Update on the Treatment of Conflict- Related Detainees in Afghan Custody: Accountability and Implementation of Presidential Decree 129 United Nations Assistance Mission in Afghanistan Office of the United Nations High Commissioner for Human Rights February 2015 Kabul, Afghanistan Contents Glossary ........................................................................................................................................................ iii UNAMA’s Mandate ...................................................................................................................................... v I. Background ....................................................................................................................................... v II. Methodology .................................................................................................................................. vii Map 1: 128 Detention Facilities Visited by UNAMA .................................................................... xiv III. Executive Summary ..................................................................................................................... 15 Map 2: Detention Facilities where Incidents Occurred .............................................................. 41 IV. Treatment of Detainees by the National Directorate of Security ................................ 42 Map 3: Sufficiently Credible and Reliable Incidents in NDS Custody ................................................. 52 V. Treatment of Detainees by the Afghan National Police and Afghan National Border Police ............................................................................................................................................................ 53 VI. Treatment of Detainees by the Afghan Local Police ........................................................ 64 VII. Treatment of Detainees by the Afghan National Army ................................................... 67 VIII. Involvement of International Military Forces in the Capture, Arrest, Detention and Transfer of Detainees to Afghan Custody ........................................................................................ 68 IX. Assessment of National Capacity to Address Torture and Ill-Treatment, Accountability and Implementation of Presidential Decree 129 ........................................... 74 X. UNAMA Recommendations ............................................................................................................110 ANNEX III: Press Conference by the President’s fact-finding delegation announcing the conclusions of its investigative work, 11 February 2013 .......................................................123 ANNEX IV: Presidential Decree 129 ................................................................................................126 ANNEX V: Status of Implementation of UNAMA’s Recommendations from October 2011 and January 2013 Reports ..................................................................................................................128 ANNEX VI: Response of the Government of Afghanistan dated 12 February 2015 to the UNAMA/OHCHR 2015 Report ............................................................................................................139 ANNEX VII: Letter of General John F Campbell, U.S. Army Commanding, Resolute Support to UNAMA SRSG Nicholas Haysom dated 22 February 2015 ..................................................154 Glossary Acronyms AGO Attorney General’s Office AIHRC Afghanistan Independent Human Rights Commission ALP Afghan Local Police ANA Afghanistan National Army ANBP Afghanistan National Border Police ANP Afghanistan National Police ANSF Afghanistan National Security Forces CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (often shortened to Convention against Torture) CID Criminal Investigations Department (ANP) CoP Chief of Police (ANP) CPD Central Prisons Directorate CRC Convention on the Rights of the Child CTU ANP Counter-Terrorism Unit HQ Headquarters CPC Criminal Procedure Code ICRC International Committee of the Red Cross IED Improvised Explosive Device ISAF International Security Assistance Force JCRC Juvenile Corrections and Rehabilitation Centre MoD Ministry of Defence MoI Ministry of Interior MoJ Ministry of Justice MoU Memorandum of Understanding NDS National Directorate of Security NPM National Preventive Mechanism OHCHR Office of the High Commissioner for Human Rights TCC Troop Contributing Country UNAMA United Nations Assistance Mission in Afghanistan UNDP United Nations Development Programme Dari and Pashto Words Hawza Cadastral zone within a city iii Jirga Traditional, dispute-settling assembly of community leaders Taliban Armed opposition group fighting against the Government of Afghanistan and international military forces iv UNAMA’s Mandate Since 2004, the United Nations Security Council has mandated the United Nations Assistance Mission in Afghanistan (UNAMA) to support the establishment of a fair and transparent justice system and to work towards strengthening the rule of law. UNAMA includes a Human Rights Unit with field staff across the country which receives technical assistance from the Office of the United Nations High Commissioner for Human Rights (OHCHR). UN Security Council resolutions have mandated UNAMA to improve respect for human rights in the justice and prisons sectors. UN Security Council Resolutions 2096 (2013) and 2145 (2014)1 drew specific attention to UNAMA’s work and reports on detention and recognized the Government of Afghanistan’s 2013 commission on detention: 38. Reiterates the importance of completing the National Priority Programme on Law and Justice for All, by all the relevant Afghan institutions and other actors in view of accelerating the establishment of a fair and transparent justice system, eliminating impunity and contributing to the affirmation of the rule of law throughout the country; 39. Stresses in this context the importance of further progress in the reconstruction and reform of the prison sector in Afghanistan, in order to improve the respect for the rule of law and human rights therein, emphasizes the importance of ensuring access for relevant organizations, as applicable, to all prisons and places of detention in Afghanistan, and calls for full respect for relevant international law including humanitarian law and human rights law, noting the recommendations contained in the report of the Assistance Mission dated 20 January 2013, and the appointment by the Government of Afghanistan of a Commission to inquire into the findings of the report. I. Background UNAMA has long observed the situation of detainees and prisoners in Afghan prisons and detention facilities. From 2006 to 2009, UNAMA conducted the Arbitrary Detention Verification Campaign that resulted in a two-volume publication on due process and treatment concerns regarding criminal detainees in Afghan facilities (published in 2009). In October 2010, with the cooperation of the National Directorate of Security (NDS) and the Ministry of Interior (MoI), UNAMA began its current programme of observation of conflict-related detainees2 in Afghan detention facilities. This programme focused 1 UN Security Council Resolution 2096, S/Res/2096 (2013) adopted 29 March 2013 and S/Res/2145 (2014) adopted 17 March 2014. 2 Detainees suspected of offences related to the armed conflict are generally accused of committing crimes against the State codified in the 1976 Penal Code (which includes chapters on “crimes against the external security of the State” and “crimes against the internal security of the State”), the 1987 Penal Law on Crimes against Internal and External Security of the Democratic Republic of Afghanistan (which includes crimes such as assassination, acts of explosion, armed looting and incitement to hostilities) and the 2008 Law on Combat against Terrorist Offences (which defines as terrorist offences the “use of explosive or other lethal devices,” “membership of a terrorist organization,” “offences against internationally protected persons” and other acts). UNAMA interviewed many detainees who were not aware or informed of the specific offence they were accused of and which they generally described as involvement in or support for v primarily on NDS and Afghan National Police (ANP) facilities and resulted in two public reports, the first released in October 2011 and the second in January 2013.3 Treatment of Conflict-Related Detainees in Afghan Custody, 2011-2013 UNAMA’s two earlier reports on detainee treatment found compelling evidence that many conflict-related detainees UNAMA interviewed had experienced torture and ill- treatment during arrest and interrogation in numerous detention facilities run by the NDS and ANP. In its October 2011 report (for the period October 2010 to September 2011), UNAMA found that nearly half of 273 detainees interviewed who had been held in NDS detention facilities, and one third of 117 individuals interviewed who had been detained in ANP locations experienced interrogation techniques that met the international definition of torture or cruel, inhuman or degrading treatment. UNAMA found almost no accountability for torture or ill-treatment by NDS and ANP officials with their reported investigations into allegations of torture kept internal and prosecutions rarely pursued. Very limited independent, judicial or external oversight of NDS and ANP was also found. UNAMA made 25 recommendations to relevant