IV. HUMAN RIGHTS IN AREAS OF AFGHANISTAN UNDER THE CONTROL OF THE REPUBLIC OF AFGHANISTAN
At the time of the Asia Watch visit to Kabul in mid-1990, the government's major efforts at reforming Afghanistan's constitution to provide for greater protections for civil liberties were barely three months old. It is premature, therefore, to attempt to measure fully any progress made toward reform. The areas in which changes have been measured, including improvements in prison conditions, were the result of earlier decisions.146 While the government was eager to demonstrate to Asia Watch its commitment to a more open society, it was too early to tell whether the reforms would be implemented as planned or, indeed, whether the government in Kabul could effect meaningful change beyond the cities. In some cases, the proposed reforms introduce concepts new to the legal culture of Afghanistan, including the right to defense counsel, which would take time to root, not only in Afghanistan's legal institutions, but in the minds of the Afghan people. More important, it was clear that the proposed reforms could not by themselves create a climate in which Afghan citizens would feel free to exercise these rights without fear of reprisal.
While arbitrary arrests are less frequent than in the past, there are few safeguards to prevent illegal detention. Detainees have been held for periods of several weeks or longer before being produced before a judicial authority; family members are not informed of the detainee's whereabouts. Despite changes to the 1990 Constitution which guarantee the rights of fair trial and access to defense counsel, trials, which are often summary proceedings, still fall short of international standards of due process. The accused seldom has access to counsel and is given little time to prepare a defense.
Prison conditions for sentenced prisoners have improved, but conditions for detainees under investigation remain precarious. The severe overcrowding that was common under the Soviets has eased. The practice of torture, which had been systematic and widespread, has also declined but some forms of torture and mistreatment persist.
Restrictions on freedom of association and freedom of speech have prevented the formation of genuine opposition political parties and an opposition press. Limited criticism of the government is permitted; however, editors routinely practice self-censorship and the Ministry of State Security forces maintain surveillance of faculty and students at Kabul University.
On May 4, the state of emergency, which had been imposed following the withdrawal of Soviet troops from the country, was lifted.147 The lifting of the emergency paved the way for other changes. Between May 27-29, 1990, the government convened a loya jirga, or supreme council, to ratify constitutional changes proposed by the government. The loya jirga was reportedly made up of 772 participants including the vice-presidents, National Assembly chairmen and members, other government officials, and religious and political figures appointed by the government. The loya jirga also included a number of representatives from the provinces, apparently chosen by the government.
The most important changes ratified by the loya jirga included a stated commitment to "political pluralism," ending the People's Democratic Party of Afghanistan's (PDPA) monopoly on power. The constitution was also amended to designate the Republic of Afghanistan as an Islamic state. On June 27, 1990, the PDPA convened an extraordinary party congress, the second in its history, at which it renamed itself the Watan (Homeland) Party, renouncing its historicalcommitment to Marxism and recasting itself as a party of national reconciliation.
At the time of the Asia Watch visit, the implementing legislation for many of the reforms in the amended Constitution remained in the drafting stage. For example, the law on political parties had not yet been ratified, nor had legislation on legal aid -- a law that would apparently provide for the training of defense attorneys.148 Where such legislation does exist, as with the laws governing assemblies, demonstrations and strikes, it is discussed below.
Although political parties are now officially permitted, none yet exist which might challenge President Najibullah's right to remain in power; government officials made it clear that opposition parties that would take such a position would not be considered peaceful and therefore would not be allowed, for example, to hold demonstrations. Almost all of the parties that have formed are closely aligned with the ruling Watan party; associations that might constitute more genuine opposition parties were reluctant to establish themselves as such out of fear of reprisal.
Controls on the press have been relaxed, but as of mid-1990, there were no truly independent newspapers in Kabul, and editors routinely practice strict self-censorship. The government also has retained complete control of radio and television. Criticism of the government does appear in the press but is limited and does not extend, for example, to calls for the government to resign. By not encouraging the establishment of private presses and publishing houses, the government dissuades those seeking opportunities for a free press to develop.
Although the rigid controls that had governed university life have been largely dismantled, professors and teachers are still restricted in what they may teach. Ministry of State Security forces maintain somesurveillance of students and professors on the campus and in the classroom.
The practice of arbitrary house searches and mass arrests of dissidents that was common under the Soviets appears to have decreased. Most detainees apparently are arrested because of their alleged involvement with one of the guerrilla factions, but merely voicing criticism of the government is no longer a common basis for arrest. Large-scale amnesties have resulted in the releases of thousands of political prisoners.
The 1990 Constitution guarantees both the right to counsel and to fair trial -- rights that were never fully recognized even before the April 1978 revolution -- but as yet these new rights are little respected in practice. Trials of persons charged with political crimes are conducted by the National Security Court which gives the accused scant opportunity to prepare a defense. At the time of the Asia Watch mission, the government was reportedly preparing legislation to provide legal training for defense attorneys; however, other changes are necessary to bring trials into conformity with international standards of fair trial. Among these, the powers of the attorney general must be strengthened if that office is to act as a safeguard against illegal detention and if it is to provide a check against abuses by militia commanders allied with the government who also hold prisoners.
While the International Committee of the Red Cross (ICRC) has access to all sentenced prisoners; it does not have access to those under interrogation. In August 1990, Asia Watch visited the Sedarat detention center in Kabul -- the first such visit by a human rights organization. Although we were not able to interview detainees in private, Asia Watch has received credible reports of torture and mistreatment of detainees during interrogation. Access to prisoners is an important means of curbing such abuses against detainees, as the confidential reports by the ICRC to top government officials insure that they are made personally aware of cruel practices and, thereby, cannot evade their own responsibility for torture and other mistreatment.
Freedom of Association and Assembly
Reforms promulgated by the government under the 1990 Constitution remove prohibitions on the formation of opposition parties and other associations not officially sanctioned by the government. Under the new law on public assembly, demonstrations and strikes are permitted so long as they are peaceful, i.e. they do not "violate public rights and public security" and are "not against national unity or the constitution." As with other reforms, these restrictions may still be interpreted to prohibit peaceful gatherings and may proscribe associations that represent a genuine political challenge to the government. While the reforms have had the effect of permitting some organizations to form and to voice limited criticism of the government, no opposition political parties have yet formed, and the other associations that have been organized are self-consciously circumspect in their public criticism out of fear of losing the limited freedom they possess at present.
The law legalizing political parties marks an important point in the history of constitutional reform in Afghanistan. The first legislation to legalize political parties in 1963 was never signed by Zaher Shah; however, the parliamentary system he instituted provided the climate for the formation of a number of political organizations, including the PDPA. Other Marxist and Maoist groups also formed at that time, as did a number of Islamic radical149 and nationalist groups. Under Article 126 of the 1964 Constitution, the government was to prepare "ordinances relating to elections, basic organization of the state, the press, and judicial organization and jurisdiction [and] ... to prepare draft bills relating to political parties and Provincial Councils, and submit them to Parliament."150 Political parties were not allowed to participate in the elections to choose that parliament, however, nor the one that followed in 1969.
