As recently reported by Mike Yang Zhang, a United Nations report released on January 20, 2013 revealed “systematic torture” in many Afghan-controlled detention facilities. Shortly after the U.N. report was released, a delegation was assigned by President Karzai to investigate the allegations of torture. After a two-week investigation, the government panel “acknowledged widespread torture of detainees.” The U.N. report proposed recommendations for eliminating these instances of torture, not only to the government of Afghanistan, but also to “Troop Contributing Countries.” However, in light of this recent activity, a serious question has yet to be answered: how does the United States deal with the Afghan torture problem while present in Afghanistan?
This commentary first examines the duties the U.S. has under international law regarding the torture of detainees. These duties, as we will see, include the obligation not to turn over detainees to any country where there are substantial grounds for believing that they will be tortured. We will also look at what the substantial grounds are that must be present to believe that a detainee will be tortured. Then, we will examine the security agreements that the U.S. and Afghanistan have entered into and how they relate to detainee torture. Furthermore, we will compare the recent U.S./Afghan experience with detainee torture to a similar experience Canada and Afghanistan went through years ago. Finally, we will examine what steps the U.S. should be required to take when presented with the risk of detainees being tortured in Afghan prisons in the future.
When discussing international law and torture, it is important to start with the Third Geneva Convention. This Convention is part of “the body of international law that regulates the conduct of armed conflict and seeks to limit its effects.” According to the Third Geneva Convention,
[p]risoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.
Plainly, this duty includes the prohibition of torture. Furthermore, as Detained by US has observed,
[P]risoners of war may only be transferred to a State party to the Convention. However, if the transferring State is notified that the transferee State is failing to carry out the provisions of the Convention, the transferring State must request the return of the prisoners (Article 12).
Both the United States and Afghanistan are parties to the Third Geneva Convention. However, the “[U.S.] has concluded that detainees in Afghanistan are not entitled to protections under the Third Geneva Convention because such detainees are not considered prisoners of war.”
Another important provision in the international law landscape is Additional Protocol I of the Geneva Convention, specifically Article 75 of that protocol. This article “sets forth certain minimum protections for individuals detained in international armed conflicts who do not qualify for more favorable treatment as Prisoners of War under the Third Convention.” The U.S. has signed Additional Protocol I, but has not ratified it; Afghanistan, on the other hand, has signed and ratified this protocol. The “[f]undamental guarantees to detainees under Article 75 include a right not to be … tortured, either physically or mentally, or subjected to ‘humiliating and degrading treatment.’” However, the Bush Administration took the position that only conflicts between “High Contracting Parties” to the Geneva Conventions were “international armed conflicts”; therefore, our conflict with Al Qaeda, in particular, was not governed by the Geneva provisions dealing with international armed conflict.
Despite the U.S.’s assertion that detainees in Afghanistan are not entitled to protections under the Third Geneva Convention because such detainees are not considered prisoners of war, and even if the war in Afghanistan is not an international armed conflict, Common Article 3 of the Geneva Conventions provides additional protections. This article is the first of its kind to cover situations of non-international armed conflict under international law. In Hamdan v. Rumsfeld, the Supreme Court approved the statements in the “official commentaries accompanying Common Article 3,” which make it clear that the article’s application should be “as wide as possible.” Common Article 3 requires that
[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely.”
It specifically prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” In Hamdan, the Supreme Court also concluded that “the U.S. conflict with al Qaeda, if it is to be seen as separate from our international armed conflict with the Taliban (the de facto rulers of Afghanistan in 2001), is a ‘non-international armed conflict.’ As such, the Court rejected President Bush’s contrary position stated in his February 7, 2002, memo,” which narrowed the applicability of Common Article 3.
