Rights & Freedoms

Better, But Still Bad: UNAMA releases new report on the torture of security detainees


Alleged Taleban militants being presented to the media in Jalalabad on 20 December 2016. UNAMA has reported that about a third of conflict-related detainees reported torture or ill-treatment in Afghanistan in 2017-2018. Photo: Noorullah Shirzada/AFP

Alleged Taleban militants being presented to the media in Jalalabad on 20 December 2016. UNAMA has reported that about a third of conflict-related detainees reported torture or ill-treatment in Afghanistan in 2017-2018. Photo: Noorullah Shirzada/AFP

UNAMA has released its latest two-yearly report on the treatment of conflict-related detainees in Afghanistan and finds perpetrators of torture in the Afghan National Security Forces are still enjoying immunity from punishment. Overall rates are down, especially in the Afghan intelligence agency, the NDS, but the proportion of those detained giving credible accounts of torture is still almost one third. UNAMA says the decline in the use of torture is not yet significant enough to “indicate that the remedial measures taken are sufficient.” AAN co-director Kate Clark reports that torture continues to be concentrated in particular facilities, with the worst culprits being the Kandahar police, NDS Special Forces and the Khost Protection Force.

UNAMA’s April 2019 report, “Treatment of Conflict-Related Detainees in Afghanistan: Preventing Torture and Ill-treatment under the Anti-Torture Law” can be read here.

The statistics  

Afghan National Security Forces (ANSF)

1 January 2017- 31 December 2018: 31.9 per cent or 197 out of 618 conflict-related detainees interviewed in 77 facilities in 28 provinces gave “credible and reliable accounts of having experienced torture and other forms of inhuman or degrading treatment.” 47 of the interviewees reported torture in more than one facility.

Comparison with last reporting period (1 January 2015 to 31 December 2016): a reduction

  • 2015-2016: 39 per cent reported torture
  • 2017: 36.7 per cent reported torture
  • 2018: 27.1 per cent reported torture

NDS

25.1 per cent or 128 out of 510 detainees gave credible and reliable accounts of torture or other forms of ill-treatment

Comparison with the last reporting period: a reduction

  • 2015-2016: 29 per cent reported torture
  • 2016: 31.4 per cent reported torture
  • 2018: 19.4 per cent reported torture

Major improvements in NDS Herat (48 per cent to 8.4 per cent) and NDS Kandahar (60 per cent to 7.4 per cent), although all seven interviewees held in Kandahar NDS district facilities in Daman, Shah Wali Kot and Spin Boldak district reported torture before transfer to Kandahar provincial NDS.

NDS Directorate 241 (Counter-Terrorism)

39 per cent of detainees gave credible and reliable reports of torture or ill-treatment

Comparison with the last reporting period: slight reduction overall; big reduction in 2018

  • 2015-2016: 44 per cent reported torture
  • 2017: 60 per cent reported torture
  • 2018: 18.75 per cent reported torture

Kabul NDS

40.7 per cent, or 11 out of 27 detainees gave credible and reliable reports of torture or ill-treatment

Includes Kabul provincial and district NDS and NDS special forces; excludes Directorates 241 (Counter-Terrorism) and 501 (Investigations) (1)

NDS 03 Special Force (Kandahar)

7 per cent, or 17 out of 45 detainees interviewed gave credible and reliable accounts of having been tortured or ill-treated

Khost Protection Force (KPF)

3 per cent, or 4 out of 23 detainees held in the KPF detention facility in Khost gave credible and reliable accounts of torture and ill-treatment. Two others said they were tortured or ill-treated in a KPF facility in Sabari and Tere Zayi districts. (NB All allegations are from 2018.)

