Afghanistan Analysts Network – English

Rights and Freedoms

Freeing the Prisoners Blog 2: Protecting the Innocent?

Kate Clark 6 min

An unknown number of Afghans are being held in custody suspected of being Taleban or convicted of insurgency-related crimes. Complaints about wrongful arrest, detention without trial, torture and a justice system where influence and money count for more than guilt or innocence are rife – and, of course, not limited to security prisoners. President Karzai’s order to review security prisoners and release those detained because of, “unreliable reports and unproved accusations” is potentially a good day for human rights. In her last blog, senior AAN analyst, Kate Clark, looked at the danger – voiced by the former head of the Afghan intelligence boss, Amrullah Saleh, that the review would be used to release active Taleban and those guilty of serious crimes. Now she looks at the possibility that those who are innocent – or pose little threat – might get released.

“They first manacled my brother and threw him on the ground and then they beat him,” one Kabul resident testified to the human rights research organisation, theAfghanistan Justice Project(AJP). The man described a raid in early 2009 by the NDS (which he calls “KhAD” – the old Communist era name for the intelligence agency). His brother is still in custody:
“My old parents and the rest of family watched while my brother was tortured and beaten. My parents started to cry and wanted to release my brother from the KHAD people. For 18 days, my brother was under torture and beating by General X of Y Directorate and his men. They beat him with cables and rifle stocks. They also kept him awake continuously and gave him electric shocks. After that, they took him to [another numbered] directorate…For 45 days my family and I did not know whether he was alive or dead. A month and half later and with a lot of effort and mediation, we were able to send him clothes. When the clothes which he had worn when he was arrested came back to me, I felt comfortable and thanked God that my brother was alive.”

The NDS is the main agency dealing with security prisoners. It is the only Afghan institution which enjoys the full panoply of judicial and police powers: it can arrest, interrogate, prosecute, put on trial in its own courts and detain. Its use of torture is well-documented (see here and also hereand here) and exemplifies what is so dangerous and damaging about the current detention system – a system which Amrullah Saleh, as the former head and, before that, deputy head of NDS and ultimately President Karzai have been in charge of, since 2001. And while foreign diplomats have praised NDS for its intelligence work in preventing suicide and other attacks, there appears to have been little or no concern in getting it to stop torturing detainees.

Torture and other abuses of power are common among all Afghan security forces and practiced regardless of whether the detainee arrested is suspected of being a Taleb or a criminal. A general prisoner review commission would also find a great deal of work reviewing the many non-security detainees, arrested because of “unreliable reports and unproved accusations.” Arbitrary arrest is widespread according to the UN and, on the security side, includes the sort of malicious detentions where power holders or canny local operators accuse rivals of being Taleban in order to get them arrested by Afghan or international forces or a random individual is detained because of the need to have a suspect – any suspect – after an attack. The slowness and corruption of the judicial system then compounds any arbitrary arrest: the poor or unlucky can face lengthy incarceration, while the rich or the well-connected manage to bribe themselves out – irrespective of guilt or innocence.

Another case, again documented by AJP illustrates this; it concerns the detention by the NDS of a man, who said his prosecutors, interrogators and even the NDS judge said there was no proper evidence against him. Yet a year after he was picked up, he was still in jail. The reason, he believed, was that he had no money to pay the bribes necessary to get out. “I have only asked for an honest judgment,” he said, “If an honest hearing takes place, God willing, I will be released.”

The vast majority of people now being arrested on security charges come into Afghan custody, either directly or indirectly:

• Picked up by Afghan security forces; usually transferred to NDS
• Picked up by ISAF forces; either released or handed over to Afghan authorities (usually NDS)
• Picked up by non-ISAF American (usually special) forces (USFOR/A); detainees are held at the new detention facility in Parwan (‘the new Bagram’) and are given six monthly prisoner reviews.

On the foreign forces side, there have already been some attempts to improve transparency and rule of law. ISAF hands its prisoners to the Afghan authorities: a NATO guideline advises that this should take place within 96 hours, but ISAF frequently hold onto suspects for much longer, sometimes for several weeks, in order to gather intelligence and evidence (individual countries have different time restrictions).

