Afghanistan Analysts Network
UNAMA has reported regularly on the treatment of security detainees since 2011; its earliest reports on the arbitrary detention of ‘non conflict-related detainees’ were published in 2009. All can be read here.
Previous reports by AAN concerning torture and detentions have included extensive reporting from the Islamic Republic era and the actions of the then intelligence agency, the NDS, Afghan police and CIA-proxy forces, as well as United States forces, both CIA and military, operating at CIA black sites, US military forward operating bases, Bagram airbase and Guantanamo Bay.
UNAMA has said it had documented more than 1,600 human rights violations and that just under half of these were acts of torture and ‘ill-treatment’, which includes cruel, inhuman or degrading treatment or punishment. The allegations were drawn from more than 130 in-depth interviews, carried out between 1 January 2022 and 31 July 2023 with Afghans, including 24 women, who had been held in police lock-ups, GDI detention centres and provincial prisons. It covers both security and criminal detainees. The reported violations took place in 29 of Afghanistan’s 34 provinces.
UNAMA attributed just over half of the violations (57 per cent) to the GDI, the body charged with maintaining Afghanistan’s “internal and external security, which encompasses treason, espionage, terrorism and anti-government propaganda,” and just under half (47 per cent) to the police, who come under the command of the Ministry of Interior; the police have “jurisdiction over general law enforcement and public security.” The remaining one per cent of violations were allegedly carried out in Afghanistan’s prisons.
As to those whom UNAMA documented as having been abused while in detention, 24 per cent were journalists or civil society activists; 21 per cent were former government officials (seven per cent civilians; and 14 per cent, security and defence personnel); nine per cent were (actually or perceived to be) affiliated with armed groups (NRF or ISKP) and the remaining 44 per cent were individuals with no particular affiliation. Two per cent had been detained (only by the GDI) because they were family members of people whom it wanted information about.
Unlike most of its previous reporting, UNAMA did not distinguish between detainees held on ‘ordinary’ criminal and security-related charges. It has also not identified the facilities where torture was most prevalent. The historical pattern for security-related detainees under the Republic, and under earlier governments, was for the bulk of torture to be committed in a few locations, especially certain intelligence agency directorates, such as Counter-Terrorism (numbered successively as Directorate 5, 90, 241) and Investigations (17, 40, 501) in Kabul, and by particular police and other forces – Kandahar police and NDS featured prominently in UNAMA reporting during the Republic era, for example, as did the various CIA-proxy forces. UNAMA does not say whether such clustering in the use of torture has persisted into the new era, but if it were able to do so, identifying the facilities and forces would add an extra level of accountability to UNAMA reporting.
Ill-treatment during arrests
UNAMA’s report has documented how arrests are often accompanied by ‘excessive force’; international human rights norms require the use of force to be proportionate and as a measure of last resort only. Numerous interviewees, said UNAMA, recounted how security forces had come to their place of work or home or dragged them from cars, delivering “beatings and kicks, including when they were already on the ground, and being struck with the butts of weapons… insulting [them], often restrain[ing] their hands, as well as blind-folded or hooded them, and forced individuals into vehicles to be transported elsewhere.” Rarely did the officials produce warrants or clearly identify themselves.
UNAMA said the experience for the detainee was “akin to being kidnapped rather than arrested,” particularly when an arrest was accompanied by beating, restraints, blindfolding or hooding. It said this alone “would instill a justifiable fear in those detained of imminent harm or being killed, causing mental suffering which could meet the threshold of severity required to constitute torture or other forms of ill-treatment.”
Torture under the Islamic Emirate of Afghanistan
The descriptions of torture and ill-treatment once detainees were in custody, reported to UNAMA, will sound familiar to anyone who has monitored detentions in Afghanistan over the decades. Here are the accounts of two individuals:
For eight days, I was tortured, it was always at night not during the day. I was taken to a room specifically for torture. There were different methods of torture used on me. I was beaten four or five times and when I was becoming unconscious then they threw water on me to make me come around, be conscious. It was becoming cold at night. During the first two days they were beating my feet. I couldn’t wear shoes as my feet were swollen. Then they beat me with power cables and pipes. Then they used a portable electric shock machine on me.
