Following the September 11, 2001 attacks, the United States went to war in Afghanistan in the name of national security and the protection of fundamental rights and freedoms, and with a stated secondary aim of liberating the people of Afghanistan from the cruel and capricious rule of the Taliban.
Yet today, on Afghan soil, the United States is maintaining a system of arrests and detention as part of its ongoing military and intelligence operations that violates international human rights law and international humanitarian law (the laws of war). In doing so, the United States is endangering the lives of Afghan civilians, undermining efforts to restore the rule of law in Afghanistan, and calling into question its commitment to upholding basic rights.
This report, based on research conducted in southeast and eastern Afghanistan in 2003 and early 2004, focuses on how U.S. forces arrest and detain persons in Afghanistan.1 It details numerous abuses by U.S. personnel, including cases of excessive force during arrests; arbitrary and indefinite detention; and mistreatment of detainees. The report also details the overall legal deficiencies of the U.S.-administered detention system in Afghanistan, which, as shown here, operates almost entirely outside of the rule of law.
In Afghanistan, United States and coalition forces, allied with local Afghan forces, are fighting armed groups comprised of members of the Taliban, the mujahidin group Hezb-e Islami, and a relatively small number of non-Afghan fighters, some of whom are associated with al-Qaeda. For their part, these groups have shown little willingness to abide by international humanitarian law or human rights standards: they have carried out abductions and attacks against civilians and humanitarian aid workers and detonated bombs in bazaars and other civilian areas. Those responsible for these violations, including the leaders of these groups, should, if captured, be investigated and prosecuted for violations of Afghan law and the laws of war.
But the activities of these groups are no excuse for U.S. violations. The Geneva Conventions do not require reciprocity to be applicable. Abuses by one party to a conflict, no matter how egregious, do not justify violations by the other side. This is a fundamental principle of international humanitarian law.
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From 2002 to the present, Human Rights Watch estimates that at least one thousand Afghans and other nationals have been arrested and detained by U.S.-led forces in Afghanistan. Some of those apprehended have been picked up during military operations while taking direct part in hostilities, but others taken into custody have been civilians with no apparent connection to ongoing hostilities. (This latter category may include persons wanted for criminal offenses, but such arrests are not carried out in compliance with Afghan or international legal standards.)
There are numerous reports that U.S. forces have used excessive or indiscriminate force when conducting arrests in residential areas in Afghanistan. As shown in this report, U.S. military forces have repeatedly used deadly force from helicopter gunships and small and heavy arms fire, including undirected suppressing fire, during what are essentially law-enforcement operations to arrest persons in uncontested locales. The use of these tactics has resulted in avoidable civilian deaths and injuries, and in individual cases may amount to violations of international humanitarian law.
Human Rights Watch has also documented that Afghan soldiers deployed alongside U.S. forces have beaten and otherwise mistreated people during arrest operations and looted homes or seized the land of those being detained. These violations should be a matter of concern to the United States. The Afghan government remains responsible for violations by Afghan forces that are under their control, and individual Afghan military commanders are culpable for abuses by their troops. But where Afghan forces have been put under the de facto control or command of U.S. forces during operations, U.S. personnel have a responsibility to prevent ongoing abuses by Afghan troops, and may be criminally culpable if they fail to do so.
Many of those arrested by U.S. forces are detained for indefinite periods at U.S. military bases or outposts. While held, these detainees have no contact with relatives or others, although some detainees receive visits from the International Committee of the Red Cross (ICRC). Detainees have no opportunity to challenge the basis for their detention, and are sometimes subjected to mistreatment or torture. Some detainees have been sent to the U.S. detention center at Guantanamo Bay Naval Base in Cuba, while others have been kept in Afghanistan.2 Many have ultimately been released; but some detainees in Afghanistan have been held for over two years.
The U.S. military maintains its main detention facility in Afghanistan at the Bagram airbase, north of the capital Kabul. There are an unknown number of additional U.S. detention facilities in the country, including at bases in Kandahar, Jalalabad, and Asadabad. The U.S. Central Intelligence Agency (CIA) is also holding an unknown number of detainees, both at Bagram airbase and at other locations in Afghanistan, including in Kabul. Furthermore, the United States has encouraged local Afghan authorities to detain hundreds of persons taken into custody during joint U.S.-Afghan operations. These persons are held without charge and in poor conditions, and some have been subjected to torture and other mistreatment. In the northern city of Shiberghan, approximately one thousand detainees—alleged Taliban combatants and foreign fighters allied and captured with them—are being held at a facility under the control of Afghan General Abdul Rashid Dostum, a member of the Karzai government and the commander of a predominately Uzbek militia, Junbish-e Melli. CIA and U.S. military interrogators are believed to have access to these detainees and others held by Afghan forces. The United States has opposed efforts by the Afghan and Pakistani governments to screen such detainees for release.
