<<previous | index | next>>
III. Violations by U.S. Forces
This chapter is divided into three sections addressing, respectively, use of excessive force by U.S. forces during arrests; arbitrary arrests and indefinite detention; and mistreatment in detention.
As the cases in the first section show, U.S. forces repeatedly have used military means and methods during arrest operations in residential areas where law enforcement tactics were more appropriate. This has resulted in unnecessary civilian casualties and in some cases may have involved indiscriminate or disproportionate force in violation of international humanitarian law.
Cases in the second section of this chapter raise serious questions about the intelligence gathering and processing that leads to coalition arrests. Members of the U.S. armed forces have arrested many civilians not directly participating in hostilities and persons whom U.S. authorities have no legal basis for taking into custody. The cases in the second section also make clear that persons detained by U.S. forces in Afghanistan are held without regard to the requirements of international humanitarian or human rights law and are not provided reasons for their arrest or detention. Detainees are held virtually incommunicado without any legal basis for challenging their detention or seeking their release.
The final set of cases presented here raise serious concerns regarding the treatment of detainees at U.S. detention facilities in Afghanistan, particularly in light of the failure of the United States to investigate and publicly report on several unexplained deaths in detention. There is credible evidence of beatings and other physical assaults on detainees, as well as evidence that the United States has used shackling, exposure to cold, and sleep deprivation amounting to torture or other mistreatment in violation of international law. To date neither the Department of Defense nor the CIA has adequately responded to allegations of mistreatment.
Indiscriminate and Excessive Force Used During Arrests
As this section shows, U.S. forces routinely use military force when carrying out arrests in Afghanistan, sometimes with insufficient regard to the requirements of applicable international humanitarian and human rights law. U.S. military Rules of Engagement designed for combat situations seem to be applied where law enforcement protocols are required.9 In addition, it appears that faulty and inadequate intelligence has resulted in targeting of civilians who were not taking a part in the hostilities, unnecessary civilian deaths and injuries during arrest operations, and needless destruction of civilian homes and property.10 There are also credible reports that U.S. forces have beaten and abused persons during arrest operations, and that Afghan troops accompanying U.S. forces have abused local residents and looted the homes of those detained.
According to U.N. officials in Kabul, numerous complaints have been made to their offices about U.S.-led operations in southern, southeastern, and eastern areas of Afghanistan alleging excessive use of force by coalition troops.11 Complaints often state that U.S. forces have been manipulated by local Afghan forces, including local Afghan “fixers” and interpreters; that U.S. military forces have unwittingly been used as proxies in local rivalries; and that the presence of U.S. forces has been the backdrop for Afghans to extort money from local residents or intimidate opponents.
Government officials in the Karzai government, along with local government officials, have also repeatedly raised concerns with U.S. officials about excessive military force being used during operations.12
One U.N. official who collected complaints about U.S. operations in 2002 said many of the complaints concerned the “use of cowboy-like excessive force” against residents “who generally turn out to be law abiding citizens.” The official noted cases of U.S. forces “blowing doors open with grenades, rather than knocking,” and roughly treating women and children.13
Human Rights Watch is particularly concerned about the use of suppressing fire during arrest operations—that is, the indiscriminate firing of weapons to immobilize possible enemy forces. As noted below, Human Rights Watch believes that the use of suppressing fire in the first resort (not in response to enemy fire) is inappropriate during arrest operations in residential areas where no combat is taking place or underway.
The case of Ahmed Khan and his sons
On a night in late July 2002, U.S. forces raided the home of Ahmed Khan, a resident of Zurmat district in Paktia province. Zurmat district, while not completely stable, is firmly under the control of Afghan forces allied with the United States and was under such control in July 2002. During the raid, Ahmed Khan was arrested along with his two sons, aged 17 and 18 years.14 A local farmer died from gunfire during the arrest operation, and a woman in a neighboring house was wounded. Human Rights Watch spoke with several neighbors and other witnesses to the raid. Ahmed Khan described the attack:
During the shooting, Ahmed Khan said he and his family hid on the floor in their bedroom on the second floor of the house. Gunfire shattered their windows and doors.16 Neighbors said they saw helicopters shooting at the house and at areas around it.17 Ahmed Khan described how U.S. forces entered his house, firing their weapons:
Troops, including Afghan soldiers, then searched the house, occasionally using gunfire to open locks.
The body of a local laborer and farmer, Niaz Mohammad, was found after the raid. A neighbor told Human Rights Watch:
Ahmed Khan and his neighbors told Human Rights Watch that Niaz Mohammad had been sleeping outside, near piles of harvested wheat, in order to keep watch so that no one would steal the grain.21
According to neighbors, a local woman was also wounded in the attack. She received a bullet wound that was not considered to be serious. The homes in the vicinity of Ahmed Khan’s house received considerable damage from bullets and other weapons, indicating that the U.S. forces used considerable firepower even though there was no evidence of any armed opposition. A U.N. local staff person visited the site the day after the attack: “There were bullet shells all around the house, everywhere, many shells. There was a big hole in the wall and bullet holes in the windows; the glass was all broken and had fallen into the yard. Household items were scattered all about—all around the compound.”22 Human Rights Watch visited Ahmed Khan’s compound in March 2003 and observed scores of bullet holes in the window frames and doors of the house, bullet slugs, and destroyed farm equipment.23
Ahmed Khan’s family said they lost many of their most valuable possessions on the night of the raid. U.S. forces confiscated some books and four automatic weapons, which they later returned to Ahmed Khan, when he and his teenage sons were released. But the family said that other possessions were missing. Said Ahmed Khan:
Ahmed Khan’s frustration was manifest months later:
Human Rights Watch documented a case in February 2003 in the southern province of Uruzgon in which U.S. troops assaulted two children during a raid on a civilian house.26 The owner of the house, a low-level military commander in Uruzgon province, cooperated with U.S. forces during coalition attacks on Taliban forces in southern Afghanistan in late 2001 and early 2002. But one night in February 2003, U.S. forces raided the man’s home, entering by force and tying up him and one of his older sons. Through local interpreters and Afghan soldiers accompanying them, the U.S. troops accused the man of holding weapons and cooperating with the Taliban. A Farsi-speaker, the man was baffled why the soldiers believed he was cooperating with the Pashtun-speaking Taliban.
According to the man, the soldiers pushed him and his older son against a wall, and seized the man’s young son and nephew:
The soldiers subsequently searched the house, but only found two weapons, both of them registered with the authorities. Still, the man was arrested by the local Afghan forces and taken to a neighboring province. He was released a few days later.
On December 5, 2003, U.S. forces conducted an operation in the village of Kosween, in Sayed Karam district of Paktia, near Gardez in southeast Afghanistan.28 According to U.S. military officials, the aim of the operation was to arrest a man named Mullah Jalani, alleged to be a Hezb-e Islami leader involved in anti-U.S. military operations. As a result of the operation, a couple and their six children were killed: Ikhtari Gul, 35 (a farmer), and his wife, Khela; their four daughters, Khela, Daulat Zai, Anara and Kadran; and two sons, Asif and Nematullah.29 The use of military methods and tactics during the operation may have violated international legal obligations to minimize harm to civilians and prohibitions against disproportionate attacks.
The U.S. military gave inconsistent accounts of the operation after it occurred. On December 6, Lieutenant Colonel Bryan Hilferty told several reporters at Bagram airbase that U.S. forces the previous night had raided the home of Mullah Jalani in Sayed Karam.30 He said that U.S. forces had detained “several persons” during the raid, but had not captured Jalani.31 The village was sealed off in the week after the raid: several journalists who attempted to visit the site of the operation during the week of December 7 - 12 were turned back by Afghan forces cooperating with a Special Forces unit in the village.32
On December 10, Hilferty admitted that the Sayed Karam raid had involved close air support and bombing, and said that on December 7 U.S. forces found eight civilians who had died during the operations.33 Hilferty indicated that the dead civilians were in another compound than the one attacked and were buried by a wall that collapsed because of “secondary and tertiary explosions” from stored ammunition in Jalani’s compound.34 He suggested that U.S. forces were not “completely responsible” for the deaths because the civilians (presumably including the children) had “surrounded themselves” with weapons and ordinance—a puzzling claim, since the dead civilians were not in Jalani’s compound.35 A foreign correspondent visiting the village the same week found a large concave crater at the compound where the civilians were killed, suggesting that an errant bomb had hit the compound.36
Hilferty said that the aim of the operation had been to arrest Mullah Jalani, whom he described as a suspected associate of Gulbuddin Hekmatyar, the leader of Hezb-e Islami: “We try very hard not to kill anyone. We would prefer to capture the terrorists rather than kill them.”37 But he gave no adequate explanation as to why U.S. forces on the ground ultimately used bombs in an operation in a residential area.