Interview of 25 May 2023, GDI custody, quoted by UNAMA p24
He told his fighters to lay me down without giving me the chance to answer his questions. They kicked me up to my head, and all parts of my body. Two of them took a piece of wood and beat me. I cried for help. Four of them held my hands and feet, and one of them put his foot on my neck and pressured it that affected seriously my breathing. I felt that I would lose my life. After this they stopped torturing me.
Interview or 9 November 2022, police custody, quoted by UNAMA p 24
UNAMA listed the following methods of torture being used:
- being beaten by numerous means, including being punched or kicked, struck with the butts of weapons, typically around the head or shoulders, or with other instruments, such as metal piping or cables, to their backs or the soles of their feet, often while restrained. Some described the beatings as so severe they lost consciousness. UNAMA said beatings comprised the overwhelming majority of the 259 instances of physical aggressions and were attributable to police and GDI alike;
- receiving electric shocks to various parts of their body, causing some to lose consciousness (11 instances, 4 attributable to police; 7 to GDI);
- being choked or suffocated, including by hand or wire, or having a towel or plastic bags placed over their heads or faces (9 instances, one attributable to police, 8 to GDI);
- being hung from the ceiling by their hands (4 instances, all attributable to de facto GDI) and cuffed in stress positions (3 instances, attributable to de facto GDI);
- having pipes with water forced in their mouths (5 instances, 3 attributable to police and 2 to GDI);
- being left outside in cold weather during winter for extended periods (2 instances, both attributable to GDI); and
- seeing a GDI member place a big stone on the stomach of another detainee whose hands were cuffed.
The security services of the Islamic Emirate appear to mostly use the same torture methods as their predecessors. Beatings, suspension, stress positions and electric shocks have been reported by former detainees back through the 2000s, the 1990s and 1980s to when, in 1980, the KGB helped set up the Afghan intelligence agency in the form it now takes (for more detail on 1978-2002 period, see the Afghanistan Justice Project report). However, there is a new twist – forcing water into the mouths of prone detainees so that they experience drowning. The CIA did not invent ‘waterboarding’, but did introduce it to Afghanistan in their interrogations of ‘War on Terror’ detainees. Presumably, some of Afghanistan’s current security officials learned the technique through experience. (For more on the history of this method of torture and its current, euphemistic name, see this 2008 article from The New York Times Magazine.)
The UNAMA report also documented other acts “causing mental suffering that in the circumstances of detention and coercive interrogation could amount to torture.” They included threats to kill detainees or their family members, blindfolding and restraining detainees for extended periods during custody or throughout coercive questioning. Detainees were also “frequently” screamed at and insulted, including calling women ‘prostitutes’ and men ‘infidels’, ‘bad’ or ‘false’ Muslims’, ‘dogs’ and ‘sons of the Americans’, and having their heads forcibly shaven.
“Numerous interviewees,” UNAMA said, described being blindfolded or hand-cuffed when “taken from their cells, including for questioning, and stayed that way for the duration of their interrogations.” This meant they could not identify who was questioning them and were made “vulnerable to abuse.” The experience of hooding, wrote UNAMA, of being unable to see their interrogators “would have heightened the fear, stress and sense of perceived threat.” It says:
While sensory deprivation of itself can cause psychological effects, including fear, anxiety, high levels of stress, disorientation, and a sense of powerlessness, the Committee Against Torture has found that questioning while applying “hooding under special conditions” constitutes torture, and this is particularly evident where hooding is used in combination with other coercive methods of questioning.
