In the Afghan government’s latest attempt to wipe out any foreign role in detentions, the commander of the Detention Facility in Parwan (DFIP) on Bagram Air base, General Faruq Barakzai, has said detainees can no longer be sent there. Both US and UK forces have been transferring detainees to the DFIP, which the US finally handed over to the Afghan government in March 2013. Barakzai is a member of a presidential commission which has accused British and US forces of running secret detention facilities. Both countries have said their facilities are open and all detentions are carried out in cooperation with the Afghan state. This latest controversy is part of two, long-running detainee disputes – over who controls the DFIP, and how ISAF forces can transfer detainees to the Afghan authorities given the risk of torture. The UK also has added problems, writes AAN’s Kate Clark, after a British court ruled its detention policy in Afghanistan has been illegal under European human rights law.Inmates and guard during Taleban prisoner release in Bagram jail, 2014. Photo c/o Tolonews.
Concerns were raised about secret detention facilities, presidential spokesman Aimal Faizi told AAN, after ministry of defence officials reported suspicious comings and goings at Kandahar airport and various sites in Helmand. The president dispatched a team to investigate and charged it with: visiting any detention centres; assessing whether there were detainees or not; deciding the future of any detainees and; closing any centres. According to commission member, General Barakzai, this is what they found:
Kandahar air base: 3 detention centres
Detention facility 1 Under British control, with a capacity for 16 detainees in separate cells. 6 detainees there. The British military were carrying out interrogations. The commission alleged that the presence of two NDS officers was purely ‘symbolic’ (shakli), giving cover to what is actually a British detention centre.
Detention facility 2 Under US control. Capacity for 36 detainees, but none there. Barakzai said their reporting indicated four detainees had recently been held there. The US, he said, had confirmed that three had been released and one sent to the DFIP. Barakzai said interrogations and decisions on release or transfer were made by the US there. The US military told the team there had been two NDS officials from Kabul, but Barakzai said the NDS had said it had withdrawn them two weeks previously.
Detention facility 3 under ISAF control. Capacity for 38 detainees in separate cells and a further 40 in four communal cells. No detainees found. Closed.
Helmand: three detention centres:
Camp Bastion: UK controlled. Capacity for 88 detainees (8 in each of 12 cells); 17 detainees found. All had been there for between one and four months except for one detainee who had had been held for 31 months; he also had no case file.
Camp Bastion 3: UK controlled. Capacity for 48 people in single cells. No detainees.
Camp Leatherneck: US-controlled. Capacity for 60 people. No detainees currently: “recently abandoned.”
Presidential spokesman Faizi told AAN they were also concerned about possible ‘missing’ detainees, saying families had contacted the government to claim their relatives had been detained and then disappeared. Faizi described the whole picture as “worrisome”.
UK and US: puzzled reactions
UK and US officials seemed genuinely surprised at how the team’s findings had been presented and the headlines this had generated. They included The Washington Post’s “Afghan officials accuse US, British military of maintaining secret prisons on their bases” and NBC’s “US, Britain Accused of Running ‘Secret Prisons’ in Afghanistan”. “There are no unilateral detentions,” a US military official told AAN. “We are working with Afghan partners. These are Afghan-led operations, with Afghan forces… There is nothing secret.” A spokesperson for the UK government said: “Detainees are held at the request of the Afghan authorities where there is evidence linking them to criminal activity.” A British Embassy spokesperson added:
The UK runs two detention facilities, one in Kandahar and one in Camp Bastion, where individuals are held pending release or transfer to the Afghan authorities. The facility in Kandahar is run in conjunction with the Afghans and both UK facilities are regularly monitored by the Provost Marshal [head of the military police] and the International Committee of the Red Cross. Other than in extremis cases of direct attack or force protection allowed for under the UN mandate all detention operations in Afghanistan that the UK support are conducted by Afghan forces under Afghan approval. While in UK custody regular and robust reviews are carried out to ensure that the case for holding each individual remains absolutely necessary.
Presidential spokesperson Aimal Faizi denied that UK facilities might be run with the approval of the Afghan government. Indeed, he made the serious allegation that any ‘cooperation’ could only have come from individual officials and then only because of pressure or money.
