UNAMA’s latest two-yearly report on the use of torture by the Afghan state shows an increase in the proportion of conflict-related detainees who were tortured, compared to 2015, when UNAMA last reported. There has been, it said, no end to the “pervasive culture of impunity” for those carrying out torture. As AAN’s Kate Clark reports, UNAMA’s report has come two days before government officials are due to appear before an expert committee under the auspices of the Convention against Torture, and while Afghanistan is waiting to see if the International Criminal Court will launch an investigation into Afghan state forces’ use of torture.
Terrorist suspects detained and being posed for the cameras. But what will there fate be? New UN report finds a rise in the use of torture by the Afghan state against conflict-related detainees (Photo: Pahjwok)
AAN’s Detentions and Torture Dossier (2014) brings together our work on detentions and ill-treatment of detainees, including by the Afghan state, American forces on Afghan soil and of Afghans in the United States detention facility in Guantanamo Bay. They include dispatches on UNAMA’s previous reports on the treatment of conflict-related detainees in 2011 and 2012, while our analysis of its 2015 report can be read here. For an overview of the measures taken by the Afghan government before the 25-26 April Convention against Torture committee hearings, see this AAN dispatch.
UNAMA’s latest report on the treatment of conflict-related detainees shows that the government has not yet taken the difficult, but necessary steps to reduce the use of torture. The state is still not prosecuting those carrying out torture in its detention facilities. They face little risk even of disciplinary action, let alone being put on trial for what are criminal offences under Afghan law. It is not surprising then to see that the incidence of torture has risen since UNAMA last reported in 2015. UNAMA does recognise that the government is under an imperative to counter terrorism, but says this can be done “without infringing on fundamental freedoms [and] whilst protecting the rights of all Afghans.”
The use of torture and other forms of prohibited ill treatment as a tool for obtaining confessions is a dangerous paradigm that undermines broader peace-building efforts. Torture does not work – it is an unreliable and ineffective tool for gathering accurate information. Notwithstanding the destructive nature of such practices on long term stability, torture is illegal, immoral and wrong.
UNAMA report page 12
What is in the report?
In the last two years (January 2015 to December 2016), (1) UNAMA found that the proportion of detainees who gave “credible and reliable accounts” (2) of having experienced torture or other forms of prohibited inhuman or degrading treatment was higher than in 2015: 39 per cent of those interviewed, compared to 31 per cent two years ago. The Afghan Intelligence Agency (the NDS) and the police (both Afghan National Police, ANP and Afghan National Border Police, ANBP) were the main culprits, although the Afghan Local Police (ALP) and Afghan National Army (ANA) also featured. (3) UNAMA said that 45 per cent of those held by the police gave credible reports of having been tortured – the highest rate since UNAMA began monitoring in 2010 and an increase of 14 per cent since 2015. This was, said UNAMA, a “significant and disturbing development.” The incidence of torture by the NDS was also up, by three per cent. As for children, almost half (45%) of juvenile detainees (under 18 years of age), gave ‘credible reports’ of having been tortured. This is a higher proportion than for adults.
The most common forms of ill-treatment described to UNAMA (page 7) were:
[S]evere beatings to the body (including with sticks, plastic pipes and cables), beatings to the soles of the feet, electric shocks (including to the genitals), prolonged suspension by the arms and suffocation (both using plastic bags and through forced immersion in water.) Other reported forms of torture and ill-treatment included the wrenching of testicles, use of cigarette lighters to burn the soles of the feet, prolonged use of stress positions, sleep deprivation, sexual assault and threats of execution.
UNAMA found that, as previously, torture is almost always aimed at gaining a confession and ceases after detainees sign or thumb-print a statement. UNAMA said that many detainees said they had not understood or could not read what was written on the ‘confession’ and almost all said they had had no access to a lawyer before they signed it. Part of the impetus for the widespread use of torture in Afghanistan is that courts are happy to convict on the basis of a confessions in the absence of any other evidence.
NDS torture
UNAMA’s monitoring indicates that torture is “systematic” (carried out on more than half of detainees) in NDS facilities in Kandahar and Farah and “regular and prevalent” (more than a third) in NDS Herat and Nangarhar and in Directorate 241 in Kabul (Counter-Terrorism). It said it also had “sufficiently credible and reliable reports of torture in NDS custody recorded in 17 other provincial and national NDS facilities.” (4) Almost one in five of those saying they had been tortured by NDS officials – 20 in all – were juveniles.
