Arrangement between the Government of Canada and the Government of the United States of America concerning the transfer of persons between the Canadian Forces and the U.S. Forces in Afghanistan

Original signed document in PDF format

The Government of Canada and the Government of the United States of America (hereinafter referred to as “the Participants”);

Desiring to establish procedures to facilitate the transfer by the military forces of Canada (Canadian Forces) to the military forces of the United States (U.S. Forces) of persons detained in Afghanistan;

Desiring to ensure the humane treatment of detainees;

Recognizing the sovereignty and territorial integrity of the Islamic Republic of Afghanistan; and

Bearing in mind the respective obligations of Canada and the United States under applicable international law and their respective domestic laws;

Have reached the following understandings:

Paragraph 1 – Purpose

The purpose of this Arrangement is to establish principles and procedures concerning the transfer of persons detained in Afghanistan by Canadian Forces to U.S. Forces and to give effect to the Participants’ obligations under applicable international law and their respective domestic laws relating to the treatment and transfer of such persons.

Paragraph 2 – Definition

In this Arrangement, the term “Detainee” means any person, other than a Canadian national, whose detention, for whatever reason, occurred at the hands of the Canadian Forces in Afghanistan.

Paragraph 3 – Transfer Process

1. Canadian Forces may transfer into the care, custody, and control of U.S. Forces any Detainee who:
   1. Was detained by Canadian Forces in Afghanistan;
   2. Is assessed by the military forces of both Participants to pose a continuing threat to stability and counter-terrorism efforts in Afghanistan or to the safety and security of coalition forces or the civilian population of Afghanistan, or a threat to export terrorist violence beyond the borders of Afghanistan; and,
   3. Is determined by U.S. Forces to meet established criteria for detention in U.S. military detention facilities in Afghanistan.
2. Such transfers are to take place in accordance with a process to be jointly decided in an Implementing Arrangement.
3. Upon transfer of any Detainee pursuant to this Arrangement, Canadian Forces are to provide full details of the acts or circumstances on which the decision to detain was based, and any other information that may be relevant for further decisions regarding the categorisation, prosecution, or continued detention of the transferred Detainee, as jointly decided by the Participants. The use of any information exchanged pursuant to this Arrangement is subject to the restrictions and responsibilities contained in existing and future agreements and arrangements, including the General Security Agreement Covering the Exchange of Classified Information between the Government of the United States of America and the Government of Canada dated January 30, 1962 and the 1994 Exchange of Notes Constituting an Agreement Between the Government of Canada and the Government of the United States of America to Facilitate Co-Operation Between Military Services of the Two Countries dated August 19, 1994.  
4. Canadian Forces are to make available to U.S. Forces, upon request, all information gathered from Detainees while under Canadian control, and U.S. Forces are to make available to Canadian Forces, upon request, all information gathered from Detainees while under U.S. control, subject to the caveats referenced in Paragraph 3.3.

Paragraph 4 – Responsibility

1. Upon transfer from Canadian Forces, U.S. Forces are to accept responsibility for transferred Detainees only for such time as the Detainees remain in their care, custody, and control.
2. U.S. Forces’ responsibility for Detainees transferred by Canadian Forces is to commence from the moment at which U.S. Forces assume care, custody, and control of said Detainees.
3. Upon transfer from Canadian Forces, U.S. Forces are to hold transferred Detainees at the U.S. Detention Facility in Parwan Province for such time as the Detainees remain in the care, custody, and control of U.S. Forces. The transfer of Detainees from U.S. Forces to the care, custody, and control of any other facility, third party, or country is subject to Paragraph 9 of this Arrangement.  
4. Upon request by Canadian Government officials, U.S. Forces are to return the transferred Detainee to the care, custody, and control of Canadian Forces, consistent with U.S. national security interests and following mutual consultation between the Participants.

Paragraph 5 – Treatment of Transferred Detainees

At all times while a transferred Detainee is in the care, custody, and control of U.S. Forces, U.S. Forces are to ensure that the transferred Detainee is treated humanely and in accordance with U.S. law and policy, and applicable international law, including Common Article 3 of the Geneva Conventions.

Paragraph 6 – Access and Questioning

1. Representatives of the International Committee of the Red Cross and Red Crescent (ICRC) and the Afghan Independent Human Rights Commission (AIHRC) are to have full access to transferred Detainees and the facility in which they are held, for the purposes of monitoring the welfare and conditions of detention of transferred Detainees, except as required for reasons of imperative military necessity.
2. Upon request, Canadian Government officials, and interpreters employed by them, are to have full access to transferred Detainees and the facilities in which they are held for the purpose of monitoring the welfare and conditions of detention and conducting interviews of transferred Detainees in accordance with US policies and procedures. The interviews are to take place in the privacy of an interview room; however, US Forces will monitor such interviews for the purpose of security and interview participant safety.
3. Canadian Government officials are to have full access to transferred Detainees and the facility in which they are held for the purpose of being present during and/or conducting or participating in any questioning of transferred Detainees. During such access, Canadian Government officials are to comply with U.S. Department of Defense (DoD) policies and procedures should they conduct or participate in intelligence interrogations, detainee debriefings, or tactical questioning of any person who is in the custody or under the effective control of the U.S. Department of Defense. All such questioning for the purpose of collecting intelligence is to be monitored and, as appropriate, recorded, as required by DoD Directive 3115.09, “DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning,”October 9, 2008, and Directive-Type Memorandum (DTM) 09-031, “Videotaping or Otherwise Electronically Recording Strategic Intelligence Interrogations of Persons in the Custody of the Department of Defense,”May 10, 2010.
4. U.S. Forces, upon request, are to provide interpreters during any questioning of transferred Detainees.

