Afghanistan Analysts Network – English

Rights and Freedoms

Police and NDS Torture: One in three security detainees tortured, despite long-term downward trend

Kate Clark 12 min

UNAMA and the United Nations Office of the High Commissioner for Human Rights (OHCHR) have released their latest report on the treatment of conflict-related detainees in Afghanistan. They found only the slightest reduction in the reporting of torture and ill-treatment since 2017-18, with torture still being used against 30 per cent – or one in three – detainees. Safeguards to help protect detainees were rarely heeded, said the report, and half of all detainees reported they were asked to sign or thumbprint documents without seeing the content. Trends over the last decade are more encouraging, with a marked reduction in the use of torture evident, especially by the NDS, albeit from very high levels. As always, says AAN’s Kate Clark, the use of torture is clustered in particular facilities, familiar from previous reporting: Kandahar, NDS Directorate 241 (national counter-terrorism), and NDS Special Forces and the Khost Protection Force.

An ANA soldier guards two suspected Taleban in Kandahar. Photo: Romeo Gacad/AFP (2011)

UNAMA’s February 2021 report, “Treatment of Conflict-Related Detainees in Afghanistan: Preventing Torture and Ill-treatment under the Anti-Torture Law” can be read here. Previous UNAMA/OHCHR reports were from: 2015-2016; 2013-2014; October 2012-October 2013; October 2010 to August 2011. For AAN reports on torture, by Afghan and US forces, see [1]AAN reports, assessing both Afghan and US use of torture and record on detentions, up to 2014 can be found in “Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture. More … Continue reading.

The UNAMA/OHCHR report covers a shorter period than usual, only January 2019 to March 2020 when Covid restrictions preventing visits to facilities for the rest of 2020. This also means the data in this report is not up to date. UNAMA/OHCRC interviewed 656 people “deprived of liberty for security- or terrorism-related offenses,” referred to in this report as ‘security detainees’ for reasons of brevity. They comprised 565 men, 6 women, 82 boys and 3 girls. They were held in 63 facilities in 24 provinces; more remote facilities were not reached. Many detainees had been held and questioned in multiple locations, but the two main detaining authorities were the National Directorate of Security (NDS) and Afghan National Police (ANP). [2]Other places where detainees were interviewed were (in order of magnitude): provincial prisons; Afghan National Army (ANA); Juvenile Rehabilitation Centres (JRCs); NDS Special Forces and Khost … Continue reading

The statistics  

Afghan National Security Forces (ANSF)

30.3 per cent per cent of conflict-related detainees interviewed (119 out of 656), detainees gave “sufficiently credible and reliable accounts of having experienced torture or other forms of ill-treatment.” This was virtually the same as the previous reporting period, 2017-18 (31.9%).

Note: In the rest of its reporting, UNAMA gives the percentages of detentions where torture was reported, rather than of detainees. As detainees tend to be held in multiple places of detention, this makes sense for identifying patterns and trends. However, it does mean percentages look awry, because the percentage of detentions where torture is used is necessarily lower than the percentage of detainees reporting torture.

Afghan National Police (ANP)

Credible accounts of torture and ill-treatment in 27.5 per cent of ANP detentions (92 out of 735). A slight reduction from the 31.2 per cent reported in 2017-2018.

Worst facilities: Kandahar (in 57.7% of detentions); Herat (36.7%), Samangan (36.4%), Paktika (30.6%).

National Directorate of Security (NDS)

Credible accounts of torture and ill-treatment in 16 per cent of NDS detentions (116 out of 725). A reduction from the 25.1 per cent reported in 2017-18.

Worst facilities: Ghor (75%); Helmand (33%); Herat (24%), Kandahar (23%); Kabul Directorate 241 (20.6%)

NDS Special Forces and Khost Protection Force

Credible accounts of torture and ill-treatment in 69 per cent of conflict-related detentions by these groups (19 out of 33). An increase from the 37.7 per cent reported in 2017-2018.

