Press conference with the Head of UNAMA's Human Rights Unit, Norah Niland
KABUL - Press conference by Norah Niland, Head, Human Rights Unit, UNAMA and Dr. Nilab Mobarez, Press Officer, UNAMA.
UNAMA HUMAN RIGHTS UNIT (Norah Niland): One of the first things I wish to say about this report is that it is the result of very extensive monitoring here in Afghanistan, over a three year period. This helped us and the people we work with, including partners and colleagues in the Government and the international community, develop a good understanding of the different reasons why Afghans end up being unlawfully detained. It also helped is to identify some remedies, and to review those with colleagues and partners in the Government to identify how to move forward on these potential solutions.
Speaking on behalf of UNAMA and the UN High Commissioner for Human Rights, I am confident that this initiative, which I underline we did not do on our own, will help Afghans and their Government as well as international partners to find solutions, so Afghans are not detained through the criminal justice system in this manner in the future and have their rights respected.
Detention that is arbitrary – or in other words – detention that is unlawful, is widely recognised, in and outside the Government, as an issue that needs urgent attention here in Afghanistan. It touches the lives of Afghans in villages and valleys, towns and cities throughout the country.
I’m sure I do not have to underline that detention that is unlawful is also unacceptable. What is important this morning is to understand some of the reasons why it occurs. I’m going to list five reasons why it is important to address this issue.
It violates the Constitution of Afghanistan, and of course international human rights standards that Afghanistan has agreed to observe. Detention that is unlawful violates the right of Afghans to liberty and to due process of law. Of course it can also pose avoidable hardship on families including from the point of view of poverty. So this type of detention causes over-crowding in the prisons, which is a problem in itself, and of course it tends to erode public confidence in the judiciary and Government institutions and this of course undermines efforts to improve the rule of law in this country.
This report focuses on Afghans who have been detained by Afghan authorities for ordinary crimes under the Penal Code and who have had their rights violated. It does not cover issues in relation to detention in the context of the armed conflict.
The report is based on extensive monitoring including 2,000 cases monitored by UNAMA and the Afghan Independent Human Rights Commission between the end of November 2006 and the middle of last year. The report also draws on and benefits from consultations with the Government, judiciary, legal aid and civil society organizations at the district, provincial, and national levels.
While this is a UN report, I just want to underline that it greatly benefited from the invaluable support provided by the Ministry of Justice, the Ministry of Interior, the Attorney General’s Office and the Supreme Court. This collaboration included very open and very beneficial access at the ground level. We had good collaboration with colleagues on the ground including prosecutors and police officials and that of course is much appreciated and greatly benefited our own understanding and analysis
I will summarize the problems in five short headings.
Afghan law does not include all the protections that are needed to avoid detentions that are arbitrary. Afghans do not have the right to challenge the lawfulness of their detention, before the first court hearing, and the court does not often assess the lawfulness of the detention promptly.
We found that timelines in the law are not very realistic and that of course hinders due process. In other words the court system and the police are overloaded; so this was one of the other issues we found to be a problem.
We also found there are different views and understandings of the utility and function of certain rights – for example defence counsel.
There are too few legal practitioners able to represent and defend the rights of detainees.
Accountability and oversight mechanisms are not strong enough to ward off corruption and abuse of the system.
So these were some of the problems we encountered which helped us identify some of the solutions.
Focusing on the rights of detainees is often misunderstood. Thus, it is worth noting that everyone who is detained, either lawfully or unlawfully, has rights that should be respected.
The report catalogues the problem and proposes concrete and practical solutions. It is divided into two volumes. Volume I provides analysis and recommendations that are addressed primarily to national-level policy-makers and legislators. Volume II is designed for practitioners and trainers, exploring the problem and solution at a more practical level.
In terms of moving forward and addressing the problem of unlawful detention I am just going to mention four steps which can be taken.
