Afghanistan should reject indefinite detention without trial: Rights group
Nov 17, Kabul: The Afghan government should reject a new law that permits indefinite detention of security suspects without trial, Human Rights Watch said on Tuesday.
A September, 2015 amendment to the Criminal Procedure Code, imposed by presidential decree, allows Afghan authorities to detain for a renewable one-year period anyone suspected of “crimes against internal or external security,” or believed “likely to commit such a crime".
“Given President Ashraf Ghani’s sharp criticisms of United States' practices at Guantanamo, it is incomprehensible why he would want to bring indefinite detention without trial to Afghanistan,” said Patricia Gossman, senior Afghanistan researcher. “Afghanistan needs to take steps to address terrorism and protect public safety, but not by denying Afghans the right to a fair trial.”
The Judicial Committee of the Wolesi Jirga, the lower house of parliament, has been considering the presidential decree since early October. Parliament has the power to veto the decree; if it does nothing, the decree remains law. The Judicial Committee may call for a hearing on the decree and invite legal experts to testify before a decision to reject or amend it.
The detention period is for one year, which can be renewed indefinitely upon the approval of the Supreme Court. The decree does not specify whether the detainee will have access to family members, the right to legal counsel in those proceedings, the right to examine the evidence, or the right to challenge that evidence in a fair proceeding. Detainees are to be “kept in a special place under the supervision of the prosecutor, separate from detention centers and prisons.” As of November, the government had not yet identified where these “special places” would be. Segregation of these suspects from the regular criminal justice system, without any provision for their access to counsel, raises the risk of torture or other ill-treatment.
Preventive (or administrative) detention allows the government to deprive people of their liberty with no intent to prosecute the individual through the criminal justice system. International human rights law permits preventive detention only under narrow circumstances. By using such detention without trial for matters that fall within the existing criminal law, the government is able to avoid the scrutiny of an independent and impartial judicial system.
Such laws are also frequently used to deprive individuals of fundamental freedoms – such as the rights to association, expression, and peaceful assembly – protected under international law. As such, preventive detention subverts the rule of law by granting executive authorities powers that should properly be the domain of the courts.
“Afghanistan’s progress on rule of law reform will take a big step backward if this new counterterrorism decree is kept in its present form,” Gossman said. “Abusive measures such as indefinite detention and denying suspects access to lawyers have no place in Afghan law, even to confront a dangerous enemy.”
The Oslo Times