Submission by The Redress Trust
SUMMARY OF
SUBMISSIONS
— UK Armed Forces in Afghanistan can
detain and arrest persons; such persons are transferred to the
Afghanistan authorities within 96 hours, or released, on the basis
of a Memorandum of Understanding (MOU) between the UK and Afghanistan
which purports to protect the human rights of the persons so transferred
against torture and ill-treatment.— Serious human rights
violations, including torture and ill-treatment, are widespread
in Afghanistan prisons and detention centres; the UK must abide
by the absolute prohibition against refoulement and not transfer
persons in its custody where there are substantive grounds for
believing the person faces a real risk of torture.— The
MOU is not an acceptable mechanism to use in fulfillment of the
UK's non-refoulement obligation; the UK should refrain from transferring
detainees; it should also take more steps to assist the Afghan
authorities to bring about an environment where there is in reality
no longer a real risk of torture.
INTRODUCTION
1. This submission is put forward in response
to the Foreign Affairs Committee's (FAC) call for evidence in
respect of its new inquiry into foreign policy aspects of the
UK's relations with Afghanistan.
2. The Redress Trust (REDRESS) is an international
non-governmental organisation with a mandate to assist survivors
of torture to access adequate and effective remedies and reparation
for their suffering. Since its establishment in December 1992,
it has accumulated a wide expertise on the rights of victims of
torture both within the United Kingdom and internationally.[110]
3. The submission relates to the UK's contribution
to tackling problems relating to human rights within Afghanistan,
and deals with the practice and policy of the UK in transferring
detainees to the Afghan authorities in the context of the realities
of the Afghanistan detention, prison and legal system.
4. UK forces in Afghanistan form part of
the International Security Assistance Force (ISAF) whose latest
UN Security Council mandate was extended on 22 September 2008.[111]
Based on a 2003 North Atlantic Council's decision, NATO has "strategic
command, control and coordination" of the ISAF.[112]
The original 2001 UN Security Council Resolution authorising the
role of ISAF in Afghanistan stressed that "all Afghan forces
must adhere strictly to their obligations under human rights law
and ... under international humanitarian law".[113]
UK POLICY ON
DETENTION AND
TRANSFER OF
DETAINEES
5. The UK Government states that: "Afghanistan's
law of Prisons and Detention Centres provides for the respect
of human rights and outlines minimum standards for detention.
The prison authorities are also bound by Afghanistan's international
obligations, most notably the International Covenant on Civil
and Political Rights [ICCPR] and the UN Convention against Torture
and Other Cruel, Inhuman And Degrading treatment or Punishment
[UNCAT]. Nevertheless conditions in prisons are basic. We are
working closely with the authorities to improve facilities to
meet UN minimum standards. We are also training prison guards
in humane treatment and proper registration of those being held".[114]
6. ISAF troops can arrest and detain persons,
where necessary, for force protection, self-defence, and to fulfil
the ISAF mission as set out in UN Security Council resolutions;
ISAF puts a limit of 96 hours on detention by ISAF troops, within
which time detainees should either be released or transferred
to the Afghan authorities.[115]
7. On 30 September 2006[116]
the UK signed a Memorandum of Understanding (MOU) with Afghanistan
concerning the transfer by the UK Armed Forces to Afghan authorities
of persons detained in Afghanistan; the UK is "confident
that the human rights of detainees handed over by UK forces are
not breached and they have access to sufficient food and clean
water".[117]
8. The MOU states that detainees will be
transferred to Afghanistan authorities at the earliest opportunity
where suitable facilities exist and where such facilities are
not in existence the detainee will be released or transferred
to an ISAF approved facility;[118]
the target of 96 hours derives from NATO policy.[119]
9. The MOU also states that all detainees
will be treated by the UK Armed Forces in accordance with applicable
provisions of international human rights law.[120]
The MOU states further that the responsibility for the treatment
of detainees so transferred, including the prohibition against
torture and ill-treatment and protection against torture, is the
responsibility of the Afghan authorities in accordance with its
international human rights obligations;[121]
the Afghan Independent Human Rights Commission (AIHRC) and UK
personnel (including Embassy representatives and members of the
UK's Armed Forces) will have full access to such transferees while
they are in custody; the International Committee of the Red Cross
(ICRC) and relevant UN human rights institutions will be allowed
to visit them;[122]
the UK will notify the ICRC and the AIHRC within 24 hours of transfers;[123]
the UK will be notified prior to the initiation of any criminal
