The transfer of detainees held at Bagram airbase from US to Afghan hands is once again in full swing. Transfers had begun after the US and Afghan governments signed a Memorandum of Understanding (MoU) on transferring Bagram almost a year ago, but they were suspended by the US in late summer 2012, due to reluctance on the side of the Afghan government to hold its citizens without trial (‘administrative detention’), as stipulated in the MoU. The two sides are now negotiating the final few – but key – issues: squaring administrative detention with certain constitutional rights, deciding whether those picked up by Afghan Special Operations Forces should also be detained at Bagram and agreeing how long the US military can hold a detainee before handing him over. These issues are important, explains AAN’s Kate Clark, as they touch on Afghan sovereignty, the ability to fight the insurgency and the setting up of systems that will last well beyond the transition and the end of the ISAF mandate.
Correction (21 March 2013)
In paragraph 10, we wrongly reported that, ‘the 50 or so particularly dangerous individuals whom the US had held back in September 2012’ had been handed over to the Afghan authorities. A US military spokesman has confirmed to AAN that these men are still in American hands. This incorrect information arose out of a misunderstanding of remarks by the commander of the Afghan side of the detention facility, General Faruq Barakzai. These detainees remain one of the main issues of contention between the two sides.
Disputes over Bagram and its detainees have made for some rocky times for the Afghan government and its US backers, since the two sides signed the MoU on handing over the facility, in March 2012. Getting that MoU (see AAN’s analysis here) was seen as a victory for President Hamid Karzai who had long viewed the detention of Afghans on Afghan soil by the US military as an affront to national sovereignty.(1)
The transfer of detainees began after the signing of the MoU, along with the building of 11 new prison blocks to house them in. However, within a couple of months, the agreement had begun to unravel, with the Afghan government showing increasing unease at holding its citizens without trial – this despite the fact that administrative detention, citing Additional Protocol 2 to the Geneva Conventions as its legal basis, was not only written into the Bagram MoU, but also into several other agreements, including the MoU on Special Operations (read text and analysis here), a secret inter-ministerial agreement on the transfer of Bagram (read AAN’s translation of it here), and possibly also a secret presidential decree on the transfer (it is referred to in the ministerial agreement, but AAN has not yet seen a copy).
In May 2012, even as the Afghan state began to start interning some of its own citizens, the presidential spokesman told AAN ‘… 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.’ Those laws include the constitutional requirement that anyone who is detained must, within 72 hours of arrest, either have their cases handed over to the attorney general’s office or be released.
There was another cause for Afghan anger. President Karzai had discovered that US forces were still detaining Afghans, something he thought the two MoUs on Bagram and Special Operations had rendered illegal.
For the US military, however, the possibility of keeping people in administrative detention was key to them agreeing to transfer detainees. It is seen as a necessary safeguard in dealing with those deemed dangerous insurgents, given the ‘leakiness’ of the Afghan criminal justice system where bribes and political pressure can be used with police, prosecutors, judges and jails to gain the release of detainees.
The resulting impasse led the US to halt its transfer of prisoners, much to the fury of the Afghan government (see this AAN report from early September 2012 for details).
By January 2013, however, the two sides had seemingly patched up their differences. Presidents Obama and Karzai announced, after meeting in Washington, that they were ‘committed to placing Afghan detainees under the sovereignty and control of Afghanistan, while also ensuring that dangerous fighters remain off the battlefield.’ More specifically, President Karzai said there would be a ‘complete return of detention centres and detainees to Afghan sovereignty…. soon after my return to Afghanistan.’ (See AAN analysis here)
The man in charge of what is officially called the Detention Facility in Parwan (DFIP) on the Afghan side, General Faruq Barakzai, has told AAN that the US and Afghanistan governments have settled their dispute and that the Afghans would be getting control of Bagram. Both he and the US military spokesman have confirmed to AAN that negotiations to resolve the final outstanding issues should be completed within the next week or so (a press conference has apparently been scheduled for 9 March 2013).
According to Barakzai, detainee transfers are again fully up and running: all 3100 men who had been arrested before the MoU in March 2012 have been transferred, including the 50 or so particularly ‘dangerous’ individuals whom the US had held back in September 2012. They are now dealing with those who were detained since the MoU was signed. ‘Every night, people are transferred,’ said General Barakzai. ‘Last night, for example, we had 46 people handed over.’ He said that the 400-500 detainees who are currently still in US hands (and kept in two blocks which are still under US control) were all due to be transferred, except for about 50 foreign prisoners, mainly Pakistanis, not covered by the MoU.
The Afghan authorities have shown a much stronger preference for sending detainees to trial, rather than, as the US military more commonly did when it was in charge of determining the fate of the detainees, holding them in administrative detention. ‘Luckily,’ said General Barakzai, ‘there are not many in that last category. We’ve had 60 to 70 people in administrative detention over the last year, but after their next six monthly review all were released or sent to the court. There are currently no detainees in administrative detention.’
Detainees sent for trial appear before the court at Bagram – known officially as the Justice Centre in Parwan. This is an ordinary court, although it only deals with security cases. It has both primary and appeals functions. The judges, prosecutors and defence lawyers are all ordinary officers of the court, although all are based at Bagram. Altogether, since transfers began, Barakzai said, about 1200 detainees have been released, either by the court or by other bodies at Bagram who reviewed their files and concluded that there was not enough evidence to try them and that they were not a threat. (2)
Although transfers have been resumed, there are a few outstanding issues currently under negotiation.