There are conflicting reports from different sources as to how many people were arrested in the operation, varying from five to fourteen.38 A reporter from the Washington Post visited the village a week after the attack and was told by villagers that Jalani was a local military leader who had cooperated with Taliban forces during the Taliban era, but who had changed sides and cooperated with U.S. forces at times and sat on a local governmental council.39 Villagers said that Jalani had been involved in several tribal disputes in the area and was living openly in the village before the attack, but had left before it took place.
Human Rights Watch received a complaint from government officials in Paktia about an operation in Zurmat district in February 2003 in which Abdul Gehafouz Akhundzada, a cleric, was arrested in his home after a firefight. (Akhundzada’s detention is discussed in more detail in the section on arbitrary arrests and detention below). Among other things, officials complained of U.S. forces coming for Akhundzada in the middle of the night, a course of action which they believe set off a dangerous firefight.
According to Akhundzada’s family and neighbors, the arrest took place on or around February 20, 2003. Afghan and U.S. soldiers gathered outside his home late at night and knocked on his door.40 Akhundzada reportedly thought they were Afghan troops who had come to rob him—a common occurrence in Zurmat district.41 He fired a weapon from his rooftop, either in the air or directed at the troops. The troops outside returned fire, and soon thereafter, U.S. helicopters flew toward the house, reportedly firing weapons. According to his family and neighbors, Akhundzada then realized that the Afghan troops were working with U.S. forces, and surrendered. Before this happened, however, U.S. and Afghan forces fired hundreds of rounds of ammunition into Akhundzada’s home, where there were two women—Akhundzada’s mother and wife—and his two children. The women and children told Human Rights Watch that they lay on the floor of the home during the attack, and were not wounded.
After Akhundzada was arrested, U.S. troops entered the home and searched it, shooting open steel trunks with their weapons and breaking doors and windows.42 Human Rights Watch researchers inspected the house in March and saw hundreds of bullet holes in the compound’s external and internal walls. Two bullet slugs dug out of the compound’s internal walls appeared to be from an M-60 machine gun, a more powerful weapon than the standard assault rifles carried by U.S. and Afghan troops (M-16s and Russian AK-47s).
Local officials maintained that Akhundzada was a civilian, living openly in Zurmat, who could have been peacefully approached and taken into custody during the day.
Kandahar officials also complained to U.S. forces in 2002 about a raid involving U.S. Army and Special Forces troops that took place on May 24, 2002, in the village of Band Taimore, in Kandahar province. Accounts of the operation are not clear, but according to journalists who interviewed villagers, a tribal leader in his 80s was shot dead in a mosque and a 3-year-old girl drowned after she fell into a well trying to run away from U.S. forces.43
* * * * *
Through 2003, the Afghan Independent Human Rights Commission office in Gardez city has received numerous complaints from the Gardez area, including allegations that U.S. forces or Afghan forces working with them used excessive force and destroyed property during operations. According to the complaints:
UNAMA local offices and UNAMA headquarters in Kabul have also received numerous complaints over 2002 and 2003 about U.S. forces using excessive or “culturally insensitive” force during operations in the south and southeast of the country.45 (Complaints about culturally insensitive force usually refer to allegations of male troops touching or looking at women during searches, which in some areas violate local norms even if there is no sexual intent. Local leaders have requested, among other things, that the U.S. military use more women soldiers during search operations.)
Abuses by Afghan forces
Afghan forces deployed alongside U.S. forces have been implicated in abuses during military operations. As noted elsewhere in this report, persons arrested by U.S. forces routinely complain about local Afghan forces looting their homes in the wake of U.S. military operations.
An Afghan journalist in Kandahar city told Human Rights Watch in November 2003 that he received several complaints in 2003 from residents in Zabul and Helmand about local forces operating with U.S. troops extorting money from villagers by threatening to tell U.S. forces that local residents are “with the Taliban,” claiming that the villagers will be targeted for arrest by the United States if they fail to pay certain sums of money—typically around 10,000 Pakistani rupees (approximately U.S.$175).46
In October 2003, a reporter from the Los Angeles Times documented that local troops from Kandahar, working as guides for U.S. forces, looted homes and beat and tortured civilians during a week-long military operation in Zabul province, which lies directly to the east of Kandahar.47 Residents showed the journalist two young men who had been beaten by the troops; one described being severely beaten and blacking out, the other was still unconscious days after the attack. According to other residents, U.S. forces did not witness the abuses, but the Afghan troops allegedly stole “cash, jewelry, watches, radios, three motorcycles—even the mud-brick school’s windows and doors” before leaving when U.S. and Afghan troops moved on to other areas. Said one elder: “These people are robbing us, torturing us and beating us . . . . They are also taking innocent people to jail.”
In late October 2003, a spokesman for President Hamid Karzai said publicly that Karzai’s office had been receiving information about similar abuses by local troops for more than a year; that Karzai had told U.S. military commanders in Kabul that Afghan militias accompanying U.S. troops were committing abuses; that Karzai had suggested to U.S. commanders they not use Afghan militias in non-combat situations; and that the U.S. actions with local militias were undermining the overall effort to combat terrorism in Afghanistan.48
Legal standards applicable to use of force during arrest operations
International humanitarian law seeks to protect civilians from unnecessary harm during armed conflict. Central to this protection is the imperative that military forces differentiate between combatants and civilians during military operations and when they take persons into custody.
Rules applicable to the current conflict in Afghanistan49 require a military force to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”50 Attackers must refrain from an attack that may be expected to cause disproportionate civilian casualties and damage.51 Also prohibited are indiscriminate attacks, which include those not directed at a specific military objective and consequently of a nature to strike military objectives and civilians or civilian objects without distinction.52
In situations where forces are conducting essentially law enforcement operations—for instance, arrests of civilians wanted for questioning—basic rules of international human rights law also apply, including standards applicable to the use of force by law enforcement personnel. Applicable law enforcement standards are typically more stringent than those under international humanitarian law, and narrowly prescribe the contexts in which deadly force and firearms may be used.
Human Rights Watch believes that the use of military tactics and military rules of engagement in operations that otherwise bear the characteristics of civilian law enforcement, particularly the arrest of suspects in residential areas, raises legal concerns and in Afghanistan likely has led to avoidable casualties and destruction of civilian property. The United States has an obligation to investigate such incidents, take disciplinary or other legal action as appropriate, scrutinize its arrest methods and rules of engagement, and adopt necessary policy changes to prevent further unnecessary loss of life and property.
Arbitrary or Mistaken Arrests and Indefinite Detention
U.S. forces in Afghanistan regularly capture combatants and civilians who have taken up arms against U.S., Afghan, and coalition forces, during both combat and search and arrest operations. However, as shown here, U.S. forces also routinely arrest civilians taking no direct part in hostilities, sometimes in contexts in which the arrests seem arbitrary or based on poor or faulty intelligence.
As shown in this section, U.S. forces sometimes take into custody all men of military age found within the vicinity of an operation. Other times, it seems persons are targeted for arrest because U.S. officials have determined they are a security risk or are useful for intelligence purposes—for instance, clerics or local tribal leaders who might be politically involved with the Taliban, or civilians spotted near the site of a recent attack. Human Rights Watch has interviewed many Afghans who were arrested for simply being at the wrong place at the wrong time.