Afghan National Police (ANP) 

31.2 per cent, or 54 of 179 detainees gave credible accounts of torture or other forms of ill-treatment

15 alleged torture in more than one facility

Comparison with the last reporting period: reduction, but no decline in 2018 compared to 2017

  • 2015-2016: 45 per cent reported torture
  • 2017: 29.5 per cent reported torture
  • 2018: 31 per cent reported torture

ANP Kandahar

77 per cent or 17 out of 22 detainees gave credible and reliable accounts of having experienced torture or ill-treatment;

Nine reported torture or ill-treatment in two or more ANP facilities;

Torture was also reported in certain provinces by Afghan National Army (ANA) and Afghan Local Police (ALP) personnel, but not in statistically-reliable ways. (2)

Juveniles (under 18s)

43.9 per cent, or 36 out of 82 juvenile detainees held by the ANSF gave credible and reliable accounts of having been tortured or ill-treated

Reduction between 2017 (55 per cent) and 2018 (33.3 per cent) (UNAMA did not give collated figures for juveniles for 2015-2016)

Better, but still bad 

Overall, UNAMA has found that the Afghan National Security Forces are torturing their fellow Afghans, detained because of the conflict, less frequently than they were in 2015-2016. In many instances, the trend towards the reduced use of torture has carried on in 2018, compared to 2017. The reduction is particularly notable in the NDS and in particular NDS facilities, especially Herat and Kandahar. Even so, the prevalence of torture and ill-treatment, reported by almost a third of the security detainees interviewed – is still distressingly high. In particular, the incidence of torture reported by those under 18 remains higher than that reported by adult security detainees, with more than four out of every ten juvenile detainees reporting torture or other ill-treatment.

As in all previous reporting, the use of torture was concentrated in particular facilities and locations. The police in Kandahar are, as in 2015-2016, the most violent section of the ANSF to be detained by; according to UN reporting, seven in every ten detainees held in Kandahar’s provincial and district police facilities who were interviewed reporting having suffered torture, indeed the “most brutal forms of torture or ill-treatment.” Methods included:

systematic and multiple beatings, including with cables and plastic pipes, on feet and other parts of the body… suffocation (with water or plastic bags); electric shocks; suspension from ceilings; various types of stress positions during extended period of times; and pulling of genitals… threats of death and of sexual violence.

Also, as in previous years, UNAMA reported allegations in relation to the Kandahar police of disappearances and extrajudicial killings. UNAMA said that 34 sources had “provided credible and reliable information on enforced disappearances of their relatives.” These accusations all date to 2017, but, said UNAMA, more allegations made in 2018 and it “remains unaware of any concrete action taken by the authorities to investigate the widespread and, in some cases public allegations, that ANP has been complicit in acts of enforced disappearances.”

Still notorious, as well, is NDS 241, the national Counter-Terrorism Directorate in Kabul. This facility has appeared in reporting on torture by every government since 1978 (it was previously numbered 124, 90 and 5 – for historical accounts, see the Afghanistan Justice Project report ). Methods reported used comprised beating (including with a pipe and on feet), threats and stress positions.

There has, however, been a marked decline in the incidence of reported torture in NDS 241 in the last year, from 60 per cent in 2015-2016 to 18.75 per cent in 2018. However, the high incidence of reported torture elsewhere in Kabul province (four out of every ten detainees reporting torture or ill-treatment), including by Kabul NDS special forces, may point to detainees being tortured elsewhere before they arrive at NDS 241. Such ‘displacement’ of torture from a facility under attention to other facilities is a familiar pattern from previous years.

Other NDS facilities where there were high rates of torture reported were Khost (18.4 per cent of detainees interviewed gave credible and reliable accounts of torture or ill-treatment; all reported the torture in 2018 and described beating, suspension from ceiling and threats as the main techniques) and Samangan (33.3% repeated torture or ill-treatment, involving beatings, including with sticks, pipes and iron rods, and mainly from 2017). (3)

UNAMA is also concerned that 33.3 per cent of those interviewed in ANP Nangrahar provided credible and reliable accounts of torture or ill-treatment, with beating (including with pipes) and threats described as the main techniques. While still extremely high, this is a marked reduction from 2015-2016 (66.6 per cent of detainees reported torture) and notes that most of the allegations from the last reporting period related to 2018.

