Many were surprised by the eventual response of the Afghan government to the detailed allegations made by UNAMA in January concerning torture carried out by the National Directorate of Security (NDS) and the Afghan National Police (ANP). The government’s initial denials that any problem existed were predictable enough, but were followed by President Karzai ordering a high level delegation to investigate the allegations; then, after, it accepted torture was ‘widespread’, Karzai called the torture by Afghans of Afghans ‘shameful’ and published an anti-torture decree. As AAN Senior Analyst, Kate Clark, reports, the new decree looks good on paper; now comes the real test of whether the president will actually push for change in how the security forces treat detainees. Meanwhile, on another issue of concern to rights activists, there has come an order from the National Security Council to foreign forces to disband any irregular armed groups they were supporting.
Torture is already illegal under the 2003 Constitution, the Penal Code (1) and the Convention Against Torture which Afghanistan ratified in 1987. However, successive Afghan governments have honoured legal bans on torture almost entirely ‘in the breach’. In that sense, this new decree does not change the legal situation. However, if the president were to follow it through seriously, it could act as a wake-up call to the government itself and as an important, public signal of a change in what is expected and what will be tolerated in the behaviour of state officials.
There has been some surprise as to why the president’s apparent change of heart on how he deals with allegations of torture happened now. After all, two major reports by the UN, in October 2011 and the Afghan Independent Human Rights Commission and the Open Societies Foundations (AIHRC/OSF) in March 2012, which detailed security detainees being beaten, given electric shocks and having their genitals wrenched elicited no change in government policy. ISAF was galvanised to try to ensure its partners in the NDS, in particular, were not using torture on detainees it handed over. However, ISAF’s programme of monitoring, education, training and certification of premises proved far too feeble. A second UN report, released in January 2013, found torture remained ‘systematic’ in some facilities, including one which had been certified as clean by ISAF.
President Karzai’s language on torture has certainly been very strong. Speaking on 16 February to a gathering of Afghan National Army officers, he said it was shameful, ‘that we who consider ourselves the guardians of the rights in this land are violating the rights of our people.’ He also said:
‘The UN issued a report suggesting that there is torture in the Afghan prisons and detention centres. I have worked for 10 years to safeguard the human rights of the Afghans and I have argued with the USA and the world over this issue. It is a shame and regrettable that we prevent America, NATO and foreigners from violating the rights of our people and are arguing with them, but we ourselves are violating the rights of our people’.
(Source BBC Monitoring of National Afghanistan TV, 16 Feb 13)
He issued the decree the same day. The Office of Administrative Affairs emailed AAN the text and our unofficial translation can be found at the end of this blog.
Article 1 says the Attorney General is duty-bound (2) to, ‘prosecute those who violate the law,’ in the light of the findings of the report by the delegation which ‘reported on the torture and mistreatment of detainees and prisoners’ and in order to, ‘prevent torture and mistreatment and the conviction of any innocent detainee in the future.’ The decision to make prosecutions central to this decree potentially gives the Attorney General permission (he already had the legal right and duty) to act against torturers, although it is difficult to imagine him doing this without strong presidential backing in any particular case.
The decree also orders security forces to hand over detainees to the Attorney General’s Office for investigation within the prescribed time limit of 72 hours. Arbitrary detention for days, weeks or even months by the NDS and, to a lesser extent, the police is fundamental to the way detainees are abused: it makes them highly vulnerable to torture and forced confession, especially when they are also denied access to a lawyer and to their families during this period. In this regard, the decree also orders the police and NDS to allow defence lawyers and legal assistants to visit detainees and for a tashkil to be established so that there are enough legal professionals to match the number of those detained.
The decree mandates fresh action for the problem of detainees who have not been released, despite there not being enough evidence to bring them to court, they have been found innocent by a court or have completed their sentence. The Supreme Court (unconstitutionally – surely?) is ordered to appoint ‘expert judges’ to examine these cases. AAN reported in 2010 on a similar drive, which followed the Peace Jirga, to get detainees caught in such unlawful detention freed (see reporting here and here). Within months, several hundred wrongly detained individuals had been released. This time, the decree threatens prosecution against ‘detaining authorities’ who do not take action in this regard.