For many of these men, arrest is the start of an ordeal in which they may be beaten or otherwise mistreated during arrest or detention, repeatedly and seemingly randomly interrogated, held for weeks or months without family visits, and eventually released only to find that their homes were looted by Afghan troops. (Allegations of beatings and mistreatment are not discussed here but in the “Mistreatment in Detention” section below.)
In late May 2002, U.S. forces raided two homes in the village of Kirmati, near Gardez city, and arrested five Afghan men, all of whom were later released and returned to Gardez. During the raid, U.S. forces reportedly used helicopters and airplanes to patrol the area and lay down suppressing fire. The raid took place in an entirely residential area, and there is no evidence that U.S. forces met any resistance. Kirmati is firmly under the control of Afghan forces allied with the United States and was so at the time of this attack.
U.S. forces took five people into custody: Mohammad Naim and his brother Sherbat, Ahmaddullah and his brother Amanullah, and Khoja Mohammad. Mohammad Naim described the raid as follows:
Mohammad Naim’s brother told a similar story.54 Ahmaddullah and Amanullah, who are brothers, were arrested in a house nearby. Another villager, Khoja Mohammad, was arrested when he came out of his house to investigate what was happening in the other houses.55 Amanullah described the arrests as follows:
The five men were taken to Bagram. Mohammad Naim described what happened after they landed:
According to Mohammad Naim and Sherbat, the questioning at Bagram over the next few days was exceedingly general, and indicated that the U.S. investigators had no idea who the brothers were:
U.S. forces also asked very general questions of Ahmaddullah, Amanullah, and Khoja Mohammad, suggesting the U.S. knew very little about them as well. Amanullah described his interrogation at Bagram as follows:
Khoja Mohammad, meanwhile, was asked about Sherbat, one of the brothers arrested in another house. “During the interrogations, they showed me Sherbat’s picture, and they asked me if I knew him. I said, laughing, ‘Of course I know him: he is a butcher in my village. I buy my meat from him.’”
After sixteen days of detention, including six days of interrogations, the U.S. released the five men. Said Sherbat:
The five men returned home to find that their houses had been looted and most of their possessions of value gone. Said Mohammad Naim: “I think that night [of the raid] my house was looted. . . . After that, no one helped us, no government, no NGO, no one.”61 The brothers said that they were told later that the Afghan forces working with the Americans had searched and looted their houses.
Ahmaddullah says he suffered mental health difficulties after the arrest:
Human Rights Watch received information about various other persons detained for extended periods by U.S. forces after being taken into custody.
Human Rights Watch interviewed two civilian men who were arrested in Paktia in early 2002 and held at Bagram for over a month before being flown to Guantanamo Bay Naval Base in Cuba.63 Both were released in May 2003. The fact that the two were released from Guantanamo and were not held by Afghan authorities after their release makes it clear that insufficient evidence existed that they committed any crime. Neither of them had any idea why they were arrested. One of the detainees said that a close friend of his was still in custody, either in Bagram or Guantanamo. The detainee’s family and residents of his village told the detainee that his friend was arrested when he (the friend) approached a U.S. military base near Khost asking for information about him.
Human Rights Watch received a report about two persons in Khost city, Paktia, arrested by U.S. forces in August 2003.64 The two men were arrested after their brother was killed in an explosion that local authorities believed was the result of a premature detonation of a car bomb. According to the two men, who spoke with local journalists in Khost, they were taken to Bagram airbase and interrogated by U.S. forces there. They said they were released after two months, when U.S. forces determined that they were not involved in the explosion or affiliated with anti-Coalition forces. During this whole time, their family was unable to receive news of them. The two said they received compensation from the United States and were flown back to Khost.
In Jalalabad in May 2003, four persons were taken into custody by U.S. forces operating out of Jalalabad airport.65 After interrogation, the men were then turned over to Afghan authorities. The detainees, who according to some residents were merely civilians, had no criminal charges pending against them, and were being held seemingly at the request of the U.S. forces. They were released a few weeks later after AIHRC officials pressured the local authorities.
One case discussed above involved the February 2003 arrest of Abdul Gehafouz Akhundzada, a cleric from Zurmat district. After the arrest, described earlier, Akhundzada was taken away in a helicopter, presumably to Bagram airbase, but his family was not informed of the location or reason for his arrest over the following months. As of late 2003, there was no response to appeals made through local government officials to both the U.S. and the Afghan authorities for an explanation as to his whereabouts. According to local residents, the U.S. government released no information as to the reasons for Akhundzada’s arrest to his family or made such information public. Local U.N. staff in Paktia suggested that coalition forces focused operations in Zurmat district in 2003 in part because several senior Taliban officials were born there.66 It is possible U.S. forces arrested Akhundzada in order to question him, believing that since he is a cleric he might have information about the location of Taliban officials. U.N. staff, however (as well as local officials), do not believe that Akhundzada had any meaningful or high-level connections with the Taliban.67
Ahmed Khan and his two sons (discussed above) also told Human Rights Watch that they were arrested in Zurmat and taken to Bagram airbase after their arrest. They said they were questioned about their identities, and whether they knew certain people—various names were given, people whom they did not know.68 They were held for over two weeks, and then flown back to Zurmat. Ahmed Khan told Human Rights Watch that U.S. officials at Bagram Air Base apologized to him before releasing him, and asked him “for forgiveness.”
Naim Kuchi, an elder and tribal leader of nomads from Paktika province, was arrested in late December 2002, while traveling on a road outside of Kabul.69 U.S. personnel in civilian vehicles, accompanied by Afghan forces, reportedly took him into custody. Kuchi’s family told Human Rights Watch that Kuchi had no involvement with anti-Coalition activities and said they had received no information about the basis for his arrest, nor were they able to meet with him after his arrest. In March 2003, Kuchi was transferred to the Guantanamo Bay detention facility, where he remains. A former U.N. official told Human Rights Watch that Kuchi was allied with the Taliban and with the former mujahidin government in Kabul from 1992-1996, and that he had represented the Ahmadzai nomad tribe in meetings with the Karzai government and the United Nations in 2002.70 In April 2003, U.S. Department of Defense officials told Human Rights Watch that Kuchi was a former Taliban official and a “scumbag” involved in smuggling arms over the Pakistani border.71 Whatever the case, Kuchi remains detained without charge or trial.
Rohullah Wakil, a local leader from Kunar province who was elected to the 2002 loya jirga in Kabul, was arrested in a raid in Kunar in August 2002 and remains in custody—possibly at Bagram. Local representatives from Kunar have made repeated pleas to the United States and U.N. in Kabul, complaining that Wakil should either be tried for a crime or released. No charges have been filed against him.
Human Rights Watch estimates that at least 1,000 persons have been detained in the course of coalition operations in Afghanistan from early 2002 to the present, most of whom have been released within days or weeks of their capture. This estimate is based on the average number of weekly new detainees who arrive at Bagram—approximately ten—according to journalists and human rights monitors who have been following the Bagram process. The number of new detainees obviously fluctuates: In December 2003, according to a U.S. military spokesman in Kabul, U.S. forces detained over 100 people.72
CIA Detention Facilities
As noted above, CIA agents have operated throughout Afghanistan since soon after September 11, 2001, conducting military and intelligence operations. The CIA maintains a large heavily guarded compound in Kabul, in the Ariana Chowk neighborhood, surrounded by forty foot walls, razor wire, and guard towers. The CIA also controls a separate detention and interrogation facility at Bagram airbase, though this has never been officially acknowledged by the United States. Little is known about who is detained there, for how long, conditions of detention, or grounds for release or transfer to other U.S.-controlled facilities.
Human Rights Watch interviewed one former detainee, a former high-level Taliban official, who was held in an unknown facility near Kabul for eight months, guarded by Afghan troops but interrogated by U.S. personnel in plainclothes.73 Since all U.S. military personnel are under orders to wear uniforms in Afghanistan, it is possible that the government personnel in question were from the CIA. The former official said that there were other detainees held in the same facility: he heard their voices and heard guards discussing other prisoners in the hallway outside his cell. He said he cooperated with the U.S. personnel and was not mistreated. He believes he was held in an Afghan detention center in the Shashdarak area of Kabul or at the Ariana Chowk CIA facility.
