BILATERAL DETAINEE AGREEMENTS WITH THE GOA

C O N F I D E N T I A L SECTION 01 OF 03 KABUL 002386

SIPDIS

SIPDIS

DEPT FOR SA/FO GASTRIGHT, SA/CT AND SA/A
NSC FOR AHARRIMAN, KAMEND
CENTCOM FOR POLAD, CG CFA-A, CG CJTF-76

E.O. 12958: DECL: 01/10/2015
TAGS: MARR PGOV PTER PREL AF
SUBJECT: BILATERAL DETAINEE AGREEMENTS WITH THE GOA

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Classified By: DCM Richard Norland for reasons 1.4 (b) and (d)


1. (C) Summary: Four nations ) Canada, Denmark, the
Netherlands, and the U.K. ) have signed bilateral agreements
with the Government of Afghanistan concerning the transfer of
detainees. With the exception of Denmark, these nations are
already engaged in military action as part of OEF or are
looking ahead to the Phase III transition to ISAF this
summer. They are particularly concerned about insuring
access to the detainees by the ICRC and Afghan Independent
Human Rights Commission (AIHRC),exemption from the death
penalty, and adherence to international humanitarian law
provisions. They are worried that the Afghan government has
not yet developed a legal policy for determining the
disposition of detainees and were pleased to hear that the
effort has begun. The Canadian DCM outlined a plan for
renovating the Kandahar City Jail as an Afghan detention
facility, while noting a number of unresolved issues
connected with the plan (including security and human rights
concerns). Overall, our meetings were productive in
building closer cooperation between the U.S. mission and our
OEF and ISAF partners, and we hope to continue sharing
information and ideas to reach, to the extent possible, a
common approach to detainee issues over the months ahead.
End Summary.


2. (C) While NATO continues its internal discussion on a
draft exchange of letters between itself and the Government
of Afghanistan on the transfer of enemy combatants, at least
four nations ) Canada, the Netherlands, Denmark, and the
U.K. - have already signed bilateral agreements with the
Ministry of Defense. Other countries, including Norway,
Sweden, and Estonia, are also in the process of drafting or
negotiating agreements. Poloffs spoke to Canadian, Dutch,
and British counterparts to understand their objectives in
signing the agreements as well as their broader perceptions
of the issue of detainee transfer, detention, disposition,
and treatment.


3. (C) Canadian DCM Elizabeth Baldwin-Jones and British
Polmiloff Peter Hughes both cited ongoing military operations
as constituting a compelling need to sign agreements quickly.
The Canadian agreement was signed in December, in advance of
the Transfer of Authority to Regional Command South which has
now taken place; the British agreement was signed on April 23
as operations in Helmand forced immediate action. However,
both they and Dutch DCM Mariko Peters stated their
expectation that they would need more detailed or specific
provisions than the NATO agreement was likely to provide, and
in each case they said that the bilateral agreement would
trump the NATO document.

Key Provisions
--------------


4. (C) The provisions of the several agreements are generally
very similar. The agreements do not discuss disposition of
the detainees with regard to case adjudication or specific
detention arrangements. Rather, the key provisions focus on
compliance with international and Afghan national law, humane
treatment, access of ICRC and AIHRC, and exemption from the
death penalty for all persons transferred to GOA authorities.
Baldwin-Jones, Hughes, and Peters all said that their
governments had chosen the Ministry of Defense as the
appropriate counterpart out of expediency, while recognizing
its lack of authority over other government organs such as
the Ministry of Justice. Canadian officials received oral
agreement from each of the relevant government ministries
before finally signing with MoD; the British met with Afghan
National Security Council officials who conceded that getting
formal agreement from all ministries would not be feasible

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given the time constraint.