proceedings and prior to any release, as well any allegations
of improper treatment;[124]
no transferee will be subject to the death penalty.[125]
UK OBLIGATIONS AGAINST
REFOULEMENT
10. The UNCAT sets out 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".[126]
The European Court of Human Rights (ECtHR) has held that the principle
of non-refoulement is an inherent and indivisible part of the
absolute prohibition of torture as without it any other approach
would be "contrary to the spirit and intention of [Article
3 of the European Convention on Human Rights which prohibits torture]".[127]
11. The absolute prohibition imposes a negative
duty on states to refrain from torturing and also a range of positive
obligations including the obligation to "prevent such acts
by not bringing persons under the control of other states if there
are substantial grounds for believing that they would be in danger
of being subjected to torture".[128]
The requirement in the UNCAT's Article 2(1) to take "effective
legislative, administrative, judicial or other measures to prevent
acts of torture" must equally encompass the absolute principle
of non-refoulement[129]
otherwise it would mean that the absolute principle of non-refoulement
may not be "practical" and "effective".[130]
12. The FCO guidance note on MOUs states
that "an MOU records international "commitments",
but in a form and with wording which expresses an intention that
is not to be legally binding".[131]
Their use has become contentious since states, including the UK,
began trying to use them to mitigate risks of torture and other
ill-treatment that would otherwise prevent the transfer of people,
especially terrorist suspects.
13. In the leading ECtHR case of Chahal
v United Kingdom[132]
the UK attempted to deport Mr Chahal to India, arguing that the
risk of torture or ill-treatment should be balanced against the
risk he posed to UK national security, but the ECtHR disagreed.[133]
The UK also sought to rely on the Indian Government's assurance
to mitigate against the risk facing Mr Chahal, but the ECtHR held:
"... the Court is not persuaded that the ... assurances would
provide Mr Chahal with an adequate guarantee of safety".[134]
14. The UK has argued that article 3 of
the UNCAT is not applicable to detainees transferred from UK detention
in Afghanistan to the Afghani authorities since these suspects
are subject to the jurisdiction of that country—transfer
was not a question of extradition, expulsion or deportation and
thus article 3 is not applicable;[135]
however, taking into account the purpose of the absolute prohibition
against refoulement, the term "another State" should
in fact be interpreted as referring to any transfer of a person
from one State jurisdiction to another "otherwise ... the
UK could easily circumvent [its] obligations by transferring suspected
terrorists or other individuals first to their own detention facilities
in|Afghanistan and then handing them over to the domestic authorities
without having to asses any risk of torture".[136]
15. In relation to the UK therefore the
Committee against Torture has recommended that it "should
apply articles 2 and 3, as appropriate, to transfers of a detainee
within [its] custody to the custody whether de facto or de jure
of another State".[137]
16. Instance of torture of detainees transferred
by the Canadians are dealt with in paragraphs 26-27 below; in
these regards the Canadian Federal Court of Appeals recently ruled
that the Charter of Rights and Freedoms does not apply to Afghan
detainees in the custody of Canadian ISAF units and could not
be used to prevent their transfer;[138]
that case is being appealed to the Canadian Supreme Court.[139]
However, the UK House of Lords confirmed in 2007[140]
that the reach of both the Human Rights Act 1998 and the European
Convention on Human Rights extends to persons in UK custody in
Iraq.[141]
17. A very recent decision in the Court
of Appeal[142]
concerned the transfer of two persons held by the UK in Iraq to
the Iraqi authorities for trial for war crimes. The Court declined
to halt the transfer. The particular factual and legal issues
are and were case-specific to Iraq and the detailed history of
the men's detention, involving inter alia the changing
status of UK forces in that country, their mandate which was due
to expire at the end of 2008, the basis on which the UK had custody,
death penalty considerations, jurisdictional matters, conflict
between international law norms, and other aspects. The question
of refoulement to torture was only touched on in relation
to whether the imposition of the death penalty was compatible
with norms of customary international law, with the court concluding
that it was in "no position whatever to arrive at any overall
conclusion" on this aspect.[143]
18. Furthermore, after the Court of Appeal's
decision in the above case the ECtHR granted a request from the
UK lawyers concerned that "[the men] should not be transferred
or removed from the custody of the United Kingdom until further
notice";[144]
however, although the UK Government received notification of this
from the ECtHR the men were subsequently transferred to the Iraqi
authorities.