The drive to torture is embedded in the Afghan criminal justice system’s acceptance of confession without any other supporting evidence as enough to convict people. Unfortunately, the decree does not address this fundamental problem, but it does order police, NDS and the Attorney General to ensure better training on evidence collection and detection and to gather evidence and to refrain from ‘arresting without proof, evidence of documents’. In this and in the creation of a new tashkil of defence lawyers and assistants, there is, of course, the issue of funding.
With this decree, the buck stops, officially, with the president. Other senior dignitaries (Chief Justice, Attorney General, Minister of Justice, Minister of Interior, the Director of the National Directorate of Security) are charged with observing how the decree is implemented in their agencies, but they have to report back to Karzai every three months. This quarterly reporting also gives rights groups a toe-hold into trying to assess how and whether the decree is actually being enforced. Sackings and prosecutions – of major players responsible for torture within the NDS and the police and not just of underlings – would also signal real political intent by the Afghan leadership.
Another decree promised in the wake of the president’s 16 February speech which would ban Afghan forces from calling in ISAF air strikes (after an incident where civilians in Kunar were reported killed (for details, see here) has not yet materialised. However, the National Security Council (NCS), chaired by President Karzai on 17 February, did issue another order, of potential interest to rights activists. It was reported on the presidential website:
‘The Council instructed relevant security institutions to impede operations by all the armed groups and units established in some provinces by the coalition forces outside the Afghan armed forces’ structures. It was also decided that as per the presidential directive, a panel be created to soon ask the coalition forces to integrate all those groups and units into the security institutions of Afghanistan’.
AAN has not been able to get more details on exactly which forces the NSC has in mind. However, it looks like a reference to what are often called ‘Campaign Forces’ – irregular, anti-Taleban armed groups which fight outside the chain of command or authority of the Ministries of Interior and Defence and in close cooperation with the CIA or US Special Forces. These, most famously, includes the Kandahar Strike Force (for AAN reporting, see here, here and here), the Khost Protection Force and the Afghan Security Guards. That such groups exist is not just an affront to Afghan sovereignty. Their very relationship with foreign forces, especially if like the CIA, they are also effectively unaccountable in Afghanistan, facilitates their abuse of the civilian population and detainees with impunity (for reporting, see here and here). Also look at the AIHRC/OSF report on torture and the UNAMA report (both cited earlier).
Bringing these groups into accountable Afghan Ministry of Interior or Defence structures might appear a welcome move, except that it would mean ignoring the long lists of grave accusations against them. In 2011, for example, the head of the CIA-supported Afghan Security Guards, which operates in Paktia, Commander Azizullah, was appointed head of the provincial Afghan Local Police (ALP), despite allegations against him or men under his command of rape, sexual abuse of boys, arbitrary detention and murder (see reporting here). This week’s UNAMA report on the protection of civilians in the Afghan conflict found a similar pattern across the country of foreign-supported, anti-Taleban, irregular forces being incorporated into regular Afghan command chains, without vetting. Their abuses have continued.
The incorporation took place, said UNAMA, after President Karzai’s order in December 2011 to disband, ‘ISAF/ISAF Special Forces-established local defence initiatives such as the Critical Infrastructure Protection Programme (CIPP) initiated in 2011 in parts of Kunduz, Balkh and Faryab provinces (see also here), the Intermediate Security for Critical Infrastructure (ISCI) in Helmand and Community-Based Security Solutions (CBSS) in Kunar, Nangarhar and Nuristan provinces.’ ISAF Special Forces told UNAMA that, as of 31 December 2012, ‘Special Forces had disbanded all community based local defence initiatives, transitioning most to ALP.’(3) UNAMA alleged that many of the newly-badged units have continued to abuse the civilian population and provided two examples:
‘In August and September 2012, a former CIP [sic] and the ALP commander for Chahardara district, carried out or ordered multiple acts of torture, sexual assault and ill-treatment. Victims included healthcare workers, students and others suspected by ALP of conflict-related activities. For example, the commander bit off the ear of one detainee and tortured several detainees, including sexually assaulting a 16-year old boy. Local sources reported that the commander in his capacity as member of an armed group, the CIP and then ALP, had been committing such violations for years with impunity. UNAMA also documented three incidents of violations committed by an ALP/ex-CIP in Aliabad district, Kunduz province including firing at a wedding party which injured three children and issuing death threats against civilians. The same commander was also accused of torturing a ‘detainee’ on 11 September 2012, very soon after being converted from CIP to ALP’.
