Karzai struggles against foreign detentions – state releases Taleban?

Original link (please quote from the original source directly):
https://www.afghanistan-analysts.org/karzai-struggles-against-foreign-detentions-state-releases-taleban/

 

In the last weeks of his presidency, President Hamed Karzai has again been trying to eradicate the last traces of foreign involvement in detentions, sending a commission to investigate the so-called Tor Jail, an American interrogation facility on Bagram airbase, and reactivating the Afghan Review Board, which had been sifting detainees transferred by the US military to the Detention Facility in Parwan (DFIP), also at Bagram. In February, it controversially released 65 detainees whom the US said should be prosecuted or investigated further. The UK, which had also been in Karzai’s firing line over detentions, has now been given a ‘clean bill of health.’ However, reports AAN senior analyst Kate Clark, the outgoing president has not been so active in dealing with the Afghan state’s own detention problems. He leaves the release of Taleban detainees, as alleged by senior Afghan politicians and members of the security forces, and the continuing use of torture to his successor to sort out.

Karzai has struggled to wrench control (now almost complete) of detentions from foreign forces, although only just before those forces are due to withdraw at the end of his 13 year presidency. The struggle was largely against the US which has always sought to keep some control over detentions because of fears the Afghan state would allow active Taleban back onto the battlefield. This concern has now become an Afghan one. As the insurgency intensified this summer, there was rare, public condemnation by several senior Afghan security leaders of the state’s record on releasing Taleban. It was an indirect criticism of the president.

The state accused of releasing Taleban

In July 2014, Kabul police chief General Zahir blamed a series of attacks on Kabul on detainees released from the DFIP by the Afghan Review Board on 13 February 2014. The US military had insisted the 65 men were “highly dangerous” and that there was court-worthy evidence or investigative leads against all of them. The Afghan Review Board and Karzai insisted the men were “innocent.” Also, in July, the chief of police in Ghor province, Fahim Qayem, said 15 travellers shot dead had been targeted by insurgents led by two commanders who had been released from Ghor prison, Qari Rahmatullah and Mullah Faruq.

Two other chiefs of police, Abdul Razeq in Kandahar and Aminullah Amarkheil, in Baghlan and in Baghlan, both said (also here) they had ordered their forces to kill insurgents, rather than send them to the courts, which they said were so corrupt that the men would just be released back to the battlefield. Killing prisoners is, of course, a war crime. Defence minister Bismillah Khan told parliament in July that released Taleban were now “leading the attacks in Afghanistan,” while Vice President Yunes Qanuni said he was against the release of those who kill Afghans: “We knew that when they were released from prison that they would return to the battlefields and commit more crimes.”

Disappearing detainees: a familiar issue

The release of those who should be investigated, put on trial or be serving out their sentences is not a new problem within the Afghan criminal-justice system and it was particularly surprising to find leaders and former leaders of one of the most problematic institutions, the police, complaining about such releases. It is not just policemen who release security and ‘ordinary’ criminal detainees for bribes or because of pressure or influence (waseta) brought to bear on them; other points of pressure in the system are prosecutors, the NDS and judges. Penniless innocents can also easily get stuck in the system (two major reports from UNAMA on arbitrary detention here and here are worth reading, as well as this research from Chatham House on the justice system more widely).

Pleadings to the High Peace Council (for example, recently in Kunduz, reported Stars and Stripes), MPs or the president can also help get detainees out of custody. The president’s penchant for secretly pardoning convicted prisoners has also increased the numbers of Taleban released. Detained Taleban, in particular, can rely on the movement’s very active prisoners committee to work its hardest to get them released.

If the problem is not new, the condemnation by senior Afghans was, particularly given its implied criticism of the president. What may have changed the mood is that Afghan forces have replaced the international military as the main bulwark against, and target of, the Taleban. The summer’s bloody battles against the insurgency (see recent AAN reporting here and here) and the changed nature of the war (now almost entirely Afghan versus Afghans) has meant releases of Taleban now carry a higher cost for some key Afghan actors.

President Karzai, however, has denied there is a problem. His spokesman told AAN, “This was, for us, a clearly fabricated narrative that puts pressure on the public and the administration. Have you spoken to those officials [making the allegations]? … We found out there was no truth in [what they said]. The message was given to them.” When asked by whom, he said, “By our dear partners, our international partners.” It sounded like some of the administration had not been ‘on message.’

For the new president, sorting out detentions would mean reforming NDS and the Ministry of Interior (1), two of the most difficult institutions to tackle. Moreover, it is not just a problem of those who should be locked up or put on trial being released, but also the torture of security detainees – a special problem given that confession is frequently the only basis for a conviction. Torture is banned under the Afghan constitution and penal code, but the state has largely reacted with denial to a series of reports from UNAMA and the Afghanistan Independent Human Rights Commission containing credible evidence of systemic torture in parts of the NDS and Afghan National Police (see here and here).