19. It is submitted that the above case
does not alter the UK's non-refoulement obligations in Afghanistan
and does not constitute judicial endorsement of the MOU as a mechanism
for fulfilment of these obligations.
TORTURE IN
AFGHANISTAN
20. Torture, ill-treatment and the abuse
of human rights generally in Afghanistan is a serious and widely
recognised problem, as confirmed by the US Department of State's
latest report which states that "the country's human rights
record remained poor ... Human rights problems continued, including
extrajudicial killings; torture; poor prison conditions; official
impunity; prolonged pretrial detention ... [T]here were instances
in which members of the security forces acted independently of
government authority".[145]
21. Instances of torture and killings have not
been effectively investigated; such abuses involve government
officials, local prison authorities, police chiefs, and tribal
leaders; security forces continue to use excessive force, including
beating and torturing civilians, and the use of torture of detainees
by local authorities in Herat, Helmand and Badakhshan have been
reported; torture and abuse includes pulling out fingernails and
toenails, burning with hot oil, beatings, sexual humiliation,
and sodomy.[146]
22. In 2008 the UN Secretary-General released
a report noting that cases of torture of detainees held by the
Afghan authorities continue to be reported and that the absence
of effective oversight of the National Directorate for Security
(NDS) is of particular concern.[147]
23. The former UN High Commissioner for
Human Rights has stated that "on the issue of detention,
including the transfer of detainees by international forces to
their Afghan counterparts, I have shared my concerns regarding
the treatment of detainees with the Government, ISAF and representatives
of contributing states. Transfers to the National Security Directorate
(NDS) are particularly problematic, given that it is not a regular
criminal law enforcement body and operates on the basis of a secret
decree".[148]
24. There has also been a report by a former
SAS soldier about hundreds of Iraqis and Afghans captured by British
and American special forces rendered to prisons where they faced
torture; in February 2008 Ben Griffin said that individuals detained
by SAS troops in a joint UK-US special forces taskforce had ended
up in interrogation centres in Iraq and Afghanistan, as well as
Guantánamo Bay; he had not witnessed torture himself but
added: "I have no doubt in my mind that non-combatants I
personally detained were handed over to the Americans and subsequently
tortured"; he was served with a High Court order preventing
him making further disclosures.[149]
25. The AIHRC has noted "the lack of
commitment demonstrated by the Government towards the promotion,
protection and monitoring of human rights".[150]
There has been a report that "on at least one occasion the
NDS hid a detainee who had been handed over by NATO from the ICRC".[151]
26. Detainees transferred to the Afghan
authorities by other ISAF states, such as Canada, have reportedly
been tortured. Allegations include whipping with electric cables,
electric shocks, suspensions, beatings, exposure to excessive
cold, sleep deprivation and other abuse.[152]
The AIHRC is said to have confirmed these events.[153]
27. Amnesty International (AI) has also
reported that six transferees previously held by Canadians were
tortured by the NDS.[154]
Canadian officials have received first-hand reports of torture
and it is believed that the number of transfers is far higher
than has been admitted and does not include immediate in-field
transfers in the course of military operations.[155]
THE MOU: CONCERNS
RELATING TO
DETAINEES' TRANSFER
28. Given the UK's clear obligations against
non-refoulement on the one hand and the prevalence of torture
in Afghanistan on the other, its use of and reliance on the 2006
MOU to absolve it of responsibility for detainees transferred
is of serious concern.