All 20 children stated that they were severely beaten kicked or punched during interrogation. One 16 year old detainee was beaten unconscious. A 15 year old boy lost consciousness after a NDS interrogator stood on his neck whilst he lay on the floor. His clothes were soaked with blood due to injuries sustained during the beating. One boy was dragged by his hair around the cell and beaten with a chain. Another was repeatedly soaked with water and forced to stand in his wet clothes.
UNAMA report page 29
Torture by the police
As for the police, 45 per cent of detainees held in Afghan National Police or Afghan National Border Police custody who were interviewed over the last two years “gave credible reports of having been subjected to torture or other forms of ill-treatment whilst in detention.” UNAMA singles out the police in Farah, Herat and Nangarhar (where 54 per cent of detainees were tortured) and especially Kandahar (91 per cent) as particularly bad. It also said that 33 detainees in ANP/ANBP facilities in 18 other provinces had experienced torture or ill-treatment.
The worst places for torture
Kandahar features – as it has every year in UNAMA reporting since 2011 (see AAN analysis here) – as the worst place for torture in Afghanistan. Six out of every ten people held by the NDS there and interviewed by UNAMA gave ‘credible accounts’ of having been tortured, while for the police, the figure was nine out of ten. Kandahar is the worse NDS site in the country for torture, with methods reported to UNAMA including:
…being beaten with either cables or plastic pipes, including on the soles of the feet. Two detainees reported either being hit in the testicles or having their testicles squeezed by NDS interrogators, causing blood to appear in their urine. Other methods of torture and ill-treatment documented in NDS Provincial headquarters in Kandahar included use of electric shocks, stress positions, and sleep deprivation.
UNAMA report page 25
According to UNAMA, Kandahar’s police were using torture on most detainees and with particular brutality:
The methods of torture described by detainees held in ANP Kandahar were particularly cruel and included suffocation resulting in loss of consciousness; crushing the testicles; having water forcibly pumped into the stomach; being suspended from the ceiling by the arms or by the feet; having bricks or other heavy weights tied to the testicles; and electric shocks – including to the genitals. Detainees also reported having their heads held under water for extended periods, having pepper pumped into their rectum, being forced into stress positions, being stripped naked and threatened with rape, and having the soles of the feet burned with a cigarette lighter.
UNAMA report page 33
As in UNAMA’s 2015 reporting, there were, again, allegations that the ANP in Kandahar is responsible for “a series of unexplained disappearances and extra-judicial killings of suspected insurgents in Kandahar.” Several sources, UNAMA said, had provided it with “accounts of their relatives or members of their community ‘disappearing’ after being arrested by uniformed ANP in Kandahar city, with the Provincial Chief of Police [Abdul Razeq] subsequently denying any knowledge of their whereabouts.” One individual, it said, had given a credible account of being held incommunicado for six to eight months following his arrest by Kandahar ANP on suspicion of being a member of Taliban. “During that time he was held in various ‘informal’ places of detention, including the basement of a private house, and was questioned on at least one occasion during his time in informal detention by the Kandahar Chief of Police.”
The most powerful security official in the south, Kandahar’s Provincial Chief of Police, Abdul Razeq, has been repeatedly accused of carrying out atrocities since 2006 in detailed investigative reports (see here, here and here). Earlier this year, AAN also revealed that he had officially been named under the United States Leahy Law as having carried out gross violations of human rights. This law aims at stopping support to units of foreign security forces if they or their commanders are ‘tainted’. However, what penalties Razeq or the Kandahari police under his command have suffered because of the Leahy Law have been difficult to discern.
