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Special investigation: a charter for torture

In Afghanistan, British forces hand over prisoners with only flimsy guarantees they will not be abus

What is striking about the history of torture in Afghanistan is that no matter which regime is in power - the communists, the mujahedin, the Taliban and now Hamid Karzai's western-supported government - the methods remain the same. From the 1980s to the present day, electrocution and beating have been the principal weapons used against those the state deems dangerous or undesirable.

A former jihadi recently told the London-based Bureau of Investigative Journalism about the similarity in treatment between his arrests in the 1980s and in late January 2009. "In Afghan­istan, some types of torture are common and these are beating and electric shocks, given twice a day," he said. "I was tortured at nine in the morning and again from two to three o'clock in the afternoon.

“They kept me in a toilet, kept me thirsty and hungry, and used to hang me upside down for 20 to 30 minutes at a time. I was frequently threatened with death. I was not allowed to meet my family during either imprisonment."

He was released after 25 days, once the elders of his tribe had paid the equivalent of £2,000 in Pakistani rupees.

In another case we investigated, a father was forced to listen to the torture of his 20-year-old son and 16-year-old nephew. The family's ordeal began at 3am one day in early March this year, after a team of Afghan and foreign intelligence operatives broke down the door to his home in a village in eastern Afghanistan, near the border with Pakistan. They took Shamsuddin (not his real name) and his son and nephew, put black hoods on their heads and accused them of being insurgents. Shamsuddin told us that his brother, the father of his nephew, had been killed by a Taliban bomb just eight months earlier. He said it was "impossible" to have the idea that they could be Taliban fighters.

The three men were taken to the area of Kabul where most foreign agencies and missions are sited, including the US embassy, the centre for Nato forces and CIA headquarters.

He described being handcuffed, hooded and beaten over several days, but said that for him this was not really torture. The unbearable thing was to hear the agony of his son.

“There was a window like a hole in the door. I was trying to see what was happening to my son. You know a parent always longs to know what is happening to his child. I could hear the sound of the instrument beating my son. I felt his pain as if it was my own, and I heard my own son shouting and screaming.

“I wasn't normal. Hearing your son shout and scream and call on God. From the sound of the instrument they used to beat him, it wasn't wood or a fist, but sounded like a length of rubber or electric cable. It lasted for an hour each time. They were asking questions, but I couldn't hear what they were asking. I could just hear the sound of him screaming and the sound of rubber or a cable whipping him."

Shamsuddin has since been released, but his son has not. His fate is unknown.

What makes many of the reported cases of torture in Afghanistan so disturbing is not just that the western invasion was supposed to end such practices, but that the Allied forces have, in effect, been colluding in such treatment.

Last year, the high court in London heard testimony from ten men accused of insurgency, all of whom had been beaten by members of the Afghan authorities after being surrendered to them by British or American forces between 2007 and 2010. Their stories make grim reading: "Prisoner X said that metal clamps had been attached to parts of his body. He gestured to his forearms, upper body and chest . . . he had been electrocuted six times. He said that he had been beaten with an electric cable, about a metre long and one inch thick. He was beaten by the commander, a small fat man. He still had marks on his back."

It is also alleged that Prisoner X was raped by a senior Afghan officer at the detention facility in Lashkar Gah. Other stories heard in court included those of Prisoner A, who spoke of being hung from the ceiling and beaten, and Prisoner D, who was electrocuted while blindfolded. Prisoner E told the court that "every night of the 20 days of investigation at Lashkar Gah he had been beaten".

Counsel for the UK Ministry of Defence (the period of investigation covers the tenures of John Hutton, Bob Ainsworth and Liam Fox) has admitted that some of these allegations are "credible" - and even the high court judgment warned that they should not be dismissed.

And yet, a joint investigation by the New Statesman and the Bureau of Investigative Journalism shows that the world's most powerful military nations have responded not by trying to right these wrongs, but by attempting to sweep away the fundamental provisions of the Geneva Conventions.

