Judges at the Royal Courts of Justice in London have given a ‘mixed ruling’ on a bid to stop UK forces transferring detainees to the Afghan intelligence directorate, the NDS. They found that there was risk of torture – which should make transfers illegal – but ruled that they could continue to be transferred to the NDS in Lashkargar and Kandahar, so long as detainees were properly monitored, but not to Kabul (where transfers had already stopped) where the risk of torture was too great. Human rights campaigners have variously called the ruling cowardly and a partial victory which can be used to call British forces to account in the future. Senior AAN Analyst, Kate Clark, looks in detail at the ruling, at what it will mean for the British and the fascinating insight it gives into how foreign and Afghan institutions deal with each other and the way the UK has sought to find ways of working with an institution which tortures.
The case was brought by the peace activist, Maya Evans, against the British government. Formally, according to English law, the Crown, acting on behalf of Evans, was pitted against the UK Secretary of State for Defence (the Defence Minister). Evans brought the case in December 2008, but it was only heard in April and the ruling came in late June (for all 75 insightful pages of the ruling, which include a good summing up of current evidence of torture by the NDS, see here).
The political and operational value of transferring detainees is clear – and laid out by the Minister of Defence’s evidence: “detention operations are central to the efforts of UK forces to protect themselves and local civilians from … attacks.” If detainees cannot be handed over, they would have to be released, “leaving them free to renew their attacks… [and losing] the opportunity to prosecute them and to gain intelligence… There would be a severe impact on the counter-insurgency strategy generally [and] a significantly detrimental effect on UK-Afghan relationships across many levels” (paragraph 23).
The judges said that all of this would become irrelevant if there was a well-founded risk of torture – which would make transfers illegal under article 3 of the European convention on human rights and international humanitarian law and contrary to ISAF standard operating procedure. Even so, they said, “the seriousness of the potential consequences underlines the need to evaluate the claimant’s case with the utmost care.” (paragraph 24) In the end the court deemed the safeguards were sufficient to make some transfers legal. The fact that the judgement admitted the risk of torture, but still decided that some transfers were legal has led some activists to call it a political and cowardly ruling. (For a look at how Canada has faced the same dilemma, see an earlier AAN blog here).
Problems begin with the institution of the NDS itself, which is in charge of security in Afghanistan; almost everyone who is arrested by ISAF who is not released is transferred to the NDS. “Its precise status is a matter of some doubt,” says the ruling, “Its powers are said to be based at least in part on an unpublished Presidential decree. On one account the decree is administrative in nature. The UN and NGO reports summarised below include repeated expressions of concern about the NDS’s lack of transparency and accountability” (paragraph 38).
In other words, the NDS is an opaque institution which (appears to) enjoy the full panoply of legal powers: it investigates, detains, prosecutes and judges those suspected of security offences. Judges in Britain’s High Court heard evidence that the NDS carries out beatings, electrocution and sleep deprivation and that the Afghan judicial system’s reliance on confession as the main form of evidence gives an added incentive for interrogators to torture. In the absence of specific safeguards, the court ruled, “the scale of torture and serious mistreatment evidenced by the background material would be sufficient to justify the conclusion that transferees were at real risk of such ill-treatment.” The nature and effectiveness of safeguards has therefore been scrutinised robustly by the court: “In that connection we refer both to formal safeguards, in terms of assurances and the like, and to the practical operation of the transfer arrangements and the degree of knowledge that has been acquired over time about individual facilities and their staff” (paragraph 292).
What to do with Afghan detainees became a problem for the UK in 2006 when it deployed forces to Helmand. ISAF does not detain Afghans, except temporarily and must release or hand them over to the Afghan authorities; therefore the risk of torture and ill-treatment had to be addressed. In April 2006, the Afghan and UK ministers of defence signed a Memorandum of Understanding which aimed to: “Ensure that Participants will observe the basic principles of international human rights law such as the right to life and the prohibition on torture and cruel, inhumane and degrading treatment pertaining to the treatment and transfer of persons by the UK [armed forces] to Afghan authorities and their treatment” (MoU, quoted in Paragraph 95 of the Ruling.) This MoU remained confidential until January 2007.
As torture allegations against the NDS became public, reported by Amnesty International and in the Canadian media in particular, the MoU was followed by an Exchange of Letters (EoL) in September and October 2007. Ambassadors from the UK, US, Canada, the Netherlands, Denmark and Norway set forth conditions regarding access to detainees transferred to Afghan custody which would entail officials, “enjoy[ing] access to Afghan detention facilities to the extent necessary to ascertain the location and treatment of any detainee… [to] interview in private any detainee transferred by that government to the custody of Afghan authorities… [and permit access to detainees by] the ICRC, relevant human rights institutions within the UN system, and the Afghan Independent Human Rights Commission (AIHRC).” The then Afghan National Security Advisor, Dr Zalmai Rassoul, responded for the government, saying it agreed to the undertakings outlined in the letter and that it would also address any AIHRC recommendations for improvements and inform the NDS, including provincial offices, of the new visiting arrangements.
