3-20-2012By Daphne Eviatar
Law and Security Program
Over the weekend, independent human rights advocates in Afghanistan released yet another report documenting systematic torture by Afghan police and security services. The report from the Afghan Independent Human Rights Commission and Open Society Foundations reveals evidence that U.S. forces in Afghanistan have continued to transfer suspected insurgents to Afghan authorities despite previous warnings of torture from the United Nations, which issued its own report on systematic torture by Afghan authorities last October. And, the report continues, although NATO forces created a remediation plan and inspection regime for monitoring detainees it transfers to the Afghan government, U.S. forces that operate under their own non-NATO command do not adhere to that monitoring plan. In fact, the U.S. government, for all we know, does not monitor the detainees it transfers to the Afghans at all.
To those in the U.S. government eager to withdraw from Afghanistan and get this whole war over with, the treatment of Afghans suspected of participating in the insurgency may seem unimportant. But it’s quite important under international law. The United States is legally obligated not to transfer captives to the government if they face a risk of torture. According to this latest report, that risk is very real.
The most shocking thing about the new report isn’t that Afghan policy and security services use “beatings, suspension from the ceiling, electric shocks, threatened or actual sexual abuse, or other forms of mental and physical abuse,” as the report documents. That’s not new in Afghanistan. The real surprise is that, although the U.S. government has consistently maintained that it does not turn captives over to the Afghan government when there’s a risk of abuse, it seems it has, and continues to do so. After the U.N. report pointed this problem out last year, the U.S. military pledged ‘never again’ — it would stop transferring captives to the abusive Afghan security service facilities until the Afghan government had demonstrated that the problem was solved.
Once again, according to this latest report, the U.S. military appears to have broken its promise.
The failure to adhere to this most basic human rights law raises serious questions not only about future captures, but for the fate of the 3200 detainees the U.S. is now imprisoning at the Bagram Air Base.
The U.S. government recently announced that it had agreed with the government of Afghanistan to turn over all of its Afghan detainees within the next six months. Afghanistan will treat them, according to the agreement, “in compliance with Afghanistan’s international obligations with respect to humane treatment and applicable due process… ” But there is no indication anywhere in the agreement how the United States plans to ensure that the Afghan government fulfills that promise.
The lack of information about this latest agreement doesn’t bode well for its implementation. Indeed, the promises of humane treatment and due process are made in the context of a discussion of an Afghan “administrative detention regime” that the Karzai government has always said does not exist. No one I’ve asked, either in the U.S. government or in Afghanistan, seems to know what Afghan law — if any — the agreement refers to.
I realize that the fate of Afghan detainees, who may or may not have participated in the insurgency or harmed U.S. forces (they’re not allowed trials or lawyers and the U.S. government doesn’t release information about them so we can’t know), is not the top priority for U.S. policymakers right now. But it’s both a violation of international law and morally bankrupt for the United States to round up suspects and imprison them, in some cases for years, without due process, then turn them over to a government that may torture them.
Law and morality aside, complicity in torture isn’t going to help U.S. counterterrorism policy any, either.