Archived—Part II (Report): Canadian Forces Operations in Afghanistan 2006—Board of Inquiry into In-theatre Handling of Detainees

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Foreword

1.  This part of the report presents the context leading up to the series of events on April 6/7 2006 that caused this Board to be convened, and provides a detailed description of the handling and processing of the three Detainees.  It relates the complete story of how the three Detainees were captured and processed within the context of CF operations in Afghanistan during the first rotation of the CF in Kandahar, noting that this event was amongst the first in which detainees were “processed” through a “transfer facility” at the new Canadian base at Kandahar Air Field (KAF).  It was also the first time detainees had                                                                                                                The report has been prepared using the full range of information available to the Board; however, only unclassified information is actually presented in this part so as to facilitate its distribution to the widest possible audience.

2.  It is important to note that the Canadian Government, through efforts by the CF National Investigative Service (CFNIS), attempted to locate the three Detainees once they launched their investigation.  After several attempts by CFNIS, in coordination with local authorities, none of the Detainees were located.  The Board concluded for its own purposes that the Detainees were therefore unavailable to testify.  The Board did receive some written evidence to support that at least one of the three Detainees was a member of the Taliban; however, in the final analysis, the Board was unable to conclude whether or not the Detainees were in fact insurgents. [1] 

3.  In so far as possible, the events are laid out chronologically.  An individual who reads only the narrative found in Part II will have all the information necessary to understand what happened to the three Detainees while they were under the care and control of Canadians.

4.  Part III of this report, on the other hand, is written to respond directly to the specific findings the Board was asked to make.  As a result, it includes information and operational details that require a security classification of SECRET.  Although specific findings are presented chronologically, the overall flow follows the format of the Convening Order.

Chapter 1 - The Context

Section 1 – Operational Context

Introduction

5.  Afghanistan is about as far from Canada as one can possibly imagine, by whatever standard one might choose – be it physical environment, historical underpinnings, social structure, or national culture.  Not surprisingly then, combat experience for CF in the Afghan theatre of operations has been extremely complex and often harsh.  This direct combat action amounts to the first major ground operation by conventional CF since the Korean War of the early 1950s, and for the special forces of the recently re-formed Canadian Special Operations Force Command (CANSOFCOM), one must go back to the Second World War for a precedent.  Further, the fighting unfolded against a dramatic change of operational context through the year of 2005.  Initially the primary focus for Canadians was largely on rebuilding Afghanistan with the majority of the CF located in Kabul.  In late 2005, the mission evolved into a greater security role with the emphasis on a more robust war-fighting mission in the inhospitable surroundings of Kandahar province.  This environment of contextual change and the onset of sustained contact with the enemy provided the stage on which the issue of detainee handling played out.  Detainee handling was certainly not the only concern facing commanders and members of the CF.  The context within which the CF were operating in 2006 will be established in this section.

Strategic Level Context

6.  The major shifts in policy and command arrangements at the strategic and national level throughout this period are fundamental to understanding the context within which the incident of 6/7 April 2006 transpired.  The CF have been involved in two principal operations in Afghanistan since the terrorist attack on the United States on 11 September 2001 ushered in a new era in defence and security concerns.  The first CF involvement was in support of the US led “Campaign Against Terrorism”, known as Operation ENDURING FREEDOM (OEF). [2] The initial Canadian contribution to OEF in October 2001 was designated nationally as Operation APOLLO, and lasted until October 2003. [3] However, support to OEF continued after Operation APOLLO terminated,                                                                                                                                                                                                                                                                                                                                                                                                   . [4]  The Canadian                                contribution to the US led Campaign Against Terrorism was designated Operation ARCHER. [5]  Operation ATHENA, the ongoing Canadian operational commitment in Afghanistan and part of the International Security Assistance Force (ISAF), commenced in August 2003. [6] 

7.  Very early on it was recognised that the handling of individuals that were detained by the CF in the course of conducting operations would be very important.  The CDS                                                                                                                                                       . [7] That conclusion was briefed to command staffs and understood down the chain of command: “in terms of intent, clearly understood up and down the chain of command right down to certainly the sub-unit [Company] level.” [8] 

8.  However, at the national level, the detainee handling policy was not solely within the military purview to develop, nor were military priorities the only ones to be addressed.  The articulation of a comprehensive detainee policy to provide guidance on how CF members were to conduct detainee-handling operations was a lengthy process involving wide-ranging consultation and cooperation at both the national and international level.  At the highest levels within Canada,                                                                                                                                                                                                                                                                                                                                                                                                [9] The development of detainee policy incorporated the requirements of several other departments, such as the Department of Foreign Affairs and International Trade (DFAIT), and those departments influenced the process. [10] As a result, development of the policy involved major interdepartmental effort and took significant time. [11] 

9.  Another important factor influencing how the CF operated at the strategic level was the evolution of the arrangements of higher command of the CF in this period.  At the strategic level, a major transformation of the command and control structure was implemented on 1 February 2006, designed to put the organisation on a more command-centric footing.

So whereas we had a Deputy Chief of Defence Staff under the Chief who was, I will call it a de facto Commander, being responsible for overseas operations, this Chief of Defence Staff took a different tack and decided to move out of the staff-centred environment and create commands, Commanders responsible to him as the Commander of the Canadian Forces. [12] 

For expeditionary or off shore operations, that command responsibility was assigned to the Canadian Expeditionary Force Command (CEFCOM), physically situated in an east end Ottawa location separate from the main downtown National Defence Headquarters (NDHQ) building.

10.  During April 2006 CEFCOM headquarters did not yet have a round-the-clock capability in their operations centre, and according to the Commander of CEFCOM, this had a negative impact on situational awareness. [13]  That remained the case for several months, until the summer of 2006 when the operational commands were able to establish operations centres with round-the-clock capability. [14]

Operational Level Context

11.  There was also a significant and ambitious change in scope at the operational level during the timeframe mentioned above.  On 1 February 2006 four new operational level commands stood up.  Simultaneously, the DCDS organization was being pared down to enable the new commands to organize and prepare.  The newly appointed Commander of CEFCOM described it,

There was an interesting and awkward, I suppose, dynamic at play in the sense that prior to the 1st of February all the direction went to the DCDS … CEFCOM was not in that loop, so the detailed force generation and force employment direction went from CDS/DCDS to the force generators, with CLS [Chief of the Land Staff] being the principal for[ce] generator [for Task Force Afghanistan]. [15] 

12.  CEFCOM officially stood up on 1 February 2006, although, as early as 12 September 2005, LGen Gauthier had the former DCDS staff carry out CEFCOM staff duties as they prepared for the transition to be CEFCOM staff. [16]  Commander CEFCOM engaged about mid-January. [17] Continuity was not a great concern because “… virtually all of the [senior] operational staff stayed the same as we made the transition from the DCDS Group to CEFCOM.” [18] The transition from the traditional DCDS organization in NDHQ to a new organization in a separate location was not without challenges however. Situational awareness of the operation on the ground was a concern initially for CEFCOM:

The one gap in that effectively, the one area where there was perhaps some discontinuity, was in the situational awareness framework that we developed because we went from a situation where we had NDCC [National Defence Command Centre] and the regional desk officers all part of one organization, to a situation where NDCC stayed in National Defence Headquarters, reporting to the Strategic Joint Staff.  I had to build my own J3 Ops [Centre] staff, new staff who had not been involved in the mission to give me the more immediate support that I required.  That evolved into a Command Centre, CEFCOM Command Centre, that eventually, by about the June or July [2006] timeframe we made the decision that it had to go 24/7. [19]

There was a requirement to accept a level of risk to run an operational level command with awkward, dislocated linkages to the traditional staff construct at the NDCC. [20] The Commander of CEFCOM found that this was not always smooth in the early days of transformation, but “… we decided to accept some risk by having the common operations centre effectively sitting in the National Defence Command [National Defence Command Centre (NDCC)], that being the common ops centre at 101 Colonel By… ” [21]

13.  As seen from the tactical level in-theatre, the transition was obvious but not problematic:

… CEFCOM was just feeling its way at that particular point and having to solidify its processes or even information requirements ….  And over the course of the month from 1 Feb to 1 March [2006] you could see that occurring. But during that one month we did fulfil that exact function, and that was that stability piece.  So my impression of CEFCOM at that point was someone to help as they stood up, as arrogant as that might seem.  But that's where we were at the time. We were the ones on the ground that knew the most.  We were into month seven at that point. [22]

14.  Superimposed on a fledgling command organization were frequent episodes of combat action that ensued over the early months of 2006.  “March 29th Private Robert Costall was killed in the first significant fire fight that we were involved in … complicated by the fact that it was apparently a friendly fire incident.” [23] Not long after this incident, in early April 2006, the Canadians were

… conducting operations in another province with lots of bad guys around, conducting interesting operations that demanded our attention at the same time                                                                . The 22nd of April we had an IED [improvised explosive device] attack that killed four of our soldiers … so I can assure you that within a few days of these detainees being taken [on 6/7 April 2006] the fact of those detainees being taken was overshadowed by so many other things operationally which are – not to make excuses at all … it’s just detainees were not the preoccupation of the day, they were a preoccupation during the timeframe because we wanted to make sure we got it right.  But the op tempo at the tactical level up to the theatre level, up to General Fraser’s level, doing both multinational command and national command at the same time, up to us, was unlike anything I have experienced in my career so far. [24]

15.  Brigadier General David Fraser, the Canadian Commander of Task Force Afghanistan, upon his arrival in theatre in February 2006, was responsible for two positions,

I was Task Force Afghanistan Commander with [my] Canadian hat on.  I was Commander Task Force Aegis, which was the name given under Operation ENDURING FREEDOM; and Commander Regional Command South, which was the name as part of ISAF [after 31 July 2006]. The responsibilities didn't change. Just the name that was given to me changed. [25]

In theatre, at the operational level of command, the CF transformation-driven changes in command and control had significant impact:

… April ‘06 timeframe, what you would have effectively had is an                                                      … with the folks at KAF [Kandahar Airfield] not really having a lot of visibility [into the operation] until the point where it was determined that there were detainees. [26] 

16.  The command relationship between Fraser and             continued to mature after Fraser assumed command on 1 March 2006, the point at which all CF in the Afghanistan theatre came under one national commander.  The                                                                                                                                                                                                                                                                . [27]

17.  From a command and control perspective, Fraser also found that the traditional relationships did not work very well in a multi-national environment, and he needed to improvise: “I applied a command[-]centric supporting/supported relationship … It is not a formalized command and control relationship.” [28] Under this developing concept, the “supported” commander is the one conducting a mission, while the “supporting” commander provides him with assets and assistance.  With this arrangement, commanders are able to apply pooled resources to complex and onerous missions quickly and efficiently. [29] It was apparent that command adaptability was a requirement in the Afghanistan battle space.

Tactical Level Context

18.  In early 2005 there was a concerted effort by Canadian                       forces to broaden the reconstruction mission of Operation ATHENA beyond Kabul, using Provincial Reconstruction Teams and other assets in cooperation with the Afghan authorities. [30] The final months of 2005 saw a mission, coordinated by Colonel Steve Noonan, the Task Force Commander for Op ATHENA Roto 4, “to concentrate the Canadian flag at the tactical level in Kandahar.” [31] This mission involved a complex four-phase migration of                                                            [32]                                                                                                                                                                                                                                                                                                                                                                       The goal here was to disrupt enemy plans and destabilize their capability in that region. [33] 

19.  Once the                       forces had migrated to Kandahar in late 2005, the tactical scenario worsened.  A suicide bomber killed diplomat Glyn Berry in January 2006, leading                                                                                                                                                                           [34]                                                                                         , who at that point was back in Ottawa monitoring the situation:

Around April/May timeframe the Taliban started to surge.  There were indications of large Taliban forces moving into the area, taking control of many of the outlying districts in Helmand province and Kandahar... [35] 

20.  Attacks on Canadian forward operating bases were routine in this period and there were indications that the Taliban might strike Kandahar City by way of the Panjwayi area. [36] By the end of May, Coalition Special Forces were conducting operations in Southern Afghanistan to alleviate the enemy pressure.

But at that time the situation was pretty bleak. Taliban forces were still surging.  … they had defeated the ANA [Afghan National Army] decisively on a couple of occasions and there were wide-ranging suicide bombings and IED [improvised explosive devices] attacks almost on a daily basis. [37]

21.  At the same time, Canadian                       forces were routinely operating hundreds of kilometres from Kandahar City.  They pushed out into the remote areas of Kandahar Province and carried out operations in austere settings. [38] Much more than sixty to sixty-five percent of the time was spent in the field in intense operations while portions of the Battle Group were widely dispersed and decentralized.

…  So I wanted you to get a feel for the fact that we were not doing deliberate battle procedure in a contained, safe environment.                                                                                                                        We had difficulty in using paperwork.  …Most of the sub-unit personnel would                                                                                                                                                                                                                               . They were even worse.  They really lived out there.  They maybe showered three times in the whole period. [39]

22.  The communications between field and HQ in TFA, [40] as well as the linkage between TFA and Canada were often constrained by                                                                                                                           [41]  This would have the effect of slowing down the passage of important information between levels of command.  It could take several hours to pass detainee documentation from Afghanistan to NDHQ in the 2006-2007 timeframe. [42]

Summary

23.  Afghanistan has been a complex operating environment for the Canadian military, and overall, as a theatre of operations it was an intense combat experience for Canadian troops.  Detainee handling was a major strategic issue that was understood throughout the chain of command.  Evolving command and control relationships triggered by the CF transformation initiative created a command environment characterised by change, adjustment and adaptation.

Section 2 – Command Perspective on the Conduct of Combat Operations

24.  In Part I, the protocol of Rotations or “Roto” was highlighted as a somewhat obscure military method of accounting for the series of Battle Groups that deploy to a theatre over time.  The “Afghanistan Timeline” in the tables below will assist the reader in understanding the rather complex movement of conventional military forces in and out of the Afghanistan theatre between 2005, when training first started for the first rotation, and late-2008 when the Board completed its deliberations.

25.  The first timeline table covers the period from 2005, through the Detainee incident of April 6/7 2006 to mid-2007; the second timeline table covers the period from mid-2007 to early 2009.  The initial deployment of a Battle Group to an area of operations is referred to as Roto 0. A Roto 0 can occur when the mission changes, such as the move from Kabul to Kandahar which was necessitated by the Government decision to fundamentally change the mission of the CF from stability operations in Op ATHENA to combat operations in Task Force Afghanistan in late 2005.  Deployments normally last six months for the conventional forces, and then another Battle Group replaces them (a process referred to as a Relief in Place or RIP providing an unbroken presence on the ground).  The first rotation, or Roto 1, is thus actually the second Battle Group to deploy.In the first table, the timeline is displayed horizontally across the top and the bottom of the table.  The two large green arrows in the upper portion of the table designate the two conventional force operations that were taking place in this period.

AFGHANISTAN TIMELINE

Figure 1 - Battle Group Operations in Afghanistan (Op ATHENA, Op ARCHER)

Figure 1 - Battle Group Operations in Afghanistan (Op ATHENA, Op ARCHER)

26.  Below these operations, it can be seen that Roto 0 of Op ARCHER occurs on the Mission line (MSN) and is coloured light yellow (ATHENA R4 / TFA R0).  Roto 1 (TFA R1) follows in light blue (1 PPCLI BG), then Roto 2 (JTF-AFG R2) in red (1 RCR BG), and then Roto 3 (JTF-AFG R3) in light green (2RCR BG).  The Task Force Commander’s names are displayed above the Battle Group Rotos on the Mission line.  Below the Mission line, one sees certain key events (like the move from Kabul to Kandahar) and below that are the various iterations of the Theatre Standing Order (TSO) in a line named “Orders and Direction for Detainee Handling.”

Figure 2 - Battle Group Operations in Afghanistan (Op ATHENA) to present

Figure 2 - Battle Group Operations in Afghanistan (Op ATHENA) to present

The second timeline table (Figure 2) continues the Op ATHENA, Command, Mission, and Orders and Directives – Detainee Handling lines forward to December 2008 when the Board finished its deliberations.