Several months after the 1978 coup, when the Khalqis under Nur Mohammad Taraki and Hafizullah Amin seized power from Daoud Khan,persons associated with political organizations and with virtually every other social group were arrested and thousands of them executed.
Those arrested and killed included political leaders of the New Democracy period; Daoud's family and other members of the royal family; religious scholars and spiritual leaders; high school teachers and students; university professors and students, including leading scholars; lawyers and judges; government and diplomatic officials; military officers; Parchamis, Maoists, Social Democrats, and members of Islamic political organizations; Hazaras and Nuristanis.151
As Olivier Roy states, "The goal was clear: to cause the 'old' Afghanistan to disappear, by dissolving the social structures and uprooting them from the memory of a whole people."152
The 1990 Constitution also removes from the PDPA the pre-eminent position it has held in the government since the revolution. Instead the party153 officially has only the status of any other party in a system the government now describes as pluralistic. At the time of the Asia Watch visit, a number of cabinet positions were not filled by party members, including the posts of the Prime Minister, the Minister of Justice, the Minister of Finance, and the Minister of Communications. Other positions, including all judges and the Attorney General, cannot be filled by party members. The most important cabinet positions, however, including that of the President, Minister of Foreign Affairs, Minister of Defense, Minister of State Security and Minister of the Interior are still filled by party members. The Watan party has a membership of 174,000 according to one Central Committee member.154 Although thismembership is said to include persons from the major ethnic communities,155 the leadership of the PDPA has traditionally been Pashtun,156 and this remains the case.
Since June 1989, parties have been allowed to register with the government. According to government officials, the registration process includes a disclosure of the "goals and objectives" of the group, as well as its finances. Of the parties which had registered as of August 1990, however, none can be considered genuinely independent. Instead, they represent interest groups long associated with the PDPA, including youth associations and trade unions such as the National Union of Afghanistan Farmers, and the Afghanistan Workers Vanguard Party.157
The one possible exception is the SAZA party, recently renamed the Afghanistan Democracy Movement, which represents interests from the north, especially the Tajik ethnic group.158 During a vote of confidence in the loya jirga, a SAZA representative159 reportedly criticized Najibullah's government and the party in terms that formerly would have resulted in certain imprisonment. Instead, the debate was reportedly broadcast live over state-run television and no action was taken against the SAZA member.160
The existence of the National Salvation Society (NSS), an organization of retired university professors, government officials and military officers formerly associated with the monarchy represents a more accurate measure of the government's tolerance for opposition views. The organization, which was founded in September 1989, describes itself as "independent, impartial and non-aligned." It has made recommendationsto the government regarding a transitional government and elections, and has also called for a cut-off of arms supplies to all parties.161 Because the organization makes no claim on political power, it poses no real threat to the ruling party's hold on power, which in part may explain the government's tolerance.
Government officials told Asia Watch that there are no restrictions which would prohibit any group or individual from forming a party -- even the radical mujahidin leader Gulbuddin Hekmatyar -- so long as he renounced violence.162 However, it is clear that unwritten restrictions still prevent the formation of parties that might pose a genuine challenge to the government's policies. In June 1989, all of the founding members of one opposition party, the National Unity Party, were arrested apparently just as they were preparing the required papers to register their organization.163 The government accused the party of having links to mujahidin factions; later in the year all but one of those arrested were released.164 As long as there is a likelihood of similar reprisals, other opposition groups remain understandably reluctant to organize into political parties.
Demonstrations and Strikes
The reforms specify a number of guidelines for holding public gatherings and demonstrations. These guidelines also may be used to prohibit certain opposition groups and activities. For example, the organizer of any demonstration, like the organizer of any political party, must inform officials by letter of the "goal and objectives" of theevent.165 Government officials told Asia Watch that groups that were "not peaceful" would not be permitted to demonstrate. When Asia Watch asked the Minister of the Interior whether a political party would be allowed to publicly call for President Najibullah's resignation, he responded, "Those who would raise this are against maintaining peace. Only our enemies would raise such questions."166
The guidelines provide for the dispersing of demonstrations which turn violent; however, they also state that gatherings may be dispersed if the participants "deliver destructive speech[es] or shout slogans against the security forces and public regulations." The guidelines authorize the use of force only after the authorities attempt to end a violent demonstration by first issuing warnings, "leading the demonstration to a safe location," "spraying water," or "setting up barriers."
The law on strikes follows the same guidelines, also requiring "the organizer of the strike ... to notify the management by written notice." Failure to do so incurs a fine or prison sentence; failure to disperse when a warning is given is considered a criminal offense. In addition, demonstrators who "violate the law by resorting to speech, shouting slogans, distributing manuscripts or pictures, will be punished according to the law." However, the law explicitly permits press coverage of all demonstrations and strikes. Members of the armed forces and children under 18 are not permitted to participate in demonstrations or strikes.
Freedom of Expression
Freedom of the Press
In 1990, the government promulgated a number of reforms which on paper provided for a partial relaxation of the strict censorship controls that have restricted freedom of the press and prevented the establishment of independent publications in Afghanistan. The 1990Constitution prohibits "pre-censorship" under Article 49, and guarantees the right of freedom of speech "within the provisions of the law." However, despite evidence that the reforms have had the effect of permitting some limited criticism of the government, the rights of freedom of speech and freedom of the press remain circumscribed.
Freedom of the press has never received adequate protection in Afghanistan. The 1931 Constitution was the first to provide for nominal freedom of the press, but in fact the government maintained complete control over it. In 1949, laws protecting freedom of the press were passed by Parliament, but when opposition papers began to publish, they were banned and the editors arrested. The 1964 Constitution again provided for limited freedom of the press. The limits to that freedom were enunciated in the 1965 Press Law which stated among its objectives "safeguarding public security and order the interest and dignity of the State and individuals from harms which they may be subjected to by the misuse of freedom of press," and "safeguarding the fundamentals of Islam, constitutional monarchy and the other values enshrined in the Constitution."167
Nevertheless, a number of independent publications began publishing in 1965, among them Khalq, published by Nur Mohammad Taraki, and Afghan Mellat.168 These and other publications were subject to government restrictions: Afghan Mellat was banned repeatedly in the late 1960s, and Khalq was closed less than a month after it began publishing, accused of being "anti-Islamic and anti-constitutional." Gahiz, the "Voice of the Islamic Movement," was closed for its "anti-leftist" views. Parcham was permitted to publish for 14 months, from March 1968 until July 1969, but was finally banned along with several other publications during the 1969 elections. Many others were closed for their "anti-government" views.169 The Press Law also banned the publication of any material that implied "defamation of the principles of Islam" or that was "defamatory to the King." "Incitement to disobey the country's laws... [or] disrupt public security," "publication of false or distorted news," and "publication of matters with a view to weakening the Afghan army" were also prohibited.170 By 1972, all of the major opposition papers had been banned.
