Identifier
Created
Classification
Origin
07KABUL1578
2007-05-10 14:20:00
SECRET//NOFORN
Embassy Kabul
Cable title:  

ISAF DETAINEES: CANADIANS CONCLUDE NEW AGREEMENT

Tags:  KWAC MARR NATO PTER PHUM AF 
pdf how-to read a cable
VZCZCXYZ0000
OO RUEHWEB

DE RUEHBUL #1578/01 1301420
ZNY SSSSS ZZH
O 101420Z MAY 07
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7969
INFO RUEHZG/NATO EU COLLECTIVE PRIORITY
RUEHOT/AMEMBASSY OTTAWA PRIORITY 1378
RUEAIIA/CIA WASHINGTON DC PRIORITY
RHEFDIA/DIA WASHINGTON DC PRIORITY
RHMFISS/HQ USCENTCOM MACDILL AFB FL PRIORITY
RUEKJCS/JOINT STAFF WASHINGTON DC PRIORITY
RUEKJCS/SECDEF WASHINGTON DC PRIORITY
RUEHGV/USMISSION GENEVA PRIORITY 6706
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC PRIORITY
S E C R E T KABUL 001578 

SIPDIS

NOFORN
SIPDIS

STATE FOR SCA/A (S.INGRAM),S/WCI (S.HODGKINSON),L/PM
(E.PELOFSKY),WHA/CAN (F.HERNANDEZ),S/CT, AND EUR/RPM
NSC FOR A.HARRIMAN
CENTCOM FOR CJTF-82, POLAD, CSTC-A
DOD FOR OSD (A.RICCI)

E.O. 12958: DECL: 05/05/2017
TAGS: KWAC MARR NATO PTER PHUM AF
SUBJECT: ISAF DETAINEES: CANADIANS CONCLUDE NEW AGREEMENT
WITH GOA

Classified By: Carol A. Rodley, Counselor for Political-Military Affair
s; reasons 1.4(b) and (d).

S E C R E T KABUL 001578

SIPDIS

NOFORN
SIPDIS

STATE FOR SCA/A (S.INGRAM),S/WCI (S.HODGKINSON),L/PM
(E.PELOFSKY),WHA/CAN (F.HERNANDEZ),S/CT, AND EUR/RPM
NSC FOR A.HARRIMAN
CENTCOM FOR CJTF-82, POLAD, CSTC-A
DOD FOR OSD (A.RICCI)

E.O. 12958: DECL: 05/05/2017
TAGS: KWAC MARR NATO PTER PHUM AF
SUBJECT: ISAF DETAINEES: CANADIANS CONCLUDE NEW AGREEMENT
WITH GOA

Classified By: Carol A. Rodley, Counselor for Political-Military Affair
s; reasons 1.4(b) and (d).


1. (S/NF) Summary: It is NATO policy that ISAF partner
nations should transfer detainees to GoA custody within 96
hours, or release them. While NATO's policy originally did
not identify a particular Afghan agency to receive the ISAF
detainees, an ISAF HQ order (FRAGO) issued March 30
designated the Afghan National Directorate of Security (NDS)
as the receiving agency. The FRAGO, however, recognizes that
this may not always be practicable, and commanders retain the
discretion to transfer to Afghan National Security Forces
(ANSF) instead of the NDS, if the situation dictates.
According to ISAF HQ, between October 2006 and May 3, ISAF
partner nations transferred 230 detainees to GoA custody.
While NATO policy and the ISAF FRAGO provide the general
framework for ISAF partner nations in the handling of
detainees, a number of ISAF partner nations -- most notably
Canada, the UK, the Netherlands, and Australia -- have
concluded agreements with the GoA or other partner nations
that go beyond the basic ISAF framework. The original
detainee transfer agreement that the Canadians signed with
the GoA in December 2005 had no provision to ensure that
Canada would have continued access to detainees once they had
been transferred to GoA custody. Recent reports in the
Canadian press of alleged torture of detainees after their
transfer from Canadian Forces to GoA custody have put
Canadian detainee practices in Afghanistan under intense
scrutiny. This scrutiny has been further amplified by an
attempt by Amnesty International Canada to seek a court
injunction against any further transfers of detainees from
Canadian Forces to GoA custody. On May 3, the Canadian
government concluded a new, "supplementary" detainee transfer
agreement with the GoA that ensures continued access by

Canadian officials to detainees transferred by Canadian
Forces to the GoA. End Summary.

--------------
ISAF DETAINEE POLICY
--------------


2. (S/REL ISAF) It is NATO policy that ISAF partner nations
should transfer detainees to GoA custody within 96 hours, or
release them. (Note: This policy applies to U.S. Forces,
except for a minority operating under a separate OEF mandate.
End Note) While NATO's policy originally did not identify a
particular Afghan agency to receive the ISAF detainees, an
ISAF HQ order (FRAGO) issued March 30 designated the Afghan
National Directorate of Security (NDS) as the receiving
agency. The FRAGO, however, recognizes that this may not
always be practicable, and commanders retain the discretion
to transfer to Afghan National Security Forces (ANSF) instead
of the NDS, if the situation dictates. The NDS is the Afghan
security service with internal and external responsibilities.
In addition to its intelligence functions, the NDS has its
own prosecutors empowered to investigate and prosecute
individuals under Afghanistan's "Law on Crimes against
Internal and External Security." The NDS runs detention
centers around the country.