27.  Colonel Steve Noonan, the Commander of Op ATHENA Roto 4 (consult Figure 1, Mission line, light yellow box “ATHENA R4/TFA R0) based in Kabul, was informed of his impending command tour on 25 February 2005 [43] and took command on 3 August 2005. [44]  His command eventually grew to include other Canadian elements in theatre as well as the Armoured Surveillance Squadron that constituted the bulk of the Canadian contribution to ISAF under Op ATHENA:

At about end March of that year [2005] it was very clear to me whether the decision was made or not that we were going to unify [the] command and control construct, where we would form a Task Force Afghanistan rather than a Task Force Kabul, and under my command national command would include the Provincial Reconstruction Team and the Strategic Advisory Team, in addition to the already committed forces to ISAF based on the Recce Squadron.  So that one was probably of some significance as we came to grips with how we wanted command and control activities in Afghanistan from about August onwards; so a unified command and control system. [45] 

By the time Noonan passed command to his successor on 1 March 2006, Op ATHENA Roto 4 had transitioned to Task Force Afghanistan (TFA) Roto 0 based largely in Kandahar. [46] 

28.  In July 2005, as Noonan was about to deploy, his outgoing briefing with the CDS, General Hillier, contained the following direction:

“… you have a significant freedom of action, notwithstanding the fact that you still have a responsibility to give a common operating picture from the tactical to the strategic and come back to me on any of those major issues that you do not feel you have enough authority or flexibility to conduct operations.  ”So to me I felt, first of all, I was going in the right direction; but secondly that we were starting to set the conditions that through the strategic environment we wanted to set for subsequent rotations in a more hostile environment. [47]

29.  While initially, the full extent of Noonan’s command was undefined, it was the CDS’ intent that all CF units in Afghanistan would eventually come under his command[48] to create “…a unified command and control system” [49] under TFA.This would expand Noonan’s command for the purposes of national oversight, tasking, and other administrative matters as the Commander TFA vice Task Force Kabul. [50]  This command, which was to include the Provincial Reconstruction Team (PRT) and the Strategic Advisory Team (SAT),                                              , [51] was designed to achieve the Commander’s intent of preparing the CF for the heavy combat operations to come. Noonan clearly understood his mission: “… the mission statement of our rotation was to set the conditions for a successful Roto 1”. [52]

30.  The reality for Noonan was that CF elements under his command would be operating under two different sets of Rules of Engagement (ROE) for a period of time as illustrated in Figure 1 at the beginning of this section,

So Op ATHENA, Op ARCHER, Task Force Kabul operating from the time they entered theatre to the end of elections, plus 30 days, they would be operating under essentially the ISAF ROE if they were conducting operations in support of ISAF.  And the Provincial Reconstruction Team operating under Op ARCHER ROE in support of OEF mandate … [53]

The ROE for the two Operations could be complex when they had to be used together.  There were “A couple of sets of ROEs.  A continuing dynamic where the decision on how we were going to handle detainees in the fullest detail had not yet been made.” [54] 

31.  It was clear to Noonan that the CF were not going to be establishing permanent detention facilities in Afghanistan [55] and that eventually the Canadian policy would have detainees being transferred to US or Afghan authorities.  However, during his command he did not anticipate an issue with detainees as his troops were largely in a defensive posture and not likely to have to deal with a large number of detainees, if at all. [56]

Op ARCHER – Roto 1 Preparation to Deploy

32.  BGen Dave Fraser was aware as early as June 2005, [57] when he took over command of the First Canadian Mechanized Brigade Group (1CMBG) in Edmonton, that, in addition to preparing his Brigade Group Headquarters, he was also to generate and deploy a Battle Group [58] to Afghanistan.  There were challenges during the training phase due to the requirement to train his deploying Brigade Headquarters while at the same time preparing the 1 PPCLI Battle Group,

I was responsible for Force generating and training my own Brigade Headquarters, responsible for generating and training 1PPCLI Battle Group; and also for doing operational planning for the actual mission in theatre. [59] 

The training was accomplished, with a significant focus on detainees, [60] and will be described in more detail later in this chapter.  At this early stage in bringing a Battle Group together for collective training, there were challenges in achieving 100 per cent inclusion of specialists in the field exercises in which collective training took place.  In particular, the General Support Platoon of the Military Police (GS MP), a TFA-level asset responsible for the handling of detainees once they arrived at KAF, [61] was not included in collective training exercises at Wainwright with the Battle Group. [62]  The collective training for the Battle Group took place in Wainwright in November 2005 in what was called the Brigade Training Event (BTE). [63] The Warning Order for the Roto 1 GS MP Platoon was issued on 5 October 2005, the final strategic recce took place on 3 November, and the two periods of individual training took place in December and January. [64]

Op ARCHER – Roto 1 in Theatre (Mar – Nov 2006)

33.  When BGen Fraser deployed into theatre in February 2006 to replace Col Noonan, he assumed two separate responsibilities: he was the Canadian Commander of Task Force Afghanistan; [65] and Commander of Task Force AEGIS under OEF [66] becoming Commander of Regional Command South (RC (S)) under the ISAF mandate. [67]  Upon assuming command on 1 March 2006 as Commander of Task Force Afghanistan,                                                                                                                                                                                                                                                                                                                        [68]                                                                                                                                                        , to deploy or reassign them as necessary, and to retain or delegate operational control – operational control being that level of command that allows the designated commander to use the specified resources only for the purposes for which they are intended.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       , [69] 

34.  When he first arrived in theatre in February 2006, Fraser’s initial national reporting chain was to the DCDS, with a shadow reporting responsibility to the newly forming CEFCOM. [70] On 1 March 2006, when he formally stood up his command in theatre, he began reporting to the Commander of CEFCOM. [71]  While there were no serious issues with working with a new headquarters, there were some frictions:

… CEFCOM, when they first stood up, they didn’t have a 24- and- 7 operation that worked on the weekend.  We would go back [report] to the NDCC.We tried that for a while and we went back to CEFCOM saying that doesn’t work.  You lose too much in the handover from a duty officer. And we didn’t work on days of the week.  I had no idea what the day of the week was until the 6th of November when I got home. … CEFCOM went through their normal evolution of standing up at [a] Headquarters … they started off small and they jumped into a full spectrum operation that was going full tilt. They did as good as they could. [72]

                                                                                                                         

35.                                                                                                                                                    , the command of the Task Force was under Canadian authority, exercised through the DCDS and the CDS. [73]                                                                                                   [74]                                                                                                                                                                                      .  This arrangement allowed the Canadian capability to integrate with allied                                 efforts under OEF, while remaining under direct Canadian oversight, with roles and missions in line with Canadian direction.

Special Operations Force (SOF) - Post-Transformation Chain Of Command

36.  An integral part of the February 2006 transformation of the CF was the creation of the CANSOFCOM, an organisation designed to be capable of responding to terrorism and threats to Canadians and Canadian interests around the world through the use of special operations capabilities. [75]

37. On 1 August 2006, CF                     forces in Afghanistan switched from the US-led OEF to NATO-led ISAF command.                                                                                                                                                                               . [76]

Op ARCHER – Detainee-Related Orders

38.  Fraser arrived in theatre on 13 February 2006, and took command on 1 March.  At that time, he assumed responsibility for an “interim” Theatre Standing Order (TSO) from Noonan that provided Standard Operating Procedures (SOPs) for the handling and processing of detainees.  “I had an interim TSO that Steve Noonan had worked on, and I adopted that interim TSO.  That remained extant throughout the time I was there.” [77]  From the Commander’s perspective, the interim designation did not affect the authority of the order itself, and his subordinates followed it “absolutely.” [78]  However, the TSO did stay in its “interim” state for the duration of his tour “… because CEFCOM never approved it … I never did get final approval from CEFCOM.” [79] 

Commanding Officer’s Perspective, Op ARCHER Roto 1 – 1 PPCLI Battle Group (January – August 2006)

39.  Lieutenant Colonel Ian Hope was the 1 PPCLI Battle Group Commanding Officer (CO) that deployed into theatre in January 2006 and eventually came under Fraser’s command. [80]  Hope was also commanding Task Force ORION, which included CF elements beyond the Battle Group. [81]  Task Force ORION assumed responsibilities for the Kandahar area of operations from the US forces on 19 February 2006. [82]  

40.  There were a number of issues that complicated Hope’s job as a commander.When the Battle Group first arrived in Afghanistan in January 2006, the Canadian mission was still in transition from the move down from Kabul, equipment was still arriving and even sleeping quarters were in short supply: “There was actually no place to sleep when we arrived.” [83]  Nonetheless, the Battle Group was able to get some in-theatre detainee handling accomplished: “The military policemen taught our NCOs [non-commissioned officers] and soldiers how to do the detainee procedures, which I was very comfortable with.” [84] 

41.  Other areas of training were a concern for Hope. Going into Afghanistan, although he was very comfortable with the level of skills in the use of force training and detainee handling that his Battle Group possessed, [85] he felt that a number of specific fighting skills were lacking.  For example:

I was not comfortable … [that] our fighting skills were there.  There were some deltas.  … We did not have night fighting skills.  That worried me. Our first aid deltas were tremendous.  That worried me.  Our mountain skills were rudimentary.  That worried me.  We had very thin logistics.  …we didn’t train enough for vehicle recovery under fire, for hauling vehicles on low beds, these kinds of things. [86]

42.   Despite these concerns with respect to fighting-skills training, the Battle Group continued to prepare for detainee handling:

We also trained on detainee handling to keep the skills alive.  We didn’t change much but we added a few things. We added rubber gloves.  We got more specific kit for detainees:                                                                                                                                                                                                                                                                               so that they were still comfortable when you wore them if you had to use them on a detainee.  But our main focus was on the battle skills in that period. [87]

43.   Another issue was the challenge stemming from the vast distances over which his Battle Group was spread, resulting in a very decentralised command structure: [88]

We operated hundreds of kilometres from Kandahar Airfield routinely.  We did not conduct operations out of Kandahar Airfield.  Early in the process we pushed out of the Airfield and lived in some of the remote areas of Kandahar Province and did our battle procedure and operations from those remote areas.  They were not forward operating bases.  The soldiers lived out of the LAVs [Light Armoured Vehicles] in austere covers and legers [leaguers – an army term used to describe a defensive position of armoured vehicles for replenishment]. …                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    . [89]

44.  When operations were conducted outside the area of the main Kandahar Airfield (KAF), it became very difficult for the Task Force units to receive documents that contained a large volume of paper – such as SOPs:

We had already commenced operations and therefore the transmissions of large paper copies of all the SOPs was impractical out of the [outside] the wire.  … But I was satisfied... that the requirements of that SOP were being transmitted through the orders process. [90]

45.   Uncertainty is the word that best describes the overall operational environment in which Hope operated: “There was no certainty of what was going to happen in the next 24 hours.  We very seldom had battle procedure … we had to adapt so quickly.  Flexibility in our thinking was paramount.” [91]  Nonetheless, as a CO, Hope was confident in the professionalism of his subordinates, even in the dispersed and fluid environment in which they operated:

During the period, though, I was very comfortable that the soldiers were policing themselves well.  … We did a lot of training in leadership, a lot of training of what would be called values training before we went.  So I was quite comfortable with the Platoon Commander being 200 kilometres away doing the right thing. [92]

46.   In the estimation of the CO, Task Force ORION posted a number of significant statistics:

I am very proud of the accomplishments of Task Force Orion.  In the period January to August 2006 that task force clocked up almost two million kilometres of operational mileage on our vehicles.  They fought over 50 intensive firefights with Taliban forces; 100 encounters with Taliban forces, but the 50 intensive fights were ones that included indirect fire, aviation support, close air support, use of all kinds of enablers and ground manoeuvre.  And in all of those firefights not one civilian casualty occurred, not one wounded or killed.  I’m very proud of that. [93]

                                                                                                                                             

47.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          , and espousal of the principle of minimum force, Special Forces training aims to infuse the fundamental tenets of the Geneva Convention and military doctrine for detainee handling into the development of Special Forces members at all levels. [94] 

48.   While the Canadian Government and the Department of National Defence spent more and more time developing CANSOF to meet modern challenges, it was not until early 2002 when it was involved in the capture of Taliban and Al Qaeda insurgents in Afghanistan as part of the coalition campaign against terrorism that the Canadian public en masse understood that Canada was deeply involved in a non-conventional conflict which included detainee handling.  The public and political reaction to the media coverage of CANSOF soldiers marching handcuffed Al Qaeda prisoners off an aircraft was no less than one of profound shock. [95]  And yet, once the political furor abated, public understanding of the new combined defence and security paradigm, which necessitated the ongoing utilization of a Canadian special operations capability, became widespread and was generally acknowledged, as necessary. [96]

CANSOF Employment - Post 2002

49.  The Government of Canada authorized another deployment to Afghanistan of a CANSOF contingent in June 2005. [97] The mission of                                                         was to conduct NATO combat operations against the Al Qaeda and Taliban primarily through                        operations – this would assuredly involve capturing, handling, and transferring detainees. [98]

50.                                                             , government officials attempted to work out detainee handling arrangements with both the American and Afghanistan governments in anticipation of the deployment of                                  to the south – but there were challenges and delays. [99] Thus,                                                                                                                                                                           there was a period of six months while detainee handling and transfer policy options were being explored.  While separate written agreements with the US and Afghanistan were being pursued, decisions concerning detainee handling and the options for its end-state after transfer were left to the commanders at the tactical level. [100] It was clear that the first period of         activity would be underlined by the necessity for adaptability and flexibility.

51.  Over the deployment,                                                      captured a number of detainees during extremely robust combat operations.  All of these detainees were immediately extracted from the operational area, treated if necessary for medical issues at KAF in the US hospital facility, and then transferred to US Forces. [101]

52.                                                                                                                                                                                          , was aware of verbal direction from superior headquarters that ordered commanders to transfer detainees “as far forward as possible.”  [102] He took this to mean “trying to effect transfer to the Afghan authorities as early and as far forward as possible.”  In the majority of the detainee cases that he had to deal with, detainees were handed directly to Afghan security forces on the objective. [103]  He stipulated that if his soldiers were in hostile territory, and there were no known                    Afghan authorities with the capacity to accept and transport detainees that had been designated for transfer, it was not practical in his view to turn them over to the Afghan authorities directly.                                                                                                                                                                                                                                                                                                                                            [104]                                                                                                                                                .

Summary

53.   CF,                                                                                                                                               , employed on operations in Afghanistan remained under Canadian operational command at all times.  The Commanders’ perspectives of both Canadian conventional forces and CANSOF indicate that operations in Afghanistan in late 2005 and early 2006 were carried out in an extremely complex battlespace in which the ability to change and adapt was key to success.  The enemy threat was high and the conditions of the southern Afghanistan countryside were a challenge.  At the same time, significant changes to organization and command and control were taking place at the operational and strategic levels.  Finally, the actual changes to national policy, particularly concerning detainee handling and transfer, added a new level of complexity and importance on the administrative side of a long-practiced procedure in detainee handling.

Section 3 – Legal Framework

Introduction

54.  When the CF participate in armed conflict, either alone or in concert with other nations as part of an alliance or coalition, a legal framework with national and international aspects as appropriate guides that participation.  That framework is shaped also by a nation’s experience – and for Canada much of that experience has come largely from traditional state-on-state warfare.  For nations such as Canada with longstanding democratic traditions, this framework continues to apply in Afghanistan, even though the conflict there involves opponents not normally recognized as lawful combatants under the laws of armed conflict.  This chapter describes the international and legal framework within which the CF was operating in Afghanistan.

International Framework

55.  The laws and customs of the conduct of armed conflict share origins as ancient as the hostilities they govern.  It was only as late as the 19th century, however, that in response to the casualties on the bloody battlefields of Solferino a relief organization was founded that would become the International Committee of the Red Cross (ICRC). [105]  The ICRC would go on to assist nations in reaching agreement to codify the protection of those individuals who were ‘hors de combat’ in the First Geneva Convention. [106]  In the following years the law of armed conflict grew and further agreements were enshrined in subsequent treaties providing protections under additional circumstances, notably the Third Geneva Convention on the treatment of Prisoners of War. [107]

56.  Following the Second World War, new organizations were created to contribute to peace and stability, and to respond to new threats and armed conflict within the bounds of international humanitarian law, including the Geneva Conventions.  Among these were the United Nations (UN) [108] and the North Atlantic Treaty Organization (NATO). [109] The UN Charter provided that the UN Security Council could determine the existence of a ‘threat to the peace’ and to decide upon measures to “restore international peace and stability.” [110]  The UN Charter also recognizes in Article 51 that member states retain the “inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN.” [111]  NATO may undertake to impose settlement of disputes as set forth in the UN Charter, [112] amplified by Article 5 of the Washington Treaty, whereby NATO members agree that an armed attack against one or more of them shall be considered an attack against them all.  They will still in turn be able to exercise their right of individual or collective self-defence recognized by Article 51 of the UN Charter.

57.  Canada is a member of these organizations, and has passed into domestic law obligations related to international humanitarian law. [113] In addition, the principles of the Third Geneva Convention have been accepted and applied by Canada, even during operations such as the one in Afghanistan.

58.  On 12 September 2001, the day after the terrorist attacks on the United States, the UN Security Council passed a resolution that condemned the previous day’s attacks on the United States, and called upon all states to “work together to bring to justice the perpetrators.” [114] On that same day, the North Atlantic Council met and agreed that “if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty.” [115] The invocation of Article 5 was confirmed officially at a North Atlantic Council Ministerial Meeting on 6 December 2001. [116]

59.  On 7 October 2001, Canadian Prime Minister Jean Chrétien announced that Canada would contribute air, land and sea forces to the international force being formed to participate in what became known as the Campaign Against Terrorism.  The CF Operation APOLLO was the Canadian contribution to the international coalition Operation ENDURING FREEDOM.  This campaign was an international armed conflict, governed by the laws of armed conflict. [117]

60.  On 24 October 2001, Canada informed the UN that it had initiated measures pursuant to Article 51 of the Charter of the UN “following the armed attacks in the US on 11 Sept 2001”.  It advised that it was “taking these measures in exercise of the inherent right of individual and collective self defence” in accordance with Article 51, and further to the “notification” by the Secretary General of NATO to the Secretary General of the UN of the invocation of Article 5 of the Washington Treaty.  The actions were directed against “Osama bin Laden’s al-Qa’ida terrorist organization and the Taliban regime supporting it.” [118]

61.  The UN Security Council recognized the link between terrorism and governance in Afghanistan.  It resolved that in “supporting international efforts to root out terrorism it affirmed that the UN should play a central role in supporting the efforts of the Afghan people to urgently establish a new and transitional administration leading to the formation of a new government.” [119]  On 5 December 2001, the Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (Bonn Agreement) was signed by representatives from Afghanistan, and witnessed by the UN Special Representative of the Secretary General for Afghanistan.  Reaffirming that Afghanistan is a sovereign state, it determined to “end the tragic conflict in Afghanistan and promote national reconciliation, lasting peace, stability and respect for human rights in the country.” [120] Under the Bonn Agreement, Afghanistan had reached out to the international community for help in establishing and training a new Afghan “security and armed force,” the authorization and deployment of a UN “mandated force,” and an International Security Force. [121]

62.  The UN endorsed the Bonn Agreement the next day. [122] On 20 December 2001 the UN Security Council, acting under Chapter VII of the Charter, authorized (as envisaged in Bonn) the establishment of the International Security Assistance Force (ISAF) to assist the Afghan Interim Authority in the maintenance of security in Kabul. [123]

63. ; The Military Technical Agreement between ISAF and the Interim Administration of Afghanistan recognized ISAF as the international force authorized by UNSCR 1386.  The Interim Administration understood and agreed that the ISAF Commander had the authority, without interference or permission, to do all that he judged necessary and proper, including the use of military force, to protect ISAF and its mission. [124] NATO assumed command and control of ISAF on 11 August 2003. [125]

64.  On 1 April 2004 at a conference on Afghanistan in Germany, the participants agreed that:

… while the responsibility for providing security and enforcing law…resides with the Afghans themselves…(ISAF), mandated by the UN-Security Council… and Operation Enduring Freedom…at the request and welcomed by the Afghan Government – will be continued until such time as the new Afghan security and armed forces are sufficiently constituted and operational. [126]

The UN Security Council subsequently endorsed this as the “Berlin Declaration.”  There have been other and subsequent resolutions reaffirming the UN authorization for and support of ISAF and the Bonn process. [127]

65.  Canada is in Afghanistan at the invitation of the Afghan Government, guided by core Canadian values (freedom, democracy, respect for human rights and the rule of law), participating with other coalition partners in the effort to rebuild Afghanistan. [128]

Domestic Framework

66.  In February 2003, in recognition of the evolving request for assistance in Afghanistan, the Government of Canada authorised the CF to participate in the UN-sanctioned but NATO-led ISAF. [129] In support of this mission Canada engaged in Operation ATHENA, the Canadian mission to assist the people of Afghanistan in achieving stability and security.

