Wrong document. O'Connor is still on the hook for his ICRC claim

Stephen Taylor is trying desperately to get Gordon O'Connor off the hook for his mis-step on the detention and transfer of prisoners captured by Canadian troops using this document. (Caution. Large PDF file)

While I understand the confusion Taylor is experiencing and his desire to interpret portions of the Joint Doctrine Manual Prisoner of War Handling Detainees And Interrogation & Tactical Questioning in International Operations in O'Connor's favour, he's got it wrong.

Taylor quotes one section of the document claiming it is the erroneous information to which O'Connor was referring when he assured Parliament that the International Committee of the Red Cross would report to Canada if prisoners transfered to Afghanistan authorities were being mistreated.

Even after PW captured by Canada have been transferred to the custody of another nation, there is still a residual responsibility placed on Canada regarding their treatment. If the Government of Canada is notified by the Protecting Power, usually the ICRC, that the Detaining Power to whom the PW have been transferred is not complying with the provisions of the GCs, Canada has a duty to correct the problem, or to take the PW back into Canadian custody.

Taylor is trying to suggest that the statement "usually the ICRC" is sufficient policy direction to convince the minister that the ICRC held a position which would see them report to Canada if prisoners transfered to Afghanistan were mistreated.

First, the document is a part of CF doctrine. It is not specific to Afghanistan.

Secondly, because the document is doctrine, it requires clarification for a specific mission. In this case, the ICRC is identified as "usually" providing services for the Protecting Power. In order for them to actually do that, they have to be delegated the job by a Protecting Power and the ICRC reports back to the Protecting Power. In the case of Afghanistan, the ICRC has not been appointed a delegate of a Protecting Power.

Therefore, O'Connor who, as a former brigadier-general, is very well aware of the difference between policy documents, doctrine and operational orders should have known full-well that in order for the ICRC to have direct involvement with Canada over transfered prisoners, there would have to be clearly laid-out authority issued to the ICRC to represent a Protecting Power.

The same document in article 105, paragraph 2 explains the role of the International Committee of the Red Cross with regards to prisoners:

2. The ICRC is a neutral and private organisation based in Switzerland. Its work is conducted in conjunction with National Red Cross and Red Crescent Societies, the International Federation of Red Cross and Red Crescent Societies, governments and voluntary organisations. The ICRC has a number of roles stemming from its principal responsibility for monitoring the application of the GCs and APs by signatory states. These can be summarised as follows: a. Aid to Prisoners of War. The ICRC helps wounded, sick and shipwrecked members of armed forces and PW. It attempts to improve their conditions of captivity over the whole period from their capture to their release. It carries out this work through its own delegates and in conjunction with the agency of the Protecting Power. b. Aid to Civil Populations. The ICRC acts on behalf of civil populations, whether they are in friendly territory, enemy territory or in occupied areas, and acts as a neutral intermediary to relieve unnecessary suffering. c. The Central Tracing Agency. The Central Tracing Agency of the ICRC collects all the information it may obtain (through official or private channels) regarding PW, civilians (especially internees) in the power of a Party to the conflict and missing persons. The Agency then transmits such information to the state of origin of the relevant persons.

Then there is article 106, paragraph 2 which provides the definition of a Protecting Power.

2. Definition. The Protecting Power is a non-belligerent State, which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power. A “substitute” is an organisation acting in place of a Protecting Power when agreement of Protecting Power nominations between Parties to the conflict cannot be reached.

A "substitute" is a delegated organization and must still be agreed upon by parties to the conflict. Article 106 further states:

3. Discharge of Responsibilities. As alluded to above, whilst there is an obligation upon Parties to the conflict to designate a Protecting Power, there is no guarantee that nominations will be acceptable to the adverse Party. Should there be no agreement after the subsequent intercession of the ICRC to mediate, then an offer by the ICRC or any other impartial humanitarian organisation to act as a ‘substitute’ Protecting Power, as defined in the previous paragraph, should be accepted. The Protecting Power will exercise its function through: a. Representatives. The normal diplomatic and consular personnel of the Protecting Power. b. Delegates. Persons appointed by the Protecting Power to discharge its functions under the GCs. Delegates will normally be nationals of the Protecting Power or of another neutral state. Members of the ICRC may also be appointed as delegates by the Protecting Power. It will normally be the Delegates who ensure, through physical checking, that PW are being treated in accordance with the GCs and AP I.

In the case of Afghanistan, the ICRC is not a "substitute" Protecting Power and the ICRC has made that clear.

To rely on the guidance in this document as definitive operational direction is folly. It provides a framework with the typical amount of "usual" and "ordinarily", but it is not a directive. In order to clarify the role of a Protecting Power another, more specific, document is required. One which would refer back to this one. That must exist since the ICRC is not acting as a "substitute". The Afghan Independent Human Rights Commission is the authority monitoring prisoner treatment and O'Connor should have been aware of that right from the start.

Sorry, Stephen Taylor, your argument carries no weight.

The document in question is not false since it provides no definitive delegation of Protecting Power. It merely suggest which group might be, and in the case of the Afghanistan mission another organization has been given the task. A home-grown Afghani group with whom Canada has no extensive experience.

That O'Connor did not know this with authority indicates incompetence.

He's still on the hook for this one.

(Thanks to CC for the tip)