President Karzai’s legal advisor, Nasrullah Stanekzai, has confirmed to AAN that there will be detention without trial of Afghans by Afghans when the Detention Facility at Parwan (DFIP), also referred to simply as ‘Bagram’, is handed over to Afghan government control, at the latest, on 8 September 2012. A memorandum of understanding (MoU) signed by the Afghan and US governments on 9 March created a tight timetable for the handover, with security detainees covered not by Afghan criminal law, but the Law of Armed Conflict. AAN Senior Analyst, Kate Clark, looks at how this may open the door to new abuses of Afghan citizens.
Negotiations on the vexed issue of who should have jurisdiction over security prisoners went right up to the wire. The MoU (which can be read at the bottom of the blog) was signed on the last day of an ultimatum given by President Karzai that Afghan prisoners had to be handed to Afghan government control. Along with night raids, this has been a sticking point for Washington and Kabul in their negotiations on a Strategic Partnership agreement (see reporting here). The MoU was a symbolic win for the government on an issue of national sovereignty. It may also be a way of ensuring that, if there is a peace process with the Taleban, detainee releases are partly a card held by the Afghan government, rather than solely by the Americans.
The MoU says that Afghanistan will use ‘administrative detention’(bazdasht-e idari) and here, the Dari version is more explicit, specifying this will be detention without trial (ghair-e qazayi). This was also confirmed to AAN by Nasrullah Stanekzai, who also confirmed that detentions would be covered by Additional Protocol II to the Geneva Conventions (read it here).* At the moment, there are two systems dealing with Afghans suspected of involvement in the insurgency. If they are detained by the American military, it may hold them and, if it does so, it will be without trial. All others, including those detained by the military of other countries operating within ISAF are handed over to the Afghan authorities, usually the NDS, within 96 hours, and are dealt with under the criminal law. They must either be released after 72 hours or handed over with their case file to the Attorney General’s Office (which then has 15 days, extendable to 30, to prepare a case or again, release the individual).
As a new report by the Afghanistan Independent Human Rights Commissions (AIHRC) (find it here) has detailed, ‘While mistreatment is a problem for detainees throughout the Afghan justice system, research and experience have shown that conflict-related detainees are particularly vulnerable to abuse and torture.’ In other words, the existing rules and legal safeguards on due process and fair trials are already frequently breached with regard to security detainees. However, the existence of these rules does at least give something for detainees and their families and lawyers to struggle for. Under the MoU, even the the most basic safeguard of having one’s day in court to answer charges would be removed. Stanekzai said they are still working out the practicalities of the new system and did not want to be drawn on any details, but the text of the MoU appears to foresee the two systems continuing in the future:
The Participants [Afghan and US governments] intend to transfer detainees, captured during military operations, to Afghanistan to be held in administrative detention consistent with Additional Protocol II or for prosecution at the Justice Centre in Parwan (JCIP), consistent with the criminal laws of Afghanistan.
The MoU also foresees an upsurge in the number of security detainees – in Bagram and in the regular jail in Pul-e Charkhi – with a US promise to build an additional 4000 places.
Under Additional Protocol II (APII) administrative detention, ie detention without trial, may be legal. APII acknowledges that when a state is at war, it may deprive its citizens of ‘their liberty for reasons related to the armed conflict.’ Even so, there are many obvious grounds for concern, given that the Afghan war is open-ended, prompting the question of when and how an individual may no longer be deemed a threat. Also, the Taleban are not identified by uniform or membership card, but mingle among the civilian population, making false arrest easy, and the record of the Afghan law enforcement and judicial system on due process is extremely poor.** There is also the problem that, under administrative detention, people are generally detained not for what they are suspected of having done – when the criminal law would prosecute them – but because of what it is feared they might do if they were released, meaning it can be extremely difficult to defend oneself
The MoU says the administrative detention regime will be consistent, not only with APII and International Humanitarian Law (the law of armed conflict), but also with ‘Afghanistan’s international obligations’, including with respect to ‘humane treatment of detainees and applicable due process’. These obligations*** should mean, for example, detainees being able to challenge their imprisonment through the courts, but such legal rights look likely to be trumped by APII.**** The Afghan Constitutuion also gives few fundamental safeguards,for example, there is no right to habeas corpus. If there had been, the Constitution might have created legal obstacles to any presidential decree legalising detention without trial.