While the Geneva Conventions are of great importance, the most directly pertinent agreement on torture that the U.S. and Afghanistan have signed and ratified is the Convention Against Torture (CAT). Article 3 of the CAT states that:
No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
As of the date of this commentary (May 28, 2013), the U.S. and Afghanistan are engaged in ongoing negotiations regarding the future of the U.S. military presence in Afghanistan and U.S. troops’ immunity from Afghan law while there. However, the two nations do share a series of agreements with one another that are of great significance. One of the most significant agreements between the two nations is the Status of Forces Agreement (SOFA). “SOFA’s are multilateral or bilateral agreements that generally establish the framework under which U.S. military personnel operate in a foreign country and how domestic laws of the foreign jurisdiction apply toward U.S. personnel in that country.” This agreement “establishes the rights and privileges of U.S. personnel present in a country in support of the larger security arrangement.” The SOFA between the U.S. and Afghanistan has been in place since 2003. However, the negotiations currently taking place are meant to create a “Bilateral Security Agreement” and a new SOFA to cover the period after 2014. While the U.S. and Afghanistan have yet to agree on any deal, the recent United Nations Assistance Mission in Afghanistan (UNAMA) report on torture in Afghan prisons may play a role in shaping the future SOFA between both nations, because the provisions of the SOFA should be compatible with both states’ obligations to prohibit and prevent torture.
It was reported on January 16, 2013, four days before the UNAMA report was released, that the U.S. military had suspended the transfer of detainees to some prisons in Afghanistan. Reportedly, this suspension was in response to “concern over continuing human rights abuses and torture,” reflecting information about to be made public in the UNAMA report. General John R. Allen, the International Security Assistance Force (ISAF) commander, “halted [the] transfer of detainees to all of the facilities named in the United Nations report because under international human rights law it is prohibited to transfer any detainee to a government where there are ‘substantial grounds for believing that he would be in danger of being subjected to torture,’” as Article 3 of the Convention Against Torture provides. The prohibition in Article 3 of the CAT leads to an obvious question: when are there substantial grounds to believe that someone will be tortured?
We are given some guidance on the definition of “substantial grounds” in the General Comment on the CAT by the United Nations Office of the High Commissioner for Human Rights. There, in the context of offering guidelines for consideration of individual complaints by the Committee on Torture provided for in the Convention, the Comment observes that “the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.” Finally, one of the questions the General Comment proposes to ask is whether “the State concerned [is] one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights?”
Another source to refer to when dealing with the meaning of “substantial grounds” is an “Understanding” on which the Senate conditioned its ratification of the Convention Against Torture (“Understanding”). This Understanding explains that “the United States understands the phrase, ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in Article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured.’” Unfortunately, while the Understanding does not run contrary to the General Comment on the CAT, the Understanding does not go any further into explaining what “more likely than not” means.
General Allen’s claim that there were substantial grounds for believing detainees would be in danger of being tortured seems to be consistent with the guidelines of the General Comment, as well as the U.S. Understanding. The January 16, 2013 news of the suspension of detainee transfers made clear that there were concerns about ongoing human rights abuses, as well as “allegations of torture by Afghan Local Police units.” This suspension was further supported after the release four days later of the U.N. report, which provided a detailed view of the systematic torture in the Afghan-controlled detention facilities. This report served as evidence of a State exhibiting a “consistent pattern of gross, flagrant, or mass violations of human rights,” and is certainly evidence of a risk that goes beyond mere suspicion. Based on this evidence, it could readily be concluded that detainees who were sent to these Afghan prisons before any corrective measures were taken were more likely than not to be tortured.
While the suspension of transfers appears to have been appropriate given the news of the U.N. report, a further question is raised: when can detainee transfers commence again?
This question is particularly important because the United States is under an obligation to hand over Afghan detainees to Afghanistan, as long as doing so does not subject them to mistreatment. As we have reported previously, a Memorandum of Understanding (MoU) was signed on March 9, 2012 between the U.S. and Afghanistan that required the United States to transfer its Afghan detainees to the control of the government of Afghanistan. Section 2, Article 5(b) of the MoU states that:
Afghanistan affirms that it has established an administrative detention regime under its domestic law which is: … (b) in compliance with Afghanistan’s international obligations with respect to humane treatment and applicable due process.