The report proposes legislative changes, such as the importance of the right to challenge the lawfulness of detention in a court; the report proposes more support for paralegals so that detained individuals have appropriate legal advice and representation; it also proposes increased attention to the need for training across the judiciary; and identifies operational solutions at the district level, such as an agreement between the police, prosecutor and courts so that case files are transferred on time.
To conclude the United Nations looks forward to working with the Afghan Government, judiciary and police, as well as national and international partners, to develop practical activities aimed at ending arbitrary detention in Afghanistan. Successfully tackling this issue will greatly contribute to the development of Afghanistan as a lawful, peaceful, democratic and as well as a prosperous country.
QUESTIONS AND ANSWERS
TOLO TV [translated from Dari]: It is said that most of the arbitrary detentions are done by the international military forces in Afghanistan and this has caused a row between the Afghan Government and the international community. Why do you not have anything on this issue in your report?
HRU: The report is dealing with a three year period. It started at the end of 2006 and it is looking at arbitrary detention in the context of ordinary crimes under the criminal code. So we were not focused on detention related to the conflict. Of course the United Nations is very concerned about any detention that is unlawful. We do not have access to the Bagram detention facility although we have requested that. The United Nations, both UNAMA and the High Commissioner, have spoken out to express concern over detentions in Bagram and we have posed questions about the whole legal framework under which people are detained at Bagram. It is hoped and anticipated and we are advocating, that given the announcement of the Obama administration concerning the closure of Guantanamo that similar measures will be taken to address the problems inherent at Bagram.
BBC PERSIAN/PASHTO RADIO [translated from Dari]: I want to know about the number of people in arbitrary detention; whether the number is on the rise or it has decreased compared to the past. Also the report talks about the commitment of the Government to address this problem. What is the reason that the Afghan Government has not been able to address it or has it fallen short in this regard?
HRU: I am afraid we do not have exact numbers. When we did our monitoring clearly we did not visit every detention centre in Afghanistan, so I don't have figures. So we did not visit every detention centre. We do not have a complete picture on that. The Government has indicated its commitment and actually it is one of the benchmarks in the Afghanistan Compact and the Afghanistan National Development Strategy (ANDS). We've worked very closely with the Government and we went through a lot of collaboration in coming up with how to address the problems. We are confident that the Government is committed and we ourselves are committed to work with the Government to combat this type of unlawful detention.
RAH-E-NEJAT [translated from Dari]: You spoke about the problems in the laws of Afghanistan, but the people working in the judiciary say that the laws do not have any problem; the problems are in the enforcement of the laws. Can you tell us some of the problems in the laws of Afghanistan?
HRU: The legislature's problem is more about the overall framework. For example the amount of time held in detention and then that bounces up against the way in which the time involved in allowing people who were detained to come before a proper court hearing, so they have the right and they have the ability to query why they are being held. It’s a problem but it is not necessarily the most significant problem. The important point I want to add is that people who are detained, whether it was done in a lawful way or unlawful way, have rights. For example they need to know why they are being detained, they need to be able to contact their families so families know where they are and that they have a right to legal counsel.
NOOR TV [translated from Dari]: I apologise for asking the same question again. But I just want to touch on the other side of the question that launching a report on arbitrary detention is a positive step but what is more important here is the concern of the Afghan people, who are very concerned because of these arbitrary detentions, especially the detentions which are taking place by the American forces. I would like to know why the UN kept quiet in this regard and doesn’t comment on it?
HRU: I am totally aware that detention throughout all of Afghanistan is an issue. But I totally understand why detention by foreign forces is of particular concern. What I tried to explain a few moments ago is that this report is about detention in the context of the criminal code. It in no way detracts or diminishes our concern about detentions that occur elsewhere in Afghanistan. So what I tried to explain is that the United Nations, unlike ICRC which is mandated to have access, we do not have access. We have requested access to Bagram as well as in the field – the forward operating bases. We don’t have that access and it is very difficult to have a very strong position to address it. However having said that we have met for example with some former detainees of Bagram, so that gives us some insights. So we are concerned about it. These concerns have been conveyed to the Afghan authorities as well as to the US military authorities in charge of Bagram.
