Practice Relating to Rule 121. Location of Internment and Detention Centres
Canada’s LOAC Manual (1999) provides: “POWs [prisoners of war] may only be interned on land. Centres of internment must be established in healthy areas, with POWs having facilities guaranteeing hygiene and healthfulness.”
Concerning the treatment of internees, the manual stresses: “Internment camps must not be located in areas particularly exposed to the dangers of war.”
With respect to non-international armed conflicts, the manual provides:
Places of internment or detention shall not be located close to the combat zone. When the place of detention becomes particularly exposed to danger from the conflict, persons held shall be evacuated.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
1023. Evacuation of PW
1. PWs must be evacuated from the combat zone and away from any danger areas as soon as possible. The only exception allowed is in respect of those who, because of wounds or sickness, would run greater risk by being moved. Captives may not be exposed to unnecessary dangers during evacuation. PWs taken in “unusual combat conditions” and who cannot be evacuated must be released and all “feasible” steps taken for their safety.
1024. PW camps
1. PWs may only be interned on land. Centres of internment must be established in healthy areas, with PWs having facilities guaranteeing hygiene and healthfulness. They must not be detained in penitentiaries.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Treatment of internees”, the manual states:
4. Internment camps must not be located in areas particularly exposed to the dangers of war and, whenever military considerations permit, must be marked for protection against air attack. Internees shall be accommodated separately from PWs and from imprisoned criminals.
5. The buildings of internment camps must have adequate heat, light and sanitary conveniences. Premises for the holding of religious services must be made available. Canteens must be made available in the camps to purchase local goods unless adequate alternative facilities are available. An adequate number of air raid shelters for the use of internees must be built in every camp.
In its chapter on non-international armed conflicts, the manual states:
Places of internment or detention shall not be located close to the combat zone. When the place of detention becomes particularly exposed to danger from the conflict, persons held shall be evacuated under conditions of safety.
Canada’s Prisoner of War Handling and Detainees Manual (2004) states with regard to the POW Collecting Point (the first point in the prisoner-of-war (PW) handling process):
No PW may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.
With regard to the construction of prisoner-of-war holding facilities, the manual states:
[The 1949 Geneva Convention III] sets out the legal basis for the internment of PW. The same Convention lays down very specific provisions for the conduct of PW Holding Areas and Camps. In summary, they require that:
a. PW are only to be detained in facilities which are based on land and in circumstances which guarantee the maintenance of adequate standards of hygiene and health. PW are not normally to be detained in prisons.
b. PW are to be quartered under conditions as favourable as those for the forces of the Detaining Power that are billeted in the same area. These conditions must take into account the habits and customs of the PW and must be in no way prejudicial to their health. This requirement applies particularly to the arrangements made for PW dormitories.
c. Accommodation is to be protected from damp, adequately heated and lighted, particularly at night and protected against fire. Latrine facilities for use both by day and night are to be provided. Baths and showers are to be provided together with sufficient supplies of water for personal toilet and laundry. Adequate facilities are to be provided for messing.
d. A medical centre capable of accommodating sick PW is to be provided. Adequate premises and the necessary equipment for PW to take exercise are also required whenever military considerations permit. PW Holding facilities are to be marked so as to be easily identifiable from the air by day.
The manual provides further instructions with regard to matters of hygiene:
1. The Detaining Power has a responsibility to ensure that all necessary measures are taken to prevent epidemics and to ensure that camps are maintained in a clean, sanitary and healthy condition.
2. Medical Hygiene. This will be achieved by a programme of inspection, inoculation and de-infestation of PW on arrival at the camp. PW found to be suffering from infectious diseases are to be placed in quarantine.
3. Sanitation. Toilet facilities which conform to the rules of hygiene and which are maintained in working order are to be available for the use of PW during the day and the night…
4. Personal Hygiene.
Baths or showers with sufficient water and soap are to be provided for PW.
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces' agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN missions. Once a mission or operation has been completed, the coalition is normally disbanded;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
 To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
 For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
 Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
 The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer. …
 Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities?
 Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
 … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.” …
 The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
 In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
 Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
 … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
 As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
 Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
 That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
 Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law.