Appendix 3
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND
AND
THE GOVERNMENT OF THE ISLAMIC REPUBLIC OF
AFGHANISTAN
CONCERNING
TRANSFER BY THE UNITED KINGDOM ARMED FORCES
TO AFGHAN AUTHORITIES OF PERSONS DETAINED IN AFGHANISTAN.
CONTENTS
Paragraph No Heading
INTRODUCTION
PARA 1 DEFINITIONS
PARA 2 PURPOSE AND SCOPE
PARA 3 RESPONSIBILITY OF PARTICIPANTS
PARA 4 ACCESS TO DETAINEES
PARA 5 RECORD KEEPING AND NOTIFICATION OF
CHANGE
PARA6 USE OF THE DEATH PENALTY
PARA 7 DURATION AND TERMINATION
INTRODUCTION
This Memorandum of Understanding records the arrangement
reached between the Government of the United Kingdom of Great
Britain and Northern Ireland ("the United Kingdom")
and the Government of the Islamic Republic of Afghanistan ("Afghanistan"),
hereinafter referred to jointly as the Participants, in the event
of a transfer by the United Kingdom Armed Forces to Afghan authorities
of persons detained in Afghanistan.
HAVING REGARD to the need to respect basic standards
of international human rights law such as the right to life, and
the prohibition against torture and cruel, inhumane and degrading
treatment:
HAVING ACCEPTED the MOU for UK Forces deployed in
Afghanistan dated 30 September 2005:
HAVE REACHED the following understandings:
PARAGRAPH 1 - DEFINITIONS
1.1 For the purposes of this Memorandum the following
definitions apply:
a. "United Kingdom Armed Forces" (UK
AF) means the Armed Forces of the United Kingdom of Great Britain
and Northern Ireland when deployed to the territory of the Islamic
Republic of Afghanistan. The term includes all military personnel
together with their ships, aircraft, vehicles, stores, equipment,
communications, ammunitions, weapons and provisions together with
the civilian components of such forces, as well as all air, sea
and surface movement resources, together with their supporting
services, required to deploy the forces mentioned above;
b. "Area of Operations" means the sovereign
territory of the lslamic Republic of Afghanistan including its
airspace;
c. "Detention" refers to the right
of UK forces operating under ISAF to arrest and detain persons
where necessary for force protection, self-defence, and accomplishment
of mission so far as is authorised by the relevant UNSCRs.
PARA 2 - PURPOSE AND SCOPE
2.1 The purpose of this Memorandum is to:
· Establish
the responsibihties, principles and procedures in the event of
the transfer by the UK AF to Afghan authorities of persons detained
in Afghanistan.
· Ensure that
Participants will observe the basic principles of international
human rights law such as the right to life and the prohibition
on torture and cruel, inhumane and degrading treatment pertaining
to the treatment and transfer of persons by the UK AF to Afghan
authorities and their treatment.
PARA 3 - RESPONSIBILITIES OF PARTICIPANTS
3.1 The UK AF will only arrest and detain personnel
where permitted under ISAF Rules of Engagement. All detainees
will be treated by UK AF in accordance with applicable provisions
of international human rights law. Detainees will be transferred
to the authorities of Afghanistan at the earliest opportunity
where suitable facilities exist. Where such facilities are not
in existence, the detainee will either be released or transferred
to an ISAF approved holding facility.
3.2 The Afghan authorities will accept the transfer
of persons arrested and detained by the UK AF for investigation
and possible criminal proceedings. The Afghan authorities will
be responsible for treating such individuals in accordance with
Afghanistan's international human rights obligations including
prohibiting torture and cruel, inhumane and degrading treatment,
protection against torture and using only such force as is reasonable
to guard against escape. The Afghan authorities will ensure that
any detainee transferred to them by the UK AF will not be transferred
to the authority of another state, including detention in another
country, without the prior written agreement of the UK.
PARA 4 - ACCESS TO DETAINEES
4.1 Representatives of the Afghan Independent
Human Rights Commission, and UK personnel including representatives
of the British Embassy, members of the UK AF and others as accepted
between the Participants, will have full access to any persons
transferred by the UK AF to Afghan authorities whilst such persons
are in custody. The International Committee of the Red Cross and
Red Crescent (ICRC) and relevant human rights institutions with
the UN system will be allowed to visit such persons.
4.2 UK personnel, including members of the UK
AF will have full access to question any persons they transfer
to the Afghan authorities whilst such persons are in custody.
PARA 5 - RECORD KEEPING AND NOTIFICATION OF CHANGE
5.1 The UK AF will notify the ICRC and the Afghan
Independent Human Rights Commission, normally within 24 hours,
and if not, as soon as possible after of when a person has been
transferred to Afghan authorities. The Afghan authorities will
be responsible for keeping an accurate account of all persons
transferred to them by the UK AF, including, but not limited to;
a record of any seized property, the detainee's physical condition
following initial detention, record of transfer to an alternative
holding facility and record of any prosecution status. Records
should be available upon request.
5.2 The United Kingdom will be notified prior to
the initiation of criminal proceedings involving persons transferred
by the UK AF and prior to the release of a detainee. The United
Kingdom will also be notified of any material change of circumstance
regarding the detainee including any instance of alleged improper
treatment.
PARA 6 - USE OF THE DEATH PENALTY
6.1 No person transferred by the UK AF to Afghan
authorities will be subject to the execution of the death penalty.
PARA 7 - DURATION AND TERMINATION
7.1 This Memorandum will have effect upon the
date of the later signature by the relevant authorities and will
remain in effect unless terminated by mutual consent or by either
Participant giving not less than six months' notice in writing
to the other Participant.
7.2 In the event that this Memorandum is terminated,
the relevant provisions will continue to be applied in respect
of any matters not resolved at the time of termination.
7.3 Any dispute concerning the interpretation
or application of this Memorandum of Understanding will be resolved
exclusively by negotiations between the Participants.
The foregoing record represents the understandings
reached between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Islamic
Republic of Afghanistan upon the matters referred to therein.
Signed in Kabul on 23 April 2005, in duplicate in
English and Dari languages. For the purposes of interpretation
the English version is authoritative.[78]
| For the Secretary of State for Defence for the Government of the United Kingdom of Great Britain and Northern Ireland
| | For the Minister of Defence for the Government of the Islamic Republic of Afghanistan
|
78 The Memorandum was actually signed on 30 September
2006; see HC Deb, 8 January 2006, col 77W Back
| 