5. (C) All three nations in drafting their agreements
deliberately avoided any discussion of the disposition of
detainees, including which ministry would be responsible for
prosecution. Peters said that the Swedish government is in
the latter stages of negotiating an agreement with the GOA
that would specify that cases be handled through the criminal
justice system by the Attorney General,s office. She said
the Dutch would also prefer this approach in principle.
However the three representatives all acknowledged their
awareness that under the present system detainees handed over
to the Afghan National Army are passed over to the National
Directorate of Security for prosecution under the 1987 Law
for the Protection of Internal and External Security. (Note:
None of our interlocutors was very familiar with this law.
Embassy and CFC-A have met with NDS officials and hope to be
able to report on NDS law and procedure septel. End note.)

Dutch Concerns
--------------


6. (C) Unlike the Canadians and the British, the Dutch are
particularly concerned to continue to have access to the
detainees after the handover. They consider that they have
both a legal and a moral requirement to confirm that the
human rights of these detainees have not been violated )
over and above the guarantee of ICRC and AIRHC visitation
rights. Peters said that her government realizes that the
Afghan justice system lacks the capabilities needed to fairly
consider these cases, and said it may be open to the idea of
the GOA's using a separate tribunal with specially-trained
judges, prosecutors, and defense attorneys who can meet a
higher standard than is generally available in Afghanistan.

Legal Framework
--------------


7. (C) All three representatives were very interested to hear
of the progress the GOA has made toward developing a legal
policy for the disposition of detainees. While they
understood that the policy is important to the USG because it
will be needed to determine the cases of detainees being
returned from Guantanamo Bay and Bagram, they all said they
hoped it could be put in place as soon as possible to clarify
the situation of detainees taken off the battlefield during
operations in the south. The diplomats acknowledged that
they had not thought deeply about the legal piece; Hughes
said that the U.K. was intending to send out a legal expert
to supplement the British Embassy political section in large
part to cover this issue. For the Dutch in particular, close
cooperation with the U.S. Embassy and CFC-A would be helpful
for them as they work their way through these issues,
especially as they prepare to take over command in Uruzgan.

Kandahar City Jail
--------------


8. (C) Finally, Baldwin-Jones briefed on the status of plans
to renovate part of the Kandahar City Jail to house detainees
handed over to the GOA. She said Ottawa is still reviewing
options ) a project proposal is in the works, a cost
estimate has not yet been prepared, and no funding source has
yet been identified. Conceptually, however, the plan
envisages the detention of enemy combatants in the City Jail,
guarded by regular Ministry of Justice prison guards,
probably with ANA on the outer perimeter. No foreign guard
force or mentor arrangement is being considered, although
there may be some provision for limited on-the-job training
of the local guards. Poloff pointed out the dual risk of
insufficient security and potential human rights violations

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by guards who are untrained and badly supervised;
Baldwin-Jones ) and Peters on behalf of the Dutch, who would
use the facility ) agreed that these were serious drawbacks
but that they had been unable to come up with another
solution to the urgent need of a detention facility that
would be available almost immediately. Poloff asked
Baldwin-Jones if Canada would be willing to consider using
Pol-e Charkhi after it had been renovated and handed over to
the Afghans, and she said that would be a definite
possibility but it did not solve their immediate problem.
The Dutch, while not very focused on the question, appear to
be planning on using Kandahar Jail for an indefinitely long
period.

Comment
--------------


9. (C) The British, Canadians, and Dutch are at different
levels of sophistication regarding their understanding of the
problems still remaining in devising a coherent GOA detention
policy. They are agreed, however, that to the extent
possible OEF and ISAF nations should work together where they
can and that national policies should track as closely as
possible. While U.S. detention policy, at least before the
completion of Pol-e Charkhi, will undoubtedly remain separate
on some key issues ) such as the use of Kandahar City Jail
as a detention facility ) there are areas in which we can
profitably coordinate. In particular, the diplomatic
representatives of these nations are not in a position to
assist the GOA in the formulation of a legal policy, and
indeed to varying degrees look to the U.S. for guidance in
understanding the range of options available to the GOA.
Having made this contact, we look forward to working
cooperatively with these and other NATO/ISAF nations on
detainee policy issues over the coming months.
NEUMANN