According to a United Nations report released on January 20, 2013, systematic torture remains a serious concern in many Afghan-controlled detention facilities, despite “concerted efforts” and “sustained support” by international partners and the Afghan Government to “root out torture and abusive detention practices.”
The 139-page report, compiled by the United Nations Assistance Mission in Afghanistan (UNAMA), finds that “more than half of 635 detainees interviewed (326 detainees) experienced torture and ill-treatment in numerous facilities of the Afghan National Police (ANP), National Directorate of Security (NDS), Afghan National Army (ANA) and Afghan Local Police (ALP) between October 2011 and October 2012.” UNAMA also reported “of the 105 child detainees interviewed, 80 children (76 percent) experienced torture or ill-treatment.”
Before we consider the key data regarding torture at different stages in Afghan detention facilities, it is important to understand the parameters that UNAMA worked within. First, UNAMA cites Article 1(1) of the Convention against Torture (ratified by both Afghanistan and the US), to generally define what actions constitute “torture” in the report.
Second, a standard of “sufficiently credible and reliable” is used “as the basis to determine whether consistent patterns of torture and ill-treatment as defined under international law had occurred within the detention system.” UNAMA states that this standard is harder to satisfy than the basic “reasonable suspicion” standard, and is used because, “[d]ue to the gravity of torture and the vulnerability of victims of such gross human rights violations, the higher standard of proof is intended to ensure that UNAMA is in the best position possible to recommend well-founded and concrete actions to stop its use.”
Third, according to the Islamic Republic of Afghanistan’s official response to the UNAMA report, UNAMA does not define what constitutes “systematic torture,” nor does it cite any “valuable source … for using such term.” However, UNAMA explains “[f]or purposes of this report, UNAMA uses the term ‘systematic’ to reflect the presence of a policy or practice within an individual facility.” Further, UNAMA defends its definition of “systematic torture” by pointing to evidence that satisfies the “sufficiently credible and reliable” standard:
Numerous detainees in the particular facility were very highly likely subjected to torture meaning that facility directors and investigators must have known, ordered or acquiesced to the use of torture. As such, it can be concluded that torture was an institutional policy or practice of the specific facility and was not used by a few individuals in isolated cases or rarely.
Last, UNAMA does not argue that systematic torture is “part of a systematic national or institutional Government policy.” Rather, the use of torture is the result of “a long established practice in Afghan detention facilities” for obtaining confessions, combined with a lack of deterrence by those directly in charge of detainees.
In the following sections, I will summarize specific UNAMA findings at different facilities under Afghan control, and also touch on the methodology employed by UNAMA. Then, I will discuss the policy issues and concerns for the U.S. raised by these findings.
The Methods of Torture in Afghan Detention Facilities
UNAMA gathered information on the extent and the reasons for torture. 89 detention facilities were visited and UNAMA found abuse especially common in “34 facilities of the ANP [Afghan National Police], ANBP [Afghan National Border Police] and NDS [National Directorate of Security].” The report also observes that “[w]here torture occurred, it generally took the form of abusive interrogation techniques in which NDS, ANP, ALP [Afghan Local Police], or ANA [Afghan National Army] officials deliberately inflicted severe pain and suffering on detainees during interrogations aimed mainly at obtaining a confession or information.”
It is worth noting that UNAMA did not visit the Detention Facility in Parwan (Bagram), for two reasons. First, it is not yet under full Afghan control. Second, it is already being monitored by “[t]he Afghanistan Independent Human Rights Commission and the International Committee of the Red Cross.”
UNAMA gathered information on the types of torture methods used at the 34 facilities. According to UNAMA, 14 different methods of torture were documented. These included stress positions, suspensions in the air, constant beatings with cables, pipes, hoses, or wooden sticks, punches and kicks, twisting of genitals, threats of execution, threats of sexual violence, electric shock, and subjection to cold weather conditions for prolonged periods. Children under the age of 18 were specifically subject to beatings on the soles of the feet and elsewhere, slapping and kicking, stress positions, electric shock, and at least one threat of sexual assault.
National Directorate of Security
The National Directorate of Security (NDS) reports directly to the Afghan President, and is “responsible for all intelligence and information gathering including foreign intelligence, counter espionage, terrorism and all other issues relating to national security and foreign affairs.”
UNAMA reports that 178 out of 514 detainees “reported they had been tortured or ill-treated while in NDS custody.” There is reliable evidence that systematic torture occurred at two specific facilities and reliable evidence that incidents of torture occurred at 10 other NDS facilities. However, there was no evidence of torture or ill-treatment found at two further facilities. In addition, the report uncovered that detainees were first tortured at unofficial detention facilities by NDS before being transferred to the official facilities. The UNAMA report gathers the possible locations of these unofficial detention facilities, and other information about them, largely from detainee statements.