Afghan National Army (ANA)

Credible accounts of torture and ill-treatment in 23.7 per cent  of ANA detentions (14 out of 59). Too geographically disparate to map patterns of treatment of detainees to particular locations.

Afghan Local Police (ALP)

Credible accounts of torture and ill-treatment in 47 per cent of conflict-related detentions documented (8 out of 17). Again too geographically disparate to map patterns.  

Analysis

One in three security detainees, UNAMA/OHCHR found, made credible and reliable reports of having been tortured and/or ill-treated. They reported beatings, including with pipes and cables, slapping, the use of electric shocks, stress positions and threats, for example threats of violence towards female relatives or of a long prison sentence. This was almost the same rate as for 2017-2018; the reduction was just 1.6 per cent.

Long-term, the trends are more promising. The NDS and ANP hold the majority of security detainees, both have reduced their use of torture since 2011 when UNAMA began systematic reporting. The NDS was using it in 46 per cent of detentions in 2011; in 2019-20, UNAMA reported its use in 16 per cent of detentions. The use of torture by the ANP has been more up and down. It started from a lower rate than the NDS, with torture found to have been used in 35 per cent of detentions in 2011, rising to 43 per cent of detentions in 2012, falling to 31 per cent in 2013-14, only to rise again to 45 per cent in 2015-2016. Since then, the rate has fallen steadily and now stands at 27.5 per cent. That still means torture being reported in more than one in four ANP detentions and about one in every six NDS detentions. Moreover, those averages mask the way that torture is concentrated in particular facilities.

Kandahar has long appeared to be the most dangerous places to be detained for suspected security offenses. UNAMA found that 57.5 per cent of Kandahar ANP detentions resulted in torture (41 out of 71), albeit this was a reduction from the 77 per cent reported in 2017-18. 23 per cent of Kandahar NDS detentions resulted in torture (11 out of 47), a sharp rise from the 7.4 per cent reported in 2017-18, although there were indications at that time that provincial NDS central may have been ‘farming out’ torture to district police stations. As to NDS 03 Special Forces (previously called the Kandahar Strike Force), detainees in 69 per cent of its detentions (9 out of 13) reported they were tortured. That is a marked increase from the 37.7 per cent reported in 2017-18.

UNAMA has also continued to follow up cases of enforced disappearances in Kandahar, with three more allegations made during the 2019-2020 reporting period, to add to the 34 allegations made during 2017-2018. It said of these, eleven individuals still remain unaccounted for; seven had been arrested by Kandahar ANP, one by Ghazni (reportedly at the request of Kandahar ANP where he was transferred), one by NDS 03 and two by unknown actors. 

Herat ANP and NDS both also feature as some of the worst facilities in the country. Herat NDS had seen a fall in its use of torture in the last reporting period. Elsewhere, at NDS 241, the national Counter-Terrorism Directorate in Kabul, one in five detentions (20.6%) resulted in torture or ill-treatment. This facility has appeared in reporting on torture by every government since 1978 (it was previously numbered 124, 90 and 5). For historical accounts, see the Afghanistan Justice Project report.

NDS special forces and Khost Protection Force were also reported as using torture more frequently than in the previous reporting period. They also face credible allegations, documented by AAN and others, including UNAMA of extra-judicial killings and other abuses, so their reported use of torture should not be surprising. These forces come under only nominal command of the NDS. Rather they work closely with the US military/CIA. Since the US signed its agreement with the Taleban on 29 February 2020, which bound each side not to attack the other, night raids by these groups have virtually ceased. One would expect incidents of torture also to have tailed off.