29. There is no substantial difference in principle
between this MOU and other MOUs or Diplomatic Assurances or Deportations
With Assurances (DWAs) which the UK has sought to use to deport
persons (in particular terror suspects) from UK territory to another
state where there is a real risk of torture. The criticisms which
NGOs[156]
have consistently made in relation to such mechanisms and their
use to circumvent the UK's non-refoulement obligations apply mutatis
mutandis to the 2006 MOU. Eminent UN and European human rights
experts and bodies too have voiced serious concerns and reservations
regarding the use of these mechanisms.[157]
30. Further, this strong body of opinion
against these mechanisms being used because of their incompatibility
with the non-refoulement principle has developed within the context
of the putative deportation of individual persons in, for instance,
the UK, with the authorities seeking on a case by case basis to
argue before the courts that the deportation in question was lawful;
in respect of the 2006 MOU there is not even such a case by case
approach—all detainees are either released or transferred,
no individual assessment is made, and there is no independent
scrutiny—and a fortiori this MOU is even more unsuitable
as a means to fulfilling the UK's international law obligations.
31. MOUs generally (and related mechanisms
as mentioned in paragraph 26 above) as well as the 2006 MOU in
particular do not and cannot provide an effective safeguard against
torture and other ill-treatment, and other serious human rights
violations. Relying on them/it to facilitate the transfer of people
where there are substantial grounds for believing that they would
face a real risk of torture is fundamentally inconsistent with
the principle and obligation of non-refoulement in international
human rights law.
32. Human rights violations in Afghanistan,
including torture and ill-treatment, are well-established to be
systematic, endemic, persistent and widespread. To transfer detainees
flies in the face of EU policy stated by the Council of Europe
last year: "In order to strengthen EU credibility and convincing
power, coherence needs to be assured between external action against
torture in third countries and the EU's own performance ... [by]
ensuring full respect for human rights when adopting measures
to fight terrorism, including the upholding of the principle of
non-refoulement".[158]
33. The MOU is not acceptable as a way for
the UK to abide by its obligations:
— selective post-transfer monitoring
of individuals is not a proper and acceptable alternative to non-refoulement,
and is no substitute for broad and effective institutional reforms
and protective mechanisms;
— even the best monitoring mechanisms
can be ineffective in preventing acts of torture, because torture
is almost always practiced secretly; system-wide monitoring entails
large number of detainees visited in private conditions to ensure
the authorities can't identify who has provided what information;
— post-transfer visits to an individual
puts them in an impossible position—they must either stay
silent or report the abuse; if they choose the latter they become
clearly identifiable, thus exposing themselves to further abuse;
— neither state is likely to acknowledge
torture has occurred after transfer, as this would be an admission
that core international law obligations have been breached and
that the MOU has failed; both states share an interest in creating
the impression that the MOU is meaningful rather than establishing
factually that it actually is;
— the absence of any enforcement or
remedial mechanism where abuse has taken place after transfer
underscores its ineffectiveness; they have no legal effect and
the persons they aim to protect have no effective recourse if
their rights are breached, including a lack of the right to reparation;
— legitimising and institutionalising
the use of such an MOU where torture is widespread sends an unfortunate
signal to other states with poor human rights records that such
mechanisms are internationally acceptable;
— the provision for UK personnel (embassy
and/or military) to have access is of little practical significance
as there is no reason to expect such persons will have expertise
in torture issues; further, the ICRC and UN institutions will
not exercise their `right' of access unless it is unrestricted
and applicable to all detention centres and all detainees for
the reasons already referred to above;
— there is no practical mechanism,
nor could there be, for what happens if the Afghan authorities
refuse to co-operate with the representative, and if there is
a breach there is little that can effectively be done about it;
and
— this MOU (and others, however designated)
does not and cannot deal with the fundamental problem that resorting
to diplomacy to ensure compliance with the absolute prohibition
against torture is not acceptable; in order for torture and other
ill-treatment to be prevented, effective legislative, judicial,
and administrative safeguards must be in place on a state-wide
basis, which is manifestly not the position in Afghanistan.