Human Rights Watch is also concerned about mistreatment of detainees in custody. Human Rights Watch has had access only to detainees released from U.S. custody.3 Human Rights Watch researchers therefore have only been able to interview detainees whom U.S. authorities did notconsider to be a security risk or indictable for criminal offenses. From these detainees, however, Human Rights Watch has received credible allegations of mistreatment in U.S. custody. These allegations are consistent with other allegations received by the Afghan Independent Human Rights Commission, the United Nations Assistance Mission in Afghanistan (UNAMA), and numerous international journalists.
Afghans detained at Bagram airbase in 2002 have described being held in detention for weeks, continuously shackled, intentionally kept awake for extended periods of time, and forced to kneel or stand in painful positions for extended periods. Some say they were kicked and beaten when arrested, or later as part of efforts to keep them awake. Some say they were doused with freezing water in the winter. Similar allegations have been made about treatment in 2002 and 2003 at U.S. military bases in Kandahar and in U.S. detention facilities in the eastern cities of Jalalabad and Asadabad.
In December 2002 two Afghan detainees died at Bagram. Both of their deaths were ruled homicides by U.S. military doctors who performed autopsies. Department of Defense officials claim to have launched an investigation into the deaths in March 2003. In June 2003, another Afghan died at a detention site near Asadabad, in Kunar province. The Department of Defense has yet to explain adequately the circumstances of any of these deaths. Human Rights Watch is concerned that the results of any investigations may never be publicized, and that appropriate criminal and disciplinary action may never take place.
Concerns about conditions at Bagram persist. The Afghan Independent Human Rights Commission has collected complaints alleging torture and mistreatment made by recently released detainees and families of persons still detained.
Human Rights Watch is also deeply concerned about the lack of legal process for detainees. The United States has set up a system in Afghanistan that does not provide detainees a process whereby they can contest their detention and obtain their release. Ordinary civilians caught up in military operations and arrested are left in a hopeless situation. Once in custody, they have no way of challenging the legal basis for their detention or obtaining a hearing before an adjudicative body. They have no access to legal counsel. Their release is wholly dependent on decisions of the U.S. military command, with little apparent regard for the requirements of international law—whether the treatment of civilians under international humanitarian law or the due process requirements of human rights law.
Not a single person detained in Afghanistan since the start of U.S. operations in 2001 has been afforded prisoner-of-war status or other legal status under the 1949 Geneva Conventions.4 No one held by the United States since the start of hostilities to the present has been charged or tried for any crime (with the single exception of John Walker Lindh, a U.S. citizen) nor has the United States or the present Afghan government set up any tribunals or other legal mechanisms to process detainees captured in connection with military operations. The United States continues to treat all detainees it has captured in Afghanistan as “unlawful combatants” it considers not entitled to the full protections of the Geneva Conventions or of human rights law.
The Afghan government also has obligations to protect the rights of persons within its borders. President Hamid Karzai has complained to U.S. authorities on occasion about abuses by U.S. troops. The Afghan government and the Afghan Ministry of Defense have limited influence over U.S. military strategies and policies, but they can do more to insist that U.S. forces operating in Afghanistan uphold international humanitarian law and human rights law.
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The violations of detainees’ rights documented in this report are exacerbated by the almost complete opacity maintained by U.S. officials about the Bagram facility and other detention facilities in Afghanistan. The United States refuses to allow access to detainees’ families, lawyers, or advocates, or to journalists or representatives of non-governmental organizations (other than the ICRC). And it is not evident that the detention system maintained by the United States in Afghanistan is conducive to the security of U.S. forces. The routine arrests and indefinite detention of persons who have no genuine connection to armed opposition groups has angered many Afghan communities and lessened their willingness to cooperate with U.S forces.
