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

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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

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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