Sources involved in the handover of Bagram detention facility from the United States to Afghanistan have told AAN that the Afghan state was due to start ruling on the internment of its own citizens there on 22 May 2012. The use of the US system of detention without trial by the Afghan government is probably the most important consequence of the handover of Bagram. Yet it has been introduced with virtually no discussion, whether in parliament or the media. The Afghan government has appeared reluctant to discuss the issue: even as the new Afghan institutions were being established to detain Afghans without trial at Bagram, President Karzai’s spokesman told AAN they were against the practice. In this blog, Kate Clark details what is now happening at Bagram, reveals unpublished documentation and questions whether the Afghan state has actually gained sovereignty over its detained citizens and whether the US has really relinquished any control.
It seems that most Afghans, including most senior figures whom AAN asked about Bagram, have not understood that gaining control of Bagram means continuing the American use of detention without trial – also known as ‘administrative detention’ or when practiced by a state against its own citizens, ‘internment’ – of those viewed as security threats.
The Memorandum of Understanding (MoU) on handing over Bagram, which is officially known as the Detention Facility in Parwan or DFiP, was signed by the United States and Afghanistan in March (read the text and an analysis here). The MoU appears to have been the result of the Afghan government urgently demanding the handover of Afghan detainees (see President Karzai’s ultimatum in January 2012), possibly as a pre-condition to the signing of the Strategic Partnership Agreement, which the US wanted in place before the recently-held NATO summit in Chicago.
The US was concerned about the possible release of some of those it deems the most dangerous people in custody, particularly as the 3000 odd people currently held by the US without trial might be considered illegally incarcerated under Afghan law. Hence the Afghan and US negotiators took recourse to the Laws of Armed Conflict. Both the Bagram MoU and the MoU on Special Operations, which was signed a month later (text and analysis are here), cite the 1977 Second Additional Protocol to the Geneva Conventions (APII) as the legal basis for detention without trial. APII acknowledges that when a state is fighting a war, it may deprive its citizens of ‘their liberty for reasons related to the armed conflict.’(1)
The Bagram MoU was proclaimed a major step towards Afghan sovereignty, but at the highest echelons of the state, there have since been contradictory signals and actions, indicating possible unease with what is happening. When AAN asked President Karzai’s spokesman, Aimal Faizi, in early May about detention without trial, he said:
… we are against any detention without trial. For us, nobody can be held without trial. Everything has to be in accordance to the Afghan laws.
Yet, Mr Faizi’s unequivocal words came even as the Afghan and US authorities had begun to work on the system with which the Afghan state would itself start interring its own citizens.
Trying to piece together what is now happening at Bagram is somewhat difficult, because the nature of the handover is largely secret – or at least, has not been openly discussed. Sources for this blog include the two published MoUs and an unpublished inter-ministerial agreement on the Procedure (tarz ul-amal) for the handover and management of Bagram, which was passed on unofficially to AAN. (Our own translation of the Procedure from the original Dari can be found at the bottom of this blog). AAN has also interviewed some of those involved in the handover, none of whom wanted to speak on the record.
This then appears to be the state of play at Bagram:
On 3 March 2012 (13 Hut 1390), the ministers of defence, interior and justice, the director of the NDS, general director for administrative affairs at the Supreme Court and the Attorney General signed ‘The Procedure for Transition and Management of Bagram Detention Facility and Pul-e-Charkhi Detention Facility from the United States of America to the Islamic Republic of Afghanistan.’ It cites APII.(2)
The Procedure refers to a presidential decree which is un-dated and un-numbered and, if this decree has subsequently been issued, AAN has not been able to read it and its possible contents are not known.(3)
On 9 March 2012, the Afghan and US governments publically signed the Bagram MoU. It appears to refer to the Procedure (4).
The first step in the transition was the appointment of an Afghan commander at Bagram. This is three star General, Ghulam Faruq Barakzai (a professional military man from Shindand who was trained before 1978 and fought in the anti-Soviet jihad) (5).
