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U.S. Transfers Detention Facilities to Afghans, Retains Custody of Some Prisoners

By Matt Clarke

In March 2013, the U.S. transferred control of the U.S. Detention Facility in Parwan—the main jail in Afghanistan—and the Bagram military prison to the government of Afghanistan. The transfer involved thousands of prisoners, but the U.S. retained jurisdiction over prisoners deemed to be Enduring Security Threats (ESTs) and prisoners who are foreign nationals, including Pakistanis, Saudis and Yemenis.

Previously, an impasse over the status of the prisoners had threatened to wreck the agreement to allow U.S. forces to remain in Afghanistan past 2014. Afghan President Hamid Karzai said he would reject that status of forces agreement if the jail and prisoner issues were not resolved.

The Afghan government had repeatedly refused to accept custody of the foreign nationals. This caused repeated delay in the turnover of the Parwan facility. Now the foreign nations will remain in U.S. custody.

"We really are in [unknown territory] here," said former Marine Judge Advocate General and West Point law of armed conflict professor Gary Solis referring to the foreign national prisoners in U.S. custody in Afghanistan. "I don't think anyone knows what we're going to do with these guys. This is not an issue governed by the law of armed conflict."

The U.S. paid about $19 million to build the prison in Parwan, which, the Afghans have renamed the Afghan National Detention Facility at Parwan. Under the Memorandum of Understanding which resulted in the turnover of the facility and its prisoners, the U.S. will continue to fund the operation of the prison. Nonetheless, the Afghans will have full sovereign control of the facility. The fate of the prisoners under Afghan jurisdiction will be determined by "an Afghan-led process with an opportunity for U.S. input," according to a senior U.S. defense official.

"Since March 2012, the Americans have handed over to us 4,000 prisoners," said a senior Afghan official speaking to the BBC in March 2013. "We have freed 1,350 of them. The Americans have given us 26 more prisoners today, and they still have more prisoners which they will hand over to us soon."

But human rights organizations are concerned about the fate of the prisoners in Afghan custody.

"Amnesty International is concerned about the allegations of torture against those detainees who had been in Afghan custody," said Amnesty International Afghanistan researcher Horia Mosadiq. "The United Nations and other human rights groups in the past few years have frequently raised concerns about the widespread use of torture and ill-treatment against detainees who are kept within the Afghan National Security directorate and Afghan police and other Afghan government agencies. ... [T]here hasn't been much progress in reforming detention centers and the prison system in Afghanistan.


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