There is also some evidence that the United States detains people in Afghanistan who have been captured outside of the country. Pakistani officials told a reporter with Time that Khalid Shaikh Mohammed, an alleged al-Qaeda leader, was taken to Bagram air base after his arrest in Pakistan in March 2003.74 Saifullah Paracha, a Pakistani man who was alleged to have connections to Shaikh Mohammed, was also taken to Afghanistan after he was arrested in Pakistan in July 2003, according to his wife, who received a letter from him delivered by the International Committee of the Red Cross.75 (His son was also arrested by authorities in the United States.76) Part of the letter from Saifullah read:
Saifullah reportedly remains in custody without charge.
Legal standards applicable to detention of civilians and combatants in Afghanistan
International humanitarian law and human rights law provide protections to all persons taken into custody during situations of armed conflict. As discussed in the section “International Legal Context” below, since the establishment of the Karzai government, the ongoing fighting in Afghanistan is considered to be a non-international (internal) armed conflict under the Geneva Conventions. Persons arrested and detained during internal armed conflicts must be treated in accordance with Article 3 common to the 1949 Geneva Conventions, customary international humanitarian law, and the due process requirements of human rights law.
During an internal conflict, persons apprehended for taking part in armed conflict may be prosecuted for taking up arms against the government. This is different from the situation of an international armed conflict, where soldiers are normally entitled to the “combatant’s privilege,” which protects them from being prosecuted for taking part in the hostilities. This means that the Afghan government may prosecute persons apprehended during the current fighting for violations of Afghan law. But such prosecutions must be carried out by tribunals that meet international due process standards.78
Persons taken into custody who have not taken a direct part in the hostilities must be charged with a criminal offense or released. The protections of human rights law, in particular the rights to be charged with a criminal offense, have access to legal counsel, and be tried before an impartial and independent court, apply.79 In a declared state of emergency, some due process requirements may be derogated, but such derogations must be “limited to the extent strictly required by the exigencies of the situation.”80 The right to a fair trial by an independent and impartial court, for instance, may never be violated.81
Even if the United States maintains that an international armed conflict persists in Afghanistan (see International Legal Context section below), U.S. actions with regard to its detainees would remain contrary to international law. During international armed conflict, civilians may be detained for “imperative reasons of security,” but they may not be held indefinitely without review. The Fourth Geneva Convention permits detention “only if the security of the Detaining Power makes it absolutely necessary.”82 Even then, the internee is entitled to have his internment reconsidered “as soon as possible” before an appropriate court or administrative board set up by the Detaining Power for that purpose. Thus, most of the standards applicable to non-international conflict are applicable even to international conflicts. By flaunting these standards, the United States is violating international law.
Mistreatment in Detention
Human Rights Watch has received credible and consistent information about mistreatment of detainees at the Bagram detention facility. It also appears that during the first months after the United States set up the Bagram facility in late 2001, the treatment of detainees there was especially harsh.
Two detainees held in Bagram in March 2002 (who were later sent to the Guantanamo facility and ultimately released and repatriated) described to Human Rights Watch being held in a cell for several weeks, in a group, stripped to their undershirts and underwear.83 According to the two men, bright lights were set up outside their cells, shining in, and U.S. military personnel took shifts, keeping the detainees awake by banging on the metal walls of their cells with batons. The detainees said they were terrified and disoriented by sleep deprivation, which they said lasted for several weeks. During interrogations, they said, they were made to stand upright for lengthy periods of time with a bright spotlight shining directly into their eyes. They were told that they would not be questioned until they remained motionless for one hour, and that they were not entitled even to turn their heads. If they did move, the interrogators said the “clock was reset.” U.S. personnel, through interpreters, yelled at the detainees from behind the light, asking questions.84
Two more detainees held at Bagram in late 2002 told a New York Times reporter of being painfully shackled in standing positions, naked, for weeks at a time, forcibly deprived of sleep and occasionally beaten.85
A reporter with the Associated Press interviewed two detainees who were held in Bagram in late 2002 and early 2003: Saif-ur Rahman and Abdul Qayyum.86 Qayyum was arrested in August 2002; Rahman in December 2002. Both were held for more than two months. Interviewed separately, they described similar experiences in detention: sleep deprivation, being forced to stand for long periods of time, and humiliating taunts from women soldiers. Rahman said that on his first night of detention he was kept in a freezing cell for part of his detention, stripped naked, and doused with cold water. He believes he was at a military base in Jalalabad at this point. Later, at Bagram, he said U.S. troops made him lie on the ground at one point, naked, and pinned him down with a chair. He also said he was shackled continuously, even when sleeping, and forbidden from talking with other detainees. Qayyum and Rahman were linked with a local commander in Kunar province, Rohullah Wakil, a local and national leader who was elected to the 2002 loya jirga in Kabul, and who was arrested in August 2002 and remains in custody.
According to detainees who have been released, U.S. personnel punish detainees at Bagram when they break rules—for instance, talking to another prisoner or yelling at guards. Detainees are taken, in shackles, and made to hold their arms over their heads; their shackles are then draped over the top of a door, so that they can not lower their arms. They are ordered to stand with their hands up, in this manner, for two-hour intervals. According to one detainee interviewed who was punished in this manner, the punishment caused pain in the arms.87
In March 2003, Roger King, a U.S. military spokesman at Bagram, denied that mistreatment had occurred, but admitted the following:
King also said that a “common technique” for disrupting sleep was to keep the lights on constantly or to wake detainees every fifteen minutes to disorient them.89
Several U.S. officials, speaking anonymously to the media, have admitted that U.S. military and CIA interrogators use sleep deprivation as a technique, and that detainees are sometimes kept standing or kneeling for hours in black hoods or spray-painted goggles, and held in awkward, painful positions.90
In March 2003, a U.S. official told a New York Times reporter that Omar Faruq, a detainee at Bagram who was allegedly close to Osama bin Laden, was subjected to interrogations at Bagram that were “not quite torture, but about as close as you can get.” The official said that Faruq was fed very little and subjected to sleep and light deprivation and prolonged isolation and room temperatures ranging from 100 degrees to 10 degrees Fahrenheit (38 to -12 centigrade).91 The same month, U.S. officials told another New York Times reporter about interrogations of Abu Zubaydah, allegedly a senior al-Qaeda leader who was arrested in March 2003 and possibly held at Bagram. Abu Zubaydah was shot in the chest, groin, and thigh when he was captured in Pakistan in March, and, according to one official, interrogators later manipulated levels of pain medication for Abu Zubaydah while they were interrogating him.92 Military interrogators told the Wall Street Journal:
Mistreatment in other facilities
Human Rights Watch interviewed a Pakistani fighter with the Taliban who was held at the Kandahar airport in early 2002 and later taken to Guantanamo. He said he was beaten and kicked by U.S. troops in transport to Kandahar and while there.94 He was released from Guantanamo in July 2003.
The man also said that he and other prisoners were beaten when they arrived in Kandahar:
The man also said that he and other prisoners were occasionally taken outside and forced to lie on the frozen ground until they were numb with cold.95
Another Pakistani man, who was arrested in Pakistan by U.S. forces and taken to Kandahar in early 2002 (he was later sent to Guantanamo and was released in 2003), said he was beaten during an interrogation at Kandahar:
The man said he was beaten again at Kandahar in a holding cell, along with other prisoners, before being taken to Guantanamo.
Persons taken into custody after a raid in January 2002 provided other details of mistreatment at the Kandahar airbase. On the night of January 24, 2002, U.S. forces attacked two government buildings in Khas Uruzgon, a small village in eastern Uruzgon province, and mistakenly killed several anti-Taliban fighters who were assisting U.S. forces.97 U.S. forces destroyed a school in the attack, killing 19 soldiers and Afghan government employees who were with them. U.S. forces took into custody twenty-seven anti-Taliban fighters and government workers and transferred them to Kandahar airbase, where they were held for several days.
