Committee against Torture
26 April 2017
This afternoon, the Committee against Torture completed the review of the second periodic report of Afghanistan on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Attorney General of Afghanistan Farid Hamidi said that the country and its people carried the legacy of almost four decades of conflicts and brutal regimes, which often resulted in the adoption of institutional cultures that lacked an appropriate respect for human rights. For 15 years, Afghanistan was struggling to change this legacy, re-orient institutions and ensure that it fulfilled its commitments under the constitution and international human rights laws. Torture was prohibited in the Constitution; the High Council on Governance, Justice and Anti-Corruption and the Anti-Corruption Justice Center had been established, and the national plan for the elimination of torture had been adopted in 2015 to ensure more effective implementation of the Convention. In April 2017, Afghanistan had lifted its reservation to the Convention and decided to ratify the Optional Protocol, following which the President ordered the setting up of a national preventive mechanism. The Human Rights Office of the National Security Council provided national-level oversight over human rights committees within the Ministry of Defence, the Ministry of the Interior, and the National Directorate of Security, and was responsible for the organization and execution of national inspections at every step of the detainee pathway.
In the dialogue that followed, Committee Experts recognized the challenges in terms of the legacy of decades of conflict and the obstacles it encountered in exercising the effective control of the territory and stressed that those could not justify letting torture continue. The delegation was asked whether the new legislation would completely comply with the provisions of the Convention, including in the definition of torture. Numerous reports from credible sources claimed that torture was widespread and systematic; the Afghan National Police and the National Directorate of Security seemed to be responsible for most of the torture committed mostly against alleged insurgency group members; torture was also perpetrated by non-State actors such as Taliban, Hezeb-e-Islami, and the Haqani Network. The delegation was asked to inform about strategy, mechanism, and process in place to deal with the apparent widespread occurrence of torture and wondered whether it was realistic to expect that the government could hold non-State actors responsible, particularly in light of support they enjoyed from some elements of the government based on shared ethnic or socio-cultural identity. Torture was not only widespread and but was also seen as legitimate and accepted as justified by the members of the society – what was being done to raise awareness of citizens about illegality of torture?
In his concluding remarks, Mr. Hamidi stressed the will of Afghanistan to fulfil its international commitments and provide a safe environment for the people of Afghanistan to live without free in a society of rights, justice and rule of law.
The delegation of Afghanistan included representatives of the Attorney General, the Ministry of Interior Affairs, the Ministry of Justice, the Ministry of Foreign Affairs, the National Security Council of Afghanistan, the National Directory of Security for Planning and Policy, and the Permanent Mission of Afghanistan to the United Nations Office at Geneva.
The concluding observations and recommendations on the report of Afghanistan will be published at the session’s webpage after Friday, 12 May 2017.
Live webcast of the Committee’s public meetings is available at http://webtv.un.org/
The Committee will next meet in public at 3 p.m. on 27 April, to conclude the review of the combined fifth and sixth periodic report of Argentina (CAT/C/ARG/5-6).
The second periodic report of Afghanistan can be read here: CAT/C/AFG/2.
Presentation of the Report
FARID HAMIDI, Attorney General of Afghanistan, said that Afghanistan had signed the Convention against Torture in 1987 but because of war and conflict it had failed to fully comply and report on its implementation until recently. Afghanistan was committed to the protection of the human rights of all and the prevention of torture - this was not only a constitutional obligation but was consistent with Islamic teaching and values. The Government and its people carried the legacy of almost four decades of conflicts and brutal regimes which had often resulted in the adoption of institutional cultures that lacked an appropriate respect for human rights. For 15 years, Afghanistan had been struggling to change this legacy, re-orient institutions and ensure that it fulfilled its commitments under the constitution and international human rights laws.
The inhumane and cruel act of torture was prohibited in the constitution and the new democratically elected government was labouring to bring about a new social contract with citizens, the key element of which was the adherence to constitutional and human rights obligations, even under the most difficult circumstances. This entailed providing even the most savage criminals and terrorists with the human treatment required by the law and thus demonstrating that the Government was different from the terrorists it was fighting. Afghanistan had embarked upon an aggressive social reform agenda, which aimed at tackling trafficking in persons to create effective and corruption-free institutions. It had implemented the United Nations Security Council resolution 1325 on women, peace and security; enacted a law against sexual harassment to improve women’s access to justice, education and healthcare, and to provide support to victims of sexual and domestic violence; and had set up the High Council on Governance, Justice and Anti-Corruption and the Anti-Corruption Justice Centre. It was working on modernizing the penal code, developing child protection legislation, and implementing the law on the elimination of violence against women.
