Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Canada’s LOAC Manual (1999) provides: “No physical or mental torture, or any other form of coercion, shall be inflicted on PWs [prisoners of wars] or detainees to force them to provide information of any kind”.
The manual stipulates: “Any form of torture or cruelty, are forbidden.”
The manual also states that belligerents are forbidden to use physical or moral coercion against protected persons.
The manual further states: “The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents … torture of all kinds, whether physical or mental.”
The manual adds that torture is an act against humanity and that “torture and inhumane treatment along with wilfully causing great suffering or serious injury to the wounded, sick and shipwrecked” is a grave breach of the 1949 Geneva Conventions I and II and of the 1977 Additional Protocol I.
With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. It adds that the 1977 Additional Protocol II contains a “statement of fundamental guarantees prohibiting at any time and anywhere … cruel treatment, such as torture”.
Canada’s Code of Conduct (2001) states as a general rule the prohibition of “any form of abuse, including torture”.
Regarding the 1984 Convention against Torture, the manual explains: “It is a service and a criminal offence to torture a PW [prisoner of war] or detained person. Any form of physical or psychological abuse is prohibited.”
The Code of Conduct further states: “Where interrogation or debriefing is conducted by qualified and authorized personnel, no physical or mental torture, or any other form of coercion, shall be inflicted on PWs or detainees to force them to provide information of any kind”.
The Code of Conduct also provides a list of 11 fundamental rules, among which is “any form of abuse, including torture, is prohibited”.
Canada’s LOAC Manual (2001) provides in its chapter on the treatment of prisoners of war (PWs):
1. A PW may be interrogated but is only required to give name, rank, service number and date of birth. If the PW wilfully refuses to supply such information, the PW may only forfeit privileges due to his or her rank or status.
2. It is forbidden to apply any form of coercion to PWs in an attempt to secure any other information …
3. The interrogation or debriefing of PWs should only be conducted by qualified CF personnel, usually intelligence personnel, in accordance with the relevant UN, coalition or national direction. Where interrogation or debriefing is conducted by qualified and authorized personnel, no physical or mental torture, or any other form of coercion, shall be inflicted on PWs or detainees to force them to provide information of any kind. PWs who refuse to answer shall not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment.
1039. Law applicable to PW
9. Collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and any form of torture or cruelty, are forbidden.
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 “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual states:
1. Belligerents are forbidden to use physical or moral coercion against protected persons, in particular with a view of obtaining information from them or from other persons.
2. [The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel.
In the same chapter, in a section entitled “Additional Protocol I”, the manual states:
1. [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. It states in part:
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
a. violence to the life, health, or physical or mental well-being of persons, in particular:
(2) torture of all kinds, whether physical or mental;
b. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
e. threats to commit any of the foregoing acts.
In its chapter on rights and duties of occupying powers, the manual further states:
1223. Control of persons in occupied territory
3. The following measures of population control are forbidden at all times:
b. physical or moral coercion, particularly to obtain information,
1231. Imprisonment pending trial
2. The Geneva Convention Against Torture expressly prohibits torture or abuse of any kind and at any time against detainees.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that torture is a crime against humanity and refers to “torture and inhumane treatment along with wilfully causing great suffering or serious injury to the wounded, sick and shipwrecked” as grave breaches of the 1949 Geneva Conventions I and II.
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.
To this end, the following are at any time and in any place prohibited with regard to such persons:
i violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
iii outrages upon personal dignity, in particular, humiliating and degrading treatment.
In the same chapter, the manual also states:
Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:
a. violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
g. threats to commit any of the foregoing.
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.
a. The wilful killing, torture or inhumane treatment (including medical or scientific experimentation) of wounded and sick PW [prisoners of war], or other protected persons, or otherwise wilfully causing them great suffering or serious injury to body and health.
With regard to the tactical questioning of prisoners of war at unit headquarters, the manual states:
No physical or mental torture, nor any other form of coercion may be inflicted on a PW in order to secure from them information of any kind whatever. PW who refuse to answer questions may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.
With regard to the key principles governing interrogation and tactical questioning (TQ), the manual states:
a. all interrogation and TQ activity will fully comply with Canadian law and relevant international laws, conventions, and agreements, including the Third Geneva Convention (relative to the treatment of PW), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984);
e. no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.
This “no-torture” principle is reiterated in Annex 4A of the manual, governing interrogation and tactical questioning.
Rule 6 of Canada’s Code of Conduct (2005) instructs: “Treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention. Any form of abuse, including torture, is prohibited.”
The Code of Conduct further states:
6. In accordance with the United Nations Convention Against Torture, Canada has the obligation to set out in the Code of Conduct the prohibition against any form of torture. It is a service and a criminal offence to torture a PW or detained person. Any form of physical or psychological abuse is prohibited. In addition, following the Third Geneva Convention, all PWs must be protected against acts of violence, insults or intimidation. By national direction, all detainees must also be protected against acts of violence, insults or intimidation.