Following the April 1978 coup, the government under Taraki seized control of the country's newspapers and magazines. Among the thousands of persons arrested during this period, many of whom subsequently disappeared or were summarily executed, were writers and other intellectuals who were actual or potential opponents of the PDPA. The suppression of freedom of expression continued under the Soviets during the government of Babrak Karmal. Soviet advisers helped enforce strict controls at the government news agency, Bakhtar, the Kabul New Times and Radio Kabul. All other publications were subject to strict censorship. Hundreds of writers, journalists, university professors were arrested for expressing views critical of the government.
At the time of the Asia Watch mission in mid-1990, communications remained almost entirely under state control. The electronic media continued to be run as a state monopoly, with little scope for opposition views. Asia Watch was informed of only one occasion in which criticism of the government was aired on Kabul Radio and Television: on May 28-29, 1990, the proceedings of the National Assembly were broadcast live, including criticism of the government and the party by some of the delegates. Although government officials have stated that they would allow other parties access to the broadcast media, Asia Watch knows of no instance in which they have actually done so.
No genuinely independent newspapers publish in Afghanistan. In addition to the government-run Kabul New Times, a number of smaller newspaper and magazines have begun publishing, but these are still subject to government control. Nor can they be considered independent: for example, the editor of Akhbar-e Hafta (News of the Week) -- a magazine which describes itself as independent is also a newly elected member of the central committee of the Watan Party. Still, the new reforms have permitted these publications to publish limited criticisms ofthe government. The editor of Akhbar-e Hafta cited to Asia Watch the following as examples:171
· In 1990, the magazine reprinted in full a Washington Post article on the March 1990 coup attempt; an International Herald Tribune article by Selig Harrison on the coup attempt and a New York Times Magazine cover article by John Burns on Afghanistan. Akhbar-e Hafta also printed material from CBS, and the BBC World Service, and an interview with the local BBC correspondent. In each case, however, the information that was published was generally favorable to the government.
· The magazine quoted the mujahidin leader Mojaddidi's statement that "military pressure had to be maintained" on the Najibullah government "so that economic conditions would worsen and bring down the government."
· In April 1990, the magazine published 13 articles on the subject of national leadership, debating the qualities of President Najibullah and ex-king Zaher Shah. Smaller space was allotted to articles on the Pakistan-based mujahidin leaders and none to mujahidin commanders. One article included in the series considered the argument that Najibullah should step down. However, the article concluded by endorsing Najibullah's position.
· In October 1989, the magazine came under heavy pressure from some government officials over an article on the Soviet intervention in Afghanistan. However, the article was published and sold for Afs. 2,000 (U.S.$4 in mid-1990) in the market, despite the Afs. 20 cover price. In June 1990, the editor gave an interview describing the invitation to the Soviet troops to enter Afghanistan as "a crime."
In a gesture that seemed indicative of the government's heightened sensitivity to outside views, during the Asia Watch visit, the Watan Party newspaper Payam reported on discussions in which AsiaWatch took part and cited Asia Watch's concerns about human rights in Afghanistan. While these examples reflect more openness than existed previously, they also support the government's reform measures and general political posture and do not push much further. One editor also complained that there is no way to compel a positive government response, even to this limited criticism.172
Material considered to be "outside the framework of the constitution" or "against Islam" is subject to censorship. Precisely what this means is not spelled out; rather, the restrictions are sufficiently vague to ensure that writers continue to practice self-censorship. One editor informed Asia Watch that while his newspaper has been able to report the views of Gulbuddin Hekmatyar, the reporting was limited to those views which "do not provoke censorship." Anything considered to be "war propaganda" is censored. Foreign newspapers and magazines are not available for purchase in Kabul, although they are circulated in limited quantities within government circles.
Other restrictions obstruct the establishment of independent publications. The government owns and manages the only publishing house in the country (which was also the case before the April 1978 coup) and has a monopoly on the supply of newsprint. The means for transporting and distributing the printed copies is also almost entirely controlled by the government. Under the Constitution, free printing facilities are to be provided for independent publications, but the implementing legislation has not yet been enacted. Asia Watch was informed that negotiations to establish private printing houses, including one partially funded by the Iranian government and one supported by an Afghan business interest, are underway, but we had no way of confirming these reports. High printing charges, and the cost of obtaining a license may also hinder the establishment of independent publications.
Independent groups such as the National Salvation Society (NSS) have been permitted to print documents at the government printing press and to circulate them widely.173 While far from radical, the NSS hascriticized the government and called for reforms that go beyond what Najibullah's government has instituted.
Since 1986, foreign correspondents have been permitted access to areas in Afghanistan under government control.174 A number of foreign news services also post correspondents in Kabul. Until 1989, journalists were restricted in their ability to move around the city without government escort; since then they have generally had free access to travel within Kabul. However, telex and telephone lines used by them are monitored by the Ministry of State Security.175
Journalists who have entered the cities in the company of the mujahidin, or who have been arrested along with suspected guerrillas, have been tried for spying and have been imprisoned. Asia Watch is aware of the following arrests since 1988:
· On August 1, 1989, Jorge Juan Sanchez Garcia, a journalist with the Barcelona-based magazine Ajoblanco, was arrested after entering Afghanistan with members of a mujahidin group. On October 15, he was sentenced to five years imprisonment on charges of entering the country illegally and "collecting anti-government propaganda." He was released on November 11, 1989, after an appeal by Spanish Prime Minister Felipe Gonzalez.176
· In 1989, Abdul Rahman, a Saudi journalist, was arrested along with an Egyptian journalist, Hisamuddin Mehmud. Abdul Rahman was released on March 2, 1990. Hisamuddin Mehmud was charged with "participating in an armed revolt against the government along with extremists" and sentenced to 20 years. He has been imprisoned in Pol-e-Charkhi.
· Abdul Rahman Qatib (or Khatib), a Jordanian cameraman, formerly with Al-Buniyan, was arrested while filming the siege of Jalalabad in February or March of 1989. His whereabouts are unknown.
· Tony O'Brien, an American journalist on assignment with Life magazine, was arrested on June 4, 1989, after entering Kabul with members of a mujahidin group. He was detained in Pol-e Charkhi and released on July 21.