The result of all this again is that Canadian Forces operations under Op Athena in support of ISAF are conducted with the consent of the Afghan government and, in addition, with the force of Chapter 7 of the UN Charter pursuant to the United Nations Security Council resolutions. [130]

67.  The Government of Canada’s position is that those parts of the Geneva Conventions and additional Protocols related to Prisoners of War are reflective of customary international law, and will apply to the conflict with Al Qaeda and the Taliban, even if they do not apply as a matter of treaty law.  Common Article 3, so called because it appears in Geneva Conventions I - IV, provides the minimum standard of care, stating: 

In the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions…(1) 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…shall in all circumstances be treated humanely…  The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the provisions of the present Convention. [131]

68.  In support of this position, the CDS on behalf of the Government of Canada, entered into an arrangement with the Government of Afghanistan for the transfer of detainees. [132]   This arrangement provides that the participants will treat detainees in accordance with the standards established in the Third Geneva Convention, designed to protect Prisoners of War.

69.  Under the Bonn Agreement, the participants (NATO and Afghanistan) determined that they would “respect human rights”, implicitly acknowledging that there were deficiencies.  There was recognition that Afghanistan had a limited history, capability and capacity for human rights protections as compared to western democracies.  The initial arrangement did not contain an express provision to allow the CF post-transfer access to detainees.  The Supplement to this arrangement, The Arrangement for the Transfer of Detainees Between the Government of Canada and the Government of the Islamic Republic of Afghanistan, subsequently signed on 3 May 2007, contained provisions for post-transfer access. [133]

Summary

70.  Canada is involved in Afghanistan under two separate but compatible and clearly defined international mandates: first as a member of a broad coalition of nations exercising the inherent right of individual and collective self defence, in accordance with Article 51 of the UN Charter, committed to ending the conflict in Afghanistan and promoting national reconciliation, lasting peace, stability and respect for human rights in the country; and second as part of NATO, pursuant to Article 5 of the Washington Treaty with respect to the attack on the United States on 11 September 2001.  In both cases, Canada and the CF have operated within the established international legal framework, which stipulates that any persons detained by CF be treated with the dignity and respect that Canadians themselves would have every right to expect in similar circumstances.

Section 4 – National Policy Development and Impact on the Commanders’ Orders, Directives and Procedures

Introduction

71.  The CF operate within a framework established by national policy. [134] The Department of National Defence (DND) is a key player in developing security policy; however, it is certainly not the only player, nor the most important when it deals with Canadian activities abroad.  Indeed, in developing Canadian government policy on major international initiatives, and specifically with respect to such issues as an agreement detailing detainee transfer to the Afghanistan government, the Department of Foreign Affairs and International Trade (DFAIT) plays a leading role.  In the case of how detainees taken by Canadians were to be transferred to other authorities, the consultative process between other government departments was complex. [135]As described by MGen Daniel Gosselin, Director General International Security Policy:

what may appear to be simple when it comes out in the Task Force Standing Orders, is a result of significant interaction before. [136]

72.  When dealing with how military forces are tactically employed, the CF is the authority, relying upon doctrine, orders and standard operating procedures to guide military activities on the ground, including detainee handling up to the point of transfer.  National policy development goes on above the tactical level and directs it.  This section briefly outlines the national level policy development process and specifically describes how detainee policy evolved.

National Policy Development Process

73.  Within DND, the Assistant Deputy Minister Policy (ADM (Pol)) is mandated “to formulate and manage all aspects of defence policy,” [137] with the Director General International Security Policy (DGISP) providing policy advice for strategic-level issues relating to operations.  DGISP coordinates within DND with the Strategic Joint Staff (SJS) and the policy advisors of the operational commands, specifically CEFCOM, for detainee issues.  Outside DND, DGISP coordinates with DFAIT, the Privy Council Office (PCO) and various other government departments and agencies depending on the specific issue. [138]

74.  External to Canada, DGISP will consult with the Canadian Defence Liaison Staffs in London and Washington, Canadian Defence Attachés, and the Canadian diplomatic missions in Brussels (NATO) and New York (the UN).According to Gosselin, in the case of the Canadian policy on detainees, officials from the Privy Council Office (PCO), DFAIT, DND, and the Department of Justice also participated in the process. [139]

75.  All CF operations are conducted in accordance with Canadian laws and government policy. Government policy guides operational activities as reflected in the CDS directives.  The operational orders and the theatre standing orders for a CF operation will normally refer to documentation approved by the Government . This documentation details the national strategic objectives guiding the operation and provides direction for complex areas of operation such as detainee handling and transfer. [140]

76.  Overall, Gosselin described the decision-making process within the Canadian federal government as one based on consensus, involving all the actors that may contribute to a resolution of an issue or the development of a policy.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         [141]

Detainee Standard Operating Procedures Prior to December 2005

77.  The Canadian detainee policy in effect in April 2006 emanated from the strategic objectives of the government. This policy provided that any persons in the non-consensual custody of CF personnel would be afforded the same treatment as Prisoners of War as stated in the Third Geneva Convention.  Furthermore, the policy identified that the intent was to establish explicit undertakings that detainees transferred by the CF would be afforded treatment consistent with the standards set out in the Third Geneva Convention, regardless of the legal status of those detainees.  The Chief of Defence Staff operations orders and directives, discussed in detail in the classified portion of this report, incorporated this policy, as did follow-on Theatre Standing Orders (TSOs).

78.  The issue of detainees and how they might be handled was a concern in early 2005,                                                                                                              :

One of the points that was identified clearly [early] on was the issue of detainees.  We are going to go there not to hand over leaflets but to carry out kinetic missions and the likelihood of encountering persons that we will have to detain is very high, especially if you design a mission to go capture someone. [142]

79.  One of the first preparatory steps was to review the doctrine and training                                              that might come into contact with detainees.  By July 2005, it was determined that although the doctrine was useful in that it covered general principles from a traditional WW II scenario; it lacked applicability to the type of operations likely to be conducted in Afghanistan:

It was not applicable to our context, especially in a Coalition environment where we know we are just going to have somebody for a few hours at best and transferred to somebody else.  The manual does not answer all of those questions.  But in terms of, yes, you are going to treat them in accordance with Geneva Conventions, yes.  Well, you could take that, cut that, paste that in our document.  So that was the baseline, and then the annexes were adaptations of that manual. So that was the July '05 situation. [143]

The resulting document was Fragmentary Order (FRAG O) 001: [144]

What we had, we had the unit or the task force operational order and various key elements, key issues were fragmentary orders, this one being the first one, okay, "What are we going to do with detainees." [145]

80.  Prior to December 2005 there was significant direction with respect to the treatment of detainees up to the point of transfer, but little written direction on detainee transfer provided to the tactical level.  According to the Commanding Officer of the                               ,

In the absence of any written direction or anything like that, I decided basically that we would stick with the                 … reporting once we have captured this individual, once we have passed him through the process, he is going to be reported to the IRC, to the International Red Cross…. [146]

81.  As a result of training and basic skill sets [147] members of the CF were familiar with the physical aspects of detainee handling.  However, before the national level policy on detainee transfer was fully developed, CF units had been operating on the ground in Afghanistan for several months and were in a position to take detainees as part of those operations.

82.   Col Steve Noonan, the officer designated to take command of Op ATHENA, Roto 4, was aware of the uncertainty surrounding the issue of detainee handling, specifically the transfer of detainees, during his pre-deployment phase: “At that time, which was about May of 2005, there was still some ambiguity as to which way we wanted to go with respect to the handling of detainees.” [148] However, there were some aspects of detainee handling that were clear to him,

So around the May timeframe it was definitely obvious that we weren't going to be in the business of establishing detention facilities and that we were going to enter into some negotiations with either the U.S. authorities or Afghan authorities to effect transfer of detainees. [149]

83.  The Commanding Officer                                           that deployed into theatre in July 2005, was concerned about the detainee handling question as well, and issued an order at the Task Force level to detail the process, [150]

A[n] [order], which was mine, regarding detainees … and dated            [2005], was produced to provide proper guidance to the task force in terms of detainee handling just prior to my declaring OpRed [operational readiness].  I was not comfortable going in declaring myself OpRed without having a proper FRAGO specifically detailing how we would process detainee handling. [151]

84.  As for the MP, the CFPM added an “MP Technical Directive” to the appropriate Annex of the Chief of Defence Staff Operations Order in the summer of 2005. [152]  While technical directives issued by the CFPM focussed primarily on policing duties and procedures (which are outside the mandate of this Board), they also incorporated a section on the soldiering duties which included the procedures of detainee handling.  In September 2005, the J3 MP Technical Directive 01/05 laid out guidance for Detainee Handling in Op ATHENA and Op ARCHER. [153] It was followed by an update focussing specifically on Op ARCHER in mid-March 2006. [154]  This was the MP Technical Directive that was in force on the 6/7 April 2006.

Detainee Standard Operating Procedures – April 2006

85.  Noonan, in theatre from August 2005 until February 2006, acknowledged that the policy guiding the detainee transfer issue remained uncertain from his perspective in May 2005 during pre-deployment training, and stayed that way until after he took command in August 2005,

I believe that the first decision had already been made, and that was that Canadians were not going to process detainees unilaterally as a nation and that the two options that were up for decision was a transfer of detainees to either the Americans or to Afghan authorities. [155]

86.   Similarly, Brigadier General Fraser, Commander Task Force Afghanistan from February until November 2006, described the operational scenario in Afghanistan on his arrival, “The battle space was the most complicated I’ve ever seen in my life.” [156] He identified the Rules of Engagement (ROE) and associated detainee issues as national-level responsibilities. [157] However, as Fraser was in the process of preparing to replace Noonan in theatre in the fall of 2005, he found the transfer of information from Noonan about detainee handling most helpful.  Fraser discussed the development of detainee policy with Noonan, and Noonan effectively provided the conditions for Fraser’s success:

I was going to inherit what he [Steve Noonan] and Ottawa developed vis-à-vis detainee policies and handling procedures.  I would just follow on to what he had because he had the in-theatre experience.  … So Steve Noonan and Dave Henderson                       did a remarkable job in giving me the policies and procedures I needed to follow, to work with Ottawa with the expertise on stuff that I … had no in-theatre knowledge of… [158]

87.  The policies and procedures that eventually were encapsulated as                                                                          and Theatre Standing Order (TSO) 321 A for                                , are discussed in more detail later in this chapter.

Summary

88.  National level security policy is a multi-departmental process involving a significant amount of consultation and cooperation.As a result, it is a relatively slow process. The national level policy on detainee transfer lagged behind the operational activity; however, in the absence of formal written policy, the commanders on the ground developed orders and procedures to guide the detainee transfer aspect of the mission.

Section 5 -                                     and Theatre Standing Order 321A

89.  The overall legal framework within which the CF operated in Afghanistan was described earlier in this chapter. As pointed out in that section, when dealing with how military forces are tactically employed, the CF is the authority, relying upon doctrine, orders and standard operating procedures to guide military activities on the ground, including detainee handling up to the point of transfer.  This section will describe in more detail how the overarching order with respect to detainee handling, Theatre Standing Order (TSO) 321 A, [159] and the                                               upon which it was based, evolved during TFA Roto 0 through 2.

               

90.                                                                                                                                                                                                                                                                                                                                                                                                                                . [160]

91.                was distributed                       through orders for specific operations so that all members were aware of the requirements of detainee handling should they, in fact, come into contact with persons who they needed to detain. [161]                                                                                                                                   . [162] The         detailed all aspects of detainee handling and record keeping required at the time.                was developed using a standard format for issuing subordinate orders, a main order with useable annexes, and was based upon CF doctrine. [163] These annexes were based on the requirement to maintain records with respect to detainees taken by CF. In some cases, annexes were added for purposes of expediency when the requirement for inter-force operability existed. [164] In other cases, annexes were added as aide memoires on detainee handling or for record keeping with respect to detainee personal belongings, among other issues. [165]

92.  The         was based upon Canadian doctrine, specifically, the Joint Doctrine Manual – Prisoner of War Handling, Detainees and Interrogation and Tactical Questioning in International Operations, [166] dated 1 August 2004. [167] While this doctrine was useful as a starting point, there were issues with it.  The Board heard that the Manual provided clear direction that detainees are to be treated in the same manner as prisoners of war; however, the Manual itself was more directed towards conventional conflict.

93.  On 5 December 2005, the CDS issued Op Ord 800 – TFA deploying                    troops to the southern portion of Afghanistan as Task Force Afghanistan, under the operational command of Commander TFA. [168]                                                                                                                                               . [169]

94.  The Commander of TFA Roto 0, Colonel Steve Noonan, prior to 1 March 2006, had to arrange to have in place the appropriate orders for the handling of detainees.  In his opinion: “It got me to a level of comfort that I was okay with issuing it and I would take on the risk by providing at least some form of top cover for the soldiers that would have to effect that SOP.” [170]  There was not a great deal of time available to develop this TSO:

We had a Battle Group that started coming on the ground in the middle of January as they started their in-theatre training portion, with a view to them starting to conduct Canadian operations as of the 24th of February.  So them taking command under my watch.  So I needed to be ready for them to take detainees ahead of actual Roto 1 taking over. [171]

95.  The document was labelled as interim, awaiting review from higher headquarters. [172]  This new TSO adopted the style of its predecessor, the                       , and largely mirrored its contents. [173]  When Fraser assumed command he reissued the TSO under his signature still with the interim designation, and it “remained extant throughout the time I was there.” [174]

96.  The Commander of TFA Roto 1 was not given detailed direction in the Commander’s Directive from the Commander CEFCOM issued on 08 March 2006 with respect to detainee handling, although there was an indication that further direction would be forthcoming:

Detainees will normally be transferred to Afghan authorities, in accordance with ref AB [Detainee Transfer Agreement between Canada and GOA dated 15 Dec 05], in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.  More comprehensive direction, with respect to Tactics Techniques and Procedures (TTPs) and Detainee Capacity building initiatives involving the 3D partners will be forthcoming. [175]

97.  In the absence of that direction, BGen Fraser supported by                                and Provost Marshal, revised Col Noonan’s Theatre Standing Order, TSO 321A [176] and signed it on 1 Mar 2006, and sent it back to CEFCOM for final approval. [177] It retained the interim designation awaiting higher-level review, but “It never came back for [with] approval.” [178]  The lack of approval did not reduce the effectiveness of the order, according to the Commander, TFA, “I signed it as an interim and they said it was good enough for me. It gave me what I needed.” [179]  The interim label did not effect how Fraser’s subordinates followed the direction. [180]

98.  On 1 March 2006, TSO 321 A replaced the                               forces who now, with the transfer of command authority for TFA to Fraser, came under the operational command of the COMD TFA. [181]  Since the two were virtually mirror documents, from the soldier's perspective on the ground there was no difference in how they were going to go about the business of handling detainees.  From a document hierarchy perspective, the TSO was now the authoritative document.  The FRAG O was stale-dated and so was no longer the primary order with respect to detainee handling                                  [182]

99.  Fraser signed the TSO 321A on 1 March 2006 bringing it into force. The previous TSO had been signed by Noonan when he was Comd TFA but had been given interim status with a suspend date of 1 March 2006.  Fraser signed what was in effect a copy of the previous order including the interim status and suspend date of 1 March 2006, [183] however, the 1 March 2006 suspend date was not intended; Fraser indicated that he wanted the TSO to be in effect with interim status pending review and approval at the strategic level.  The TSO remained extant throughout the time he served in command. [184]

100.  The TSO set out the policy and procedures relating to the detention of Afghan nationals or other persons.  It laid out the strategic intent of either transferring the detainee to the Afghan authorities or releasing the detainee. Further, it mandated humane treatment. [185]

101.  The TSO directed that the handling of detainees was to include provision of adequate food and water, provisions for hygiene and sanitation and a requirement to report actual or suspected abuse or mistreatment. [186]  There are specific requirements to provide medical care for the wounded in the same way as that provided to Canadian casualties.  Priorities of treatment and evacuation are based solely on medical criteria. [187]  Processes for searching and security of detainees (including women and children) and determination of requirement for continued detention are described. Lastly, reporting requirements on transfer are listed and expanded upon in the annexes to the TSO. [188]

102.  Annexes A to N of the TSO provide the required forms and aide memoires of the document; of particular note are Annexes A, I and N, respectively the Aide Memoire on Actions to be taken on the Capture of Detainees, the Information and Documentation Requirements on Transfer, and the Flowchart. [189]  These three forms detail the reporting requirements for the soldiers dealing with detainees from capture to transfer.

