NATO’s thorny prison dilemma

As the majority of coalition forces prepare to withdraw from Afghanistan at the close of 2014, concerns are growing for the future of the detainees they must leave behind. During the course of the twelve-year war, NATO troops have apprehended thousands of suspected insurgents, most of whom have been released or transferred to the Afghan authorities. However, renewed fears regarding the prevalence of torture in Afghan custody have forced ISAF forces to halt the process of handing prisoners over to the Afghan authorities.

In a damning report released last month, the United Nations Assistance Mission in Afghanistan  (UNAMA) concluded that torture is an "institutional policy or practice" in at least ten of the country’s detention facilities. The methods include beatings, suspension from the ceiling and electric shocks. Transferring prisoners to face such conditions is a breach of international law. But as ISAF remains tied to a fixed timetable for military withdrawal, the need to find a legal solution to prisoner transfer, by getting rid of institutional mistreatment, grows ever more pressing.

For the British government, the issue is a particularly thorny one, and its approach to transfers has drawn sharp criticism, both from human rights groups and lawyers acting on behalf of prisoners who faced mistreatment after being transferred from British custody.

On 29 November 2012, Defence Secretary Philip Hammond was forced to re-impose a third moratorium on the transfer of UK-detained prisoners to the Afghan intelligence service (NDS). As of October 2010, the UK had detained 1,399 individuals, of whom at least 487 were transferred to the Afghan authorities. Today, the number remaining in British custody is believed to stand around 70.

Hammond’s decision to ban transfers came after two years spent defending the practice of releasing detainees into a penal system where abuse has been described as widespread. The day before a high court hearing into the legality of a previous transfer that had resulted in allegations of sustained abuse, the Defence Secretary obtained new (as yet undisclosed) evidence suggesting that prisoners transferred to Afghanistan’s National Directorate of Security (NDS) were indeed at "real risk of serious mistreatment or a flagrant denial of justice".

The ban on prisoner transfer appears to have been vindicated by the new UNAMA report. After interviewing 635 inmates held across 89 detention facilities, UN representatives concluded that the culture of abuse was most prevalent within NDS Kandahar, a key destination for UK-detained prisoners once they have been transferred.

So far, the British government has aimed to minimise the risks facing detainees by using a two-pronged strategy. This strategy involved ‘diplomatic assurances’ from the Afghan security services that the individuals in question will remain free from harm, while at the same time monitoring and encouraging the use of surveillance within detention  centers.

The practice of striking diplomatic deals regarding torture has long been controversial. Amnesty International has condemned the practice as a dereliction of both states’ duty to take the overall threat of torture seriously. The specific focus on the treatment of individual detainees, Amnesty argues, ignores a wider picture of abuse in which confessions are regularly extracted through mistreatment. Amnesty has also pointed out that diplomatic assurances are not legally binding and not only that, but they have no enforcement mechanisms. This leaves the governments involved to voluntarily assume responsibility for investigating breaches and holding perpetrators to account. In the case of Afghanistan, levels of accountability for mistreatment remain very low. According to the recent UNAMA report, over the last 18 months, NATO representatives have reported 80 allegations of detainee abuse to Afghan authorities, according to the recent UNAMA report. To date, Afghan officials have only taken action over one case.

Britain’s latest agreement with Afghanistan regarding the treatment of prisoners was signed in a low-key meeting between Asadullah Khalid, head of the NDS, and a representative from the British Foreign Office. To say that Khalid is seen by many to be a deeply flawed interlocutor is putting it lightly: he has been described by Canadian diplomats as someone ‘known to personally torture people’ in a ‘dungeon under his guest house’.

The worth of Khalid’s assurances against the use of torture is monitored by a team of British military personnel. They conduct interviews with UK-transferred prisoners, questioning them about their detention experience and giving them an opportunity to register any allegations of mistreatment. However, critics argue that British monitoring efforts are at best ineffective and at worst lead to a systematic cover-up of abuse. The human rights charity Reprieve has documented examples of British monitors finding torture equipment in interrogation rooms, but saying nothing out of fear of ‘causing a scene’. More concerning still, UNAMA this week reported receiving "sufficiently reliable and credible information that officials hid detainees from international observers and held them in underground or other locations."

This is not to say that monitoring does not have an impact. UNAMA observed that some NDS facilities saw a decrease in allegations of torture during the one-year period in which the interviews took place. This corresponded with a decrease in transfers by international military forces and increased monitoring. However, after ISAF nations resumed transfers to these facilities and reduced its monitoring, incidents of torture appeared to rise once again. Monitoring is a useful and necessary stage in the quest to eradicate torture in Afghan detention facilities. It is not, however, a silver bullet.

Britain’s repeated bans on prisoner transfer to the Afghan authorities have led to a shift in strategy when it comes to detentions. Military operations are usually conducted in conjunction with Afghan forces, and it is now the latter that is expected to take charge of any arrests.

But this does not solve the problem of what to do with the prisoners who remain in British custody. Speaking at a press conference in Kabul on Monday, Georgette Gagnon, UNAMA’s Director of Human Rights, emphasised the need for the ISAF governments to focus on "deterrents and disincentives to use torture, including a robust, independent, investigation process, criminal prosecutions and courts’ consistent refusal to accept confessions gained through torture". Without such deterrents, she said, Afghan officials will have no incentive to cease the practice of torture.

As the date for NATO’s withdrawal from Afghanistan draws ever closer, the imperative for coalition governments to encourage such deterrents will grow ever stronger.

Louisa Loveluck is a freelance journalist based in Cairo. She writes at leloveluck.com.