APPENDIX 8
Letter from the Clerk of the Committee
to Philip Spoerri, Legal Adviser, International Committee of the
Red Cross and reply
In October three members of the International
Development Committee of the House of Commons visited Kabul in
connection with an inquiry on Afghanistan: the transition from
humanitarian relief to development assistance. The committee was
due to meet ICRC in Kabul but unfortunately the meeting had to
be canceled. Ann Clwyd MP, a member of the committee, has a particular
interest in prisoners in Afghanistan and has supplied me with
a number of written questions. It would be of great help to the
committee if you could give a written reply to the questions.
We are already in the process of compiling our report so I would
be extremely grateful for a speedy response if at all possible.
PRISONS
1. Given that ICRC representatives regularly
meet with detainees in Afghanistan and Cuba, what concerns do
they raise most frequently? Can it be assumed that a major issue
raised is lack of process, that is, the fact that they are held
indefinitely, and that no formal determination has been made about
their detention, their release, and the applicable legal regime?
What other issues (basic humanitarian issues, conditions of detention,
or other) are being raised?
2. The UN mission, the Afghan government, and
some human rights NGOs have interviewed family members who claim
that some of the detainees are not even Taliban soldiers, or members
of al Qaeda, and instead are young men who were mistakenly picked
up by anti-Taliban fighters and the US military, and were essentially
wrongly labeled. Is it the ICRC's understanding that at least
some of the detainees in Afghanistan or Cuba are being mistakenly
detained?
3. Is it the understanding of the ICRC that
some of the detainees in Afghanistan or Cuba are Taliban conscripts,
ie, involuntarily conscripted into the Taliban army?
4. How would the ICRC characterize the relationship
between the US Government and ICRC with regard to detainees seized
in Afghanistan?
5. How would the ICRC characterize the level
or quality of compliance by the US Government with the Third and
Fourth Geneva Conventions and Protocol I?
6. Besides the Kandahar military base, the Bagram
air base, and Guantanamo Bay, Cuba, are there other detention
sites of which the ICRC is aware at which the US is holding detainees
who were seized in Afghanistan?
7. Approximately how many other detainees fall
under the ICRC mandate in Afghanistan; in other words, how many
other detainees are there in Afghanistan, held by Afghan forces
or the Afghan government who fall under the ICRC mandate?
8. How would the ICRC characterize the relationship
between the Afghan Government and ICRC with regard to detainees
seized in Afghanistan?
9. How would the ICRC characterize the level
or quality of compliance by the Afghan government with the Third
and Fourth Geneva Conventions and Protocol I?
10. Has the ICRC been denied access by the US
Government or the Afghan government to alleged Taliban or al Qaeda
detainees at any detention sites?
MASS GRAVES
1. Does the ICRC have information which could
assist in the UN investigation of the mass graves in Northern
Afghanistan, from prisoners interviewed and/or the site itself,
and does the ICRC envisage itself helping in any such investigation?
Clerk of the Committee
28 November 2002
Dear Mr Doherty,
In your letter of 28 November 2002 you have
raised a number of questions relevant to the inquiry on Afghanistan
carried out by the International Development Committee of the
House of Commons.
It is unfortunate for me to state that the questions
raised regard entirely information of strictly confidential nature,
mostly relating to ICRC detention visits in Afghanistan and Cuba—information
which the ICRC in accordance with its working principles may only
share with the directly concerned authorities (questions 1. to
10.).
In pursuit of its mandate, the ICRC adheres
to certain fundamental principles, among them: impartiality, neutrality
and independence. Application of these principles has proved particularly
important in assuring the ICRC's continued access to places and
victims of armed conflict. The ICRC's working methods, in particular
the respect ofastrict confidentiality, are both accepted and expected
by States and the victims of conflict. Such confidentiality extends
to all oral and written communications, including but not limited
to detention and internment visit reports, between the ICRC and
parties to conflict. Confidentiality is also crucial for the security
of ICRC staff in the field. For these reasons, ICRC personnel
are forever bound by their pledges of discretion.
The question regarding mass graves in Northern
Afghanistan in fact also relates to information which would stem
from ICRC detention activities and is therefore also of confidential
nature. Although at this stage the ICRC has not yet reached a
position on whether or how it could assist in a UN investigation,
the ICRC commitment to confidentiality will most likely exclude
or limit the type of help the ICRC can provide to such an investigation—particularly
a context where the ICRC continues to pursue its detention activities.
