Afghanistan Analysts Network – English

Rights and Freedoms

NDS Torture: UN Report Makes Bleak Reading

Kate Clark 7 min

UNAMA has released a major report on torture in National Directorate of Security (NDS) and police detention. For those of us who have worked on war crimes investigations post-1978, it makes desolate reading. The places of torture and many of the methods are familiar from testimony from victims of previous governments, including the Taleban’s. What is also disturbing, says Kate Clark, is the question of what the international agencies and armies who have worked so closely with NDS have been doing for the last ten years.

The UNAMA report is substantial (read it here). Over ten months, UNAMA interviewed 379 ‘conflict related’ detainees in 24 provinces in a variety of institutions* and says it found compelling evidence of systematic torture in five facilities which deal with security detainees (almost half of former inmates reported having been tortured). They were the provincial NDS facilities in Herat, Kandahar, Khost and Laghman and NDS’s 90th directorate (re-numbered recently as 124th) of counter-terrorism in Kabul which, incidentally, is in Shashdarak, near to ISAF and CIA headquarters and the US embassy. In fifteen other NDS facilities, torture was less commonly reported (here ‘only’ 25 per cent of detainees alleged they had been tortured). No allegations of torture were reported by detainees in two NDS facilities – Paktia and Uruzgan. There were also reports of abuse – both torture or ill-treatment – having been committed by Afghan National Police officers, at the time of arrest, at check-posts and district and provincial headquarters. UNAMA also reports that children have been tortured.

The types of torture most commonly reported by detainees to UNAMA were beating, especially with rubber hoses, electric cables or wires or wooden sticks and most frequently on the soles of the feet, and suspension, being hung from bars or chains for lengthy periods. Less common, but still widespread, were the twisting of the penis and wrenching of the testicles, and threats of sexual abuse, electric shocks, forced standing, and the removal of toenails.

As the UNAMA report says, the Afghan intelligence service, ‘is among the most enduring of the State’s institutions, with many of its institutional structures, personnel, facilities and legal regulations dating back to the communist period’ and although ‘many officials, policies and practices in NDS have changed over the years,’ it has also ‘experienced greater continuity, than any other Government security force.’ ** That continuity includes the use of torture.

Abuses were certainly far more brutal and affected a far higher proportion of the population under the communist-era agencies, especially in the first 18 months after the Saur Coup in 1978 and 1979 when it was common for Afghans to die under torture. Yet the report from UNAMA shows a picture today which is not that much better than under the Taleban’s ‘Islamic’ intelligence agency (although the use of electric shock, often using the old wind-up telephones, appears to have been much more widely used pre-2001 under various governments).

Testimony and interesting detail on the makeup and development of Afghan intelligence since 1978, can be found in The United Nations Mapping Report (of War Crimes and Human Rights Abuses), which officially remains unpublished, but is accessible here and The Afghanistan Justice Project’s, Casting Shadows: War Crimes and Crimes against Humanity, 1978–2001 – Documentation and Analysis of Major Patterns of Abuse in the War in Afghanistan (see here).***

Torture is illegal in Afghanistan, both under Afghan Law and, since 1987, international law when Afghanistan became a signatory of the Convention against Torture. The government has a duty to investigate promptly, prosecute those responsible, provide redress to victims and prevent further acts of torture. Despite the deputy head of NDS Kandahar, according to the UNAMA report, saying Kandahar was a special case, there are legally no exceptional circumstances – war, terrorism or internal threats – which justify torture. It is also a breach of international law for NATO countries to hand over detainees if there is a substantial risk of torture (for further analysis of the principle of non-refoulement and its relevance for detainee handovers in Afghanistan, see here).

The continuing use of torture post-2001 comes despite the fact that Afghanistan is now supposed to be a democratic country committed to the rule of law, but also despite the funding and close cooperation of various international agencies with the NDS. The UNAMA report alludes to the fact that NDS gets almost its entire budget from foreign donors and that there has been ‘technical assistance and training’ from the US, Britain and Germany, among other countries.

Expecting democratic type norms in this close relationship may be a little naïve – after all the US, post-2001, carried out torture itself on security detainees and rendered detainees to agencies and countries which committed torture. Other NATO countries are also known to have used information ‘gathered’ under torture by third parties. Yet, some of the ISAF troop-contributing countries and latterly also the US have lately become more scrupulous about the way they detain prisoners. Scandal back home has put pressure on some nations to ensure NDS treats ‘their’ transferred prisoners humanely. This was the case in Canada, and in Britain where a High Court case ruling in the summer of 2010 meant the UK has set up what appear to be fairly robust monitoring of the detainees UK forces hand over (for background, see here). Often however, the scandal needs to be repeated which makes it seem as if the amnesia over NDS torture is wilful.

Again, ISAF has had to be shamed, in this case by the meticulous research presented by UNAMA, to remember its obligations under international law not to hand over detainees if there is a risk of torture. When the report was leaked in August, ISAF immediately issued a moratorium on handing over Afghan detainees to detention facilities where torture was alleged to be taking place, while it investigates (see our earlier blog here).