It is difficult to see how Afghan and US/UK versions of what is happening on the ground can be reconciled. However, the scale, at least, of what is in dispute can be reduced. The high number of detention facilities and cells and their capacity to hold dozens of people in Helmand and Kandahar is a historical hangover. It dates to when the US was carrying out large numbers of detentions (General Petraeus said in 2011, for example, that US special forces and “their Afghan partners” would typically kill or capture 360 “insurgent leaders” in any 90 day period) and UK forces had been forced by the British courts to stop transferring detainees to Afghan facilities because of the risk of torture.(1) This transfer ban, imposed in November 2012 meant that detainees ‘piled up’ at Camp Bastion, with as many as 90 individuals detained there, and the British army had to build facilities for them. All this changed in June 2013 when the detainees accepted an offer to go to the DFIP where there had been no allegations of torture and which, by this point, had been transferred from US to Afghan control. In the absence of any legal objections in Britain, UK forces could start transferring detainees again, but only to the DFIP: all other facilities remain off limits because of the November 2012 ruling and the risk of torture. (By this time, ISAF had also been forced by UNAMA reporting on the NDS’ use of torture into stopping transfers to some facilities and monitoring others.)(2)
So, of the six detention facilities the commission said it found only three appear to be active: one controlled by the US in Kandahar, which currently has no detainees, and two UK facilities, one with six detainees in Kandahar and the other at Camp Bastion with 17 detainees. Long-gone are the days, officials from both countries said, when either army conducted planned unilateral detention operations. A US military spokesman told AAN only one per cent of all current military operations are unilateral and they are solely concerned with “force protection, redeployment and retrograde and counter-IED.” What all countries do reserve the right to is detaining in extremis, for example, if troops come under attack. Given they have the right to use lethal force in self-defence, they must also have the legal power also to detain and this means having a temporary holding facility. However, apart from detentions made in extremis, the UK and US contend that all other detention operations are run with Afghan forces in the lead and the appropriate Afghan officials making the decisions and authorisation.
For the US, the dispatch of the commission to Helmand and Kandahar is the latest bid by the Afghan government to take all control of detentions. It is part of its protracted battle to get control of the DFIP (read AAN reporting here, here and here) and to end any American say in decisions about the fate of those it has detained. Most recently, citing national sovereignty, it released 65 detainees from the DFIP in February 2014 in the face of US demands that there was enough evidence to merit their prosecution or further investigation. There are indications that the US military has already been softening its attempts to control over detentions. Last summer, when AAN reported on the DFIP after the handover, former detainees said they had been interrogated for up to three weeks before transfer to the Afghan authorities – either on US bases in the provinces or in the so-called Tor Jail (Black Jail) which is located in the American-controlled part of Bagram Airbase. AAN has now been told detainees are being transferred promptly to the DFIP and that Tor Jail has become a joint facility, where NDS Department 124 (Counter-Terrorism) and the US interrogate detainees together before they are transferred. We were also told the US military no longer had access to detainees at the DFIP for interrogation, although they can still observe interrogations and remain in charge of videoing them. We could not get official confirmation of any this. However, even if true, it seems such changes have not been enough to mollify the government.
However, it is the UK which must now be facing the toughest questions, given the weeks-long detention of the 17 detainees at Bastion. The embassy statement said this is where detainees are held “pending release or transfer to the Afghan authorities”, so were the long detentions deliberate, or a result, for example, of paperwork delays on the Afghan side in getting them to the DFIP? No answers have yet been forthcoming. There is also the question of the man held for 31 months, whose presence has been confirmed by the embassy:
There are detainees who cannot be prosecuted, but who pose an unacceptable risk to force protection and mission accomplishment. We continue to detain one individual for an extended period. Extended detention is subjected to rigorous periodic review to ensure that the case for holding an individual remains absolutely necessary.
It is difficult to think why British forces might have wanted to hold this detainee for so long, but one possible explanation is that he did not want to be transferred to the DFIP in June 2013 and British forces could not, legally, hand him over to the NDS and did not want to release him.
However, whatever the background to any of these detentions by the UK and US, the Afghan government clearly regards them all as an affront to national sovereignty and illegal under Afghan law.