One other concerning trend to note was the use of torture against the under-18s. UNAMA conducted interviews with 85 juveniles aged between 10 and 18 years old – 82 boys and 3 girls – who had been detained for security or terrorism-related offenses during 2019-20. As they had typically been held in multiple facilities, this resulted in 241 instances of detention. Under-18s are supposed to be held only in Juvenile Rehabilitation Centres (JRCs), but UNAMA found them being held by the NDS (94 instances) and ANP (53 instances). Although there was just one credible report of torture in a JCR (1 out of 54 detentions), in Laghman province, UNAMA found that about a quarter of NDS and ANP detentions of juveniles were marked by the use of torture and ill-treatment. The NDS tortures a higher percentage of children than adults (24.5%, compared to 16% for adults). For the ANP, the rate is about the same (24.5% compared to 27%).

Preventing torture, or not

Torture is illegal in multiple ways in Afghanistan [3]Instruments criminalising torture in Afghanistan include: Penal Code 1976 If the public service official tortures the accused for the purpose of obtaining a confession or issues an order to … Continue reading and although its use appears to have declined over the last decade, it remains at high levels, with about one in three security-related detainees subject to torture and ill-treatment. UNAMA’s report assesses three methods used by the government supposedly to deter torture: the use of safeguards already in Afghan law, monitoring detention facilities, and investigating and prosecuting alleged perpetrators.

The Afghan government put in place several reforms to prevent torture in 2015-17, partly in response to UNAMA reporting, but also because of the actions of two bodies. The country’s poor record on torture was exposed at the United Nations Convention Against Torture (CAT) Committee of Experts. [4]In 2010, the CAT Committee issued a request for “Specific information on the implementation of articles 1 to 16 of the Convention,” a list of questions and issues which it … Continue reading Ahead of the CAT committee meeting, which took place on 25 and 26 April 2017, we wrote that the government “has been scrambling to put new legislation and mechanisms in place” to prove it was taking action. That flurry of legislative action was also driven by actions by the International Criminal Court. Its General Prosecutor, Fatou Bensuda, in her preliminary examination into war crimes and crimes against humanity allegedly carried out in relation to the conflict in Afghanistan had concluded in November 2016 that 35 to 50 per cent of all conflict-related detainees held by Afghan government forces “may be subjected to torture,” carried out in a “state of total impunity” (see AAN reporting). Also concerned about the alleged use of torture by US military forces and the CIA, and of various crimes by the Taleban, including murder and intentionally attacking civilians, she requested in November 2017 that the court’s Pre-Trial Chamber authorise an investigation. Bearing in mind that the ICC only steps in if national courts are unwilling or unable to act, the threat of an ICC investigation also drove the government to implement reforms over the issue of torture.

Those reforms were: the 2015 National Action Plan on the Elimination of Torture; acceding, in April 2017, to the Optional Protocol to the Convention against Torture[5]The Optional Protocol to the Convention Against Torture (CAT) allows for the establishment of a system whereby “independent international and national bodies” can undertake regular visits … Continue reading; passing the 2018 Law on the Prohibition of Torture and; making revisions to the Penal Code in 2018 which improved the definition of torture, punishments and other mechanisms for its prevention and provided for compensation for victims of torture.

Yet despite all these moves, as UNAMA lays out in its new report, the safeguards set out in Afghan law and policy to protect detainees are rarely implemented. It found that almost no NDS or ANP detainees were informed of their rights or allowed access a lawyer before being interrogated. Only about 20 per cent of NDS and 30 per cent of ANP detainees were allowed contact with their families in the early stages of detention. UNAMA notes that for those families who do not know the whereabouts of their detained family member, this can “in certain cases render the detention an enforced disappearance.” Family contact was allowed even less often by the NDS than the ANP and was very low in Herat, Kabul, Kandahar and Nangrahar, while NDS 241 in DFIP allowed no family contacts. The crossover of NDS facilities where high levels of torture was reported and many of those where family contact was low or non-existent is evident. Medical examinations prior to questioning were almost never given to those in ANP custody and in only about five per cent of NDS detentions.

At the same time, in nearly half of all instances of ANP and NDS detention, detainees were asked to sign or thumbprint a document without knowing its content. UNAMA also said it was particularly concerned about the use of solitary and incommunicado detention by the NDS, with this being used in 39 detentions: 20 of these (out of 33) were by NDS 241 in the Detention Facility in Parwan.