11. The interrogation or debriefing of detainees may only be conducted by qualified personnel such as intelligence personnel in accordance with the relevant UN, coalition or national direction. Where interrogation or debriefing is conducted by qualified and authorized personnel, no physical or mental torture, or any other form of coercion, shall be inflicted on PWs or detainees to force them to provide information of any kind. Detained persons who refuse to answer shall not be threatened, insulted or exposed to unpleasant or ill-treatment of any kind.
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 1949 Geneva Conventions] … is guilty of an indictable offence.”
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that genocide, crimes against humanity and war crimes defined in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
In the Brocklebank case
in 1996, the Court Martial Appeal Court of Canada acquitted a Canadian soldier accused of torture and negligent performance of a military duty in respect of acts committed while serving as a member of the peacekeeping mission in Somalia.
In the Suresh case before the Supreme Court of Canada in 2002, the appellant challenged an order for his deportation, inter alia, on the grounds that the Canadian Charter of Rights and Freedoms precludes deportation to a country where a refugee faces torture. The judgment of the Supreme Court held:
50. It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force … While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.
51. When Canada adopted the Charter [the Canadian Charter of Rights and Freedoms] in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith,  1 S.C.R. 1045, at pp. 1072–73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system … Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073–74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust.
61. It has been submitted by the intervener, Amnesty International, that the absolute prohibition on torture is a peremptory norm of customary international law, or jus cogens. Articles 53 and 64 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, provide that existing or new peremptory norms prevail over treaties. Article 53 defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. This raises the question of whether the prohibition on torture is a peremptory norm. Peremptory norms develop over time and by general consensus of the international community. This is the difficulty in interpreting international law; it is often impossible to pinpoint when a norm is generally accepted and to identify who makes up the international community …
62. In the case at bar, there are three compelling indicia that the prohibition of torture is a peremptory norm. First, there is the great number of multilateral instruments that explicitly prohibit torture …
63. Second, Amnesty International submitted that no state has ever legalized torture or admitted to its deliberate practice and that governments accused of practising torture regularly deny their involvement, placing responsibility on individual state agents or groups outside the government’s control. Therefore, it argues that the weight of these domestic practices is further evidence of a universal acceptance of the prohibition on torture. Counsel for the respondents, while not conceding this point, did not refer this Court to any evidence of state practice to contradict this submission. However, it is noted in most academic writings that most, if not all states have officially prohibited the use of torture as part of their administrative practices …
64. Last, a number of international authorities state that the prohibition on torture is an established peremptory norm …
65. Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from.
The Mahjoub case concerns a Mr Mahjoub, an Egyptian national found to be a refugee under the 1951 Refugee Convention in Canada in 1996, and detained in Canada under a security certificate issued by Canadian authorities in 2000.
In 2005, Canada’s Federal Court allowed judicial review of a decision by a delegate of the Canadian Minister of Citizenship and Immigration to remove Mr Mahjoub to Egypt, holding that that decision had been based on incomplete evidence, and the matter was remitted for redetermination by another delegate.
In 2006, Canada’s Federal Court dealt with the application for judicial review of the redetermined decision to remove Mr Mahjoub to Egypt. Finding that the “delegate’s decision with regard to the substantial risk of torture faced by Mr. Mahjoub on his return to Egypt was patently unreasonable”,
the Federal Court again allowed the application for judicial review and remitted the matter for redetermination by another delegate. The Federal Court also made the following statement:
i. Reliance on evidence likely to have been obtained by torture
 In Lai v. Canada (M.C.I.), 2004 FC 179,  F.C.J. No. 113 (QL) (Lai FCTD), my colleague Justice Andrew MacKay held at paragraph 24:
I agree … that evidence obtained by torture, or other means precluded by the International Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ought not to be relied upon by a panel considering a refugee application. […]
 This view was confirmed by the Federal Court of Appeal in Lai v. Canada (M.C.I.), 2005 FCA 125,  F.C.J. No. 584 (QL) (Lai FCA), where Justice Brian Malone concluded at paragraph 95 sub-paragraph (a) that “[…] [s]tatements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy.”
 In Re Charkaoui, 2004 FC 1031,  F.C.J. No. 1236 (QL) (Charkaoui), my colleague Justice Simon Noël considered challenges to the evidence on the grounds that it had been obtained by torture. At paragraphs 28 and 29 of Charkaoui, above, he essentially found that the evidence at issue from Mr. Rezzam had not been tainted by torture, and that it could form part of the evidentiary record. However, Justice Noël was not satisfied that information against Mr. Charkaoui from Mr. Abu Zubaida had not likely been obtained by torture/mistreatment, as there was contradictory evidence surrounding the circumstances of its production (Charkaoui, above, at paragraphs 30, 31). With regard to this particular evidence, Justice Noël stated at paragraph 31 of Charkaoui, above:
[…] bearing in mind the objectives of the Convention Against Torture and the conflicting evidence presented by the two parties, it is the Court’s intention not to take into consideration the statement of Mr. Zubaida and not to assign it any importance for the time being in my analysis of the facts. However, the Court is not withdrawing this statement as presented from the record, in view of the type of evidence presented by the parties and the contradiction that exists in the evidence in support of the respective submissions of the parties.