The government says, quite correctly, that, under the Afghan constitution, international forces have no authority to detain (the same is true for the Afghan army). Despite this, various legal agreements have referred to US forces detaining Afghans as a fact. These include, for example, the March 2012 US/Afghan Memorandum of Understanding on handing over the DFIP which refers to the transfer of those “captured during military operations” to the Afghan authorities.(3) However, both the commission and the presidential spokesman cited a recent presidential decree which, they said, banned foreign detentions: they appear to be referring to what was published as a ‘statement’ on the Palace website on 9 February 2014. It followed a meeting of senior justice and security officials chaired by President Karzai:
The meeting declared all temporary arrangements related to Bagram detention to be null and void, mentioning the fact that foreign forces do not have the right to launch military operations, arrest Afghans or have a prison in our land. (4)
As to what the government does now, Barakzai said the presidential commission was also ordered to close any facilities and decide what to do with the detainees:
Our decision, made based on President Karzai’s decree of two and a half months ago and the Afghan constitution, is that international colleagues are not permitted to arrest people or run detention centres and cannot search Afghan houses. We decided that all detainees in Kandahar and Helmand, as soon as possible, without any delay, must be handed to the provincial saranwal [prosecutor from the attorney general’s office] of the NDS… The transfer of suspects to Bagram is outlawed.
For those concerned about the risk of torture, which is also illegal under the constitution, NDS Kandahar would be one of the last places one would transfer detainees to. UNAMA’s 2013 investigation into the torture of security detainees by Afghan agencies (read also here) reported that half of all those who had been detained in NDS Kandahar told UNAMA they had been tortured there: this included beating, suspensions and the use of electric shock. A third of all credible reports about torture in police facilities nationwide were also made in Kandahar: UNAMA also reported that 81 individuals in Kandahar had disappeared after being arrested by the police between September 2011 and October 2012. UNAMA reported the alleged use of unofficial sites for detention and torture prior to their transfer to the NDS or police: one was reported to be in the provincial governor’s compound. The situation may have changed dramatically (UNAMA’s 2014 report on torture is due out soon), but one can say, at the very least, that Kandahar has been a nexus for the torture of security detainees by various Afghan agencies.
This raises questions, not just for the UK and the US who are now being asked to transfer their detainees there, but also, how concerned the Afghan government is about the welfare of detainees per se, or does it only get upset when foreign forces are involved?(5)
Drama and sovereignty
It is inconceivable that the Afghan government did not know what UK and US forces were doing in Kandahar and Helmand, given they have been, they say, detaining together with Afghan forces and with Afghan arrest warrants, and above all, transferring detainees to the DFIP. Indeed, DFIP commander General Barakzai told AAN that, yes, he had been aware of who was sending them. The presidential commission then looks like an ambush, a way for the government to create some drama and enable it to make serious accusations via the media – that NATO is running secret jails and illegally detaining Afghans – all in a bid to put pressure on the UK and US to stop detentions. The facilities may not actually be secret and the number of detainees few, and the US and UK may say that all that they do is in cooperation with the Afghan authorities. However, the government is determined to prevail in its contention that any foreign hand in detentions is illegal.
This, of course, also raises questions about the future of the DFIP itself, established at great cost by the US, but never liked by the Afghan government, not just because Bagram has such a bad name among so many Afghans, but also because judges and lawyers do not like to commute out of Kabul each week to work there. AAN asked Barakzai about its future, given there should be no more detainees arriving and that the 1000 or so detainees he said were currently held there would, sooner or later, be released or sent for trial: would the DFIP be closed? This, he said, was up to the government.
UK judge rules British detention policy illegal
British decisions on what to do next, already complicated by the November 2012 High Court ban on transferring detainees to anywhere but the DFIP, appear to have just become more hedged around by a new high court ruling. On 2 May 2014, Mr Justice Leggatt issued a 110 page ruling that British detention policy in Afghanistan has been illegal. The case was linked to the one which resulted in the November 2012 detainee transfer ban. On both occasions, a man from Helmand, Serdar Mohammed, who was detained by British forces in 2010 and accused of being a Taleban commander, brought the claim (earlier AAN reporting on the case here). The ban on transfers was imposed after he was found to have been tortured by the NDS after transfer. This case examined the months Serdar Mohammed spent in British custody before his transfer and whether this detention had been legal. Specifically, the judge had to decide whether there were legal grounds for him to bring a claim of damages against the British government.