Afghan National Police & Afghan National Border Police
“The Afghan Police are one of the principal authorities vested with law enforcement powers in the country.” 125 out of 286 detainees interviewed experienced torture and ill-treatment while under Afghan National Police (ANP) or Afghan National Border Police (ANBP) control. Of the 125 tortured detainees, 45 were children under the age of 18.
The report highlights that only torture in the Kandahar province (under ANP control) was found to rise to the level of “systematic” because “UNAMA was unable to fully determine that the incidents of torture in [detention centres outside of Kandahar] were systematic in nature.”The report “found sufficiently credible and reliable incidents of torture that were corroborated but more investigation is needed to establish whether a pattern of torture was occurring systematically.”
UNAMA also noted 81 complaints of disappearances of people taken into ANP custody. As of the UNAMA Report date, none of the 81 people have been located. UNAMA also received reports that a large number of unidentified bodies, including four with gunshot wounds, one with stab wounds, and one in handcuffs, were recovered by the ANP within Kandahar province. Multiple sources interviewed alleged that, “following arrest, some detainees may have been killed while in police custody.” However, UNAMA does not definitively accuse the ANP of responsibility for these deaths.
Afghan National Army
UNAMA states that 13 out of 34 detainees reported torture or ill-treatment by the Afghan National Army (ANA) before being transferred to NDS or ANP. The report notes that there is an Army “internal accountability framework” in place that provides a check against torture. But while there has been one prosecution of an ANA officer for abusing a detainee in 2011, “the current internal accountability mechanism is not an effective deterrent against torture as the practice occurs with few cases pursued through the military court.”
Afghan Local Police
The “Afghan Local Police (ALP) programme” was implemented by the Afghan government to “conduct security missions in villages,” but ALP members “have no role in or powers of law enforcement and lack the authority to arrest and detain.” Nevertheless, the ALP is allowed to hold people temporarily, and that power “is not defined in scope or timeframe.”
UNAMA reports that 10 out of 12 ALP detainees “had been tortured or ill-treated.” Although the government has taken steps to ensure broad oversight over the ALP program, UNAMA is nevertheless concerned about whether the respect for human rights by ALP members will improve in the future, since “local elders” believe “the 21-day basic training package ALP currently receives is not sufficient.”
Afghanistan Addresses Torture and Ill-Treatment After a 2011 UNAMA Report
Following a previous 2011 UNAMA report that initially highlighted problems of torture, the NDS and the Afghan Ministry of Interior carried out training programs aimed at preventing detainee abuse, increased investigations into detainee abuse, and created a Human Rights Department within NDS. However, a lack of accountability still exists since “no alleged perpetrators of detainee ill-treatment have been identified,” nor have there been any prosecutions of those responsible. These initiatives have “produced only marginal improvements in reducing the use and prevalence of torture.”
UNAMA maintains that the culture of torture that exists in Afghan detention facilities can only be combated by “creating a culture of accountability and humane treatment of detainees.” Without such a culture of accountability, officials will continue to use torture to obtain confessions. The 2011 UNAMA report found that “judicial authorities rely almost exclusively on confessions of guilt from defendants as the basis for a prosecution in court.”
Defeating the culture of torture can be accomplished, UNAMA argues, by implementing a monitoring program that is fully supported even after “international military presence has withdrawn from Afghanistan.” UNAMA favors the retraining of police and holding judges and prosecutors accountable for “failing to dismiss evidence and confessions gained through torture.”
Impact of the 2013 Report
The UNAMA report had significant impact even before its official publication. In a letter dated January 11, 2013, General John R. Allen, the commander of the International Security Assistance Force (ISAF) in Afghanistan, suspended the transfer of detainees to the 34 facilities that the report cited for abuse. General Allen further highlighted the extensive efforts ISAF has taken to stem any detainee abuse.
The UNAMA report additionally contains the official Afghanistan government response, which rejects the findings, and claims the levels of torture in the report are “exaggerated.” The government also rejects the term “systematic torture” as “exaggerated” and “nonacademic,” since the report, the government charges, “does not provide a specific definition” of the term. Overall, the Government response highlights the perceived deficiencies in the UNAMA report, while insisting that conditions are improving to prevent any detainee mistreatment.
However, on February 11, 2013, “[a]n Afghan government panel … acknowledged widespread torture of detainees, after a two-week investigation of a United Nations report citing rampant abuses.” Even though this response was the “first formal acknowledgment by Afghan officials of a widespread problem with abuse,” the Afghan government panel still rejected the argument that the evidence amounts to “systematic torture.”
Human rights advocates view this panel admission “as an important first step” in stopping torture, but remain doubtful about whether torture will decrease without the government taking more substantive steps. Heather Barr, an Afghanistan researcher for Human Rights Watch, offered a view similar to that of the UNAMA report: “[t]here needs to be the message that people who torture will be fired or demoted – otherwise, there’s no incentive to do the right thing.”