RECOMMENDATIONS
34. The UK should:
— accept full responsibility under
international humanitarian law and international human rights
law for all persons it detains in Afghanistan;
— stop transferring detainees in its custody
and any future detainees on the basis of the MOU or any other
similar basis;
— retain and continue such custody
until Afghanistan has properly and effectively implemented mechanisms
and safeguards in its detention and prison systems for the prohibition
and prevention of torture and ill-treatment;
— in regard to all those already transferred
by it since the UK entered Afghanistan (both before or since the
MOU was signed and whether or not they were transferred in terms
of it), properly investigate what has happened to all such persons;
where allegations of torture or ill-treatment arise these should
be properly investigated;
— make full reparation to any person
abused post-transfer;
— take full, comprehensive and effective
steps to assist the Afghan authorities in building the rule of
law, internationally acceptable prison and detention systems and
a torture-free society; and
— take a lead in working with and within
UN, EU, NATO and ISAF institutions to ensure the strengthening
of and compliance with its non-refoulement principles and obligations.
23 January 2009
110 See generally www.redress.org Back
111
UN Security Council Resolution 1833 (2008). The mandate applies
for a year from 13 October 2008, and includes "... the need
for further progress in security sector reform, including further
strengthening of the Afghan National Army and in particular of
the Afghan National Police|[and] justice sector reform| [and]
in this context the importance of further progress in the reconstruction
and reform of the prison sector in Afghanistan, in order to improve
the respect for the rule of law and human rights therein". Back
112
ISAF website accessed 18 January 2009 at http://www.nato.int/ISAF/structure/comstruc/index.html Back
113
UN Security Council Resolution 1386 (2001), 20 December 2001. Back
114
FCO Human Rights Annual Report 2007, p 125. Back
115
Ibid. Back
116
The MOU is Appendix 3 to the FAC's Second Report of 2006-2007
Visit to Guantanamo Bay pp 61-64, available at http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/44/44.pdf
Although purportedly signed on 23 April 2005 the MOU was actually
signed on 30 September 2006, as pointed out by the FAC in footnote
78 of its Report; this was stated by the Secretary of State for
Defence on 8 January 2007 at Hansard, House of Commons Debates
8 January 2007, col 77W [not 8 January 2006 as appears in the
FAC footnote]). Back
117
FCO Human Rights Annual Report 2007, p 125. Back
118
MOU, para 3.1. Back
119
"In terms of NATO's detention policy ... NATO forces can
detain captured individuals for up to 96 hours with the possibility
of a small extension, but that would be really only in the most
extreme circumstances and would have to go up the chain of command.
