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2012 | Open Society Foundation/AIHRC - Torture, Transfers, and Denial of Due Process: The Treatment of Conflict-Related Detainees in Afghanistan

Thousands of individuals have been detained by national and international forces in connection with the armed conflict in AfghanistanFor years, credible allegations of mistreatment and torture of detainees by Afghan authorities have surfaced. Between February 2011 and January 2012, the Afghanistan Independent Human Rights Commission (AIHRC) visited several Afghan detention facilities in the country, founding credible evidence of torture at locations not previously identified and of use of methods of torture that had previously been denied. This report, based on over 100 interviews conducted by AIHRC with detainees at National Directorate of Security (NDS) and Ministry of Interior (MOI) facilities, raises significant concernon the treatment of detainees and the continued transfers of individuals by US and other international military forces to the Afghan government. It suggests that the international military forces’ practice of transferring detainees under their effective control to the custody of Afghan authorities amounts to a violation of the principle of non-refoulement. 

According to ISAF standards, individuals detained during operations are generally transferred to Afghan authorities within a 96-hour timeframe from the arrest. In response to an October 2011 UN report, ISAF suspended all detainee transfers to 16 facilities of concern, initiated a regime to address problems identified at these facilities, and proposed an ambitious monitoring program to cover all detainees transferred by ISAF. More information is needed to properly assess whether ISAF’s six-phase plan - including inspections of implicated facilities, trainings, follow-up visits, and certifications - has successfully addressed risks of torture and detainee abuse. There is, however, significant concern that international monitoring programs will lead to the creation of a “two-tier” system, where transferred detainees are free from abuse, while the wider detainee population continues to face mistreatment.  

The largest gap is the lack of monitoring of transfer of detainees by US forces outside of ISAF chain of command. Open Society Foundation and AIHRC’s analysis suggests that US special forces routinely interrogate and screen individuals and, eventually, transfer some of them to Afghan officials. Researchers have documented ten credible cases in which individuals detained by US forces between May 2010 and January 2012 were transferred to NDS facilities, where they have allegedly been tortured. In 11 additional cases, individuals were transferred to NDS Kandahar detention facility, despite a July 2011 ISAF order suspending such transfers due to reports of abuse.  

The report contends that individuals detained in NDS facilities are routinely denied their right to due process by being held incommunicado without access to counsel. These violations significantly increase the risk of torture and frustrate effective oversight and accountability. Furthermore, despite the efforts to address allegation of ill-treatment and abuse, the Afghan government has thus far largely failed to hold individuals, who are responsible for detainees’ abuse, accountable. In some cases, instead of dismissing and prosecuting responsible officials, the government has simply reassigned officials to other detention facilities.  

In this light, the report concludes by providing a number of recommendations to the NDS, the Afghan government, the Afghan Supreme Court, the Afghan Parliament, ISAF command, and the US. AIHRC and Open Society Foundation underscore the need for urgent actions to successfully prevent and address detainees abuse through investigations, prosecutions, policy reforms, training and monitoring.