Summary

103.  While a TSO 321 A reviewed and formally approved by CEFCOM was lacking throughout Roto 1’s tour, despite the 01 March 2006 version being sent to CEFCOM for review and approval, Canadian commanders responsible for operations in the Afghanistan theatre produced sufficient orders to direct and control detainee activities.

Section 6 - Detainee Reporting Requirements

Introduction

104.  At no time during this inquiry did any CF member indicate any misunderstanding or lack of clarity with respect to his/her obligation to treat all persons humanely, irrespective of how they came into their custody, care or control.  At the same time, there is a requirement in accordance with the 18 December 2005 Arrangement [190] that Canada report on detainees.  The point at which reporting became a requirement was not always as evident to the soldiers on the ground as their responsibility for humane treatment.  At the senior command level in theatre, this discrepancy was recognised:

Someone becomes a detainee when I'm told we've got a detainee. But down at the soldier level, it's a little bit more grey than that because in a lot of cases they would corral people to keep them out of harm's way or just to keep control of the situation.  So they weren't really detainees.  They were just being protected from getting into the wrong place. [191]

Discussion

105.  According to one commander, “I remember having this discussion [detainee definition] sometime during a tour when we were fighting, which would be May or June, saying what constitutes a "detainee"?” [192] Given the fact that any person whose freedom of movement has been restrained is technically a detainee, the essence of the issue was more likely the point at which they were obligated to record and report on detainees.  In the interests of clarity at the tactical level, it is essential to articulate at what point in the process the requirement for recording information, reporting and care in accordance with the Arrangement begins. 

106.  The CF in Afghanistan define “detainee” in the broadest and most direct sense.  Anyone who is “not consensually in the custody, care or control of CF personnel during an operation” [193] is a detainee. Similarly, the 18 December 2005 Arrangement defines detainee in the same straightforward way: “… any person, other than a Canadian national, whose initial capture and detention, for whatever reason, occurred at the hands of members of the Canadian Forces.” [194] CF members, when discussing the issue of detainees, recognised that the obligation to treat all persons with dignity was a basic requirement at all times. [195] No confusion existed on the fact that anyone being detained by a CF member is to be treated humanely.

107.  However, in the course of this investigation, through both testimony and document review, it became apparent that there was some uncertainty with respect to what constituted a detainee for the purposes of the point at which the requirement to report crystallized.  The central issue of when the CF member’s responsibility to report begins should not be confused with the definition of the term “detainee”.  Clear direction on this issue is essential.  There is a need to clearly describe the points at which the individual taking the detainee becomes responsible for initiating the formal process of recording detainee information, undertaking a medical evaluation of the detainee, and ensuring the reporting of that information to the proper authorities iaw the Arrangement. [196]

108.  The uncertainty with respect to terminology was reflected in some of the testimony. For example, one commander used the term “officially detained” [197] to refer to a detainee that was going to be taken off the scene of action for further processing:

But we will initially have under our control both combatants and fighting age males at an objective.  We will also have women and children.  We will have everyone that’s on an objective under our control, and we will segregate the women and children from the fighting age males. When I said "officially detained", what I meant is we may bring all of those, depending upon the tactical questioning, the circumstances of the combat, whose evasive, who's not, or we will bring back the subset. The subset that we bring back for further screening and eventual transfer, that's what I consider a detainee. [198]

109. ; Another commander referred to the unrealistic burden of paper work in the midst of operations if everyone detained were to be fully processed:

Then they made a blank call one day to me and said, "Everybody you stop and detain, you have to process with a lot of information." I said, "That will grind everything to a halt."So we began a discussion on what is a detainee? When does a person become a detainee? We had to apply common sense.  When [in] the judgment of the Commander on the ground, Section/Platoon, [he] had triggers to say, "I believe this person is a fighter or supporting the fight somehow".  That usually was after a degree of questions, not in the line of tactical questioning so much as "Why are you here? What is your name?”,  things like that. [199]

110.  It is inevitable that CF personnel will detain people in the course of their operational activities.  In accordance with the formal definitions, these people are and should be referred to as detainees.  The CF then has obligations to those persons, as specified in Common Article 3 to the Geneva Conventions, [200] to treat all persons with whom it comes into contact in a humane manner. CF members are required by the Arrangement to record details “… for all detainees that have passed through their custody” [201] and report that information.  If in the course of an assault on a compound it was necessary to restrict access to the site to protect both the soldiers and the persons being denied access, potentially a large number of people would be under Canadian control; however, there would not be a requirement to record the details of every person and report that information.  The question then is, at what point in the process does the reporting requirement take effect?

111.  From the examples of testimony discussed above, it is evident that there has been a lack of clarity in the existing orders, directives and procedures in use in Afghanistan that identifies the point at which the full recording, reporting and care requirements begin.

Summary

112.  The manner in which CF members in Afghanistan treated all persons with whom they came into contact was in accordance with Common Article 3 to the Geneva Conventions and the Laws of Armed Conflict.  Given the scope of authority afforded the CF soldier on the ground to determine detainee status, and the strategic importance of the detainee issue to the CF mission, clear direction must identify for the CF member the point at which his or her responsibility for recording, reporting and care, begins.  CF members must continue to treat persons properly from the earliest point in the screening process regardless of the actual determination of their status. This will ensure continued compliance with international obligations.

Section 7 – Training

Introduction

113.  This section will provide an overview of the nature and extent of training conducted by CF units that were in Afghanistan in April 2006 as part of TFA, specifically in the treatment and processing of detainees.  Training, both at the individual and collective level, takes place on a continuous basis for the members of the CF, and as a result, there is a predictable standard of competency in performing individual and unit tasks well before any deployment takes place.  When a unit begins to prepare for deployment, focussed pre-deployment training is conducted with each aspect building upon the previous to prepare the unit and the individual members of the unit for the specific tasks that may have to be performed. [202]

114.   Training is at the very centre of force generation.For the 1 PPCLI Battle Group that formed the core of TFA Roto 1, it consisted of a number of segments – individual, collective and theatre mission specific training. [203]  Training started nearly a year in advance of the deployment [204] in April 2005 and progressed “chronologically from the basic, the individual, to the more complex.” [205]

Battle Group Pre-deployment Training

115.  Unit commanders associated with deployments in 2006 generally expressed a high degree of comfort with the level of their pre-deployment training, considering it good preparation for the operations they encountered, “It was my experience overseas that actually the baseline combat-focused training that we do is probably the best preparation we have in terms of what we experienced overseas.” [206] From the CO of the Battle Group perspective, while there may have been some deficiencies in specific “fighting skills”, [207]                                                                         , there was no concern about the training for detainee handling: “Specifically to those things [detainee handling], I was very comfortable we were there.” [208]

116.   With respect to training for detainee handling, other commanders in later rotations expressed a similar level of confidence:

I was very comfortable.  At the end of Wainwright, Wainwright went very well for the Squadron.  I was quite comfortable that we knew what we had to do.  We could do what we were expected to do. [209]

Individual and Collective Detainee Handling Training

117.  Detainee handling training is mandated and largely conducted during the individual training phase at parent units or formations prior to the sub-unit or member joining the deploying unit: “… everyone had been trained. The entire Company had been trained in the skill-sets and the process.” [210] Regrettably, from a holistic perspective, in the collective training phase the training scenarios involving detainees were usually terminated after capture.  Exercise play rarely extended beyond the handover to the military police, and as a result the documentation process was rarely ever exercised:

… in training really the only records-keeping we did … along the lines of prisoner of war handling was the prisoner of war tag ….  We didn't have the Task Force Standing Order for instance … which is a fairly detailed document. [211]

118.  In contrast to record keeping, the proper physical treatment of detainees was properly exercised and thoroughly understood by soldiers. As described by one Company Sergeant Major,

My guiding principles were the Law of Armed Conflict and the Geneva Conventions.  They [Detainees] had to end up at the end state in the same conditions they were at when we pick them up.  …

Question: … if you asked the soldier … "How do you treat a detainee?" at the end of your pre-deployment training, what would he have told you?

Answer:  Firmly.  … Firmly, … but not abusing them.  … But it would be firm but it would be highly disciplined. [212]

Augmentee Training

119.  The majority of units that make up an operationally ready Task Force require the addition of some personnel before they can deploy for operations in Afghanistan.  Other units with specialist skills, such as medical and military police must also be added to the Battle Group, either as augmentation to existing units or as detachments, before they are declared operationally ready.  It is with these augmentation forces that training concerns may occur, particularly if they join the pre-deployment collective training event late:

There is only one element of concern I had and that is with detachments [of] non-1 PPCLI [personnel]. I did not have visibility on the depth of their training and skills.  I was lucky that most of the attachments came into the Brigade Training Event and we then embedded them into very big subunits. [213]

120.  Minor Combat Service Support (CSS) elements attached to the Battle Group, such as medics or the General Support Military Police (GS MP) included as a TFA-level asset, are manned from personnel across the environments and do not necessarily arrive in formed cohesive elements.  The Commander of Task Force Afghanistan, described the frustration that was a result of the approach used to meet the augmentee requirement, and acknowledged that this made the training and validation of these elements challenging:

Our new construct is the medical staff are no longer part of the unit.  The MPs are not part of the unit.  All those attachments are trained up separately and then get put onto the unit in some sort of training event, and that all came together at the BTE [Brigade Training Event].

There was a lot of frustration on both sides of the fence because the support [personnel] wanted to be part of the unit and wanted to work with the people [in the unit], and there was a lot of frustration on the unit side because they wanted to see their people. [214]

121.  The CF Provost Marshal expressed concerns about the pre-deployment training being provided for MP units by the force generators:

Currently it is the force generator that is providing the pre-deployment training.  In the past I would have to say that the system has not worked terribly well at the MP level in that much of the focus was on the drills to prepare people to survive in that environment.  Good.  But then there was an endex [end of the exercise] whenever something would arrive at a place where they would actually be delivering those MP skills. [215]

Another MP supervisor expressed similar concerns with respect to the training issue,

I would like to say it [the pre-deployment training] is a bit disjointed.  The Military Police Company was not mounted as one company and that was because of a number of reasons.  First off, what was then the close support platoon, which was based off 2 MP Platoon in Petawawa, … was warned off during the summer and … started training … the 1st of September.  It trained as an integral unit and then joined into the rest of the Company training.  The folks that were on the GS Platoon, or the General Support Platoon, … most of those positions were not filled until November.  So they never got together…. [216]

122.  The late stand up of the GS MP Platoon which was to be attached at the TFA level and the resultant limited training had an impact on the level of readiness for detainee handling in the opinion of some of the members:

For us?  I think it was a … learning experience for everybody.I believe that we did … very good, because we didn’t have previous training, how to handle detainees.  But every time we tried – every time we have detainees, and we did something to be improve[d], we tried to improve it. [217] … we should have been better, better prepared for that type of mission, and more training [for that type of mission] before going in theatre.  But sometimes, time don’t permit to do that.  It is the only bad part of the mission, sir. [218]

Moreover, the stand up of the GS MP Platoon was too late for inclusion in collective training exercises at Wainwright with the rest of the Task Force, resulting in no collective training for the GS MP Platoon. [219]

123.  The Director of Health Services Operations also identified a concern with the integration of Health Services personnel with the Battle Group:

That [the requirement for early integration with the Battle Group for collective training] has actually been one of our Lessons Learned on this particular mission.  Historically, the Role 3 [the major military medical unit in-theatre] trained independently and separately, usually in Petawawa at the 1 Canadian Field Hospital location.  The other elements, the medical command and control elements for the Headquarters, the Role 1 trained with the Battle Group.  Certainly they had their own preparatory training prior to that, which is generally things like clinical refreshers and HS specific training, and then trained with the Battle Group.  As a result of our sense that we would be better served and the operational commanders would be better served to have the Role 3 and Role 1 train with the Battle Group, that is happening for the first time for Roto 4 training to start shortly in Wainright, to include Role 3. [220]

124.  Despite the concerns about early integration, there was a high degree of confidence expressed by medics in their knowledge with respect to detainee handling.  When asked if he was aware how to treat detainees under the Geneva Conventions, one medic responded,

Oh, absolutely.  I mean, I think it is basic common knowledge of, … we have rules of armed conflict …  every soldier is trained in those.  I mean, it's common sense for how they are supposed to be treated.

Question: So prior to deployment were you comfortable that you had sufficient training to allow you to deploy and conduct your mission?

Answer: Absolutely, sir. [221]

125.   Another factor complicating their early integration into the force structure is the important day-to-day services that many of the medical and MP augmentees provide to their parent organizations.  These home units are understandably reluctant to release scarce CSS elements early for pre-deployment training:

So invariably what happens now, as the tempo goes up and that strain increases, … military police on those bases and wings are not there training to do a job some place else; they are actually doing a job there, in addition to supporting operations.  I don't think people would argue that that [supporting operations] is number one.However, they have a force protection, security and policing role on that base as well, which is critical not just to the base and wing, but it is also critical to shaping our Forces that are deploying overseas. [222]

126.  The scarcity of many of the CSS elements combined with their day-to-day employment in their home units created the concerns about their integration into the pre-deployment training process.

127.  Challenges notwithstanding, at the end of the pre-deployment phase, the Task Force was fully validated to deploy, “They were successful. All the training pointed out weaknesses in everybody. Everybody was not perfect, but everybody was good to go.” [223]

Battle Group In-theatre Training

128.  Additional training was conducted in-theatre for the CF units deploying to Afghanistan.  For certain components of the 1 PPCLI Battle Group arriving in January 2006, there was time for specific training on detainee handling in-theatre:

We did it [in-theatre training on detainee handling] in Tarnak Farms area south of Kandahar Airfield, did lectures on the airfield.  And we didn't do it ourselves.  Military police, Canadian military police did it, both our own internal to the Battle Group, because I had a Platoon attached, and the National Command Element's, the NCE's military police, to make a standardized package.  The military policemen taught our NCOs and soldiers how to do the detainee procedures, which I was very comfortable with. [224]

            Pre-deployment and In-Theatre Training

129.  Pre-deployment and in-theatre training for                          differs from that provided for                                     due to the differing        force generation process.                 generates            exclusively from within the      community resulting in a known level of expertise in detainee handling prior to pre-deployment training taking place.  When members apply to join     , they already possess extensive detainee handling expertise based on their CF training:

First of all, a member coming to            already comes with a tremendous baseline of sensitivity awareness and indeed training in detainee handling.  That has… permeated the entire Canadian Forces really as a result of the Somalia events and that prisoner of war handling, detainee handling, Law of Armed Conflict, the Conventions as they apply to prisoners of war, permeate our training system from top to bottom.  So already when someone comes to            that’s the baseline. [225]

130.  Members selected for            employment then gain more specific training in dealing with detainees as part of their basic      qualification:

… there is a whole block of training associated with detainee handling and how to beyond essentially what we used to call unarmed combat associated with bringing the combatant under control in a non-lethal way. [226]

131.  Due to the nature of their force generation cycle,                       are able to incorporate operational experience and lessons learned directly into their pre-deployment and in-theatre training. [227]

132.  Once in theatre,            members continue to train for the detainee handling task,

In theatre there is, of course, the TMST, the Theatre Mission Specific Training, as well as in-theatre orientation, validation exercises and mission rehearsals, where this is gone over in excruciating detail, including simulating detainees going through the entire screening and processing leading up to transfer. [228]

Tactical Questioning Training

133.  Tactical Questioning (TQ) training is an example of training called for in CF doctrine for a specific skill in dealing with detainees.TQ is the first questioning and screening used to gain information of immediate tactical value from detainees or persons of interest. [229]  As with all activities of CF members on operations, TQ is subject to the Laws of Armed Conflict and strict adherence to the Geneva Convention, and only those personnel who have been specifically trained to do so are permitted to conduct TQ. [230]

134.  For the CF, the realities of combat operations in Afghanistan meant that detainees could be taken by both conventional and SOF members of the CF, and this revived the requirement for a capability to collect immediate tactical information from captured persons,

There was realization with a theatre like Afghanistan that we had … no means of - no background, no training to be able to tactically question them or question them to get information that they required.  So we looked at that in conjunction with a number of organizations with the Intelligence Branch, the police, military police, and we decided that we needed that capability in theatre.  So the first Task Force to go in with that was Task Force -- was Roto 1, Lieutenant-Colonel Hope and his crew, 0601, and then actually [we] trained                    on this tactical questioning. [231]

135.                                                                , there was a realization that specific training with respect to tactical questioning was required,

When                                                      deployed his task force in theatre, he recognized well before he went in theatre that he needed additional direction and guidance, and indeed training, with regard to not so much detainee handling but tactical questioning.  As early as an early spring of 05, that resulted in the DCDS agreeing to giving authority for a course in … prisoner handling and tactical questioning, PHTQ, to be conducted. [232]

Summary

136.   Effective training is at the very core of the CF’s ability to generate combat capable forces to deploy, and to conduct operations in accordance with CF doctrine.  Specific training with respect to the handling of detainees was provided to CF members deploying to Afghanistan, both prior to the deployment and in-theatre.  Both conventional and special forces members were trained, at the individual and collective level, and for the most part, that training was effective.  While the hands-on handling of detainees was well covered in the collective training phase, some aspects of record keeping were not.

137.  CF commanders and deployed members were generally comfortable with the level of training they were provided in this area; however, for a number of the personnel assigned to augment at the Battle Group or Task Force level, their late arrival at the collective training event reduced their training opportunity.  This was particularly evident in the case of the GS MP platoon.  However, the Board assessed that the benefit of adding the GS MP Platoon to the force structure far outweighed any problems related to its pre-deployment training.

138.  It must be said that each element of the conventional forces and the special forces had the individual training through their career occupation training syllabus to make the correct decisions when it came to handling detainees.  Collective training and administrative reporting for detainee handling started slowly and adapted to the new situation.

