By Naureen Shah
If you are going to sign a deal with the devil, make it a good one. Australia recently formally agreed that its forces in Afghanistan would transfer prisoners detained in the country to the National Directorate of Security, or NDS, an agency known for torture and horrific detention conditions. It got "diplomatic assurances" from the Afghan government: promises that the NDS won't torture, this time.
An Afghan prisoner with American soldiers. Australia has made a deal to return detainees to the Afghan National Directorate of Security, which has tortured prisoners. (Photo: AP)
Australia isn't alone. The UK, US and Canada have all struck dubious deals with the NDS. Not surprisingly, these promises don't keep. Last May, Canada was rattled when its own Kabul diplomat testified that all of the men it sent to the NDS before late 2007 were likely tortured.
In June, a British court put new limits on transfers after hearing evidence that one man transferred to the Afghan authorities was hung from a ceiling for three days and electrocuted. Another said the NDS beat him frequently for more than two months. Britain has admitted the allegations "may have substance".Advertisement: Story continues below
To abide by its legal and moral commitments against torture, Australia needs more than a promise that's been shown to have been repeatedly broken. Like the UK, Australia should have the NDS guarantee that all prisoners transferred by Australia be held in one, pre-determined centre. (There are only about 60 prisoners transferred by Australia, compared to allies' several hundred). Australia can target that facility for capacity building, including training NDS personnel on how to handle detainees with respect to their rights. Australia could embed its own personnel at the centre, to keep a constant watch on detainees and ensure that the NDS is living up to commitments on humane conditions and treatment.
That level of vigilance may seem onerous, but it's necessary to avoid inadvertently delivering detainees to torture. According to a new study by Columbia Law School in New York, less intrusive monitoring can't deter torture that is practised widely and with impunity. LINK? In September, a Canadian newspaper revealed that an NDS officer told Canadian military officials the NDS was able to "torture" and "beat" detainees — a free-wheeling admission that came after more than 250 visits by Canadian officials to NDS facilities.
At stake is Australia's reputation for promoting human rights in Afghanistan. Delivery to the NDS creates the appearance of collusion with abusers. To hand detainees to the NDS without asking for change is a dangerous departure from Australia and its allies' support for crucial reform of the Afghan justice and security sectors. Before he resigned, US General Stanley McChrystal said a failure to develop Afghan detention operations that "respect the Afghan people" would be a "serious risk to the mission".
Would the NDS agree to more intrusive monitoring? It's had to, in the case of Britain and Canada. Public pressure forced Canada to secure stronger guarantees of access in May 2007 and continuing allegations have led it to intermittently suspend transfers. A British court has ordered the UK to expressly condition transfers on its continuing access, including regular and private interviews with each detainee. The UK has also ended transfers to detention sites where the NDS blocked monitoring.
If the NDS won't agree, Australia could turn to its allies for help. Until now, the Dutch kept Australian transferees. But the Dutch withdrew from Afghanistan in August. Canada, the UK and US all need a longer-term solution to the detainee torture problem. Banding together, they could force the NDS's hand or even propose a renovated, dedicated facility under Afghan sovereignty but run with outside input on human rights standards. A 2006 UK-Dutch proposal for such facility was dropped for unknown reasons.
The NDS's record on torture is too alarming to do less. A promise without more is just a promise.
Naureen Shah is a lawyer at the Human Rights Institute at Columbia Law School, where she focuses on counterterrorism policy, including transfer of terrorism suspects and detention without charge.