While the March 2012 MoU failed to achieve its ultimate goal, on March 24, 2013, a new MoU was announced. As I have written elsewhere, though the text of this new agreement is still unpublished, “it appears that the U.S. has finally ceded control of almost all detainees to Afghanistan.” Although the new MoU might be understood to imply that Afghan detainees are now no longer in danger of being subjected to torture, General Allen’s letter to the United Nations Assistance Mission in Afghanistan (UNAMA), included in UNAMA’s report, leaves open some important questions. General Allen’s letter, written on January 11, 2013, indicates that “ISAF suspended the transfer of detainees to the Afghan facilities identified in the report,” and that ISAF would be “implementing a process that will limit the transfer of detainees to a reduced number of certified Afghan detention facilities and increase the frequency of ISAF was taking steps to ensure that the U.S. does not transfer detainees to prisons where they are at risk of being tortured. After the Afghan government panel assigned by President Karzai confirmed the U.N. report of torture of detainees in its prisons, the panel proposed eleven recommendations for prevention of human rights violations in the future. However, despite these various steps by Afghanistan and the U.S., it remains unclear exactly what will happen to the detainees now held in the prisons identified by the U.N. report. Are there no longer substantial grounds for believing that Afghan detainees would be in danger of being subjected to torture conditions in these Afghan prisons? Can detainees transferred by the U.S. to one Afghan prison then be transferred to another one where torture is continuing? It would seem that none of the recommendations from UNAMA, General Allen, or the Afghan government panel definitively answer whether detainee transfers remain at risk of being suspended again based on “substantial grounds” for fearing they will be tortured in Afghan prisons.
We might also consider how other nations have dealt with transferring detainees to Afghan prisons when they have found “substantial grounds” to fear that those detainees would be tortured, as these examples will help answer the question of how the U.S. should deal with them. One such example comes from Canada, which in 2007 suspended the transfer of Afghan detainees immediately after an allegation of abuse of one prisoner was reported on November 5, 2007. Detainee transfers by Canada resumed around February 29, 2008, after military and government officials stated they were “confident” in the Afghan prison system. Some of the initiatives cited as the basis for the Canadian confidence in the Afghan prison system were “prison reform and training programs,” as well as over “two dozen visits to the detention facility in Kandahar” after the detainee transfer suspension, and the spending of $1.5 million on prison upgrades.
After examining the Canadian experience in suspending and then resuming the transfer of detainees to Afghan prisons, we must determine whether or not the U.S. has taken as effective corrective measures as the Canadians did before they resumed their detainee handovers – though we also have to keep in mind that Canada found it necessary to suspend transfers again after these 2007-08 events. As Mike Yang Zhang reported,
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.”
While U.S. efforts seem comparable to the effort Canada put forward between 2007 and 2008, only time will tell whether the U.S. has in fact responded effectively to the problems UNAMA identified.
Although the U.S. and Afghanistan have yet to agree on a new SOFA and Bilateral Security Agreement, the U.S should use these agreements to clarify its responsibilities in Afghanistan under the CAT beyond 2014. For example, the U.S. can clarify what circumstances are required to establish “substantial grounds” that a detainee is in danger of being subjected to torture. Also, if “substantial grounds” are found in Afghan prisons, the U.S. can outline what requirements need to be satisfied in order to establish that detainee transfers to Afghan custody may be resumed. This outline of requirements might include specific duties that the U.S. may undertake in making sure the government of Afghanistan complies with international law and the CAT. These requirements regarding what needs to be satisfied in order to support detainee transfers to Afghan custody may minimize political strife between both nations, and will establish a more stable relationship between U.S. troops and Afghan officials within Afghanistan beyond 2014.
 Mike Yang Zhang, Systematic Torture Continuing in Afghanistan, Detained by U.S. (May 26, 2013), http://www.detainedbyus.org/systematic-torture-continuing-in-afghanistan/.
 United Nations Assistance Mission in Afghanistan (UNAMA), Treatment of Conflict-Related Detainees in Afghan Custody: One Year On (Jan. 2013), available at http://www.unhcr.org/refworld/docid/50ffe6852.html.
 Alissa J. Rubin, Afghan Officials Criticize U.N. Report on the Abuse and Torture of Detainees, N.Y. Times (Jan. 25, 2013), http://www.nytimes.com/2013/01/26/world/asia/afghan-officials-decry-un-report-on-abuse-in-prisons.html?smid=tw-share.
 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?ref=asia&_r=1.
 UNAMA, supra note 2, at 24.
 DetainedByUS, General Introduction to International Law – Geneva Conventions III [hereinafter “DetainedByUS Geneva III”], http://www.detainedbyus.org/legal-resources/international-law/.
 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 6 U.S.T. 3316, art. 13 [hereinafter “Third Geneva Convention”].
 See also id. arts. 14 – 15.
 DetainedByUS Geneva III, supra note 6. See also Third Geneva Convention, supra note 7, at art. 12.