Enacting legal safeguards, wrote UNAMA, is “critical to improving the treatment” of detainees, including preventing torture.

As to internal mechanisms set up to monitor the ANP and NDS, UNAMA reported that the Ministry of Interior’s human rights officers “do not appear active in fulfilling” their responsibility to “undertake detention monitoring.” It found only 3 per cent of ANP detentions were marked by a visit from the monitors. NDS monitors are more active, said UNAMA, probably helped by the fact that they report any problems nationally, unlike their counterparts in the Ministry of Interior who report to the provincial chief of police. UNAMA found that almost one in three NDS detentions resulting in a visit by a human rights officer. Even so, UNAMA wants to see more investigations by those officers into complaints of torture and more responses to those who make complaints.

Finally, on prosecutions, a special Anti-Torture Committee within the Attorney General’s Office with sub-committees in every province is mandated to investigate cases of torture referred to it by provincial prosecutors. The committee has reported that it investigated and prosecuted 18 cases of torture between January 2019 and 21 October 2020, obtaining five convictions and with three acquittals (other cases are at various stages of the criminal-judicial process).

UNAMA presents details of two especially serious cases which involved men who were tortured and died in custody. In October 2019, the deputy director of Ghazni ANP Counter-Terrorism Unit was convicted of torture and sentenced to 16 years in prison. However, the provincial Deputy Chief of Police, who was identified by the military prosecutor as having assisted with the commission of the crime of torture and was initially arrested in May 2019, was subsequently released. He continues to work as deputy police chief while his case, reports UNAMA, “is still in progress.” The other case involved an ANP Platoon Commander in Paktika who, in May 2020, was sentenced to “murder committed with torture.” Five other ANP officers were each sentenced to six months imprisonment for dereliction of duty.

More information is needed on prosecutions, in particular: what ranks were prosecuted, what were the punishments in the five convictions and how many cases were reported but not taken to prosecution? In the past, there has been a pattern of torture only rarely being punished even by disciplinary penalties (such as sacking or demotion), rather than the criminal punishments set out in law. In addition, there is a pattern of only lower ranks being investigated, whereas the consistency of torture allegations in particular institutions suggests command responsibility. The two officials in the case studies would seem to suggest that those in command can be investigated and punished, but it is still not clear how representative they are. It may just be that they ended up in the criminal-justice system because their actions were so extreme – with detainees killed in custody.

Conclusion

In June 2018, the UN Convention Against Torture Committee of Experts published its conclusions and recommendations, saying that while it welcomed “the delegation’s assurances and the governmental measures that indicate that the fight against impunity is a priority of the State party,” it remained “gravely concerned about the general climate and culture of impunity in Afghanistan.”

In December 2019, the Appeals Chamber of the ICC decided to authorise an investigation into allegations of crimes against humanity and war crimes committed on Afghan soil or in relation to the conflict. The Afghan government moved to delay the investigation by a year, using article 18 of the Rome Statute in a request submitted to the ICC on 26 March 2020. It argued that “at least 47 cases” of “various acts of torture both in and outside detentions” were under investigation by domestic institutions (see AAN analysis here). It is not clear how these cases map onto the 18 cases which the Office of the Attorney General reported to UNAMA. What was important from Kabul’s perspective was to try to persuade the ICC that, since its own courts were dealing with perpetrators of torture, the ICC did not need to.

In both its dealings with the ICC and the CAT Committee, the Afghan government has repeatedly tried to present itself as seriously trying to prevent torture. It has passed laws, found novel ways to again ban torture, created policy and set up new bodies to monitor, investigate and prosecute torture, all as evidence that it is dealing with the torturers who work in government institutions. Such moves have appeared largely aimed at mitigating criticism, rather than the torture itself. Despite over a decade of well-documented torture and abuse of detainees, command impunity is still the norm. As seen in the new UNAMA report – at least until March 2020 when its data ends – the picture presented is still of a government not serious about tackling this issue. Far too many Afghans detained for reasons of security are still suffering torture and ill-treatment.

