Kabul demands surrender of detainees in British custody in Afghanistan

UK defence secretary has confirmed that 80-90 people are being held at Camp Bastion after claims emerge of detention facility

guardian.co.uk, Haroon Siddique, Andrew Sparrow and Emma Graham-Harrison in Kabul, 29 May 2013

Philip Hammond said it was 'absurd' to call Camp Bastion a secret facility and
 many of those held posed a danger to troops. Photograph: Mark Thomas/Rex
Features

Afghanistan has demanded the handover of nearly 100 people who have been detained by British forces in Afghanistan, in some cases for more than a year.

Mohammad Daud Yaar, the Afghan ambassador to the UK, told BBC Radio 4's World at One on Wednesday that "the principle of national sovereignty" meant that they should be surrendered to Afghan custody. He added that he could promise that they would not be mistreated.

He was speaking a few hours after Philip Hammond, the defence secretary, confirmed that 80 or 90 people were being held at the site but rejected claims that it amounted to a secret detention facility.

Hammond said many of them posed a danger to British troops, and reiterated that they could not yet be handed over to Afghan authorities because of concerns that they would be mistreated.

UK lawyers acting for eight of the men, some of whom they say have been held for up to 14 months without charge, have launched habeas corpus applications in the UK high court in a bid to free them, raising comparisons with the outrage over the Guantánamo Bay prison camp.

Many of the prisoners have not been able to see a lawyer after months in prison, a basic right offered to anyone arrested in the UK. Access to a lawyer was among the first rights that Guantánamo detainees won off the US government. The Afghan detainees have also not been given any kind of trial date, or prospect of one.

"Our client has been held at Camp Bastion since August 2012. He has not been charged with any crime and has had no access to a lawyer so he can receive legal advice about his ongoing detention," said Rosa Curling, a lawyer with the firm Leigh Day, which is representing a 20-year-old prisoner with a young daughter.

International Security Assistance Force (Isaf) rules dictate that British forces are only allowed to hold suspects for 96 hours. But in November last year, Hammond halted plans to hand suspected insurgents captured by British troops to Afghan security forces on the grounds that they risked being abused and tortured.

Phil Shiner, lawyer for eight of the men, said the government had chosen not to train the Afghan authorities to treat people lawfully and humanely.

"This is a secret facility that has been used to unlawfully detain or intern up to 85 Afghans that they have kept secret, that parliament doesn't know about, that courts previously, when they have interrogated issues like detention and internment in Afghanistan, have never been told about – completely off the radar," he told the BBC.

"It is reminiscent of the public's awakening that there was a Guantánamo Bay. And people will be wondering if these detainees are being treated humanely and in accordance with international law."

Shiner said the prisoners had not been told what they were accused of or granted access to legal representation, except for two men who had been allowed a one-hour phone call each with a lawyer on Wednesday.

In response, Hammond said that many of the detainees were suspected killers of British troops or known to be involved in the preparation, facilitation or laying of improvised explosive devices and it would be wrong to put them "back on the battlefield".

"We would like nothing more than to hand these people over to the Afghan authorities so they can be handed over to the Afghan judicial system," he told the Today programme, dismissing the description of Camp Bastion as a secret facility as "absurd".

The defence secretary said the government was working "very intensively" with the Afghan authorities to create the safe conditions that would enable the detainees to be transferred to the Afghan system and expressed his hope that this would be achieved "within a matter of days". Defending the prisoners' lack of access to lawyers, he said they would be granted representation when they were transferred to the Afghan judicial system.

Speaking a few hours after Hammond's Today programme interview, Yaar said the prisoners should be handed over to the Afghans immediately.

"We believe that those detainees who are Afghans, based on the principle of national sovereignty, should be placed under Afghan authority," he said.

"Believe me, the world should take us at our world. We promise that we will not mistreat these people."

Yaar said he hoped that the prisoners would be transferred to the Parwan detention facility near Bagram airfield, a US-built prison that was placed under Afghan control last year.

Asked about claims that prisoners in Afghan detention were mistreated, Yaar said the issue had been investigated by experts appointed by the Afghan president, Hamid Karzai.

"What they found was that there were some occasions of torture, but the torture was not systematic. It's a war environment and people get emotional. In the process of detaining people, usually, some degree of violence does occur," he said.

Yaar said he did not accept that there were "countless" examples of mistreatment in Afghan jails.

"These are people who have supposedly committed some kind of a crime," he said. "Of course they will bring all sorts of reasons and all sorts of complaints to derail the investigation and attract sympathy."

Lawyers argue that while they try to find a solution, the British government is violating two of the fundamental principles of British justice – that no one should be detained indefinitely without trial, and that any suspect should have access to a lawyer.

"We have been asking for access to our client since March this year and to date, it has not been provided. The right of access to a lawyer is a fundamental and constitutional principle of our legal system. Unimpeded access to a lawyer is part of our concept of the rule of law," Curling said.

The UK is the only foreign power still jailing Afghans in their own country, after Washington in March sealed plans for the much-delayed handover of the last Afghan prisoners it still holds on Afghan soil.

Karzai has long been an outspoken opponent of foreign-run jails, which he sees as a serious violation of national sovereignty, but has focused most of his attention and political firepower on getting US forces to relinquish their huge prison near Kabul and has remained relatively silent about the prisoners detained by Britain.

Curling warned that if the UK continued to hold prisoners without trial or access to a lawyer, it would undermine efforts to improve justice in Afghanistan.

"The government states that one of the objectives of its current work in Afghanistan is to establish the rule of law and build a fair justice system by the time UK forces leave in 2014. In such a context, for the UK government itself to be refusing my client and other individuals the right to access justice is wrong and unlawful."

Activists demand the closing of the US military's detention
facility in Guantanamo, April 11, 2013 in New York City
 (AFP/File, Stan Honda)

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