Paragraph 7 – Records and Reporting

1. U.S. Forces are to account for all transferred Detainees, including by maintaining records on their status, location, and condition. Records are to be made available for inspection, upon request, by Canadian Government officials, the ICRC, and the AIHRC.
2. In the event that a Participant obtains information that a transferred Detainee has been mistreated, the Participant is to inform the other Participant as soon as possible. The Participant whose military forces exercised care, custody, and control over the transferred Detainee at the time the mistreatment is alleged to have occurred is to investigate the allegations and, when appropriate, prosecute those responsible. The Participant whose military forces exercised care, custody, and control over the transferred Detainee at the time the mistreatment is alleged to have occurred is to inform the other Participant of the steps taken to investigate the allegations and any corrective action taken.

Paragraph 8 – Canadian Nationals

Notwithstanding Paragraphs 2 and 4.3., if a transferred Detainee is subsequently discovered to be a Canadian national, U.S. Forces, upon Canadian Forces’ request, are to return such transferred Detainee to Canadian Forces’ care, custody, and control.

Paragraph 9 – Onward Transfer or Release

1. Detainees transferred by Canadian Forces are to be considered by U.S. Forces for prosecution under Afghan law at the Justice Center in Parwan located adjacent to the U.S. Detention Facility in Parwan Province. Following such consideration and a decision by relevant Afghan authorities, transferred Detainees that have been referred for prosecution under Afghan law are to be presented to Afghan authorities to commence judicial proceedings as soon as practicable.
2. U.S. Forces are to notify Canadian Government officials at least 48 hours prior to the transfer, re-integration, or release of any transferred Detainee, from the care, custody, and control of U.S. Forces in order to enable Canadian Government officials to be present for a transfer or release. U.S. Forces also are to notify Canadian Government officials in advance of scheduled Detainee Review Board proceedings to enable Canadian Government officials to attend these proceedings.
3. Upon transfer of any transferred Detainee from the care, custody, and control of U.S. Forces to the care, custody, and control of the Government of the Islamic Republic of Afghanistan, U.S. Forces are to notify the Government of the Islamic Republic of Afghanistan (GIRoA) that Canadian Forces detained the transferred Detainee.
4. U.S. Forces are to ensure that no transferred Detainee is transferred from the care, custody, and control of U.S. Forces at the U.S. Detention Facility in Parwan Province to the care, custody, and control of any facility, third party, or country, other than to the Afghan-controlled portion of the Detention Facility in Parwan, without the written consent of Canadian Government officials.
5. In the event that Canadian Government officials object to the proposed transfer of the transferred Detainee from the care, custody, and control of U.S. Forces to the care, custody, and control of a third party or country (other than Afghanistan), Canadian Forces are to accept the return of the transferred Detainee to their care, custody, and control, upon request by U.S. Forces.

Paragraph 10 – U.S. Legal Proceedings

U.S. Forces are to consult with Canadian Government officials prior to the initiation of any U.S. legal proceedings involving a transferred Detainee and notify Canadian Government officials whether any Canadian-sourced information will be used in the proceedings, as well as of the outcome of any U.S. legal proceedings involving a transferred Detainee.

Paragraph 11 – Liaison, Settlement of Disputes, Inconsistencies

1. Any disputes arising from the interpretation or implementation of this Arrangement are to be settled amicably by consultation or negotiation and:
   1. in the first instance, between the Commander, Canadian Contingent Training Mission Afghanistan and the Deputy Commander for Detention Operations, U.S. Forces – Afghanistan;
   2. thereafter, through diplomatic channels.
2. Where this Arrangement is inconsistent with other arrangements between the Participants, this Arrangement is to prevail to the extent of any inconsistency, unless the Participants jointly decide otherwise.

Paragraph 12 – Review

1. The Arrangement may be modified or reviewed at any time by mutual consent of the Participants.
2. Any modifications are to be in writing.

Paragraph 13 – Duration

1. This Arrangement is to come into effect on the date of signature.
2. This Arrangement may be discontinued by giving 120 days written notice to the other Participant or by the mutual consent of the Participants.
3. This arrangement is not intended to have legally binding effect under international law.

Paragraph 14 – Implementing Arrangement

The Participants are to designate appropriate representatives in Afghanistan to establish mutually acceptable processes and procedures regarding the transfer of Detainees from Canadian Forces to U.S. Forces pursuant to the Arrangement. The Participants are to memorialize these processes and procedures in an Implementing Arrangement to be concluded by their representatives in Afghanistan.

Signed at Arlington this 18 day of November 2011, in the English language, with an equally valid French language version to be signed within thirty days.

For more information visit the news release and the backgrounder.