War Crimes Trial Begins in the Netherlands: Former commander at Pul-e Charkhi faces justice

Share

The trial of an Afghan man suspected of committing war crimes in Afghanistan in the 1980s will start today in the Netherlands. Abdul Razaq Arif is believed to have served in leadership positions in the Pul-e Charkhi prison from 1983 to 1990 and is being charged with being an accessory to or allowing inhuman treatment and the deprivation of liberty. Arif was arrested in November 2019 in the Netherlands following a tip-off in 2012 from a Dutch Afghan citizen and a seven-year- long investigation. As AAN’s Kate Clark reports, the trial is a rare instance of an Afghan accused of war crimes facing a court.  

A brief note from the Dutch Public Prosecutions Service, published on 8 February, alerted the world to the start of a war crimes trial in the Hague on 16 February 2022. Without naming the defendant, the Service said criminal proceedings would begin against a 76-year-old man, suspected of committing war crimes in Afghanistan in the 1980s when he was commander and head of Political Affairs in the Pul-e-Charkhi prison in Kabul from 1983-1990. “Under his leadership,” it said, “the (alleged) opponents of the then ruling Afghan regime were imprisoned for years without (fair) trial, under appalling conditions.”

The man in the dock is Abdul Razaq Arif. He was arrested on 12 November 2019 (see this press release) after an investigation which had begun in 2012. According to the Prosecution Service, he had acquired Dutch nationality and had been living in the city of Kerkrade with his wife and two children since 2010, having first arrived in the Netherlands in 2001. Arif has now been in pre-trial detention for more than two years; as in other countries, the coronavirus pandemic has caused delays in bringing suspects to trial.

In the months after his arrest, AAN interviewed two Dutch prosecutors about how the Dutch criminal justice system was dealing with Afghans in its population suspected of war crimes, among them Arif. In addition, we also interviewed two Afghans who had been held in Pul-e Charkhi in the 1980s. The interviewees reported that Arif had served in three different positions in Pul-e Charkhi prison from 1982 to 1987, as head of the KhAD intelligence agency’s political unit in the prison, then deputy general director (rayes-e umumi) and finally the prison’s general director. The prosecutors told AAN they believed provided sufficient details to confirm that Arif had worked in the three positions at the prison, although details of the exact time he held those positions was not then clear. The press release only refers to his role as “commander and head of Political Affairs” in Pul-e Charkhi.

The charges against Arif

According to the charge sheet against Arif (full text at the end of this report), he is accused of being:

• An accessory to inhuman treatment and deprivation of liberty and/or
• Allowing inhuman treatment and deprivation of liberty, ie having command responsible for these crimes as a superior officer.

The charge sheet says that, either alone or in concert with others, he “(repeatedly) violated the laws and customs of war,” including offenses which: 

• resulted in grievous bodily harm and/or
• involved committing violence against persons and/or
• consisted of forcing others to do something, not to do something or tolerate something
• and/or
• were manifestations of a policy of systematic terror and/or
• were unlawful actions against a certain group of the population and/or
• were likely to result in the death of or grievous bodily harm to others than the accused and/or
• involved inhuman treatment.^[1]The law cited is: ‘common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or customary international humanitarian law, the customary international law ban on the arbitrary deprivation … Continue reading

The charge sheet accuses Arif of abuses against one or more of 18 members of the family of former president ‘A’ (according to our 2020 interviewees, this was Hafezullah Amin), who were detained as political prisoners in Pul-e Charkhi prison in block(s) 1 and/or 2 and/or 3. Arif is accused of the following abuses against the detainees, either alone or in concert with others:

• treated them cruelly and/or inhumanely and/or;
• (repeatedly) assaulted their personal dignity (and/or) (in particular)
• treated the aforementioned persons in a humiliating and/or degrading manner and/or;
• passed judgement against them and/or enforced judgement against them without previous judgement by a duly constituted tribunal which offers all the judicial guarantees recognised by the civilised nations as indispensable and/or;
• arbitrarily deprived them of their liberty.

His actions are alleged to have caused (serious) physical and/or (serious) psychological harm, as a result of (among other things):

• the poor detention conditions;
• physical incidents of violence;
• the handing out of punishments;
• the prolonged psychological torment and/or;
• an atmosphere of terror and/or fear of being exposed to physical or psychological violence.

Conditions in Pul-e Charkhi cited in the charge sheet include: overcrowding, no or hardly any sunlight, insufficient toilets, bad and/or dirty food and drinking water, no or insufficient medical care, being kept in isolation for extended periods, in cells under water, in cells with opponents and spies who used violence.

