Abstract
In order to shed light on the Afghan torture program, this chapter explores the following themes. The first section of the chapter examines the torture techniques used by the Afghan security forces. The section shows how members of the Afghan security forces routinely ignored due process guarantees (e.g., the right of detainees to have access to a lawyer) in order to have free rein in torturing and mistreating detainees. The second section analyses how Afghan prosecutors and judges relied on confessions obtained through torture to convict individuals accused of committing conflict-related offenses. The last, third section of the chapter examines the practices used by the Afghan authorities to prevent attempts to bring to justice those responsible for torture.
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- 1.
Research evidence shows that the use of torture or any other form of cruel treatment during interrogations of suspects in criminal cases often leads to false confessions and information, thus making it difficult to determine the individual’s guilt or innocence. See, for example, Kassin and Gudjonsson (2004, 49–50), Costanzo and Gerrity (2009, 183–184).
- 2.
The U.N. Human Rights Committee also recognized that specific forms ofincommunicado detention were violations Article 10(1) of the ICCPR, which states that all individuals deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (Svensson-McCarthy 1998, 422–424; U.N. General Assembly 1966).
- 3.
The main reason for preventing lawyers from visiting detainees during pre-trial detention was to avoid any interference in the process of extracting a confession from a detainee. Another reason, said commissioner Mohammed Farid Hamidi from the Afghanistan Independent Human Rights Commission (AIHRC), was the lack of legal training for members of the Afghan security forces. “The concept of a defense lawyer is very new in Afghanistan. Many policemen and NDS agents don’t even know what the role of a defense lawyer is. That’s why they don’t allow lawyers to see detainees. They think they have the right to not allow a lawyer to have access to a detainee,” said Hamidi (pers. comm.) in 2012. He added that lawyers were denied to see detainees not only in national security cases but also in other cases.
- 4.
In 2016, for example, ILF-A lawyers worked on approximately 5600 cases, about a third of them were national security cases (Shabir Ahmad Kamawal, pers. comm.).
- 5.
Under Afghan law, prosecutors had to report any violation of the rights of detainees. Article 91 of the Afghan Criminal Procedure Code stipulates that investigating prosecutors have an obligation to report if “the police and national security operatives have committed legal violations in dealing with a case” (UNAMA and OHCHR 2017, 18).
- 6.
All major human rights treaties guarantee the right to a fair hearing in criminal proceedings before an independent tribunal (OHCHR 2003, 117–118). The International Covenant on Civil and Political Rights (ICCPR) stipulates—in Article 14(1)—that in criminal cases “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” (U.N. General Assembly 1966). The right to be tried by an independent tribunal is recognized as a non-derogable right, that is, an absolute right that must not be suspended under any circumstances (U.N. Human Rights Committee 1992b).
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Badalič, V. (2019). Systemic Torture, the New Normal: Civilian Victims of “Enhanced Interrogation Techniques” in Afghan Detention Facilities. In: The War Against Civilians. Palgrave Studies in Victims and Victimology. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-12406-9_5
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