Other places with a high incidence of torture by both police and NDS are Farah, Herat and Nangarhar. In Kabul, a site which is a perennial location for torture, again features in UNAMA’s report. In the Counter-Terrorism Directorate of NDS in Kabul (now numbered 241, but previously numbered 124 and 90, and in historical accounts of war crimes going back to the 1980s, 5), 15 out of the 34 detainees interviewed (44%) gave UNAMA ‘credible reports’ of having been tortured. Six of the 34 were children and, of those, four reported torture. The incident rate has “increased markedly” since 2015, says UNAMA, and now borders on the ‘systematic’. Methods of torture are familiar, not just from the last seven years, but back to the 1980s. UNAMA says that at NDS 241:
Fourteen of the detainees reported being beaten, punched or kicked during interrogation, with some reporting multiple and systematic beatings over several days. Techniques included beating with chains, cables and hose-pipes, and beating to the soles of the feet. Two detainees complained of having their heads smashed against the cell wall by interrogators. One detainee stated that he was strangled until he lost consciousness. The following day, he was woken at 2am and forced to stand under a cold shower for 10 minutes. Another detainee reported having been subjected to electric shocks while immersed in water. Detainees also reported being threatened with beatings, sexual assault, and attack by dogs.
UNAMA report page 28
The other facility in Kabul which used to show reasonably high levels of torture until 2015, is NDS 501 (formerly 40). Investigations continued to show low rates of abuse. However, as in 2015, a high proportion of detainees (27 per cent) reported having been tortured prior to arriving there (detainees typically come from NDS 241).
The Government action plan on torture
The persistent and, for the police, sharply rising incidence of torture is disappointing given that President Ashraf Ghani came into office appeared genuinely appalled by the practice. “This is a vicious cycle,” said Ashraf Ghani, after official confirmation came in December 2014 of the extent and brutality of CIA torture in black sites on Afghan soil to interrogate and torture Afghan and foreign suspects. “When a person is tortured in an inhumane way,” he said, “the reaction will be inhumane.” After reading Human Rights Watch’s 2015 investigation into abuses carried out by Afghan strongman with impunity, he also reacted strongly, saying (told) his government “would not tolerate torture,” and that he was committed to addressing the issue.
After UNAMA’s 2015 report, the government made various pledges to take specific actions to tackle torture, but these pledges have either only been fulfilled in recent weeks – in the run-up to the CAT committee hearing – or they were fulfilled, but have had no impact on the incidence of torture. UNAMA goes into some detail about government actions since 2015, many of which came within the framework of a National Plan on the Elimination of Torture.
New Laws
The pledges made in the action plan include a new penal code which uses a definition of torture closer to the internationally-accepted definition set out in the Convention against Torture and a new anti-torture law (both finalized in 2017). The penal code was passed by the cabinet, the second by the Anti-Torture Law Committee of the Ministers. (Detail on the anti-torture law can be read about in AAN’s last dispatch.
Another new piece of legislation, however, has increased the vulnerability of security detainees to torture. Amendments to the Criminal Procedural Code were passed originally as presidential decree 76 on 19 October 2015 (see AAN analysis here) and then, with amendments by parliament on 11 May 2016. This piece of legislation extended the time that those suspected of terrorist offenses and offenses against internal and external security can be held initially for ten days and then with judicial permission for a further 60 days. Crucially, this can now happen without the suspect appearing in court or having any chance to argue his case. (5) This “severely limits judicial oversight of conflict-related detainee,” says UNAMA, “during the period when they are most vulnerable to ill-treatment, and increases the risk that such ill-treatment will remain undetected.”
Afghanistan has also signed the Optional Protocol to the Convention against Torture (CAT) and withdrawn its reservation to article 20 of CAT. These two actions allow the CAT committee to follow up on allegations of torture and for individuals to make complaints. For more detail, see our last dispatch.
Monitoring
UNAMA also analyses the work of various monitoring and investigation bodies, some of them new. In January 2016, NDS set up a new Directorate of Gender and Human Rights, numbered 13. It deploys its own human rights officers to 29 NDS facilities at provincial and national level. NDS 13 is authorized to monitor, investigate and refer cases for prosecution. However, perpetrators were “mainly punished,” said UNAMA “through dismissal, written warning, verbal warnings, salary deductions and other administrative punishments.” UNAMA also said that one NDS provincial director and three deputy NDS provincial directors have reportedly been dismissed. However, none of what were to NDS 13 ‘proven’ cases of torture and abuse by senior NDS personnel appeared to have been referred to the prosecutor’s office for further investigation. (6)
The Gender and Human Rights Department of the Ministry of Interior (established in 2013) is also authorised to monitor detention centres, investigate human rights violations and refer appropriate cases for prosecution. However, says UNAMA, unlike NDS 13, its officers are recruited at the provincial level and are not independent of provincial and regional police chiefs. UNAMA is aware that some allegations have been referred to the ANP Criminal Investigation Unit, but does not know of any subsequent case of prosecution.