First, the Afghan government needs to find a way to reconcile the practice of administrative detention with Afghan Law,(3) particularly given the 72 hour constitutional restriction, stipulating that after this period detainees have to either be released or passed on to the Attorney General’s Office. Although far more detainees are going through the normal Afghan criminal justice system than when the US was running Bagram, a case is being made that the Afghan state does need the option of administrative detention: ‘There are very clever people who leave no evidence behind,’ Barakzai explained. ‘They are very serious and very dangerous. We need administrative detention to deal with them.’ However, he added, ‘…we must use administrative detention in the context of Afghan law.’ So far this contradiction does not appear to have been reconciled. Incidentally, from a rights perspective, it may actually be better to maintain the current messy situation and not formally enshrine the right of the state to intern its citizens.
The second issue still under discussion, as AAN understands, is the time it takes the US military to transfer detainees. Currently, it reportedly takes the US about 2 months to hand over detainees. A high-ranking Afghan source told AAN that, during the original negotiations the Afghan side had insisted that the 72 hour rule be included in the Bagram MoU. When the US side said that was impossible, no time-frame for transfer was included in the MoU.
The US military declined to speak to AAN for this blog, but its position appears likely unchanged since September 2012 when a spokesman said they had no desire to hold Afghans long-term, but, ‘…consistent with the Detentions MOU and the MOU on the Afghanization of Special Operations… the US retains the authority to capture and hold detainees who have been captured in accordance with the Law of Armed Conflict.’ This suggests that the US military do not intend to agree to the almost-immediate transfer that the Afghan government has in mind.
Underlying this discussion is the deeper controversy over whether the US forces should be detaining (and then transferring) at all. The same high-ranking source told AAN that during the original negotiations the Afghan side had argued that the US military had no right to detain Afghans under the Special Operations MoU, which was being prepared at the same time.
It is not clear whether either side has yet given ground on this issue. However, it was noticeable that in January, when Karzai and Obama announced that, as of spring 2013, ISAF would ‘shift from combat to support’, they left some room for manoeuvre. Their joint statement said that, ‘most unilateral US combat operations should end, with US forces pulling back their patrols from Afghan villages.’ (emphasis added).
This bring us to the last outstanding issue: whether those detained by Afghan Special Operations Forces (SOF) operating unilaterally, ie not in partnered operations with US forces, should start sending their detainees to DFIP or carry on passing them to the NDS and into the ‘normal’ Afghan criminal justice system.
It seems the US is pressing for these detainees to go to DFIP, most probably in an attempt to set up systems that will continue to serve any US counter-terrorism mission in the post-2014 era. It would allow US forces to maintain the well-established working relationship with Afghan SOF and retain influence over detentions, given that the most ‘interesting’ detainees would still be coming to Bagram airbase where it can be assumed US combat troops would be deployed.
From the Afghan government’s point of view, Bagram is not that convenient a place from which to run a detention and allied criminal justice programme. Not only guards, but also judges, prosecutors and lawyers working at the Justice Centre in Parwan, need to travel from their family homes in Kabul and live in the area during the working week, something which is, apparently, not very popular.
However, for the individual detainee, Bagram may well be a place of relative safety given the torture which is rife within many NDS and ANP facilities where those detained by Afghan forces are currently taken. Although torture carried out by US forces was an endemic problem at Bagram early on after 2001 (see Human Rights Watch reporting here), in recent years incidents have only rarely been reported and systems of oversight and monitoring from Afghan and international organisations are stronger than in the Afghan state institutions.
Altogether, these contradictions remain fairly fundamental. However, both sides appear determined to come to some kind of agreement. Whether they will be able to do this in time for the planned press conference on 9 March 2013 remains to be seen.
(1) Other troop-deploying nations either do not detain at all or hand detainees over to the NDS. The latter option has, however, become more difficult because of allegations of torture. The British had to stop handovers completely after a court case in London (see reporting here) and ISAF hands over selectively to facilities where it believes torture is not taking place. See reporting here).
(2) There is a three stage system at the DFIP to decide what to do with detainees. Once they are transferred, their dossiers are scrutinised by a ‘Committee of Specialists’, made up of representatives from the Ministries of Interior and Defence, Supreme Court, NDS and the Attorney General’s Office. If there is enough evidence of wrong-doing, the detainees are sent for trial. If not, they are sent to the ‘Impartial Review Board’, made up of two people each from the Ministries of Interior, Defence and NDS. The Board investigates, develops and assesses the case with the help of the NDS and Attorney General. At the hearing by the Board, the detainee has a defence lawyer and legal advisor and can bring elders or witnesses to vouch for him. The Board, which sees about 7 detainees every day, can advise release, trial or administrative detention. According to the inter-ministerial agreement, when a majority of the Board decides on the continued detention of a person, they must 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.
If the detainee is not sent to court, his case will be reviewed by the ‘Joint Committee’ which is made up of an American and an Afghan general, acting on behalf of, respectively, the commander of the US Forces and the Afghan Minister of Defence. They review the assessment of the Impartial Review Board, approving or rejecting the advice with regard to administrative detention, release or trial. They need to agree on every decision, according to General Barakzai: ‘The Americans do not have a veto.’
(3) The legal basis for internment in Afghanistan, according to the MoUs and the inter-ministerial agreement, is the Additional Protocol II to the Geneva Conventions, (read the text here) which was signed by Afghanistan in 2009 (see report here). The protocol governs ‘non-international’ conflicts (ie not conflicts between two or more countries) and recognises that a state may deprive its citizens of ‘their liberty for reasons related to the armed conflict.’ In other words, internment, per se, is not illegal during wartime, according to international law. However, it could still be illegal under Afghan law.
This article was last updated on 9 Mar 2020