AFP: I understood that you do not have an overall figure for detainees in Afghanistan or a percentage of how many people have been arbitrarily detained. You have mentioned monitoring 2000 cases. How many of them or what percentage of them were arbitrarily detained?
HRU: We do not have the exact figures. We did not try and would not have that capacity to try to visit every detention centre. So this was a survey that we did and went back repeatedly to some cases. So what we know is that the problem is widespread and it is serious enough to be of great concern to us which is why we invested three years of monitoring efforts into it. That monitoring exercise helped us to understand what the different drivers of the problem are. Then we of course have been taking time working with all the concerned authorities, including in particular the Afghan Government, to see what the practical ways of addressing it are.
We tended to zero in on those cases which from the outset showed up to be of concern. So our focus was arbitrary detention and not every case showed up as having been done illegally and unlawfully.
NATIONAL PUBLIC RADIO: I want to follow up on the question from the AFP reporter. Is it fair to say that those 2,000 cases who were monitoring that most of them were arbitrary detention – correct? So I know your mandate had zero access. If you look at the cases of detention by the US, the coalition or Afghan forces, maybe you can speak of the impact, because there is certainly increased attention as the forces increase and the insurgency steps up. What impact has this had on arbitrary detentions in criminal cases?
HRU: Clearly detentions that are unlawful set very unhelpful precedents, which is why we are concerned about it. The fact that we don’t have access to these detention centres inhibits us significantly in being able to address the problem. The United Nations and a whole number of actors are advocating and trying to see how this problem can be addressed. I mentioned earlier that the new US administration announced that Guantanamo will be closed and some efforts have increased to also bring attention to Bagram. So for example when the UN High Commissioner for Human Rights applauded the Obama administration for closing Guantanamo she also drew attention to detention facilities in Iraq and specifically mentioned Bagram. So it is an issue of great concern to the United Nations and others that individuals are incarcerated in a detention facility such as Bagram in a basic legal black hole and unclear legal framework, so we know they are held there. They do not know why they are being held, they do not have access to a lawful process to challenge their detention.
The point I want to underline is that everybody has rights including detainees who are detained lawfully as well as unlawfully, including individuals who are found to have committed a crime: individuals still have rights. Of course you don’t have the same rights when you are in prison as you do when you’re working on your farm. The point I want to stress is that for a society to be lawful, to operate in a lawful manner, so the state respects the rights of citizens, it is really important that these basic legal norms are respected, whatever the circumstances.
NEW YORK TIMES: Do you cover local people detained by the intelligence services, and local people detained by NATO forces? Did you find the same problems there, as presumably NATO detain them and then present them to the Afghan Government? Why were they detained and where is the problem in those cases?
HRU: In terms of the intelligence service, the NDS, we do not have reliable access. We have tried and we are still trying. We are also unclear about the legal framework for a lot of people held in NDS custody.
On the second part of your question about individuals who are detained and handed over by the troop contributing countries who constitute ISAF-NATO, there are some concerns but it is easier to track those cases. Mechanisms have been put in place, not by all, but by a number of the troop-contributing countries and they have signed Memorandums of Understandings with different sets of authorities. We, the Afghans, the Human Rights Commission and UNAMA have taken efforts to track that.
On individuals who are detained and handed over by the troop contributing countries who have been handed to the Afghan authorities, the same concerns kick in when these detainees don’t have access to due process, whether it is access to a defence lawyer or will they be able to lawfully challenge the reason for their detention etc.
DPA: In the past three years did you look at the trend of arbitrary detention if it is on the rise or is decreasing?
HRU: We think it is a widespread problem that hasn’t changed much. We haven’t seen a spike in it but neither have we seen a significant decrease in it.