UK High Court calls to safeguard Afghan detainees against abuse

The UK High Court ruled on Friday 25 June that strict conditions for the transfer by British forces of suspected insurgents to Afghan detention centres must be respected, in order to avoid torture or serious mistreatment of the detainees.

First, the Court ruled that a moratorium already agreed by Britain on transfers to the National Directorate of Security (NDS) facility in Kabul had to remain in place, since the safeguards against ill-treatment of the detainees were considered to be insufficient.

The Court then proceeded by considering the nature and effectiveness of the safeguards relied on in trasfer of suspects to NDS facilities in Kandahar and Lashkar Gah, the provincial capital of Helmand.

In so doing, the Court took into account reports of torture and mistreatment referred to by various international organisations and NGOs. Furthermore, the judges considered the potentially dangerous link between the use of torture and the importance of confessions as evidence in criminal processes:

Whilst the UK and other ISAF states have provided training and other assistance to help the Afghan authorities improve their processes, there is nothing to show that confessions have lost their central evidential role in the securing of convictions or, therefore, that the incentive to secure confessions has significantly diminished. 

Despite the evidence shows a real risk of ill-treatment of the detainees and the problems, the Court observed that the practical operation of the transfer arrangements and the formal safeguards required do not respond adequately to such a risk. For example, the Court highlighted that there is not an effective system of monitoring on the treatment of transferees by the NDS:

UK officials have no direct involvement in the interrogation of transferees by the NDS. They are dependent on visits to transferees to monitor their condition and to check in particular that NDS interrogators have not been using torture or other serious mistreatment to extract confessions. 

For this reason, the Court concluded that UK-captured detainees could be transferred to NDS Kandahar and Lashkar Gah only if the existing safeguards are strengthened, in order to avoid any real risk of the detainees being subjected to torture or serious mistreatment at the hands of the NDS.

The conditions established by the Court are as follows:

(i) all transfers must be made on the express basis (spelling out the requirements of the MoU and EoL) that the UK monitoring team is to be given access to each transferee on a regular basis, with the opportunity for a private interview on each occasion;

(ii) each transferee must in practice be visited and interviewed in private on a regular basis;

(iii) the UK must consider the immediate suspension of further transfers if full access is denied at any point without an obviously good reason (we have in mind circumstances such as a security alert) or if a transferee makes allegations of torture or serious mistreatment by NDS staff which cannot reasonably and rapidly be dismissed as unfounded.

This judgment is particularly remarkable since the Court explicitly acknowledged the risk of torture for suspects transferred to facilities run by Afghanistan’s NDS. Maya Evans, the anti-war activist who brought the case, said after the ruling: “We are really pleased that there has been change in policy as a result of this case and that the court has said that there is a serious risk of torture and mistreatment.”

However, her victory, as observed by the defence secretary Liam Fox, is only partial, since the Court did not, as requested by the claimant, suspend the transfers to Afghan custody:

There is no place for the abuse of detainees. We have always recognised that this is a difficult and challenging area in which our people have to operate, and that is why we have specific safeguards and monitoring arrangements in place. These will be reinforced in line with the court’s recommendations.
The claimant in this case sought to end the practice of transferring insurgents to Afghan custody. She failed to do so. Bringing to justice those who seek to kill and maim British troops, coalition forces and Afghan civilians, including through indiscriminate methods like the laying of roadside bombs, forms an essential part of our current operations. It makes Afghanistan a safer place for our service men and women, and it is our duty to do so.

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