The 2015 national plan for the elimination of torture had been adopted to ensure a more effective implementation of the Convention. In April 2017, Afghanistan had decided to lift its reservation to the Convention and to proceed with the signing of the Optional Protocol. The President had ordered the establishment of a national preventive mechanism and a Human Rights Office had been set up within the National Security Council, to provide national-level oversight over human rights committees within the Ministry of Defense, Ministry of Interior, and National Directorate of Security, and to be responsible for the organization and execution of national inspections at every step of the detainee pathway. The Afghanistan Independent Human Rights Commission and the United Nations Assistance Mission to Afghanistan had a full role to monitor the detention of people deprived of liberty. The bill amending the penal code to properly define and prohibit torture at each stage of the criminal justice system would soon be presented to parliament, and the amendment of the criminal procedure code was ongoing to limit the extended duration of detention during investigation. Legal and procedural pathways were being established for victims of torture to seek recourse and obtain compensation.
Questions by the Country Co-Rapporteurs
JENS MODVIG, Committee Chairperson and Rapporteur for Afghanistan, recognized the challenges in Afghanistan in terms of the legacy of decades of conflict and the obstacles it encountered in exercising the effective control of the territory. Non-State actors maintained a certain degree of control and also infiltrated government institutions. Those were no excuses to letting torture continue, and Afghanistan, as a State party to the Convention, had a legal responsibility to do its utmost to fight torture independently of obstacles it encountered.
The Presidential fact-finding delegation had documented 136 cases of torture and ill treatment among 248 detainees interviewed. Based on its findings, the Presidential Decree 129 had been issued in 2013 to address torture, which contained 12 orders to government agencies and ministries to take specific measures to address torture, ill-treatment and arbitrary detention, and availability of medical treatment, legal defence and legal aid services for detainees.
The current definition of torture included loopholes - would Afghanistan consider including in its penal code the definition as stated in article 1 of the Convention?
Mr. Modvig commended the adoption of the draft law on elimination of torture on 1 March 2017 and asked whether it would completely comply with the provisions of the Convention, including the definition of torture. When was the bill expected to be adopted? How would it ensure a reliable access to reporting mechanisms by victims without fear of reprisal or intimidation? Would the law prohibit virginity testing?
How many cases of torture had been tried in the courts and what were their outcomes?
Recent research had indicated that the practical enjoyment of fundamental safeguards was the most important measure to prevent torture. Those included prompt access to defence counsel, access to a medical examination by an independent doctor, informing the family about the arrest, being informed of rights, and being promptly presented to a judge. What had Afghanistan done, and what would it do, to ensure that all detainees enjoyed those rights in practice?
With regard to the time limit for pre-trial detention, Mr. Modvig noted that the 2015 amendments to the criminal procedure code had significantly extended the time limit during which those suspected of terrorism crimes or crimes against ‘internal’ or ‘external’ security could be held during the detection and investigation phase, and also extended the time that certain categories of detainees, such as terrorist suspects, could be held by investigating authorities without being brought before a judge.
Was the new criminal-case management system being implemented, and if so, could it provide information and statistics on the duration of pre-trial detention? Could the delegation provide statistics about the actual duration of pre-trial detention for security-related and non-security related charges in the detection and investigation phase?
The delegation was also asked to inform about the system of legal aid and access of detainees to a lawyer, whether legal aid provided satisfied the needs, and about the plans to increase the access of suspects to the required legal aid, including by increasing the number of defence lawyers.
On documenting cases of torture, how could detainees who alleged torture get an independent medical examination, and what steps was the Government taking to facilitate access to such examinations? How many cases of alleged torture had been dismissed by the Attorney General or by courts because of insufficient evidence?
There were reports of widespread arbitrary detention and illegal detention; what steps were being taken to investigate the allegations of incommunicado detention, disappearances and extra-judicial killings made against the Afghan National Police in Kandahar? What was being done to ensure that incommunicado detention was regulated by law?
