President Karzai has warned British forces that they must hand detainees over and may not hold any detainees themselves. The warning follows a British government decision to stop all transfers after a former UK detainee, Sardar Mohammed, challenged their legality, given the risk of torture by the Afghan National Directorate of Security (NDS). Sardar Mohammed himself claims to have been tortured by the NDS after being handed over. The decision to stop all transfers of detainees is a victory for human rights organisations who have long contested that transfers are a violation of international law because of the real risk of torture. However, the halt will cause difficulties for the British army in Afghanistan, and also create an inconvenient precedent for other troop-deploying countries. AAN’s Sari Kouvo reports.
The issue is not a new one: what ISAF forces should do with those they detain in Afghanistan has been a concern throughout the conflict in Afghanistan. The US, alone among troop-deploying countries, decided to set up its own detention centre at Bagram (something which has led to its own recent problems – see AAN reporting here, here and here). All other countries decided to either not detain or hand detainees over to the Afghan authorities. The UK, like many other nations, chose the second option.
Amnesty International was one of the first organisations to emphasise handing over detainees to the Afghan authorities may not be legally defendable based on the principle of non-refoulement. That is, it is not legally defendable to expel, extradite of return a person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture. Amnesty International also emphasised that seeking diplomatic assurances that the detainees would be treated according to international human rights standards and having a monitoring regime for the handed over detainees is not enough to ensure that detainees are no mistreated. Amnesty International Canada together with British Colombia Civil Liberties Association also fought the issue out in court and managed to ensure at least a momentary ban of transfers of detainees by the Canadian government to the Afghan authorities.
Over the past year, reports published by UNAMA and the Afghanistan Independent Human Rights Commission (AIHRC) and the Open Society Foundations (OSF) in March 2012 has made it difficult for even the most hardened defenders of Afghan security forces and detention to claim that torture cannot occur. The reports detailed evidence of the systematic use of torture – including the use of beatings, electric shock, stress positions and the wrenching of genitals – in many NDS and some police facilities. The NDS and the Afghan government issued detailed denials – see the annex to the UNAMA report.
The UNAMA report prompted NATO, ISAF and the US military to take action. General John Allen, the outgoing US commander of ISAF and Operation Enduring Freedom, to his credit, seized the issue and halted all transfers of detainees to NDS and police facilities where UNAMA and, subsequently, the AIHRC/OSF had found evidence of torture (see AAN’s reporting here). Allen also banned detainees being taken to these facilities in joint operations, even if detainees never formally passed through ISAF or OEF hands. He also implemented a programme of monitoring, training and eventual certification of facilities to allow transfers to resume. A new UNAMA report, due to be published soon, should give some indication of how successful this programme has been.
The UK has had one of the toughest systems for dealing with its detainees since a legal challenge was brought against the British government in London, in July 2010, over the legality of transfers because of the risk of torture (for reporting see here). The court allowed the UK to continue transfers, but with restrictions. This meant that, since then, the UK has only transferred to the NDS in Lashkargah, Helmand province, where it could monitor detainees.(1) The UK also secured an agreement that the NDS would notify it if any of ‘its’ detainees were transferred on to other parts of the NDS, especially directorates 90/125 (Counter-Terrorism) and 17/40 (Investigations) in Kabul.(2) It has also been working hard to train the NDS out of its use of torture, running courses on human rights and investigative methods which do not rely on extracting confessions and has provided mentoring and help with improving infrastructure and equipment. In other words, this was a mix of working to protect ‘its’ detainees through the system and support reform of the institution.
However, the detainee who brought the current legal challenge against the British government, Sardar Mohammed, was detained by British forces in April 2010, handed over to the NDS in Lashkargah – where he was allegedly tortured – and then, in September 2010, transferred, without any notification, to the notorious 90/124 Directorate in Kabul, where he claims he was severely tortured: beaten with sticks and electric cables, hooded, suspended by one hand and shackled in excruciating positions for prolonged periods (see a press release from his lawyers here).
The court was also presented with photographs taken by a UK monitoring team showing scarring and scabs on Sardar Mohammed’s wrists, swollen feet and a blackened toenail. His lawyers said, ‘no other cause for these injuries has been suggested other than torture. UK medical records show that the Claimant had no such injuries when he was handed over to Afghan custody.’ It also heard that during multiple visits to NDS interrogation centres in 2011, British officials had found torture equipment including whips made from electric cables, but did not raise objections ‘for fear of causing a scene’ (see a Guardian report and Sardar Mohammed’s lawyer’s press release here).