At some point in mid-April, the case files of the 3100 detainees already held at Bagram, began to be reviewed. A report on the presidential website on 21 April 2012 quotes General Barakzai as saying this to the regular judiciary meeting chaired by President Karzai.
The US military is passing on detainees’ case files (in English, with Dari translation) at a rate, someone involved in the handover told AAN, of 30 to 40 a day to an Afghan committee for review. This committee is referred to on the presidential website as the ‘Special Committee for [the] Transfer of the Bagram Prison’ and in the Procedure as the ‘technical committee’ and is made up of representatives from the Ministries of Defence and Interior, the NDS, the Attorney General’s Office and the Supreme Court.
The Committee should immediately classify the case files (and should not hold on to any individual file for more than twelve hours). According to the Procedure, if the Committee, ‘finds enough evidence and documentation … [the case] shall be referred to the Prosecution Department of the NDS for prosecution.’ If there is not prosecutable evidence, the case file is passed on to what the Procedure calls an ‘impartial board’, made up of representatives from the Ministries of Interior and Defence and the NDS. The board’s role is to decide whether to keep detaining the person without trial or recommend his release. According to the Procedure, a majority of the Board members must consider the following standards:
• The detainee was a member or potential supporter of an armed group engaged in hostilities against the Islamic Republic of Afghanistan or international forces.
• The detainee committed or attempted to commit a belligerent act.
• The detainee gave significant support to another person for the commission or attempted commission of a belligerent act.
The Procedure says nothing about what sort of evidence is required.
If the Board recommends release, the case file is passed back to the Committee. However, the decision to release any detainee is made by the Bagram Transfer Commission, which is comprised of five ministers, under the chairmanship of the minister of defence. But even they cannot act independently. They must consult the US before releasing anyone, including those being sent for trial. The Bagram MoU says that if the US believes a particular individual remains a security threat, ‘Afghanistan is to consider favourably such assessment.’ This may be diplomatic language for a veto.
It appears that the Technical Committee has been reviewing case files since at least mid-April. AAN was told that the detention without trial Review Board was due to begin its work yesterday, 22 May 2012. Even if the start date, for any reason, has slipped, the Board is expected to start work during the next few days.
The Procedure contains relatively little detail about the arrangements for internment. It specifies some conditions involving humane treatment (some of which are mandatory under APII), due process and monitoring: detainees must be registered and the International Committee of the Red Cross and the Afghanistan Independent Human Rights Commission (AIHRC) must have access to the detainees; detainees under 18 will not be held at Bagram; security detainees and criminals will not be held together and; families of detainees will be allowed to visit and/or correspond.
As to the review boards, the Procedure says detainees’ cases will be reviewed every six months. They must be told why they are being detained and can challenge their detention, and be assisted at the Review Board by a personal representative and, if possible, have legal support; they can present evidence, including calling ‘available’ witnesses.
This system appears largely to be the same as that which the US military has been using up till now.(6)
Although the dark days following 2001, when people were incarcerated secretly at Bagram and at least two prisoners died because of torture, may be long gone, the system which operates there and which the Afghans have now inherited is still inadequate for preventing abuses. In particular, detainees held without trial do not have legal counsel and cannot see the evidence against them.
I and others who reported on the Bagram MoU in March assumed it did actually represent a real gain in sovereignty for Afghans. However, re-reading all the documents and interviews, I suspect we were mistaken and something murkier may be the case. The handover gives the appearance of a transfer of sovereignty while leaving the real power to detain or release with the US military.
One of the key articles in the Bagram MoU appears to be the following:
6c) 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.
I assumed that the six months referred to was a one off, and that from September 2012, all detainees would have been transferred (others also assumed the same, see for example this BBC report). It now seems likely that for each new person detained, the US military could retain control of him for a maximum of six months before he is transferred to the Afghan authorities. The US veto also means that ultimately it determines who leaves Bagram.
This hardly seems like a transfer of sovereignty.
