2018-2019 Annual Report to the Minister of National Defence: Application of the Act and the Directions to DND/CAF for Avoiding Complicity in Mistreatment by Foreign Entities

Table of contents

Introduction

This report by the Department of National Defence (DND) and the Canadian Armed Forces (CAF) is presented to the Minister of National Defence (MND) pursuant to the Governor in Council’s Directions for Avoiding Complicity in Mistreatment by Foreign Entities (Deputy Minister of National Defence and the Chief of the Defence Staff) (the 2019 Directions), which were issued under the Avoiding Complicity in Mistreatment by Foreign Entities (ACMFE) Act (the Act).

In accordance with clause 23 of the Ministerial Direction to the Department of National Defence and the Canadian Armed Forces: Avoiding Complicity in Mistreatment by Foreign Entities (the 2017 MD), the classified version of this report included:

  1. Any substantial risk cases where the 2017 MD was engaged, including the number of cases;
  2. The restriction of any arrangements due to concerns related to mistreatment; and
  3. Any changes to internal policies and procedures related to the 2017 MD.

This unclassified version of the report contains the contents described above without containing information:

  1. In accordance with subsection 7(2) of the Act:
    1. the disclosure of which would be injurious to national security, national defence or international relations or compromise an ongoing operation or investigation; or
    2. that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.
  2. In accordance with clause 25 of the 2017 MD:
    1. that compromises the national interest, the effectiveness of operations, or the safety or security of an individual.

This report describes the activities that support DND/CAF compliance with the 2017 MD, the 2019 Directions and the Act from 01 December 2018 to 31 December 2019. We note that this extended reporting period exceeds the calendar year requirement under the Act. The inclusion of the period from 01 December 2018 to 31 December 2018 was made to ensure a seamless reporting period occurred during the transition from the reporting requirements under the 2017 MD (November 2017 to 30 November 2018) to the annual reporting requirements under the Act.

DND/CAF Information Sharing and Operational Governance

Background

DND/CAF shares defence-related information with other government departments, agencies, international partners and allies as a means to contribute to the defence and security of Canada, satisfy international defence-related obligations, and preserve human life. Information sharing with foreign entities is vital to DND/CAF’s ability to maintain strong relationships and address threats to national security and national defence in the fulfillment of its multilateral and global mandate. DND/CAF conducts operations and activities according to applicable Canadian and international law, including that which governs information sharing.

Mistreatment is by definition inconsistent with the DND/CAF mission to defend Canadian interests and values, at home and abroad. As acknowledged in the 2017 MD, torture and other cruel, inhuman, or degrading treatment or punishment serve no legitimate military, law enforcement, or intelligence gathering purpose. The Act reflects broader international obligations placed on Canada by customary international law, the Law of Armed Conflict (LOAC), and from international agreements to which Canada is a party including: the Geneva Conventions and their Additional Protocols, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (CAT). These Canadian legal obligations permeate through DND/CAF’s internal governance and oversight mechanisms.

DND/CAF took several steps to implement the 2017 MD, the Act and the 2019 Directions, and to ensure that any risk of complicity in mistreatment in the conduct of military operations would be assessed and mitigated.

DND/CAF Governance and Accountability Framework

DND/CAF conducts its operations and activities within a robust accountability framework, subject to: applicable Canadian and international laws, Cabinet direction, Ministerial authorization and oversight, the authority of the DM and CDS, Level 1s (ADM-level), and operational commanders, as well as internal compliance and oversight mechanisms and bodies. The latter includes the chain of command, oversight boards and compliance processes as well as policies, directives and Operational Orders that have been developed through extensive consultation with policy, legal and operational stakeholders. This accountability framework has been supplemented with the creation of two external review bodies in 2017 and 2019, respectively – the National Security and Intelligence Committee of Parliamentarians (NSICOP) and the National Security and Intelligence Review Agency (NSIRA).

CAF members and DND employees, including those responsible for sharing information with foreign entities, are required to fully respect applicable legal obligations, as well as DND/CAF orders, directives, policies and procedures concerning the sharing and the protection of information. The imperative to operate in a lawful and policy-compliant manner is both a personal and an institutional obligation.

Policy and Procedures Update

Phase One: The 2017 Ministerial Direction

The issuance of the 2017 MD represented a significant addition to DND/CAF’s policy framework. Firstly, it strictly prohibited the exchange of information (request from and/or disclosure to a foreign entity) if the substantial risk of mistreatment could not be mitigated. Secondly, and most significantly, the 2017 MD applies to all aspects of DND and CAF activities, not just the sharing of defence intelligence and intelligence-derived information. Additionally, the 2017 MD prescribed specific advisory and referral mechanisms to support the assessment of the risk of mistreatment and decisions to share or not share information, and also created new reporting obligations to the MND, external review bodies, as well as the public.