Often it may not be clear in the end who has command and control over such groups and especially if the abuses continue both the Ministry of Interior and foreign forces may deny ‘ownership.’ As the UNAMA report detailed there has been a proliferation of armed groups, the difference between them often blurrily demarcated – from the ALP (now formally in the Ministry of Interior chain of command, but with a very mixed record on human rights), to armed groups linked to government figures which are anti-Taleban or criminal or both, to insurgents. Add to this, the private security companies whose disarmament the National Security Council also ordered this week and it is clear that militias present a grave danger, not just to Afghan civilians, but also the country’s stability.
However, there is another fundamental issue raised by this week’s presidential decree and the NSC order – the health of rule of law in Afghanistan. Why does it need an extra order from the top to ensure state officials take a particular law seriously? Two actions banned by the constitution –torture and the NDS or police holding detainees for more than 72 hours – need an additional edict from the president to – possibly – get officials to cease breaking the law. Over a decade into this particular phase of the Afghan conflict, the government decides to order foreign forces not to set up irregular militias. And, on top of everything, the president has to unconstitutionally order the Supreme Court to act. There are so many oversteppings of lawful authority at all levels and by multiple actors here that it is, indeed, difficult to point to where Afghan law is sovereign.
(1) “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” Constitution of Afghanistan, ratified January 26, 2004 (6 Dalwa 1382), Art. 29.
See also Afghan Penal Code, Art. 275 which, according to the AIHRC/OSF report on torture cited earlier), ‘criminalizes torture and states that if public officials (including all NDS and ANP officials) torture an accused person for the purpose of obtaining a confession, they shall be sentenced to imprisonment between 5 and 15 years. Gazette No. 347 (October 7, 1976; 15 Mizan 1355), Art. 275.
(2) The term used is strong – muwazaf budan – to have the job of doing something, to be duty bound to do something.
(3) UNAMA reports that in the northeast and north regions, five CIP groups were disbanded with 900 men converted to ALP. In the eastern region, eight CBSS groups consisting of 1,300 members were disbanded, with 900 men converted to ALP. In Helmand province, five ISCI with approximately 1,900 men were disbanded with 1,625 converted to ALP.
The Presidential Decree on Torture
28 Delwa 1391 [16 February 2013]
To implement the suggestions of the Afghan delegation which recently visited Afghan jails in a bid to probe reports regarding detainees.
To avoid mistreatment and torture in the detention facilities and prisons of the country and in consideration of the humanitarian [sic] rights of suspects [maznunin] and those who have been [formerly] accused [mutahamin] during the interrogation [baz jowi], the prosecution process [tahqib-e adli] and when the crime has been discovered, a truth finding delegation was authorised under [presidential] order number 6673, dated 3 Delw 1391 [11 February 2013] and has reported on its investigation. The delegation was led by Abdulqader Adalatkhwah, Deputy Head of the Constitution Observation Commission and other members were the Dean of the Law and Political Science Faculty [of Kabul University], a representative of the President’s legal advisory board and the legal advisors to the Ministry of Interior and National Directorate of Security; they interviewed 284 prisoners in prisons in Kabul, Kandahar, and Herat provinces and reported to the Judicial Committee of the Government of the Islamic Republic of Afghanistan. In the light of the report, the President of the Government of the Islamic Republic of Afghanistan issued the following orders:
1. The Attorney General of the Government of the Islamic Republic of Afghanistan is ordered [muwazaf] to prosecute those who violate article 51 of the Prisons and Detentions Law 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.
2. According to the Afghan constitution, the detection of crime is the job of the police and the investigation and prosecution is the job of the Attorney General’s Office. In spite of this fact, there are security and detection organizations which detain detainees for more than 72 hours [the legal time limit before he or she must be introduced to the Attorney General’s Office] and work in the place of the criminal investigation agencies. Accordingly, all organizations must work according to their terms of reference [umur-e mahawala] and according to the prevailing laws [qawanin naafiza] of the country and prevent interference in each others’ duties and they should send cases to the responsible Attorney General offices at the appointed time according to the law.
3. According to article 29 of the constitution, harassment [ta’zib] of human beings is banned. The detection and investigation departments of the Ministry of Interior, National Directorate of Security , and Attorney General are ordered not to torture or mistreat any suspect or detainee during their arrest, investigation or the finding of the facts [kashf-e haqayeq].