 Another colleague, Justice Eleanor Dawson, considered a similar argument made on behalf of Mr. Harkat that torture had tainted evidence obtained from Mr. Abu Zubaida and therefore that it should be inadmissible (re Harkat, 2005 FC 393,  F.C.J. No. 481 (QL) at para. 115) (Harkat 2005). Mr. Harkat referred to indirect and direct evidence of mistreatment likely suffered by Mr. Abu Zubaida in support of his position, and the Court held that there was “[…] significant concern about the methods used to interrogate Abu Zubaida” (Harkat 2005, above, at para. 120). It may be relevant to note that aside from the torture/mistreatment issue there was an “additional pressing concern” of the weight to accord the information from Mr. Abu Zubaida, as there was no evidence before the Court of the specific questions and answers used in producing the information (Harkat 2005, above, at para. 122). Ultimately, Justice Dawson concluded that she was “[…] left in doubt as to how Mr. Abu Zubaida came to provide information about Mr. Harkat” and she decided to “give no weight to the information provided to the Court through Abu Zubaida” (Harkat 2005, above, at para. 123).
 In light of the above, I agree with the applicant that reliance on evidence likely to have been obtained by torture is an error in law. Though not been explicitly articulated, I am persuaded that this general principle has essentially been applied and adopted in Canada in recent cases. It is also consistent with Canada’s signing of the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (G.A. res. 39/46, U.N. Doc. A/39/51 (1984)). This view is also consonant with a recent House of Lords decision which held that reliance on evidence likely to have been obtained by torture is an error in law (A (FC) and others (FC) v. Secretary of State for the Home Department,  UKHL 71),  H.L.J. No. 13 (QL) (A(FC)).
 However, it is also important to note that there must be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion (Lai FCTD, above, at paras. 28, 50; aff’d Lai FCA, above, at paras. 38-42; Charkaoui, above, at paras. 27–31). The Federal Court of Appeal has held that general country condition information citing the use of torture should not inevitably lead to a finding that all specific evidence from that country should be excluded, without further substantiation (Lai FCA, above, at para. 42). On this point Justice Malone concluded at paragraph 42 of Lai FCA, above, “[…] the very general evidence offered by the appellants about torture by Chinese investigators was not specific and certainly not specific to the statements offered by the Minister in this appeal. […]”
ii. Burden of proof
 The respondents submit that a party alleging that specific evidence was obtained by torture bears the onus of adducing proof to establish the claim, on a balance of probabilities standard, though no authorities were submitted on this point. I am not convinced this is the proper burden in the special circumstances of the present matter.
 In a proceeding where evidence is public, the person concerned has the ability to challenge specific evidence. Thus, it is appropriate to impose such a burden in the circumstances, as this person has the opportunity and means to properly discharge it. For instance, in India v. Singh,  B.C.J. No. 2792 (QL), the British Colombia Supreme Court had the role of determining if there was sufficient evidence to order Mr. Singh to surrender for extradition to India where India relied upon confessional statements of five individuals detained there.
 In that case, Mr. Singh submitted that the statements were obtained by torture, and should be excluded. In this context, he knew the content of the statements and the identities of those who made them, and had the opportunity to produce specific evidence attempting to prove the statements were obtained under torture. The Court concluded at paragraph 21 that “[t]he burden of proving that the confessional statements were obtained as a result of the commission of an offence under this torture section section 269.1 of the Criminal Code of Canada rests upon the Fugitive who makes the allegation … [and] must be proved upon a balance of probabilities”. Due to the nature of the proceedings, Mr. Singh was aware of all of the evidence against him, and therefore had the opportunity to adduce evidence necessary to meet the burden placed upon him. In contrast, due to the special nature of the present matter, where part of the evidence is not disclosed to Mr. Mahjoub, this opportunity is somewhat limited. This is a crucial distinction of which I am particularly mindful, and one which I believe is reflected in existing jurisprudence.
 In Harkat 2005, above, the Ministers submitted that Mr. Harkat had the burden of proving, on a balance of probabilities, that evidence from Mr. Abu Zubaida had been obtained by torture (Harkat 2005, above, at para. 116). Mr. Harkat responded that as the location and condition of Mr. Abu Zubaida were unknown, he was limited to putting public material before the Court and inferring the occurrence of torture; some of this public material related directly and indirectly to Mr. Abu Zubaida (Harkat 2005 at para. 117). After reviewing the public evidence, Justice Dawson stated that “[t]he evidence before the Court satisfies me that better evidence about conditions Mr. Abu Zubaida has been subjected to is not likely to be available to Mr. Harkat” and then concluded that it did raise “significant concern” about the methods used to obtain the evidence (Harkat 2005 at para. 120). In light of her doubt with regard to this evidence, she gave it no weight (Harkat, above, at para. 123).
 In a similar vein, Justice Noël decided not to rely on potentially suspect evidence where there was a specifically founded “possibility that such mistreatment occurred” (Charkaoui, above, at para. 31). Thus, the Court’s doubt was resolved by giving no weight to the evidence.
 In my view, my colleagues’ approaches to the burden of proof suggest an appropriate consideration of the special nature of matters such as these, and a recognition of the inherent limitations placed upon individuals such as the applicant. I find such an approach preferable to that proposed by the respondents in the special circumstances of the present context.