Given these changes, DND/CAF developed comprehensive orders, policies and procedures to ensure that the information it discloses, requests or uses does not involve, nor lead to, the mistreatment of an individual by a foreign entity. Measures undertaken in 2017-2018 to implement the 2017 MD included the:

Throughout 2018-2019, additional measures were taken to implement the 2017 MD, including the:

DND/CAF also implemented multiple mitigation measures to assess and inform senior DND/CAF leadership of the potential risks associated with information sharing activities with partner forces in Iraq under Operation IMPACT.

Phase Two: The 2019 Act and 2019 Directions

The Act (which came into force in July 2019), and Directions issued in September 2019, supplemented the direction issued to DND/CAF in the 2017 MD. The Act added reporting requirements to the NSIRA, which had been created earlier that year. The coming into force of the Act and the issuance of the 2019 Directions prompted DND/CAF to undertake a comprehensive review of the 2017 MD and all associated orders and directives, resulting in the development of harmonized policies and directives, which are being finalized and will include:

Until such time as the revised policy suite is completed, DND/CAF remains subject to a robust framework that includes:

This is complemented by a rigorous RDO/A Training Program that all military and civilian personnel are required to complete if they are incumbents of positions responsible for the sharing of information with foreign entities.

Substantial Risk Cases and Restrictions on Information Sharing

During the reporting period, DND/CAF identified no case of substantial risk of mistreatment requiring referral to the DISAC or determination by the CDS/DM as per the decision-making mechanism outlined in the 2019 Directions and/or the 2017 MD. This results from a combination of factors, including the application of standard practices and risk mitigation measures.

Common Practices and Considerations

By virtue of the global scope of its activities, the extent to which DND/CAF shares information varies significantly between its various engagements with partners and Allies. DND/CAF maintains its greatest level of privileged information and intelligence sharing with NORAD and the Five-Eyes (FVEY – Australia, Canada, New Zealand, the United Kingdom, and the United States of America) – which are both long-standing and highly integrated relationships characterized by shared values and enduring mutual trust.

As a result of the varying nature of its mission sets and multilateral partnerships, DND/CAF has to continually adjust its information and intelligence sharing posture in an effort to balance the operational need-to-share underpinning mission success and the preservation of life, against the need-to-know (intelligence requirements) and right-to-know (appropriate clearances and systems) principles governing the access to sensitive operational information and defence intelligence. DND/CAF must also ensure that its information and intelligence sharing posture takes into account its legal obligations under applicable Canadian and international law. Thus, and notwithstanding the strength of its relationships, DND/CAF remains sensitive to any change of circumstances which may justify restricting information sharing.

Monitoring and Reporting

Throughout the reporting period, DND/CAF maintained a variety of monitoring and reporting mechanisms to ensure that its information sharing practices complied with the provisions of the Act, the 2019 Directions, the Minister’s written direction to adhere to the 2017 MD, the DM/CDS Directive, and the CDI Interim Functional Directive to avoid complicity in mistreatment by foreign entities. For example, DND/CAF raised awareness across the defence community on its obligations related to avoiding complicity in mistreatment, including through multiple engagements with L1 organizations and with personnel posted outside Canada.

CFINTCOM also led the training and qualification of DND employees and CAF members responsible for information sharing as part of RDO/A training.

DND/CAF also instituted tangible measures to ensure that relevant decision makers and advisors are rapidly informed of emerging concerns over the potential incidence of mistreatment in CAF areas of operations.

Finally, throughout the reporting period, personnel involved in information sharing including deployed RDOs regularly consulted the CFINTCOM Release and Disclosure Coordination Office (RDCO) for advice and/or to validate that their proposed information sharing complied with applicable laws, policies, Memoranda of Understanding (MOU), arrangements and other relevant regulations. None of those inquiries were directly associated to a specific concern over an identified risk of mistreatment of an individual. Rather, most inquiries pertained to dissemination methods recommended by the RDCO, or procedural matters such as the inclusion of a country presenting a low risk of engaging in mistreatment in a routine distribution list.

Special Working Groups and Committees

DND/CAF created a governance framework to allow rapid and efficient decision-making and chain of command awareness from tactical commanders to L1 operational commanders and, as required, to the DM, CDS and MND. This framework included the creation of two bodies for consultation and decision-making: The Defence Information Sharing Working Group (DISWG) and the Defence Information Sharing Assessment Committee (DISAC). DND/CAF is also an active member of the Information Sharing Coordination Group (ISCG), a forum for supporting interdepartmental collaboration in the implementation of the Avoiding Complicity in Mistreatment by Foreign Entities Act.

Defence Information Sharing Working Group (DISWG). The DISWG provides a platform for open discussion among representatives from relevant L1 organizations and Operational Commands on existing or proposed information sharing arrangements. The DISWG topics of discussion may include, but are not limited to, reporting pertaining to mistreatment, lessons learned, challenges and potential operational impacts. DISWG members examine whether allegations of mistreatment could implicate DND/CAF partner forces in theatre and whether that information changes the DND/CAF assessment that there is no substantial risk of mistreatment by partner forces. The DISWG meets once a month but can meet more frequently as required (e.g. should an alleged case of mistreatment arise).