UNAMA also reported the deaths of 18 individuals in custody in the period under review; 11 had been held by the GDI and five by the police. Six of the individuals were former members of the ANSF (the Republic-era Afghan National Security Forces), six “actual or perceived” members of armed opposition groups, such as the Islamic State in Khorasan Province (ISKP) and National Resistance Front (NF), and six unaffiliated with other groups of interest. UNAMA stresses that these deaths were distinct from “the numerous instances of extra-judicial killings committed by de facto authorities, including by de facto security forces, occurring outside contexts of custodial detention,” which this report does not detail.
Forced confessions and other violations of procedural safeguards
The other violations documented by UNAMA were of procedural safeguards and the right to due process. They include being forced to make a confession – it reported 80 instances of this, including at least 40 where the detainee had reported torture or ill-treatment before being forced to sign documents. In almost all instances, reported UNAMA:
[I]nterviewees signed or thumb-printed documents without having read the documents or having had their content explained. In several instances where interviewees expressly asked to know the content, de facto security officials refused to let interviewees read the document or refused to read it aloud to blindfolded or illiterate interviewees.
Where torture is used, said UNAMA, it aims to “obtain forced confessions or other information.” A primary driver of torture, mentioned in previous UNAMA reports focussing on security detainees, is the Afghan criminal justice system’s acceptance of a confession as enough in itself to convict a person without any other supporting evidence. That appears to be unchanged and is a theme which will be returned to.
UNAMA has also documented multiple instances of the following violations: being kept in solitary confinement; not being told the reasons for arrest; not being told of the right to a lawyer; or being allowed to see a lawyer; not having a lawyer present during interrogations; not having their family notified of the arrest and not allowing family contact; no medical check-up; inadequate healthcare and lack of access to independent medical personnel and; not being brought promptly before a judge to whom they could challenge the lawfulness of their detention.
Torture and ill-treatment flourish amid secrecy and lack of due process. Keeping detainees incommunicado, without access to family, lawyers, independent medical personnel or a judge, can, in UNAMA’s words, “increase the risk of undocumented torture and abuse.” It also increases the likelihood that detainees will not get a fair trial.
Laws regarding torture and ill-treatment and the Emirate’s response to the UNAMA report
The prohibition against torture in international law is absolute. Several orders issued by the Emirate’s Supreme Leader, Mawlawi Hibatullah Akhundzada, have suggested that torture is permitted with a court order, but is otherwise strictly banned as an act of zulm (oppression). (Read the orders in the original Pashto and Dari and AAN’s unofficial translation here and our analysis here). At the same time, a Code of Conduct on Reforming the Prisoners’ System, issued by decree by Hibatullah in January 2022, has, said UNAMA:
[N]umerous articles that prohibit torture or ill-treatment of persons deprived of their liberty. The Code of Conduct is clear that security officials, prisoners’ guards and prison personnel are prohibited from torturing, tormenting or punishing prisoners (art. 33). In particular, the Code instructs de facto security authorities to refrain from torture or ill-treatment which “contravenes Sharia principles, ethics and human dignity” of suspects or criminals, starting from the point of arrest, through transfer (arts. 3, 5). It cites as examples of behavior to be avoided, torturing or tormenting suspects, using foul or insulting language in front of people or relatives, and sitting on people’s head or stomachs.
The Code of Conduct, reports UNAMA, says that detainees are “not to be tortured in any way during their detention and nor are confessions to be obtained through force or duress” (article 36) and that security officials “shall not try to extract confessions from a suspect.” They shall also “refrain from threatening, torturing, and videoing them because such a confession does not fall within the orbit of the court’s judgment” (article 39).
Most significantly, says UNAMA, the Code says, “[a] judge cannot pass judgement based on another’s investigation, or testimony or confessions which the investigator or interrogator heard. Recourse requires that the judge hears the confession or witness evidence, deems it admissible and bases their judgment upon it” (article 39). It also cites an instruction to the Supreme Court made by Mawlawi Hibatullah in September 2022 that a confession without evidence has no legal value unless made in front of the judge.
The responses to the report from the Ministry of Interior, GDI and Office of Prisons Administration, and the Supreme Court, collated by the Ministry of Foreign Affairs and published as an appendix to the UNAMA report, make it clear that officials do understand that, under the law, there is an absolute prohibition against torture.