Investigations and Bringing Cases to Court
UNAMA did manage to get some figures on the outcome of investigations into alleged crimes by members of the security forces, but they were not necessarily for torture and the numbers look low. Nor was it clear if cases had been sent to the prosecutor, or if they had resulted in convictions of acquittals. In general, the Ministry of Defence seemed to have the strongest record on bringing serious criminal cases committed within its ranks to court.
UNAMA welcomes these and other (8) monitoring efforts, but notes that the bodies “appear to lack the required authority and independence to carry out meaningful investigations into allegations of torture or other forms of ill-treatment.”
Other individuals who might be able to act when they see evidence of torture are defence lawyers, judges and doctors working in the Ministry of Interior and NDS. None were fulfilling this oversight role. Access to defence lawyers, for example, has not improved since UNAMA’s last report, and where detainees did have access to legal counsel, that did not necessarily help with reporting torture.
Many lawyers indicated to UNAMA that they believed it was futile to raise the defence that a confession had been obtained under duress. In their experience, judges, particularly at primary court level, either did not consider the allegations of torture, or dismissed them on the grounds that there was no physical evidence that torture had taken place.
UNAMA report page 46
Redress and Compensation
Another theme in the national action is redress for victims. Compensation is referred to in the new anti-torture law, but without any specific mechanisms mentioned. As to redress, UNAMA said it could not identify any examples in the last two years of victims of torture or ill-treatment who had enjoyed access to any form of effective domestic remedy.
UNAMA acknowledges what it calls “the genuine efforts made by the Government to address concerns over the treatment of detainees, and steps taken to implement the [national plan], particularly with regard to enacting legislation, issuing policies and establishing and developing mechanisms for internal human rights oversight within its law enforcement and security institutions.” Nevertheless, it said “administrative punishments for ill treatment do not serve as an effective – or lawful – deterrent, compared to a punishment in accordance with existing domestic law.” The National Action Plan has, as yet, failed to produce any reduction in the use of torture.
The Convention against Torture (CAT) committee and possible International Criminal Court investigation
Tomorrow (25 April), UN officials, the Afghan Independent Human Rights Commission and NGOs will be briefing the CAT committee in Geneva on Afghanistan’s record on torture. The following day, government officials will address the committee. The UNAMA report will not help to make the case that the government is working seriously to eliminate the use of torture by state forces.
Then, looming over everything is the threat of investigation by the International Criminal Court (ICC) into Afghan state forces’ use of torture. In November 2016, the ICC said it would be considering whether to investigate Afghan forces, and separately US forces, for their use of torture in Afghanistan, and the Taleban for a range of war crimes (read AAN analysis here).
One of the pre-requisites for the ICC launching an investigation is that the government of a country is unwilling or unable to itself prosecute war crimes or crimes against humanity. Following the ICC’s November 2016 report, the Afghan government did appear finally to wake up to the risk of coming under ICC investigation. It has started cooperating with the OCP and is now giving information to it. This year, UNAMA said, it had provided the OTP with a ‘Roadmap for Cooperation’, together with preliminary information on 22 cases which the OTP had previously requested, and is now busy compiling additional information for the OTP. Some of the recent legislation, including the Optional Protocol to CAT, also seem aimed at convincing the ICC of the Afghan state’s willingness to act against torturers. (More detail on the latest developments on the ICC will be given in a separate, forthcoming dispatch.)
Going by UNAMA’s report today, however, the Afghan government is not yet able to show itself willing or able to take the necessary, hard steps to stop torture happening in its detention facilities. Until senior officials are prosecuted, and torturers fear judicial punishment according to Afghan law, it is difficult to see how the pervasive culture of impunity will ever be dented. So long as there is no risk for those carrying out torture, Afghan citizens will continue to be abused at the hands of their own security forces.
(1) UNAMA’s 2017 report is based on interviews by UNAMA human rights officers with 469 conflict-related detainees in 62 detention facilities in 29 provinces across Afghanistan, carried out between 1 January 2015 and 31 December 2016. Of the 469 detainees interviewed, 378 were adult males, six were adult females, and 85 were children under the age of 18. The women were being held in NDS detention, but had not been accused of any offense or been tortured.