The problem is simple, yet horrifying. British troops regularly hand over suspected insurgents to the Afghan authorities, even though torture and abuse are rife in Afghanistan's detention facilities. They do this, too, knowing that it is a breach of international law to transfer detainees to the custody of another state where they may face a risk of torture. This is enshrined in the Geneva Conventions of 1949, the Convention Against Torture of 1984, the International Covenant on Civil and Political Rights of 1966, and the European Convention on Human Rights (1950).

“The prohibition to transfer a person to a jurisdiction where he or she may be tortured is absolute in international law," says Dr Juan Méndez, United Nations special rapporteur on torture. "The operative part of this prohibition is not the torture itself, but the very risk of torture." And although there has been an official response to allegations of this sort, you could be forgiven for not having heard of it. Called the Copenhagen Process, it has received little publicity. Its meetings are closed. Its full membership is secret. Human rights groups such as Amnesty and other interested non-governmental organisations have been excluded.

What we do know is that it is led by the Danish government and it involves 25 nations (including the US and UK), as well as Nato, the EU, the African Union and the UN. Since 2007, these players have been pushing to establish a common framework for detainee transfers in Iraq and Afghanistan. In grim committee-speak, it aims to produce an "outcome document", which it hopes will receive approval from the UN and individual countries.

The starting point for those around the Copenhagen table is that, while the principles of humanitarian and human rights conventions may be set in stone, 20th-century law is out of kilter with 21st-century conflict. Military nations need a get-out clause from the Geneva Conventions.

Thomas Winkler of Denmark's ministry of foreign affairs is leading the charge. "The dil­emma is . . . [you] have a huge body of law but, when you have to apply the law in these types of conflict or operations, we have met a number of challenges . . . that you detain somebody and that you believe that the individual either is a security threat or a criminal, how do you then deal with it?" he told the Bureau.

Winkler maintains that the Copenhagen Process meetings have been "closed" to encourage openness by the states and organisations involved. He says that the International Committee of the Red Cross (ICRC) is now attending meetings, and NGOs will be invited to contribute later this year, once the final draft outcome document has been drawn up. The ICRC distances itself from this assertion. A spokesperson says it was invited to participate in the process, but purely as an observer.

The present military rules in Afghanistan say that Nato-led forces have to hand over anyone they capture to the Afghan authorities within 96 hours. So far, the forces have attempted to comply with their human rights obligations by obtaining written assurances from the Afghan government, known as memorandums of understanding, or MOUs. The aim of the Copenhagen Process is to codify these assurances into international law.

As the high court testimony from the ten detainees shows, it appears that these MOUs are not always successful in protecting detainees from torture. Prisoner A told of multiple night-time beatings in an underground cell. Prisoner C recounted being hung from a ceiling for three days and nights. A common theme is the men's inability to identify their abusers - the beatings often took place under cover of darkness, or with the men blindfolded - but in those cases where identifications were made, senior officials were implicated.

“The use of memorandums of understanding is among the worst practices that states are currently engaging in," says Matt Pollard, a senior legal adviser at Amnesty International. "In effect, it is resulting in states bypassing their obligations not to transfer people to risk of torture. Basically states say: 'Yes - I'm not supposed to transfer a person to you if you're going to torture them - so please just promise me you won't torture them.' We've said categorically that that type of practice is actually undermining the prohibition of torture and other ill-treatment and other human rights obligations. It's one of the worst practices in terms of its effect on the system of human rights protection as a whole at the moment."

Juan Méndez agrees. "Diplomatic assurances do not relieve the sending countries of their state responsibility for having committed a serious breach of an international obligation." He argues that changes to the way MOUs are used "are unnecessary if the receiving country is not a torturing state and are utterly meaningless if the receiving country is known to engage in a pattern and practice of torture".