The Committee had received information about widespread and systematic torture in Afghanistan from the United Nations Assistance Mission in Afghanistan, Human Rights Watch, Open Society Foundation, Amnesty International, and the Afghanistan Independent Human Rights Commission. The Afghan National Police and the National Directorate of Security seemed to be responsible for most of the torture committed and victims were mostly alleged insurgency group members.
The delegation was asked to comment on those reports and to inform how it dealt with the apparent widespread occurrence of torture. Why were numerous allegations of torture and ill-treatment identified by internal oversight mechanisms, particularly within the National Directorate of Security, and were not regularly referred to the prosecutor’s office.
Torture was also perpetrated by non-State actors such as Taliban, Hezeb-e-Islami, and the Haqani Network; perpetrators were rarely held accountable because the Government lacked a unified and comprehensive strategy.
What was the Government realistically able to do to hold those non-State actors accountable, considering the support they had by several top government officials on the basis of shared ethnic or socio-cultural identity?
On corruption, the delegation was asked about the base salary of police officers and how they were prevented from gaining additional income through corruption, as well as holding the police accountable for excessive use of force.
With regard to the High Office for Anti-Corruption, the Country Rapporteur inquired about the appointment of members, financial and institutional independence, and the mechanism in place to initiate the proceedings and to follow up on recommendations.
When would Afghanistan establish marriage registration centres and provide legal marriage certificates, and what would be the expected benefit of this measure? How frequent was the phenomenon of Baad or giving away girls as a form of dispute resolution, and what was being done to eradicate the practice?
The Country Rapporteur also raised the issue of the independence of the judiciary and inquired about the security of tenure, the mechanism for the disqualification of judges, and the representation of women and whether there were any differences in the jurisdiction between female and male judges.
What steps were being taken to ensure that independent judiciary and accountability existed in practice throughout the country? How did the Government intend to deal with the Taliban infiltration in rural area courts, and the fact that in some territories the executive power and the judiciary were almost exclusively in the hands of non-State actors?
ABDELWAHAB HANI, Committee Expert and Co-Rapporteur for Afghanistan, welcomed the establishment of a mechanism for the follow-up of recommendations issued to Afghanistan by the United Nations human rights system, which also included recommendations for the elimination of torture, and asked about its composition – would it include army and security officials, government agencies and civil society?
What was the process and timeframe for the ratification of the Optional Protocol?
How many judicial officials and officials from the field of deprivation of liberty had been trained in the prohibition of torture and which steps were being taken to ensure that training was systematically provided to army, police, judiciary and staff in places of detention in provinces, particularly in Kandahar where 90 per cent of detainees were reported to have suffered torture?
What was the status of the implementation of the Presidential Decree on addressing abusive interrogation practices and the introduction of closed-circuit television cameras in prisons? What had been the impact on the reduction of torture in places of detention?
What steps were being taken to adopt and implement non-coercive investigation and evidence gathering methods, to reduce brutality in investigation and prevent torture?
Torture was widespread and but it was also seen as legitimate and accepted as justified by members of the society – what was being done to raise the awareness of citizens about the illegality of torture?
The Afghan Human Rights Commission, the national human rights institution, had the mandate for the monitoring of prisons and other places of detention – what measures were being taken by the Government to ensure full implementation of the mandate and that the Commission had full and unfettered access to all places of deprivation of liberty throughout the territory?
Reports by the United Nations Assistance Mission to Afghanistan and civil society pointed to inefficient investigations of allegations of torture; the setting up of the internal oversight mechanism in the National Security Directorate had not brought improvements. How many judicial and administrative investigations had been initiated in allegations of torture and ill-treatment, what steps were being taken to improve internal torture prevention mechanisms and in particular increase the number of cases referred to justice?
There were 1,189 complaints of ill treatment, only 52 had been investigated and only five cases had actually been sanctioned. Why were investigation and conviction rates so low and what could be done to ensure that torture cases ended up before the courts and were not just repressed by administrative sanctions which could not prevent and eradicate torture.
The Committee was very concerned about reports of children detained in the Bagram prison, without charge, without representation, and without access to families.
What was being done to fight corruption, illegal drug trade and radicalization in prisons?
There was a huge number of torture perpetrators and torture victims due to past practices. The delegation was asked about the transitional justice system and process in Afghanistan, how it recognized and compensated victims of human rights violations, and what approach it applied to amnesty for past crimes.