UNAMA’s 2015 report covered the period 1 February 2013 to 31 December 2014 and was based on interviews with 790 pre-trial detainees and convicted prisoners detained by the NDS, ANP, ANBP, ANA and ALP.
(2) See pages 19-22 of the report for an explanation of UNAMA’s methodology and especially footnote 45 on page 20 for a description of how detainees are interviewed and what is the best practice for ensuring human rights officers get true accounts of what has happened.
(3) UNAMA found some cases of torture by the Afghan National Army, but the sample was statistically too small to know how representative it might be. It also reported cases at the detention facility at Bagram (Parwan) which is under Ministry of Defence control. It round that guards, “may be using physical violence and intimidation as a means of maintaining order in a facility that is near to its capacity, and in an environment where the ANA guards – who are not trained corrections officers – see their role purely as containing a potential security threat.”
(4) UNAMA attributes the trend towards an increased use of torture by NDS to “significant increases in the credible allegations of torture and ill-treatment observed in NDS facilities in Herat, Kandahar, Nangarhar and NDS 241 in Kabul, combined with continued high levels of such cases documented at NDS Farah.”
(5) After 72 hours in police or NDS detention, the prosecutor had previously been allowed to request additional time for the investigation. The 2014 Criminal Procedure Code (article 100) allowed a judge to accede to a request for an additional seven days in the case of misdemeanours and 15 days for felonies. Under the 2015 amendments to the Criminal Procedural Code, for terrorist offenses, these seven additional days for investigating misdemeanours turned into 30 days, and the 15 days for felonies into 60 days (ie from two weeks to two months). A person suspected of involvement in a terrorist crime can now spend up to 70 days in custody before seeing a judge. Under the Criminal Procedure Code before it was amended, a total of 78 days of pre-trial detention was possible, but the last 60 days had to have been approved by a judge and required the suspect and his or her defence lawyer to come to court.
(6) UNAMA also has concerns that members of NDS 13 have been posing as independent human rights monitors in order to gain the confidence of detainees. At least one man, it said, had been subsequently beaten as a punishment for talking to the ‘human rights officer’ by his alleged torturer. Even though, from UNAMA’s account, it seems that the impetus to deceive was without malintent, the practice could create problems for independent organisations –UNAMA, the Afghanistan Independent Human Rights Commission (AIHRC) and the International Committee of the Red Cross (ICRC) – who have a mandate to speak to detainees in confidence; it is potentially destructive to human rights access. UNAMA said the director of NDS 13 has said he would issue instructions to staff to properly identify themselves to detainees.
(7) UNAMA reported the following figures:
Ministry of Interior: 46 cases (12 by ANP, 32 by Afghan Local Police (ALP), and two by ‘National Uprising militias’) referred to the prosecutor. This was for a wide variety of offences with nine apparently related to torture (four by ANP and five by ALP). The higher incidence of ALP cases may reflect better internal reporting mechanisms, rather than a higher incidence of torture. UNAMA had no update on prosecutions, apart from one acquittal, but said the ministry was seeking to provide more information.
NDS: 5 cases referred to the prosecutor, including 3 from Directorate 241. One person has been acquitted; the other cases are ongoing. Again, it was not clear how many of these cases were to do with torture.
Ministry Of Defence: 22 cases of serious crimes referred to the prosecutor, including the deliberate killing of civilians, beating to death of prisoners of war, and committing violence against women. Again, it was not clear if any were to do with torture. UNAMA said that the Ministry of Defence “does appear to be taking concrete steps to ensure that ANA personnel found to have committed serious crimes are brought to justice.”
(8) Other oversight mechanisms include the Office of the Police, Defence and Security Forces Ombudsman, set up in 2011, which tends, UNAMA says, to resolve even credible allegations of torture by internal disciplinary measures. In recent days, a “Prevention of Torture Commission” has also been set up. An obligation under the Optional Protocol to the CAT is to set up a ‘National Preventive Mechanism’ which is mandated to visit places of detention. However, those sitting on Afghanistan’s Prevention of Torture Commission include senior representatives from those organizations currently practicing torture – the NDS, and ministries of interior and defence. The commission lacks, said UNAMA, “the functional independence that is a pre-requisite for an effective National Preventive Mechanism as foreseen by the Optional Protocol.”
Revisions:
This article was last updated on 9 Mar 2020
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