So in principal 96 hours at which point they're handed over to
the Afghan authorities. And that is what has been done, almost
without exception ... as far as I'm aware"-NATO spokesperson,
Weekly Press Briefing 4 October 2006, accessed 18 January 2009
at http://www.nato.int/docu/speech/2006/s061004b.htm Back
120
MOU, para 3.1. Back
121
MOU, para 3.2, which also states Afghan authorities will ensure
any detainee so transferred will not be transferred to the authority
of another state, including detention in another country, without
prior written UK agreement. Back
122
MOU, para 4.1; para 4.2 provides that UK Embassy and military
personnel will also have full access to question transferees. Back
123
MOU, para 5.1, which states "... normally within 24 hours,
and if not, as soon as possible after ..." Back
124
MOU, para 5.2. Back
125
MOU, para 6.1. Back
126
Article 3 (1). Back
127
Soering v United Kingdom, Application No 14038/88 (ECtHR
1989) at para 88. Back
128
See General Assembly, "Interim Report of the Special Rapporteur
of the Commission on Human Rights on the Question of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, UN
General Assembly, 55th Session, Item 116(a) of the provisional
agenda, Human Rights Questions: Implementation of Human Rights
Instruments", U.N. Doc A/55/290. (2000) at 27. The Committee
against Torture (CAT) has previously found that the principle
of non-refoulement not only reflects a treaty obligation of states
parties to the UNCAT but also constitutes a jus cogens norm: "non-refoulement
must be recognized as a peremptory norm under international law,
and not merely as a principle enshrined in Article 3"-Committee
Against Torture, "Summary Record of the 624th Meeting",
U.N. Doc CAT/C/SR.624, (2004) at paras 51-52. See also Alzery
v Sweden, U.N. Doc CCPR/C/88/D/1416/2005 (10 November 2006)
at para 11.8. Back
129
See CAT "General Comment No 2: Implementation of Article
2 by States Parties", U.N. Doc CAT/C/GC/2/CRG.1/Rev.4 (23
November 2007) at para 19; see also Manfred Nowak and Elizabeth
McArthur, The United Nations Convention Against Torture: A
Commentary (Oxford University Press, 2008), p 113 (characterising
Article 2(1) as an "umbrella clause" encompassing Article
3). Back
130
As required by the Committee against Torture; see for example
"Initial Report of Peru" U.N. Doc CAT/C/SR.193 at para
44 (9 Nov 1994); "Initial Report of Morocco" U.N. Doc
CAT/C/SR. 203 (16 November 1994) at para 51. Back
131
Treaties and MOUs: Guidance on Practice and Procedure, FCO, 2004,
p 1, available at: www.fco.gov.uk/resources/en/pdf/pdf8/fco_pdf_treatymous. Back
132
No 22414/93 ECtHR, 1996. Back
133
Ibid, para 37 and 80; the ECtHR said: "The prohibition provided
by Article 3 against ill-treatment is equally absolute in expulsion
cases. Thus, whenever substantial grounds have been shown for
believing that an individual would face a real risk of being subjected
to treatment contrary to Article 3 if removed to another State,
the responsibility of the Contracting State to safeguard him or
her against such treatment is engaged in the event of expulsion.
In these circumstances, the activities of the individual in question,
however undesirable or dangerous, cannot be a material consideration". Back
134
Ibid, para 105. Further, in the recent decision of Saadi v
Italy 37201/06, 28 February 2008 the ECtHR rejected arguments
that the threshold for deciding on real risk should be the higher
standard of "more probable than not" rather than "substantial
grounds for believing" (at paras 137-139 and 140). Another
even more recent decision of the ECtHR has also confirmed the
absolute nature of a state's responsibility not to refoul a person
facing a real risk of torture, irrespective of the "character"
of the person: "... [W]henever substantial grounds have been
shown for believing that an individual would face a real risk
of being subjected to treatment contrary to Article 3 if removed
to another State, the responsibility of the Contracting State
to safeguard him or her against such treatment is engaged in the
event of expulsion or extradition. In these circumstances, the
activities of the individual in question, however undesirable
or dangerous, cannot be a material consideration"-Ismoilov
v Russia, 2947/06, 24 April 2008. Back
135
CAT/C/SR.627, para 25. The argument was also made in relation
to the UK in Iraq. Back
136
Manfred Nowak and Elizabeth McArthur, The United Nations Convention
Against Torture: A Commentary (Oxford University Press, 2008),
p 199. Back
137
CAT/C/CR/33/3, para 5(e). Back
138
Amnesty International Canada v Defence Staff for the Canadian
Forces (2008 FCA 401) A-149-08, December 17, 2008, available
at http://decisions.fca-caf.gc.ca/en/2008/2008fca401/2008fca401.html Back
139
See BC Civil Liberties Association press release "A setback
for human rights protection", 18 December 2008, available
at http://www.bccla.org/pressreleases/08afghan_prisoner.pdf Back
140
Al Skeini and others v Secretary of State for Defence [2007]
UKHL 26.