Section 8 – Use of Force

Introduction

139.  A professional military exists to allow a state the option of using force in a controlled manner to achieve national objectives.  When members of the CF are required to use force in carrying out the duties assigned by the Government of Canada, the use of that force is carefully controlled.  The primary means of controlling the use of force, aside from the comprehensive training on the Laws of Armed Conflict [233] and the Geneva Conventions that every CF soldier undergoes, is through the development and distribution of Rules of Engagement (ROE).  Every soldier is expected to be familiar with the specific ROE that apply during a mission, and frequent refresher training on them ensures members understand how the ROE affect the range of force options available to them.According to one officer, company commanders were personally responsible for teaching the ROE to their soldiers, and they did so. [234]  For the mission in Afghanistan, the ROE contained specific direction for the handling of detainees.  This section outlines the underlying CF doctrine that governs the use of force, particularly as it applies in the Afghanistan theatre of operations.

Use of Force/Escalation of Force – Principles

140.  National and international law require that the use of force by the CF be controlled and limited to the extent that it is proportional or reasonable and necessary to achieve the legitimate military objective.  As an instrument of national policy and power, the use of force by members of the CF is controlled by and subject to the authority and direction of the Canadian Government.  ROE are the means by which the CF controls the application of force in CF operations. [235]

141.  The rationale for controlling the use of force is basically humanitarian, that is, to protect people and property from unnecessary damage or injury, while at the same time, allowing the military objective to be achieved. [236]

142.  In the international arena, the Laws of Armed Conflict are the overarching framework that governs the use of force in operations, and applies when Canada is a party to any armed conflict.  By policy, the CF will apply the spirit and the principles of the Laws of Armed Conflict in all Canadian military operations, other than domestic operations, in which case domestic law applies. [237]

Key Concepts in the Use of Force

143.  There are only two levels of force available for use by members of the CF – non-deadly and deadly force. [238]

144.  Non-deadly force, as the name implies, is not intended to cause death or serious injury in its application, and may include the use of physical force short of the use of firearms or other deadly force.  For example, pushing and non-lethal forms of striking or hitting and physically or mechanically restraining a person are considered non-deadly force.  This category may include the use of firearms for warning shots. [239]

145.  Deadly force, on the other hand, is force that is intended to cause death or serious injury, even if death or serious injury does not result from the action. [240]

146.  The concept of minimum force, that is, force that is controlled and limited to the extent that is proportional or reasonable and necessary to achieve the legitimate military objective, applies to the use of both deadly and non-deadly force. [241] As one Commander stated,

We did a lot of ROE training and in the ROEs we stressed two big things: portionality [proportionality] and minimum use of force. So whether we are talking about using deadly force are [or] non-deadly force, everything we do, we know we are supposed to use the minimum amount of force. [242]

Hostile Act or Hostile Intent against CF Personnel, Units or Forces

147.  There are two circumstances under which a member of the CF is authorised to use force.  One is in accordance with the specific ROEs issued for an operation; the other is in self-defence. [243]

148.  Regardless of circumstances, an attack or other use of force against CF personnel where there is a reasonable certainty that death or serious injury may result allows for an immediate response in self-defence.  A straightforward example of a hostile act would be an individual firing a weapon at a CF member, and the CF member responding immediately and appropriately in self-defence. [244]

149.  Similarly, hostile intent is the threat of an attack or other use of force against CF personnel where there is a reasonable certainty that death or serious injury may result, and hostile intent also allows for an immediate response in self-defence.  An obvious example of hostile intent would be pointing a weapon at a CF member; however, hostile intent can be difficult to assess in many circumstances.  Two basic criteria that are used to assess hostile intent are the capability and preparedness of an adversary to use force, and pre-existing knowledge (through evidence and/or intelligence information) concerning an adversary’s intent. [245]

Rules of Engagement

150.  ROE are the orders governing the use of force by CF members during military operations.  ROE define the circumstances – including limitations – under which force may be used to achieve military objectives, and are tailored to meet the unique requirements and objectives of each mission. [246] ROE are a subject of communications between commanders: “Commander to Commander discussions also included ROE.” [247]

151.  The use of any level of force, but in particular the authority to use deadly force, to accomplish a mission is closely scrutinized by the senior leadership of the CF.  Every CF member that may be required to use force either in self-defence or in the achievement of a mission must understand the ROE and the underlying doctrine that supports them.  Simply stated, ROE are the orders intended to ensure that commanders and their subordinates do not use force beyond that authorised by higher command. [248]  In the Afghanistan theatre of operations it was the Company Commander’s personal responsibility to teach the ROE to their soldiers: “… we reviewed the ROE, the draft ROE that we were going to use in theatre, [the Commanding Officer] gave us his guidance on it and then we went away and briefed our Companies.” [249]

152.  The Chief of the Defence Staff is the sole authority for authorising ROE for expeditionary operations or changes to those ROE.  No subordinate commander or member of the CF may issue orders to use force which could be considered more permissive than the ROE authorized by the CDS; however, subordinate commanders may, if the situation dictates, issue orders that are more restrictive than the ROE authorized by the CDS. [250]

153.  ROE are not direction to use a specified level of force, but rather they are authority to use the full range of force up to and including the maximum specified. [251]  For the purposes of handling detainees, ROE were well understood:

So a soldier knows if he has to go and detain an individual, he went through how to search them.  He went through how to restrain them and he knows that he has to use the minimum amount of force necessary in order to do that. [252]

Factors Influencing ROE

154.  There are a number of major factors that guide how the use of military force will be controlled in a given conflict situation.  A number of legal directions exist that limit the use of force; for example, any use of force by the CF must comply with applicable Canadian domestic and international law.  Legal limitations can come as well from the United Nations Charter and applicable UN Security Council resolutions if the mission is a UN-mandated one.  The Laws of Armed Conflict also impose constraints. The use of force by the CF must be in concert with the higher level Government of Canada political and policy objectives, as well as diplomatic considerations that may impact what the CF might be allowed to do in a purely Canadian operation.  Finally, but by no means of less significance, the use of force may be constrained by operational considerations – such as efforts to avoid friendly-on-friendly engagements. [253]

Summary

155.  The use of force by members of the CF is a controlled and limited activity.  When CF members use force, that use must comply with the applicable Canadian domestic law and international law, including the Laws of Armed Conflict. At the same time, CF members may use force in self-defence. Rules of Engagement are orders designed to control the use of force by CF members and are specific to each mission.  It is the responsibility of the chain of command to ensure that the rules that govern the use of force are second nature to soldiers, and individual commanders have the responsibility to ensure their subordinates are fully current on them. 

Chapter 2 – Detainee Event of 6/7 April 2006

Introduction

1.  The overview of how the CF operated in Afghanistan and how the detainee handling policy evolved in the period leading up the events of 6/7 April 2006 has been provided in the previous chapter.  The actual events of 6/7 April 2006, the essential focus of this investigation, are described in this chapter. 

Operations Prior to 6/7 April 2006

2.  The Commander of the                                         , the unit that carried out the operation which resulted in the capture of the three Detainees that are the focal point of this inquiry, stated that his Task Force was using the same            as his predecessor to handle detainees. [254]   However, he “… knew the policy [to transfer to the Afghan authorities, not American] was coming.  I was sure it was coming because I had been privy to some of those discussions with CDS.” [255]  Accordingly, the first time they took detainees, “… it was back in January [2006] sometime I think the first time we took some detainees, and those detainees were handed over right on the objective to the Afghan Security Forces.” [256]                                                                                                                                                                                                                       [257]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   .” [258]

3.  In the case of the three Detainees that are the subject of this report, it was not                                                                 ,

… one of the reasons why we handed them over                             if the area was secure and we had a good feeling that the authorities were competent and capable.  That's when that would take place.  If it was not the situation, for example, in the … operation, we were more or less in hostile territory.  We had no senior investigators or people like that with the ANSF, so it was not practical in our view to turn them over to the ANSF at that point.  So we took them back to KAF [Kandahar Airfield]. [259]

Operations on 6/7 April 2006

4.  The operation during which these three individuals were taken was focused on capturing a valuable Taliban leader in a particular village compound in Kandahar province. [260]   The planning for this operation had been ongoing for more than a month when the            Commander received final approval, just prior to execution on 6 April 2006. [261]  The mission was well rehearsed and orders groups took place to refine the plan and procedures. [262]  The rules of engagement for this operation, as briefed for every operation, [263] were understood by each individual soldier, and would permit the use of force, up to and including deadly force, for the successful accomplishment of the mission. [264]

5.  To carry out the operation               would work with Afghanistan National Security Forces (ANSF) and coalition partners using appropriate tactics for the situation.An assault force would enter the village and carry out the primary mission. [265]  The plan included two adjacent area-objectives: the Canadians would take control of one portion of the village independently while the other members of the force would take control of the second portion.  [266]

6.   On 7 April, the force arrived, portions having already deployed late on 6 April, and                             commenced their part of the operation on the village. [267] Carrying out a sweep of the compounds therein,                                    gathered the inhabitants and marshalled them into a designated area for initial screening and status determination. [268] Women, children, and older men were separated from all fighting-age males. [269] The senior                                                     orchestrated a detailed processing of the fighting age males in order to assess if the sought-after target individual was in the group and to observe if any other individuals should be detained for force protection. [270]  Individuals so detained could eventually be transported back to the Canadian transfer facility at the KAF. [271]

7.  During the sweep of the compounds, all of the individuals encountered but one were compliant when they were captured and moved to the detainee holding area. [272]  The individual who was non-compliant was one of the three Detainees eventually taken back to KAF for processing and transfer.  This individual was discovered by a team of                          in a small, dark room at the extremity of the targeted compound.  There were also women and children in the room. [273]

8.   The non-compliant individual, who was described as quite large in comparison to most Afghan men and very strong, [274] lunged at the nearest                          who was taken by surprise. [275]  He and another                        attempted a take down, but uncharacteristically, there was strong resistance by this individual. [276]  The non-compliant individual grabbed a                          weapon during the struggle and would not let go. [277]  Eventually, through the application of escalating levels of non-deadly force, after five to seven minutes, [278] the individual was brought into compliance, [279] but not before he had grabbed another one                                weapon. [280]  Although seizing a weapon was a serious act allowing the use of deadly force to combat it, [281] the team leader decided that there was not an immediate threat to life [282] and that the proximity of the women and children precluded the use of firearms.  [283]

9.  Overall, a series of escalating levels of force were used to achieve compliance, and eventually the members of the                    physically, and forcefully, dominated the individual until he could no longer grasp the weapon and was forced into compliance. [284]  In disciplined sequence,                         escalated from tackling the individual, attempting to pull his hands off                          weapon, hand strokes to his arms, foot strokes (kicks) to his arms, legs and torso, weapon strokes to arms and mid-section, application of weight from knee-pressure on the individual’s head, fist strokes to the head, weapon strokes to the head, warning shots directed away from the scene, and finally bodily removal from the incident area. After several minutes of such applied, sequential force, the individual had sustained a number of visible, non-life threatening injuries. [285]  Once he was lifted out of the immediate area and subdued                             who was much stronger, the individual became compliant and ceased fighting. [286]

10.  Once rendered compliant, the individual                         and attended to by a medical technician from the                   . [287] The injuries to his head required bandaging at the site of capture. [288]  Once initial medical care was completed, he was escorted to the detainee holding area. [289]  Then he was screened. [290]  For the purposes of this report, this detainee will be named “Detainee 3.”  During this period “…the medic was doing frequent checks…”, [291] an interpreter was asking how all the detainees were doing and if they had any needs, and “… they were given water throughout the course of the day …  it was extremely hot then and we actually moved them inside a building.”  [292] The detainees were also provided appropriate (culturally acceptable) food. [293]

11.  Later in the day, just after noon, a second individual was brought into the village compound for screening and eventual transport to KAF.This individual was believed to be a Taliban scout. He had been captured by a detachment in the hills outside the village the night before. [294]  He had escaped for a period, but returned to the area the next morning and was re-captured. In the mid-afternoon period he was brought forward for screening at the village detainee holding area. [295]  He was brought to the consolidation point after the second capture, and was medically screened. [296]  For the purposes of this report, this detainee will be named “Detainee 2.”

12.  The Board was unable to establish a specific time, however, at some point during the day a third individual, who had been detained by the Afghans in the second operational area, was brought to the detainee holding area.  The                         members were advised that this individual had been captured by the Afghan National Security Forces (ANSF) in a room that had a cache of ammunition and improvised explosive device (IED) material, and was brought forward as a possible detainee. [297]  For the purposes of this report, this detainee will be named “Detainee 1.”

13.  The senior                         on-site recommended to the Commander                 that the three Detainees should be taken off-site and processed at KAF.  The TF Commander concurred that they should be detained and taken back to KAF for eventual transfer to Afghan authorities. [298]                           were assigned and accompanied the three Detainees to KAF.  Upon arrival, they were formally turned over to the Canadian Military Police to be taken to medical care and subsequent detainee processing.                                                                                . [299]

Processing the three Detainees at KAF

14.  The timings for the remaining events of this narrative will be given as a block of three time zones in the following format:                                                                                                   . The reader will note that Afghanistan, like Newfoundland as an example, is geographically in the middle of a time zone.  This approach will assist the reader with understanding the timelines in the three time zones we are concerned with as events occurred in relation to each other.

15.  The GS MP Platoon Commander, Captain Tarzwell, and his senior MPs were informed in the early afternoon of 7 April (the Board estimates that this was approximately                                                  by the                                        at KAF of the arrival of multiple detainees later that day. [300]  The Task Force Provost Marshal (TFPM), Major Jim Fraser, would become aware that several detainees                             to KAF                               . [301]

16.  The TFPM would only become aware of information about circumstances of capture from Capt Tarzwell later that night at around                                             ). [302]

17.  BGen Fraser, Commander TFA, became aware of the capture, the circumstances of capture, and the processing of the Detainees on 7 April 2006 at KAF. [303]  He reported verbally to CEFCOM, his superior, at                                             ) on 7 April, which was during the processing of the three Detainees at KAF. [304]  It is not apparent that BGen Fraser reported the circumstances of capture or the details of how Detainee 3 obtained his injuries in this exchange. [305]

18.  Having recently finished the construction of the transfer facility from scratch, the MP General Support Platoon were prepared to put their detainee handling process into action – this would be one of the first times that they had processed detainees in the KAF transfer facility. [306]  However, there was a general feeling that their training in detainee handling had been rushed and incomplete. [307]

19.  Captain Tarzwell ordered his team to prepare. [308] Warrant Officer (WO) Simms, the Platoon Second in Command (2 I/C), and Sgt Wall, the platoon’s detainee handling expert (based on recent and extensive experience at the Edmonton Service Detention Facility in Canada) [309] gave a rapid briefing to the platoon which included individual tasks and responsibilities. [310]  WO Simms would be in charge of the reception of the detainees at the              ; Sgt Strain would accompany him and take charge of the physical handling of the three individuals; Sgt Wright would be in charge of Detainee treatment at the hospital; and Sgt Wall would be in charge of processing, documentation, and transfer at the MP GS Platoon transfer facility. [311]  The junior MPs were assigned as guards, handlers, photographers, searchers, and administration assistants. [312]  One MP, Corporal Bertrand, was assigned to take comprehensive notes throughout the processing from reception to transfer. [313]

20.  The platoon was alerted by the                that the                              was             to the KAF               (the Board assesses that this was around                                                . The                 also alerted the MPs and Comd TFA staff later in the night. [314] WO Simms and Sgt Strain took the reception team                                      immediately to the                 to meet with the               . Sgt Wright went to the hospital with a CF photographer to organize the medical staff for medical reception.  Sgt Wall and Captain Tarzwell went directly to the transfer facility to prepare for documentation.The Afghan interpreter was summoned and                                                                                         (with their assigned interpreter) was alerted. [315]

21.  At this same time, Major Fraser was trying to contact the Afghanistan National Security Forces through several contacts he had with the Battle Group.  He noted, “That was difficult.  We tried to get in touch with the ANSF through the battle group at the time … I remember that that was difficult for some reason, lines of communication, I guess.” [316]Capt Tarzwell recalls:

I learned later that Major Fraser hung up from me, phoned [the NIS watch officer], and asked for the name of the ANP liaison officer at the PRT [Provincial Reconstruction Team] … a colonel ….  From that they arranged an ANP group to come in, and effect a transfer as quickly as possible. [317]

22.  At the                 , in darkness, WO Simms met with the                [318] and at                                                                                                  [319] and the                           produced the three Detainees for transfer, their belongings, and their paperwork to the GS MP Platoon. [320]                                      turned each detainee over to an MP and passed a bag of personal belongings to the same MP for safekeeping. [321]                                                                                                                                                                                                                                                                                       . [322]

23.   While waiting for                          to arrive, Sgt Strain reported that the                said ”quote, unquote, one guy, he resisted a little bit, is what he said.” [323] Although WO Simms does not remember this conversation, [324] Capt Tarzwell recalls being told, by WO Simms, the circumstances of capture from an earlier conversation with the               . [325] After the arrival                             , when the Detainee with the bandages walked past, the senior                        told            that the individual “had resisted his arrestation.” [326] The     then asked another member:

“… how was the operation?”  “Oh, pretty good.”  Then he looked at me and he said, “This guy is pretty lucky,” pointing at the guy with the [bandaged] head, he said, “He’s pretty lucky to be alive.  He tried to grab one of our guns”.  He said, “It’s pretty hard”, because he said, “kids there, family is there, you know.  So we used minimum force, but lucky, he is very lucky.” [327]

24.   WO Simms and the                signed the transfer documentation for each of the detainees and completed the formal transfer. [328] In closing, the                said, “Just make sure you go right now to the hospital.” [329] The                             re-embarked                                                                         . [330] All three detainees were in the               with                       MP per detainee. [331] There was light provided by flashlight in the               and the note-taker was present. [332]

25.  During this search at the                 , one of the detainees, but not the injured one, struggled and “began pressing with his legs” against the wall of the              . [333] Sgt Strain recalled,

One guy wasn’t too happy about being searched standing up.  He tried to climb the wall with his feet.  I remember taking him, placing him on the ground and conducting the search on the ground ….  I am pretty sure it was not the guy with the bandages.  I brought him to the ground, finished my search, stood him back up, and then we escorted them to the [truck]. [334]

Once the searching and organizing of the documentation was complete, the MPs guided the three detainees to the awaiting truck. [335]

26.  The truck (LSVW -- Light Service Vehicle Wheeled) was about 20 metres from the               . [336] Sgt Strain would organize several MPs to assist each detainee [337] into the back of the truck:

Then we had a GS platoon member in the back [of the LSVW] because it is a long way up in an LSVW, lift the guy up, put him in the back, sit him down.  We sat them down one, two, three in the centre of the LSVW.  Closed the gate.  I stayed in the back and so did two other members…. [338]

27.  The military hospital, or Role 3 Multinational Medical Unit (R3MMU), was                                                            where the searches took place.  The MPs drove the detainees, with flaps down in the truck for privacy, to the hospital.