3. (S/REL ISAF) The ISAF FRAGO directs partner nations ("if
time, safety considerations, and circumstances permit") to
transfer detainees to NDS custody at the closest of three NDS
regional headquarters in Kabul, Kandahar, or Jalalabad. The
ISAF FRAGO provides detailed guidance regarding the provision
of information and physical evidence associated with each
detainee to the NDS, to facilitate NDS processing and
prosecution of the transferred individuals. The ISAF FRAGO
also designates the ISAF Regional Command (RC) Provost
Marshals as the local points-of-contact for detention matters
and directs the RCs to establish relationships with local NDS
headquarters to facilitate close coordination. ISAF HQ
designated the NDS as the GoA receiving agency in large part
because the International Committee of the Red Cross (ICRC)
previously had indicated to ISAF HQ that the NDS maintained
the most orderly Afghan government custodial facilities and

offered relatively good access to the ICRC. ISAF partner
nations are supposed to notify the ICRC when they take
detainees, including detainees who subsequently are
transferred to the GoA.

--------------
ISAF DETAINEE PRACTICES
--------------


4. (S/NOFORN) ISAF HQ has maintained statistics on detainees
taken by ISAF partner nations since October 2006, when ISAF
assumed regional responsibility for all of Afghanistan
following the Stage IV Transfer of Authority (TOA) over
RC-East from CFC-A to ISAF. According to ISAF HQ, between
October 2006 and May 3, ISAF partner nations transferred 230
detainees to GoA custody. The following list provides the
numbers of detainees transferred to the GoA by various ISAF
partners:

US: 87
Canada: 68
UK: 41
Netherlands: 21
Germany: 7
Belgium: 3
Norway: 2
Italy: 1


5. (S/NOFORN) While NATO policy and the ISAF FRAGO provide
the general framework for ISAF partner nations in the
handling of detainees, a number of ISAF partner nations --
most notably Canada, the UK, the Netherlands, and Australia
-- have concluded agreements with the GoA or other partner
nations that go beyond the basic ISAF framework. In fact, of
the four ISAF nations with the highest number of ISAF
detainees to date, the USG is the only nation that does not
have a separate agreement with the GoA that further
elaborates humanitarian and/or security assurances for
detainees captured and transferred to the GoA under ISAF
rules of engagement (ROE). (Comment: Although the GoA's
August 2005 Diplomatic Note on detainee transfers does not
specifically rule out application to detainees transferred
under ISAF ROE, it was developed in the context of preparing
for the prospective transfer of detainees already in U.S.
custody at the Bagram Theater Internment Facility and
Guantanamo, i.e., detainees not taken under ISAF ROE. End
Comment.)


6. (S/NOFORN) The original detainee transfer agreement that
the Canadians signed with the GoA in December 2005 had no
provision to ensure that Canada would have continued access
to detainees once they had been transferred to GoA custody.
Canadian Embassy contacts (protect) report that they have no
firm information regarding the disposition of most of the
detainees transferred by Canadian Forces to the GoA. In
contrast, the UK concluded a Memorandum of Understanding
(MOU) with the GoA in 2005 that explicitly provides for
continued access by UK military and diplomatic personnel to
the detainees the UK Forces transfer to the GoA, as well as
access for representatives of the ICRC and the Afghan
Independent Human Rights Commission (AIHRC). The agreement
obliges the GoA to maintain accurate records on the
disposition of the transferred detainees and to report to the
UK when there is a change in the detainee's disposition. It
also states that transferred detainees will not be subject to
the death penalty. The Dutch concluded a nearly identical
MOU with the GoA in 2006. The Australians have an
arrangement with the Dutch, whereby detainees taken by
Australian Forces are transferred to the Dutch, who then
treat them as their own detainees within the framework of the
ISAF FRAGO and Dutch MOU with the GoA.