Almost nothing is known about U.S. investigations or prosecutions of U.S. military personnel for alleged violations of international humanitarian law. (This is in sharp contrast with Iraq, where a number of cases involving U.S. soldiers have been publicly reported.) Simply put, the United States operates its detention facilities in Afghanistan in a climate of almost total impunity. As noted, the Department of Defense has not even released the results of its investigations into the deaths of Afghan detainees at Bagram and Asadabad and has yet to explain adequately the circumstances of these deaths. Nor have U.S. officials adequately responded to inquiries about alleged mistreatment and torture by U.S. forces in Afghanistan made by human rights groups and members of the U.S. Congress.5
There is little doubt that U.S. policies on the detention of terrorism suspects—both in Afghanistan and elsewhere—have harmed public opinion of the United States around the world, and have damaged some of its efforts in building a coalition to combat international terrorism.
These policies are also making it more difficult for the United States to criticize other governments for violating international human rights and humanitarian law standards in maintaining detention facilities. Every year, the U.S. State Department publishes “Country Reports on Human Rights Practices,” which contain criticisms of abuses similar to those documented in this report, such as beatings, use of sleep deprivation, continuous shackling, and long-term isolation.6 The United States is undermining the effectiveness of these reports by committing the same abuses it has rightly criticized elsewhere.
The U.S. detention policy in Afghanistan serves as a poor example for other nations around the world, and for Afghanistan itself. Afghan warlords whose troops are deployed alongside U.S. forces in Afghanistan have done little to improve their horrific records with regard to the treatment of detained persons. Instead of setting a positive example for them, the behavior of the United States sends the message that the U.S. operates on a set of double standards. And worldwide, it is now all too easy for governments to justify their failures to uphold human rights by pointing to U.S. violations in Afghanistan.
It doesn’t have to be this way. Human Rights Watch believes that the protections provided under international humanitarian and human rights law do not conflict with the security of states. The U.S. and Afghan governments have both a duty and a responsibility to provide for the security of their populations and to take appropriate actions against those who threaten state security or violate the law. But in Afghanistan, the United States appears to have allowed its single-minded pursuit of security to obscure the obligation to protect individual rights, rights deeply ingrained in U.S. constitutional law and reflected in international law (as well as in the former and current Afghan constitutions). This course of action is shortsighted and damaging to the rule of law, not only in Afghanistan but across the world.
A list of recommendations to the United States, the Afghan government, and other countries involved in Afghanistan begins on page 51.
1 For the purposes of this report, the term “U.S. forces” refers to U.S. personnel in the Department of Defense and Central Intelligence Agency (“CIA”) and all other military personnel under the overall command of the President of the United States. The U.S.-led coalition force in Afghanistan is made up predominately of U.S. personnel, although there are approximately two thousand troops from other nations in the force. Approximately 6,000 troops from various nations are also stationed in Kabul and Kunduz city as part of the U.N.-mandated International Security Assistance Force (ISAF).
2 The Guantanamo Bay Naval Base in Cuba, where the United States is holding approximately 660 detainees, most of whom were taken into custody in Afghanistan, is not the subject of this report.
3 Human Rights Watch sent written requests in 2003 to Defense Secretary Donald Rumsfeld and General John Abizaid, the commander of Central Command (CENTCOM), for permission to visit U.S. detention facilities in Afghanistan and discuss our concerns about alleged abuses by U.S. forces with officials in the Department of Defense. To date we have not received any response. Officials in the public affairs offices of the Pentagon and CENTCOM told Human Rights Watch in October 2003 and again in January 2004 that such requests would not be granted. Human Rights Watch has also made written requests to George Tenet, the Director of Central Intelligence, regarding concerns about CIA operations in Afghanistan; a response from the General Counsel of the CIA indicated that CIA officials would not be available to discuss operations in Afghanistan.
4 Belligerents captured during the international armed conflict between the United States and the Taliban should have been afforded the status of prisoners of war under the Third Geneva Convention unless and until a “competent tribunal” under article 5 determined otherwise. The U.S. did not convene a single article 5 tribunal in Afghanistan, though it has held hundreds during the 2003 Iraq war and in previous conflicts. Afghan nationals found not to be prisoners of war would be entitled to “protected person” status under the Fourth Geneva Convention.
5 See, e.g., Letter from Senator Patrick Leahy to National Security Advisor Condoleeza Rice, June 2, 2003, available at http://www.hrw.org/press/2003/06/letter-to-rice.pdf; Response to Senator Leahy from Department of Defense General Counsel William Haynes, June 25, 2003, available at http://www.hrw.org/press/2003/06/letter-to-leahy.pdf.
6 See Appendix.