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 KABUL 00002386 001.2 OF 003 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 KABUL 00002386 002.2 OF 003 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 KABUL 00002386 003.2 OF 003 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