The UNAMA Report and the United States
US responsibility remains the biggest question mark in this report. First, how much knowledge did the US have that at (at least) 34 detention sites under Afghan control, torture was occurring on a consistent basis? As previously stated, UNAMA does not suggest that the Afghan government sanctioned torture, but torture became an institutional policy rather than isolated incidents.
If systematic torture was an institutional policy in these facilities under Afghan control, then the Afghan government failed to oversee proper standards in those facilities. But the US is similarly implicated for its failure to implement safeguards to effectively monitor Afghan facilities to which detainees might be transferred. General Allen’s letter indicated that the US has halted all transfers to the 34 facilities listed, but that fact raises more questions than it answers. Did the US originally transfer detainees to all 34 facilities? Did the US know about the allegations of torture, and if so for how long, while still sending detainees to those locations?
Just as important, is the US response sufficient to stop torture? Is the US now going to monitor those 34 facilities in some way, and how? In his response, General Allen explained that the ISAF has “aggressively pursued a solution” to increase accountability. These remedial measures include a “commission composed of leaders from the NDS, the AIHRC [Afghanistan Independent Human Rights Commission], and ISAF to investigate allegations and conditions in [certain] NDS Departments.” Further, the ISAF has “formally requested that the Ministry of Interior (MOI) investigate the allegations made against the ALP within this report, and will monitor the results of that investigation.”
However, more questions need to be answered. Specifically, what is going to happen to the detainees in all 34 facilities? Will they be allowed a transfer to the non-implicated facilities? If the US transfers other detainees in the future to facilities not implicated, can those facilities send those detainees to the restricted 34? These are very important issues that are now raised by General Allen’s letter. The US responses so far are not an adequate solution. For one thing, it is not certain that those responsible for the past torture will be held accountable, or at the very least, be barred from other positions of similar authority. Additionally, General Allen suggests that ultimately an adequate solution must be fully implemented from within the Afghan government and not just by outside forces. What has been done so far by both the Afghan government and the ISAF is certainly only the beginning of a solution to a very difficult problem. In the meantime, the fate of hundreds of detainees hangs in the balance.
 United Nations Assistance Mission in Afghanistan (UNAMA), Treatment of Conflict-Related Detainees in Afghan Custody: One Year On 19, 83 (Jan. 2013), available at http://www.unhcr.org/refworld/docid/50ffe6852.html.
 Id. at 2-3 (footnote omitted).
 Id. at 3.
 Id. at 3 n.32; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1(1), G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), 1465 U.N.T.S. 85, entered into force June 26, 1987, available at http://www.unhcr.org/refworld/docid/3ae6b3a94.html.
 Id. at vii.
 Id. at viii.
 Id. at 106 (Response of Islamic Republic of Afghanistan on Draft Annual Report of United Nations Assistance Mission in Afghanistan (UNAMA)) [hereinafter Afghanistan Response].
 UNAMA, supra note 1, at viii.
 Id. at 19.
 Id. at 4.
 Id. at 1. For further discussion about the past use of torture in Afghanistan, see Mike Yang Zhang, The Afghan Review Structure for Detainees After the United States-Afghanistan Detainee Transfer (Part 2), Detained by U.S. (Mar. 11, 2013).
 UNAMA, supra note 1.
 Id. I should note that the lists of torture techniques in the text here often use the terminology of the UNAMA Report.
 Id. at 33-34, 38-40.
 Id. at 29.
 Id. at 40.
 Id. at 12, 40.
 Id. at 46.
 Id. at 53.
 Id. at 61.
 Id. at 62.
 Id. at 63.
 Id. at 91 (citing United Nations Assistance Mission in Afghanistan (UNAMA) & Office of the High Commissioner of Human Rights (OHCHR), Treatment of Conflict-Related Detainees in Afghan Custody (Oct. 2011), http://www.unhcr.org/refworld/docid/4e93ecb22.html, and describing it as having been carried out “in response to ongoing concerns about ill-treatment of conflict-related detainees from communities across Afghanistan and in consultation with the Government of Afghanistan”).
 UNAMA, supra note 1, at 65.
 Id. at 83.
 Id. at 17.
 Id. at 72.
 Id. at 83.
 Id. at 19.
 Id. at 125 (Letter from Gen. John R. Allen, Commander, International Security Assistance Force/United States Forces – Afghanistan, to Jan Kubis, Special Representative of the Secretary General, UNAMA (Jan. 11, 2013)) [hereinafter Allen Letter].
 Id. at 125-26.
 Afghanistan Response, supra note 7, at 106.
 Douglas Schorzman, Government Panel in Afghanistan Confirms Widespread Torture of Detainees, N.Y. Times (Feb. 11, 2013), http://www.nytimes.com/2013/02/12/world/asia/afghan-panel-confirms-torture-of-detainees.html?_r=0.
 Allen Letter, supra note 47, at 126.
 See id.