The Committee was struck by the appointment to high positions of officials suspected of committing torture; one such case was that of General Abdul Razak. What vetting system was in place for high-level appointments, to ensure the rule of law and accountability for crimes committed?
Corporal punishment was practiced based on strict reading of Sharia law – how would this be addressed in the reforms of the criminal law? Sharia law had evolved, noted the Country Co-Rapporteur and various countries had outlawed this practice based on the progressive interpretation of Sharia law.
Questions by the Experts
A Committee Expert asked the delegation to explain the system of solitary confinement, including its duration, size of cells, and access to medical care; who were detainees who were put in solitary confinement? What were the reasons to authorize the military to monitor places of detention rather that a civilian institution or agency?
The prosecutor of the International Criminal Court had stated that there was a reasonable basis to believe that American soldiers and intelligence services had committed war crimes and crimes against humanity in Afghanistan, including torture, rape and extra-judicial killings. What was the position of the Government vis-à-vis this preliminary investigation by the Office of the Prosecutor and how did it envisage cooperation with the International Criminal Court?
The Committee was very concerned about the existence of tribal justice systems which still existed in the country, and which passed shocking sentences such as condemning a girl to public gang rape.
What concrete measures had been taken since 2010 to effectively fight impunity, including for acts of torture committed during the period indicated in the preliminary investigation by the prosecutor of the International Criminal Court’s preliminary investigation, when 35 to 40 per cent of detainees had been tortured? Was the fight against impunity really a priority? No perpetrators of war crimes had been convicted by courts in Afghanistan.
The Committee raised concern about violence against women in Afghanistan and inquired about the impact of the law on the elimination of violence against women and asked about the number of cases reported under this law.
JENS MODVIG, Committee Chairperson and Rapporteur for Afghanistan, wondered whether the mandate of the Afghanistan Independent Human Rights Commission should be expanded to include monitoring of all places of detention, and also expand the mandate to include investigation of allegations of torture. Were there any initiatives to institute a moratorium of the death penalty leading to its abolition? What measures were in place to protect those identifying cases of torture from reprisals?
A Committee Expert noted that the prison population had increased almost five-fold over the past 10 years and asked what the reasons of such exponential increase were, and what measures had been taken to reduce overcrowding, including the application of non-custodial measures.
The delegation was asked to provide statistics on civilian victims of conflict, and to explain the situation of the Afghanis on the move due to conflict, either as refugees or internally displaced persons. What strategy was in place to tackle the challenges of refugees, returnees and internally displaced persons?
Responses by the Delegation
The delegation reiterated its strong political will to fight torture and corruption in the country; neither was a matter of days or weeks, but were long processes that involved the whole of society.
Responding to questions raised by the Committee Experts, the delegation said that the report on the treatment of conflict-related detainees had disturbed all with its grim reality of mistreatment and torture, but it also reminded of the challenging and complex security situation in the country. Despite the challenges, the Government remained committed to the protection of human rights for all and prevention of torture, which was also a constitutional obligation. Afghanistan was most ardent in eradicating the scourge of torture from the country.
Responding to the questions on steps taken to end the culture of impunity for torture, the delegation said that overcoming this long and miserable legacy was a priority. Afghanistan had taken bold steps over the past two and a half years, including the prosecution of about 30 cases and the punishment of 50 persons for the crime of torture, who had received sentences ranging from six months imprisonment and a fine which was the minimum sentence; three staff who had intentionally killed three civilians had received the death penalty, which was the maximum penalty.
In April 2017, chief of a provincial council had been sentenced by the primary court of the Anti-Corruption Criminal Justice Centre to two and a half years in prison over the misuse of authority. The Minister of Information and Communications had been the first minister to be suspended and removed from the cabinet due to the allegations of corruption. A senior army officer, a general, had been dismissed for corruption, while the chairman of the Internal Security Commission in the Senate was being investigated for abuse of power.
Afghanistan had invested enormous political will and capital into the judicial and legal reforms. For instance, 121 individuals, including lawyers, judges and advocates, had been arrested for judicial corruption and most of the administrative staff of the Supreme Court and Attorney General Office had been recruited through the merit-based competition. Representation of women had increased, and today women held the positions of the Deputy Attorney General and eight director posts. 540 judges had been sent abroad for professional studies and more than 1,000 had been trained in the country. Over the past two years, more than 70 major cases of corruption were being investigated or evaluated by the Attorney General and the judicial and justice centre for anti-corruption.