Several of these detainees said that they were kicked and punched repeatedly by U.S. forces after they arrived, and suffered broken bones that went untreated. Several were beaten until they were unconscious. Among those beaten was an elderly man, who had his hand broken. Others reported being kicked in their ribs and heads.98
At the scene of the attack, local residents found two dead Afghan soldiers with their hands bound with plastic ties similar to those commonly used by U.S. troops. They had apparently died from gunshot wounds to the torso. Residents were unable to determine whether they had been bound before they were killed or whether they were wounded, bound, and then subsequently died. The deaths raise serious issues that the U.S. military should fully investigate. If the men were intentionally killed after their capture, the killing would amount to an extrajudicial execution and violation of the laws of war. If the men received their injuries before being captured, then it may have been unlawful for the U.S. forces to leave them bound without providing them proper medical attention.99 That the U.S. forces were able to take some two dozen persons into custody suggests that they would have been fully capable of taking the other two for medical treatment.
After the Khas Uruzgon detainees were released, U.S. officials visited Uruzgon and apologized to elders there, and gave out $1,000 to the families of persons who had been killed in the raid. Those who were mistreated by U.S. forces received nothing.100
On March 17, 2002, U.S. forces raided a compound in Sangesar, a village near Kandahar, and arrested more than thirty anti-Taliban fighters, apparently by mistake.101 The detainees were taken to the Kandahar airport.102 According to the detainees, hoods were placed over their heads and they were “thrown down,” face first, onto rocky ground. Many said they were kicked in the back by U.S. forces. One witness, with a bruised arm, said he was held by the feet and head and kicked repeatedly in the back. Another man, who still had a black eye when he was interviewed three days after being released, said, “They picked me up and threw me down on the rocks. It was painful. I couldn’t rest on my chest. When I moved they kicked me.”103 The detainees also said they were punished for talking to each other, by being made to kneel with their hands behind their heads for extended periods, and were kicked when they moved.
A photojournalist who accompanied Special Forces and soldiers from the U.S. 82nd Airborne during operations in eastern Afghanistan in July 2002 told Human Rights Watch that Special Forces referred to the Kandahar airbase as “Camp Slappy,” and that U.S. forces would threaten uncooperative persons encountered during raids, suggesting that they might be sent there: “We tell them they can either cooperate or go to Camp Slappy,” a Special Forces soldier told the journalist.104
Recent complaints received by the Gardez office of the AIHRC about U.S. forces in the Gardez area include the following, from Zurmat district in Paktia province, alleging that five residents there were arrested and tortured by U.S. forces (this case is currently being investigated by the AIHRC):
Human Rights Watch has learned that U.S. forces routinely hold Afghans at the local airport in the eastern city of Jalalabad. However, former detainees there refused to speak in detail with Human Rights Watch about their experiences in U.S. detention. One told Human Rights Watch:
* * * * *
The treatment of detainees at Bagram seems to have become more standardized and professional since 2002, though the absence of access to detainees makes it difficult to determine whether conditions have significantly improved. Human Rights Watch interviewed several persons detained at the military facility at Bagram in 2003. According to these accounts, persons arrested are usually blindfolded, hooded, and shackled during the trip to Bagram, which is normally by helicopter.106 Once at Bagram, detainees are taken to a room, separated from other persons who were detained with them, and then stripped and photographed. Samples of hair and skin flakes are taken, presumably to collect for a DNA database. Detainees are then instructed, through interpreters, about the rules of Bagram, which include restrictions on talking with other detainees. They are then shackled and taken to cells, where they are held during the periods they are not being interrogated. They are given bottles of water and fed in the cells. Except during interrogations, the detainees are shackled, even while sleeping.
Human Rights Watch has not been able to locate or interview anyone who has been held at the Bagram CIA facility. Human Rights Watch researchers spoke with one detainee held in Kabul city who was interrogated by U.S. officials who were likely CIA personnel (as mentioned in the Arbitrary Detention section above).
Detainees held by Afghan forces
Human Rights Watch is extremely concerned about the treatment of the hundreds of Afghans alleged to be from Taliban, Hezb-e Islami, or other anti-Coalition forces held under the auspices of the Afghan military and intelligence authorities. In past reports Human Rights Watch has documented numerous cases of torture, beatings, and other mistreatment of persons in the custody of local Afghan military officials.107 Recently, for instance, there have been credible reports from human rights monitors in Kandahar that “Taliban prisoners” are repeatedly and severely beaten by the Afghan soldiers holding them. A monitor who met with some prisoners there said: “We have come across this repeatedly. It is an ordinary thing. We know about this. We visit the prisons.”108
In the northern city of Shiberghan, approximately one thousand detainees—alleged Taliban combatants and foreign fighters 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. According to human rights monitors in Kabul, CIA and U.S. military interrogators have access to these detainees and others held by Afghan forces across the country.109 According to officials in the Pakistan government, the United States has resisted efforts by the Afghan and Pakistani governments to screen the detainees for release.
Officials with UNAMA and the Afghan Human Rights Commission have visited Afghan military detention facilities in several provinces and expressed concerns to Human Rights Watch about the treatment of prisoners, including their belief that prisoners have, in some cases, been subjected to torture.110 U.S. military and CIA in Afghanistan are aware of these facilities’ existence: U.S. forces regularly work with local forces during military operations that result in the arrests of persons who are put in Afghan military custody.
Deaths in U.S. custody
Two Afghans died while in detention at Bagram airbase in December 2002.111 Both deaths were ruled homicides by U.S. military doctors who performed autopsies.
One of the prisoners, Dilawar, aged 22 and from near Khost city in southeastern Afghanistan, died on December 10, 2002 from “blunt force injuries to lower extremities complicating coronary artery disease,” according to his death certificate prepared by a military pathologist, which was obtained by the New York Times.112 The other detainee, Mullah Habibullah, aged approximately 30 years and from the southern province of Oruzgan, died earlier, on December 3, 2002. A military spokesman at Bagram confirmed to reporters from the New York Times that Mullah Habibullah’s death was ruled a homicide by a military pathologist, the cause being “pulmonary embolism [blood clot in the lungs] due to blunt force injury to the legs.”113 Both military pathologists, when contacted by Human Rights Watch in November and December 2003, turned down requests to be interviewed.
Military officials at Bagram said in March 2003 that the military had launched an investigation into the deaths. But as of this writing in February 2004, they have not announced any results.
In June 2003, another Afghan died at a detention site near Asadabad, in Kunar province.114 U.S. military officials in Afghanistan and in the United States have refused to provide any details about this death.
Human Rights Watch has written repeatedly in 2003 and 2004 to officials in the U.S. Central Command (CENTCOM) and the U.S. Army Criminal Investigation Command (which CENTCOM officials have said is responsible for the Bagram investigation) asking for information about all three of the detainee deaths. Officials from both offices have replied and stated that the investigation into the Bagram deaths is ongoing and that no information is available. As for the Asadabad death, both offices have refused to release any information at all—not even a statement that an investigation is ongoing.
Legal standards applicable to physical treatment of detainees
The prohibition against the ill treatment and torture of detainees is fundamental to both international humanitarian and human rights law. Common article 3 to the 1949 Geneva Conventions prohibits torture, cruel treatment, and “outrages upon personal dignity, in particular humiliating and degrading treatment.” The “Fundamental Guarantees” under Protocol I of 1977 to the Geneva Conventions, generally accepted as customary international law in non-international as well as international armed conflicts, likewise prohibit “at any time and in any place whatsoever . . . torture of all kinds, whether physical or mental.”115 Human rights law similarly prohibits torture and other cruel, inhuman, or degrading treatment or punishment.116 The prohibition against torture and other mistreatment is in effect at all times, and cannot be derogated from during a state of emergency.117
While international law permits the discipline and punishment of prisoners who break reasonable rules, such punishment must be determined by law or imposed by a competent administrative authority, and may not amount to torture or other mistreatment.118
There is no clear line separating some types of permissible interrogation techniques from unlawful mistreatment.119 Each case must be assessed on its own merits. To conform to the letter and spirit of international law, detaining forces should err on the side of caution and constantly evaluate their methods. A practice that is acceptable in one context can be abusive in other circumstances; for instance, allowable day-long questioning of a detainee, when continued overnight and into the following day, can become impermissible sleep deprivation.
