Afghanistan Analysts Network – English

Rights and Freedoms

Freeing the Prisoners Blog 1: Letting the Guilty Go Free?

Kate Clark 6 min

When the Afghan intelligence boss, Amrullah Saleh, said he could not, in all conscience, carry on in his post if it entailed “negotiating with suicide bombers” he became the first person to take a principled, stand against the way Afghan policy on the Taleban is developing. Saleh is particularly opposed to freeing Taleban prisoners. Yet this was one of the most common suggestions of the 28 committees which the delegates to last week’s peace jirga split into. It was also the first of the jirga ‘recommendations’ which the president has chosen to implement. Two issues are critical: will a proposed prisoner review commission free active Taleban, including those guilty of major crimes (what Saleh fears) or will it help to reduce arbitrary arrest and detention? In the first of two blogs looking at prisoner release, AAN senior analyst, Kate Clark, concentrates on the possibility that the commission will help the guilty go free.

Amrullah Saleh’s assertion that it is a “disgrace” to negotiate with suicide bombers was an injection of a different sort of reality into the somewhat warm and fuzzy atmosphere engendered at the jirga where the Taleban were cast as ‘upset brothers’ who needed to be mollified. While it was a relief to see discourse moving on from labelling the Taleban as terrorists and to a public recognition that there are political and practical grievances driving the insurgency (injustice, corruption, security), there was also a strange amnesia about the many abuses committed by the Taleban, as if the indiscriminate attacks, civilian deaths, assassinations, school burnings and beheadings of the last eight years had never happened. Many of the jirga discussion groups, for example, advocated the unconditional freeing of Taleban prisoners.

“Political prisoners and the Afghan government opponents should be released from Guantanamo, Bagram and Pul-e Charkhi prisons and be pardoned.” (Obaidollah Obaid, Head of Peace Jirga Committee 4, Chancellor of Kabul Medical University)

“The legitimate demands of the opponents should be accepted… some opponent prisoners should be released as a goodwill gesture to pave the way for dialogue and talks.” (Haji Farid, Head of Committee 5, MP for Kapisa)

“To show goodwill for peace according to the constitution, political prisoners should be released…” (Shukria Barakzai, Head of Committee 8, MP for Kabul)

Freeing Taleban prisoners was one of several recommendations which would normally be used as bargaining chips in negotiations. Not all of them made it into the final resolution. The highly popular call for a ceasefire was dropped, while the unconditional removal of Taleban from the UN ‘blacklist’ (the “Consolidated” or Resolution 1267 list of those who fall under UN sanctions) was retained and freeing Taleban prisoners was made conditional:

“We ask the Afghan state and the international forces present in Afghanistan to, for the purpose of showing goodwill, take immediate and serious action in terms of releasing all those who serve in different jails based on unreliable reports and unproved accusations.” (The Resolution Adopted at the Conclusion of the National Consultative Peace Jirga, Point 8)

Having a government-drafted document calling on the government to take action has proved to be an outlandish, but useful ploy for the president, giving him political cover and (the appearance of) a mandate to initiate new policy on prisoners, as part of what the resolution called, “Making a framework for negotiations with disenchanted people.”
Wrongful arrest, arbitrary detention and torture are very real issues across the Afghan justice system and in some parts of the country, abuses by both foreign and Afghan forces have helped fuel the insurgency. The wrong people get arrested on suspicion of being Taleban because of failures in intelligence, false accusations, deliberate abuses by power holders and security forces, pressure to come up with suspects after attacks and incompetence. The weakness of the justice system then makes it all too easy for the unlucky, the innocent and the wrongly accused to languish in custody, while those with good connections or money can get out, regardless of what they may have done. In particular, active Taleban can expect the movement to bail them out illegally.

So having a prisoner review board is potentially a helpful way of building confidence with the Taleban, in a way that would also prevent gross human rights abuses. A similar system newly set up by the Americans to deal with prisoners arrested by US special forces is doing just that, by increasing transparency and rule of law (more details in the forthcoming “Freeing the prisoners blog 2”).