The fundamental problem is that the Afghans are inheriting a War on Terror-type detention regime. In 2001, the US refused to acknowledge even the minimum protections afforded to detainees by the Geneva Conventions to those detained during the War on Terror. Under pressure from human rights activists, journalists and the US courts, the American detention regime has improved, but from a very low level: at least two prisoners died in Bagram because of torture in those early years.***** The US military eventually began to incorporate some safeguards, introducing detainee review boards, which regularly look at cases, and becoming more open to journalists, human rights NGOs and the United Nations. However, these changes remain inadequate when it comes to preventing miscarriages of justice – which has meant that Bagram is still frequently referred to as the United States ‘other Guantanamo.’ (For detail on the Kafkaesque nature of ‘justice’ for Afghans in Guantanamo, see here.)
The Bagram MoU means that enteqal (transition) will not just entail an inheritance of military bases, a swollen Afghan army and police and the militia forces of the Afghan Local Police, but, also, unless there is a negotiated end to the conflict, the continuing of a detention regime which many Afghans see as embodying some of the worst aspects of the US military presence in their country. It is very easy to see the synergies of such a system with the post-2014 scenario envisaged by the former head of US SOF in Afghanistan, General Bill McCraven, (read here) where an Afghan state which is hostile to the Taleban and other opponents is supported by ‘terrorist-hunting’ units of JSOC – US Special Forces and CIA.
If the Afghan government was itself unilaterally introducing detention without trial, rather than inheriting the system from the US military, it is likely that Kabul-based diplomats would be up in arms about it. But the new system is not yet set in stone. The English version of the MoU is not correct when it says that: ‘Afghanistan affirms that it has established an administrative detention regime under its domestic law.’ The Dari version of the MoU is more accurate, putting this sentence in the present/future tense, ie Afghanistan ‘will be establishing’ [ijad namayad].
Making sure any new system has proper safeguards, due process and compliance with Afghanistan’s obligations under international human rights law, will need political will, not only from diplomats and the United Nations, but domestically. This looks unlikely to happen. For Afghans, at least, it may be that the transfer of Bagram to Afghan sovereignty feels like an achievement in itself, although retaining a system of detention without trialand giving the US a veto over any prisoner release should surely also be ringing alarm bells for Afghans.
The modalities of the handover are still being worked on. However, the time-table for the transfer of detention facilities is strict and specified in the MoU:
- Immediate handing over of ‘management’ of Bagram to an Afghan commander – ‘a three star Army general with appropriate qualifications.’ He will work with the US to ‘…ensure the orderly processing and transfer of detainees within the DFIP and to other detention facilities and prisons in Afghanistan…’
- A month after the signing of the MoU, the ‘modalities and implementation procedures for the transfer of detainees’ should have been established
- The US military retains responsibility, under the Law of Armed Conflict, for the detainees during the processing and transfer period. This may not last more than six months after the signing of the MoU. Deadline: 8 September 2012
- For one year after the signing of the MoU, the US military will remain at Bagram providing ‘advisory, technical and logistical support’. Last day: 8 March 2013
- The US will continue to have a right to veto any releases on security grounds
- The US and ‘relevant humanitarian bodies’ will have continuing ‘sufficient access’ to detainees to monitor whether the provisions of international humanitarian law is being applied. (This looks like an attempt to placate criticism of the US military over possible breaches of the legal ban under the Convention on Torture on handing over detainees if there is a well-founded risk of torture. Since a report by UNAMA in September (read it here) found evidence of torture in many NDS and police facilities, the US military an ISAF were forced to halt handovers to those places and start monitoring them. That this system is not working is clear from the AIHRC’s new report, cited at the beginning of the blog.)