ISAF countries argue they are in a dilemma. They do not want to set up an ISAF detention centre and after the experiences with the US detention centres in Afghanistan that would hardly be a solution acceptable to the Afghan government either. So, if they cannot hand over security detainees, what are they to do with them? The only option would then be not to detain and then the beneficiaries, they argue, will be the Taleban. Yet, in the long-run, torturing or colluding with torture is not only illegal, it does immense damage politically and militarily. How many of those detained in US Kill/Capture operations for example, end up being tortured? Does the much repeated ISAF boast that 90 per cent of night raids end with no shots fired mean anything if an unknown proportion of those detained – both the guilty and innocent – end up being ill-treated at the hands of a state which is supposed, incidentally, to be trying to win their support (for a detailed look at the impact of kill/capture see here).

UNAMA’s findings cast doubt on the usefulness of the bilateral undertakings made between various ISAF contributing nations and the Afghan government which seek to ensure that transferred detainees are not mistreated. Have they put any pressure on the NDS to change as an institution? This is an issue with wider relevance, given that 25 countries, including the US and UK and organisations like NATO, the EU, African Union and the UN have been seeking to ‘update’ rules on detainee transfers in a semi-clandestine approach called the Copenhagen Process (see here). The aim of the talks appears to be to make bilateral agreements part of international law, undermining, critics say, ‘gold standard’ protection given to prisoners by the Geneva Conventions and the Convention on Torture.

The UN Special Rapporteur on Torture, Juan Méndez, is one such sceptic, ‘Diplomatic assurances do not relieve the sending countries of their state responsibility for having committed a serious breach of an international obligation,’ he said, arguing that changes to the way Memoranda of Understanding are used, ‘are unnecessary if the receiving country is not a torturing state and are utterly meaningless if the receiving country is known to engage in a pattern and practice of torture.’

The US military, which has been the slowest to try to monitor its detainees (more detail to be provided in a forthcoming blog), and which detains the largest number of Afghans may have additional legal problems with continuing to fund and support NDS now that the ‘secret’ of widespread torture – common knowledge to Afghans and anyone who has worked in Afghanistan for any length of time – is out in the open and can no longer be ignored. ‘Torture and ill‐treatment by NDS and ANP,’ says UNAMA, ‘could also trigger application of the “Leahy Law” which prohibits the US from providing funding, weapons or training to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross human rights violations, unless the Secretary of State determines that the concerned government is taking effective remedial measures.’****

* From October 2010 to August 2011, UNAMA interviewed 379 pre‐trial detainees and
convicted prisoners at 47 facilities including Afghan National Police detention
centres, NDS facilities, Ministry of Justice prisons and juvenile rehabilitation centres in 22 provinces. As some detainees had been transferred between provinces, the interviews concerned detainees located in 24 provinces.

** The Communists did not invent torture in Afghanistan, but its use became substantially more widespread, severe and ‘professionalised’ with outside training, especially by USSR and East German agencies. Reports of abuse of detainees were also made under the rule of King Zahir Shah and Daoud Khan.

*** AGSA (Organization for the Defence of the Interests of Afghanistan, Da Afghanistan da Gato da Saatane Adara) was established by the PDPA government led by President Nur Muhammad Taraki immediately after the Saur coup in 1978. The new agency was headed by Asadullah Sarwari (who was detained by the mujahedin government, moved to a prison in Panjshir when the Taleban took Kabul and brought back to the capital in 2002; he was eventually convicted in 2005 on charges of arbitrary arrest, torture and mass killing). After the Amin coup, the name of the agency was changed to KAM (Workers Intelligence Agency, Kargar-e Estekhbarat-e Muasessa) and was headed first by Aziz Ahmed Akbari and then Dr Asadullah Amin. After Babrak Kamal’s coup on Christmas Day, 1979 and the rise of the Parchamis supported by the Soviet invasion, the name was again changed to KhAD (Khedamat-e Ettila’at-e Dawlati, the State Information Services. In 1986, its director, Dr Najibullah become president and it was upgraded to the Ministry of State Security (WAD) with Ghulam Faruq Ya’qubi as its director. His deputy, Hesamuddin Hesam, who was also head of military intelligence, along with Habibullah Jalalzoy, were subsequently arrested and convicted of torture in the Netherlands in 2007.

When Kabul fell in 1992, the agency came under the control of Marshal Muhammad Qasem Fahim, who had been head of intelligence for Shura-e Nizar during the anti-Soviet jihad. In 1996, with the rise of the Taleban, Qari Ahmadullah became its director and the name was changed to the Islamic Intelligence Agency of Afghanistan (Estekhbarat-e Islam-e Afghanistan).

In 2001, the name of the agency was changed to the National Directorate of Security or NDS (Riasat-e Amniyat-e Milli) and it again came under the control of Shura-e Nizar members, first Marshal Fahim’s deputy, Engineer Aref Sarwari, then Amrullah Saleh. In June 2010, after Saleh’s dismissal/resignation, the deputy head of the National Security Council, Engineer Ibrahim Spinzada, took over temporarily before appointing his client, Engineer Rahmatullah Nabil (formerly head of Presidential Security) to the directorship (for details on the post-2001 history, see here)

**** This possibility was also raised in relation to the new policing chief of the southern zone, Abdul Razeq, who has been accused of torture, summary execution and mass killings (see here)