· Syed Abdul Samad and Mohammad Nazar were tried and convicted of spying and "avoiding the military service" in January 1988 after they entered Afghanistan illegally with Alain Guillo, a French journalist who was also captured but was released in May 1988 after an appeal by French President Francois Mitterand. Samad and Nazar were sentenced to 16 years imprisonment. According to Guillo, they were accompanying him as bodyguard and translator.177
Freedom of Speech
Under the Soviets, strict control of the press extended to informal means of communication. Helsinki Watch and Asia Watch reports described the restrictions which at that time prohibited the circulation of any literature critical of the government:
Because all legal channels for publishing literature of protest are closed off, the residents of Kabul and other cities in Afghanistan have turned to clandestine literature. The most common form isthe pamphlet or "night letter" (shab nameh), mimeographed or copied by hand and secretly left in public places. Distribution or even possession of anti-regime "night letters" is a crime in Afghanistan. Many high school and college students have been arrested, tortured and sentenced to prison terms of several years for possession or distribution of such pamphlets.178
Although the mass arrests and disappearances associated with the repression of free speech under the Soviets have ended, the fear of reprisal still acts as a deterrent for ordinary Afghans. Afghans in Kabul expressed fear of openly criticizing the government because they believed that the secret police forces of the Ministry of State Security (WAD, or as is still known more commonly, KHAD179) continues to use informants to gather intelligence on suspected opponents of the government. One man arrested during the March 1990 coup attempt told Asia Watch that during his interrogation, WAD officials used statements he had made in private as evidence of his links to rebel groups and foreign agents:
They accused me of being an enemy of the government, a member of the mujahidin, a CIA agent, and an Iranian spy. They used my own words against me, saying, 'You have said there is no democracy in Afghanistan.'180
Security laws in force also restrict freedom of speech. For example, in March 1989, Mawlavi Abdul Rauf, the imam of the Pol-e Kheshti mosque in Kabul was arrested after he delivered a sermon in which he reportedly criticized President Najibullah, saying "You have done nothing for your Creator, so you cannot do anything for hiscreatures."181 He was released by presidential decree after seven months' imprisonment; the decree acknowledged that the arrest had been a "mistake."182 Despite this admission and the constitutional reforms that permit "free speech and assembly," restrictions on the exercise of these rights and the threat of arrest remain for anyone who might openly call the government to step down. A group or political party that would do so would not be considered peaceful.183
Before the April 1978 coup, Afghanistan had one university in Kabul and a medical college in Jalalabad. At present only Kabul University continues to function. In the 12 years of war, some 70 percent of its faculty have been imprisoned or killed or are living in exile abroad.184 Since 1989, the university has been closed on a number of occasions -- sometimes for weeks on end -- because of dangers posed by mujahidin rocket attacks.185
Under the Soviets, all aspects of academic life came under the control of the state. Faculty appointments were made on the basis of party loyalty rather than academic qualifications. Soviet staff also replaced Afghan professors, although according to former and current university professors interviewed by Asia Watch, very few were qualified to be instructors, and few had the language skills to teach. Thousands of books were confiscated or destroyed, particularly those from Western countries and those in English. Professors were made to accept deliveries of hundreds of Soviet books, regardless of whether they wanted them or could use them.186
Students were also pressured to join the party and to study in the Soviet Union. The schools and universities were infiltrated by agents of KHAD who kept students, teachers and professors under surveillance. Professors who resisted efforts to change the curriculum to conform to official ideology, and students who attempted to organize protests or circulate night letters were taken in for interrogation and torture by the KHAD.
Since June 1989, the government has instituted a number of reforms that have created a marginally more open atmosphere at the university. However, serious obstacles to academic freedom and freedom of expression remain, not the least of which is the climate of fear created by 12 years of repression.
In June 1989, following an impromptu meeting between a number of faculty members from Kabul University and President Najibullah,187 reforms were instituted to replace the system of appointment with elections for the positions of dean and rector and for the members of the council. A secret ballot vote to elect these officers had been the rule before 1978 coup.188
Surveillance of university professors and students by state security agents continues, although there are indications that it is not as pervasive as before. University staff interviewed by Asia Watch stated that until a year ago, they were followed everywhere by WAD agents. Although thesurveillance has apparently been reduced, WAD informants posing as students are still present on campus.189
Until January 1990, certain compulsory subjects in philosophy and political economy were still determined by the government. Since then, decisions about curricula have been returned to individual departments and the university rector, and there has been a relaxation in ideological orthodoxy. However, certain subjects remain taboo, particularly in political science and history, because faculty members fear that WAD agents will inform on them. Moreover, students are still required to spend six hours a week in military studies. Although suspect books are no longer routinely destroyed, orders for books which do not meet the approval of the authorities simply go unfilled, and no answer for the delay is provided. One faculty member told Asia Watch that Kabul University has no books published more recently than 1980.190
The Legal System
The two decades before the April 1978 coup saw Afghanistan's first attempts at reforming a legal system that embraced both an inchoate state structure in the cities which included the sharia (Islamic law) as part of the written legal code, and the traditions of Islamic and tribal justice in the countryside. With the promulgation of the 1964 Constitution, the government attempted to reconcile the largely rural qazi (Islamic judge) system with the standards of state law. One of the most important changes in this area was a provision granting the judiciary the status of an "independent organ of the state" which "discharges its duties side by side with the legislative and executive organs."191 That independence has unfortunately never been fully realized.
According to Dupree, the judiciary had always been "semi-religious and semi-secular, with the hundred-odd qazi ... often semi-trained, but each having the power of life and death."192
Theoretically, the qazi made decisions under the Hanafi sharia, but in the time of King Mohammad Nadir Shah (1929-33), law increasingly moved into the hands of provincial administrators ... After the promulgation of the 1964 Constitution, all legal decisions have been transferred (at least theoretically) to the qazi, but secular law has supremacy."193
The 1964 Constitution also established for the first time the office of the Attorney General, which functioned as part of the executive and had the responsibility for investigating crime and presiding over hearings and trials.194 As part of a series of changes in the country's legal institutions after the coup in 1973, the office was granted additional powers and was separated from the executive as an independent organ. With the Constitution of 1987, the Attorney General's office came directly under the president. Since then, it has had oversight not only over national security cases but also over ordinary cases and military crimes. According to Minister of Justice Dareez, a new amendment will bring it back under his ministry.195
A 1965 judicial law introduced the first important reform in the area of defendants' rights by specifying a time by which charges must be filed, and the accused must be given a hearing. Before that, there were no such limits, and detainees were frequently held for many months before seeing a judge.196 The first penal code was not approved until1976. It attempted to define crimes and regularize punishments as a safeguard against the arbitrary nature of qazi justice.197 Efforts were also made to provide lawyers and judges with legal training in Europe for civil law and in Egypt for the sharia.198 All these attempts at gradual legal reform ended with the April 1978 coup.
Following the 1978 coup the PDPA (Khalq) government of Hafizullah Amin embarked on a campaign of terror that resulted in mass arrests and the summary execution of political opponents; there was no due process. Lawyers and judges were among the professional groups which were particularly targeted during this period.199
After December 1979, the legal system came entirely under the control of KHAD and its Soviet advisers. Surveillance, disappearances and mass arrests continued, and torture became a routine part of the interrogation process. Trials were held before the KHAD's Revolutionary Court in the Sedarat detention center:200
It is the KHAD, rather than the court, that determines innocence or guilt. The court confirms the KHAD's "guilty" verdict and determines the sentence in accordance with the recommendation of the KHAD.... There is no appeal from the decision of the Revolutionary Court.201
Since the Soviet withdrawal, the numbers of arrests in government-controlled areas appear to have declined, according to independent observers Asia Watch interviewed in Kabul. Nevertheless, the few existing legal safeguards appear to be inadequate to prevent arbitrary arrest.