Medical

28.  The MPs escorted the three Detainees in the vehicles the short distance to the R3MMU. [339]  The R3MMU was notified ahead of time that the three Detainees were coming to the hospital, [340] and they arrived at                                              ). [341] They were brought in                                                                                                                                              [342] Sgt Wright was pre-positioned at the R3MMU prior to the arrival of the detainees and their MP escorts.  Her role

… was limited to ensuring that we had a photographer on scene, and he took tons of photos, and to brief the medical staff with respect to OP SEC [Operational Security] sort of things.  … Just getting everybody’s particulars in advance and then just prepping them they’re coming. [343]

There were         MP in the room as well as an imagery technician (photographer), several med techs,                    Medical Officer who was designated the duty Medical Officer, and a translator. [344]  One of the MP explained to MCpl Tozer that Detainee 3 had been belligerent and had been fighting, and therefore an MP stayed in close contact with him during the course of the medical evaluation and subsequent diagnostic tests. [345]

29.  Detainee 3 was the only one with noticeable injuries and was evaluated first. [346] The medical examination lasted approximately                                             . [347]  After being examined by the duty Medical Officer, Detainee 3 stated that he was feeling faint and he was allowed to lie down on a stretcher. [348]

30.  Initially, Detainees 1 and 2 were seated on the floor in the back of the rear bay of the primary care ward, accompanied by MPs. [349] Once Detainee 3’s medical evaluation was complete, the other two Detainees were examined for medical problems and medical documentation was completed. [350] A     medic performed the medical evaluation actions, while a             medic completed the medical documentation and a Medical Officer was in the room, “… the doctor… would just hang out in the back and watch, and then if there was anything -- if he wanted to interject, or if there was something that he wanted to investigate further, then he would come forward and do it.” [351]

31.   The medical evaluation was performed on Detainee 1 at the R3MMU by the Duty Medical Officer who found “No significant finding – no medical treatment needed.”  He wrote on the “sick chit” form:“has been medically evaluated and is cleared for general confinement.” [352] Detainee 2 was given a similar assessment. [353] On completion of their medicals, Detainees 1 and 2 were escorted out of the R3MMU and into the truck. [354]  They entered and exited from the truck in a similar fashion as for the previous trip.  Sgt Wright recalled:

Okay, so I stayed with the detainees.  I know we ended up staying with one of the gentlemen longer, after the other two were taken back to the GS Platoon because he needed to have – one of the detainees, the older gentleman [Detainee 3] needed to have an MRI scan and Corporal, now retired Corporal Gibson was with me for that, and the photographer stayed with us. [355]

32.  At the request of the Duty Medical Officer, Detainee 3 was sent for a CT scan. [356]  According to the medic, the CT scan operator said, “… he didn't find anything.  He didn't see anything.” [357] Detainee 3 was eventually assessed as “has been medically evaluated and cleared for general population/confinement”. [358]  In MCpl Tozer’s opinion, the care received by Detainee 3 was similar to that offered to CF and coalition soldiers. [359]  He also stated that in his experience, patients with injuries similar to Detainee 3’s were not admitted to the R3MMU.

After the CT scan was reviewed, yeah, the cuts on his eyes could have been either sewn or steri stripped, and I would have figured that he would have been fine to go … to cells.  He could have been bandaged up and -- I mean, as long as he had a dressing cage [change].  I didn’t see any reason for him to stay in the ward. [360]

33.  The entire medical evaluation process for detainee 3 was likely to have taken                  [361] In his role as the JTF-Afg Surgeon and CO of the Health Support Services (HSS) Company at the time of the incident, LCol Ricard’s opinion is that the standard of medical care delivered to the three Detainees throughout the process was exactly the same as would be available to a coalition or CF soldier. LCol Ricard stated that:

… the detainees that were seen from February ’06 to yesterday all received the same standard of treatment.  It was not augmented or made different by any of the FSOPs or any of the forms that you have to fill.  You are [the detainee] injured, you get treatment, you need to be evacuated, you are not ready to leave this facility because your wounds are not ready to be let go, you are staying here for 35 days … because it’s not yet done.  No pressure felt that we had to do something to change that.  I never felt there was pressure to discharge early because they wanted this person somewhere else.  So, it was done without any question …. [362]

34.  Once the medical evaluation was completed for Detainee 3, Sgt Strain had Cpl Gibson and      other MPs that came back with the truck transport Detainee 3 to the transfer facility to join the other two detainees. [363]  Sgt Wright accompanied the photographer to his office, downloaded the photographs, and delivered copies of the photographs to the appropriate authorities.  “I took one copy to the                         , who signed for them in my notebook, and the other two copies I brought back to the GS Platoon and gave them to Sgt Wall.” [364]

MP GS Platoon Compound/ Transfer Facility

35.  In this general time period, in the late evening of 7 April in Afghanistan, Major Fraser, the TFPM, was working with NCE J3 in the Ops Center to arrange a visit by the Afghanistan National Police (ANP) in order to execute a transfer of the three Detainees. [365]  In the same period, the Significant Incident Report (SIR), that included significant information in accordance with TSO 321A on the detainees, was being composed by Captain Smith in the NCE operations center.  Major Fraser would bring updated information from the detainee handling process to the operations center as it became available. [366] Communication amongst NCE J3, CEFCOM, and the National Defence Command Centre (NDCC) was now taking place on this topic                                                                                                                                                was passing information on the            operation of 6/7 April                                                                                                   [367]                                                                                                                                                                                      . [368]

36.  The MP compound was                                                at KAF.                                                                                                                                                                   .  The trucks would enter and park beside                                            which the MP GS Platoon shared with the        and the NIS (National Investigation Service): [369]

So basically the only ones in that whole compound were either GSMP platoon members; the NIS, who were actually working at the same building we were, who were also MPs                                                                                                       with these individuals when we got in….  So they are brought in, backed up the truck, basically put them into the … one big area where we had the detainees.  They were put on a bench inside, sat down, they                                                                                                                                                                                                                                                                                               , and they were sat on a bench until we can get them in and start processing them. [370]

Sgt Wall had his documentation system and administrative area in a sea container beside the detainee area.  When detainees were present, there were junior MPs who patrolled the detainee area,                                                                                                         .  The detainees were kept in an enclosure which had a tent for shelter, cots, access to a portable toilet facility, a prayer mat, a copy of the Koran, and ample food and water. [371] One of the MPs describes the entry procedure for a detainee:

We went into another sea can where we had air conditioning, and we had an interpreter, Sergeant Wall; one guy doing all the cataloguing and another guy doing all the photographing; and all done through the interpreter again, …full body search on him just to make sure he had nothing else on him.  …We brought him out of the compound; we gave … his coveralls and stuff like that: here’s your bunker; you just sleep wherever you want here; here’s some food and whatever, water, you know.  This is the thing for washing our hands and that’s the John, and whatever. [372]

37.  At the transfer facility, Sgt Wall was prepared to receive the three Detainees of 6/7 April.                                              ) the first two detainees arrived at the facility. [373]  Warrant Officer (WO) Wall [he has been promoted since 2006] testifies:

The first two – one and two came in, because I actually processed those two.  I didn’t get to process the third individual [Detainee 3].  The two came in first because the other one had more injuries, or whatever, so he was – the third one that was being treated at the Role 3 hospital….  So those two were done, so they were brought down to us and then I think within a half hour later…the third individual came down to [through] the MP platoon lines. [374]

38.  After an initial search and a brief rest period in which the two detainees are given water to drink, Sgt Wall and his staff, including an interpreter, carried out the documentation process: [375]

We confirm all the paperwork, the annexes for the TSO 321A at that time.  We confirmed the annexes, we confirmed name, father’s name, their age, where they are from, any of the paperwork that comes in, make sure it is all filled out properly, like the witness statements comes or whatever, make sure there are all there, the item are all itemized.  His personal items that he came in with, whatever, they were all itemized.  We did it in front of the detainee, so there was no question, and then bag was sealed in front of them, so he knew we weren’t taking anything out…. [376]

39.  Cpl Morrow, one of the guards at the transfer facility, recalls a brief incident in which minimum use of force was used by MPs on one of the two initial detainees upon his arrival at the transfer facility:

I believe one of the shorter fellows gave a bit of trouble in the beginning, [at the transfer facility] but very quickly realized that we weren’t going to hurt him and complied with us.

Question:  What sort of trouble? Can you recall?

Answer:  Oh, just sort of fighting back and resisting.

Question:  Was he restrained?

Answer:  He was basically sat down, you know, like, “Calm down. We’re not going to hurt you.[377]

40.  Around this time, Major Fraser visited the MP compound and requested reports from his subordinates as to the progress of the detainee handling process.  By the time of his testimony, Major (ret’d) Fraser could not specifically remember the three Detainees in question; [378] although, he did recall that one of the detainees was reported to have sustained injuries. [379]  He recalls reporting this to the NCE Ops staff as he considered himself as “the link, obviously, between the MPs and the Ops staff, yes.” [380]  He did not recall when he learned about the circumstances of capture – he thought it was in the days after the 6/7 April period, “At some point in time – it was later on, and I don’t know who it was that told me.” [381]  Of note, he recalled feeling pressure from the chain of command to release these detainees to the Afghan authorities as quickly as possible:

Basically it was along the lines of, guys, how are things moving along?  Ottawa wants this – wants this taken care of very quickly.  Sorry – I shouldn’t say – Ottawa wants to make sure this process is moved along….  So yeah, I was asking for periodic up-briefs, how are you coming, and most of it was, hey, this takes time.  So I was also the guy kind of caught in the middle, between seemingly what the Ops staff wanted and the time the guys needed. [382]

41.  WO Wall remembers when Detainee 3 arrived:

He was placed on the cot – or on the bench, sat up on the bench, and then we actually – because of his injuries or his bandages and stuff like that, he looked like he was tired or whatever, we brought – took one of the cots from the modular tentage, placed it out next to the bench, and then we laid him down on the bench, still under guard … during this time. [383]

Cpl Gibson, who had been with Detainee 3 throughout the process so far, noted                                                                                   :

You could see all the cots we had there and there was a couple of them, like I said, the other two guys I think were already sleeping when we came in and I think he wanted the cot outside.  So we moved the cot outside.  ….  And he went and laid down on that one for a bit, and then the other guys got involved                                                 [384]

                                                                      

42.  This section will detail the timeline and interview chronology of the three Detainees captured on 6/7 April 2006.  Note that in Afghanistan time the interviews and the transfer took place on 8 April 2006.  Two CF members                      conducted the interviews.  These details will include the interview location, room configuration, person(s) present, interview process and subsequent release to the MP before complete interviews                       could be completed.  Additionally, this account will explain why Detainee 3 could not be interviewed.

TIME EVENT
                                                              interview commenced for Detainee # 1
                                                              interview concluded for Detainee # 1
                                                              interview commenced for Detainee # 2
                                                              interview concluded for Detainee # 2 (truncated early)

TIME

TRANSFER

                                                       ANP arrived KAF for transfer of three Detainees
                                                       Transfer to ANP completed

Figure 3 –        Interviews

43.                                               , both members of the KAF                         , were notified that there were three detainees arriving at KAF and to prepare themselves to conduct interviews of these three Detainees.                   stated that he believed that either “…somebody within the                                                                ], or the Provost Marshal, or the MPs themselves would call us and tell us that they were going to receive a detainee [Detainees] within the next hour or hours.” [385] These were the first detainees that                                             had interviewed at the KAF transfer facility. [386]

44.  According to                   , interviews of detainees are “non-coercive” [387] and intended to allow an understanding of the detainee’s knowledge of the local area vice collecting intelligence. [388]

45.  As the KAF transfer facility had only been recently constructed, the        interview area and some of the equipment available to them was limited.                   describes the rudimentary state of the interview room at the KAF facility during the early part of ROTO 1 and what it was like when the three Detainees were brought into the facility:

It was difficult to do any prior set up because the MPs were using the same               that we were designated to use for doing our interviews.  Then of course there is the limited time to speak to them                                                                         in length and it was divided somewhere near the middle with a door, and so we were in the deeper part of                    and we just had four chairs, one for the detainee, one for myself and one                              and one for the interpreter.…  We were loaned a video camera…  There was no power in the area of the             where we were doing the interview, so the camera is propped up in … a … [hole] in the partition wall. [389]

46.  Basic as the set up was, Detainee 1 and 2 were interviewed. The first interview lasted                                        and the second interview lasted                               . [390] According to                  they had to cut the second interview short, as the time had come for the Detainees to be transferred to the Afghanistan authorities. [391]

47.  The third Detainee was not interviewed due to time constraints and the fact that he was injured and assumed to be sedated [392] although there is no indication from the medical evidence that he was given any sedatives. [393]  For the two Detainees that were interviewed, the interview was conducted in a non-coercive environment in which the Detainees were not handcuffed or blindfolded. [394]  Handwritten reports were made of both interviews and passed up                       . [395]  Due to the rudimentary conditions and poor equipment, the video of the interviews was not successful; however, the audio portions of the interviews could be heard on the tape. [396]  Both interviews of the two Detainees were conducted with a translator in the room. [397]  Capt Tarzwell acknowledged the process was cut short by the arrival of the ANP:

I did go into the cage around                 . Major Fraser walked down. We went in, had a look at the folks, the set-up.  … Was happy with what I saw and so I withdrew myself to just essentially get out of the way, until much later the next morning.

Question: Were the        interviews completed on all three detainees?

Answer: No, sir.  On the first two fellows, they were …I don’t know what stage they were at with the second fellow, but I assume it was truncated because when the ANP arrived, he was still there, and then we had to quickly go through the documentation provided by the TSO in order to transfer him [them] over to the ANP folks. [398]

48.  Frequent reference is made in testimony to the 96-hour limit within which detainees were to be passed to the Afghan authorities.  The 96-hour limit referred to was a “convention[399] adopted by many countries operating in Afghanistan.  The three Detainees that are the subject of this report were in Canadian hands for approximately                                                                    of 7 April 2006 when they were captured on the objective                                     on 8 April in Kandahar when they were transferred to Afghan authorities.  About half that time they were at KAF,                                                                                                                         .” [400]  The fact that success in the new relationship with the ANSF authorities would depend on speedy and efficient transfer when the Afghan authorities were available [401] was also a factor in wanting to pass detainees quickly, “From that they arranged an ANP group to come in, and effect a transfer as quickly as possible.” [402]

49.  The perception that “Ottawa,” and in particular CEFCOM, strongly desired an expeditious processing and transfer to the Afghan authorities of these (and all) detainees became an imperative at the MP level:

Question:  Did you have sufficient time to process the detainees in relation to the TSO?

Answer: No, sir.

Question: Why not?

Answer: The imperative was to release and so when we were able to release, with the ANP there, and we finished transferring – basically,                               , when the ANP arrived, we started out-processing. So whatever had happened up till                             ] stopped, and then we worked on out-processing. [403]

50.   Col Putt, the Deputy Commander of TFA and the TFPM’s superior, felt a constant, but normal, pressure from CEFCOM to follow the agreement for transfer:

That is the normal pressure of the work….  But did the Commander CEFCOM or anyone call me specifically and say “move that person today”, no.  What they did is their staff called and said “Keep [moving] … and what they really did is they kept the same pressures on us that we kept on the Battle Group to follow the process. [404]

51.   Major Fraser felt this pressure strongly:

I would brief Colonel Putt regularly.  See, the way this would happen is that once word got in that there was some detainees coming, the headquarters would call me.  … There was also a dynamic in there about CEFCOM very heavily involved… so there was that push-down from Ottawa, via CEFCOM. [405]

You know, as soon as a detainee came, or there was word of a detainee, boy, it was ramped up fast, and it was like, start making arrangements to turn them over.  That was right from CEFCOM on down.Move those people as fast as you can. [406]

I know in this particular case, because the one fellow had spent some longer time at the medical facility, … there was concern … that this part was really rushed pretty quick. [407]

Transfer to the Afghan National Police

52.   Once the Afghan National Police (ANP) arrived at about                                                 in the early Afghan morning, [408] Capt Tarzwell terminated the        interviews and had his team commence preparations for a speedy transfer. [409] WO Wall recalled:

I remember being inside the MP DET itself there at the GS MP platoon lines … I remember coming out and then next thing I know, we are not going to get to process this guy [Detainee 3] because there was an order came down from somebody to basically get these guys transferred, or released out of our facility as soon as possible. [410]

53.   WO Wall, after reviewing the transfer documents, [411] remembered the time that that the complete transfer took:  “They [the ANP] showed up at                                            -- and departed 11 minutes later.” [412]  He had not been able to complete his process: the ANP did not take the appropriate documentation (concern over classification of documents at this early stage); however, the detainees’ personal effects were passed to the ANP. [413]  Capt Tarzwell admits to being quite frustrated that his team was not allowed to finish their procedure:

Question: So which parts of the process did you not complete?

Answer: We did no further investigation on the fellow who was bandaged up, because he never even got into the start of the process.

Question: No further interview?