Edited by Rachel Reid

References

References
1 AAN reports, assessing both Afghan and US use of torture and record on detentions, up to 2014 can be found in “Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture. More recent reports covering Afghan government forces are: “Better, But Still Bad: UNAMA releases new report on the torture of security detainees”, 17 April 2019, “Afghanistan’s Record on Torture to Come under UN Scrutiny”, 21 April 2017 and “Torture as Prevalent as Ever: New UN report finds no end to impunity for Afghan torturers”, 24 April 2017, and looking at torture by US forces: “Held Accountable for Torture: CIA psychologists compensate family of dead Afghan”, 29 August 2017 and “Kafka in Cuba The Afghan Experience in Guantánamo”, November 2016.
2 Other places where detainees were interviewed were (in order of magnitude): provincial prisons; Afghan National Army (ANA); Juvenile Rehabilitation Centres (JRCs); NDS Special Forces and Khost Protection Force; Afghan Local Police; Popular Uprising Groups and; US Forces.
3 Instruments criminalising torture in Afghanistan include:

Penal Code 1976

If the public service official tortures the accused for the purpose of obtaining a confession or issues an order to this effect, he shall be sentenced to long imprisonment.

7 October 1976; 15 Mizan 1355, Art 275

Constitution of Afghanistan 2004

No one shall be allowed to order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished.

26 January 2004; 6 Dalwa 1382, Art 29

Presidential Decree No 129 To Implement The Afghan Fact-Finding Delegation’s Suggestions On The Presence Of Torture And Ill-Treatment In Detention Centres

The Attorney General of the Government of the Islamic Republic of Afghanistan is ordered to prosecute those who violate article 51 of the Prisons and Detentions Law [3] in the light of the findings of the delegation’s report which has reported on the torture and mistreatment of detainees and prisoners, this in order to prevent torture and mistreatment and the conviction of any innocent detainee in the future.

Issued by Hamed Karzai, 16 February 2013; 28 Delwa 1391, Art 1

Criminal Procedure Code 2014

… the judicial police officer, prosecutor and court themselves or through means of another person, in any case, are not allowed to force the suspect or accuse to confess using misconduct, narcotics, duress, torture, hypnosis, threat, intimidation, or promising a benefit. If the statements of the suspect or accused person are taken in violation of the provision set forth in paragraph of this article, they shall not be admissible.

5 May 2014; 28 Saur 1393, Art 22

Decree on the Prohibition of Torture 2017 (later Law on the Prohibition of Torture 2018) which defined torture for the first time in Afghan law as:

…an act which causes pain or physical or psychological suffering against a suspect, an accused or a convict or any other person for the purpose of forcing [the individual] to confess, give information or force another person to give information or to force an individual not to do an act. (art 3)

5 March 2017; 15 Saur 1396

4 In 2010, the CAT Committee issued a request for “Specific information on the implementation of articles 1 to 16 of the Convention,” a list of questions and issues which it wanted Afghanistan to address. Afghanistan responded to these in a report dated April 2016: as we wrote, the government listed laws as evidence of action, rather than taking actual action and had ignored many requests for specific information or obfuscated in its answers. The CAT committee meeting took place on 25 and 26 April 2017 and its recommendations were published on 12 June 2017. The government’s response was made on 28 June 2017.
5 The Optional Protocol to the Convention Against Torture (CAT) allows for the establishment of a system whereby “independent international and national bodies” can undertake regular visits “to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.” On 18 April 2017, as obliged by the Optional Protocol to CAT, the AIHRC-led Commission for the Prohibition of Torture was set up. The government also decided to withdraw Afghanistan’s reservation to article 20 of CAT. This meant the CAT Committee has permission to request investigations into torture if it “receives credible information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party.”

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ICC detainees Torture ANP UNAMA NDS Special Forces CAT NDS OHCRC

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