains retained by the enemy power are not PW and must be permitted to minister to PW.
BeninBenin’s Military Manual (1995) provides that captured enemy combatants shall be entitled to respect for their religious beliefs.
Burundi’s Regulations on International Humanitarian Law (2007) states that the senior officer (general) responsible for logistics
must facilitate the religious activities to which prisoners of war are entitled under the law of war:
a) by authorizing the activities of captured enemy military religious personnel and other qualified captured persons;
b) by authorizing … religious practices in appropriate locations;
c) by providing, or at least authorizing, the acquisition of religious objects.
Cameroon’s Instructor’s Manual (2006) states: “The conditions of accommodation must take into account the morals and customs of the prisoners of war.”
CanadaCanada’s LOAC Manual (1999) provides that prisoners of war are to receive spiritual attention, if possible from chaplains attached to their own forces or of their own nationality. It adds that the detaining power must provide religious personnel with all the facilities necessary for the religious ministration of the prisoners of war.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):5. … Premises for the holding of religious services must be made available …
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.
6. … [Internees] shall enjoy complete freedom to practice their own religion.
[The 1949 Geneva Convention IV] contains stringent provisions concerning the treatment of persons undergoing sentence of imprisonment. These are as follows:
b. They have the right to receive any spiritual assistance, which they may require.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:[They] are to be allowed to retain their medical equipment and religious accoutrements and are to be granted the necessary facilities to provide medical and spiritual care to PW. Although they are subject to the disciplinary rules for the camp in which they live, they may not be forced to carry out work other than that connected with their professional duties.
PW [prisoners of war] are to be permitted to practice their religion or exercise their beliefs provided that this is carried out within the rules of camp discipline. A place of worship is to be provided where this is possible. Chaplains and other spiritual leaders are to be allowed to minister to PWs of the same religion or belief and where there is no minister or religious leader, a lay PW may be appointed by the Camp Commander to lead worship.
The deployment and use of dogs is to be at the discretion of the Camp Commander bearing in mind both the threat posed by the PW and the impact of the use of dogs on some religious and cultural groupings.
Canada’s Code of Conduct After Capture Manual (2004) states: “PWs [prisoners of war] are to receive medical and spiritual attention, if possible from doctors or chaplains attached to their own forces or of their own nationality.” 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.
ColombiaColombia’s Basic Military Manual (1995) provides that, in both international and non-international armed conflicts, all detained persons shall receive spiritual assistance.
Denmark’s Directive on the Ban on Torture (2008) states:
Central to the issue [of the ban on torture and other cruel, inhuman or degrading treatment or punishment] is that detainees are treated well and humanely.
Was the detainee subjected to violations of their modesty or honour? (in this regard, a person’s religious beliefs may mean that certain acts that would be considered less intrusive to other individuals, will actually be perceived as severe violation[s]).
EcuadorEcuador’s Naval Manual (1989) provides: “The following acts are representative war crimes: offences against prisoners of war, including … infringement of religious rights; … offences against civilian inhabitants of occupied territory including … infringement of religious rights”.
GermanyGermany’s Military Manual (1992) provides: “Latitude in the exercise of religious duties of prisoners shall be ensured.”
IsraelIsrael’s Manual on the Laws of War (1998) provides that during their captivity, “the detaining State must allow the prisoners freedom of religion, enable them to take part in religious ceremonies and set aside a place for conducting these ceremonies”.
Israel’s Manual on the Rules of Warfare (2006) states:
The imprisoning country is required to permit prisoners of war freedom of religion as well as permitting them to participate in religious ceremonies and set aside a place of worship for them.
ItalyItaly’s IHL Manual (1991) provides: “POWs [prisoners of war] shall have complete freedom in the exercise of their religion, including receiving spiritual assistance, and the commander of the camp shall facilitate such exercise so far as military discipline permits.”
MadagascarMadagascar’s Military Manual (1994) provides: “Prisoners of war shall be allowed to receive spiritual assistance.”
NetherlandsThe Military Manual (1993) of the Netherlands provides:
Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities.
The Military Manual (2005) of the Netherlands refers to “respect for fundamental rights such as freedom of conscience and worship” as a “priority” in relation to prisoners of war. Worship …
Prisoners of war must enjoy complete freedom in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities. In any case they must obey the disciplinary rules prescribed by the authorities. Religious ministers attached to the armed forces, who fall into the hands of the enemy power and who remain, or are retained, to assist prisoners of war are allowed to exercise their ministry freely. …
For those who have been deprived of their freedom, rules have been drawn up which go further than the fundamental guarantees:
- right to practise their religion and receive spiritual assistance.