The charges facing Arif are grave, although they do not reflect the full scale of torture, abuse and killings that were taking place in Pul-e Charkhi during the years when he had command positions there. It may be that the Public Prosecutions Service did not have sufficient evidence to try Arif for direct involvement in any particular, more serious war crimes. However, as the next section details, these have been extensively documented as having taken place at the prison when he was in leadership positions.

War crimes documented at Pul-e Charkhi

Accounts put together by human rights advocates give a sense of the scale of the crimes committed at the prison, described by the late British journalist Anthony Hyman as “a great wheel composed of eight multi-storied blocks, with watchtowers and high walls cutting off the prison from the main road south to Jalalabad and the border, just a mile away” (quoted in the briefly published 2005 United Nations mapping report of war crimes and crimes against humanity 1978-2001).

While the very worst abuses in Pul-e Charkhi, in particular the mass forced disappearances, date to 1978-1979 when the first two PDPA presidents from the Khalqi wing of the party were in power, in the years that Arif allegedly held leadership positions at the prison and indeed until the end of the Najibullah presidency in 1992, the practices of arbitrary arrest, torture and executions after unfair trials continued. Babrak Karmal had issued an amnesty to political prisoners when he came to power in December 1979 on the back of the Soviet invasion, but says the UN mapping report his government then “embarked on its own pursuit of suspected opponents.”

At this time, according to a 1986 report by Amnesty International, control of Pul-e Charkhi’s ‘blocks’ was divided between the Ministry of the Interior and KhAD (known officially in later years as the Ministry of State Security). KhAD had been set up in 1980 by the Soviets on the model of the Soviet KGB under the leadership of Dr Najibullah until he became president in 1986. Amnesty reported that political prisoners were first detained interrogated and tortured in KhAD’s own facilities and that, following interrogation, and sometimes long periods of detention, they might then be transferred to Pul-e Charkhi:

Most prisoners interviewed said they had not been subjected to further torture once they had been transferred to prison, but torture by the KHAD within Pul-e Charkhi is reported to have occurred in a minority of cases, chiefly in Block I, as well as ill-treatment by the prison authorities.

The Amnesty report and another by Human Rights Watch, published in 1984, describe the torture deployed at this time ­– severe beatings, deprivation of sleep, water and food, being force into stress positions and to stand in snow or water or in the sun for long periods of time and electric shocks, including to the ears, tongue or genitals. “Electric shock torture,” said Amnesty, “was reported from inside Pul-e Charkhi prison.”

What the UN mapping report describes as “abominable conditions” at the prison are well-documented. It had not been completed at the time of the 1978 Saur Revolution, with Hyman reported, floors of “unfinished concrete, water pipes had not been connected, and there was no water closet [toilets].” The United Nations mapping report described the prisoners as “kept in crowded, filthy cells and forbidden to visit the latrines in the courtyard more than once or twice a day.” The scale of the overcrowding is clear from the numbers. Pul-e Charkhi was built to house 5,000 prisoners, but reported Amnesty International in 1986, it held in excess of 10,000, with just one block devoted to about 1,000 criminal prisoners. The rest were accused of political crimes. Despite some enlargement, there was “extreme overcrowding,” with few toilets. One former detainee interviewed by Amnesty about the prison (during the period 1981-1982), said there was only one toilet for 400 people: “[M]any had to empty their bowels in their pants and there was always a terrible smell in the hall. During my time in prison I saw many prisoners die, the food was very bad and we never got any medicine.”

There is also documentation of the ‘criminal justice system’ used for political prisoners during this era, including from the Amnesty report:

When the KHAD has reached a conclusion regarding their case, they may either be released, sometimes after having been required to sign a statement, or transferred to prison. Of those transferred to prison, some remain detained without formal charge or trial until their eventual release; indeed, one report suggests that a section of Pul-e Charkhi prison is reserved for “prisoners of unknown fate”. Others undergo a form of trial before a special revolutionary court, accounts of which are consistent in indicating the brevity of the proceedings.

The UN mapping report said that during this period, executions were carried out in accord with “‘socialist legality’” rather than, as under the Khalqi presidents, on the “whim of the authorities”:

Accused prisoners were “tried” by a Special Revolutionary Court. According to reports, prisoners were always found guilty—those finally determined to be no threat to the regime were released without trial—but this court would decide upon the sentence, including death. There was no judicial appeal from the sentence of the Special Revolutionary Court. Prisoners could escape punishment, however, by agreeing to cooperate with the government by becoming spies themselves. Even if they were not executed, they were threatened with incarceration with common criminals if they refused.