 In my opinion, in light of the preceding jurisprudence, where the issue is raised by an applicant offering a plausible explanation why evidence is likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker finds there are reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination.
 This view is reflected in A(FC), above, where the House of Lords found, in a substantively similar context, that a conventional burden of proof should not be placed on the detainee (at paras. 55, 80, 98, 116, 155). Lord Hope of Craighead, in the majority, wrote at paragraph 116:
[…] It would be wholly unrealistic to expect the detainee to prove anything, as he is denied access to so much of the information that is to be used against him. He cannot be expected to identify from where the evidence comes, let alone the persons who have provided it. All he can reasonably be expected to do is to raise the issue by asking that the point be considered by SIAC. There is, of course, so much material in the public domain alleging the use of torture around the world that it will be easy for the detainee to satisfy that simple test. All he needs to do is point to the fact that the information which is to be used against him may have come from one of the many countries around the world that are alleged to practise torture, bearing in mind that even those who say that they do not use torture apply different standards from those that we find acceptable. Once the issue has been raised in this general way the onus will pass to SIAC. It has access to the information and is in a position to look at the facts in detail. It must decide whether there are reasonable grounds to suspect that torture has been used in the individual case that is under scrutiny. If it has such a suspicion, there is then something that it must investigate as it addresses its mind to the information that is put before it which has been obtained from the security services. [My emphasis]
 Ultimately, I believe that the determination of whether evidence is likely to have been obtained by torture is a fact-driven inquiry. It is unequivocally a conclusion that requires the decision-maker to weigh the evidence in the record, to determine if it was likely the product of torture or not. Thus, I agree with the reasoning of my colleague Justice MacKay in Jaballah
, above, at paragraphs 40–42, that this issue is essentially one of the weight given to evidence by the delegate. As a fact-driven inquiry that involves weighing the available evidence, as with the other aspects of the decision, this element would be subject to considerable deference by a reviewing court.
[emphasis in original]
On 9 February 2007, in the Afghanistan Public Interest (MPCC-2007-003) case
, the Canadian Military Police Complaints Commission announced a decision to initiate a public interest investigation into allegations that Canadian Forces (CF) military police in Afghanistan failed to safeguard the well-being of three persons in their custody, in particular by allegedly failing to “investigate the causes of various injuries which may have been sustained while in CF, as opposed to military police, custody”.
In the Charkaoui case before the Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Court held:
I conclude that the [Canadian Charter of Rights and Freedoms] s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release.
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:
 The issue to be determined on this motion is whether the Canadian Charter of Rights and Freedoms applies to the conduct of Canadian Forces personnel in relation to individuals detained by the Canadian Forces in Afghanistan, and the transfer of those individuals to the custody of Afghan authorities.
 For the reasons that follow, I have concluded that while detainees held by the Canadian Forces in Afghanistan have the rights accorded to them under the Afghan Constitution and by international law, and, in particular, by international humanitarian law, they do not have rights under the Canadian Charter of Rights and Freedoms.
 Furthermore, although the actions of the Canadian Forces in Afghanistan in relation to the detention of non-Canadian individuals are governed by numerous international legal instruments, and may also be governed by Canadian law in certain clearly defined circumstances, the Canadian Charter of Rights and Freedoms does not apply to the conduct in issue in this case.
 As the application for judicial review rests exclusively on the Charter for its legal foundation, it follows that the application must be dismissed.
 Amnesty International Canada and the British Columbia Civil Liberties Association (“the applicants”) have brought an application for judicial review with respect to “the transfers, or potential transfers, of individuals detained by the Canadian Forces deployed in the Islamic Republic of Afghanistan”.
 The applicants allege that the formal arrangements which have been entered into by Canada and Afghanistan do not provide adequate substantive or procedural safeguards to ensure that individuals transferred into the custody of the Afghan authorities, as well as those who may be transferred on to the custody of third countries, are not exposed to a substantial risk of torture.
 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”.
 Before transferring a detainee into Afghan custody, General Laroche [the Canadian Commander of Task Force Afghanistan] must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.
 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.
 On May 3, 2007, Canada and Afghanistan concluded a second Arrangement governing the transfer of detainees held by the Canadian Forces (the “second Detainee Arrangement”). This Arrangement supplements the first Detainee Arrangement, which continues to remain in effect.
 … [T]he second Detainee Arrangement provides that any allegations of the abuse or mistreatment of detainees held in Afghan custody are to be investigated by the Government of Afghanistan, and that individuals responsible for mistreating prisoners are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
 On January 22, 2008, the applicants were advised by the respondents that the Canadian Forces had suspended detainee transfers until such time as transfers could be resumed “in accordance with Canada’s international obligations”.
 The decision to suspend detainee transfer came about as a result of a “credible allegation of mistreatment” having been received on November 5, 2007 by Canadian personnel monitoring the condition of detainees transferred to Afghan authorities.
 … [W]hile the decision in this matter was under reserve, the Court was advised that as of February 26, 2008, the Canadian Forces had resumed transferring detainees to Afghan custody.
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?
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.