http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070613/skeini-1.pdf Back
141
Leading to The Baha Mousa Public Inquiry, available at http://www.bahamousainquiry.org/ Back
142
Al-Saadoon & Anor, R (on the application of) v Secretary
of State for Defence [2009] EWCA Civ 7
http://www.bailii.org/ew/cases/EWCA/Civ/2009/7.html Back
143
Ibid, para 70. Back
144
Letter from the ECtHR dated 30 December 2008 to Public Interest
Lawyers. Back
145
Afghanistan: Country Reports on Human Rights Practices-2007, released
11 March 2008, available at
http://www.state.gov/g/drl/rls/hrrpt/2007/100611.htm Back
146
Ibid. See also torture of Afghan journalist in Daily Telegraph
19 May 2008 "Afghan journalist in torture claim". Back
147
UN General Assembly, 62nd Session, agenda item 19, "The Situation
in Afghanistan", A/62/722 -S/2008/159 at
http://www.unama-afg.org/docs/_UN-Docs/_repots-SG/2008/08march06-SG-report-SC-situation-in-afghanistan.pdf Back
148
Press release by UN High Commissioner for Human Rights, "High
Commissioner for Human Rights Concludes Visit to Afghanistan",
20 November 2007, available at
http://www.unhchr.ch/huricane/huricane.nsf/0/8FA97A1314FB08B5C1257399005990A3?opendocument Back
149
"Court gags ex-SAS man who made torture claims", Richard
Norton-Taylor, The Guardian, Friday 29 February 2008. Back
150
AIHRC Annual Report 1 January to 31 December 2007, p 61, available
at
http://www.aihrc.org.af/Annaul_Rep_2007.pdf Back
151
Human Rights Watch, Letter to NATO Secretary-General, 27 November
2006, available at
http://www.hrw.org/en/news/2006/11/27/afghanistan-letter-nato-secretary-general-regarding-summit-latvia
HRW urged "a common policy that requires NATO members to
be involved at all stages of the detention process. NATO should
ensure that the ICRC, United Nations, and Afghan Independent Human
Rights Commission have access to all detention centers where NATO
detainees are held to monitor prison conditions and investigate
allegations of prisoner abuse. Finally, NATO and the Afghan Government
should publicize the names of detainees and the date and location
of their arrest as well the name of the detainee's father, birthplace,
and current village or town"-Ibid. Back
152
Graeme Smith, "From Canadian custody into cruel hands",
Globe and Mail, 23 April 2007; Graeme Smith, "Personal
Account: A story of torture", Globe and Mail, 24 April
2007. Back
153
Ibid. Back
154
Amnesty International, "Afghanistan: Detainees transferred
to torture: ISAF complicity", AI Index: ASA 11/011/2007 at
p 23 footnote 64. Back
155
Ibid. Back
156
See, for example, REDRESS, "Non-refoulement under Threat",
May 2006, at http://www.redress.org/publications/Non-refoulementUnderThreat.pdf;
Amnesty International, "Memorandums of Understanding and
NGO Monitoring: a challenge to fundamental human rights",
January 2006, at http://www.amnesty.org/en/library/info/POL30/002/2006/en
; Human Rights Watch World Report 2008, "Mind the Gap: Diplomatic
Assurances and the Erosion of the Global Ban on Torture,"
March 2008, at http://hrw.org/wr2k8/diplomatic/index.htm Back
157
These critical experts include: the UN Special Rapporteur on Torture;
the UN High Commissioner for Human Rights; the UN Special Rapporteur
on Human Rights and Counter-Terrorism; the European Commission;
the EU's Network of Independent Experts on Fundamental Rights;
the European Parliament; the Council of Europe's European Commission
for Democracy through Law (Venice Commission), and the Council
of Europe Commissioner for Human Rights. Back
158
Council of the EU, 18 April 2008, 8407/1/08 Implementation of
the EU guidelines on torture and other cruel, inhuman or degrading
treatment or punishment-stock taking and new implementation measures,
p 13 available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/hr/news129.pdf Back
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