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Afghanistan: Return of Foreign Fighters and Torture Concerns
HRW Backgrounder, December 2001
Introduction In recent weeks Northern Alliance and other anti-Taliban forces in Afghanistan have captured hundreds of foreign fighters with the Taliban or al-Qaeda. The United States has announced that it would detain upwards of 500 captured fighters and has been screening persons taken into custody by Afghan forces. Those implicated in criminal acts, including violations of international humanitarian law and crimes against humanity, should be prosecuted by tribunals in Afghanistan or elsewhere that meet international fair trial standards.


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Human Rights Watch is concerned that foreign fighters, as well as their families in Afghanistan, not be deported to states where they will be subject to torture or other severe mistreatment. Under international law, government officials responsible for sending persons to a place where they are tortured could eventually be prosecuted for complicity in the torturous acts.

Although the legal status of the various foreign fighters needs to be determined, the Geneva Conventions envision that prisoners of war and interned civilians who are not subject to prosecution are to be repatriated to their home country once the hostilities have ended. Many may seek to return home or to a third country that will accept them. The Afghan interim authority or detaining powers such as the United States. may also seek to deport foreign fighters and their families home or elsewhere. States are generally obligated to allow citizens to enter their own country, though they may be prosecuted for criminal offenses.

International human rights and refugee law seeks to prevent persons from being sent to a country where their fundamental human rights would be violated. Specifically the Convention against Torture (see below) prohibits persons from being expelled, returned or extradited to a country where they have substantial grounds for believing they will be subject to torture.

States of Concern
Foreign fighters captured in Afghanistan and their families are believed to originate from some two-dozen countries. Among the countries with which Human Rights Watch is particularly concerned that deported fighters are likely to face torture or other serious mistreatment are the following:

China: A week after the September 11 attacks, the Chinese foreign ministry ignored previous pronouncements of stability and economic opportunity in Xinjiang, a predominately Muslim area in China's northwest, and publicly labeled the province's Uighur inhabitants as "terrorists" for advocating independence. In the weeks that followed, the government repeatedly sought to equate all independence supporters as terrorists. On November 16 Foreign Ministry spokesman Zhu Bangzao listed alleged attacks by Uighur separatists and said that "these facts show that they have taken part in regional terrorist activities….They have become a part of the international terrorist mechanism, so the fight against East Turkestan [pro-independence] terrorist forces is part and parcel of the international fight against terrorism." On December 12 the Chinese foreign ministry responded to reports that some Chinese were among captured Taliban fighters: "These Uighurs are East Turkestan terrorists. If these people are proved to be Chinese citizens, the relevant side should hand them back to China to be handled according to law." While some pro-independence groups have been linked to bombings and other acts of violence in Xinjiang, China's response, including arbitrary arrest, torture, summary trials resulting in harsh sentences, and curbs on free expression, association, and religion, has targeted all separatist expression, peaceful as well as violent. Those convicted of political crimes in Xinjiang have often received the death penalty; political convictions in other parts of China rarely, if ever, result in death sentences.

Egypt: Since the early 1990s, the Egyptian government has repressed Islamist political opponents claimed to be involved in political violence. Thousands of civilians accused of membership in banned Islamist groups have been arrested and routinely interrogated under torture while being held in preventive detention without charge. Hundreds have been convicted in grossly unfair mass trials before military courts, deemed by the government as more amenable to issuing guilty verdicts than state security courts, which in some cases had acquitted defendants whose confessions had been extracted under torture. None of the defendants had the right of appeal to a higher tribunal, and none of the officials implicated in torturing them were ever brought to justice. Scores were executed. For instance, two Egyptians arrested in Albania in 1998 and forcibly returned were executed in 2000 after an unfair military trial involving 107 Islamist defendants. Seven among them were also sentenced to death in absentia, among them Ayman al-Zawahiri, one of Osama Bin Laden's close associates.

After the September 11 attacks, Al-Ahram weekly quoted President Hosni Mubarak as saying: "Arguments of human rights [abuses] should not be put forward on all occasions. Those who carry out terrorist acts have no claims to human rights." In October the government announced that 253 Islamist detainees, including several foreign nationals, would be tried before the Supreme Military Court; the first of these trials opened on November 18, involving ninety-four defendants. Prime Minister Atef Abeid, responding to U.S. criticism of torture and unfair trials in Egypt, said: "After these horrible crimes committed in New York and Virginia, maybe Western countries should begin to think of Egypt's own fight against terror as their new model."