Steps were being taken to fill the existing legal vacuum by passing or amending the laws and creating the necessary legal structures to address any ambiguity that had existed in the past.
The law against torture defined torture in accordance with article 1 of the Convention, and the Criminal Code contained a particular unit on torture and its punishment. The minimum sentence for torture was three years, and if the victim was a woman or a child, the minimum sentence was five years. Honour killing had been removed from the new Criminal Code.
Bacha Bazi, or the sexual exploitation of young boys, would be a punishable crime under the child protection law that would soon be presented to the Parliament for ratification. Bacha Bazi was criminalized under the Criminal Code. Recruitment of children in armed forces was also prohibited by the Criminal Code.
As far as informal justice was concerned, the delegation noted that, unfortunately, some civil of even criminal cases were still addressed by elders or Jirgas. The law had defined the conditions under which Jirgas could be involved in reconciliation in civil disputes, notably that the selection of mediators be done by both sides to the dispute, and if one of the parties was a woman, at least one of the mediators had to be a woman. The decisions made by Jirgas had to respect the laws of the country.
The law on violence against women and anti-harassment had been adopted, and, to improve their enforcement, the Attorney General had established a deputy office for violence against women which had around 240 employees and had presence in 28 provinces. Courts on violence against women had been established in provincial capitals.
The Family Law was being reformed, which would raise the age of marriage to 18 years for boys and girls. The age of marriage in personal laws was 16 years. The work had started on the amendments of the civil code to raise the age of marriage to 18 years.
Turning to questions raised about the death penalty, the delegation said that six death row prisoners had been executed in Kabul; all had been confirmed terrorists and enough evidence had existed for a fair trial. Currently, there were 600 prisoners on a death row, for crimes such as murder, rape and terrorism. The Government had started the review of the cases, in a climate where executions were demanded by the public, as well as the Government seeking to project a tougher position to the enemies who showed no signs of dropping terrorism from their agenda. The public sentiment was in favour of capital punishment as the atrocities and crimes of Taliban and other terrorist networks had left deep scars on a large number of Afghans. The delegation said that the Government was resisting the popular anger and so far had managed to stay the execution for a number of prisoners. It was committed to keeping the capital punishment at the lowest possible levels, and, with the improvements in the security situation, it would be able to put an end to it.
Afghanistan acknowledged that the conditions of detention of the 30,000 prisoners in central and provincial prisons were not perfect, and it was taking steps to improve access to health services, educational activities and rehabilitation centres. More than 1,000 juveniles, including approximately 100 girls, were in custody for violation of the law.
The right to legal aid was a constitutional right; the Government provided legal aid to those who needed it through its 121 legal service providers, who legally assisted some 8,800 people in 2016. There was cooperation with the World Bank and the United Nations Development Programme in strengthening the provision of legal aid, particularly in the provinces.
Civilians in Afghanistan continued to be killed by crossfire, improvised explosive devices, assassinations, bombings and unexploded ordnance from previous wars. A total of 3,498 civilians had been killed and 7,920 had been wounded in 2016, which was a three percent increase on the previous year. About 60 percent of civilians had been killed by armed groups like the Taliban, Haqqani and Daesh; Afghan security forces had caused about 20 per cent of the casualties, while pro-government fighters and international forces had caused two per cent each.
Insurgent groups continued to use civilians as human shields, while national security forces were under clear instructions by the President to avoid fighting in areas with civilian population and to take all necessary measures to minimize the loss of civilian lives. The national policy for civilian casualty prevention and mitigation had been adopted, and Afghanistan was establishing a senior-level working group to lead a dialogue and support development of policies to promote protection of civilians across the country.
Considering all ground realities, prospects for peace in 2017 seemed unlikely. Although the signing of a peace agreement with Hezbi-i-Islami (Gulbuddin) in September 2016 was encouraging, the talks with the Taliban had not yet proved productive. The peace agreement with Gulbuddin Kekmatyar had been the first major peace achievement in the last fifteen years; it was believed that the current template of four major steps – disarming, integration into the society, renouncing violence, disassociating from terrorism – could be extended to other fighting factions.