The judge decided that the first 96 hours of his detention had been lawful. Under ISAF’s standard operating procedures this is the period before which detainees must be released or transferred into Afghan custody. UK armed forces adhered to this policy, said the judge, until November 2009, when “the UK government adopted its own national policy under which UK Ministers could authorise detention beyond 96 hours for the purpose of interrogating a detainee who could provide significant new intelligence.” The judge ruled that beyond those initial 96 hours, the detention of Serdar Mohammed – 25 days for interrogation and then 81 days waiting for the NDS to be able to accept his transfer – had been illegal. The judge ruled that this had been illegal under both Afghan law and European Human Rights Law (under article 5 which safeguards the right to liberty) and that, although Serdar Mohammed cannot claim damages under the former, he can under the latter. (6) The judge said:
This decision will not come as a surprise to the MOD which formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISA. I have found that this view was correct. Nothing happened subsequently to provide a legal basis for such longer detention, either under the local Afghan law, international law or English law. UK Ministers nevertheless decided to adopt a detention policy and practices which went beyond the legal powers available to the UK. The consequence of those decisions is that the MOD has incurred liabilities to those who have been unlawfully detained.
A “disappointed” British Secretary of Defence, Philip Hammond said the government would be appealing the ruling:
We cannot send our Armed Forces into battle with both hands tied behind their backs. Our troops engaged in operations must be able to detain our enemies who aim to maim and kill UK service personnel and innocent civilians. The Government will appeal the judgment. It cannot be right for [European human rights law] to apply on the battlefield, restricting the ability of our troops to operate in combat. If we do not succeed on appeal, we will examine other options open to us. We will not allow our combat effectiveness to be constrained by this judgment.
Depending on how the appeal goes, the UK government may be facing many compensation claims from former detainees like Serdar Mohammed (he is currently serving a prison sentence in Pul-e Charkhi). As to how the British state handles military detention operations in the future, Parliament could pass legislation to give British armed forces the clear legal authority to hold military detainees for longer.
For now, though, the ruling may well have implications for the current dispute with the Afghan government. If British forces have been detaining Afghans with authorisation under Afghan law – as they say they have – the detention of the 6 in Kandahar would not appear to break the current legal ruling. However, whatever the reason British forces have for holding the 17 detainees at Camp Bastion for weeks, unless they have Afghan authorisation, this would appear to be illegal according to the recent judgement. However, at the same time, if they heed the Afghan demand to hand the detainees to NDS Kandahar, this would also contravene the November 2012 ban on transfers. Release of the detainees would be an option, but may be undesirable for reasons of force protection. In this legal bind and counter-bind for the UK, hard decisions and negotiations must surely now be at hand.
(1) Under the Convention Against Torture, transferring a detainee where there are substantial grounds for believing he or she would be tortured is illegal. This was an issue for all countries except the US, the only country after 2001 to establish detention facilities on Afghan soil. All other countries transferred detainees to the Afghan intelligence agency, the NDS to be dealt with by the Afghan criminal justice system, continuing transfers despite credible reports that detainees were being tortured. Problems for the British began with a legal ruling in 2010 which restricted transfers to particular NDS facilities only and obliged the British to monitor detainees through the Afghan system. This was transformed into the total ban on transfers after it was found that a detainee, Serdar Mohammed, had been tortured by the NDS, post-transfer.
(2) After many years and many scandals, UNAMA reporting in October 2011 (see AAN reporting here) finally forced ISAF into facing the fact that there was a systemic problem with torture in the NDS – to which it was transferring detainees. ISAF introduced a system of monitoring and bans on transfers to certain facilities. Subsequent reports by the Independent Commission on Human Rights and Open Societies Foundation in 2012 and UNAMA in 2013 have showed how bad the situation in some NDS and police facilities remained (see also AAN reporting here).
(3) See also a second MoU signed in April 2012 on ‘Afghanizing’ night raids, which, although specifying that special operations expecting to result in detention or the search of a home have to “be authorized in accordance with Afghan laws” and homes can only be searched by Afghan forces, also said that “any Afghan nationals detained by US Forces outside special operations are to be released or transferred to Afghan authorities.”
(4) See a translation of the statement in footnote 4 of this earlier dispatch on the DFIP.
(5) Torture is banned under the Afghan constitution and penal code, but the state largely reacted to UNAMA and the Afghanistan Independent Human Rights Commission’s credible reports of systemic torture in parts of the NDS and Afghan National Police with denial. In February 2013, President Karzai finally issued a decree banning torture (read it here). It is not yet clear how much progress has been made. One indication will be UNAMA’s next report on the torture of security detainees which is expected to be published in the coming months. However, speaking to The Washington Post recently, the UN’s human rights chief in Afghanistan, Georgette Gagnon, said: “Despite significant remedial steps, torture continues because there’s no real deterrent… We’re not aware of any NDS official who has been prosecuted or fired for using torture.”
(6) Serdar Mohammed’s solicitors’ statement can be read here.
This article was last updated on 9 Mar 2020