Terms of internment

When the U.S. and Afghan governments signed a Memorandum of Understanding (MoU) on handing over Bagram jail and its detainees, both of the governments and the media — including myself — saw the agreement as a real transfer of sovereignty and a victory for President Karzai. Now I am much less sure. It seems a system may be emerging where the gains in sovereignty are illusory and, though there is an Afghan face on security detentions, the U.S. military remains in control. 

There is another twist to the handover of Bagram prison, which is officially known as the Detention Facility in Parwan — or DFiP. The MoU committed the Afghan state to using detention without trial for some security prisoners and both the United States and Afghanistan have moved swiftly to set up the system for doing this. However, the government denies having made any such commitment. The Presidential spokesman, Aimal Faizi, was unequivocal:

We signed the MoU… mainly to put an end to detentions without trial because they are not in accordance to the Afghan laws… The President has always been absolutely against detentions without trial and this is his stance today as well… We have not signed or agreed anything which allows detentions without trial.

The Bagram MoU was a response to President Karzai’s ultimatum in January 2012 that the United States had a month to hand over both prison and inmates after reports of maltreatment. This MoU — along with a second one on Afghan-izing special operations (dealing with the especially sensitive topic of night raids) — were pre-conditions on the Afghan side for the signing of the Strategic Partnership Agreement, which the United States wanted in place before the recently-held NATO summit in Chicago. 

The United States was worried about the possible release of men whom it considers the most dangerous in detention, as the 3,000 odd people currently held by the U.S. military without trial in Bagram could well be considered illegally incarcerated under Afghan law. Hence the Afghan and U.S. negotiators took recourse to the Laws of Armed Conflict. Both MoUs cite the 1977 Second Additional Protocol to the Geneva Conventions (APII) as the legal basis for detention without trial. APII acknowledges that when a state is fighting a war, it may deprive its citizens of "their liberty for reasons related to the armed conflict."

Is it possible that President Karzai might not have understood what using APII entailed? The English version of the Bagram MoU says only that the Afghan government would be using "administrative detention" at Bagram, but the Dari version is more specific. It is "gheiri qazayi", or non-judicial, and the Afghan president’s legal advisor confirmed at the time this would be without trial. A presidential decree on the handover also appears to have been passed. A reference to an undated, un-numbered, and as far as I know as yet unpublished decree appears in another document — the (also unpublished) Procedure for the Transition and Management of Bagram[i] — which was signed by the ministers of justice, interior, and defense, the head of Afghan intelligence (the NDS), the head of the Supreme Court, and the Attorney General on March 3 (read a translation here). The Procedure also cites APII. It is possible that the Afghan government does not want to admit it is now using internment because it would be politically unpopular, or because using APII means implicitly acknowledging that Afghanistan is fighting a civil war.

Getting information on what exactly is happening at Bagram is difficult, but from interviewing those involved in the handover, none of whom would speak on the record, and after getting hold of the Procedure, it has been possible to paint a fuller picture.

The mechanisms for handing over the prison have been rapidly established. Since at least mid-April, the U.S. military has been passing on detainees’ case files (in English, with Dari translation) at a rate of 30-40 a day to an Afghan technical committee (made up of representatives from the ministries of interior and defense, from the NDS, Supreme Court and Attorney General’s office). The Committee sends cases with prosecutable evidence to NDS for trial under Afghan criminal law. The remaining case files are passed to a review board (made up of representatives from the ministries of interior, defense, and NDS) which, for just over a week, has either assented to continued detention without trial, if it believes the individual is a continuing security threat, or has recommended release. There is no detail about the nature of the required evidence here, but according to the Procedure, continued detention can be ordered even if the Board believes the prisoner is only a "potential supporter of an armed group engaged in hostilities against the Islamic Republic of Afghanistan or international forces."  

If the review board recommends release, the file is sent back to the Bagram Transfer Commission (made up of five ministers), which can order a release. However, if the U.S. military believes an individual continues to be a terrorist threat, the MoU says this assessment should be "consider[ed] favourably." Such an (apparent) veto on release may not seem unreasonable given the way detainees frequently use influence, bribes, or intimidation to secure their freedom once inside the Afghan justice system. Still, it does not look like a transfer of sovereignty.

There are other indications that the U.S. military may still retain control. After initially reading the MoU, I assumed, like others (including the BBC) that, after six months, Bagram and its detainees would be handed over, once and for all, to the Afghans. The MoU says:

The United States Commander at the DFIP is to retain responsibility for the detainees held by the United States at the DFIP under the Law of Armed Conflict during the processing and transfer period, which is not to last more than six months. (Article 6c)

Re-reading all the documents and interviews, I rather think the U.S. military may intend to also have the option of retaining control of each freshly detained person for a maximum of six months before transferring him to the Afghan authorities. When asked about this, the U.S. embassy spokesman would only say: "We have nothing further for you on this topic at this time."

One can well imagine a scenario in which Afghan forces, working with the U.S. military, knock down the doors of Afghan homes and make the arrests (as per the second MoU on special operations), but the detainees, if considered interesting, stay in U.S. custody. The United States would still control initial detention, classification, and release, but the Afghan government would be in the firing line, either under pressure from the relatives of detainees wanting their people freed or criticized on human rights grounds relating to indefinite detention and the lack of legal recourse to evidence, independent counsel, and the like.

Now that the legal doors to internment have been opened, one can also imagine detention without trial spreading to other Afghan facilities. This must be a concern, given the many abuses, including torture, already staining the Afghan justice system, particularly for security detainees.  

The new arrangements in Bagram are not yet set in stone. The MoU itself makes clear that, "this arrangement is subject to review as part of the Bilateral Security Agreement to be negotiated between the Participants after the signing of the Strategic Partnership." Up till now, however, voices of protest about the nature of the handover have been few.  One belongs to MP Shukria Barakzai, chair of the Afghan Lower House Defense Committee, who has questioned the very legality of detention without trial. Otherwise, the start of the state interning its citizens has taken place quietly, with almost no comment in the media or in parliament.  Afghans are simply not aware of their loss of one of the most fundamental rights – for a prisoner to have his or her day in court.  The opportunity for an honest debate on detention without trial is not yet over, but there are no signs yet of the discussion even beginning.

Kate Clark is the senior analyst at the Afghanistan Analysts Network and is based in Kabul.

[i] ‘The Procedure for Transition and Management of Bagram Detention Facility and Pul-e Charkhi Detention Facility from the United States of America to the Islamic Republic of Afghanistan’