(New York) -- The international community must find solutions for dealing with captured foreign fighters and their families in Afghanistan, Human Rights Watch said today.
Many foreign fighters are believed to have taken part in massacres of civilians, the deliberate destruction of civilian property, and other serious abuses. At the same time, foreign fighters should not be repatriated if they face a serious threat of being tortured by their government when they return home, Human Rights Watch said.
"Foreign fighters who have committed grave crimes must be brought to justice," said James Ross, Senior Legal Advisor for Human Rights Watch. "But the U.S. and other governments must work with the new Afghan government to address the problem of the remaining fighters and their families."
The Afghan interim government, with international assistance, should establish a method of screening captured foreign fighters to determine their status under international humanitarian law and whether they may be responsible for criminal offenses. The detaining authorities must ensure their humane treatment at all times. To assist in this, the United States and Britain should provide logistic and technical support for the detention of captured fighters.
All persons implicated in serious violations of international humanitarian law and other international crimes should be prosecuted by competent and impartial tribunals that meet international fair trial standards. This could include trials before courts established in Afghanistan, courts in third countries exercising "universal jurisdiction," or some form of an international tribunal.
The remaining fighters and their families, and families of persons missing or detained pending trial, could number in the hundreds and possibly thousands. Under international humanitarian law, prisoners of war and interned civilians who have not committed serious crimes should be released and repatriated after the cessation of hostilities. Those who wish to return home or to a third country should be allowed to do so. Some governments will not want to accept citizens who have been fighters in Afghanistan because of security concerns. International law provides that no one shall be arbitrarily deprived of their right to enter their own country, though they may be subject to prosecution at home for criminal offenses.
Afghanistan can also deport foreign fighters and their families who are in Afghanistan unlawfully, unless they fear persecution that would qualify them for refugee status under international law. Family members of foreign fighters may fear persecution because of their relation to the fighter. Such claims must be taken into account irrespective of the status of their combatant relative.
Under the Convention against Torture, governments are also prohibited from sending persons to a country where such persons have substantial grounds for fearing they will be tortured. Besides withholding deportation, such concerns could be addressed through verifiable guarantees for the safety of those deported.
Among the countries where fighters returning home may face torture or other serious human rights abuse are Egypt, Uzbekistan, Russia, Saudi Arabia, China and Yemen. In October, Saudi Interior Minister Prince Nayef bin Abdul Aziz said without elaboration that supporters of Osama 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." On December 12 the Chinese foreign ministry responded to reports that there were some Chinese among captured Taliban fighters: "These Uighurs [Muslims from northwest China] 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."
Afghanistan may permit some of the remaining foreigners to stay, but local hostility may make that impossible. There may also be foreign women who wish to leave, but who have been forced into marriages or other domestic arrangements that make departure difficult.
This may leave a large number of foreign fighters and their family members without a clear destination.
Human Rights Watch urged the United States, Britain and other countries involved in Afghanistan to work with the interim government and international humanitarian agencies to address humanitarian and security issues regarding these persons, and to seek long-term solutions. Human Rights Watch also reiterated its call for the United Nations Secretary-General to appoint a commission of experts to gather and analyze evidence of serious violations of international law in Afghanistan, including war crimes and crimes against humanity, with the aim of preserving evidence and making recommendations for bringing offenders to justice.