Internment of citizens usually goes on until a war has ended or they are deemed to be no longer a threat, but who can say when the Afghan war might be deemed to be over? The fear must be of an institutionalisation of internment by the Afghan state, that the MoU could open the door to the spread of detention without trial. The record of the state in relation to security detainees is not good (for recent allegations of torture and lack of due process, particularly by the NDS, see reports by the Afghan Independent Human Rights Commission and Open Society Foundations; for links and analysis click here) and UNAMA (for links and analysis, click here). However, at least in this scenario, Afghans would be able to demand more of their government.
More worrying is a scenario where security detention has an Afghan face, but is still largely controlled by the US military. In other words, Afghan forces working with the US military knock down the doors of Afghan homes and make the arrests, but the detainees, if considered interesting, stay in US hands, but with Afghans officially in charge. The Afghan government would face any criticism and might well find itself under pressure from the families and friends of detainees, but without any actual power to release anyone.
The beginning of internment of Afghans by their state represents the loss of a fundamental right and this may be why the government has barely acknowledged what has happened. Its hesitation may also be because detaining citizens under APII means implicitly acknowledging that there is a civil war in Afghanistan.
At the moment, voices of protest and concern are few. One belongs to the MP, Shukria Barakzai, chair of the Lower House Defence Committee, who has questioned the very legality of detention without trial and said there must be a debate. Prisoners, she says, should be under the control of the Ministry of Interior, not Defence, and any decisions on detentions must go through the Supreme Court. ‘Justice,’ she told AAN, ‘is beyond politics. We must not mix politics up with the law, the judiciary and the rights of the people.’
The introduction of internment by the Afghan state may have been a temporary solution to an immediate problem, but the ramifications will surely be wide-ranging and long-lasting. However, the Afghan government’s reluctance to acknowledge its use of detention without trial may mean there is still the opportunity to start a debate and to halt, or at least put a time limit, on the use of this most extreme measure.
(1) Read the text of APII here. APII only provides for the most basic safeguards for detainees: the state must give them food and drinking water, must not keep men and women together, it cannot torture or kill them, and so on. The Bagram MoU also refers to Afghanistan respecting its ‘international obligations with respect to humane treatment and applicable due process’, so some rights over and above APII should be given to detainees; however what they might be were not spelled out in the MoU.
(2) The Procedure also cites two articles in the Afghan civil code and an article in the anti-terrorism crime law. These articles only concern the right of the Afghan state to try those who commit crimes on its territory, and to try those who commit acts of terror, regardless of their nationality.
(3) The Procedure appears to have been drawn up before any decree was issued, with spaces apparently left for the number and date of the decree to be inked in after the signing. One of the references to a decree is in article 5, for example. It says:
The Commission formed under Presidential Decree ( ) dated ( ) is obliged…
(4) The English version of the MoU says: ‘Afghanistan affirms that it has established an administrative detention regime under its domestic law.’
(5) The general’s background points to a possible connection with the deputy chair of the National Security Council and close Karzai ally, Engineer Ibrahim Spinzada.
(6) For research and reporting on Bagram, see here (Human Rights First), here (New York Times), here (Human Rights Watch), here , here (CBS) and here (salon.com).
AAN translation of the Dari text
[Logo of Afghan State]
Islamic Republic of Afghanistan
Ministry of National Defence
In the Name of Allah, the Most Gracious, the Most Merciful
The Procedure for Transition and Management of Bagram Detention Facility and Pul-e Charkhi Detention Facility from the United States of America to the Islamic Republic of Afghanistan
In order to transfer detainees and management of the Afghan Detention Facility in Parwan, this Procedure is adopted in accordance with the following legal instruments:
1. International Humanitarian Law, including Additional Protocol II of 1977 to the Geneva Conventions of 1949 and other obligations of the Islamic Republic of Afghanistan.
2. Article 14 and Paragraph 1 of Article 15 of the Afghan Penal Code and Paragraph 1 of Article 4 of Counterterrorism Criminal Law.