I believe that it is important to point out
that our lack of cooperation with regard to investigations of
serious violations of international humanitarian law should not
be viewed as hostility or indifference to the importance of such
tasks. In fact ICRC shares a common goal with such bodies and
mechanisms designed to punish those who have violated the law
or deter future violations, namely assuring respect for international
humanitarian law. To this extent, the ICRC strongly supports the
existence of mechanisms for the repression of violations of international
humanitarian law. But because the ICRC also has a mandate to assist
and protect victims, its role should be seen as complementary,
but not identical to that of investigative or punitive bodies.
The role and activities of the ICRC and the tasks of an investigative
body cannot in practice be undertaken by the same body.
In response to the questions raised, I would
nevertheless like to seize this opportunity to inform the International
Development Committee on the ICRC's legal qualification of the
conflict in Afghanistan and some implications thereof.
It may be recalled in particular that the ICRC
regarded the four Geneva Conventions of 12 August 1949 as being
fully applicable to the armed conflict which commenced in Afghanistan
on 7 October 2001. The ICRC had therefore qualified this conflict
as an international armed conflict.
Following the convening of the Loya Jirga in
Kabul in June 2002 and the subsequent establishment of an Afghan
transitional government on 19 June 2002? which not only received
unanimous recognition by the entire community of States but could
also claim broad-based recognition within Afghanistan through
the Loya Jirga process the ICRC has changed its initial qualification
as follows: The ICRC no longer views the ongoing military operations
in Afghanistan directed against suspected Taliban or other armed
groups as an international armed conflict.
Hostilities conducted by United States and allied
forces against groups such as the Taliban and al-Qaeda in Afghanistan
after 19 June 2002 are therefore governed by the rules applicable
to situations of non-international armed conflict, since the military
operations in question are being carried out with the consent
of the government of a recognized sovereign State, the Islamic
State of Afghanistan.
The rules of international humanitarian law
applies to the successive stages of the conflict are therefore
the following:
Whereas the legal framework applicable
to the international armed conflict in Afghanistan from 7 October
2001 to 18 June 2002 was provided by the Third and Fourth Geneva
Conventions, the continuing hostilities from 19 June 2002 onwards
are governed by Article 3 common to the four Geneva Conventions
and by the customary international law applicable in non-international
armed conflicts.
Some important legal consequences
of the re-qualification of the conflict concern persons arrested
by the United States or allied forces in Afghanistan or elsewhere
in connection with the conflict and are still held in detention:First,
those persons should have their legal status determined on an
individual basis.
(To recall that the ICRC in a
press release on 9 February 2002 which referred to a White House
policy statement of 7 February 2002 had stated among other the
following:
International Humanitarian Law
foresees that the members of armed forces as well as militia associated
to them which are captured by the adversary in an international
armed conflict are protected by the Third Geneva Convention. There
are divergent view between the United States and the ICRC on the
procedures which apply on how to determine that the persons detained
are not entitled to prisoner of war status. The United States
and the ICRC will pursue their dialogue on this issue.)
Secondly, the Third and Fourth
Geneva Conventions no longer provide a legal basis for continuing
to hold without charge persons captured in Afghanistan between
7 October 2001 and 19 June 2002. That being said, it is understood
that international humanitarian law grants the Detaining Power
the right to try persons, including prisoners of war, suspected
of having committed war crimes or any other criminal offence prior
to or during the hostilities. Persons captured in Afghanistan
before 19 June 2002 meanwhile continue to benefit from the protection
of the Third and Fourth Geneva Conventions until their release
and repatriation.
Thirdly, persons detained in connection
with the non-international armed conflict in Afghanistan (persons
arrested after 19 June 2002) remain protected by the basic guarantees
enshrined in Article 3 common to the four Geneva Conventions,
including universally recognized judicial guarantees.
I regret that it has not been possible to provide
more ample information. I would nevertheless which to draw your
attention to the ICRC update on its Guantanamo activities (available
on ICRC website—http://www.icrc.org). You will find
the update attached to this message1.
Please do not hesitate to contact me for any
further information and clarification.
Philip Spoerri
ICRC legal adviser
20 December 2002
1 Not printed.
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