The New York Times carried a detailed piece on the U.S. detention policy in Afghanistan on Monday, January 7, 2007. It is an excellent overview on the prison, but the information provided in the
piece gives rise to a number of international law issues that are not explicitly discussed or acknowledged in the article itself. I first review the salient facts, and then turn to the issues.
The facts
It reviewed the history of Bagram Prison and the extent to which it was in many respects worse than the facility in Guantanamo Bay. There are over 600 detainees being held there, most of whom have not been charged with any offence or been subject to any legal proceeding. Some have been held without charge for more than five years. The average detention is over 14 months long. Moreover, while U.S. authorities claim that all detainees are to be processed and “registered” within fourteen days of admission, and thus accessible to the International Red Cross when it visits, they also conceded that there were exceptions. An IRC confidential report, according to administration sources, claims that it has been denied access to a “warren of isolation cells” in the Bagram facility.
But what is more striking from the article is the account of how the U.S. Defence Department officials applied pressure on the Karzai administration to establish a regime of indefinite detention of “enemy combatants” along the lines of the so-called legal framework of Guantanamo Bay. President Karzai refused to sign the decree drafted with U.S. assistance to authorize and establish the regime.
A 2005 agreement to transfer the bulk of detainees to Afghanistan was the basis for a more detailed plan of transfer, as outlined in an exchange of diplomatic notes. The notes reflect that the U.S. sought to have the Afghanistan government share any intelligence obtained from detainees, to “utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release,” and “confiscate or deny passports and take measures to prevent each national from travelling outside Afghanistan.”
Finally, the legal basis for the U.S. detention of those being held at Bagram is reported to be unclear. Defence Department officials says that the detentions were authorized by “a note from the [U.S.] attorney general stating that he recognizes that they have legal authority under the law of war to hold enemy combatants as security threats if they choose to do so.”
The Issues
There are a host of legal issues raised by these facts, but I wish to focus more on the aspects of the regime that the U.S. sought to impose on Afghanistan. Here is a war effort that has been rationalized to no small degree by arguments of establishing a democracy in Afghanistan. While it was initially a war of collective self-defence justified by the 9-11 attack and the Taliban regime harbouring the terrorist aggressors, the continued presence and military activity has been justified by notions of freeing Afghanis from the tyranny of the Taliban and establishing a democratic state.
Yet the U.S. seeks to have the Afghani government develop a legal regime like that of Guantanamo, with indefinite detentions of “enemy combatants” without charge, or at best with prosecution by so-called military commissions. Most international lawyers in the world view the system in Guantanamo, of detention without charge, without access to courts of law or the right of habeus corpus, as being in violation of international law, and of the human rights norms that inform all liberal democracies.
More importantly, even those American lawyers who defend the Guantanamo system would not for a moment attempt to justify its application to U.S. citizens. The whole point of Guantanamo, was that it was to deprive non-citizens of the one connection to the U.S. Constitution they would have if held on U.S. soil, i.e. presence within the jurisdiction. Yet here the U.S. is seeking to have Afghanistan impose a similar system as against its own citizens. There is a plethora of law relevant to this issue, but one can begin with the International Covenant on Civil and Political Rights (the ICCPR), the most important human rights convention, to which the U.S. and Afghanistan are both party. The ICCPR, in Article 9, prohibits any arbitrary arrest or detention, requires prompt charges upon arrest, and the right to be brought promptly before a court of law, and to be subject to a trial within a reasonable time. It includes the right of judicial review to determine the lawfulness of one?s detention.
The next issue is that of denying those detainees who are released the mobility rights inherent in the possession of a passport and the ability to leave and return to one?s country at will. Article 12(2) of the ICCPR provides that “Everyone shall be free to leave any country, including his own.” It is a right that is qualified, in that it can be restricted as is necessary to protect national security, so long as such limitations are consistent with other rights in the covenant. But one can only assume that if the detainee is being released, it is because he has been found by the government of Afghanistan not to have committed any criminal offence or violation of the laws of war. Moreover, the U.S. request is not for the national security of Afghanistan, which is the only applicable limitation on the right, but for the security interests of the U.S. So, once again, the U.S. is seeking to have Afghanistan violate the human rights of its citizens, and violate its international law obligations under the ICCPR, for the narrow interests of the U.S.
In sum, the regime that the U.S. sought to impose by way of the agreement for detainee transfer to Afghani control was utterly inconsistent with the democratic values and international human rights that the “nation building” efforts in Afghanistan are rationalized as being designed to cultivate.