Russia: Since 1999 the Russian government has justified its policies in the breakaway republic of Chechnya as aiming to rid the region of terrorism. The government stated that at least one well-known Chechen field commander has close ties to al-Qaeda and that Chechnya has become home to training bases for Islamic fighters and terrorists. An unknown number of Chechens are believed to be fighting in Afghanistan. Russian police, security, and military forces in Chechnya routinely torture persons whom they suspect of involvement with or abetting Chechen rebel forces. Numerous Chechen corpses have been found in unmarked graves, bearing unmistakable signs of torture. Military and law enforcement agents often conduct "sweep" operations in suspect villages, arbitrarily detaining males who are then tortured to compel a confession or provide information about rebel activities. Torture methods commonly include prolonged beatings and electroshock. Despite the hundreds of torture cases reported in Chechnya in recent years, not a single member of the military or police has been prosecuted.

Saudi Arabia: Diplomats in Saudi Arabia have reported that as many as 400 Saudis suspected of links with Osama bin Laden have been arrested since September 11, although no additional information has emerged about these detentions. Torture of political as well as criminal detainees is routine in Saudi Arabia as a means of gathering information and to extract confessions. In October, Saudi Interior Minister Prince Nayef bin Abdul Aziz said without elaboration that supporters of bin Laden were "ill and cannot be accepted in Saudi society, even if they were part of us. Some organs of the body may become ill, but the sick organ is amputated." The Saudi justice system is notorious for its lack of transparency and disregard for international due process and fair-trial standards. Proceedings are often held in camera, defendants are not represented by lawyers, and the death penalty is in effect. More than 100 Saudi nationals and foreigners have been beheaded annually over the last several years.

Uzbekistan: The Islamic Movement of Uzbekistan (IMU) is an armed group that has been based primarily in Afghanistan that seeks the establishment of Shari'a (Islamic law) in Uzbekistan and the release of Muslim prisoners. It has launched incursions into Kyrgyzstan in 1999, and into Kyrgyzstan and Uzbekistan in 2000. With troops numbering anywhere from several hundred to several thousand, IMU units fought alongside the Taliban; some are closely connected to al-Qaeda, including its leader, Jumaboi Khojaev (Juma Namangani), who was reportedly killed by U.S. bombing in late November. Those accused of involvement with the IMU or "religious extremism" are routinely tortured both during investigation and in post-conviction custody. Police and security agents use prolonged beatings, electroshock and suffocation to coerce confessions or testimony. Such testimony is routinely accepted by the courts and detainees frequently have little or no access to attorneys. Since 1998 Uzbek President Islam Karimov has personally issued threats to suspected Islamic militants: "Such people should be shot in the head. If necessary, I'll shoot them myself." In 1999, he said, "If my child chose such a path [of Islamic militancy], I myself would rip off his head."

Convention against Torture
Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention against Torture") states that no state 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." It further provides that for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The Committee against Torture, the international body that monitors compliance with the Convention against Torture, has set out additional guidelines for making such a determination. These include whether the person fearing torture on return has been tortured or maltreated by the government previously; has engaged in political or other activity within or outside the state that would appear to make him or her particularly vulnerable to the risk of being placed in danger; and is a credible witness and other evidence supports such claims.

Afghanistan ratified the Convention against Torture in 1987, the U.S. in 1994. Should either party or another state send a captured foreign fighter or their family members to a country where there are substantial grounds for believing they would be in danger of being tortured, the officials responsible might become subject to charges of complicity in torture. Under the Convention against Torture, they could face possible criminal prosecution (art. 4) and also "universal jurisdiction" (trial in an uninvolved third country) (art. 5).

The only way that detainees at risk could be sent involuntarily to such a country would be with clear assurances by the receiving government of proper treatment in accordance with international human rights and humanitarian law, and a specific mechanism ensuring guaranteed visits (unannounced, in private, periodically repeated) by a U.N. or humanitarian monitor able to report publicly on any abuse found.