Prolonged shackling of detainees violates international law prohibitions against mistreatment, and can amount to torture. The Special Rapporteur on Torture has repeatedly and in various contexts identified shackling for lengthy periods as an example of a torture practice.120 The U.N. Secretary General has also referred to shackling as an example of a prohibited method of torture.121
Prolonged sleep deprivation and exposure to cold may also violate international law prohibitions against mistreatment, and can amount to torture. The U.S. State Department, in its “Country Reports on Human Rights Practices,” has repeatedly listed prolonged sleep deprivation and exposure to cold as examples of practices amounting to mistreatment and torture. (See Appendix.)
9 The Department of Defense was unwilling to provide Human Rights Watch with copies of current Rules of Engagement (ROE) Cards for their personnel in Afghanistan, or a copy of Afghanistan-specific ROE.
10 The consequences of mistaken attacks on Afghan civilians and civilian objects during air strikes is a large issue of concern but is not discussed in this report. Human Rights Watch has raised this issue elsewhere. See, e.g., Human Rights Watch, “Afghanistan: U.S. Military Should Investigate Civilian Deaths,” press release, December 13, 2003.
11 Human Rights Watch interviews with U.N. officials, Kabul, December 16, 2003. Human Rights Watch telephone interviews with a former senior U.N. official, December 5, 2003 and February 6, 2004.
12 Paul Watson, “Afghan Leader Told U.S. About Abuses, Aide Says,” October 31, 2003; Patrick Quinn, “U.S. raids, cultural problems lead to rising resentment in southern Afghanistan,” Associated Press, June 24, 2002.
13 Human Rights Watch e-mail exchange with former U.N. official in Afghanistan, February 2004.
14 There were conflicting reports by reporters who visited the site of the attack about what the target of the raid was and whether other men in the area were taken into custody during the raid. One news report about the incident suggested that five other persons were arrested on the same night. “US troops kill Afghan, take away six in raid; False report misled soldiers: governor,” Agence France Presse, August 1, 2002. Another report suggests that the arrest was aimed at a man called Haji Uddin, who was alleged to have given shelter to anti-U.S. forces in the area. Liz Sly, “U.S. grabs at shadows in hunt for Al-Qaeda,” Chicago Tribune, September 3, 2002. The same report stated that five persons were arrested during the raid: two relatives of Haji Uddin, including a 14-year-old boy, and three farm workers. But Human Rights Watch interviews with residents and local officials in Zurmat shed no light on the reason for the U.S. forces raid on Ahmed Khan’s home. The governor of Paktia, Raz Mohammad Dalili, who was familiar with the incident, could not explain why the attack took place. Human Rights Watch interview with Raz Mohammad Dalili, governor of Paktia, March 9, 2003. See also Pamela Constable, Frustrated hunt for Bin Laden; al-Qaeda leader elusive, but U.S. sees success in Afghan raids, Washington Post, September 11, 2002.
15 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003. A neighbor of Ahmed Khan’s described the attack in similar terms: “I heard a lot of noise, which came from helicopters. So I got up, and I crept up to my roof. I looked around. There were helicopters circling his [Ahmed Khan’s] house. There was a lot of shooting and it was difficult to look thoroughly at what has happening. There were many, many helicopters. We did not dare to go near that house.” Human Rights Watch interview with H.M., Zurmat, Paktia, March 10, 2003.
16 “There were a lot of bullets. The glass broke in all the windows . . . .” Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
17 Human Rights Watch interview with H.M., Zurmat, Paktia, March 10, 2003, Human Rights Watch interview with brother of Niaz Mohammad, Zurmat, Paktia, March 10, 2003.
18 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
19 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
20 Human Rights Watch interview with H.M., Zurmat, Paktia, March 10, 2003.
21 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
22 Human Rights Watch interview with H.M., Zurmat, Paktia, March 10, 2003. Human Rights Watch interview with G.A.U., local U.N. staff, Gardez, Paktia, March 10, 2003. One of the neighbors described the house after the attack: “After all the noise ended and the helicopters left, I went to the house to see what happened. I went with some neighbors. We went inside. The first thing is that the women were very scared. Boxes from the house were thrown around the yard, and there were possessions scattered about. . . . About ten minutes later, we walked outside. We were walking around to ask people what happened.” Human Rights Watch interview with H.M., Zurmat, Paktia, March 10, 2003.
23 Human Rights Watch researchers also saw that newly laid mud and brick had been used to fill in a large hole in the compound’s wall, approximately three meters in diameter, where a rocket was said to have hit. Scores of bullet holes in the house’s walls and window frames indicated that gunfire had come from two directions: the hole in the wall, and the door of the compound. Bullets in the window frames were embedded in two trajectories: some were clearly driven in perpendicularly (at 90 degrees), coming from the direction of the hole in the wall; others were driven in much more obliquely (less than 10 degrees off the surfaces flush with the house) starting from the direction of the house’s door.
24 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
25 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
26 Information about this incident is taken from a Human Rights Watch interview with man from Uruzgon, Kabul, March 2003.
27 Human Rights Watch interview with man from Uruzgon, Kabul, March 2003.
28 Information about this case is based on interviews in December 2003 and January 2004 with several journalists who visited the site of the raid in the weeks after it occurred.
29 Ikhtari’s brother, Naser, told a reporter that the children’s ages ranged from one to twelve. Pamela Constable, “Deadly U.S. Raid Leaves Some Afghans Bewildered; Villagers Say Target Was Not a Terrorist,” Washington Post, December 12, 2003.
30 “Troops In Afghanistan Raid Insurgent Base, Destroy Weapons,” Associated Press, December 6, 2003.
31 Ibid. The next day, December 7, the military announced that nine children had been killed in a separate incident—an air attack on a building in Ghazni, Afghanistan. Aijaz Rahi, “Afghan Village Angry After Gunship Attack,” Associated Press, December 8, 2003. For more information about these two attacks, see also Human Rights Watch, “Afghanistan: U.S. Military Should Investigate Civilian Deaths,” press release, December 13, 2003. There was no indication that the Ghazni incident was an arrest operation.
32 Human Rights Watch telephone interview with an international journalist who attempted to visit Sayed Karam, February 6, 2004.
33 Paul Watson, “Civilian Toll Not U.S. Fault, Afghans Say,” Los Angeles Times, December 11, 2003. U.S. Secretary of Defense Donald Rumsfeld gave a press briefing in Washington on December 9 but did not reveal the civilian deaths in Gardez. Why this information was withheld by the military for three days was not explained.
34 Watson, “Civilian Toll Not U.S. Fault, Afghans Say.”
36 Human Rights Watch interview with a journalist who wished to remain anonymous, Kabul, December 12, 2003.
37 Watson, “Civilian Toll Not U.S. Fault, Afghans Say.”
38 Officials in the Afghan Independent Human Rights Commission told Human Rights Watch that eleven persons were arrested during the operation, and had not been released. Human Rights Watch interview with AIHRC official, Kabul, December 16, 2003. A local Afghan governmental official in Paktia, Faiz Mohammed Zalan, told a reporter: “There were five people arrested during the whole operation, but they were innocent, so they were released the next day.” See Watson, “Civilian Toll Not U.S. Fault, Afghans Say.” The Washington Post reporter who visited the village was told by residents that possibly as many as fourteen people had been arrested during the raid.
39 Pamela Constable, “Deadly U.S. Raid Leaves Some Afghans Bewildered; Villagers Say Target Was Not a Terrorist,” Washington Post, December 12, 2003. U.S. Special Forces in the village refused to talk to the reporter.
40 Information about this case is based on interviews in Zurmat with family members of Abdul Gehafouz Akhundzada, March 10, 2003; interviews with villagers in Zurmat district on March 10, 2003; and interviews with governmental officials in Gardez on March 9, 2003.
41 Human Rights Watch documented in 2003 that home robberies by Afghan soldiers and police were common in southeastern Afghanistan in 2002 and 2003, including in Paktia province and Zurmat district in particular. See Human Rights Watch, “Killing You Is a Very Easy Thing For Us: Human Rights Abuses in Southeast Afghanistan,” A Human Rights Watch Short Report, vol. 15, no. 5(c), July 2003, available at http://www.hrw.org/reports/2003/afghanistan0703/.
