International Law

Afghanistan Quietly Embraces Non-Criminal Detention

By Robert Chesney, Lawfare Staff
Monday, April 9, 2012, 8:05 PM

For more than a decade, the United States has asserted authority to detain without criminal charge in Afghanistan under color of the law of armed conflct (LOAC).  Because for the bulk of this period that conflict has been non-international in character--i.e., a non-international armed conflict (NIAC)--some observers have criticized the US position.  That is, some have argued that LOAC provides no detention authority in a NIAC setting (in contrast to an international armed conflict, in which LOAC expressly contemplates detention for the duration of hostilities for POWs as well as internment for persons posing an imperative threat to security).  Such arguments usually turn on the point that Common Article 3 (CA3) of the 1949 Geneva Conventions says nothing affirmative about detention authority (though it does expressly assume that there may be detainees in such conflicts), and that prior to CA3 international law simply didn't apply to internal conflicts in any event; from this point of view, the affirmative authority to detain without criminal charge in a NIAC should be found in domestic law, if anywhere.  Building from such observations, some critics have taken note that Afghanistan's domestic law does not appear to justify the forms of detention the US has been employing, or any other form of non-criminal detention.

Well, once it became clear that control of the U.S.-created Detention Facility in Parwan (DFIP) would soon pass into Afghan hands, the question arose whether the non-criminal detention model in use there would also give way, replaced by a model of solely detaining in relation to prosecution in the Afghan criminal justice system.  The answer, it turns out, is no.  The Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan states, at paragraph 5, the following:

 Afghanistan affirms that it has established an administrative detention regime under its domestic law which is:

a) consistent with international humanitarian law, including the Additional Protocol II of 1977 to the Geneva Convention of 1949, and all of Afghanistan's international obligations;

b) in compliance with Afghanistan's international obligations with respect to humane treatment and applicable due process; and

c) based on sustainable arrangements, including housing.

Note that the language "has established" might give a mistaken impression that the Afghan administrative detention system is in fact already in place.  One commentator observes that the Dari version of the MOU puts "this sentence in the present/future tense, i.e Afghanistan 'will be establishing' [ijad namayad]." 

In any event, I believe this breaks (or will break) new ground in that Afghanistan is finally explicitly embracing non-criminal detention, thus presumably mooting the line of criticsm mentioned above about the absence of a proper domestic law foundation for such practices.

I do not know whether there is any public documentations of the substantive grounds for detention Afghanistan has embraced, nor the procedural system through which administrative detention decisions will be vetted going forward (presumably in place of the Detainee Review Board system that the United States has developed in recent years for that purpose).  Quite possibly those details are to be determined over the next several months.

Going forward, it will be interesting to see whether anyone mounts a human rights law critique of Afghanistan's embrace of administrative detention, and if so whether the Afghans will push back by asserting that LOAC rather than IHRL controls.  It seems to me that the language quoted above gestures in the direction of IHRL in its reference to "all of Afghanistan's international obligations" following a separate reference to LOAC/IHL.  One suspects that the Afghans are more willing than the US to conceded IHRL's potential relevance in this setting.  It may be then that, if an IHRL critique emerges, Afghanistan will accept the relevance of raising that issue but will defend their system as compliant with IHRL on the merits.  Bearing that in mind, readers might want to check out Monica Hakimi's paper here and Matt Waxman's here.