There are also some ‘new-comers’ to UNAMA’s torture reporting. The Khost Protection Force and the NDS Special Forces both appear for the first time, both for torture and ill-treatment and unlawful and arbitrary detention, including following mass arrests. These forces are believed to be supported by and work jointly with the CIA, and have a murky chain of command. The Khost Protection Force is also not a legal entity; under Afghan law, it has no authority to detain. As UNAMA, AAN, Human Rights Watch and the media, have all reported in recent months, the Khost Protection Force and NDS Special Forces have also been accused of intentionally killing civilians, using force indiscriminately and damaging civilian homes and property.

17.3 per cent of those held by the Khost Protection Force gave credible accounts of having been tortured or ill-treated, with beating as the main technique. 37.7 per cent of detainees held by NDS 03 in Kandahar interviewed by UNAMA gave credible and reliable accounts of having been tortured or ill-treated, indicating, said UNAMA “a regular and prevalent use of torture and ill-treatment.” It said detainees described beatings, including with a cable, with the majority also “separately and consistently” describing “a specific form of treatment as the main technique used – being covered by a blanket and [having a person sit] on their back while [they were] suffocated with a plastic bag.”

In the context of these forces’ wider and illegal use of violence, their unknown chains of command, their close international backing and effective impunity all make

UNAMA’s reporting of their use of torture particularly worrying.

Finally, while documenting no credible reports of torture at the Ministry of Defence’s  Detention Facility at Parwan, UNAMA said it was  concerned about

…the conditions of detention observed within the facility, including, overcrowding, the use of solitary confinement as the sole disciplinary measure, restrictions with regard to family visits and access to lawyers, and inadequate lighting. In addition, during its interviews with detainees held in the facility, UNAMA received numerous reports that the poor conditions of detention and the lack of programmes and facilities for detainees contribute to widespread mental health problems among the prison population.

What is the Afghan government doing to reduce its use of torture?

In the last few years, the Afghan government has taken several legal anti-torture measures, including:

  • Revised Penal Code (February 2018) with a definition of torture broadly in line with the United Nations Convention against Torture
  • Accession to the Optional Protocol to the Convention against Torture (April 2018) (4)
  • Enacted the Anti-Torture Law (October 2018)

Yet, torture had already been illegal in Afghanistan in multiple ways. (5) The problem has never been with the law, but its implementation, and ensuring those using, ordering and allowing torture get punished.

The motivation for taking these measures appeared rather to be the need to convince the United Nations and others that the Afghan government was addressing the use of torture by its Afghan security services. This was in the face of ‘twin threats’. The first was Afghanistan’s appearance before a committee of experts under the auspices of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on 25 and 26 April 2017 when the country’s record came under public scrutiny. The second was the threat that the International Criminal Court (ICC) might launch an investigation into its use of torture. The government has been seeking to convince the Court that it was taking the issue of torture extremely seriously and the Court did not need to launch its own investigation into this particular war crime.

The UN Committee Against Torture (which published its report on Afghanistan on 12 June 2017) welcomed the various legal and bureaucratic changes made by the government, but castigated the “culture of impunity… as evidenced by a large number of cases of alleged human rights violations involving senior State officials.” It was “deeply concerned” about the Amnesty Law (2008), which prevents the prosecution of individuals responsible for gross human rights violations, including acts of torture, committed before December 2001 and any act committed since by a person who has reconciled with the government. It was also deeply concerned that “perpetrators of war crimes and gross human rights violations, including acts of torture, are still holding, or have been nominated for, official executive positions, some of them in government.” Such a situation, said the Committee “fosters a general climate of impunity and contributes to creating widespread acceptance and legitimation of torture in Afghan society.” It pointed out that perpetrators are rarely disciplined, let alone tried and singled out the Kandahar police force as especially worrying. (6)

Continuing impunity for torturers  

Looking through the UNAMA report, it is clear that impunity for torturers remains. The NDS, which has seen the best reductions in the use of torture over the last two years, has instituted a national system of monitoring by NDS human rights officers and better training of staff – UNAMA welcomed these initiatives, although noting that the monitoring is not independent. NDS reported to UNAMA that in 2017 and up to mid-October 2018, its human rights officers had interviewed more than 15,000 suspects held in NDS detention centres and (over a slightly longer period) had received 184 allegations of human rights violations from detainees. It reported 13 of these cases ‘confirmed’ and that they involved 19 personnel of the central and provincial NDS facilities. Only five were referred to judicial institutions (with no information about what happened next). The rest of the 19 were dealt with by disciplinary measures – transfers, loss of rank, warning letters etc. Many of the 171 cases, said UNAMA, were dismissed due to lack of signs of torture. It remained concerned that the NDS