* The United States is not a ‘state party’ to Additional Protocol II, so it is not bound by it, which makes its use here interesting. Afghanistan acceded to AP II in November 2009.
** For reporting and research on various aspects of the Afghan legal system, see here, here and here; our previous blogs here, here and here; and OHCHR, Arbitrary Detention in Afghanistan: A Call for Action, Kabul: UNAMA, 2009.
***Afghanistan’s ‘international obligations’ include those set out in the International Covenant on Civil and Political Rights, (acceded to in 1983) which prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.
**** It could be argued that the body of law which is more specific to a situation (in this case, APII in time of war) should trump more general laws (ie, human rights treaties giving legal safeguards to detainees).
***** For research and reporting on Bagram, see here, here, here, here and here.
Memorandum of Understanding between The Islamic Republic of Afghanistan and the United States of America On Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan
The Government of the Islamic Republic of Afghanistan (hereinafter “Afghanistan”) and the Government of the United States of America (hereinafter “United States”), hereinafter known collectively as “Participants” and represented respectively by the Minister of Defence of the Islamic Republic of Afghanistan and the Commander, U.S. Forces Afghanistan,
Recognizing the progress already made in their partnership aimed at fighting international terrorism and extremism and stabilizing Afghanistan;
Building on the progress of the ongoing Transition of lead responsibility in the security sector to the Afghan National Security Forces (ANSF);
Highlighting the United States’ full respect to Afghanistan’s sovereignty andemphasizing the importance of cooperation between Participants in a manner that further strengthens the exercise of Afghan sovereignty;
Recalling the recommendations of the November 2011 Traditional Loya Jirga, with particular focus on the recommendations concerning the ‘transfer of detention facilities operated by the United States on the Afghan soil to the Government of Afghanistan as soon as possible’;
Have reached the following understandings:
1. For the purpose of this Memorandum of Understanding (MoU), prisons are defined as facilities housing convicted prisoners or persons awaiting trial. Prisons do not include facilities incident to internal disciplinary authorities exercised by the United States military authorities over United States personnel.
2. For the purpose of this MoU, detention facilities are defined as facilities established to hold persons consistent with international humanitarian law, including Additional Protocol II of 1977 to the Geneva Convention of 1949.
Terms of Transfer of Detention Facilities
3. The United States reaffirms that it does not operate prisons in Afghan territory and that, consistent with the provisions of this MoU, it is to transfer U.S. detention facilities in Afghan territory to Afghan control.
4. The United States reaffirms that it is to transfer Afghan nationals detained by U.S. forces at the Detention Facility in Parwan (DFIP) to Afghanistan according to the provisions of this MoU.
5. Afghanistan affirms that it has established an administrative detention regime under its domestic law which is:
a) consistent with international humanitarian law, including the Additional Protocol II of 1977 to the Geneva Convention of 1949, and all of Afghanistan’s international obligations;
b) in compliance with Afghanistan’s international obligations with respect to humane treatment and applicable due process; and
c) based on sustainable arrangements, including housing.
6. The Participants affirm that, upon signing of this MoU, the DFIP is to come under the management of an Afghan Commander,
a) provided that Afghanistan appoints a three star Army General with appropriate qualifications and the required staff prior to the date;
b) the new Afghan Commander at the DFIP is to work with the United States to ensure the orderly processing and transfer of detainees within the DFIP and to other detention facilities and prisons in Afghanistan, and to continue to build the capacity of the DFIP to provide a secure and humane environment;
c) the United States Commander at the DFIP is to retain responsibility for the detainees held by the United States at the DFIP under the Law of Armed Conflict during the processing and transfer period, which is not to last more than six months;
d) both sides commit to provide the necessary resources and personnel sufficient to effect the transfers of detainees held by the United States at the DFIP under the Law of Armed Conflict within the six-month timeframe; and
e) the United States is to continue its presence at the DFIP in order to provide advisory, technical and logistical support for a period of one year from the signing of this MoU.