Answer: Correct, no further investigation whatsoever, no secondary search, no cavity search.  We didn’t strip away, we didn’t search his clothes to see if he had anything concealed in there as we had done with other folk….

Question: Were you aware as to whether or not they had completed all of their medical screening, as required?

Answer: None of them were outscreened, … . [414]

…The other thing that bothered me is that I wasn’t able to ensure the things that I had done were done properly.  I wasn’t able to review any of the notes that were produced by the recorder.  So was the intent met? [415]

54.  Cpl Morrow was with the three Detainees during the transfer until they left with the ANP officers.  He relates the final minutes at the transfer facility:

And somebody had told the detainees that the Afghan National Police were here and that they were going to be going with them, and the bigger guy, the guy who was hurt the most, he just – he started to break down and cry.  We couldn’t exactly figure out why. And we brought them all out, put them in the vehicle with the Afghan National Police.  Sergeant Wall did his thing with the sign-over, and we escorted them out of the camp and left. [416]

Reporting up the Chain of Command

55.  In Ottawa at National Defence Headquarters in the National Defence Command Centre (NDCC), it was                                                      and LCdr Dave Gourlay was wrapping up his watch and preparing for a turnover to his relief in the watch officer rotation. [417]  While it was the evening of 7 April in Ottawa, it must be noted that it was early morning on 8 April in Afghanistan.  He would be on duty intermittently throughout the weekend.He remembers the pace of activity at NDCC on Friday, 7 April 2006:

Friday wasn’t exactly a quiet day.  That whole period of time in theatre was not quiet.  And my watch seemed to attract more than its share of the attention – it’s bad timing, but it happened. That Friday afternoon, immediately prior to this event, we had an IED [Improvised Explosive Device event] …And we had also – its one of our standing operating procedures on a regular basis we would send part of our crew to … our alternate facility … and we had done that that afternoon.  So as the IED happened, immediately prior to this, we did it with only part of our watch available, so they would have been coming back just as all of this was unfolding as well….  I believe the Navy was involved with SMG1 [NATO Standing Maritime Group One] …so there was a lot of political visibility with that too as I recall. [418]

56.   At                                                  on the afternoon of 7 April, LCdr Gourlay had received his first notification that the three detainees were being processed at KAF.  He received this by phone from the CEFCOM watch officer who had received a report from theatre.  Both he and the CEFCOM watch officer were in contact with the NCE J3 Ops cell in KAF                                                                          in the following hours. [419]  Gourlay, spurred on by the Strategic Joint Staff, [420] pressed for certain specific pieces of information [421] that did not come with the initial report:

“With respect to the three detainees in KAF, I have some supplemental questions.  To start with, what is the background surrounding how these three came into our possession? As part of that, who captured them and who is guarding them? As well, who is involved with processing the detainees?” [422]

LCdr Gourlay would not receive the answers to those questions before he went off watch.  However, he recalls that just before he left, but well before the arrival of the Significant Incident Report (SIR), [423] the three detainees had been transferred to ANP custody and were off of the KAF premises:

I believe the – just as I was leaving, so just part of [prior to]         …NDCC was informed               that detainee transfer had occurred, still with no SIR, still with no paperwork.  But we had been informed that the AMP had now position [the ANP had now possession] of the three detainees. [424]

57.  Almost an hour after LCdr Gourlay exited NDCC in Ottawa, in Afghanistan it was                                               in the Afghan morning and the SIR was completed by Capt Smith and released by Major Cruikshank of the NCE J3 Operations division. [425] Capt Smith had been receiving verbal updates about the three Detainees throughout the night from TFPM Fraser and listed the information on a whiteboard in the operations centre. [426] The detainee documents (transfer forms, medical reports, lists of belongings, etc) were administered by Sgt Wall and delivered to the NCE Operations Centre by the TFPM. These documents were sent to NDCC (and later to CEFCOM) overnight into Saturday morning in Ottawa. [427] WO Wall recalled that it was normal “at the first of the tour, what I was doing was photocopying all these documents and then I was handing them to Major Fraser… so he can forward them off to I believe CEFCOM.                         .” [428] Annex E of the TSO, the Witness Statements, were submitted the next day and sent forward in a separate package. [429]

58.  Even though LCdr Gourlay had been requesting information concerning the circumstances of capture and how the Detainee 3’s injuries came about, Capt Smith                                                                                                                                                                                                                                                                       [430]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [431] LCdr Gourlay explains:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [432]

59.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 [433]  It is important to understand that the SIR was received in Ottawa well after the Detainees had been released in Afghanistan.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         [434]

                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                                                                            [435]

60.                                                                                                                                                                                                                                                                                                                                     [436]                                                                                                                                                                :

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  …. [437]

                                                                                                                                                                                                                                                                  . [438]

61.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [439]

62.  There was one more source for this information in the TSO 321A reporting system – that was the package of Witness Statements (Annex E of TSO 321A) that the                would deliver to the GS MP Platoon on the afternoon of 8 April in KAF.  Capt Tarzwell remembered that “the next day the                          came by, delivered witness statements.” [440] He recalled that the                          were surprised that the three Detainees had been transferred so quickly:

They [the witness statements] were filed.  The folks --                       and other folks were quite surprised that their detainees were gone, because I suspected that they had wished also to do some tactical questioning on them….  They [the witness statements] were received by Warrant Simms….  Did I pass them to Major Fraser, or direct that they be passed to Major Fraser, I did not. [441]

63.   There was a requirement for the circumstances of capture to be reported in the TSO; [442] neither the SIR, nor any update, included this information; and yet the information was in the GS MP Platoon’s hands.  The Board attempted to understand why the witness statements were left unreported to the chain of command:

Question: …but the requirement is for the circumstances of capture, which we had, right? So wouldn’t Sgt Wall have been trying to make sure that was entered [in a SIR update]?

Answer: I think what happened there is because we truncated at the spot we truncated, I really didn’t go any further through the TSO and say okay, what are all the other things?  It was just stop, get rid of them.  So we stopped, and we got rid of them.  There was no one saying to me, and make sure you do this. [443]

64.  While Commander CEFCOM admitted into evidence the witness statements concerning the three Detainees, [444] the CEFCOM J3 Operations staff officer who was in charge of the administration of detainee issues could not locate these documents in November 2008 in the detainee handling filing system. [445]  In the Board’s assessment, the witness statements, which contained the exact circumstances of capture, were never sent to CEFCOM or any other part of the chain of command until the current investigations requested them.  The information contained in the SIR and the other Annexes (Annex F with transfer and medical information), which were received by CEFCOM and NDCC did not contain the information relating to circumstances of capture or the details of how Detainee 3 became injured.  The limited information that was received was sent during the weekend to the appropriate authorities in ADM (Pol), DFAIT, Geneva, and the International Committee of the Red Cross (ICRC). [446]

65.  Rotating through his weekend watches, LCdr Gourlay was on watch again on Sunday evening in order to prepare the briefings to the senior leadership the next morning.  He would also actually present the Director of Staff (DOS) Monday morning briefing to the Strategic Joint Staff. In all of these briefings and presentations, [447] the main message was portrayed as follows:

“At approximately 07:                 , April, NDCC was informed that the TFA had three detainees at KAF.  The detainees were captured by elements of coalition forces at approximately                    However, details of the capture were not available.  After examination by a Role-3 hospital and interviews by TFA CI personnel, they were turned over to [ANP] forces at 08:                 , April, 2006.” [448]

66.   The broader operational action in Afghanistan continued at a rapid pace: another detainee was taken and processed on Monday morning; [449] there was a friendly fire incident; [450] and on 22 April “we had an IED attack that killed four of our soldiers.” [451]  LGen Gauthier gives an impression of the level of effort:

[So] I can assure you that within a few days of these detainees being taken the fact of those detainees being taken was overshadowed by so many other things operationally … the op tempo at the tactical level up to the theatre level…was unlike anything I have experienced in my career so far. [452]

As far as the military was concerned, the event of 6/7 April concerning three Detainees and the process of their transfer to the ANP was finished.  In the Board’s assessment, the significant information that was left in the GS MP Platoon’s files, and in the                     , would stay out of sight until the inquiries of 2007 bought them back into the spotlight.

67.  There was, however, one final prompt on the issue that came from an unexpected direction.  When the “Afghanistan Detainee Transfer Notification” was sent to the appropriate authorities in DFAIT for distribution to Geneva and ICRC, Ms. Sabine Nolke, the Deputy Director of the UN Human Rights and Humanitarian Law Section at DFAIT, sent the following query to ADM (Pol) staff:

Grateful if DND could provide an indication as to how and when the specific injuries to the three detainees described below were incurred (eg. were they resisting arrest?).  We would like to be satisfied that no allegations of mistreatment will arise against the CF as a result of these arrests, detentions and transfers. [453]

While the Board did not speak to Ms. Nolke, it is apparent from a minute on her e-mail that this query was never answered.  While this information was known, at least in theatre, DND failed to produce a response to a valid and pertinent question when they reasonably could and should have done so.  The consequence of this action was that someone did indeed speculate that the CF had abused a detainee based on incomplete information that was provided in response to an Access to Information request.

Conclusion

68.  In the Afghanistan theatre of operations during the time frame analysed by this Board, there were two distinctly different types of CF operations taking place, both of which resulted in CF members detaining individuals.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               .

69.  The three Detainees who were captured, processed, and transferred to the ANP by the CF were treated humanely and in accordance with the Rules of Engagement in force at the time.  The perceived pressure to transfer the detainees as quickly as possible caused non-compliance with the Theatre Standing Order that was in effect.  Furthermore, the confusion caused                                                                                                                                                on a detainee handling issue hampered the clear and expeditious reporting of all significant details of the circumstances of capture and the explanation of Detainee 3’s injuries.  The lack of these details caused the situational awareness of the senior leadership of the CF to be incomplete.  A query from an external agency was not answered due to problems in DND internal communications and lack of collaboration.

70.  Many lessons were learned from this early experience of detainee handing and transfer in a highly active, operational theatre.  These lessons were incorporated almost immediately into Standard Operating Procedures in theatre and policy, orders, and training at home.

71.  For the most part, all actions taken by CF members in dealing with the three Detainees were compliant with the direction in place.  There were four instances of non-compliance – none of which impacted the physical handling of detainees.  The first instance was a result of the extant TSO not aligning with CF doctrine on who could conduct TQ.  The second was associated with the failure to pass the complete information about how the three Detainees were captured to the operational and strategic levels, resulting in a lack of situational awareness that impacted the ability of the organisation to fully explain the injuries experienced by Detainee 3.  In the third instance, the perceived pressure to transfer the Detainees quickly to the Afghan authorities resulted in the processing by the MP not being fully completed on Detainee 3.  In the fourth instance, again involving the MP, the paper work called for in the TSO was not passed to the ANP as a result of security of information concerns on the part of the MP conducting the transfer.  These instances of non-compliance, while carrying consequences with respect to situational awareness and information passage, did not impact the treatment of the three Detainees.  While there were instances of non-compliance made in the administrative handling and reporting of these three Detainees, the actual handling of the three Detainees was in accordance with the orders in force and was both professional and humane in its manner. 

72.  At the completion of the Board’s comprehensive investigation, members, and advisors had heard no evidence suggesting that members of the CF have mistreated detainees in Afghanistan.  In fact, we heard of several instances where CF members went far beyond what was expected of them to protect the lives of Afghan detainees, even though doing so dramatically increased the risk to themselves and their allies.  Accordingly, the members of this Board can state without reservation that the conduct of CF personnel when dealing with detainees in the Afghanistan theatre of operations has been consistently above reproach.

73.  Furthermore, as time went forward, the CF learned from the lessons encountered in this event and from the many others during their time in the south of Afghanistan.  Theatre Standing Orders (TSO) were improved and made more accessible to the soldiers who needed them; administration and reporting systems were made more efficient; and training for detainee handling and processing was overhauled to ensure that all levels of training included the important lessons from the early experience at KAF.  Of note, the Board acknowledges the initiation of a new, formal Commander’s Advisory Group on Detainees focussed on detainees in KAF which will review detainee documentation and provide advice to the commander on release or transfer issues. [454]