In February 2013, President Karzai did issue a decree banning torture (read it here), but not much appears to have changed. UNAMA’s human rights chief, Georgette Gagnon, speaking to The Washington Post in April, said: “Despite significant remedial steps, torture continues because there’s no real deterrent… We’re not aware of any NDS official who has been prosecuted or fired for using torture.” Firmer indications will come with UNAMA’s next report on the torture of security detainees which is expected to be published soon.

Stopping foreign detentions: the US and Tor Jail

Karzai has fought much more actively to wrench control of foreign detentions, particularly the Detention Centre in Parwan, the DFIP, which the Afghan authorities finally got complete control of in May 2013 (see AAN reporting here and here). (2) However, his work is not over. In the summer, he appointed a presidential commission to investigate Tor Jail led by Qazi Gul Rahman (also chair of the commission for monitoring the implementation of the constitution). Gul Rahman told AAN that, a month ago, the commission went to Bagram airbase, and, after their cars were refused entry, the US military bussed them the 20 minute ride to Tor Jail. At this point, Gul Rahman said, they were not let inside:

The commander said that, even if Hamed Karzai himself had come, he would not have been let inside. We said there are many disgusting stories about Tor Jail. If you don’t allow us inside that means the stories are true. If you allow us in, we can see what’s true or not.

Those ‘disgusting stories’ include detainees being deprived of sleep, kept in cold, cramped conditions, fed dry, inedible food and given insufficient water for drinking or ritual ablutions. Its Pashto name Tor Jail, or the Black Jail, comes from the fact that when the electric lighting is turned off, detainees are  left in utter darkness, day and night. In May 2013, after the DFIP was finally handed over to the Afghan authorities, AAN presented evidence that the US military was still keeping detainees at Tor Jail in these conditions for up to three weeks for interrogation before handing them over to the DFIP. The Open Societies Foundation had similar concerns in 2010 (3) and they were repeated by a member of the Afghan Review Board, Abdul Shakur Dadras. He said when the board had been reviewing the cases of detainees transferred by the US military to the DFIP, some had come from Tor Jail and reported it to be “intolerable” with no electricity and very small, dark cells.

In 2013, AAN was told Tor Jail had become a joint facility, with NDS Department 124 (Counter-Terrorism) and the US military conducting joint interrogations before transferring detainees to the DFIP. Dadras said any US involvement would be illegal and Gul Rahman said, if the NDS were there (he had not checked with them), their presence would only be symbolic.

Gul Rahman also said an American general had visited him two weeks ago to let him know that all those detained at Tor Jail had now been transferred to the DFIP, something Gul Rahman said he could not verify. A US military spokesman only told AAN that, “The US is in continual discussion with the government of Afghanistan as we prepare to close a variety of facilities.” (emphasis added) (Tor Jail was never the only ‘screening’ facility used by the US military. It used others on various forward operating bases, including in Kandahar and Khost.)

On 23 August 2014, Karzai also reactivated the Afghan Review Board (decree number 3620, a copy of which AAN has seen). Dadras said it had been stood down earlier this year when the president thought detainees were no longer coming from ‘foreign hands.’ The system at the DFIP had reverted to a ‘normal’ Afghan system, with the NDS investigating and attorneys reviewing case files and recommending release or prosecution (in the special court, also at Bagram, known as the Justice Centre in Parwan – or JCIP). Dadras said the board might start assessing files again: “If someone is there be-sarnewisht [literally ‘without fate’, ie someone who is lingering in detention, their case not dealt properly with], we will review the files. However, for now, we are only investigating the cases of alleged foreign involvement in the detention of 21 individuals.” (He gave no more details of these particular allegations.)

UK no longer detaining

The UK is the only other country to have run a detention facility in Afghanistan, although only because forced to do so by a British court in December 2012. It banned all transfers after a detainee transferred to the NDS was found to have been tortured, despite assurances of protection. (4) This resulted in detainees ‘piling up’ at the UK’s Camp Bastion in Helmand province. The situation was resolved in June 2013 when about 90 detainees at Bastion opted to be handed over to the DFIP, which, by then, was in Afghan government control. Bagram is considered free from torture and the men’s lawyers did not challenge the new arrangements.

However, this meant detainees were not going through the usual NDS pathway (which all other non-US ISAF forces had always taken) and in May 2014 Karzai accused the UK (and the US) of running “secret jails.” (5) Actually, as AAN reported at the time, at least parts of the state must have known what was going on because detention operations were jointly run and detainees were ending up at the DFIP. President Karzai’s accusation looked rather to be a means to put public pressure on the UK and US to halt their involvement in detentions. It was also a sign of his unabated mistrust of foreign intentions.