The Human Rights Watch report also has accounts from this time and describes how:

A prisoner cannot meet with family members or lawyers, confront witnesses or prepare a defence. In many cases, the main evidence is a confession obtained under torture. Sometimes a prisoner is not informed of his trial until the night before it is to begin. He is then taken in a windowless van from Pol-e Charkhi prison to the Sedarat Palace, where the Revolutionary Court holds its secret sessions in the precincts of the KHAD.

The charges are read, but the prisoner is not allowed to defence himself and may be reprimanded if he tries. It is the KHAD rather than the court, that determines innocence or guilt. The court confirms the KHAD’s “guilty” verdict and determines the sentence in accordance with the recommendation of the KHAD… There is no appeal from the decision of the Revolutionary Court….

Sentences given by the court which could not be appealed included the death penalty. Executions, reported the UN mapping report, were fewer than during the 1978-79 governments, but still continued on “a large scale.”

Conclusion

The documentation of war crimes committed in Afghanistan by governments and armed opposition groups over the last forty years run to thousands, possibly tens of thousands of pages. Much is known about the cruelties and injustices suffered by Afghans and others. Yet Arif will be one of only a handful of Afghans accused of war crimes who have faced criminal investigations or trials. Most of these have taken place in Europe, including five other Afghans in the Netherlands, all PDPA, either Khalqi or Parchami,^[2]The five investigated in the Netherlands are: 1. Hesamudin Hesam (Parchami) Role: Between 1983 and 1990, Hesam was head of the Military Intelligence Service (MIS) of the KhAD intelligence … Continue reading a Hezb-e Islami commander in the UK^[3]Faryadi Sarwar Zardad, an infamous Hezb-e Islami commander, was convicted in 2005 in the United Kingdom of hostage-taking and torture committed in Afghanistan during the 1990s. He was sentenced to 20 … Continue readingand an Afghan National Army officer in Germany. ^[4]‘Ahmad Zaheer D’, a former Afghan National Army officer was sentenced to two years’ probation for, inter alia, the war crime of outrages upon human dignity. The German legal website, … Continue reading

In Afghanistan itself, just two alleged war criminals have faced trials. One was Abdullah Shah who had been a commander with Ittihad-e Islami led by Abdul Rab Rasul Sayyaf, who enjoyed influence as an ‘elder statesman’ and later MP after 2001. Abdullah Shah did not deny his part in war crimes but said he had been acting on Sayyaf’s orders. In interviews with one of the authors of this AAN special report on transitional justice, he claimed to have knowledge of mass graves from the early 1990s’ factional conflict in Kabul and had asked to be transferred to the custody of another ministry where he might have some protection from what he said were plans to silence him. Abdullah Shah was executed in secret on 20 April 2004.

The second was Asadullah Sarwary, who had been director of the intelligence agency, AGSA, which operated during the regime of the first PDPA president, Nur Muhammad Taraki (1978-79). Sarwary had been detained by Shura-ye Nazar forces after they entered Kabul in April 1992 and held in detention in the Panjshir Valley until he was brought to Kabul and imprisoned in the Sedarat Palace in 2005. In what the AAN report described as a flawed trial, Sarwary was found guilty and sentenced to death, but ended up in jail before being released, in mysterious circumstances in 2016 (see AAN reporting here).

The Dutch police and public prosecutors have spent years investigating and putting a case together against Arif. As the trial starts, the difficulties of prosecuting a man who allegedly committed crimes in another, war-torn country four decades ago can all too easily be guessed at. Given the scale of the crimes that took place at Pul-e Charkhi while Arif had command positions, the charges against him are not the most serious. Even so, a spokesperson for the Prosecutions Service told AAN, if convicted, sentences could run to 15 years for each charge, or from 20 years up to a lifelong jail sentence, if ‘aggravating circumstances’ were taken into account. The trial is expected to run for about two weeks.

Edited by Rachel Reid

Annex: charge sheet sent to AAN by email from the Netherlands Public Prosecutions Service

Application to amend the charge^[5]The ‘amendment’ is just a technical matter, the Prosecutions Service told AAN: “In our law systemm there always has to be an initial ‘temporary’ summons, and when the trial starts the real … Continue reading

Public Prosecutor’s Office number                              : 09/748011-12

In light of the summons in the case against:

Name : ***

Born on : ****

The Public Prosecutor, referring to the charge in the summons issued for the hearing of 19 February 2020 in accordance with the provisions of Article 261, paragraph 3 of the Code of Criminal Procedure; the Public Prosecutor is of the opinion that the charge included in this summons should be amended to the following charge:

Being an accessory to inhuman treatment and deprivation of liberty

he on one or more occasions, in or around the period from 1 January 1983 up to and including 31 December 1990, in Kabul, or at least (elsewhere) in Afghanistan, jointly and in conjunction with one or more other persons, at least alone, (repeatedly) violated the laws and customs of war, while: 
– those offences resulted in grievous bodily harm and/or
– those offences involved committing violence against persons (in concert) and/or
– those offences consisted of forcing others to do something, not to do something or tolerate something (in concert) and/or
– those offences were manifestations of a policy of systematic terror and/or unlawful actions against a certain group of the population and/or
– those offences were likely to result in the death of or grievous bodily harm to others than the accused and/or
-those offences involved inhuman treatment, consisting of the fact that he, the accused and/or one or more co-perpetrator(s), at that time and in that place (repeatedly) in violation of the provisions of the ‘common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or customary international humanitarian law and/or
– (in particular) the customary international law ban on the arbitrary deprivation of liberty, in connection with an (non-international) armed conflict in the territory of Afghanistan, persons who did not directly take part or no longer directly took part in hostilities (at the time), namely civilians and/or personnel of armed forces who had laid down their arms and/or those who had been put out of action through illness, injury, captivity or any other cause, namely:

1. one or more members of the A. family (the former President of Afghanistan), including M. and M.A;
2. M.A.A;
3. S.A;
4. R.A;
5. A.R.F;
6. A.Q.H;
7. K.M.K;
8. D.L.K;
9. N.N;
10. M.N;
11. B.O;
12. R.T.O;
13. S.M.P;
14. Z.R.;
15. M.N.R;
16. H.S;
17. S.T;
18. A.W;

and/or one or more others, who were detained (as political prisoners) in (among other places) block(s) 1 and/or 2 and/or 3 of the Pul-e-Charkhi prison,

–  treated them cruelly and/or inhumanely and/or
–  (repeatedly) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or
– passed judgement against them and/or enforced judgement against them without previous judgement by a duly constituted tribunal which offers all the judicial guarantees recognised by the civilised nations as indispensable and/or
– arbitrarily deprived them of their liberty; which 1) cruel and/or inhuman treatment and/or assault on their personal dignity and/or humiliating and/or degrading treatment and/or 2) which pronouncement and/or enforcement of judgements and/or which arbitrary deprivation of liberty as aforesaid consisted of him, the accused and/or one or more co-perpetrator(s),

1. causing the aforementioned person(s) to suffer (serious) physical and/or (serious) psychological harm, as a result of (among other things)
2. the poor detention conditions,
3. physical incidents of violence,
4. the handing out of punishments,
5. the prolonged psychological torment and/or
6. an atmosphere of terror and/or fear of being exposed to physical or psychological violence,

because he, the accused and/or one or more co-perpetrator(s), kept the aforementioned person(s) prisoner with too many people packed into too small a space and/or in spaces in which no or hardly any daylight entered and/or without them being able to make sufficient use of sanitary facilities and/or without them being able to receive (regular) visitors and/or while the food and/or drinking water they were given was bad and/or dirty and/or insufficient and/or they received no or insufficient medical care and/or while they were placed in isolation for extended periods of time and/or while their cell was put under water and/or while they were placed in a cell with (alleged and/or ideological) opponents and/or informants (also referred to as spies) and/or the aforementioned person(s)were treated violently and/or the aforementioned person(s) witnessed the violent treatment of others and/or imposed (prison) sentences and/or other freedom-restricting measures against the aforementioned person(s) and/or allowed these to be imposed without a prior judgement by an (independent) court and/or without them having received a fair trial and/or (in particular) without them having been tried by an independent and impartial body and/or without them having been informed forthwith of the charges against them and/or without them having had access to the necessary rights and means of defence and/or in violation of theban on collective punishment and/or in violation of the principle of legality and/or without the presumption of innocence and/or without them being able to exercise the right to be present at their own trial and/or without them being able to exercise the right not to cooperate in their own conviction and/or without them being able to exercise the right to advice on legal and other possibilities of appeal and on the time limits within which these must be exercised.