7. Afghanistan affirms that it is to provide the United States and relevant humanitarian bodies sufficient access to transferred detainees for the purpose of monitoring the application of the provisions of international humanitarian law.
8. Afghanistan affirms that it is to take all necessary steps, consistent with international humanitarian law, including Additional Protocol II, as well as its other international legal obligations, to ensure that detainees it holds are prevented from engaging in or facilitating terrorist activity so as to ensure that they do not pose a continuing threat to Afghanistan, the international community, or the United States.
9. Afghanistan affirms that it is to consult with the United States before the release, including release prior to indictment, of the transferred detainees, and, if the United States provides its assessment that continued detention is necessary to prevent the detainee from engaging in or facilitating terrorist activity, Afghanistan is to consider favorably such assessment.
a) This arrangement is subject to review as part of the Bilateral Security Agreement to be negotiated between the Participants after the signing of the Strategic Partnership.
b) Afghanistan affirms that it is to notify the United States prior to the transfer beyond the DFIP of any transferred detainee.
10. The Participants reaffirm that they are to continue to cooperate in further developing Afghanistan’s capacity to ensure secure and humane administrative detention operations. Such cooperation is to include, but not be limited to, a continued U.S. commitment to:
a) build no fewer than 11 sustainable detention housing units in Parwan and 9 in ANDF Pul-e-Charkhi, with a total combined capacity of 4,000 beds;
b) transfer such housing units to the control of Afghanistan as they are completed;
c) train and support the Afghan National Army Military Police Brigade in numbers sufficient to provide secure and humane care and custody to detainees; and
d) assist in establishing appropriate Afghan processes related to administrative detention.
11. The Participants intend to continue to transfer detainees, captured during military operations, to Afghanistan to be held in administrative detention consistent with Additional Protocol II, or for prosecution at the Justice Center in Parwan (JCIP) consistent with the criminal laws of Afghanistan. The Participants intend to address this matter further in a separate document.
12. The Participants, upon signing this MoU, hereby establish a Bilateral Committee on Detentions to oversee the implementation of this MoU. Co-chaired by the Minister of Defence and the Commander, U.S. Forces Afghanistan, or their designees, the Committee is to be responsible for the following tasks, among others:
a) the Committee is to ensure that the process of transition to Afghan management of the DFIP proceeds smoothly, and that modalities and implementation procedures for the transfer of detainees are established within one month of the signing of this MoU;
b) the Committee is to take decisions, consistent with Afghan law, including a risk assessment consistent with Additional Protocol II, in respect of cases that arise under paragraph 9 of this MoU; and
c) the Committee is to coordinate cooperation between the Participants in the development of Afghanistan’s capacity to ensure a secure and humane administrative detention regime.
13. The understandings of the Participants reflected in this MoU are without prejudice to existing arrangements and understandings on issues related to security cooperation outside the scope of this MoU.
14. All cooperation under this MoU is to be consistent with the Participants’ respective rights, obligations, and commitments under international law, and subject to applicable laws and regulations of the Participants.
15. This MoU is intended to commence upon signature.
16. Any disputes with respect to cooperation under this MoU are to be resolved, in the first instance, in the Bilateral Committee on Detentions established in the above section, and may be settled through diplomatic consultations if not so resolved.
17. This MoU was signed on the 09th of March 2012 in the city of Kabul. The English, Pashto, and Dari versions carry equal weight.
For the Islamic Republic of Afghanistan For the United States of America
General Abdul Rahim Wardak General John Allen
Minister of Defence Commander, U.S. Forces Afghanistan
This article was last updated on 9 Mar 2020