From July 2016 to February 2017, Pakistani authorities had carried out a massive campaign of abuse and threats to drive nearly 600,000 Afghan refugees out of the country. The returnees, including 365,000 registered refugees, made the world’s largest mass forced return of refugees in recent years. Most faced destitution and displacement in Afghanistan due to fighting in many areas of the country. At the same time, European Union Member States increasingly rejected asylum seekers from Afghanistan. The European Union had used development aid to pressure Afghanistan into accepting increased deportation of rejected afghan asylum seekers. Afghanistan demanded a dignified and voluntary return of its citizens from Pakistan, Iran and other countries, and urged those countries and the international community to treat Afghan refugees according to the 1951 Refugee Convention. Afghanistan remained one of the poorest states in the world and needed to be fairly treated not only by the neighbours but by the international community as well.
The delegation stressed that using aid conditionality to force refugees to return was against all values that Afghanistan stood for. Afghanistan was open to receive visits by international monitoring missions; Afghanistan had nothing to hide and it viewed any international visit not as oversight but as an opportunity to improve. The international community should honour its commitment and allocate the USD 15 billion it had pledged during the Brussel conference.
The National Directorate for Security reiterated the commitment to international human rights obligations of Afghanistan, including to prevent and eradicate torture, and stressed that, as an institution, it was totally disconnected from the previous intelligence agencies. The Directorate had offices in 28 provinces and regularly monitored the situation in other six provinces.
In 2015, the Directorate had interviewed 7,200 detainees and had received 525 complaints of torture an ill treatment. Those had been investigated under the Istanbul Protocol, and 36 complaints had been proven accurate. In 2016, more than 9,000 detainees had been interviewed; 656 complaints had been lodged, of which 18 had been found to be accurate. The punishment for torture included demotion, or discharge from duty; five staff, including a provincial director, had been referred to criminal justice for prosecution. No children were being recruited in the Directorate.
The National Directorate for Security, together with the Ministry of Interior and the Ministry of Defence, had signed a Memorandum of Understanding with the Afghanistan Independent Human Rights Commission to create and ombudsmen to monitor places of detention. Commission for Prevention of Torture had been established in line with the newly adopted law against torture.
Elimination of torture and ill-treatment was a process; the Directorate knew what the problems were and was working on addressing them with the support of international community, and with full commitment to democratic principles and human rights.
Afghanistan was opened to welcome the investigation by the prosecutor of the International Criminal Court; it had already provided the Court with the requested information, documentation and case files.
Afghanistan was aware that decoupling of the judiciary from the executive was a long process, but it had started, and, for the first time in its history, Afghanistan had a judiciary that was independent from politics.
Brutal attacks in Afghanistan continued, by the enemy that did not feel bound by any values or commitments. Under those circumstances, it was difficult for Afghanistan to withdraw its reservations to the Convention.
The Ministry of the Interior was aware that the current human resources needed to be further trained and their capacity increased in order to meet the challenges the country faced, particularly to maintain rule of law and fight crime. In that sense, each officer would receive training on international humanitarian and human rights law. A joint oversight committee had been established with the Ministries of gender and human rights and the office of the inspector general to ensure the follow up to all human rights violations.
The responsiveness of the Ministry of the Interior, and the public awareness about its work, was being strengthened through police shuras (community gatherings), women shuras, expansion of the 119 call centre system, and publicity through billboards, engagement with the media and development of the police radio.
During the 2015-2016 period, the call centre had received 32,672 complaints, including 753 complaints of human rights violations by the police. The majority of the calls had been dealt with by the local police stations, and 6,365 had been sent to individual departments for follow up. It was important to say that the 119 call system was not about complaints alone, but it facilitated communication between the police and the community. For example, 441 landmines and explosive devices had been disabled as a result of calls to 119 line.
Seven police officers had been arrested on charges of torture; they were part of the caseload of 46 complaints of human rights violations filed against the police, 17 of which involved gross human rights violations. All 46 cases had been investigated, police officers had been arrested and their cases sent to the Attorney General.
Under a policy adopted in April 2017, a convicted prisoner who alleged ill treatment or abuse had an automatic right to a medical examination. For those detained in many of the 6,370 police stations, access to medical examiner was limited mainly due to distance and the limited availability of medical personnel in Afghanistan. An individual in pre-trial detention did not have automatic access to a medical examination. In such circumstances, a person had the right to file a complaint with the Human Rights Commission. The Ministry had recently signed an agreement with the Ministry of Health to increase the availability of trained medical personnel in prisons and places of detention.