Sardar Mohammed claimed he was tortured into confessing membership of the Taleban and that his sentence of sixteen years was handed out after a trial lasting fifteen minutes and conducted in Dari (which he does not understand). He is currently serving his sentence in Pul-e Charkhi prison in Kabul.
His challenge to the legality of the British government’s transfer policy (read the grounds for his claim here) was made by reference to the right to a fair trial and to not be subjected to torture or inhuman or degrading treatment or punishment (according to the European Convention on Human Rights). In May 2012, at an initial hearing the judge imposed a temporary ban on transfers because of the risk of torture.
Significantly, Sardar Mohammed’s transfer to Kabul without notification and the alleged torture took place after the introduction of the more robust UK system should have made it impossible.
Since then, in an effort to get the injunction on transfers lifted, the British have worked to improve monitoring at NDS Lashkargah. In October, a minister from the Foreign Office, Baroness Warsi, flew to Kabul and signed an agreement with the new head of the NDS, Assadullah Khaled, securing a guarantee that no future detainees would be transferred without notifying the UK and that the NDS would respect human rights. The value of this agreement was, however, severely questioned in a hearing on 2 November when the government attempted to get the temporary suspension of transfers lifted, and the judge declined to lift the temporary suspension of transfers and all waited for the full hearing which was due to take place on 29 November. However, the government decided, instead, to back down. Dinah Rose QC informed the judge that they had received a letter from the secretary of defence stating that, ‘in the light of new information which has not been disclosed or described, there are currently reasonable grounds for believing that UK-captured detainees who are transferred to Lashkargah would be at real risk of serious mistreatment’ (quote taken from the Press Association here). What the secret information might be is anyone’s guess, but for now, the suspension of transfers remains in place and the UK government has undertaken to give Sardar Mohammed’s lawyers 21 days’ notice if it ever plans in the future to resume handovers.
The halt on British transfers will be a blow to ISAF: the UK is, after all, the second largest troop deploying country in Afghanistan. It may also have knock on effects on other countries, given the robustness of the UK’s monitoring regime which was found to have been failing.
Practically, there is also the question of what British forces are to do with detainees. The barrister acting for the UK government, James Eadie, (as reported in the Guardian article cited earlier) rightly argued in the 2 November hearing that there was a ‘pressing need’ for British forces to transfer detainees to the NDS in Lashkargah. Eadie also said that delays in transferring the prisoners to what he called ‘a sovereign state’s criminal justice system’ could damage the UK’s relations with the Afghan government. Some detainees, he said, might have to be released from British custody if they could not be handed over to an Afghan jail, thereby endangering the lives of British soldiers and the local population.
Since the temporary moratorium imposed by the High Court on handovers in May, the UK military has actually been keeping an unknown number of detainees at Camp Bastion in Helmand, with a handful transferred into American hands at Bagram. A UK ministry of defence spokesman (quoted by the BBC here) said on 29 November that, ‘Measures are being put in place to ensure our operational effectiveness is not compromised.’ He did not specify what those measures might be.
President Karzai has now further upped the pressure with his order to the National Security Council and the NDS to ‘investigate and find out whether there is any British-run detention facility and whether any Afghans are held there and to make sure such facilities, if any, are transferred with no delay to Afghan government’ (see press statement here). His statement also warned the Americans over their holding of detainees at Bagram, saying Afghanistan’s repeated position was that ‘no foreigners have the right to run prisons and detain Afghan nationals in Afghanistan’ and the presence on Afghan soil of any foreign run prisons or foreign-held detainees is a ‘violation of national sovereignty.’
The UK government’s decision not to contest Sardar Mohammed’s case does not mean an end to the matter. Indeed, the government’s lawyer, quoted in the BBC report cited earlier, denied the government had made a concession and said the secretary of defence had simply been applying his policy of keeping under review whether there was a real risk to detainees who were transferred. The ministry of defence has also said it would continue to defend all other aspects of the Sardar Mohammed judicial review claim.
So there may be a fresh UK government attempt to lift the ban on transfers. At the same time, Sardar Mohammed’s private claim for damages is also going through the British courts.
(1) The 2010 High Court ruling also allowed the British to transfer detainees to NDS Kandahar; however, repeated allegations of torture there meant the British army unilaterally stopped sending detainees there. It banned any transfers, either direct or indirect to NDS Kabul.
(2) The different numbers refer to terminology before and after a recent structural reform.
This article was last updated on 9 Mar 2020