The objectives of this Procedure include:
1. Transfer of detainees from Commander, US Forces Afghanistan to the Ministry of National Defence of the Islamic Republic of Afghanistan.
2. Ensuring the sovereignty of the Islamic Republic of Afghanistan over its territory.
3. Establishing, within the Ministry of National Defence of the Islamic Republic of Afghanistan, responsibility for the management and operation of the Afghan National Detention Facility in Parwan.
4. Confirming, within the Ministry of National Defence of the Islamic Republic of Afghanistan, responsibility for the management and operation of the expanded Afghan National Detention Facility in Pul-e Charkhi.
5. Ensuring the secure and humane detention of persons by the Ministry of National Defence of the Islamic Republic of Afghanistan in accordance with International Humanitarian Law, including Additional Protocol II of 1977 to the Geneva Conventions of 1949 and Common Article 3 of the Geneva Conventions of 1949.
6. Ensuring the maintenance of principles and procedures for the fair and expeditious prosecution of detainees suspected of committing terrorism-related offenses against the internal and external security of Afghanistan in accordance with national and international law.
7. Expediting the peace and reintegration process.
8. Furthering the transition of security responsibilities from international forces to the Afghan security forces in accordance with the framework established in the Lisbon Declaration.
9. Avoiding illegal detentions.
10. Expediting the trials of detainees.
11. Ensuring the principles and procedures for the fair trial of detainees in accordance with the laws of the country as well as international legal documents.
12. Implementing Presidential Decree no. ( ) issued in regard to the transition and management of the Bagram Detention Facility and the detainees.
1. The Ministry of National Defence of the Islamic Republic of Afghanistan is responsible for the management and operation of the Afghan National Detention Facility in Parwan and the expanded Afghan National Detention Facility in Pul-e Charkhi with the support of Commander, US Forces Afghanistan.
2. On behalf of the Islamic Republic of Afghanistan, the Ministry of National Defence of the Islamic Republic of Afghanistan ensures the safe and humane detention of persons who have perpetrated terrorist acts or engaged in hostilities against the Afghan people or against Afghan or international forces and who continue to pose a threat, in accordance with International Humanitarian Law, including Additional Protocol II of 1977 to the Geneva Conventions of 1949 and Common Article 3 of the Geneva Conventions of 1949. This also includes the safe and humane detention of persons transferred to the Ministry of National Defence of the Islamic Republic of Afghanistan by US forces.
(1) The Ministry of National Defence of the Islamic Republic of Afghanistan is responsible for devising procedures or instructions to govern the detention of persons in accordance with International Humanitarian Law, including Additional Protocol II of 1977 to the Geneva Conventions of 1949 and Common Article 3 of the Geneva Conventions of 1949. At a minimum, this must include the following activities and instructions:
1. Administrative detention must meet accepted standards.
2. It is required that that the detainee be informed about the reasons for his detention.
3. It is required that that the detainee be registered and that the International Committee of the Red Cross and the Afghan Independent Human Rights Commission have access to the detainee.
4. It is required that persons accused of criminal offences be held separately from detainees held under International Humanitarian Law.
5. It is required that detainees have the right to challenge their detention with the least possible delay before an impartial board composed of three senior officers. One board member shall be assigned from the Ministry of National Defence, one from the Ministry of Interior, and one from the National Directorate of Security.
6. It is required that detainees be allowed to be assisted by a personal representative and, if available, legal support.
7. It is required that detainees have the opportunity to present evidence and call available [literally existing] witnesses to appear on their behalf.
8. When a majority of members of the board determines the continued detention of a detained person, they will consider the following standards:
1. The detainee was a member or potential supporter of an armed group engaged in hostilities against the Islamic Republic of Afghanistan or international forces.
2. The detainee committed or attempted to commit a belligerent act.
3. The detainee gave significant support to another person for the commission or attempted commission of a belligerent act.
(2) In addition to satisfying one of the criteria set out in Subparagraphs 1-3 of Paragraph 2 of this Article, continued detention is necessary, taking into consideration the detainee’s potential for rehabilitation or reintegration.