42 Sometime during the operation, the family’s copy of the Koran was shot through with a bullet, a fact which later and understandably caused anger in the local community.
43 See Michael Ware, “‘We Were Better Off Under the Russians,’” Time Magazine, June 10, 2002; Patrick Quinn, “U.S. raids, cultural problems lead to rising resentment in southern Afghanistan,” Associated Press, June 24, 2002.
44 Names have been replaced with initials to protect the confidentiality of the complainants.
45 Human Rights Watch interview with U.N. officials, Kabul, December 13 and 16, 2003. Human Rights Watch telephone interview with former U.N. official, February 6, 2004.
46 Human Rights Watch interviews with A.G.S., Afghan journalist, October 5 and 9, 2003.
47 Paul Watson, “Afghans Tell of Torture During Security Sweep,” Los Angeles Times, October 30, 2003; Paul Watson, “Afghan Leader Told U.S. About Abuses, Aide Says,” October 31, 2003. See also transcript of interview with Paul Watson by Los Angeles Times Online editor, on documenting abuses and interviewing witnesses, available at: http://www.latimes.com/
48 Watson, “Afghan Leader Told U.S. About Abuses, Aide Says,” October 31, 2003.
49 See section on “International Legal Context,” below.
50 Protocol I (1977) Additional to the Geneva Conventions of 1949 (“Protocol I”), art. 57(2)(a)(ii). Many of the provisions of Protocol I of the Geneva Conventions, including those applying to methods and means of attack, are accepted as customary international law applicable to international and non-international armed conflict. See section on “International Legal Context,” below.
51 Protocol I, art. 57(2)(a)(iii).
52 Protocol I, art. 51(4). Among indiscriminate attacks are those expected to cause incidental loss of civilian life and property that would be excessive in relation to the concrete and direct military advantage anticipated. Id. art. 51(5).
53 Human Rights Watch interview with Mohammad Naim, Gardez, Paktia, March 10, 2003.
54 Human Rights Watch interview with Sherbat, Gardez, Paktia, March 10, 2003.
55 Human Rights Watch interview with Khoja Mohammad, Gardez, Paktia, March 10, 2003.
56 Human Rights Watch interview with Amanullah, Gardez, Paktia, March 10, 2003.
57 Human Rights Watch interview with Mohammad Naim, Gardez, Paktia, March 10, 2003.
58 Human Rights Watch interview with Sherbat (last name withheld), Gardez, Paktia, March 10, 2003.
60 Human Rights Watch interview with Sherbat, Gardez, Paktia, March 10, 2003.
61 Human Rights Watch interview with Mohammad Naim, Gardez, Paktia, March 10, 2003.
62 Human Rights Watch interview with Ahmaddullah, Gardez, Paktia, March 10, 2003.
63 The information here is gathered from interviews by Human Rights Watch with the two detainees in July 2003 and several interviews with a journalist who interviewed these detainees earlier. For security reasons, the names of the detainees are withheld. The two detainees were severely mistreated by U.S. forces while at Bagram; their case is discussed in more detail in the Mistreatment in Detention section, below.
64 Information about this case is based on a Human Rights Watch telephone interview with a local journalist, Paktia province, November 4, 2003.
65 The information about this case is based on a Human Rights Watch interview with AIHRC official, Jalalabad, May 7, 2003.
66 Human Rights Watch interviews with local U.N. staff, Gardez, March 11, 2003.
67 Human Rights Watch interviews with local U.N. staff, Gardez, March 11, 2003. Human Rights Watch interview with Raz Mohammad Dalili, governor of Paktia, and other government officials, Gardez, March 9, 2003.
68 Human Rights Watch interview with Ahmed Khan and his sons, Zurmat, Paktia, March 10, 2003.
69 Information about this case is based on Human Rights Watch interviews with Naim Kuchi’s brother, Kabul, March 8 and 29, 2003. See also Marc Kaufman, “Afghans Protest Clan Leader's Detention,” Washington Post, January 12, 2003; Marc Kaufman, “Afghan Figure Sent to U.S. Facility in Cuba,” Washington Post, March 29, 2003.
70 E-mail correspondence with former U.N. official, February 2004.
71 Human Rights Watch meeting with U.S. Department of Defense officials, Washington D.C., April 24, 2003.
72 Stephen Graham, “U.S. Kills 10, Arrests 100 in Afghanistan,” Associated Press, December 30, 2003.
73 The information presented here is based on a Human Rights Watch interview with a former detainee on July 18, 2003, in Kabul. For security reasons, the person’s name is withheld here.
74 See “The Biggest Fish of Them All,” Time Magazine, March 17, 2003.
75 Zarar Khan, “Missing businessman in U.S. custody, wife says,” Associated Press, September 4, 2003.
78 Common article 3 of the Geneva Conventions provides that criminal sentences may not be imposed except by regularly constituted courts that afford “all the judicial guarantees which are recognized as indispensable by civilized people.” Geneva Conventions of 1949, art. 3. Customary international humanitarian law incorporates many of the fair trial protections found in human rights law. Persons must be presumed innocent, be prosecuted by an independent and impartial court, be informed without delay of the charges against them, and they shall have the right and means of defense. See Protocol I, art. 75. See also International Covenant on Civil and Political Rights (“ICCPR”), opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and acceded to by Afghanistan January 24, 1983 and ratified by the United States on June 8, 1992), art. 14.
79 ICCPR, arts. 9 and 14.
80 The U.N. Human Rights Committee, the body that monitors compliance with the International Covenant on Civil and Political Rights, states in its commentary to article 4 on states of emergency, that limitations to derogation “relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency. . . . [T]he obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers. Moreover, the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation.” Human Rights Committee, General Comment 29, States of Emergency (art. 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 4.
81 Human Rights Committee, General Comment 29, para. 11.
82 Fourth Geneva, art. 42.
83 The information here is gathered from interviews by Human Rights Watch with the two detainees in July 2003 and several interviews with a journalist who interviewed these detainees earlier. For security reasons, the names of the detainees are withheld.
84 A journalist with a British Broadcasting Corporation Panorama program interviewed these two detainees in July 2003 about their experiences at Bagram and Guantanamo. See “Inside Guantanamo,” BBC-One program broadcast on October 5, 2003, transcript available at: http://news.bbc.co.uk/nol/shared/spl/hi/programmes/panorama/transcripts/insideguantanamo.txt
85 See Carlotta Gall, “U.S. Military Investigating Death of Afghan in Custody,” New York Times, March 4, 2003.
86 Information about these cases is based on an article by an Associated Press journalist who interviewed the two in March 2003. See Kathy Gannon, “Prisoners released from Bagram forced to strip naked, deprived of sleep, ordered to stand for hours,” Associated Press, March 14, 2003. Human Rights Watch interviewed Gannon to confirm the accounts given here.
87 Human Rights Watch interview with Ahmed Khan, Zurmat, Paktia, March 10, 2003.
88 Gannon, “Prisoners released from Bagram forced to strip naked, deprived of sleep, ordered to stand for hours,” March 14, 2003.
90 See, e.g., Dana Priest and Barton Gellman, “U.S. Decries Abuse but Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” Washington Post, December 26, 2002.; Eric Lichtblau and Adam Liptak,“Questioning to Be Legal, Humane and Aggressive the White House Says,” New York Times, March 4, 2003.
91 Don Van Natta Jr. “A dark jail for Qaeda suspects; captives are deprived of sleep and sometimes chilled,” The New York Times, March 10, 2003.
92 Erich Lichtblau and Adam Liptak, “Questioning of Accused Expected to Be Humane, Legal and Aggressive,” New York Times, March 4, 2003.
93 Jess Bravin and Gary Fields, “How do Interrogators Make A Captured Terrorist Talk?,” Wall Street Journal, March 4, 2003.