Independent oversight and accountability mechanisms established under the Optional Protocol potentially offered the fastest and most robust means by which abuses that occurred within the Ministry’s facilities could be deterred and detected. In that sense, it was important to stress the role of the Office of the Inspector General.
Follow-up Questions by Experts
JENS MODVIG, Committee Chairperson and Co-Rapporteur for Afghanistan, welcomed that the definition of torture in the law against torture, would be identical to the definition under article 1 of the Convention. Would the law also prohibit cruel and degrading treatment and punishment, in addition to the prohibition torture? The sentencing framework contained in the law did not seem to adequately reflect the gravity of the crime. Would virginity testing be prohibited?
In its report on the implementation of the national plan of action to prevent torture, the United Nations Assistance Mission to Afghanistan stressed that the key was the inadequate and ineffective internal investigation and oversight mechanisms.
ABDELWAHAB HANI, Committee Expert and Co-Rapporteur for Afghanistan, paid tribute to the courage Afghanistan had demonstrated in fighting corruption, in particular the warrant for arrest of nine bodyguards of the Vice-President Dostum, a warlord and a very well-known figure for his bravery in fighting the Soviets; he was also known for brutality of his bodyguards. Despite the warrant, the bodyguards refused to present themselves before the justice.
The number of prisoners on death row was very high indeed – 600 prisoners were awaiting execution. What were the Government’s intentions concerning those prisoners, would it commute death sentences into life sentences and how would it approach the most serious crimes, such as terrorism?
Was there a human rights component and provisions of human rights violations in the peace agreements that Afghanistan had signed with various groups? Could the delegation inform about transitional justice process and, in particular, the treatment of victims?
The security forces were fighting against 22 terrorist groups which wanted to destabilize not only Afghanistan but the region and the world. There were also 22 private security and military companies operating in Afghanistan – how were they regulated?
The delegation was asked to explain what was being done to investigate civilian casualties caused by the operations of national security forces, establish accountability, and ensure civilian protection in the framework of military operations. How the accountability for mass violations of human rights was addressed in peace negotiations with non-State actors?
Responses by the Delegation
Virginity testing was not grounded in the law, but rather in the practices and culture of the police, judiciary and the prosecution, said a delegate.
With regard to access to legal counsel, the delegation explained that the practice now was that the very first issue that a prosecutor raised with the accused was his or her rights. That would include informing the accused that confession given to the police could not be accepted by a court. The concept of legal aid was new, and many people did not know that they had the right to legal aid. There were 3,200 legal aid providers at the moment.
The National Commission for the Elimination of Torture and the special anti-torture unit of the Office of the Attorney General had the capacity to train the security forces staff, the police, the penitentiary staff and medical examiners in human rights provisions, and prevention, identification and documentation of torture.
Afghanistan used the modern interpretation of the Sharia law and even though it was a modern Islamic state, it was still not acceptable for a woman to be a judge.
In 2006, the Government had approved the national plan for peace, justice and reconciliation in Afghanistan which acknowledged the suffering of the people in the conflict and the human rights violations they suffered. Under the plan, the human rights background was checked for all senior appointees in the Government. Theoretically and practically transitional justice happened after conflict, in post-conflict contexts; Afghanistan was a country still in conflict, and now that the fighting season was here, there were between 500 to 800 hotspots in the country.
The new Criminal Code would provide a number of alternatives to detention and non-custodial measures of detention.
The Attorney General had the task to review all the death penalty sentences and ensure that judicial guarantees were respected in each.Jirgas could no longer held jurisdiction for criminal cases.
The delegation confirmed that Pakistan had carried out the campaign of abuse to coerce Afghan refugees to return to their country of origin, and Human Rights Watch for example had documented violence against refugees, denial of schooling to children, night raids, etc.
FARID HAMIDI, Attorney General of Afghanistan, thanked the Committee for the fruitful discussion and was looking forward to receiving its concluding observations. Afghanistan was willing to fulfil its international commitments and provide a safe environment for the people of Afghanistan to live without fear in a society of rights, justice and rule of law. Justice was the basis of the society, and Afghanistan was committed to bringing justice to the people and being a responsible member of the international community.
JENS MODVIG, Committee Chairperson, commended the commitment of Afghanistan to fight torture and offered the Committee’s support for the implementation of that commitment.
For use of the information media; not an official record
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