DRAFT AFGHAN LEGAL FRAMEWORK FOR DETAINEE

S E C R E T SECTION 01 OF 03 KABUL 002802 SIPDIS SIPDIS STATE FOR S/WCI, SCA/FO, SCA/A, S/CRS, EUR/RPM NSC FOR AHARRIMAN CENTCOM FOR CG CFC-A, CG CJTF-76 POLAD E.O. 12958: DECL: 06/18/2016 TAGS: PGOV PREL PHUM KWCR AF SUBJECT: DRAFT AFGHAN LEGAL FRAMEWORK FOR DETAINEE OPERATIONS Classified By: ACTING DEPUTY CHIEF OF MISSION ANGUS SIMMONS FOR REASONS 1.4 (B) AND (D) ¶1. (S) Summary: The Afghan National Security Council (ONSC),in consultation with relevant Ministries, the U.S. mission, and its own contracted legal expert, has developed a legal framework for Afghan detainee operations. The framework, as briefed to the polmiloff and representatives of CFC-A, and key ISAF nations that are or will be engaged in combat operations, is comprehensive enough to address both the issue of how detainees transferred to Afghan custody from Guantanamo and Bagram will be handled and also the procedure for dealing with individuals taken off the battlefield in areas of ISAF operation. The ONSC will make every effort to get this proposal finalized and implemented before the onset of Phase III operations. End summary. ¶2. (S) On June 15, the Afghan National Security Council called a meeting to include the U.S., Australian, British, Dutch and Canadian Embassies, CFC-A, Ministry of Interior and National Directorate of Security to orally brief the GOA draft legal framework for detainee operations. This framework has been developed by the ONSC over the last several months with contract support from a British legal expert and advice from the U.S. mission (CFC-A and Embassy). It comprises a comprehensive legal justification and procedure for how the Afghans will carry out detainee operations. As such, it addresses how detainees transferred from Guantanamo and Bagram to GOA custody will be handled, but also what will happen to persons taken off the battlefield in ISAF areas. The ONSC intention is for this draft to be completed and briefed to Principals (Ministers) by the end of this month, and presented to President Karzai immediately afterwards. (Note: subsequent discussions indicate some concern that the draft will get bogged down in the Afghan interagency process, so the final timeline and approval process may differ somewhat. However there is a real determination on the part of the GOA to get this framework approved before the beginning of ISAF Stage III operations on/around August 1, 2006. End note.) ¶3. (S) The framework begins with the recognition that Afghanistan is in an "internal armed conflict." This allows for the application of relevant international law (Article 4 and 9 of the International Covenant on Civil and Political Rights),as well as Sharia law - the latter is important to bolster public and Parliamentary support. Under both bodies of law, persons who constitute a threat can be held without trial until the end of the conflict. The framework delineates several possible dispositions for detained persons: 1) detained without trial under the provisions described above; 2) tried under Afghan security law; 3) tried under Afghan criminal law; 4) reconciled and released under PTS; or 5) released outright. ¶4. (S) The decision as to disposition will be taken after a period of time for evidence collection and review. Those detainees who meet the strict definition of armed opposition group personnel constituting security threats will be held in non- judicial, administrative detention and undergo a KABUL 00002802 002 OF 003 series of administrative reviews with tailored due process rights, under the custody and control of the MOD. Those who, through this detailed process, are identified as candidates for prosecution will be referred to the Attorney General,s office for consideration. If the Attorney General,s office concurs, the individuals will be prosecuted in the venue dictated by the relevant Afghan law. In the event that a detainee is tried under Afghan security law (Afghan Internal and External Security Law, 1987),for which the investigation is handled by the NDS and the prosecution is handled by the Attorney General,s National Security Crimes Division, the GOA recognizes the need for full transparency so as to avoid objections on human rights grounds. The court to which the case is assigned is one which has exclusive jurisdiction over security offenses; however, it is answerable to the Afghan Supreme Court. Access to internees throughout the process will be granted to ICRC and AIHRC as well as the original capturing power, ISAF, and OEF command ¶5. (S) Consideration has been given as to where detainees will be held. It was proposed that after the completion of Pol-e Charkhi Block 4, (expected on or about February 2007) all detainees transferred from ISAF countries to the GOA should be held there. There seemed to be general agreement by the ISAF representatives to this approach. In the interim, several options were suggested to the ISAF countries for consideration. The apparent consensus of the group was that it would be easiest for the detainees to be held within an MOD facility, such as a cordoned-off portion of an ANA base or a section of an MOJ jail ceded to MOD, most probably in Kabul. (Note: This would be in place of the proposed Kandahar City Jail, which has proved a difficult option. It would be easier for the international community to track the status of the detained persons if they are held in Kabul, vice Kandahar.) There appeared to be agreement among the Europeans/Australians that the detainees should be handed over to the MOD and remain under the authority of the MOD because of their initial status as administrative security internees and not suspected criminals. They would remain under the custody of the MOD until such time as they are transferred to the PTS commission for reconciliation or to an MOJ, NDS, or MOI pretrial detention facility, pending trial. Upon conviction by a court they would be transferred to a Ministry of Justice prison to serve their sentence, if any. Comment -------------- ¶6. (S) The full draft framework is much more comprehensive than the above gist and all details have yet to be filled in by the GOA. Anyone with questions is welcome to contact post for further information regarding specific aspects too complicated to describe here. However, it is important to recognize that this is, in the final analysis, an Afghan process. The handling and prosecution of those cases which are violations of Afghan law must be handled according to Afghan law. The proposal as described to us has the major benefit of not requiring new Afghan legislation. The drafters intend that once it has been presented KABUL 00002802 003 OF 003 to President Karzai, he will brief key Parliamentarians to get their support for the process, but that their official consent is not required since it is a presidential decree based on existing international and Sharia law. The Afghans have been feeling intense pressure from the international community about this seeming to be a U.S. dictated process, and internal pressures have been building in the Parliament as well. While we in Kabul and Washington have given them the tools and mentoring they need to reach a sustainable pragmatic solution, the final result is very much their own. Fortunately, it is something we can accept and should welcome. ¶7. (S) With regard to the provisions specific to ISAF nations, obviously all these will have to be referred to capitals. That may generate objections not raised in this meeting. However for now, at least, the European and Australian participants were very impressed by the presentation and said that it answered most, or perhaps all, of their pressing questions regarding disposition of detainees. Even the Dutch Ambassador, who was initially the most skeptical, was by the end of the presentation very much at ease. We will continue to work with the GOA as well as ISAF command and member countries to make sure this draft is accepted by the International Community and signed by President Karzai in time for the Phase III handoff scheduled for August 1. NEUMANN