 … [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.” …
 This conclusion is reinforced by a review of the wording of the detainee transfer Arrangements agreed to by both Canada and Afghanistan.
 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”. …
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” …
 In particular, international humanitarian law prohibits the mistreatment of captured combatants …
 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 …
e) Conclusion with Respect to the First Question
 As a consequence, the answer to the first question is “No”.
V. 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?
 Surely Canadian law, including the Canadian Charter of Rights and Freedoms, either applies in relation to the detention of individuals by the Canadian Forces in Afghanistan, or it does not. It cannot be that the Charter will not apply where the breach of a detainee’s purported Charter rights is of a minor or technical nature, but will apply where the breach puts the detainee’s fundamental human rights at risk.
 As a consequence, the Charter would not apply to restrain the conduct of the Canadian Forces in Afghanistan, even 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 answer to the second question is, therefore, “NO”.
 … [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” …
 It is also troubling that while Canada can prosecute members of its military after the fact for mistreating detainees under their control, a constitutional instrument whose primary purpose is, according to the Supreme Court, to limit the exercise of the authority of state actors so that breaches of the Charter are prevented, will not apply to prevent that mistreatment in the first place.
 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.
 It must also be observed that members of the Canadian Forces cannot act with impunity with respect to the detainees in their custody. Not only can Canadian military personnel face disciplinary sanctions and criminal prosecution under Canadian law should their actions in Afghanistan violate international humanitarian law standards, in addition, they could potentially face sanctions or prosecutions under international law.
 Indeed, serious violations of the human rights of detainees could ultimately result in proceedings before the International Criminal Court, pursuant to the Rome Statute of the International Criminal Court
[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. As found by the motions judge (at para. 64 of her reasons):
64 Before transferring a detainee into Afghan custody, General Laroche must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes committed in Rwanda in 1994. The Court held:
 The first two counts allege that the accused committed an act of genocide in two ways:
- by the intentional killing of;
- by causing serious bodily or mental harm to;
members of an identifiable group of people, the Tutsi.
 The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (the “1948 Convention”) is the foundation of conventional international law as it pertains to genocide. Article 2 of the 1948 Convention defines genocide:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(b) Causing serious bodily or mental harm to members of the group;
 This convention was ratified by Canada on September 3, 1952 and by Rwanda on April 26, 1975. It applied to Rwanda in 1994.
 Even without that conventional definition, the crime of genocide in 1994 was in contravention of all the peremptory rules of customary international law.
(C) Serious bodily or mental harm
 The ICTR and the ICTY agree to include the following acts, in particular, as causing a person serious bodily or mental harm:
- physical or mental torture;
- inhumane or degrading treatment;
- sexual violence;
 The notion of causing serious bodily or mental harm is found in Article 2(b) of the 1948 Convention, Article 4(2)(b) of the  ICTY Statute, Article 2(2)(b) of the  ICTR Statute and Article 6(b) of the  Rome Statute.
 It is recognized by the international tribunals that each case is sui generis, but a certain number of principles emerge from the jurisprudence:
(a) the harm may be physical or mental;
(b) the physical harm need not be permanent or irreversible, but must be likely to prevent the victim from living a normal life over a relatively long period;
(c) the mental harm must go beyond slight or temporary deterioration of mental faculties;
(d) the harm must be so serious that it threatens to destroy the targeted group in whole or in part.
 Rape, sexual violence, mutilation and interrogation accompanied by blows or threats are recognized as acts causing serious physical harm.
 Subjecting a person to intense fear, terror, intimidation or threats is recognized as an act causing serious mental harm.
(D) Inhumane or degrading treatment
 The expression “inhumane or degrading treatment” is also found in the Rome Statute, the 1949 Geneva Conventions, the ICTY Statute and the ICTR Statute.
 Such treatment is considered cruel and requires proof of the following elements:
(a) an intentional act or omission causing serious mental or physical suffering or constituting outrages on personal dignity;
(b) committed against a protected person or a person who did not take a direct part in the hostilities;
(c) a lesser degree of suffering is required than for torture, but the same degree as for serious bodily or mental harm to the person.
 Each case is also sui generis, but the jurisprudence has accepted the following in particular:
(a) piling prisoners into buses and beating them as they pass between two rows of soldiers when they get out of the buses;
(b) beating prisoners held in a shed;
(c) detaining men of a targeted group and beating them in public.
(E) Act of sexual violence
 Rape and sexual violence constitute serious bodily or mental harm to a person and, therefore, be acts constituting genocide if they are committed with the intent to destroy the group to which the victim belongs …
3.3 Crime against humanity
 Counts 3 and 4 allege that the accused committed crimes against humanity:
- by intentional killing;
- by the act of sexual violence.
 Subsection 6(3) of [Canada’s 2000 Crimes Against Humanity and War Crimes] Act defines a crime against humanity as follows:
“crime against humanity” means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
 The Act confirms a consensus of the League of Nations, prior to 1945, that crimes against humanity were part of customary international law. Killing, sexual violence and the other crimes listed in subsection 6(3) of the Act constituted crimes before 1945 and, therefore, in Rwanda in 1994.