Most arrests are still carried out by security forces under the Ministry of State Security, the WAD. The other security force that is empowered to carry out arrests is the police or sarandoi, which is responsible to the Ministry of the Interior. Certain sarandoi detachments provide support for the WAD security forces under which they have a paramilitary function.202 The sarandoi also has responsibility for ordinary police functions, including traffic patrols and interdiction of smuggling. The government reportedly has also retained urban self-defense groups, associated with the party youth organizations and other groups affiliated with the government.203 The President has his own special security force, reportedly made up of elite members of the defense forces and WAD.
Security laws continue to define crimes so broadly as to restrict the non-violent exercise of freedom of speech and assembly. However, the decline in the number of arrests indicates that the net is not cast as widely as it was before. Independent sources in Kabul told Asia Watch that people now openly engage in activities that would have led to certain arrest in the past; for example, displaying photographs of ex-King Zaher Shah, or meeting with foreigners without prior government permission. Most of the sentenced prisoners Asia Watch interviewed or about whom Asia Watch received information were convicted on charges of "being an active member of" or "participating in the military activities of" one of the guerrilla forces at war with the government.
Access to Defense Counsel
Although the 1990 Constitution provides that every accused person has the right to defend himself or to obtain the services of defense counsel, Afghanistan has no tradition of legal defense; and so for most of the defendants awaiting trial, the right is not observed. The Minister for State Security confirmed to Asia Watch that "every accused has a right to a lawyer, but in our country the system of defense by lawyers is not so [common]."204 According to another government official, the shortage of lawyers has been a problem since the time of the monarchy. "We do not have the institution of lawyers as exists in the West ... The number of competent advocates in this country is only ten."205 This assessment is corroborated by scholars of Afghanistan's political history. According to Dupree, most lawyers trained in Western civil law entered the diplomatic service, leaving very few to practice law. The government is reportedly taking some steps to address this need. The Asia Watch delegation was told that a law on legal aid is being drafted.206
The attorney general (Saranwal) is supposed to "supervise the investigation process from the point of arrest of the accused until the case goes to court and the conclusion of the investigation,"207 and determine if there are sufficient grounds for continued detention.208 He is also supposed to ensure that the prosecution has sufficient evidence,and prepare the indictment on the basis of that evidence. The accused is presented with a summary of the interrogation and evidence. Although the Attorney General is also empowered to question the legality of decisions of the courts, there was no evidence of his ever having done so.
Government officials stated that the independence of the Attorney General serves as a check against illegal detention and torture of detainees.209 Although the Attorney General is supposed to investigate reports of mistreatment or illegal detention, in fact, his authority is much more limited.
An attorney from the Attorney General's office is supposed to see all detainees within 72 hours of arrest, and ensure that the defendant "has access to defense."210 However, detainees interviewed by Asia Watch, almost invariably stated that they intended to defend themselves; obtaining defense counsel was not recognized as an option. One 21-year-old prisoner, sentenced to 15 years for participating in an "armed uprising" told Asia Watch, "I didn't want a lawyer, it costs money."211 A prisoner who had been sentenced to 15 years for a bombing incident said he had been told by an attorney from the Attorney General's office that seeing a lawyer was not possible given the nature of his crime.212 Our government translator interjected that in cases where a person is "caught red-handed," there is no need for counsel, "although someintellectual people who understand these things, they get a lawyer."213 When we asked whether anyone was ever denied access to a lawyer, it was clear that for most cases, the option did not even exist.214
The defendant is given no more than a few days to prepare a written statement in which he or she must either accept or refute the charges and evidence that the attorney has put forward. This is the first opportunity the accused has to see the evidence, and the statement he or she must write apparently constitutes the whole of the defense. Prisoners who were detained during the Babrak Karmal years also described being told to write a written defense after they were provided with a summary of the interrogation by security officials.215 Government officials told Asia Watch that it was "very rare" for an accused to provide evidence that would prove his innocence, or would substantiate mitigating circumstances.216 None of the detainees Asia Watch interviewed at Sedarat had been informed of their trial date, or had been told how long they would be held for interrogation. There is no bail for detainees arrested on suspicion of "opposition activities."
Arrests During the March 1990 Coup Attempt
The absence of effective safeguards against arbitrary arrest was evident in the mass arrests that took place following the abortive coup attempt on March 6, 1990. On that day, then Defense Minister General Shahnawaz Tanai,217 attempted a coup d'etat against the government of President Najibullah, and quickly won the support of Hezb-e Islami leader Hekmatyar. For some 24 hours, Kabul was the scene of fiercefighting between forces loyal to Najibullah's government and those backing the rebels. During that period, over 600 persons were arrested,218 according to official sources, and detained without access to family or defense counsel for periods ranging from several days to several months. The event underscored the fact that, despite constitutional reforms, there is as yet little protection against arbitrary arrest.
Asia Watch interviewed Anwar,219 an employee of an international relief organization, who was among those arrested on March 6. He was taken to the PDPA Central Committee headquarters, where the detaining officer accused him of trying to contact the rebels. He was detained there overnight, and the next day taken to the Arg, the presidential palace. All his personal documents, including his passport, were taken from him and he was not permitted to make contact with his employers.
At the Arg, Anwar was taken to a large room where about a dozen people were being held. He recognized most of them as the drivers of Central Committee members who had apparently fled or had gone into hiding. Evidently, the security forces had arrested these drivers when they were not able to locate the committee members they suspected of involvement in the coup attempt. Anwar was held at the Arg for 17 hours, during which time his hands were tied behind his back and he was ordered not to speak. He was then transferred to the Sedarat detention center, and later to Pol-e Charkhi. Anwar described his interrogation in the WAD headquarters in Sedarat:
They started with accusations: "Are you against the government? Are you with the opposition? Are you a spy for the Iranian Embassy? Are you a spy for the CIA.? You have paid a fee to the rebels; I have the list and your name is on it." Finally I told them "If my name is on a list, I don't know. I am sorry if my name has been given to you, but I am not involved."220
As was previously the case, WAD relies on informants who gather intelligence on suspected opponents of the government. In this case, the prisoner believed he had been informed on by WAD agents who had infiltrated his work place. He was held for three months before being released without explanation. When he asked for a certificate that would prove his innocence, he was refused.