…mostly continues to ‘resolve’ allegations of torture or ill-treatment by internal investigation procedures, with the results usually not disclosed to the victim, or otherwise made public. The vast majority of the allegations – more than 90 per cent – appears to be dismissed on the ground that the investigation did not find sufficient evidence for torture or ill-treatment on different grounds.

Both the Ministry of Interior, responsible for the ANP and ALP, and the Ministry of Defence, responsible for the ANA, were less forthcoming. The Ministry of Interior told UNAMA that “in the last two years, no cases of torture and other types of mistreatments against prisoners kept in detention facilities under the authority of the Central Prison Directorate of the Ministry of Interior have been reported.” The Ministry of Defence only gave UNAMA information on the action it was taking against allegations of mistreatment of detainees at the Detention Facility in Parwan (described by UNAMA as “lenient”) and not in the bases the ANA has around the country.

UNAMA does not seek to explain why the use of torture has fallen in Afghanistan. However, the reduction in torture appears to be most consistent in NDS. It is also the only branch of Afghanistan’s security forces which has implemented a monitoring system. As UNAMA points out, the system is not independent and has many flaws, but it may account for the general reduction from high to less high levels in the NDS’ use of torture.

The other factor pushing the reduced use of torture may have been the threat of an ICC investigation. If so, that threat now appears to be over. By chance, less than a week before the publication of the UNAMA report came news that the judges of the ICC’s Pre-Trial Chamber had rejected the Chief Prosecutor’s request for an investigation into the ‘Afghanistan situation’. (7)

There is still a clear mismatch between the prevalence of torture found by UNAMA – a third of conflict-related detainees giving credible reports of it – and what the various branches of the ANSF say their personnel are doing. As UNAMA says, there is both a

… [c]ontinued lack of accountability for perpetrators, with investigations into allegations of torture and ill-treatment remaining internal and opaque, with very limited referrals to prosecution [and a] Lack of any meaningful possibility of obtaining an effective judicial or administrative remedy for the violations that detainees claim to have experienced.


It has recommended some key changes to help prevent torture, including giving detainees access to lawyers,  contact with family during the investigation and medical screening and ceasing to rely on forced confessions in court. “Prosecutions,” says UNAMA, “often remain dependent on confessions as opposed to other sources of evidence, creating a climate where torture is more likely to take place to obtain a confession.” Ultimately, while welcoming the reduction in the ANSF’s use of torture, UNAMA concludes: “The decline in the use of torture or ill-treatment is not yet significant enough to indicate that the remedial measures taken are sufficient.”

 Edited by Sari Kouvo

 

In December 2014, AAN brought together its reporting on torture (by both Afghan and US forces), thus far: “Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture. Since then, we have published a number of dispatches: “Afghanistan’s Record on Torture to Come under UN Scrutiny”, 21 April 2017  and “Torture as Prevalent as Ever: New UN report finds no end to impunity for Afghan torturers”, 24 April 2017 and, on the US side “Held Accountable for Torture: CIA psychologists compensate family of dead Afghan”, 29 August 2017 and “Kafka in Cuba The Afghan Experience in Guantánamo”, November 2016.

 

(1) In NDS Directorate 501, 61 detainees were investigated and five reported torture or ill-treatment (four in 2017).

(2) With both the Afghan Local Police and the Afghan National Army, UNAMA reported high percentages of detainees reporting torture, but that “the sample was too widely geographically dispersed to make any meaningful findings on patterns of treatment of detainees in any particular location.” 12 out of 33 detainees held by the ANA in Balkh, Herat, Helmand, Kabul, Kandahar, Kunduz, Laghman, Logar and Nangrahar had reported torture. Six out of nine detainees held by the ALP in Badakhshan, Balkh, Faryab, Kandahar, Jawzjan and Parwan had reported torture.