On the face of it, said the judges, these documents give important assurances, but they also quoted an earlier ruling to warn that assurances must be viewed with scepticism if given by a country where inhuman treatment by state agents is endemic: “‘This comes close to the ‘Catch 22’ proposition that if you need to ask for assurances you cannot rely on them. If a state is unwilling or unable to comply with the obligations of international law in relation to the avoidance and prevention of inhuman treatment, how can it be trusted to be willing or able to give effect to an undertaking that an individual deportee will not be subject to such treatment?’” (paragraph 248 quoting RB (Algeria)).
Even so, said the UK judges, in the case of the NDS, “assurances are backed up by provisions for monitoring and…the practical operation of the system can be assessed over a period of several years.” However, the judges’ detailed scrutiny of the system was not encouraging.
The ruling describes British attempts to monitor transferred detainees: officials’ attempts to set up systems, find detainees, track and visit them, to have private visits and ascertain if prisoners feel safe enough from reprisals to complain if they are being abused and to make sure other agencies – the ICRC and AIHRC – are also getting access. The ruling makes clear just how difficult this task has been.
Prisoners go missing. They get lost in the system. It turns out the British and the Afghans give prisoners different numbers and detainees, themselves give false names, causing further confusion. Some local NDS bosses have refused entry, although others have good relations with the British officials. Insecurity sometimes makes visits too dangerous. Locating prisoners in overcrowded facilities and speaking to them out of earshot of guards is difficult and often impossible. When allegations of abuse are made – usually once detainees are out of NDS hands and in mainstream prison facilities – it is too late to see any physical evidence (if torture did indeed happen) and anyway, the UK officials, even the medical experts, are not expert in examining torture victims, so evidence remains inconclusive. AIHCR and international human rights organisations have complained frequently that there is not unfettered access to all NDS sites, even for the ICRC.
There appears to have been a process of the UK trying to pin the NDS down – in February 2009, the former NDS boss, Amrullah Saleh, said the agency was not covered by the MoU because it was signed by the Minister of Defence. He said the demands for special access to the NDS detention facilities were problematic, but that, “solutions included building the promised new detention centre, assistance (including repair works) for the existing NDS facility and sending one official on behalf of all countries to visit detainees” ( paragraph 127). It appears, say the judges caustically that, “Dr [sic] Saleh had an agenda relating to the provision of funding for a new NDS facility at Kabul.” (paragraph 271)
Denial of access and claims of torture in Kabul led the UK to halt transfers to the NDS in the capital in December 2008 (they have never resumed). A moratorium on transfer of detainees to Kandahar in February 2009 was also effected because of claims of torture; it was subsequently lifted a year later, although no detainees have gone there since. But Lashkargar was always the most important facility for the British and continues to be used – and transfers there have been deemed legal – subject to safeguards – in this ruling.
So where does the ruling leave the British forces, the NDS, detainees and human rights activists? The Court found there was a substantial risk of torture in NDS facilities (paragraph 292), but it refrained from halting future transfers or stating that past transfers had been unlawful. On the face of it, the judges have left the situation unchanged: no detainees to Kabul, but – and this recommendation was made “with hesitation” – they can go to Lashkargar and to Kandahar, so long as oversight is maintained and improved in the following ways:
(i) all transfers must be made on the express basis (spelling out the requirements of the MoU and EoL) that the UK monitoring team is to be given access to each transferee on a regular basis, with the opportunity for a private interview on each occasion; (ii) each transferee must in practice be visited and interviewed in private on a regular basis; and (iii) the UK must consider the immediate suspension of further transfers if full access is denied at any point without an obviously good reason (we have in mind circumstances such as a security alert) or if a transferee makes allegations of torture or serious mistreatment by NDS staff which cannot reasonably and rapidly be dismissed as unfounded (paragraph 320, 321, 322).
Although transfers will continue, it could be argued that it was the legal proceedings, which began in December 2008, together with events in Canada and pressure from human rights groups, which has impelled the UK to institute all the safeguards and improvements which have subsequently been put in place.
Moreover, the judge makes it clear that the UK and the NDS are still in the dock: this ruling leaves the door wide open to future legal moves which could still halt transfers or force the UK to investigate and compensate past victims of torture.
“If the UK doesn’t adhere to the Court’s conditions, then we can return straight back to Court to stop transfers,” says Daniel Carey, from Public Interest Lawyers, which helped bring the case. “For us, the clear next step is for a former or current NDS detainee to approach the British court to make practical the effect of the Court’s judgment – that investigations should be ordered if appropriate, and damages paid to anyone who has been tortured.”
There remains the disturbing realisation that, although pressure and publicity from countries like the UK and Canada has resulted in NDS treating detainees transferred from ISAF more humanely, it has changed nothing for other detainees, those picked up by Afghan forces. ISAF countries continue to support the Afghan state as a whole, including an intelligence agency, which by all accounts, still unashamedly practices torture against those not protected by the foreigners’ scrutiny.
This article was last updated on 9 Mar 2020