3.4 War crime
 Counts 5, 6 and 7 allege that the accused committed a war crime by means of:
(a) intentional killing;
(b) an act of sexual violence;
(B) War crime
 As for customary international law, Article 4 of the ICTR Statute, regarding non-international armed conflicts, provides that it applied on Rwandan territory in 1994 and that the list of war crimes included killing, outrages upon personal dignity, rape and pillage.
(D) Act of sexual violence
 It is accepted that an act of sexual violence is part of “inhumane acts”, “outrages upon personal dignity” and “serious bodily or mental harm” as regards the victim.
 The elements essential to this offence are the same as those described under genocide and crimes against humanity.
 While an armed national conflict raged in Rwanda between the RAF [Rwandan Armed Forces] and the RPF [Rwandan Patriotic Front], Désiré Munyaneza intentionally killed dozens of people in Butare and the surrounding communes who were not participating directly in the conflict, sexually assaulted dozens of people and looted the homes and businesses of individuals who had nothing to do with the armed conflict.
 In doing so, he committed a war crime according to the Act.
 Désiré Munyaneza is guilty of the seven counts filed against him by the Crown.
[footnotes in original omitted]
In 2013, in the Sapkota case
, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the
Rome Statute of the International Criminal Court
… is endorsed in Canada as a source of customary law.”
In 2004, in response to a question relating to the abuse and torture of prisoners by US forces in Iraq, Canada’s Minister of Foreign Affairs stated:
Canadians, the House and the government condemn, absolutely, the treatment of those prisoners in Iraq.
We welcome the fact that the United States government, the Senate, the House of Representatives and other American authorities are doing their best to rectify a terrible situation and one that has had an impact on the difficult situation in Iraq.
We in the House and we in the government urge all of us to look at the fact that what we need are clear international norms and international rules with enforceability so that all people can be protected at all times, which is why this government has the international policy that it has.
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated regarding its Anti-terrorism Act:
Nothing in any of the new offences, investigative powers or other provisions affects any of the safeguards already in place against torture and related activities. Criminal Code subsection 269.1(4) which bars the use of any statement obtained by torture for any purpose except as evidence that it was in fact obtained by torture, applies in full to all of the new procedures.
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated: “To our dismay, serious abuses of human rights and international humanitarian law have become common place in Darfur, including … torture”.
In 2005, in response to a question during a House of Commons debate relating to Canada’s position on alleged extraordinary renditions involving Canadian territory, Canada’s Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness stated:
Canada is of course in full compliance with both domestic and international law as it relates to extraordinary rendition. We have never deported anyone to a country where they faced a substantial risk of torture.
In September 2006, in the “Report of the Events Relating to Maher Arar – Analysis and Recommendations”, which resulted from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, it was stated:
In a recent address, the Secretary-General of the United Nations said, “Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror.” That statement succinctly captures the special nature of the right to be free from torture: it is absolute. Some human rights, such as the right to privacy, may be lawfully suspended under certain conditions in the name of public emergency. This is made explicit in international human rights treaties such as the International Covenant on Civil and Political Rights and is implicit in Canada’s constitutional standards. But the right to be free from torture is different, in a very important way.
The infliction of torture, for any purpose, is so fundamental a violation of human dignity that it can never be legally justified. Article 5 of the Universal Declaration of Human Rights provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The same prohibition is found in the International Covenant on Civil and Political Rights and all regional human rights instruments. Torture is specifically prohibited in times of armed conflict by international humanitarian law, including the Geneva Conventions of 1949 and their two Additional Protocols. Two international instruments deal specifically with torture: the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Torture Declaration) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture). In adhering to these treaties, Canada has manifested its commitment to uphold the right to be free from torture.
Under the Convention Against Torture, a state party is bound to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. But the prohibition in the Convention Against Torture extends beyond the act of torture itself. States party may contravene their treaty obligations when they consent to or acquiesce in torture inflicted by another state. For example, article 3 prohibits a state party from expelling, returning or extraditing a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture. In addition, as Professor Peter Burns, an expert on the international prohibition against torture, testified at the Inquiry, a state may contravene the Convention Against Torture if it shares information with a regime known to practice torture with the knowledge that the transfer of information would be used for the purpose of torture.
Article 2, paragraph (2) of the Convention Against Torture makes the absolute nature of the prohibition against torture very clear: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Indeed, the prohibition against torture in international law is so fundamental that it has reached the level of a jus cogens norm – a pre-emptory norm, which overrides any contradictory customary international law, treaty law, or state practice.
Domestically, the Canadian Charter of Rights and Freedoms
confirms the absolute rejection of the use of torture. In a recent case Suresh v. Canada (Minister of Citizenship and Immigration)
,  1 S.C.R. 3, 2002 SCC 1 at paras. 51, 52], the Supreme Court of Canada characterized torture as “so inherently repugnant that it could never be an appropriate punishment, however egregious the offence.” Torture is also a criminal offence in Canada. Subsection 269.1(1) of the Criminal Code
of Canada provides that “Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” The Criminal Code
in fact does more than criminalize specific acts of torture, in that its provisions relating to attempts, conspiracies, counselling and parties apply to the offence of torture in the same way they apply to other criminal offences.