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  • [2] www.forces.gc.ca/site/Newsroom/view_news_e.asp?id=490, accessed 27 Nov 2008.
  • [3] www.cefcom-comfec.forces.gc.ca/pa-ap/ops/apollo/index-eng.asp, accessed 9 Dec 2008.
  • [4] Vol 9, pp. 8-9.
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  • [29] Vol 23, pp. 64 – 65.
  • [30] Vol 32, pp. 29-30.
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  • [33] Vol 25, p. 18.
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  • [38] Vol 69, pp. 37 – 39.
  • [39] Vol 69, pp. 37 – 39.
  • [40] Vol 122, p. 6.
  • [41] Vol 118, pp. 22 – 23.
  • [42] Vol 122, pp. 17 – 18.
  • [43] Vol 32, p. 3.
  • [44], Vol 32, p. 9.
  • [45] Vol 32, pp. 3 – 4.
  • [46] Vol 001, p. 38.
  • [47] Vol 32, p. 5.
  • [48] Vol 32, pp. 3 – 4.
  • [49] Vol 32, p. 4.
  • [50] This level of command authority is referred to as Operational Command.
  • [51] Vol 32, p. 24 – 26.
  • [52] Vol 32, p. 64.
  • [53] Vol 32, p. 8.
  • [54] Vol 32, p. 9.
  • [55] Vol 32, p. 7.
  • [56] Vol 32, pp. 20 – 21.
  • [57] Vol 23, p. 4.
  • [58] Exhibit 102, the Land Forces Western Area Mounting Order for Task Force Afghanistan, identified that TFA would be generated from across LFWA with the majority of forces coming from 1 CMBG.
  • [59] Vol 23, p. 12.
  • [60] Vol 23, pp. 39 – 41.
  • [61] Vol 105, p. 65.
  • [62] Vol 107, p. 5.
  • [63] Vol 17, p. 15-18.Exhibit 89.
  • [64] Vol 127, p. 11-20.
  • [65] Vol 23, p. 3. As well as the Battle Group, TFA major elements consisted of the Provincial Reconstruction Team, the Strategic Advisory Team,                                                                                                                                    .
  • [66] Vol 23, p. 3. Combined Task Force AEGIS was the name given to the Canadian Command under OEF.
  • [67] Vol 23, p. 3.
  • [68]                                                            :
  • [69]                                                           
  • [70] Vol 23, p. 68 – 69.
  • [71] Vol 23, p. 69.
  • [72] Vol 23, p. 73.
  • [73]                                                        
  • [74] Vol 9, p. 8.
  • [75] http://cansofcom-comfoscan.mil.ca/en/background_e.asp, accessed 14 Dec 2008.
  • [76] Vol 9, p. 16.
  • [77] Vol 23, p. 61.
  • [78] Vol 23, p. 62.
  • [79] Vol 23, p. 61.
  • [80], Vol 69, p. 2.
  • [81] Task Force ORION consisted of the Battle Group plus the Provincial Reconstruction Team (PRT).
  • [82] Vol 69, p. 26.
  • [83] Vol 69, p. 19.
  • [84] Vol 69, p. 20.
  • [85] Vol 69, pp. 14 – 15.
  • [86] Vol 69, p. 15.
  • [87] Vol 69, p. 16.
  • [88] Vol 69, p. 43.
  • [89] Vol 69, pp. 36 – 37.
  • [90] Vol 69, pp. 31-32.
  • [91] Vol 69, p. 42.
  • [92] Vol 69, p. 43.
  • [93] Vol 69, p. 4.
  • [94] Vol 9, pp. 38 – 40.
  • [95] CMJ, Vol 5, No 3, Autumn 2004.
  • [96] CMJ, Vol 5, No 3, Autumn 2004.
  • [97] Vol 9, p. 5.
  • [98] Exhibit 61, CDS Op Order for                            , dated               June 05.
  • [99] Vol 2, pp. 28 – 29.
  • [100] Vol 25, p. 10.
  • [101] Vol 25, pp. 68 – 72.
  • [102] Vol 24, pp. 71 – 72.
  • [103] Vol 24, p. 72.
  • [104] Vol 24, p. 73.
  • [105] www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_ihl_history?, accessed 10 Dec 2008.
  • [106] Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864.
  • [107] Geneva Convention (III) Relative to the Treatment of Prisoners of War – 1949.
  • [108] Charter of the United Nations, completed at San Francisco on June 26, 1945.
  • [109] The North Atlantic Treaty, completed at Washington D.C. on April 4, 1949. (Washington Treaty), www.nato.int/docu/basictxt/treaty.htm, accessed 27 Nov 2008.
  • [110] Chapter VII, Article 49.
  • [111] Chapter VII, Article 51.
  • [112] Washington Treaty Article I.
  • [113] For example Geneva Conventions Act (R.S., 1985, c. G-3), Criminal Code of Canada Section 269.1 (R.S., 1985, c.10 (3rd Supp.), s.2) on Torture was enacted pursuant to an obligation in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment – 1984, signed by Canada on August 23, 1985, ratified on June 26, 1987.
  • [114] UNSCR 1368.
  • [115] Statement by the North Atlantic Council, 12 September 2001, accessed 27 Nov 2008.
  • [116] NATO’s Response to Terrorism, www.nato.int/docu/pr/2001/p01-159e.htm, accessed 27 Nov 2008.
  • [117] Vol 2, p. 6.
  • [118] S/2001/1005 – Letter dated 24 October 2001 from the Charge d’affaires of the Permanent Mission of Canada to the United Nations addressed to the President of the Security Council. www.un.prg/terrorism/letters/shtml, accessed 9 Dec 2008.
  • [119] UNSCR 1378, 14 November 2001.
  • [120] Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions. 5 December 2001 (the Bonn Agreement).
  • [121] Bonn Agreement, Annex I, paragraphs 2 and 3.
  • [122] UNSCR 1383, 6 December 2001.
  • [123] UNSCR 1386, 20 December 2001.
  • [124] Military Technical Agreement Between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan(‘Interim Administration’). www.operations.med.uk/isafmta.pdf
  • [125] www.nato.int/issues/ISAF/evolution.html, accessed on 9 Dec 2008.
  • [126] UNSCR 1563.
  • [127] See for example UNSCR 1444, UNSCR 1510, UNSCR 1536, UNSCR 1589, UNSCR 1623, UNSCR 1659, UNSCR 1662, UNSCR 1746.
  • [128] DFAIT Briefing, “Canada Making a Difference in Afghanistan,” www.afghanistan.gc.ca/Canada-afghanistan/assets/pdfs/septenber15-afgh-brief.pdf, accessed 9 Dec 2008.
  • [129] DND/CF Backgrounder, “Operation ATHENA: The Canadian Forces Participation in ISAF.” http://www.forces.gc.ca/site/newsroom/view_news_e.asp?1d=1593
  • [130] Vol 2, p. 8.
  • [131] Found in Geneva Conventions I-IV.
  • [132] Arrangement for the Transfer of Detainees Between the Government of Canada and the Government of the Islamic Republic of Afghanistan dated 18 December 2005.
  • [133] Arrangement for the Transfer of Detainees Between the Government of Canada and the Government of the Islamic Republic of Afghanistan, dated 3 May 2007, Article 2, 8 and 10.
  • [134] This description of national policy development is based on Exhibit 25: a paper by MGen Gosselin entitled, “Developing Operations Policy at National Defence – A Primer”.
  • [135] Exhibit 25, “Developing Operations Policy at National Defence – A Primer”, p. 3.
  • [136] Vol 4, p. 3.
  • [137] Exhibit 25, p. 1.
  • [138] Exhibit 25, p. 2.
  • [139] Vol 4, p. 8.
  • [140] Exhibit 25, p. 3.
  • [141] Exhibit 25, p. 5.
  • [142] Vol 26, p. 13. The term “kinetic” is used to connote combat missions. Vol 9, p. 19.
  • [143] Vol 26, p. 56
  • [144] Exhibit 55, FRAG O 001 dated 301516Z Nov 05.
  • [145] Vol 26, p. 54.
  • [146]                                                           
  • [147] To be discussed in detail in Section 7.
  • [148] Vol 32, p. 6.
  • [149] Vol 32, p. 7.
  • [150] Exhibit 128, FRAGO 001 to OPORD 001- Detainees dated 17 July 05.
  • [151] Vol 25, pp. 21 – 22.
  • [152] Exhibit 307, Appendix 1 (Tech Directive) to MP Annex to CDS OP O 800 (10/2005) CEFCOM 266
  • [153] Exhibit 40, Letter 1000-15 (J3 MP OPS) J3 MP Technical Directive 01/05, dated 12 Sept 05.
  • [154] Exhibit 41, Msg CFPM 0126 DTG 151700R Mar 06, Change Number 1 to J3 MP Technical Directive 01/05, dated 15 Mar 06.
  • [155] Vol 32, p. 6.
  • [156] Vol 23, p. 16.
  • [157] Vol 23, p. 17.
  • [158] Vol 23, pp. 31 – 32.
  • [159] Exhibit 3, Task Force Afghanistan (TFA) Theatre Standing Order (TSO) 321 A, Detention of Afghan Nationals and Other Persons, dated 1 March 2006
  • [160] Vol 26, pp. 13-14.
  • [161] Vol 26, p.57.
  • [162] Vol 29, pp. 67 – 69.
  • [163] Vol 26, p. 54 - 55.
  • [164] See for example, Annex H, to Exhibit 002, TFA – TSO 321A, Interim, Detention of Afghan Nationals and Other Persons, Dated 18 Feb 06.
  • [165] Vol 26, p. 77.
  • [166] Joint Doctrine Manual on Prisoner of War Handling Detainees and Interrogation and Tactical Questioning in International Operations 1 August 2004
  • [167] Vol 26, p. 55.
  • [168] Exhibit 104, Op O 800 - TFA – CDS OP O FOR THE CF MISSION IN AFGHANISTAN, dated 5 Dec 2005
  • [169] Vol 23, pp. 19 – 24.
  • [170] Vol 32, p. 44.
  • [171] Vol 32, p. 43.
  • [172] Vol 32, p. 44.
  • [173] Vol. 68, p. 32.
  • [174] Vol 23, p. 61.
  • [175] Exhibit 148, Commander’s Directive to Commander TFA Roto 1, dated 8 March 2006 and signed by Commander CEFCOM, page 9/19, para 20.c.
  • [176] Exhibit 2, TFA – TSO 321A, Subj:  Interim, Detention of Afghan Nationals and Other Persons, Dated 18 Feb 06.
  • [177] Vol 23, p. 61.
  • [178] Vol 23, p. 61.
  • [179] Vol 23, p. 61.
  • [180] Vol 23, p. 62.
  • [181] Vol 68, p. 31.
  • [182]                                                           
  • [183] Vol 23, p. 61.
  • [184] Vol 23, p. 61.
  • [185] Exhibit 3, TSO 321 A, signed and dated 1 Mar 06, para. 2 – 3.
  • [186] Exhibit 3, para. 18.
  • [187] Exhibit 3, para. 22.
  • [188] Exhibit 3 and Annexes.
  • [189] Exhibit 3, TSO 321 A, Annexes A, I and N.
  • [190] Exhibit 18, The Arrangement for the Transfer of Detainees Between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan, signed on 18 December 2005.  Paragraph 7 of the Arrangement requires Canada to maintain accurate written records for all detainees that have passed through “their custody” and to transfer a copy of those records when the detainee is transferred.
  • [191] Vol 23, p. 90.
  • [192] Vol 69, p. 59.
  • [193] Exhibit 58, ROE/AUTH/CDS 052-2005.
  • [194] Exhibit 18, para. 2.
  • [195] Vol 18, p. 26.
  • [196] Exhibit 18.
  • [197] Vol 9, p. 44.
  • [198] Vol 9, pp 44 – 45.
  • [199] Vol 69, p. 60.
  • [200] The specific wording from Common Article 3 to the Geneva Convention is, “… 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, sex, birth or wealth, or any similar criteria.
  • [201] Exhibit 18, para. 7.
  • [202] Vol 17, pp. 4 – 6.
  • [203] Vol 18, pp. 5 – 6.
  • [204] Vol 18, pp. 4 – 5.
  • [205] Vol 18 p. 6.
  • [206] Vol 17, p. 31.
  • [207] Vol 69, pp. 15 – 16.
  • [208] Vol 69, p. 16.
  • [209] Vol 53, p. 15.
  • [210] Vol 17, p. 32.
  • [211] Vol 18, pp. 15 – 16.
  • [212] Vol 18, pp. 25 – 26.
  • [213] Vol 69, p. 17.
  • [214] Vol 23, p. 45.
  • [215] Vol 64, p. 64.
  • [216] Vol 35, pp. 6 – 7.
  • [217] Vol 114, p. 30.
  • [218] Vol 114, p. 37.
  • [219] Vol 107, p. 5.
  • [220] Vol 6, pp. 21 – 22.
  • [221] Vol 77, p. 9.
  • [222] Vol 64, p. 10.
  • [223] Vol 23, p. 41.
  • [224] Vol 69, pp. 19 – 20.
  • [225] Vol 9, p. 38.
  • [226] Vol 9. p. 39
  • [227] Vol 9, pp. 68 – 69.
  • [228] Vol 9, p. 40
  • [229] Exhibit 50, Prisoners of War Handling Detainees and Interrogation &Tactical Questioning in International Operations, Joint Doctrine Manual, dated 2004-08-01.
  • [230] Exhibit 55, SOF Task Force FRAG O dated 30 Nov 2005, para 23.
  • [231] Vol 10, pp. 31 – 32.
  • [232] Vol 9, p. 20.
  • [233] Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual B-GJ-005-104/FP-021 dated 10 June 2005.
  • [234] Vol 17, p. 19.
  • [235] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para. 101.
  • [236] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para. 102.
  • [237] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para. 104.
  • [238] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para. 106.
  • [239] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para 106.
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  • [242] Vol 53, p. 20.
  • [243] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, p. 1-4 / 10.
  • [244] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para 108.
  • [245] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para 109.
  • [246] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para 205.
  • [247] Vol 23, p. 39.
  • [248] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para 205.
  • [249] Vol 17, p. 20.
  • [250] Use of Force in CF Operations, Joint Doctrine Manual B-GJ-005-501/FP-000 2001-06-01, para 206.
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  • [252] Vol 53, p. 20.
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  • [254] Vol 24, p. 9.
  • [255] Vol 24, p. 9.
  • [256] Vol 24, p. 8.
  • [257] Vol 24, p. 71.
  • [258] Vol 24, p. 72.
  • [259] Vol 24, p. 73.
  • [260] Exhibit 116.
  • [261] Vol 24, pp. 30 – 31.
  • [262] Vol 79, p. 48.
  • [263] Vol 60, pp. 25 – 26.
  • [264] Vol 60, p. 72.
  • [265] Vol 60, pp. 39 – 43.
  • [266] Vol 24, p. 38.
  • [267] Vol 60, p. 48.
  • [268] Vol 60, p. 50.
  • [269] Vol 60, pp. 40 – 45.
  • [270] Vol 61, pp. 30 – 31.
  • [271] Vol 61, p. 72.
  • [272] Vol 60, p. 56, and Vol 79, pp. 154 – 155.
  • [273] Vol 79, p. 92.
  • [274] Vol 81, p. 59.
  • [275] Vol 79, p. 100.
  • [276] Vol 79, p. 104.
  • [277] Vol 79, p. 110.
  • [278] Vol 79, p. 108.
  • [279] Vol 79, p. 118.
  • [280] Vol 79, p. 111.
  • [281] Vol 79, p. 111.
  • [282] Vol 79, p. 112.
  • [283] Vol 79, p. 177.
  • [284] Vol 79, pp. 92 – 118.
  • [285] Vol 79, p. 118.
  • [286] Vol 79, p. 118.
  • [287] Vol 79, p. 120.
  • [288] Vol 77, p. 26.
  • [289] Vol 77, pp. 28-29.
  • [290] Vol 61, pp. 46-49.
  • [291] Vol 63, p. 29.
  • [292] Vol 61, p. 50.
  • [293] Vol 81, p. 65.
  • [294] Vol 61, p. 41.
  • [295] Vol 24, p. 39 – 40.
  • [296] Vol 61, p. 86.
  • [297] Vol 61, p. 83.
  • [298] Vol 024, p. 40.
  • [299] Vol 075, p. 48.
  • [300] Vol 106, pp. 50 – 51.
  • [301] Vol 106, pp. 67 – 69.
  • [302] Vol 106, p. 69.
  • [303] Vol 23, pp. 136 – 137.
  • [304] Vol 31, p. 69.
  • [305] Vol 31, p. 69-70.
  • [306] Vol 107, pp. 24 – 25.
  • [307] Vol 114, p. 7 and p. 37.
  • [308] Vol 106, p. 51.
  • [309] Vol 107, p. 6.
  • [310] Vol 109, p. 19, and Vol 120, p. 18.
  • [311] Vol 106, p. 51.
  • [312] Vol 120, p. 17.
  • [313] Vol 124, p. 7.
  • [314] Vol 88, pp. 18 – 20.
  • [315] Vol 106, pp. 51 – 53.
  • [316] Vol 105, p. 25.
  • [317] Vol 106, p. 57.
  • [318] Vol 120, p. 22.
  • [319] Exhibit 316.
  • [320] Vol 88, pp. 23 – 24.
  • [321] Vol 109, p. 21.
  • [322] Vol 109, p. 27.
  • [323] Vol 109, p. 20.
  • [324] Vol 120, pp. 20 – 21.
  • [325] Vol 106, pp. 46 – 47.
  • [326] Vol 88, p. 24.
  • [327] Vol 88, p. 24.
  • [328] Exhibits 122, 123, and 124, Annex F therein.
  • [329] Vol 88, p.24.
  • [330] Vol 120, p. 19.
  • [331] Vol 109, p. 22.
  • [332] Vol 198, p. 15.
  • [333] Vol 106, p. 66.
  • [334] Vol 109, pp. 22 – 23.
  • [335] Vol 109, p. 24.
  • [336] Vol 109, p. 24.
  • [337] Vol 108, p. 16.
  • [338] Vol 109, p. 24.
  • [339] Vol 108, p. 16.
  • [340] Vol 076, p. 17.
  • [341] Exhibit 316, p. 4.
  • [342] Vol 76, pp. 17 – 20.
  • [343] Vol 110, pp. 15 – 16.
  • [344] Vol 76, p. 18.
  • [345] Vol 76, p. 20.
  • [346] Vol 76, p. 16 – 17.
  • [347] Vol 76, p. 32.
  • [348] Vol 76, pp. 30 – 31.
  • [349] Vol 76, p. 17.
  • [350] Exhibits 268, 269 and 270.
  • [351] Vol 76, pp. 20 – 23.
  • [352] Exhibit 268. (Record A34)
  • [353] Exhibit 269.
  • [354] Exhibit 316, p. 9.
  • [355] Vol 110, p. 25.
  • [356] Vol 76, pp. 30 – 31.
  • [357], Vol 76, p. 34.
  • [358] Exhibit 270.
  • [359] Vol 76, pp. 45 – 46.
  • [360] Vol 76, pp. 60 – 61.
  • [361] Vol 97, p. 14.
  • [362] Vol 97, p. 43.
  • [363] Vol 110, p. 28.
  • [364] Vol 110, p. 28.
  • [365] Vol 121, p. 20.
  • [366] Vol 122, pp. 10-11.
  • [367] Vol 119, p.17.
  • [368] Vol 125, pp. 13-14.
  • [369] Vol 107, pp. 24 – 25.
  • [370] Vol 107, pp. 21 – 22.
  • [371], Vol 120, p. 18.
  • [372] Vol 112, p. 30 – 31.
  • [373] Exhibit 316.
  • [374] Vol 107, pp. 33 – 34.
  • [375] Vol 107, pp. 35 – 39.
  • [376] Vol 107, pp. 33 – 34.
  • [377] Vol 117, pp. 21 – 22.
  • [378] Vol 105, p. 44.
  • [379] Vol 105, p. 47.
  • [380] Vol 105, p. 48.
  • [381] Vol 105, p. 45.
  • [382] Vol 105, p. 46.
  • [383] Vol 107, p. 42.
  • [384] Vol. 112, p. 32.
  • [385] Vol 95, p. 7.
  • [386] Vol 95, p. 12.
  • [387] Vol 78, p. 21.
  • [388] Vol 78, pp. 23 – 24.
  • [389] Vol 95, p. 16.
  • [390] Exhibits 295, 296 and 316.
  • [391] Vol 95, pp. 17 – 18.
  • [392] Vol 95, p. 18 and Vol 78, p. 60.
  • [393] Exhibits 268, 269 & 270 (Medical Records)
  • [394] Vol 78, pp. 42 – 43.
  • [395] Vol 78, p. 29.
  • [396] Vol 91, pp. 18 – 19.
  • [397] Vol 78, pp. 39 – 40.
  • [398] Vol 106, pp. 60 – 61.
  • [399] Vol 23, p. 128.
  • [400] Vol 106, p. 56.
  • [401] Vol 105, pp. 25 – 26.
  • [402] Vol 106, p. 57.
  • [403] Vol 106, p. 73.
  • [404] Vol 67, p. 56.
  • [405] Vol 105, p. 22.
  • [406] Vol 105, p. 36.
  • [407] Vol 105, pp. 39-40.
  • [408] Exhibits 295, 296, 297.
  • [409] Vol 106, pp. 61 – 64.
  • [410] Vol 107, p. 42.
  • [411] Exhibit 297.
  • [412] Vol 107, p. 54.
  • [413] Vol 106, p. 63.
  • [414] Vol 106, pp. 73 – 74.
  • [415] Vol 106, p. 76
  • [416] Vol 117, p. 18.
  • [417] Vol 119, p. 28.
  • [418] Vol 119, pp. 28 – 29.
  • [419] Vol 119, p. 16 – 17.
  • [420] Vol 119, p. 19.
  • [421] Exhibit 308.
  • [422] Vol 119, p. 20.
  • [423] Exhibit 154 (SIR TFA 031) (page 55 of 176 in electronic version)
  • [424] Vol 119, p. 30.
  • [425] Vol 122, p. 11.
  • [426] Vol 122, p. 25.
  • [427] Vol 119, p. 50 and Exhibit 154 (page 57 to 84 of 176 in electronic version)
  • [428] Vol 107, p. 67.
  • [429] Vol 106, p. 82.
  • [430] Vol 122, p. 9.
  • [431] Vol 121, p. 16.
  • [432] Vol 119, pp.37 – 38.
  • [433] Exhibit 154. (page 46 of 176 in electronic version).
  • [434] Vol 119, p. 21.
  • [435] Exhibit 154. (page 51 of 176 in electronic version).
  • [436] Vol 125, p.11.
  • [437] Vol 125, pp. 11 – 12.
  • [438] Vol 125, p.14.
  • [439] Vol 125, p.14.
  • [440] Vol 106, p.82.
  • [441] Vol 106, p. 83.
  • [442] Exhibit 3, para. 39.
  • [443] Vol 106, p. 91.
  • [444] Exhibit 154 (page 51 of 176 in electronic version)
  • [445] Vol 126, pp. 13 – 14.
  • [446] Vol 119, pp. 40 – 41.
  • [447] Vol 119, pp. 41 – 46. Exhibits 310, 311, 312, 313, and 314.
  • [448] Vol 119, pp. 41 – 42.
  • [449] Vol 119, p. 52.
  • [450] Vol 31, p. 91.
  • [451] Vol 31, p. 92.
  • [452] Vol 31, pp. 92 – 93.
  • [453] Exhibit 154 (page 104 of 176 in electronic version).
  • [454] Exhibit 322, p. 3/12.