NATO has temporarily suspended detainee transfers to a number of detention centers in Afghanistan. This decision was taken pending the release of a so far unreleased UN report that is said to document mistreatment and torture in Afghan detention centers. AAN’s Sari Kouvo* ponders how this can be breaking news for NATO and ISAF troop contributing countries in 2011, when the treatment of detainees in Afghan detention centers and the legality of detainee transfers to Afghanistan has been debated at least since 2007? It was raised just weeks ago in an article by Angus Stickler and AAN’s Kate Clark in their questioning of the Copenhagen Process.**
Over the past days, international and Afghan media have reported about NATO’s decision to suspend detainee transfers to certain Afghan detention centers (see here, here, here and here). So far, the only official statement from NATO is a statement attributable to a NATO official emphasizing that ‘ISAF is taking prudent measures, including the suspension of detainee transfers to certain facilities’ until it has further details about the unreleased UNAMA report documenting torture in Afghan detention centers. At a joint National Security Directorate (NSD) and Ministry of Interior (MoI) press conference on Wednesday the information about torture was rejected, and it was emphasized that the UN and other agencies have the right to monitor detention centers and that no dissatisfaction has been reported after such visits.***
Over the years, human rights organizations and government bodies have consistently reported about abuses in the Afghan justice sector and by Afghan security forces.**** So, although the UN has not yet disclosed the nature of the information in its reports, it is no news that the Afghan justice and detention system faces serious challenges, and one of these challenges is certainly mistreatment of detainees. Indeed, the advisability and legality of international military forces transferring detainees to Afghan authorities is an issue that has been debated at least since 2007. The issue was debated earlier as well, but it was only in conjunction with ISAF expansion that ISAF had to ponder how to deal with greater numbers of detainees.
As ISAF took over military responsibilities from US forces in the more conflict-ridden areas of Afghanistan, ISAF troop-contributing countries had to solve how they should deal with detainees. For many of the troop-contributing nations this was a ‘damned if you do, damned if you don’t’ situation: Setting up ISAF detention centers along the lines of the US detention centers in Afghanistan – and beyond – was not a viable option, and probably not one that would have been welcomed by the Afghan government, but handing over detainees to the Afghan authorities knowing the state of the Afghan justice system and the consequences this might have for detainees is a breach of international law. The choice that was made was not to have long-term ISAF detention in Afghanistan, but to hand over detainees to Afghan authorities. Several ISAF troop-contributing nations did sign Memorandums of Understandings (MoUs) with the Afghan government seeking assurances that detainees would be treated in accordance with international law and that they would be able to monitor the situation of the detainees (for more information, see here).
The prohibition of torture is a fundamental principle of international humanitarian law (IHL), international human rights law and international criminal law. It is both a treaty-based obligation and a principle of customary international law, i.e., binding not only on states parties to the Geneva Conventions, the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture, but binding for all states. Under international human rights law, the prohibition against torture is also a non-derogable right; there is no opting out from this obligation even under emergency situations, such as conflict.
In addition, the Convention against Torture (CAT) article 3(1) provides that ‘no state shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. This principle of non-refoulement is again considered a principle of customary international law and it is binding on all states. The principle of non-refoulement is not simply a technical principle or one that can be narrowly interpreted. Or as noted by Amnesty International, in its 2007 report about detainee transfers, ‘a state cannot claim to be treating detainees humanely while knowingly handing them over to torturers… anymore than it can knowingly “release’’ detainees in a minefield and claim that their safety is no longer its responsibility’ (seehere).
Consequently, the early MoUs between ISAF troop-contributing countries and the Afghan government have been closely scrutinized. The decision by the Canadian government to hand over detainees to Afghan authorities was given a particularly hard time by Canadian media and human rights organizations. Amnesty International and British Columbia Civil Liberties Association sued the Canadian government for handing over detainees, the Canadian Federal Court concluded that there were credible allegations of mistreatment and thus real concern about how detainees would be treated if handed over. However, as Canada had suspended its detainee transfers pending the court’s decision, the Court concluded that it was impossible to know how detainees would be treated if the transfers were ever re-instated and it denied an interlocutory injunction as it deemed that the applicants had failed to demonstrate that irreparable harm will likely result unless the injunction is granted (for more information, see here).
Canada later started its transfers again. However, the question about whether Canada was aware that detainees handed over to Afghan authorities run the risk of being tortured, has also been played out in the political arena. Most importantly as Diplomat Richard Colvin publicly reported that the detainees handed over by Canadian forces did run the risk of being tortured, and that the Canadian government was aware of this (seehere). The probing into what the government knew or should have known have continued since then (see here).
In conclusion, the fact that transferring detainees from international to Afghan forces is precarious and possibly illegal is certainly not ‘new’ news. The discussions about the detainee transfers also tend to focus on what is known or should have been known, or on how individual detainees are treated in specific detention centers. This is important, but more important, for transition and for the detainees that have been handed over is how the overall justice and security sectors functions: Can due process and proper treatment for Afghan detainees really be ensured over time?
* The blog was written with research assistance from Georg Hoehne.
*** Joint Statement Issued by the NDS and MoI, 7 September 2011.
****See, for example, Report on “Causes of torture in law enforcement institutions” by the Afghan Independent Human Rights Commission, 2009, “2008 Human Rights Report: Afghanistan” U.S. Department of State’s Bureau of Democracy, Human Rights and Labor, 2008 and “Arbitrary Justice
Trials of Bagram and Guantánamo Detainees in Afghanistan”, Human Rights First, 2008. For information about specific cases of violations of due process and of mistreatment of detainees, see also the web sites of Human Rights Watch and Amnesty International.
This article was last updated on 9 Mar 2020