However – and this is clearly what Saleh is worried about – the new Afghan Taleban prisoner review commission might just as easily be used to free active Taleban, including those guilty of major crimes. It might also release them arbitrarily, without proper guarantees or quid pro quos and without being part of wider negotiations. Saleh clearly does not trust the president on this matter – and it seems the jirga brought to a head a long-held mistrust. In 2008, when he was hauled up before parliament to explain how the Taleban had managed to attack the annual celebrations marking the 1992 capture of Kabul by the mujahedin, he blamed the president. The National Directorate of Security (NDS), he said, was arresting terrorists, kidnappers, suicide and road-side bombers, but the president was not punishing them according to the law. Instead, said Saleh, Karzai was releasing them (see interview here).

It is a serious accusation but one that is difficult to investigate. The president exercises his power of pardon without necessarily making public announcements. One case which has come to light of Karzai quietly pardoning a prominent Taleban commander involves Akbar Agha, a Kandahari commander who kidnapped three UN staff in 2004. The pardon was apparently promised just before the 2009 elections and carried out at Eid-e Qorban in November 2009. (Find an earlier report of the author on the Akbar Agha release here.)

Other cases have emerged after freed Taleban went back to the fight. Qayyum Zaker and Rauf Khadem, who were part of the senior military leadership during the Emirate, spent years in Guantanamo Bay before being handed over by the US into Afghan custody in December 2007. They were freed a year later, but their release only became public knowledge as they rose in the ranks of the Taleban insurgency: Khadem was appointed head of Taleban operations for RC South (Helmand, Kandahar, Urozgan and Farah), while Zaker, according to Newsweek, was appointed head of the Taleban Defense Committee which oversees military actions throughout the country. Then in February 2010, he replaced Mullah Baradar as one of the two new deputies of Mulla Omar after Baradar’s arrest in Pakistan.

It is still not clear what legal mechanism was used to free the two men from Afghan custody, but it seems it may have been a ‘closed trial’, held in the maximum security wing of Block D of Pul-e Charkhi prison. Afghanistan’s deputy attorney general, Faqir Ahmed Faqiryar, told AP that Zaker went before an Afghan court: “The court decided time served was enough,” said Faqir Ahmed Faqiryar. “When the court is involved there is no need to promise anything.” However, it seems extremely unlikely that the two men could have been released without the permission of the president.

Since that time, a commission has been set up which recommends to the president whether those handed over from Bagram and Guantanamo should be released or go on trial. How this commission works highlights the dangers which lie ahead for the proposed general Taleban prisoner review commission.

According to Peter Ryan, an American lawyer for a former Guantanamo detainee, who was quoted in the same AP report, the Bagram/Guantanamo review system is chaotic and opaque, with tribal loyalties appearing to count for more than innocence or guilt. One researcher who spoke to AAN who did not want to be named, said the commission was faster than the glacially slow, mainstream Afghan courts, but like them, was plagued by corruption and arbitrariness.

“Ensuring the same thing doesn’t happen with any new prisoner review commission will be important from a rule of law perspective,” he said, “If the new commission gets innocent people out more quickly, that’s good, but if bad guys who have money to bribe get out or if the innocent without money can’t get out, those will be problematic.”

Nader Nadery at the Afghan Independent Human Rights Commission has similar concerns, centring on who will serve on the new commission. The plan is to have, not just legal professionals – judges and prosecutors – but also members of institution proposed by the peace jirga – the High Peace Council. According to the final resolution of the peace jirga, this council will pursue the “peace process and implement the advice of the jirga” and will be made up of, “representatives from provinces and districts…sympathetic personalities, brothers and sisters, esteemed religious scholars, tribal elders, one representative from each of the houses of the National Assembly and those oppositions (sic) who have stopped violence.”

It is easy to see why Nadery is worried: “Will the prisoner commission make political decisions on freeing prisoners who may have committed serious crimes?” he asks, “or will there be a proper, transparent, justice process in a court of law?”

However, the very real abuses being perpetrated by the current system mean that Nadery also cautiously welcomes the possibility that innocent men who have been long detained may be freed and others will have their day in court. The danger envisaged by Amrullah Saleh of a prisoner review commission which will be corrupt, arbitrary and political – and controlled in a non-transparent way by the president – is certainly a real one. Whether such a commission might, instead, be able to increase transparency and rule of law and help stamp out arbitrary arrest, torture, bribe-taking and abuses of the kind currently practiced by many of the justice and policing agencies – including Saleh’s NDS – will be looked at in the next “Freeing the Prisoners Blog 2: protecting the innocent?”.


Prisoners Taleban