New ZealandNew Zealand’s Military Manual (1992) provides: “Prisoners of war are to receive spiritual attention, if possible from chaplains attached to their own forces or of their own nationality.”
NicaraguaNicaragua’s Military Manual (1996) provides that prisoners of war shall have complete liberty in the exercise of their religion.
NigeriaNigeria’s Manual on the Laws of War provides: “POWs [prisoners of war] should enjoy religious freedom provided that it does not disrupt routine discipline.”
RomaniaRomania’s Soldiers’ Manual (1991) provides that captured combatants and civilians in the hands of a party to the conflict shall have the right to practise their religion freely.
The Russian Federation’s Regulations on the Application of IHL (2001) states: “Prisoners of war shall enjoy complete latitude in the exercise of their religious duties.” All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their … convictions and religious practices.
SenegalSenegal’s IHL Manual (1999) provides that one of the fundamental guarantees common to IHL conventions and the Universal Declaration of Human Rights is the right of persons deprived of their liberty to receive spiritual assistance.
South Africa’s Revised Civic Education Manual (2004) states: “Religious personnel should be allowed to minister to fellow prisoners and should be allowed access to all prisoner of war camps where no such ministry is available.”
SpainSpain’s LOAC Manual (1996) provides: “Prisoners of war shall enjoy complete latitude in the exercise of their religion, including attendance at the service of their faith organized by the religious service of the camp.”
Spain’s LOAC Manual (2007) states: “Prisoners of war must enjoy complete freedom in the exercise of their religious beliefs, including attending services of their faith organized by the camp’s religious service.” [N]o person who is captured or detained in relation to an armed conflict remains unprotected under the law of armed conflict and is entitled, at all times, to minimum guarantees. [These include] … respect for the person, honour, convictions and religious practices.
SwitzerlandSwitzerland’s Basic Military Manual (1987) provides:
Prisoners shall enjoy complete latitude in the exercise of their religion, including assistance at the service of their faith, on the condition that they comply with the disciplinary routine prescribed by the military authorities.
TogoTogo’s Military Manual (1996) provides that captured enemy combatants shall be entitled to respect for their religious beliefs.
Ukraine’s IHL Manual (2004) states:
1.4.13. Persons whose liberty has been restricted shall be … allowed to practice their religion and to be assisted by the religious personnel.
22.214.171.124. … Prisoners of war must be provided with conditions to practice their religion.
United Kingdom of Great Britain and Northern IrelandThe UK Military Manual (1958) states:
Internees are to enjoy complete latitude in the exercise of their religious duties, provided that they comply with the disciplinary routine prescribed by the Detaining Powers. Ministers of religion when interned must be allowed to minister freely to the members of their community.
The UK LOAC Pamphlet (1981) provides: “Prisoners must be allowed freedom in the exercise of their religious beliefs. Accommodation must be provided for religious services.”
The UK LOAC Manual (2004) states:Prisoners of war must be allowed complete freedom of religious worship, including attendance at services, provided that they comply with the disciplinary routine of the camp. Suitable accommodation for religious services must be provided.
Internees are to enjoy complete latitude in the exercise of their religious duties, including attendance at services, provided that they comply with the disciplinary routine of the camp. Suitable accommodation for religious services must be provided.
United States of AmericaThe US Field Manual (1956) reproduces Articles 34 and 35 of the 1949 Geneva Convention III and Articles 76, 86 and 93 of the 1949 Geneva Convention IV.
The US Air Force Pamphlet (1976), referring to Articles 34–38 of the 1949 Geneva Convention III, guarantees prisoners of war enjoyment of religious activities.
The US Instructor’s Guide (1985) provides: “Even though you are a prisoner, you are entitled to practice your religious faith. All prisoners shall enjoy complete freedom in the exercise and observance of their religious faith.”
The US Naval Handbook (1995) provides:
The following acts are representative war crimes: offences against prisoners of war, including … infringement of religious rights; … offences against civilian inhabitants of occupied territory, including … infringement of religious rights.
