By William Fisher
A leading human rights group is “gravely concerned” that the well-being of more than 3,000 prisoners the US has agreed to turn over to the Afghans “depends on vague assurances of humane and fair treatment, despite evidence of torture and other mistreatment.”
The US-based Human Rights First (HRF) added that the transfer was agreed last week despite Afghanistan showing little evidence of having established a mechanism to assure due process of detainees. “This renders the agreement badly flawed and HRF is gravely concerned about these shortcomings,” the organization said in a statement.
HRF and numerous other organizations have been working for several years to end to the indefinite detention of Afghans and others being held without charge. HRF said it “welcomes efforts to transfer custody and responsibility for detention to Afghan authorities,” but also sounded a note of caution.
The prisoner transfer, it said, could only be achieved “on conditions that assure humane treatment and fair trials.”
The organization notes that the agreement announced today depends on vague assurances of humane and fair treatment, despite evidence of torture and other mistreatment that detainees have suffered in Afghan hands, and despite that Afghanistan has shown little evidence of having established a mechanism to assure due process of detainees. This renders the agreement badly flawed and Human Rights First is gravely concerned about these shortcomings.
An October 2011 report by the United Nations documented widespread and systematic torture and mistreatment in Afghan prisons. The allegations were so serious and credible that NATO immediately suspended transfer of prisoners to 16 Afghan prisons. The UN report highlighted that nearly all torture observed in Afghan jails took place during interrogations for the purpose of seeking confessions.
The Afghan government denied that torture was systematic, but acknowledged "deficiencies," including keeping prisoners in indefinite detention and not allowing them to see lawyers. The government asserted that abuses were due to a lack of training and resources. The government also pledged to uphold all national and international standards regarding protection of prisoners.
“The United States has done a good job of improving conditions of confinement for detainees at Bagram, but this agreement provides no reason to believe that those improved conditions will be maintained when this facility is under Afghan control,” said HRF’s Gabor Rona.
He added: “The agreement also provides few details about the due process rights of the detainees. In order to implement this agreement consistent with U.S. obligations, the United States and Afghanistan must specify the legal basis for continued detention, the grounds upon which a person may be detained, the procedures for challenging detention, and the procedures for fair trial of those criminally charged.”
HRF also cautioned that the US is obligated under international law not to transfer detainees to a situation where they are at risk of being tortured. Recent reports from the United Nations indicate that Afghan authorities still use abuse and torture to coerce confessions from detainees. This raises concerns about how the U.S. will meet this obligation.
“The U.S. should make clear its continued obligation of the United States to refrain from transferring any detainee for whom there is a credible risk of ill-treatment or other violation of humanitarian and human rights law, including the right to due process,” said Rona.
He also noted that “it remains unclear if the U.S. will continue to conduct Detainee Review Boards at Bagram over the next year, and if it will continue to support Afghan trials at the Parwan Justice Center adjacent to the Bagram Air Base after the transfer of detainees is completed. The adequacy of those proceedings has concerned Human Rights First in the past, as discussed in our 2011 report, Detained and Denied in Afghanistan: How to Make U.S. Detention Comply with the Law.“
The U.S. has supported the improvement of Afghan national security trials at the Parwan facility. The United States should continue to provide resources and training to improve these proceedings and to ensure that all Afghan detainees transferred by the U.S. to Afghan authority receive a fair trial,” said Rona.
The prisoner transfer agreement, however, is not yet set in stone. The US held out for-, and was granted, a six- month period to observe the transfer process and satisfy itself that prisoners are not being tortured or abused, and that they are receiving due process, legal help, and contact with their families.
Bagram has been a major headache for the US and a constant source of friction between NATO and the Karzai Government. Karzai has refused to acknowledge that Afghan prison guards have tortured and abused men captured in battles with the Taliban and other insurgent groups. But sources experienced in the ways of the Afghans say centuries-old tribal hatreds and rivalries have resulted in prisoner abuse and even death long before the presence of NATO forces there.
But the prisoner transfer agreement has been finalized at a particularly fragile moment in the relationships between the Afghans and the US/NATO forces, as well as between the Karzai Government and Taliban elements with whom the US and Karzai have been attempting to negotiate a peace deal.
The prisoner deal capped a violent week . An Afghan teacher brought in to teach basic reading and writing to Afghan security forces, along with two Afghan soldiers, turned guns on American soldiers today, killing two, NATO officials said. Days later, a U.S. soldier walked off his base in Afghanistan and opened fire on local villagers Sunday, Afghan and U.S. officials said, killing 16 people.
The weekend killings come on the heels of the accidental burning of Qurans at a U.S. military base. The action sparked a wave of violent protests that left scores of Afghans and six Americans dead.
During a phone call of apology from President Obama to Karzai, the Afghan president is quoted as having told the president he doesn’t trust the Americans.
Meanwhile, US public enthusiasm for the war is reaching new lows. A sizable majority of Americans are telling polling organizations they don’t think the war was worth fighting.
Obama has announced a time-table in which all US and NATO troops will be out of Afghanistan by 2014. Other senior administration officials have suggested the pullout might come earlier than that.
Most human rights organizations and prisoner advocacy groups take the view that the Afghan Government does not possess the professional and technical resources, much less the discipline, to supervise a prison housing more than 3,000 people.
In fact, Human Rights Watch (HRW) believes that "greater police involvement in jails is likely to lead to more torture, not less." This is the view of HRW's Asia Director, Brad Adams.
Despite Karzai's insistence on the transfer of all prisoners to Afghan control, "Criminal justice in Afghanistan will not be improved by giving the police free rein of the prisons," said Adams.
"The snail's pace of human rights improvement over the past year heightens anxieties about Afghanistan's future," Adams said. "Basic rights are still not a reality for most Afghans. The country suffers from abuses without accountability, lack of rule of law, poor governance, laws and policies that harm women, attacks on civilians, and corruption."
"Under-resourced and poorly trained Afghan Police units frequently rely on abusive law enforcement methods. Giving police greater control over prisoners -in particular pretrial detainees - increases the risk of torture and cruel, inhuman, or degrading treatment as they try to obtain confessions and other information from suspects," he asserted.