94 Human Rights Watch interview with M.S.M. (name withheld), Malakand district, Pakistan, January 3, 2004.
95 James Meek, a reporter with the Guardian (U.K.), interviewed this detainee and others held in Kandahar at the same time. Their stories were consistent, including being beaten and forced to lie on the frozen earth. See James Meek, “People The Law Forgot,” The Guardian, December 3, 2003. See also Gannon, “Prisoners released from Bagram forced to strip naked, deprived of sleep, ordered to stand for hours,” March 14, 2003 (including allegations by a detainee at Jalalabad who was forced to lie outside in a puddle of frozen water).
96 Human Rights Watch interview with A.Z. (name withheld), North West Frontier Province, Pakistan, February 6, 2004.
97 The information about this account is based on the following interviews: Human Rights Watch interview with A.M.S., resident of Khas Uruzgon, Kabul, February 23, 2003. Human Rights Watch interview with R.H.M., resident of Khas Uruzgon; Kabul, February 23, 2003; Human Rights Watch telephone interview with an international journalist who visited Uruzgon village on January 27, 2002, February 20, 2003; Human Rights Watch interview with international journalist who visited Uruzgon village in early February 2002, February 5, 2004. See also Craig Smith, “U.S. Account Of a Battle with Taliban is Disputed,” New York Times, January 27, 2002; Eric Schmitt and Thom Shanker, “U.S. Releasing 27 Captured in Raid,” New York Times, February 7, 2002.
98 See preceding note. See also Carlotta Gall, “Released Afghans Tell of Beatings,” New York Times, February 11, 2002; Ellen Knickmeyer, “Survivors of raid by U.S. forces say victims were among America’s best friends,” Associated Press, February 6, 2002; Molly Moore, “Villagers Released by American Troops Say They Were Beaten, Kept in ‘Cage,’” Washington Post, February 11, 2002; Eric Slater, “U.S. Forces Beat Afghans After Deadly Assault, Ex-Prisoners Say,” Los Angeles Times, February 11, 2002.
99 See Second Geneva Convention, art 3 (“The wounded . . . shall be collected and cared for”); art. 12 (Wounded belligerents who fall into enemy hands “shall be treated humanely and cared for . . . . Only urgent medical reasons will authorize priority in the order of treatment to be administered”).
100 A CIA spokesman acknowledged to CNN that the agency sent its personnel to Uruzgon to provide payment. See “CIA pays victims of commando raid,” February 6, 2002, available at: http://www.cnn.com/2002/US/02/06/ret.detainees.released/
101 Information about this case is based on a telephone interview with a journalist who interviewed the detained men, February 4, 2004, and the news story that journalist filed. See Charles J. Hanley, “Finally freed, Afghans say they were kicked and abused in U.S. hands,” Associated Press, March 23, 2002.
102 This case was discussed in a Department of Defense briefing on March 20, 2002 in Washington D.C. At that briefing, a military spokesman, Brig. Gen. John W. Rosa Jr., said: “We went to the compound—no shots were fired—found out who these folks were, temporarily detained them. We never processed them and they never became detainees. But no shots were fired, and those folks were released.” This statement was false. Several journalists were told by officials in Afghanistan that the men were still in custody, and were not released until March 21. See Hanley, “Finally freed, Afghans say they were kicked and abused in U.S. hands,” March 23, 2002.
103 See Hanley, “Finally freed, Afghans say they were kicked and abused in U.S. hands,” March 23, 2002.
104 Human Rights Watch telephone interview with Tomas van Houtryve, February 3, 2004. See also Tomas van Houtryve, “Prisoners of America,” International Relations Journal, San Francisco State University, Spring 2003.
105 Human Rights Watch interview with two Afghan men (names withheld), Jalalabad, May 8, 2003.
106 International law permits security forces to use measures during transportation of arrested persons, such as blindfolds and shackling, that would not normally be permitted once a detainee is at a detention facility. However, these measures can amount to cruel, inhumane or degrading treatment—especially if they are used intentionally to cause pain or suffering.
107 Human Rights Watch, “All Our Hopes are Crushed: Violence and Repression in Western Afghanistan,” A Human Rights Watch Short Report, vol. 14, no. 7(C), October 2002, available at http://hrw.org/reports/2002/afghan3/herat1002-06.htm#P997_155129, section IV entitled “Torture and Arbitrary Arrests”; Human Rights Watch, “Killing You Is a Very Easy Thing For Us: Human Rights Abuses in Southeast Afghanistan,” A Human Rights Watch Short Report, vol. 15, no. 5(c), July 2003, available at http://www.hrw.org/reports/2003/afghanistan0703/.
108 Human Rights Watch telephone interview with human rights monitor in Kandahar, October 15, 2003.
109 Human Rights Watch interview with a human rights monitor, Kabul, December 17, 2003.
110 These concerns have been cited in correspondence and telephone conversations between Human Rights Watch and staff from the United Nations Mission in Afghanistan and the Afghan Independent Human Rights Commission. For a more detailed description of military detention sites and ordinary criminal jails and prisons in Afghanistan see Human Rights Watch, “Killing You Is a Very Easy Thing For Us,” n. 9 and accompanying text.
111 See Carlotta Gall, “U.S. Military Investigating Death of Afghan in Custody,” New York Times, March 4, 2003. Information about these cases is also based on extensive conversations with journalists who have researched the cases and requested information from U.S. military spokespeople in Kabul during 2003.
112 The death certificate was signed by a military pathologist named Dr. Elizabeth A. Rouse. Diliwar’s family have insisted to reporters from the BBC and the New York Times that Diliwar was a civilian—a taxi driver and farmer. See Gall, “U.S. Military Investigating Death of Afghan in Custody,” March 4, 2003; and “Inside Guantanamo,” BBC-One program, October 5, 2003.
113 The spokesman told reporters that the military pathologist who performed the autopsy was named Dr. Kathleen Ingwersen.
114 April Witt, “U.S. Probes Death of Prisoner in Afghanistan,” Washington Post, June 24, 2003.
115 Protocol I (1977) Additional to the Geneva Conventions of 1949 (“Protocol I”), art. 75.
116 See generally the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”), G.A. Res. 39/46, annex, 39, U.N. Doc. A/39/51 (entered into force June 26, 1987; ratified by Afghanistan April 1, 1987 and by the United States on October 21, 1994). See also ICCPR, art. 7.
117 ICCPR, art. 4(2).
118 ICCPR, art. 10 (“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”); United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977), paragraphs 28-32
119 See Nigel Rodley, The Treatment of Prisoners Under International Law (Clarendon Press, Oxford: 1999), p. 105 (“[T]he borderline between ‘other ill-treatment’ and treatment falling outside the prohibition altogether cannot be precisely drawn.”).
120 Report of the Special Rapporteur on Torture, Mr. Nigel S. Rodley, “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” U.N. Doc. E/CN.4/1998/38, submitted 24 December 1997 pursuant to Commission on Human Rights resolution 1997/38, (Yemen, para. 200) (“The methods of torture reported included…shackling for lengthy periods…”); Report of the Special Rapporteur on Torture, Mr. Nigel S. Rodley, “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” U.N. Doc. E/CN.4/1996/35/Add.1, submitted 16 January 1996 pursuant to Commission on Human Rights Resolution 1995/37, (China, para. 104) (“The methods of… torture reportedly include handcuffing or shackling for long periods….”); Report of the Special Rapporteur on Torture, Mr. Nigel S. Rodley, “Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” U.N. Doc. E/CN.4/1995/34, submitted 12 January 1995 pursuant to Commission on Human Rights Resolution 1992/32, (China, para. 91) (“Among the most common methods of torture reported were… shackling with handcuffs or leg-irons, often tightly and with the victim’s body in a painful position.”).
121 See, e.g., United Nations Secretary-General, “Human Rights Questions: Human Rights Situations and Reports of Special Rapporteurs and Representatives, Situation of human rights in Myanmar; Note by the Secretary-General,” (1994), A/49/594, para. 13 (“Numerous allegations . . . have been received from various sources alleging that forces of the Myanmar military, intelligence and security services and police continue to torture persons in detention or otherwise subject them to cruel, inhuman or degrading treatments and punishments. . . . Allegations include subjection to . . . shackling. . . .”).