4. The Ministry of Justice is ordered to regularly organize meetings of the board of legal assistants’ [musaidin–e huquqi – they give legal assistance to detainees], in cooperation with the Faculty of Law and Sharia Law of Kabul University and other relevant agencies and observe any lack of access by detainees and prisoners to legal assistants and defence lawyers. Moreover, they should discuss methods and possibilities for offering legal assistance in a comprehensive [faragir] way to all detainees and prisoners, as declared in article 31 of the constitution.
The Ministry of Justice is obliged to revise the current tashkil [organisational structure and number] of legal associates and prepare it in such a way that it matches the number of current detainees and prisoners.
5. The Ministry of Interior and National Directorate of Security are in charge of facilitating the access of detainees and prisoners to legal associates and defence lawyers in their detention centres and prisons from the beginning of their detention.
6. The Ministry of Interior and Ministry of Public Health are in charge of treating, as soon as possible, any detainee who is suffering illness and any who complains of illness having been caused by beating during interrogation, as declared in article 27 of the Detention and Prisoners Law.
7 The Attorney General of the Islamic Republic of Afghanistan in cooperation with the General Directorate of Prisons and Detention Centres of the Ministry of Interior is charged with assessing the cases of those prisoners and detainees who have been found not guilty by the court, and those who completed their sentences behind bars, but are still in prison – as listed in a separate table attached to the report of the delegation of the responsible committee. The responsible bodies (the Attorney General and General Directorate of Prison and Detention Centres) in the light of article 50 of the Detention and Prisoners Law should take legal steps for their release after assessment and within two months.
8 The Supreme Court is charged (muwazaf) with appointing expert judges to assess the cases and issue verdicts on those detainees who have spent a long time in prison but have not had received a verdict by the courts during the period specified by the law and the courts have not reviewed their cases during the period specified by law and that time period has expired. With the appointment of the expert judges, verdicts should be issued and the necessary provisions made in relation to these cases, as soon as possible. Otherwise, the detaining authorities [mahalat-e salb-e azadi] have the authority to decide, according to clause 4 of article 20 of the Law of Prisons and Detentions, to release such individuals. If no action is taken, the detaining authorities in charge of such cases could be accused of the crime of not using their authority [adam-e istifada-ye salahiyat-e wazefawi] by the Attorney General and would be prosecuted.
9 The Supreme Court, Ministry of Justice and Attorney General are charged [muazaf], within the limitations of the ability [emkaniyat] of the government, with establishing courts, local prosecutors’ offices and law management institutions [mudiriyat-ha-ye hai haquq] with sufficient salaries, super-skill,* CBR* and other legal privileges in the districts where these agencies are not active in order to prevent human rights violations of citizens and prepare to enhance a system which is fundamentally based on the rule of law.
10 The Ministry of Interior, Attorney General and National Directorate of Security are charged with conducting professional courses in human rights and other relevant professional subjects for their cadres who are working in law enforcement, maintaining the law and investigations in order to build their capacity, according to the principles of efficient, scientific crime detection, investigation and the collection of evidence and the signs of crime.
11 The relevant organs are charged with equipping their investigation and interrogation departments with modern equipment which is used for proving crimes during the investigation. Interrogation proceedings should be recorded on video tapes in order to severely reduce the chance of any kind of complaints from individuals. The criminal police and the legal police [police-e adli] must save material evidence, criminal pictures of criminals, professionally and technically, during the assessment of the crime site. Once the case file has been completed during the legally specified period, it should be referred to the relevant Attorney General’s Office for further judicial process. The responsible organs must seriously refrain from arresting [anyone] without proof, evidence or documents.
12 The Chief Justice, Attorney General, Minister of Justice, Minister of Interior, and the Director of the National Directorate of Security should seriously observe the implementation of this decree within their own organisations and report to the office of the President of Government of the Islamic Republic of Afghanistan every three months, in cooperation of the Office of Administration Affairs and the secretariat of the Council of Ministers on how they are implementing this decree.
* It is not explained what these are, but they look to be salary top-up schemes.
(4) Article 51 of the Prisons and Detentions Law enshrines the Attorney General as the competent authority to ensure prisons and detention centres observe both the law and human rights standards. It says:
1. The attorney general office is the authorized authority to supervise the application of
legality and controlling the observance of human rights standards in detention centres
2. Prisons and detention centres are required to consider all the demands of the concerned
attorney with regard to the observance of the provisions of the law and human rights
standards and take action accordingly.
This article was last updated on 9 Mar 2020