Article 47 paragraph 1 under 1 of the Dutch Penal Code

Article 8 War Crimes Act (old)

and/or

Allowing (superior responsibility) inhuman treatment and deprivation of liberty

by (a) person(s) subordinate to the accused working inside the Pul-e-Charkhi prison (such as (block) commanders and/or guards and/or interrogators) and/or one or more others, jointly and in conjunction,on one or more occasions, in or around the period from 1 January 1983 up to and including
31 December 1990, in Kabul, or at least (elsewhere) in Afghanistan,(repeatedly) violated the laws and customs of war, while

– those offences resulted in grievous bodily harm and/or
– those offences involved committing violence against persons (in concert) and/or
– those offences consisted of forcing others to do something, not to do something or tolerate something (in concert) and/or
–  those offences were manifestations of a policy of systematic terror and/or unlawful actions against a certain group of the population and/or
– those offences were likely to result in the death of or grievous bodily harm to others than the accused and/or
–  those offences involved inhuman treatment, consisting of the fact that a subordinate or subordinates of the accused and/or one or more others), at that time and in that place (repeatedly) in violation of the provisions of the ‘common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or customary international humanitarian law and/or
– (in particular) the customary international law prohibiting the arbitrary deprivation of liberty, in connection with an (non-international) armed conflict in the territory of Afghanistan, persons who did not directly take part or no longer directly took part in hostilities (at the time), namely civilians and/or personnel of armed forces who had laid down their arms and/or those who had been put out of action through illness, injury, captivity or any other cause, namely:

1.   one or more members of the A. family (the former President of Afghanistan), including M. and M.A;

2.    M.A.A;

• S.A;
• R.A;
• A.R.F;
• A.Q.H;
• K.M.K;
• D.L.K;
• N.N;
• M.N;
• B.O;
• R.T.O;
• S.M.P;
• Z.R;
• M.N.R;
• H.S;
• S.T;
• A.W;

and/or one or more others, who were detained (as political prisoners) in (among other places) block(s) 1 and/or 2 and/or 3 of the Pul-e-Charkhi prison,

– treated them cruelly and/or inhumanely and/or
– (repeatedly) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or
– passed judgement against them and/or enforced judgement against them without previous judgement by a duly constituted tribunal which offers all the judicial guarantees recognised by the civilised nations as indispensable and/or
– arbitrarily deprived them of their liberty; which 1) cruel and/or inhuman treatment and/or assault on personal dignity and/or humiliating and/or degrading treatment and/or 2) which pronouncement and/or enforcement of judgements and/or which arbitrary deprivation of liberty as aforesaid consisted of a person or persons subordinate to the accused and/or one or more others:

1. causing the aforementioned person(s) to suffer (serious) physical and/or (serious) psychological harm as a result of (among other things)
2. the poor detention conditions,
3. physical incidents of violence,
4. the handing out of punishments,
5. the prolonged psychological torment and/or
6. an atmosphere of terror and/or fear of being exposed to physical or psychological violence,

because a person or persons subordinate to the accused and/or one or more others imprisoned the aforementioned person(s) with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or without them being able to receive (regular) visitors and/or while the food and/or drinking water they received was bad and/or dirty and/or insufficient and/or they received no or insufficient medical care and/or while they were placed in isolation for extended periods of time and/or their cell was put under water and/or while they were not or hardly allowed to air and/or while they were placed in a cell with (alleged and/or ideological) opponents and/or informants (also called spies) and/or the aforementioned person(s) were treated violently and/or the aforementioned person(s) witnessed the violent treatment of others; and/orimposed (prison) sentences and/or other freedom-restricting measures against the aforementioned person(s) and/or allowed these to be imposed without a prior judgement by an (independent) court and/or without them having received a fair trial and/or (in particular) without them having been tried by an independent and impartial body and/or without them having been informed forthwith of the charges against them and/or without them having had access to the necessary rights and means of defence and/or in violation of the ban on collective punishment and/or in violation of the principle of legality and/or without the presumption of innocence and/or without them being able to exercise the right to be present at their own trial and/or without them being able to exercise the right not to cooperate in their own conviction and/or without them being able to exercise the right to advice on legal and other possibilities of appeal and on the time limits within which these must be exercised, which the accused, being the (general) commander and/or head of political affairs (of a particular group of prisoners, namely they who (as political prisoners) were detained in (among other places) block(s) 1 and/or 2 and/or 3) in the Pul-e-Charkhi prison in Kabul, on  (one) (or more) occasion(s) in or around the period from 1 January 1983 up to and including 31 December 1990 in Kabul, or at least (elsewhere) in Afghanistan, (repeatedly) deliberately allowed and/or (in particular) failed to take (adequate) measures to prevent and/or to stop and/or to punish the aforementioned offences.

Article 8 in conjunction with 9 of the War Crimes Act (old)

In light of Articles 261, 313, 314 and 314a of the Code of Criminal Procedure

Requests that this amendment be allowed by the District Court of The Hague.

Done at a court hearing of the District Court of The Hague on 1 October 2020

Public Prosecutors,

***

Endnotes:

Revisions:

This article was last updated on 16 Feb 2022

Tags:

detentions Parchami PDPA Pul-e Charkhi war crimes trials

Authors:

Kate Clark

More from this author