 DetainedByUS, General Introduction to International Law – Additional Protocols to the Geneva Conventions [hereinafter “DetainedByUS Additional Protocol”], http://www.detainedbyus.org/legal-resources/international-law/ – additional; see Memorandum from President George W. Bush to Vice President et al., Re: Humane Treatment of Taliban and al Qaeda Detainees, Feb. 7, 2002, available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977, 16 I.L.M. 1391, art. 75.
 DetainedByUS Additional Protocol, supra note 10.
 See Memorandum from President George W. Bush, supra note 10.
 DetainedByUS, General Introduction to International Law – Common Article 3 [hereinafter “DetainedByUS Common Article 3”], http://www.detainedbyus.org/legal-resources/international-law/ – common.
 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
 Id. at 631.
 Third Geneva Convention, supra note 7, art. 3.
 DetainedByUS Common Article 3, supra note 16.
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 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 [hereinafter “Convention Against Torture”], available at http://www.unhcr.org/refworld/docid/3ae6b3a94.html.
 Id. art. 3(1).
 Byron Zinonos, Immunity For U.S. Troops and Detention In Afghanistan, Detained by U.S. (May 28, 2013), http://www.detainedbyus.org/immunity-for-u-s-troops-and-detention-in-afghanistan/.
 R. Chuck Mason, Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?, Congressional Research Service (Mar. 15, 2012) (at “Summary” page), available at http://www.fas.org/sgp/crs/natsec/RL34531.pdf.
 Rod Nordland & Thom Shanker, U.S. Military Stops Sending Detainees to Some Afghan Prisons on Rights Fears, N.Y. Times (Jan. 16, 2013), http://www.nytimes.com/2013/01/17/world/asia/us-military-stops-sending-some-detainees-to-afghan-custody.html.
 Rubin, supra note 3.
 Convention Against Torture, supra note 22, art. 3(1).
 Office of the High Commissioner for Human Rights, General Comment No.1 – Implementation of Article 3 of the Convention in the Context of Article 22, United Nations (Nov. 21, 1997) [hereinafter “General Comment”], available at http://www.unhchr.ch/tbs/doc.nsf/0/13719f169a8a4ff78025672b0050eba1?Opendocument.
 U.S. Reservations, Declarations, and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990), available at http://www.lawfareblog.com/wp-content/uploads/2013/01/1990-US-Reservations-Declarations-and-Understandings-Convention-Against-Torture-and-Other-Cruel-Inhuman-or-Degrading-Treatment-or-Punishment4.pdf.
 Nordland & Shanker, supra note 28.
 Rubin, supra note 3; see UNAMA, supra note 2.
 General Comment, supra note 32.
 See, e.g., Zinonos, supra note 24.
 Memorandum of Understanding Between The Islamic Republic of Afghanistan and The United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, US-Afg. (Mar. 9, 2012) [hereinafter “MoU”], http://mfa.gov.af/en/news/7671.
 Id. § 2, art. 5(b).
 See, e.g., Zinonos, supra note 24.
 UNAMA, supra note 2, 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 125-126. See also Zhang, supra note 1.
 Fact-Finding Delegation Reports to President Karzai on UN Torture Allegations, Office of the President, Islamic Republic of Afghanistan (Feb. 10, 2013), available at http://www.noodls.com/view/828FAFF3E04FC15A3A4B5E983D1FCA05AEFB6389.
 See Zhang, supra note 1; Allen Letter, supra note 46, at 125-26.
 See Zhang, supra note 1.
 Allan Woods, Canada Halts Transfer of Afghan Detainees, Toronto Star (Jan. 24, 2008), http://www.thestar.com/news/canada/2008/01/24/canada_halts_transfer_of_afghan_detainees.html.
 Stephanie Levitz, Canada Resumes Transfer of Afghan Detainees, Toronto Star (Feb. 29, 2008), http://www.thestar.com/news/canada/2008/02/29/canada_resumes_transfer_of_afghan_detainees.html.
 Government of Canada, Backgrounder: Canadian Forces Release Statistics on Afghanistan Detainees, http://www.afghanistan.gc.ca/canada-afghanistan/news-nouvelles/2010/2010_09_22b.aspx.
 Zhang, supra note 1; see also Allen Letter, supra note 46, at 126.