The Ministry of Interior pointed to Decrees 1521 (a copy of which AAN has not seen) and 29 as prohibiting corporal punishment and the torture of detainees and said the ministry’s Human Rights Directorate has also dispatched 16 committees who have visited 60 police units in the capital and provinces to monitor the force. The GDI said the UNAMA report suggested the GDI carried out torture “purposefully and as a means of obtaining confessions,” but that, according to its own code of conduct, this was “prohibited and in all cases of detainees’ torture, the offenders were treated strictly and in accordance with the policy.” The Prisons Administration said: “Fortunately, Sharia (Islamic religious, social, and cultural values), which have been approved to protect and respect fundamental and Islamic rights, prohibit the torture of people even for the purpose of obtaining the truth.”
All three bodies gave detailed rebuttals of the report, including the ways in which they were carrying out their work lawfully. However, the scale and apparent routine nature of the torture reported by UNAMA indicates a gap between what officials have asserted and what actually happens on the ground.
Two of UNAMA’s recommendations – it made similar ones also during the Republic – were to the Supreme Court that it should:
- Issue clear instructions to de facto judges to ensure that any statement of an accused used in court has been made with full and informed consent, and to ensure that coerced or other unlawfully obtained statements are not admitted or relied upon under any circumstances as evidence in court proceedings;
- Issue clear instructions to de facto judges to ensure that any allegations that confessions were coerced or unlawfully obtained while in custody are fully investigated and those responsible are held to account.
In response, the Supreme Court said it “appreciates efforts exerted by UNAMA,” but repudiated the allegations. It said it assigns delegations to monitor the situation of detainees and has an inspection team that visits the provinces and monitors the situation of detainees “at close quarters.” It called UNAMA’s accounts of torture, deaths in custody and of the previous administration’s police officers and other employees being killed “far from reality” because such acts would “contravene the Islamic principles.” The Supreme Court did not respond to the issue of forced confessions or relying solely on a confession to convict a person.
Law and practice under the Emirate and the Republic
In the past, the problem with torture in Afghanistan has lain not in a lack of laws prohibiting it, but in their not being implemented.
Under the Republic, there were at least eight legal instruments prohibiting the use of torture; they included treaty obligations (which still apply) and various laws. Yet, the use of torture against security detainees only really diminished after domestic pressure mounted on countries providing soldiers for the NATO mission. In the end, ISAF decided it could not hand over security detainees to the NDS unless the NDS stopped torturing them and brought in various mechanisms to help/put pressure on the NDS to change its ways (see AAN reporting on this from 2011, 2012, 2013and 2015). That focus did bring down the overall incidence of torture, only for it to rise again after the end of active military engagement by ISAF in 2014, albeit never to the same high levels. In its last report published under the Republic in February 2021, there was a mixed picture: overall, UNAMA was still documenting that one in three security detainees had been tortured; within that, however, the use of torture by the NDS was dramatically lower than had been reported in 2011, by the police, it was somewhat down, and the CIA proxies, the NDS Special Forces and Khost Protection Force, and the Afghan Local Police (ALP) were still using it extensively. In 2023, UNAMA also reported that almost half of the security detainees interviewed had been asked to sign or thumb-print documents which they had not read.
In other words, the use of torture fell, but it was still resorted to, particularly in some facilities and by some forces, in the last years of the Republic. There was still impunity for torture. Despite all the laws and fine words from the Afghan government, both the police and NDS could carry out, order or permit torture without any fear of prosecution or even sacking or demotion. Indeed, UNAMA tracked NDS directors and senior police being promoted after its reporting had identified them as being in command of facilities where torture was carried out. Speaking to officials in private, the author was given the impression that they believed that the fact of the insurgency meant torture was necessary for information-gathering. There was no taboo on using it, at least for security-related (mostly suspected Taleban) detainees. This was also evident in the frequent reliance on confessions by judges, even in the face of allegations of torture.