--------------
PRESS REPORTS ALLEGE ABUSE IN GOA CUSTODY
--------------


7. (S/NOFORN) Recent reports in the Canadian press of alleged
torture of detainees after their transfer from Canadian
Forces to GoA custody have put Canadian detainee practices in
Afghanistan under intense scrutiny. This scrutiny has been
further amplified by an attempt by Amnesty International
Canada to seek a court injunction against any further
transfers of detainees from Canadian Forces to GoA custody.
Canadian Embassy contacts (protect) have informed us that
they believe there is reason to conclude that there is
substance to some of the allegations of torture that have
been reported in the Canadian press. They have informed us
that a Canadian team that recently visited the NDS detention
facility in Kandahar heard allegations of torture from two
detainees. Those detainees made their claims in front of the
local NDS guards, which the Canadians take as an indication
of the credibility of the allegations. (Note: One of the
detainees claimed that he had been taken to a basement in the
guest house of Kandahar Governor Khalid, and that the
Governor himself had tortured him with electric shocks.
Canadian Embassy contacts -- protect -- tell us they have
heard some other similarly ominous reports of such abuses by
Governor Khalid. End Note)

--------------
CANADIANS CONCLUDE NEW AGREEMENT
--------------


8. (S/NOFORN) According to Canadian Embassy contacts, when
confronted by the press allegations of torture of detainees
after their transfer from Canadian Forces to the GoA, the
Canadian government initially argued that the ICRC was
supposed to monitor and ensure the welfare of the detainees
in GoA custody. The ICRC subsequently announced publicly
that its long-standing policy is to inform only the detaining
authority -- i.e., the GoA -- and that it has no
responsibility or authority to inform the governments that
transferred the detainees to GoA custody. Canadian Embassy
contacts report that the Canadian government's fallback
argument was that the AIHRC had agreed to provide monitoring
and to ensure the welfare of the transferred detainees.
However, even as Canadian government officials were making
this argument, the Canadian press was publishing interviews
with AIHRC officials who claimed that they lacked the
resources to perform such a monitoring role, and that the NDS
in any case did not allow them the necessary access. Our
Canadian Embassy contacts tell us it then became clear that
they would need another agreement with the GoA, and obtaining
such an agreement became their highest priority.


9. (S/NOFORN) On May 3, the Canadian government concluded a
new, "supplementary" detainee transfer agreement with the
GoA. The key elements of the agreement are:

-- Canadian government officials and AIHRC representatives
"will have full and unrestricted access to detention
facilities where detainees transferred by Canadian Forces are
held"; during such access Canadian government officials and
AIHRC representatives "will be permitted to interview
detainees in private, without Afghan authorities present;"

-- the GoA "will hold detainees transferred by Canadian
Forces in a limited number of facilities;"

-- the GoA "will investigate allegations of abuse and
mistreatment and prosecute in accordance with national law
and internationally applicable legal standards...and will
inform the Government of Canada, the AIHRC and the ICRC of
the steps it is taking to investigate such allegations and
any corrective actions taken;"

-- the GoA and Canadian government "will cooperate closely to
maximize capacity building activities directed towards
improving the Afghanistan corrections and justice systems."


10. (S/NOFORN) Canadian Embassy contacts inform us that
Defense Minister Wardak signed the agreement on behalf of the
E

GoA. Asked why Wardak signed, rather than the NDS, which
will have custody of the detainees according to the ISAF
FRAGO, Canadian Embassy contacts note that the original 2005
agreement was with the MOD. They also tell us that it was
easiest to bring quick pressure to bear on the MOD (via the
Palace). They commented that Wardak was very concerned when
he learned that Canadian Forces assessed they would need to
halt their combat operations in Afghanistan if the Canadian
Federal Court were to uphold the injunction against detainee
transfers to the GoA that Amnesty International Canada had
filed. Wardak reportedly signed the new agreement with
Canada, but, according to Canadian Embassy contacts, appeared
quite unhappy in doing so. Following the Canadian
government's announcement of the new agreement on May 3, the
Canadian Federal Court suspended the hearing regarding the
Amnesty International injunction request.


11. (S/NOFORN) Canadian Embassy contacts tell us that they
still have a number of implementation details to work out
under the agreement. Current thinking is that a Canadian
diplomat will be assigned to Kandahar and have
responsibility, along with assistance from Canadian Forces
Provost Marshal personnel, for monitoring the welfare of
detainees transferred by Canadian Forces to NDS facilities
there. (Note: This arrangement will be similar to current
Dutch practice, which, we understand, is to transfer
detainees to the NDS detention facility in Kabul where Dutch
officials are better able to monitor their well-being. End
Note)

--------------
COMMENT
--------------


12. (S/NOFORN) This story is still developing as the UK,
Netherlands, and others quietly review their own detainee
transfer arrangements with the GoA. While the presumption is
that the NDS will prosecute the transferees from ISAF
detaining forces, UK Embassy contacts report, for example,
that more than 90% of the detainees they have transferred to
the NDS subsequently have been released. We have heard
informally that some ISAF partners may be revisiting the
question of whether ISAF should seek to establish its own
detention facility.


13. (S/NOFORN) U.S. Forces operating under the ISAF mandate
normally conduct missions together with ANA Forces, and it is
frequently those ANA forces that take custody of detainees.
In those cases where U.S. Forces operating under ISAF alone
detain individuals, they turn these over to local NDS
officials or to ANA Forces. When the ANA receives detainees
from ISAF partners operating under ISAF policy, or the ANA
captures detainees itself, it turns over such detainees to
the NDS as soon as possible.
WOOD