Government officials told Asia Watch that, in the days following the coup attempt, the Attorney General requested and was granted permission by the Ministry of State Security to see all the persons who had been arrested. The Attorney General also told Asia Watch that his representatives visited all of the detainees within three days of arrest.221 However, if the attorney general had genuine authority in this area, he should not need to request permission for such visits. Asia Watch interviewed one detainee who told us that he was not seen by a government attorney until 25 days after his arrest, and then only in the presence of security officials. When he complained about having been illegally arrested, the attorney told him that it was "not the right time" to raise the issue. The detainee then pleaded to meet with the attorney in private, but the attorney refused to do so.222
In total, 644 people were arrested following the coup attempt, according to Minister of State Security Ghulam Yaqubi.223 Asia Watch was told that of these, 205 were reportedly released after investigation when it was determined that they were "either not very involved or very repentant."224 The remaining 439 were tried before a special court constituted for these cases with judges from both the National Security Court and the military court. This court reportedly sat in the State Security complex for three months. None of the defendants had access to a lawyer; the Chairman of the National Security Court, Karim Shahdan, told Asia Watch, "No lawyers would defend them, because they hate them [the coup plotters]." He added that none of thepersons accused in the coup had wanted a lawyer.225 International law and Afghanistan's constitution guarantee the right to a defense attorney. It is clear that the government faces difficulties in providing attorneys due to the dearth of trained lawyers in the country. However, denying counsel because of the nature of the crime is inexcusable.
The Arrests of the National Unity Party Members
Suspected links with mujahidin factions in Pakistan was the official reason for the arrest in June 1989 of the founding members of the National Unity Party (NUP). At the time of their arrest, they were apparently preparing the required papers to register their organization under a new law on political parties. The party's supporters have stated that the NUP, an association of university lecturers, scientists and retired and active army officers, was committed to seeking "to create an atmosphere for the peaceful transfer of power to a government elected by the people of Afghanistan, and to be committed to a campaign for civil liberties and equality between men and women."226 Independent sources Asia Watch interviewed in Kabul stated that most of the members of the party supported the ex-King Zaher Shah and that the party formed in 1988 in order to propose a peaceful political solution to the conflict. According to one supporter who was arrested, among the reasons for the arrests was the fear that the group had penetrated the military and that it had established contact with mujahidin leaders.
One of the founding members, Mohsen Mohammad Formoly, of the Academy of Science, was originally reported to have "disappeared" after his arrest, but after inquiries from the U.N. Special Rapporteur on Afghanistan, he was discovered to be in detention at the Shashdarak interrogation center in Kabul.227
In addition to those who were actually members of the party, a number of party supporters were arrested, including Dr. Osman Rustar, a lecturer in the faculty of law and political science. He was arrested on June 10, 1989, as he was leaving the university in his car. Denied sleep for four consecutive days and nights during his interrogation, he was released four weeks later.
When Asia Watch questioned Minister of State Security Ghulam Yaqubi about the arrests, he stated that the group had "acted as an underground political organization, without being registered," and that they were trying to "weaken the armed forces" and were "collecting arms and explosives for an offensive and were linked with [the radical mujahidin leader] Sayyaf." Minister Yaqubi assured Asia Watch that "if they did not collect weapons, we would not have bothered with them."228 In an address to the Academy of Science on July 30, 1990, President Najibullah also stated that "some members of this [National Unity] party in their confessions disclosed that the question of an armed uprising was raised in its ranks," and that "arms and ammunition were recovered from a number of its members."229 However, Asia Watch sources have indicated that the group was entirely non-violent, and although one member of the group apparently visited Pakistan in the months before the arrests, he had opposed the radical positions taken by Sayyaf and some other mujahidin groups.
Most of the members of the NUP were released late in 1989. According to official government sources, those who had been sentenced by the National Security Court were later pardoned and released. When Asia Watch questioned the fact that the party members were released despite the serious charge of aiding the mujahidin, Minister Yaqubi responded, "We realized they were repentant."230 If, in fact, the group was involved in arms smuggling, this hardly seems a satisfactory response. Instead, it appears that the government was reacting to international criticism of its arrest of the party members at a time whenit is trying to project an image of political pluralism and openness. When one of those arrested was released, he was reportedly told,"We see that you are not a fundamentalist. Our policy is only against fundamentalists."231
Political cases are tried by the National Security Court, which was established in 1988.232 The National Security Court system comprises both primary courts and appellate courts. All judges are appointed by the President, after consultation with the Chairman of the National Security Court, who reports directly to the President. Under the Constitution, neither the judges nor the Chairman of the Court may be party members. According to government officials, the judges appointed to the National Security Court must be graduates of either the Faculty of Law and Political Science or the Faculty of Theology, or graduates of a madrassa where they studied the sharia, or they must have served 12 years in a judicial capacity. Members of the National Security Court also make up a special judicial council of the Supreme Court. Judges and administrative staff of the National Security Court also travel to the provinces to hold sessions.
Government officials told Asia Watch that court sessions ordinarily do not last longer than a day, and that as many as three sessions are routinely scheduled in a single day.233 In the past, as many as seven sessions would be held in a day. The accused is given three to six days to prepare a defense before the trial begins. According to Chairman of the National Security Court Abdul Karim Shahdan, theaccused is given the opportunity to cross-examine witnesses. Although we were told that only confessions made before the court are considered valid, in fact, any confession, including those made during initial interrogation, may be read to the court. The accused is reportedly given the opportunity to deny the confession, but it is nevertheless presented as evidence for the prosecution.234
Officials also stated that in camera proceedings are permitted whenever the case involves governmental secrets; presumably, this could apply to every "national security" case. Since defendants do not have access to lawyers or to family members before the sentencing, and are given almost no advance notice of the trial date, it would be difficult for anyone else to attend the trial even if access were permitted. Some trials, however, have been televised, apparently for propaganda purposes.
Under the State of Emergency, prisoners sentenced to less than 10 years' imprisonment were denied the right of appeal. Government officials informed Asia Watch that with the lifting of the Emergency on May 4, 1990, such restrictions on the right of appeal have ended. However, prisoners arrested before the Emergency was lifted do not benefit from the changes and are still not allowed to appeal their sentence. The majority of these prisoners may, however, be eligible for one of the amnesties announced by the government since 1989. According to government officials, when the verdict is announced by the primary court, the defendant is given a document that states the sentence. He or she has 30 days to register an appeal of either the sentence or the verdict. The appeals court must hear the case within three months.235
Since 1988, the government has implemented a series of amnesties for various categories of political prisoners. Official sources told Asia Watch that since the end of 1986, 18,000 prisoners have been amnestied.236 According to Minister of the Interior Raz MohammadPakteen, 1,000 prisoners were released between May and July 1990.237 It was not possible to verify these figures independently, however. Among the prisoners eligible for amnesty are those who have already served six or more years of their sentence, those aged 60 or older, and members of the government's forces who deserted to join the opposition.
The imposition of the death penalty has been common during most of the war. Although when Babrak Karmal became President of the Democratic Republic of Afghanistan in 1980, he stated his intention to "abolish executions under favorable conditions,"238 throughout his presidency, the government announced death sentences and executions. In 1980 the government announced 18 executions; in 1981, 14; in 1982, 16; and in 1983, 13. In 1984, the government announced 68 executions and 77 death sentences; in 1985, the government announced 40 death sentences, but stopped announcing executions. Amnesty International believes that in each of these years "these were only a proportion of the total number of death sentences that were imposed."239 According to former prisoners and defecting officials and prison personnel, actual executions in these years far outnumbered those announced. By 1987, the government stopped announcing most death sentences and executions, but executions continued.240
Since 1989, there has been a moratorium on death sentences, according to government officials. President Najibullah told Asia Watch that no executions have been carried out in since 1989, and that all deathsentences, which he said numbered 21 at that time, were under review.241 However, the Pakistani papers reported that some 54 army officers had been sentenced to death for their alleged involvement in the March coup attempt.242 A large number of executions were also reported to have been carried out in Pol-e Charkhi just before the Soviet withdrawal; however, Asia Watch has not been able to confirm these reports.