The presidential commission ordered the UK military to hand over all the detainees to the local NDS. Such a transfer would have breached the British court ruling, especially given Kandahar NDS and police’s particularly notorious records for torture and disappearances in the country. The UK appeared to be in a bind. Since then, though, it has resolved its difficulties with the Afghan government. Dadras told AAN that that if UK forces were “involved somehow in a detention,” they had a special agreement for the detainees to be sent to the DFIP, rather than to local facilities. Of the detainees held by the UK in May (six in Kandahar and 17 in Camp Bastion), an embassy spokesman said three had been released (Afghan prosecutors considered there was no case to make) and 19 had been transferred “very quickly” to the DFIP. (6)

Since then, a spokesman said the two facilities used for detention at Camp Bastion had been demolished and the facility on the Kandahar airbase, which has offices as well as cells, was now being used only for office accommodation. It is planned for demolition by the end of 2014. The spokesman said UK forces no longer operated temporary holding facilities. “All the meetings with the UK officials have been satisfying,” Dadras said. “They are cooperating.”

The UK is fast nearing the end of its mission (along with the rest of ISAF) and looks to have no interest in continuing detentions of Afghans (which had anyway been forced on it). The US may – or may not – be a different matter. At the moment, it appears detainees are picked up in joint operations with Afghan forces (and possibly) questioned jointly with the NDS and are then passed on to the Afghan-controlled DFIP. The US may want to keep a toe hold in the interrogation and screening of detentions it has had a hand in capturing, even after 2014. Ghani has promised to sign the Bilateral Security Agreement with the US as a priority after taking office which would mean almost 10,000 US forces staying in a train and advise mission to Afghan security forces, with special operations forces pursuing a separate counterterrorism mission against what Obama has called “the remnants of al-Qaeda.” However, the military spokesman appeared quite clear on US intentions with respect to detentions, telling AAN that in 2014 and beyond, “Our current focus is on closing facilities.”

Whether the future President Ghani will be as keen as President Karzai to eradicate the last vestiges of foreign involvement in detentions remains to be seen. He may well be busy just trying to sort out the Afghan side of detentions.

(1) For research on the police and Ministry of Interior and previous attempts at reform, see:

• M. Shaw, ‘Drug Trafficking and the Development of Organized Crime in Post-Taliban Afghanistan’, Chapter 7 in D. Buddenberg and William A. Byrd (eds)., Afghanistan’s Drug Industry: Structure, Functioning, Dynamics, and Implications for Counter-Narcotics Policy (Washington, DC: UNODC and World Bank, 2006), pp. 189–200.
• Wilder, ‘Cops or Robbers? The Struggle to Reform the Afghan National Police’ (Kabul: Afghanistan Research and Evaluation Unit, 2007.
• International Crisis Group ‘Reforming Afghanistan’s Police’ (Asia Report N°138) 30 August 2007
• For research on the police and other aspects of the justice system, see Stephen Carter and Kate Clark, ‘No Shortcut to Stability: Justice, Politics and Insurgency in Afghanistan,’ December 2010 Chatham House

(2) The US has kept control of foreign detainees, also held at Bagram: a list can be seen here.

(3) Open Societies reported the following conditions in Tor Jail in 2010:

• Exposure to excessive cold

• Exposure to excessive light

• Inappropriate and inadequate food

• Inadequate bedding and blanketing

• Disorientation and lack of natural light

• Sleep deprivation due to an accumulation of circumstances

• Denial of religious duties

• Lack of physical exercise

• Nudity upon arrival

• Detrimental impact from an accumulation of confinement conditions

• Facility rules and relevant Geneva Conventions rules/rights not posted

• Lack of transparency and denial of International Committee of the Red Cross access to detainees

It also reported that Tor Jail was being used by the Joint Special Operations Command (JSOC) and Defense Intelligence Agency agents from the Defense Counterintelligence and Human Intelligence Center: US forces were then at the height of its capture or kill campaign against the Taleban (for detail, see here).

(4) Transfer where there is a risk of torture is illegal under the Convention Against Torture. In 2011, ISAF was forced to suspend transfers after pressure from the courts, the media and human rights groups. In early 2012, it instituted a new regime of outlawing transfers to some NDS facilities, while monitoring others.

(5) Member of the commission sent to investigate foreign detentions in May 2014, General Barakzai (also the commander of the DFIP) gave the following details to AAN of alleged detention centers:

Kandahar air base: three detention centers

Detention facility 1 . Under British control, with a capacity for 16 detainees in separate cells. Six detainees there. The British military were carrying out interrogations. The commission alleged that the presence of two NDS officers was purely ‘symbolic’ (shakli), giving cover to what is actually a British detention center.

Detention facility 2. Under US control. Capacity for 36 detainees, but none there.

Detention facility 3. Under ISAF control. Capacity for 38 detainees in separate cells and a further 40 in four communal cells. No detainees found. Closed.

Helmand: three detention centers

Camp Bastion. UK controlled. Capacity for 88 detainees (eight in each of 12 cells); 17 detainees found. All had been there for between one and four months except for one detainee who had had been held for 31 months; he also had no case file.

Camp Bastion 3. UK controlled. Capacity for 48 people in single cells. No detainees.

Camp Leatherneck. US-controlled. Capacity for 60 people. No detainees currently: “recently abandoned.”

(6) They included one man who had been held for more than 30 months at Bastion (who had not gone to the DFIP in June 2013 with the other 90 or so detainees); the spokesman said the Afghan authorities had confirmed he would be investigated and, if appropriate, prosecuted.