The 14th of the 23 recommendations contained in the report stated:
The RCMP [Royal Canadian Mounted Police] and CSIS [Canadian Security Intelligence Service] should review their policies governing the circumstances in which they supply information to foreign governments with questionable human rights records. Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.
In amplification of that recommendation, the report stated:
Article 2, paragraph (2) of the Convention against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Article 4, paragraph (1) moreover requires that a state party to the Convention “ensure that all acts of torture are offences under its criminal law” and that the same apply to any “attempt to commit torture” or any “act by any person which constitutes complicity or participation in torture.” Finally, under Article 3, paragraph (1), no state party shall send a person to a country where there are “substantial grounds for believing that he would be in danger of being subjected to torture.” Clearly, the prohibition against torture in the Convention against Torture is absolute. Canada should not inflict torture, nor should it be complicit in the infliction of torture by others.
… According to Article 3, paragraph (2) of the Convention against Torture, relevant considerations for determining whether there are grounds for believing in a danger of torture include the existence of a “pattern of gross, flagrant or mass violations of human rights.” Reliable public reports of patterns of human rights violations in a country must be considered when assessing whether there is or was a credible risk of torture. Canadian officials should not wait for “verification” or unequivocal evidence of torture in a specific case before arriving at a conclusion of a likelihood of torture.
[emphasis in original]
In 2007, in a report to Parliament on Canada’s mission in Afghanistan, the Government of Canada stated: “With Canadian assistance, Afghanistan is … working to increase its capacity to comply with, and report on, its human rights treaty obligations, and to develop procedures aimed at preventing … torture”.
In 2007, in a report on “Canadian Forces in Afghanistan”, the Standing Committee on National Defence of Canada’s House of Commons notes:
Since 2001, the Canadian Forces have captured and subsequently transferred numerous individuals suspected of committing crimes or planning to commit terrorist acts against international forces or Afghans themselves. These apprehended individuals are referred to as “detainees” and they are routinely handed over to Afghan national security forces by Canadian troops. The Committee heard early testimony that highlighted significant concern over the practice of transferring detainees to Afghan authorities because it was thought that they will be mistreated or tortured by ill-trained Afghan police.
Public allegations subsequently surfaced that claimed three detained Afghans may have even been mistreated while in Canadian custody. The allegations came from University of Ottawa law professor Amir Attaran, based on government documents he obtained under the Access to Information Act. The Canadian Forces launched a Board of Inquiry to investigate the treatment and processing of detainees by the Canadian Forces in Afghanistan, and the circumstances regarding the transfer of the three detainees from a Canadian field unit to Military Police at Kandahar Airfield in the period 6–8 April 2006.
The Board of Inquiry is distinctly different from a separate ongoing Canadian Forces National Investigation Service (CFNIS) investigation, in which trained investigators determine whether or not a criminal offence has occurred, and whether or not there is sufficient evidence to lay charges.
In addition to these proceedings, the Military Police Complaints Commission announced it was launching a second public interest investigation into a complaint regarding the transfer of detainees by Military Police in Afghanistan. This decision relates to a joint, Amnesty International Canada and British Columbia Civil Liberties Association, complaint letter received on 21 February 2007. In the complaint, it is alleged that the Canadian Forces Provost Marshal and unidentified members of the CF Military Police, on at least 18 occasions transferred detainees to Afghan authorities notwithstanding alleged evidence that there was a likelihood they would be tortured.
Detainee handling and transfer involves certain diplomatic issues too. Afghanistan is a sovereign country and is responsible for the handling of all detainees captured on its own territory. Canada, and other nations, are in Afghanistan at the invitation of the Afghan government and so, detainees captured by the Canadian Forces were originally turned over to Afghan authorities, subject to conditions found in an arrangement between the Canadian Forces and the Afghan ministry of defence, signed on 18 December 2005.
The document in question is entitled, “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan”. The first section of the arrangement establishes the technical nature of the document when it says, “This arrangement establishes procedures in the event of a transfer …” It is an agreement between two government agencies, not an agreement between two countries per se.
According to Ms. Colleen Swords, the DFAIT [Department of Foreign Affairs and International Trade] Assistant Deputy Minister International Security Branch and Policy Director, the arrangement is not a formal treaty and is not legally binding. It simply reaffirms existing legally binding commitments, in particular those in the Third Geneva Convention, as well as obligations undertaken by both Canada and Afghanistan under international law with respect to detainees. In these circumstances, it was felt, there was no need to enter into a separate legally binding agreement with the Government of Afghanistan. Ms. Swords also pointed out that the mechanisms for the transfer of detainees concluded between Afghan authorities and other NATO allies such as Denmark, the Netherlands, and the United Kingdom are also not legally binding.
The transfer arrangement establishes the procedures to be followed in the event of a detainee transfer. It is intended primarily to provide commanders on the ground with clarity on what to do in the event of a transfer, the arrangement lays out two key principles:
a. Recognition of the need for detainees to be treated humanely under any circumstance and in accordance with the standards set out for prisoners of war [footnote 23 to the text adds: “Note that detainees are not considered to be “prisoners of war” and that the term is used only to describe the level and nature of treatment detainees will be afforded.”] in the Third Geneva Convention;
b. Afghan authorities, in exercising sovereignty over their own territory, should have the ultimate responsibility for detainees transferred and held within Afghanistan.