After the Soviet invasion, torture of political detainees became systematic and widespread. Although torture had been carried out under previous governments, it only became a fully integrated part of the interrogation process under Babrak Karmal. Throughout the war, refugees interviewed in Pakistan described in detail the torture and mistreatment to which they were subjected. Methods included severe beatings, electric shock, burning with chemicals and cigarettes, and deprivation of food and sleep.
During the Asia Watch mission to Afghanistan in mid-1990, we were not able to interview detainees privately nor to locate many released prisoners who could provide us with first-hand information about whether mistreatment and torture persist as a component of interrogation for detainees under investigation. From reports we received it appears that systematic use of torture during interrogation has declined; however, we were able to interview a number of detainees who were deprived of sleep for periods ranging from one night to four consecutive days and nights during interrogation.243 The U.N. Special Rapporteur on Afghanistan received reports that, in one case following the attempted coup inDecember 1989, Brigadier Abdul Sami Azizi was reportedly tortured to death in prison.244
Unfortunately, assurances by government officials that torture is not tolerated have not been accompanied by adequate measures to prevent torture. Such measures should include at least granting the ICRC immediate access to all detainees and ensuring the detainees have access to family members and defense counsel.245 All reports of torture should be fully investigated, and those responsible prosecuted. Minister of State Security Yaqubi told Asia Watch that seven WAD officers had been prosecuted on charges of maltreating detainees since 1986. Asia Watch was not able to obtain information about specific charges, the rank of the officers, and the sentences, if any.246
Minister of State Security Yaqubi also told Asia Watch that the "best guarantee for preventing torture"247 was Article 42 of the 1990 Constitution, which states that
... torture and excruciation are prohibited. Obtaining [a] confession, testimony or statement from an accused or other person by compulsion or threat is prohibited. Statements or testimony taken from an accused or other person by means of compulsion shall not be valid. A public servant who tortures an accused or any other person for obtaining statements, testimony or confession, or who issues orders for torture, shall be punished in accordance with the law. Acting on the orders of superiors in the commission of unlawful deeds cannot be the ground for the plea of innocence.
However, as noted above,248 any confession, including those made during interrogation, may be read to the court, although the accused may deny the statement. Attorney General Sharaf told Asia Watch that because the accused is usually caught "with the evidence" there was no need for torture.249
Following arrest, a detainee is taken to army camps or WAD detention centers where he is held for anywhere from a few days to several months. Prisoners who have not been sentenced are detained in one of a number of detention centers and "supervision houses."250 According to the Minister of State Security, there are 21 detention centers throughout the country and three in Kabul. These three include Blocks 1 and 2 in Pol-e Charkhi Prison, Sedarat and the WAD headquarters at Shasdarak. There are also detention centers in every province.251
In previous years, interrogation was also reported to take place at a number of unofficial interrogation centers, including the Ministry of the Interior, which is operated by the sarandoi, a security force under that Ministry; and at least five offices in Kabul: Offices numbered Three, Four and Five; the Ahmad Shah Khan house, a house in Wazir Akbar Khan; and the KHAD office in the Howzai Barikat district. In Qandahar, in addition to the KHAD headquarters, interrogation and torture was reported to have taken place at Darwazan and the Musa Khan building.252 During the Asia Watch mission, we were not able to determine if these interrogation centers remain in use.
At the time of the Asia Watch visit, government officials told us that 97 detainees were under investigation in the provinces and 133 in Kabul. In addition, the investigation process had been completed in another 465 cases in Kabul, and the detainees were said to be waiting for the verdict of the court.253 The Minister of State Security told Asia Watch that, with the exception of the March coup attempt arrests, the total number of detainees for 1990 was the lowest of any recent year, and credited the new law on political parties with reducing underground activity.254
Detainees are held in the detention centers until the completion of the investigation, a process that previously took as long as a year.255 Director Hakim of the Detention Center at Sedarat and Chief of Investigation Ghanim informed Asia Watch that investigations took no longer than two months, or in unusual cases, three to four months. Asia Watch was not permitted to interview detainees at Sedarat in private; the detainees we spoke to had each been detained for a month, and they did not know how long they would be held.0 After the investigation is complete, the prisoner is afforded an abbreviated trial before the National Security Court, and then generally is transferred to Pol-e Charkhi or to a provincial prison. In some cases, a detainee may be transferred before the investigation is complete. Mujahidin captured in the field are also said to be detained in army custody, where interrogation takes place in some cases for several months before the prisoner is tried and transferred to prison.
At the time of the Asia Watch visit, Pol-e Charkhi held 3130 prisoners, 2275 of whom were political prisoners, according togovernment officials.1 The severe overcrowding that characterized prison life in Pol-e Charkhi during most of the war has eased,2 in large part because of amnesties which have resulted in the release of some 19,000 prisoners from Pol-e Charkhi and other prisons since 1988.
However, for detainees who have not been sentenced, conditions remain precarious. Detainees arrested following the March 1990 coup attempt described conditions of severe overcrowding and inadequate food during the first weeks following the arrests.3 While sentenced prisoners are permitted regular visits (every 15 days) from family members;4 detainees are not permitted such visits. The government should abolish all such unofficial detention centers and hold prisoner only in registered places of detention to which the detainees' family members and defense counsel have access. The ICRC should be granted immediate access to all detainees.
In addition to Afghans imprisoned under charges of participating in an "armed uprising against the government," the Afghan government has imprisoned a number of foreigners, including Pakistanis, Egyptians, Saudis and Jordanians, on charges of "spying" or of "assisting the opposition forces."5 In some cases, these arrests are notacknowledged and the prisoner is not permitted visits from representatives of his government. For example, Asia Watch received reports that despite requests to do so, the Pakistani chargé d'affaires has not been permitted to see Pakistani detainees and prisoners, and that he has received no reply to a request to exchange prisoner lists. The government of Afghanistan should ensure that all imprisoned foreign nationals be permitted access to representatives from their governments, and that all such arrests be acknowledged and the prisoners permitted visits by the ICRC.
147 Under the State of Emergency, President Najibullah's formally acquired increased powers; however, according to the report of the U.N. Special Rapporteur on Afghanistan, the State of Emergency did not bring about "significant change" in human rights conditions. See Felix Ermacora, "Situation of Human Rights in Afghanistan," Report to the General Assembly of the United Nations, U.N.A/44/669, October 30, 1989, p. 10.
