Eurorights Blog: Between a Rock and a Hard Place: Philip Hammond’s Decision to Transfer Afghan Detainees to the Afghan Authorities
By Dr. Noelle Quenivet. ILHRU. UWE, Bristol
On 29 May 2013 the Defence Secretary of the UK acknowledged that a group of Afghan nationals was being held at Camp Bastion, waiting for more than a year to be transferred to the Afghan authorities. As the situation in Afghan prisons is notoriously bad the UK has so far refused to hand them over to the Afghan authorities, as a result of which such individuals have been detained for up to 14 months without a charge. Lawyers acting on behalf of some of these men are now challenging their detention in court. On 6 June the government announced that it was due to restart the transfers from 26 June (this allows for any legal challenges to the decision) and the Afghan government is now pressing for detainees to be handed over within two weeks, i.e. by 22 June. The Spokesperson to the President of Afghanistan stated “We are living in Afghanistan and we are talking about Afghans detained on Afghan soil and held in Afghanistan. According to our laws this is a breach of sovereignty. … The UK … is another country with its own laws and sovereignty, [which] don’t [sic] mean anything here in Afghanistan.” This statement is without any understanding of the international obligations of the United Kingdom! Indeed, the jurisdiction of the European Convention on Human Rights extends to this situation as the individuals are detained by the UK and are therefore, in accordance with the Al-Skeini (Al Skeini and others v United Kingdom, Application No 55721/07, paras 136-137) and Al-Saadoon (Al Saadoon and Mufdhi v UK, Application No 61498/08, paras 123-125) jurisprudence, under the jurisdiction of the UK. In other words, the UK is bound to conform to ECHR provisions.
In November last year as allegations were made that detainees were being abused at the hands of the Afghan authorities the UK stopped the transfers. A January 2013 report by the United Nations Assistance Mission in Afghanistan found torture to persist in numerous detention facilities. Article 3 ECHR prohibits the UK from sending individuals to a place where their physical integrity might be at stake (Soering v United Kingdom, Application No 14038/88, para 91). Therefore, the UK had no choice but to stop the transfers and did so until it was assured that the detainees would not be ill-treated, a move praised by the United Nations Committee against Torture (Concluding Observations on the Fifth Periodic Report of the United Kingdom (6-31 May 2013), para 19). The UK has undoubtedly learned a lesson from the Al-Saadoon case. At the time the UK had claimed that it ‘had no option other than to transfer the applicants. It was operating in a foreign sovereign State which was demanding the applicants’ return.’ (Al-Saadoon, para 112) The Court firmly reminded the UK that other legal obligations did not shield it from the application of the ECHR (Al-Saadoon, paras 126-128).
The UK believes it has now received such assurances and will start transferring the detainees to the Afghan National Detention Facility in Parwan (a.k.a. the Bagram military prison), which is operated by the Afghan National Army with US support. To establish whether Article 3 is breached, the ECtHR assesses ‘the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances’ (Saadi v Italy, Application No 37201/36, para 130).’ In particular, the Court stressed that ‘the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion’ (Saadi, para 133). That the situation in Afghan detention centres has considerably improved since the January 2013 report is doubtful even more as Australia reiterated on 3 June that, in light of fresh torture allegations, it refused to transfer prisoners under its custody to the Afghan authorities.
If there is a real risk can it be alleviated by diplomatic assurances given by the requesting State (Harkins and Edwards v UK, Applications Nos 9146/07 and 32650/07, para 125), i.e. Afghanistan? At least, the UK, unlike in the case of Al Saadoon, where it had failed to even attempt to obtain assurances from the Iraqi government (paras 142-143), has this time sought such assurances. Its initial attempts to get assurances that the UK would have access to the Afghan prisons to check on the detainees were however rejected by Afghanistan. How good the new assurances are is unknown as their details have not been made public whilst they have been passed on Leigh Day, one of the law firms acting on behalf of one of the detainees. The only element that has surfaced in the press is that, according to Richard Stein (Leigh Day law firm), ‘the current proposals for transfer do not contain an express assurance from the Afghan authorities that there will be no onward transfers, even though the MoD accepts that NDS [National Directorate of Security, the Afghan intelligence service] facilities are not safe.’ Given the poor record of the NDS, such assurances need to be expressly given. Besides, diplomatic assurances need to be specific (Othman (Abu Qatada) v UK, Application No 8139/09, para 194) and sufficient to remove any real risk of ill-treatment (Othman, para 186). In its assessment the Court considers both the general human rights situation in the State where the individual will be held and the particular characteristics of the applicant (Othman, para 187). Whilst little can be said in relation to the latter, it is clear that the human rights situation in Afghanistan is generally as well as specifically in prisons poor. That being said, the Court explains that a poor general human rights situation does not necessarily exclude accepting assurances (para 194) but insists that ‘assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment’ (para 187) and kindly offers in para 189 a list against which the UK government can check that Afghan assurances meet ECHR standards. One can only hope that the UK has done so to comply with the ECHR….