The US Naval Handbook (2007) states: “All detainees shall … [b]e allowed the free exercise of religion, consistent with the requirements for safety and security.” The US Manual on Detainee Operations (2008) states: Detainee Categories
Respect for the religious preferences of detainees is an essential aspect of detainee operations. Accordingly, the organization and administration of the detention facility must not be such as to hinder unjustifiably the observance of religious rites, and commanders should plan for the accommodation of the religious needs of detainees. Certain limitations may be necessary due to security concerns; however, a good faith balance should be struck between the detainee’s obligation to comply with disciplinary rules and procedures and the detaining power’s obligation to afford detainees the ability to meet their religious obligations and exercise their religious practices. The detaining power is also prohibited from imposing any adverse distinctions within the detainee population based on religion. In this regard, it should be noted that in some situations, segregating the detainee population based on religious affiliation may be beneficial and therefore not prohibited, particularly when conflict has been based in part on religious affiliation. Detainees have no right to person-to-person support by military chaplains. Therefore JFCs [joint force commanders] are under no obligation to provide such support. Accordingly, military chaplains do not generally provide direct religious support to detainees. Should the JFC determine a requirement to provide direct military chaplain support to detainees, communications between the chaplains and the detainees will be privileged to the extent provided by Military Rule of Evidence 503 and appropriate Military Department policies.
The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …
a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”
b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].
c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.
d. Civilian Internee … A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power.
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AzerbaijanAzerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides: “Prisoners of war are entitled to the following in all cases: … respect for their habits, national customs and religious ceremonies.”
BangladeshBangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Chile’s Code of Criminal Procedure (1906), as amended in 2007, states:
The detainee or prisoner may … , if he or she is not in solitary confinement ordered by a judge, receive visits of a religious minister … with the rules of the respective detention facility or prison being respected.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
IrelandIreland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 34 and 35 of the Geneva Convention III and Articles 76, 86 and 93 of the Geneva Convention IV, as well as any “contravention” of the 1977 Additional Protocol II, including violations of Articles 4(1) and 5(1)(d), are punishable offences.
ItalyItaly’s Wartime Military Penal Code (1941) provides for the punishment of anyone who arbitrarily violates or restricts the freedom of religion or belief of prisoners of war.
Japan’s Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations (2004) states:
The worship and other religious acts that a detainee performs individually in the prisoner-of-war camp shall not be prohibited nor restricted; provided, however, that this shall not apply to the case in which there is a risk of causing a hindrance to either the maintenance of discipline and order or the management and administration of the prisoner-of-war camp.
(1) The prisoner-of-war camp commander shall make efforts to make available the opportunities for detainees to participate in religious ceremonies, such as sermons and worship, presided over by chaplains and other religious leaders whenever a detainee hopes to do within the prisoner-of-war camp.
(2) In cases where there is a risk of causing a hindrance to either the maintenance of discipline and order or the management and administration of the prisoner-of-war camp, the prisoner-of-war camp commander may refuse to permit a detainee to participate in the religious ceremonies prescribed in the preceding paragraph.
NorwayNorway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in …the Geneva Conventions of 12 August 1949 …[and in] the two additional protocols to these Conventions …is liable to imprisonment.
Serbia’s Law on Enforcement of Penal Sanctions (2005) states:
Every prisoner has the right to:
(1) practise religious rituals;
(2) read religious literature;
(3) receive visits of religious representative[s].
Somalia’s Military Criminal Code (1963) states:
382. Arbitrary refusal to recognize the status of a lawful belligerent. – A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years.
397. Violation of freedom of religion or worship. — Without prejudice to the application of the measures to maintain order prescribed by the military authority, anyone who arbitrarily prevents or disrupts or otherwise restricts the freedom of religion or worship of prisoners of war shall be punished by military confinement for up to one year.
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
DISCIPLINE OF PRISONERS
57. Facilities at the discretion of the Commissioner-General may be allowed in every prison, in accordance with such rules as may be made in that behalf under section 94, for imparting religious or other instruction to the prisoners.
94. (1) The Minister may from time to time make all such rules, not inconsistent with this Ordinance or any other written law relating to prisons, as may be necessary for the administration of the prisons in Sri Lanka and for carrying out or giving effect to the provisions and principles of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing powers, the Minister may make rules for all or any of the following purposes or matters:–
(i) the religious instruction … of prisoners.
Zimbabwe’s Constitution (2013) states: …
Chapter 4 – Declaration of Rights
50. Rights of arrested and detained persons
(5) Any person who is detained, including a sentenced prisoner, has the right –
(c) to communicate with, and be visited by –
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
…(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
…87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated.
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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: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.
 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]
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In 2006, in a report on the detention and transfer of persons in Afghanistan in 2002, Denmark’s Ministry of Defence stated:
International humanitarian law contains in Additional Protocol I to the Geneva Conventions, a series of basic fundamental guarantees, which applies to any person in a conflicting party’s custody. The persons to whom it applies, for example people who do not have the status of prisoners of war, must always be … guaranteed the right to … belief and religion.