Similarly, torture against detainees suspected of terrorism or of having information about terrorists was carried out on the 2002 orders of then US President, George Bush, by the CIA and US military. Used in Afghanistan and elsewhere, the torture was referred to euphemistically as ‘enhanced interrogation methods’. In 2014, President Barak Obama admitted to America’s use of torture, but declined to hold anyone accountable (press conference transcript here). He was speaking ahead of the release of a US Senate Intelligence Committee that documented the CIA’s use of torture. An earlier report by the Senate Committee on Armed Services, ‘Inquiry into the Treatment of Detainees in U.S. Custody’, had also documented the use of torture by military personnel. Yet, no US official has been held accountable for this policy in a court of law and the only investigations/prosecutions have been into officials accused of using unauthorised interrogation techniques. Even then, investigations have been administrative rather than criminal, and into low-ranking officials; any punishment has been limited to disciplinary actions, even when detainees were killed. Those ordering and sanctioning the breaches have remained untouched by the law.
That failure by the US and Republic-era governments and courts to hold those carrying out and ordering torture accountable was a factor in leading the former Chief Prosecutor of the International Criminal Court, Fatou Bensouda, to recommend an ICC investigation in 2017. She had reported in 2016 that there were reasonable grounds that the United States military and CIA had “resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape” and the Republic’s national security forces had committed “the war crimes of torture and cruel treatment.” (At the same time, Bensouda also recommended the ICC investigate war crimes and crimes against humanity allegedly committed by the Taleban.)
This report by UNAMA does not distinguish between security detainees and the wider population of detainees, nor does it focus on particular facilities. Nor does it try to draw direct comparisons between the incidence of torture then and now. However, one clear conclusion that can be drawn from UNAMA’s report is how patterns of abuse continue. That waterboarding has been added to the list of methods of torture used by the Afghan state is horrifying, but hardly a surprise, given it may have been used by US forces on some of those now in power in Afghanistan.
In the 2002-21 era, both American and Afghan politicians and security officials who ordered or carried out torture enjoyed impunity, as had those in power in Kabul in earlier generations. For the cycle to be broken, as UNAMA has repeatedly called for over many years, there has to be accountability, safeguards and a change in what evidence is allowed in court. In this report, UNAMA has put forward many practical suggestions as to how the current government could safeguard the dignity and safety of detainees and allow fair judicial processes. So far, at least, while it has good rules on paper, the Islamic Emirate does not seem to be implementing them.
Edited by Rachel Reid
|↑1||Almost all of UNAMA’s previous reporting covered security detainees only.|
|↑2||In the article, William Safire describes it as one of the “bland bureaucratic euphemisms” that are coined to “conceal great crimes,” but it is also a torturer’s joke. “It refers to surfboarding,” he says. The torturers are “attaching somebody to a board and helping them surf. Torturers create names that are funny to them.”|
|↑3||Two of the deaths were in prisons, but UNAMA says their deaths were not attributable to torture or ill-treatment.|
|↑4||See for example, UNAMA’s 2011 report on the treatment of security detainees:
In almost all criminal cases in Afghanistan, including national security prosecutions, the case against the defendant is based on a confession, which the court usually finds both persuasive and conclusive of the defendant’s guilt. In most cases confessions are the sole form of evidence or corroboration submitted to courts to support prosecutions. Confessions are rarely examined at trial and rarely challenged by the judge or defence counsel as having been coerced.
|↑5||For example, Decree 8, Vol 5, 4 November 2019 says:
If kashf ul-haal [information gathering] is required from a suspect, only provincial and intelligence officials have the right to keep them in custody for this, and this detention should not go beyond a month. If there is need for more time to collect information, an extension should be requested from the court. Using ta’zib [torture] should be avoided during detention because the authority for ta’zib and tazir punishments [punishments given at the judge’s discretion, rather than being specified in the Quran] lies with the court. If others opt to torture or punish someone, it is not justice but zulm [oppression]. Preventing zulm is a wajeb [obligation], while allowing it to happen is haram [forbidden].