(3) UNAMA said there were also high percentages of detainees reporting torture in NDS facilities in Farah, Faryab, Helmand, Parwan and Sar-e Pul provinces, but UNAMA said the sample size of those interviewed was statistically too small to draw meaningful conclusions. It received no claims accounts of torture in NDS facilities in Badakhshan, Bamyan, Ghor, Jawzjan and Paktia.

(4) The Optional Protocol to the Convention Against Torture (CAT) allows for the establishment of a system whereby “independent international and national bodies” can undertake regular visits “to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.” The government also decided to withdraw Afghanistan’s reservation to article 20 of CAT. This gives the CAT Committee permission to request investigations into torture if it “receives credible information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party.” Finally, on 18 April 2017, as ordered under the presidential decree, and as obliged by the Optional Protocol to CAT, the AIHRC-led Commission for the Prohibition of Torture was set up.

(5) Instruments criminalising torture in Afghanistan include:

Penal Code 1976

If the public service official tortures the accused for the purpose of obtaining a confession or issues an order to this effect, he shall be sentenced to long imprisonment.

7 October 1976; 15 Mizan 1355, Art 275

Constitution of Afghanistan 2004

No one shall be allowed to order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished.

26 January 2004; 6 Dalwa 1382, Art 29

Presidential Decree No 129 To Implement The Afghan Fact-Finding Delegation’s Suggestions On The Presence Of Torture And Ill-Treatment In Detention Centres

The Attorney General of the Government of the Islamic Republic of Afghanistan is ordered to prosecute those who violate article 51 of the Prisons and Detentions Law [3] in the light of the findings of the delegation’s report which has reported on the torture and mistreatment of detainees and prisoners, this in order to prevent torture and mistreatment and the conviction of any innocent detainee in the future.

Issued by Hamed Karzai, 16 February 2013; 28 Delwa 1391, Art 1

Criminal Procedure Code 2014

… the judicial police officer, prosecutor and court themselves or through means of another person, in any case, are not allowed to force the suspect or accuse to confess using misconduct, narcotics, duress, torture, hypnosis, threat, intimidation, or promising a benefit. If the statements of the suspect or accused person are taken in violation of the provision set forth in paragraph of this article, they shall not be admissible.

5 May 2014; 28 Saur 1393, Art 22

Decree on the Prohibition of Torture which defined torture for the first time in Afghan law:

…an act which causes pain or physical or psychological suffering against a suspect, an accused or a convict or any other person for the purpose of forcing [the individual] to confess, give information or force another person to give information or to force an individual not to do an act. (art 3) 

5 March 2017; 15 Saur 1396

(6) The Committee of Experts asked Afghanistan to respond to its conclusions and recommendations, especially on the “culture of impunity,” in particular, “to ensure that all candidates for official executive positions have not perpetrated any human rights violations and, if found responsible for past human rights violations, including torture, are not nominated”; coerced confessions, taking “appropriate remedial measures and ensur[ing] that all cases of coerced confession are promptly and impartially investigated, prosecuted and punished and; the death penalty, “[p]romptly consider[ing] taking measures for an immediate moratorium on executions and a commutation of sentences.”

Afghanistan’s response, which was made on 28 June 2017, can be read here.

(7) In the Chief Prosecutor’s Preliminary Examination, she had singled out alleged torture by Afghan government forces, and by the CIA and United States military, and a range of war crimes allegedly committed by the Taleban. When the judges refused her request for an investigation, the judges of the Pre-Trial Chamber said they were not concerned about lack of evidence or that the alleged war crimes were not grave enough to merit the Court’s attention. Rather, they cited a rather nebulous ‘interests of justice’ argument; carrying out an investigation leading to prosecutions would be difficult, they argued, and would not meet “the objectives listed by the victims” who had (overwhelmingly) favoured an investigation. Many suspected the judges had bowed to pressure and bullying by the US which had sought to block the investigation into its own citizens’ actions. See AAN reporting here.

 

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Thematic Category: Rights & Freedoms