155 One Central Committee member told Asia Watch that the party's current membership was 46% Pashtun, 48% Tajik, Turkoman and Uzbek, 3% Hazara and 3% other. Interview with Zahir Tannin in Kabul, July 22, 1990. Asia Watch has no way of verifying these figures.
161 Declaration of Intent by National Salvation Society; and "Open Letter by the National Salvation Society of Afghanistan Addressed to the Ministers of Foreign Affairs of the USSR and the USA." July 11, 1990.
174 Visas for journalists, as for other visitors, are limited to one month. Asia Watch interviewed journalists in Kabul who told us that visas are not formally renewed, although journalists are generally allowed to stay on after the expiration without difficulty. Some journalists believe the government does this in order to have an excuse to deport them if they are too critical. While Asia Watch knows of no case where this has happened, the possibility of expulsion may make journalists circumscribe their reporting. Interviews with foreign correspondents in Kabul, July 20, 1990, and in Washington D.C., January 12, 1991.
179 KHAD stands for Khademat-e Ettela'at-e Dawlati, (State Information Service), the secret police, which was organized by the Soviet KGB in 1980, under the Prime Minister's office. In 1986 it became a full ministry, and its name was changed to WAD (Wazarat-e Amaneyat-e Dawlati). The head of KHAD/WAD has always been a Politburo member of the PDPA/Watan Party.
187 Ibid. In June 1989, a number of faculty members were brought in to the Foreign Ministry to meet with Najibullah when the bus in which they were returning from a memorial service for a deceased colleague was abruptly redirected. There, according to one faculty member who was present, President Najibullah addressed the professors and invited their criticism about the functioning of the Education Ministry. During the discussion, a number of faculty members were reportedly very outspoken, including the present Justice Minister Ghulam Muhayuddin Dareez, who was a professor of law at the time. As an immediate result of the meeting, the Minister of Higher Education was replaced. Interview with Kabul University professor in Kabul, July 25, 1990.
189 The Head of the Seventh Department at the Ministry of State Security (WAD) is reportedly responsible for surveillance at the university. According to one professor interviewed by Asia Watch, agents posing as students are identifiable because although they carry student cards, they have not passed the entrance examination. Interview with Kabul University professor during visit to campus, July 25, 1990.
192 Article 69 of the 1964 Constitution also stated that 'excepting the conditions for which specific provisions have been made in this Constitution, a law is a resolution passed by both houses [of Parliament] and signed by the king. In the area where no such law exists, the provisions of the Hanafi jurisprudence of the sharia shall be considered as law.' See Dupree, pp. 580-81.
199 According to Roy, "for this period, the aim was the total elimination of certain social categories (the clergy and the people of influence) rather than genocide." He lists among those killed in huge numbers the "middle-class people of influence (rather than the aristocracy, considered to be less dangerous because cut off from the people), the 'ulama, guardians of age-old Islamic culture, and finally young Marxist intellectuals, who might have shown a different way toward modernity." Lawyers and judges who had been trained in the West were killed along with others associated with the Daoud government. See Roy, pp. 95-97.
208 Ibid, July 25, 1990. The Attorney General is an investigating magistrate on the French model (the Faculty of Law at Kabul University was originally affiliated to the University of Paris). According to Article 120 of the 1990 Constitution, the Attorney General has the power of "high supervision over the implementation and uniform observance of laws" by all state agencies, private institutions, political parties and individual citizens. Article 106 of the 1976 Constitution stated that, "The detection of crimes by the police, and the investigation, pursuit and prosecution thereof by the Attorney General, who are part of the executive organ, shall be conducted in accordance with the provisions of the law."
209 The Attorney General told Asia Watch that he answers only to the President and not to any other governmental office. Interview with Attorney General Sharaf, in Kabul, July 25, 1990. The fact that the Attorney General had declined any position in the government since 1986 was cited as evidence of his independence. Interview with Foreign Minister Abdul Wakil, in Kabul, July 26, 1990. The 1990 Constitution also states that "the attorney offices are independent in the performance of their duties and are subject only to the law and the Attorney General."
210 According to the Attorney General, an individual prisoner may be held for up to 72 hours before he can be seen; if however, the accused is part of a group of people arrested and there is "danger that evidence could be removed;" the period of detention before they may be seen is apparently not limited. Interview in Kabul, July 31, 1990.
231 According to an Asia Watch source interviewed in Kabul on August 1, 1990, the official who said this was the head of the Seventh Department in the WAD which deals with intellectuals who have been arrested and reportedly provides agents who pose as students to keep university faculty and students under surveillance.
236 Interview with Director of Prisons Colonel Mohammad Yusuf Khetmatyar at Pol-e Charkhi Prison, July 31, 1990. At the time of the U.N. Special Rapporteur on Afghanistan's visit in 1990, official sources states that 19,514prisoners had been amnestied under 20 general amnesty decrees, and another 366 individual amnesty decrees had been pronounced. The report notes that "the number of incoming prisoners is less than the number of those who are released." U.N. Report, 1990, pp. 11-12.
239 Amnesty International: Report 1985 (London: Amnesty International, 1985), p. 197; Amnesty International Report 1986 (London: Amnesty International, 1986), p. 207; Amnesty International Report 1987 (London: Amnesty International, 1987), p. 216. See also Laber and Rubin, p. 102.
243 Interview in Kabul, July 31. Felix Ermacora, the U.N. Special Rapporteur on Afghanistan, also acknowledged receiving reports that "deprivation of sleep is a constant practice during interrogation." U.N. Report, 1990, p. 13.
245 The ICRC has access only to sentenced prisoners, and improvements in the treatment of these prisoners is probably due in large part to their presence. Unfortunately, until October 1990, heavy fighting around Jalalabad had prevented the ICRC from visiting sentenced prisoners in Jalalabad jail. Asia Watch has received reports of mistreatment and severe conditions for prisoners and detainees held there.
251 During Asia Watch's mission to Kabul, the delegation was unable to obtain information as to whether these centers remain in operation. Interview with Minister of State Security Ghulam Yaqubi, July 24, 1990.
253 Interview with Minister of State Security Ghulam Yaqubi, July 24, 1990. According to the U.N. Special Rapporteur on Afghanistan, Felix Ermacora, official figures for the number of detainees as of September 1990 were 574: 26 persons under interrogation; 319 awaiting trial or sentencing and 229 convicted prisoners. U.N. Report, 1990, p. 12.
2 Throughout most of the war, Pol-e Charkhi held an estimated 10,000 to 15,000 prisoners -- well in excess of the 5000 it was built to accommodate. Prisoners intrerviewed by Asia Watch and Helsinki Watch described conditions of severe cold, poor sanitation, inadequate food and widespread disease among prisoners. See Helsinki Watch/Asia Watch reports cited in fn.1.
5 At the time of the Asia Watch visit, 33 foreign prisoners were held at Pol-e Charkhi: 22 Pakistanis, seven Iranian and four Arabs of unspecified nationality. Interview with Director of Prisons Colonel Mohammad Yusuf Khetmatyar, Pol-e Charkhi prison, July 24, 1990.