Evidence may then be handed over to the Afghan justice system along with the prisoner if he is not eventually released by ISAF. The delay is partly inspired by fears of a ‘catch and release phenomenon’ says Jonathan Horowitz of the Open Society Institute, where bribes or failure to get adequate evidence means suspects never make it to court.

ISAF handovers have been made more tricky by the risk of mistreatment and torture of detainees in NDS custody. International law forbids the transfer of detainees if there is a well-founded fear that they may be tortured (see Amnesty International Report). Many ISAF contributing countries were forced to review their policy on transfer of detainees after evidence of torture became public. A Supreme Court case on the issue in Canada was dismissed, but not before former Canadian officials said they knew the risk of torture by NDS, but had handed over prisoners anyway (see an earlier AAN blog here).

In the UK, the legality of handovers is currently being challenged in a judicial review – which is due to rule soon. Five countries – the UK, Canada, the Netherlands, Denmark and Norway – moved to head off criticism and bad publicity – and the sticky question of what to do with suspects if they can not legally be handed over to the NDS – by signing bilateral memorandums of understanding with the Afghan government. These stipulate that the ICRC and the Afghan Independent Human Rights Commission must have access to those handed over; also, they must not be sentenced to death. However, human rights lawyers told AAN that, as long as there remains a risk of torture, the MOUs are not sufficient to make the handover legal. (However, this does not establish the right to handover prisoners under international law.)

Human rights defenders have told AAN that ‘ISAF-origin’ detainees are now generally better treated than other prisoners, but there has been little other international pressure to clean up the Afghan system generally. The one area of detentions where there has been progress is with those prisoners still held by the US military, which now only includes those picked up by US, non-ISAF (mainly special) forces.

Progress has, of course, come from a very low point: ill-treatment amounting to torture by US forces resulted in at least two prisoners being killed. Allegations of a secret detention facility at the Bagram airbase remain – possibly referred to by the US military as a ‘transit camp’ to mask its true nature. Even so, the days of Afghans generally disappearing into a murky American detention system are over. Last year, a new prison was built outside the US air-base, known as the ‘New Bagram’ or the ‘Parwan Detention Facility’. All of the estimated 700 Afghan prisoners still held by the US have been transferred there. Since September 2009, they (but not the 20-30 non-Afghans also held there) have been given six monthly review hearings. These have improved transparency and rule of law, say human rights activists like Jonathan Horowitz, as the panel chooses between several courses of action.

• Detainee is deemed no threat at all; he is released
• Detainee is deemed to have done something wrong, but not to be a threat and elders have promised to keep an eye on him; he is released into their care
• Detainee is deemed to have done something wrong, the Americans do not want to hold him, but they are not confidant about releasing him either; he is transferred to Afghan detention at the ANDF (Afghanistan National Detention Facility), also known as Block D at Pul-e Charkhi prison
• Detainee is deemed too dangerous to release, even into Afghan custody; he is kept at Bagram and given another review board hearing, six months later.

The review boards are still a long way from giving detainees their proper rights, either as suspected criminals or prisoners of war. Detainees may not be allowed to see the evidence against them, for example, and do not get defence lawyers, but rather military officers who act as their ‘Personal Representatives’ – although they are “conscientious,” says the Human Rights Watch senior counterterrorism counsel, Andrea Prasow. Even so, the Bagram tribunals are a significant improvement on the old system at Bagram and far better than the notorious Combatant Status Review Tribunals (CSRTs) in Guantanamo on which they were modelled which, says Prasow, “rarely resulted in detainees being freed… but were set up to validate the president’s determination that everyone held at Guantanamo was an “enemy combatant” and…properly detained.” The hearings in Bagram, she says, are a step in the right direction – the process is more transparent, detainees get to call witnesses and to tell their side of the story and between 30 and 50 per cent of detainees get released (for more details, see reports by Prasow and Horowitz.

The question now is whether the proposed Afghan prisoner review commission will also increase transparency and rule of law or make decisions which are arbitrary, secret or subject to political influence or financial interests. Improving the Afghan detainee system would be a real confidence-building measure with the insurgents and the communities which support them. However, it is all too easy to see how the arguments of the innocent would be trumped, especially if they have to face power-holders who got them wrongfully arrested in the first place.


Prisoners Taleban