FranceAccording to the Report on the Practice of France, in December 1981, the French Minister of Foreign Affairs was asked in the National Assembly about two Soviet prisoners held by the Afghan faction, Hezb-i-Islami, who were being threatened with execution if they did not convert to Islam. In his reply, the Minister stated that, whatever the nature of the conflict, prisoners must be respected.
In 2010, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [w]here vessels were captured, the protections provided in the Second and Fourth Geneva Conventions of 1949 and [the 1977 Additional] Protocol I continued to apply to the persons on board the vessels.
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities [and] Article 5 prescribing humane treatment of persons whose liberty ha[s] been restricted … due to the fact that these norms are reflected in Common Article 3 of the  Geneva Conventions.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a reply to a question concerning detainees in Iraq, the UK Foreign and Commonwealth Office stated: “The prison conditions are in accordance with the Geneva Conventions … In order to accommodate religious practices, internees are served halal meat”. In 2004, in a written answer to a question concerning “the document issued to service personnel announcing the ban on the use of hoods for Iraqi prisoners”, the UK Secretary of State for Defence stated:
An amended Standard Operating Instruction on the Policy for Apprehending, Handling and Processing Detainees and Internees was issued on 30 September 2003. The following section of the document contains the relevant information.
e. Food and water are to be provided as necessary, having regard to any national, ethnic or religious dietary requirements.
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:
12.18. … The personal convictions and religious practices of civilians of persons deprived of their liberty must be respected.
12.19. So, for example, the detainees in this case were entitled to halal food.
[emphasis in original]
United States of AmericaAccording to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees held at the US naval base at Guantanamo Bay, Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated that “[t]he detainees have been given … the opportunity to worship freely and many have been given copies of the Koran in their native language”. In March 2006, the US Government issued a written response to a report produced by a group of five special rapporteurs to the United Nations Commission on Human Rights, dated 16 February 2006, which was critical of US policy regarding detainees at Guantanamo Bay, Cuba. The US Government’s response stated in part:
• [Detainees are provided with] opportunity to worship, including prayer beads, oils, rugs, calls to prayer five times daily, and copies of the Koran in the detainee’s native language.
• Following allegations of Koran mishandling by the United States at Guantanamo, the Department of Defense conducted an investigation into the matter. The investigation, completed on June 3, 2005, found that in 31,000 documents covering 28,000 interrogations and countless thousands of interactions with detainees, five incidents of apparent mishandling of the Koran by guards or interrogators had occurred.
• Some 1,600 Korans have been distributed as part of a concerted effort by the United States government to facilitate the desires of detainees to freely worship. The small number of very regrettable incidents should be seen in light of the volume of efforts to facilitate opportunities for religious practice at Guantanamo.
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UN Secretary-GeneralIn 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary General stated: “Violations of common Article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law.”
UN Human Rights Council
In a resolution adopted in 2007 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN Human Rights Council:
(c) To ensure that appropriate measures are taken in order to adequately and effectively guarantee the freedom of religion or belief of women as well as individuals from other vulnerable groups, including persons deprived of their liberty, refugees, children, persons belonging to minorities and migrants;
(j) To ensure that all public officials and civil servants, including members of law enforcement bodies, the military and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that all necessary and appropriate education or training is provided.
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International Criminal Tribunal for the former Yugoslavia In its judgment in the Aleksovski case in 1999, the ICTY Trial Chamber held in relation to detention conditions:
In sum, it was not established that the difficulties encountered by the detainees in respect of the observance of religious rites resulted from any deliberate policy of the accused or of the men placed under his authority. In this respect, the Trial Chamber notes that the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, though not directly applicable, stipulates in Article 93 that “[i]nternees shall enjoy complete latitude in the exercise of their religious duties, including attendance at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining authorities”. In the present case, the practice of religion was not prohibited and most of the victims stated that they were able to practise their religion despite the difficult conditions. The Trial Chamber would thus reject the Prosecutor’s allegation on this point.
Human Rights CommitteeIn its General Comment on Article 18 of the 1966 International Covenant on Civil and Political Rights, the Human Rights Committee held:
Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.
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ICRCTo fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “prisoners of war shall be allowed to exercise religious observance” and that “adequate premises shall be provided where religious services may be held”.
In a communication to the press issued in 2000 in connection with the hostilities in the Near East, the ICRC stated: “Religious customs must be respected, which implies access to places of worship to the fullest extent possible.”
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Turku Declaration of Minimum Humanitarian StandardsThe Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states: “All persons, even if their liberty has been restricted, are entitled to respect for their person, honour and convictions, freedom of thought, conscience and religious practices.”