Time to Tackle Torture Is Now

The following article originally appeared in Foreign Policy.

Last year, Qasim, a construction worker from eastern Afghanistan, was detained in a joint US-Afghan raid on his home in Kabul. He eventually ended up in the hands of the National Directorate of Security (NDS), the Afghan intelligence agency. For over a week, Qasim was hung by his arms, taken down only to go the bathroom and pray. Several times a night he was beaten with pipes and electrical cables, his head bashed into walls, and threatened with much worse. After a week and a half, he could no longer walk, not even to bring himself to the bathroom.

My organization, the Open Society Foundations, and its Afghan partners have interviewed many other Afghans who, like Qasim, have suffered acts of torture at the hands of the NDS, ranging from beatings, and burns, to electric shock, and sexual abuse.

In a ground-breaking report [pdf] released by the United Nations Assistance Mission in Afghanistan, the true scope and severity of such abuse is made clear. The UN found evidence of torture and mistreatment in 16 Afghan detention facilities, including electric shocks, hanging detainees from ceilings, beatings, and threat of sexual assault. As a result of the report, the Afghan government dismissed several NDS officials implicated in the report, though it unclear whether there will be any criminal prosecutions.  The International Security Assistance Force (ISAF) has temporarily halted the transfer of ISAF detainees to the 16 facilities.

ISAF's halting of transfers to facilities identified in the UN report is an important first step. The Afghan government's initial response was certainly less positive, but will hopefully improve following now that the report has been publicly released. Looking forward, however, there is real concern that the ISAF and Afghan government responses will prove rather superficial, and ultimately fail to fully grapple with the depths of the problem.

One area that the Afghan government and ISAF should prioritize is accountability. Though perhaps politically difficult, accountability for abuses is key, and must be pursued vigorously and publicly. The UN report is an opportunity for the right signals to be sent, both within the Afghan justice system as well as to the Afghan public.

Without sustained efforts on this front, it's likely that even if those Afghan officials who are responsible for abuse are removed, they will only re-emerge elsewhere in the justice system or government. Shuffling the problem around only sows the seeds for future abuse, and reinforces perceptions of impunity that are at the heart of the Afghan government's struggle for legitimacy.

An independent, external body should be empowered to monitor facilities, receive complaints, and investigate allegations of abuse, with findings and remedial actions made public. Full, unfettered access should also be granted to outside monitors, including Afghan Independent Human Rights Commission, ICRC, and UNAMA. Those responsible for abuse should not only be removed from their positions, but also subject to criminal prosecution and civil liability.

The international community can play an important role in ensuring those responsible are truly held to account. Governments should not only apply conventional diplomatic pressure, but should think creatively and ambitiously about how to strengthen accountability. Funding, training, as well as military and intelligence relationships with the Afghan government and security forces should all be utilized to ensure those responsible for abuse are held accountable. The US is prohibited by the Leahy Law from supporting foreign security forces which engage in gross violations of human rights.

The pervasive lack of due process also leaves detainees vulnerable to abuse. Detainees and defense lawyers we have interviewed consistently decry Afghan authorities' denial of legal counsel, in addition to preventing family notification or contact. In some cases we documented, defense lawyers have themselves been arrested or harassed simply for contacting their clients. The Afghan Government should implement measures to ensure detainees' access to legal counsel, and adopt strict rules regarding family notification (just as the Afghan government advocates for in ISAF detentions), while international donors should provide funding to Afghan legal aid organizations to represent conflict-related detainees. Ensuring detainees have their most basic due process rights respected while in detention provides an additional, necessary check on Afghan authorities' power and strengthens transparency and accountability.

For their part, international forces must acknowledge that there are no quick fixes for detainee abuse in Afghanistan. Detainee monitoring, for example, is too often posited as the solution to abuse, although it only focuses on detainees transferred by international forces, not the wider prison population. While monitoring is a potentially important part of protecting detainee rights, international forces must be honest about its practical limitations, and confront the fact that, in the current context, monitoring alone cannot satisfy their legal obligations to prevent torture.

Indeed, the fact that the UN has documented abuses despite the existence of various ISAF countries' monitoring mechanisms and oversight by organizations like the Afghan Independent Human Rights Commission (AIHRC) speaks to the insufficiency of such measures. Given the sheer number of facilities and detainees, logistical and security challenges, and detainees' fears of reprisals for disclosing abuse, even the most well-designed monitoring mechanisms may in practice be incapable of ensuring detainees are free from torture.

International forces must also grapple with the problem of torture beyond the narrow issue of transfers, not least because they have been working so closely with the Afghan intelligence authorities, including using intelligence that may very well have been extracted through the use of torture. Appropriate assessment of the risk of torture will also always have to take into account treatment of all detainees at a particular Afghan facility-not just those transferred from international custody. Conceiving of the problem as one of detainee transfer also biases policy solutions towards bureaucratic box checking in order to resume detainee transfers-not actually halting abuse.

To be sure, there are real dilemmas and constraints facing the Afghan government and ISAF. There is a lack of professional capacity at every level of the Afghan justice system, from guards to judges to prosecutors. The sheer number of persons detained in connection with the conflict means the system is under severe strain, burdened further by the military as opposed to law enforcement nature of operations. But the Afghan government and all ISAF nations have strict legal obligations to refrain from and prevent torture, and as the UN report lays bare, they have fallen well short.

The looming troop drawdown and transition only give greater urgency to this issue. With more and more responsibility for security being shifted to Afghans, the strategic risk and political liability posed by abusive detention practices will only grow. Right now the US and other ISAF nations have the most leverage to shape the Afghan justice system and leave behind institutions, laws, and mechanisms that uphold the rule of law and protect Afghans from torture. As the war in Afghanistan marks its tenth anniversary, time is not on the side of either ISAF or the Afghan government. The UN report marks a perhaps singular opportunity to marshal momentum behind detention reforms that will be long-lasting and effective at protecting the most basic of human rights.

1 Comment

"One area that the Afghan government and ISAF should prioritize is accountability. Though perhaps politically difficult, accountability for abuses is key, and must be pursued vigorously and publicly. The UN report is an opportunity for the right signals to be sent, both within the Afghan justice system as well as to the Afghan public."

by ISAF, you mean the american gov, dont you? i wish you had the guts to say it. governments have power, governments abuse people, and the politicized UN does nothing except play along on the violin.

Add your voice