The DISWG membership is comprised of representatives from the Strategic Joint Staff (SJS), the Assistant Deputy Minister for Policy (ADM (Pol)), the Canadian Joint Operations Command (CJOC), the Canadian Special Operations Forces Command (CANSOFCOM), the Office of the Judge Advocate General (OJAG), the Office of the Legal Advisor to DND/CAF (DND/CF LA), and CFINTCOM. Records of Discussion are documented by the DISWG Secretariat, distributed to the DISWG membership, and submitted to the CDS/DM as required, through CDI and/or the relevant L1 Op Comd.

The DISWG is a key part of the DND/CAF governance framework for information sharing and provides advice to L1 operational commanders in the case where Release and Disclosure officers in theater assess that an information sharing request could raise a substantial risk of mistreatment or if they are unsure. Based on the advice provided in the DISWG Record of Discussion, and in keeping with the fundamental principles of military command and control (command driven, unity of command, unity of purpose) the L1 Operational Commander will determine whether a proposed information sharing request can be allowed under the MD. If doubt continues to exist with respect to whether or not a substantial risk of mistreatment can be mitigated, the DISAC (see below) will be convened.

In order to provide an independent view of the operational commander’s assessment, the Director of Staff for the Strategic Joint Staff, the Assistant Deputy Minister for Policy, or any other L1 commander is obligated to convey their concerns or reservations, if any, directly to the CDS and DM. This process has been established to ensure that decisions made by a L1 Operational Commander on the most sensitive requests for information sharing are not based solely on operational imperatives or unduly influenced by operational interests.

The DISWG met on twelve occasions during the reporting period and identified no substantial risk of mistreatment of an individual resulting from an actual or proposed DND/CAF information sharing activity. Nevertheless, the DISWG deliberated a number of challenging issues within this period. The CAF is mandated by the Government of Canada to operate in areas of the world where human rights are not respected and mistreatment is prevalent. The CAF needs to be able to operate in these environments with non-traditional partner forces while still respecting the 2017 Ministerial Directive, the 2019 Directions and the Act. As such, partner vetting and ongoing monitoring is a critical component of operations. It is also important to stress that while the DISWG is a relatively new construct designed to facilitate deliberations and decision-making, partner vetting and ongoing monitoring of partner force activity have always been an essential elements of CAF operations abroad, long before the issuance of the Ministerial Directive.

Defence Information Sharing Assessment Committee (DISAC). In the absence of a situation combining an imperative to share (disclose/request), and a potential substantial risk of mistreatment of an individual borne from a proposed information sharing activity (which could not be effectively mitigated at the Task Force or L1 Comd levels), the DISAC was not convened during this reporting period.

Information Sharing Coordination Group (ISCG). The Public Safety-led ISCG met on six occasions during the reporting period. DND/CAF actively participated in all meetings, along with representation from the twelve departments and agencies that either received, or were considered for receipt of, Directions by the Governor in Council, in respect of their information sharing activities with foreign entities. During 2019, the ISCG initiated the creation of its own terms of reference, discussed implementation initiatives and challenges, and deliberated over the merits and challenges of developing collaborative Country-level Human Rights Assessments.

Restrictions on Existing Information Sharing Arrangements

No new restrictions on existing DND/CAF information sharing arrangements were implemented during the reporting period as a result of concerns over the risk of mistreatment by a foreign entity.

Other Intelligence and/or Information Sharing Partnerships

DND/CAF has a number of bilateral and multilateral information and intelligence sharing arrangements with various international defence intelligence partners. The Commander of CFINTCOM, in his role as Chief of Defence Intelligence, also issues strategic guidance for Defence Intelligence Partnerships for the purpose of providing functional direction and guidance to DND/CAF stakeholders, as a means to consult with stakeholders and obtain feedback, and allow the DM and CDS to hold the DND/CAF accountable for defence intelligence partnerships.

Beyond the sharing of defence intelligence, the sharing of information more generally also takes place with a wide variety of other nations in order to support authorized DND/CAF activities, such as: port visits, capacity building operations, disaster response operations, non-combatant evacuation operations, or defence diplomatic missions (Canadian Defence Attachés).

Conclusion

DND/CAF did not encounter instances during the second reporting period where information sharing activities could not proceed due to a substantial risk of mistreatment of an individual which could not be mitigated.

DND/CAF is committed to ensuring that all Canadian defence activities comply with applicable Canadian and international laws, Cabinet direction, Ministerial direction, direction from the DM and CDS, as well as applicable MOUs, arrangements, policies and regulations. Leveraging its extensive internal governance and oversight mechanisms and in collaboration with other government departments and agencies, DND/CAF implemented comprehensive operational and functional measures since the issuance of the 2017 MD. In response to the Act coming into force and the issuance of the 2019 Directions, DND/CAF completed a comprehensive review of its policy suite on information sharing and on ACMFE to harmonize conceptual definitions and clarify the requirements under the Act to all elements of DND/CAF, and its deployed elements in particular. Additional policy guidance will be issued in early 2021.

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