Decree 29, 15 March 2022 says:
If kashf ul-haal is required from a suspect, only security and intelligence officials have the right to keep them in custody for this purpose, but the detention should not exceed ten days. If more time is needed to gather information, an extension should be requested from the court. Likewise, no one can release a prisoner once their sentence is complete without a court order. Any kind of torture should be avoided during detention because torture and tazir are the sole prerogative of the courts. This would not be justice but cruelty: preventing cruelty is a duty, while permitting cruelty is forbidden.
Compare also order 65, vol 6, 2 November 2020.
|↑6||One snapshot, possibly representative, possibly not, of the proceedings of a court in Helmand can be seen in a short documentary film by Victor Blue and Ross McDonnell and published on The New Yorker website. ‘Swift Justice’ shows a judge ordering a man accused of stealing away to be beaten in order to gain a confession. He also rules that a widow does not have to marry her brother-in-law who is insisting on his right to marry her; instead, the judge rules that the woman can go home to her father’s house instead, as she and her father had been asking for.|
|↑7||Instruments criminalising torture in Afghanistan include:
Penal Code 1976
If the public service official tortures the accused for the purpose of obtaining a confession or issues an order to this effect, he shall be sentenced to long imprisonment.
7 October 1976, article 275
United Nations Convention Against Torture, acceded 1 April 1987
Constitution of Afghanistan 2004
No one shall be allowed to order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished.
26 January 2004, article 29
Presidential Decree No 129 To Implement The Afghan Fact-Finding Delegation’s Suggestions On The Presence Of Torture And Ill-Treatment In Detention Centres
The Attorney General of the Government of the Islamic Republic of Afghanistan is ordered to prosecute those who violate article 51 of the Prisons and Detentions Law  in the light of the findings of the delegation’s report which has reported on the torture and mistreatment of detainees and prisoners, this in order to prevent torture and mistreatment and the conviction of any innocent detainee in the future.
Issued by Hamed Karzai, 16 February 2013, article 1
Criminal Procedure Code 2014
[T]he judicial police officer, prosecutor and court themselves or through means of another person, in any case, are not allowed to force the suspect or accuse to confess using misconduct, narcotics, duress, torture, hypnosis, threat, intimidation, or promising a benefit. If the statements of the suspect or accused person are taken in violation of the provision set forth in paragraph of this article, they shall not be admissible.
5 May 201, article 22
Optional Protocol to the Convention against Torture, acceded April 2017
Decree on the Prohibition of Torture 2017, which later became the Law on the Prohibition of Torture 2018
It defined torture for the first time in Afghan law as:
[A]n act which causes pain or physical or psychological suffering against a suspect, an accused or a convict or any other person for the purpose of forcing [the individual] to confess, give information or force another person to give information or to force an individual not to do an act. (article 3)
5 March 2017
2018 Law on the Prohibition of Torture;
Revisions to the Penal Code 2018
These improved the definition of torture, punishments and other mechanisms for its prevention and provided for compensation for victims of torture.
|↑8||A 2017 report by the author detailed the lack of accountability in the US criminal courts in the light of a civil case against the two psychologists who had designed and overseen the implementation of the CIA torture programme which had won compensation for two survivors of CIA torture and the family of Gul Rahman. He was an Afghan who had died of hypothermia after being left semi-naked on a bare concrete floor in a CIA black site near Kabul in November 2002. See ‘Held Accountable for Torture: CIA psychologists compensate family of dead Afghan’.|
|↑9||The judges of the Pre-Trial Chamber declined to order an investigation into crimes against humanity and war crimes allegedly taking place in Afghanistan at all, a decision overturned on appeal. However, the current Chief Prosecutor has decided to prioritise the investigation of crimes allegedly committed by the Taleban and ISKP, and ignore, for now, those of US and former Afghan government forces. See AAN’s latest report on this, from July 2022: ‘Delaying Justice? The ICC’s war crimes investigation in limbo over who represents Afghanistan’.|