(3) The detainee shall be released on order of the Ministry of National Defence of the Islamic Republic of Afghanistan if it is determined by the board that the detainee does not meet the criteria for detention contained in Paragraph 2 of this Article and in accordance with Memorandum of Understanding between Afghanistan and the United States of America.
The Responsibility of the Commission
The Commission set out in Presidential Decree no. ( ), dated ( ), is obliged, in co-ordination [tafahum] with the US authorities, to take necessary measures to complete the process of transferring Afghan nationals being held by US forces at the Detention Facilities in Parwan and Pul-e Charkhi to the Ministry of National Defence of the Islamic Republic of Afghanistan.
Collection of Evidence and Documentation
The National Directorate of Security and Ministry of Interior, through their related units, are assigned to gather and submit to the Commission contained in Article 5 of this Procedure precise information and documentation on the detainees and their suspected connection to anti-State opposition or their engagement in anti-national security activities.
Establishment of a Technical Committee
1. The Commission is obliged, in order to review the gathered evidence, documents, and information, to form, as soon as possible, a technical committee, including representatives of the Ministry of National Defence, the Ministry of Interior, the National Directorate of Security, the Supreme Court, and the Attorney-General’s Office.
2. If the technical committee finds sufficient evidence and documents regarding a detained individual’s affiliation to anti-State opposition or their involvement in activities against internal and external security of the country, cases of such individuals shall be referred to the Prosecution Department of the National Directorate of Security for prosecution.
Transfer of Detainees under the Age of 18
1. The Commission is obliged, for those detainees under the age of 18, where there is enough evidence against them, to transfer them to the Afghan National Detention Facility in Pul-e Charkhi, to the block belonging to the Ministry of National Defence, and accommodate them separately from adult detainees. Their relevant cases shall be referred to the Prosecution Department of the National Directorate of Security for prosecution.
2. The National Directorate of Security and the Ministry of Interior are assigned to observe the provisions of Article 6 of this Procedure in regard to the detainees under the age of 18.
Periodic Review of Detainees’ Cases
The Commission shall study and review the cases of the detainees once every six months.
1. The Ministry of National Defence of the Islamic Republic of Afghanistan is assigned to meet necessary needs related to safe and humane detention of the detainees in cooperation with the US forces.
2. The Ministry of Finance is obliged to prepare the required budget for the Ministry of National Defence to ensure the needs mentioned in Paragraph 1 of this Article are met.
Facilitation of Visits
1. The Commission is assigned to facilitate visits of the detainees by relevant authorities upon request of the detainees and as soon as possible.
2. Given the security conditions, the detainees shall be allowed to meet or correspond with their families and relatives.
3. The Ministry of National Defence of the Islamic Republic of Afghanistan shall take necessary measures to oversee the implementation of Paragraph 2 of this Article.
Transfer of Individuals Captured in Future Military Operations
The Ministry of National Defence of the Islamic Republic of Afghanistan is assigned to sign an MoU with US military authorities to process the transfer of the individuals arrested during US military operations in the future.
Reporting to the President
The Commission is assigned to report to the President regarding the future of the detainees on a regular basis.
Approval and Enforcement Authority
This Procedure is enforced as soon as it is approved and endorsed by the chairperson and members of the assigned Commission. The Commission and relevant organizations are obliged to implement it.
[The document is dated 13 Hut 1390 (3 March 2012) and signed by the following people:]
Saranpoh Habibullah Ghaleb
Minister of Justice and Commissioner
Dr Abdul Malek Kamawi
General Administrative Director of Supreme Court and Commissioner
Engineer Rahmatullah Nabil
NDS Director and Commissioner
Saranpoh Muhammad Ishaq Aloko
Attorney-General and Commissioner
General Bismillah Muhammadi
Minister of Interior and Commissioner
General Abdul Rahim Wardak
Minister of National Defence and Commissioner
This article was last updated on 9 Mar 2020