The agreement acknowledges the right of the International Committee of the Red Cross (ICRC) to visit detainees at any time during their custody and an obligation for both parties to notify the ICRC upon transferring a detainee, in accordance with their obligations pursuant to international law. It also establishes a commitment that persons transferred from the Canadian Forces to Afghan authorities will not be subject to the application of the death penalty. Finally, it features recognition, by both parties, of the legitimate role of the Afghan Independent Human Rights Commission (AIHRC) with regard to the treatment of detainees. Canada notifies the ICRC in a timely manner each time a detainee transfer occurs and Canada also notifies ISAF of any detainees transferred. The information shared with NATO is similar to that provided to the ICRC.
Professor Michael Byers … also appeared before us on 11 December 2006, and expressed strong concern that the transfer agreement was not as robust as it could be. He, like Mr. Alex Neve of Amnesty International Canada was deeply concerned that when the Canadian Forces transfer a prisoner into Afghan custody, torture or ill treatment by Afghan police will occur. They felt that the transfer agreement was not sufficient to prohibit such abuse and that it therefore left Canada and Canadian Forces personnel liable to be in violation of their international human rights obligations.
Professor Byers, cited the detainee transfer agreement between the Netherlands and Afghanistan as a good model, suggested a number of amendments be made to strengthen the transfer agreement. First, he wants Canada to insist on a right to conduct follow-up checks on detainees transferred to Afghan authorities. Second, in addition to ensuring that the death penalty is not applied to any transferred detainees, Canada should also insist that no transferred detainees are sent to any third country. Finally, Professor Byers thinks the agreement ought to be elevated to the status of a legally binding undertaking, so that Afghanistan can be held to account if they violate any aspect of international law.
Being sensitive to the debate surrounding the handling of detainees, Canadian military leaders in Afghanistan worked to ensure this issue was being handled appropriately. A Canadian Press article described how Brigadier-General Tim Grant, the Commander of JTF-Afg, reached an agreement with the Kandahar office of the AIHRC, to have the AIHRC act as watchdog for detainees captured by Canadians to ensure that valid complaints of abuse are investigated.
Nonetheless, there was continuing concern over the transfer of detainees to Afghan security authorities. The Minister of National Defence subsequently visited Kandahar to discuss the details of detainee transfer and the role of AIHRC in monitoring the subsequent treatment of detainees held in Afghan prisons. Minister O’Connor returned to Canada and confirmed that the AIHRC will monitor the treatment of detainees transferred by Canada to Afghan authorities.
On May 3, 2007, the government went one step further and signed a supplemental arrangement between the government of Canada and the Afghan Ministry of Defence, in which both parties agreed to additional and more stringent criteria for the treatment, supervision and access to detainees in Afghan prisons. This supplemental arrangement addresses the major concerns voiced in previous testimony and, in fact, is now being held up as the best arrangement of its kind in Afghanistan. In combination, the two Canadian-Afghan arrangements on detainee transfer are being touted as an example for all other national contingents.
However, one preferred step remains and that would be to have NATO ISAF develop a common detainee transfer arrangement between ISAF and the Government of Afghanistan, so that all detainees are handled and transferred in a consistent manner and common expectations of follow-up are known and understood by all parties.
The government should attempt to convince NATO to establish a general arrangement with the Government of Afghanistan to ensure the consistent treatment of detainees, but in the meantime, the Government of Canada should ensure that, in all combined operations conducted by Canadian and Afghan military and/or police forces, all detainees captured by Canadian Forces are treated in accordance with the December 18, 2005 and May 3, 2007 arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan in the spirit of the Geneva Conventions and the Convention against Torture
[emphasis in original]
In 2011, in an address to the House of Commons on the situation in Libya, Canada’s Minister of Foreign Affairs stated:
Canada has been vocal in condemning the targeting of civilians by the Qadhafi regime, and the impact of that regime’s actions on the hundreds of thousands of people who have been trapped in Libya or forced to flee its borders … In the face of this blatant disregard for both human rights and international law, Canada has demanded that the regime halt its attacks against its own people and that perpetrators of crimes are brought to justice. We have been particularly disgusted by abhorrent reports [of] torture and sexual violence as weapons against the Libyan population. Such actions are international crimes and may be war crimes or crimes against humanity. Canada calls for a full and impartial investigation of these allegations so that the perpetrators can be brought to justice.
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
The CAHWCA [the 2000 Crimes Against Humanity and War Crimes Act] criminalizes torture as an underlying offence for crimes against humanity and war crimes committed either inside or outside Canada, as provided in sections 4(3) and 6(3) of the CAHWCA. The CAHWCA also criminalizes cruel, inhumane or degrading treatment, as such conduct may constitute a crime against humanity (which includes “other inhumane acts”) or a war crime (which includes inhuman treatment or wilfully causing great suffering, or serious injury to body or health, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; committing outrages upon personal dignity, in particular humiliating and degrading treatment are war crimes).