Then Méndez goes further, and makes a statement that is remarkably forthright for someone in his position. "In the course of the so-called 'global war on terror', countries have been transferring prisoners not despite the risk of torture, but precisely to facilitate torture - and to obtain the dubious intelligence thus gathered. I fear that an agreed-upon regulation of these transfers will be seen by some [prisoner-] sending countries as a way of legitimising what is clearly wrongful conduct on their part. If so, the agreement will not succeed in curbing torture and may well provide a veneer of legitimacy to it."

It's a view echoed by Brad Adams, Asia director of Human Rights Watch, who says that the detainees' well-being is put second to western armies' convenience. "The US, UK and others with troops in Afghanistan want to be able to capture real or alleged insurgents and interrogate them," he says, "but they do not want to build or run detention centres in Afghanistan. So they do the expedient thing and hand them over to the Afghans. For the most part, they have no idea what happens next.

“It's a hear-no-evil, see-no-evil policy of wilful blindness to the risks to detainees. And, to make matters worse, we know that many people detained in Afghanistan turn out to be completely innocent."

The organisation to which detainees are handed over is the National Directorate of Security (NDS), Afghanistan's external and domestic intelligence agency. Its track record is deplorable and the evidence of torture at its detention facilities is overwhelming. Since 2005, there has been a raft of reports detailing how torture is rife in it and other state institutions.

In 2007, the UN high commissioner for human rights reported that the NDS's use of torture and other forms of ill-treatment was frequent. Every year since then the same concerns have been reiterated.

In 2009, the Afghanistan Independent Human Rights Commission reported that "torture was commonplace among the majority of law-enforcement institutions". It identified 398 victims and detailed the methods of torture: sexual abuse; branding with iron bars; use of tools, a lawnmower, tyre rods, staplers; flogging with electric, iron and plastic cables on the back, waist, feet, head, face and other body parts; beating with rods while blindfolded with hands and feet tied; use of electric shocks; victims continuously chained and shackled. The report concluded that no one had been prosecuted for any of these cases.

Even the US state department country report on Afghanistan published in 2010 referred to methods of torture and abuse. These included, but were not limited to, "beating by stick, scorching bar, or iron bar; flogging by cable; battering by rod; electric shock; deprivation of sleep, water and food; abusive language; sexual humiliation; and rape". Against this backdrop, a memorandum of understanding seems a flimsy safeguard indeed.

In 2009, the Canadian diplomat Richard Colvin created a storm when he revealed that, despite an MOU, Canada did not monitor detainee conditions in Afghanistan, and that detainees transferred by the Canadians to Afghan prisons were probably tortured. "According to our information, the likelihood is that all the Afghans we handed over were tortured," Colvin said. "For interrogators in Kandahar, it was a standard operating procedure."

He said his reports were ignored and eventually senior officials told him to stop putting his concerns in writing. Denmark's Winkler accepts that MOUs are not sufficient in themselves. Central to their success, he explains, is "aggressive monitoring": to try to ensure that the host nation - through the Afghan authorities - sticks to its part of the bargain. "We need the monitoring of not just the individuals transferred but also supervision and the co-operation at a general level with the receiving state in order to ensure that the facilities are there," Winkler told the Bureau of Investigative Journalism. "If the receiving state or entity does not fulfil the obligations as part of the MOU, then you cannot transfer."

This is where the central thesis of the use of MOUs by the Copenhagen Process starts to unravel. The UK - which is held up as an example of best practice - signed a bilateral MOU with the Afghan defence ministry in April 2006. Its intentions are laudable: "Ensure that participants will observe the basic principles of international human rights law such as the right to life and the prohibition on torture and cruel, inhumane and degrading treatment pertaining to the treatment and transfer of persons by the UK [armed forces] to Afghan authorities and their treatment."

However, a high court case brought last year by the peace activist Maya Evans exposed the fundamental failings of the agreement. At the time of the hearing, 418 UK detainees had been handed over to the NDS (the number is now more than 600). The main detention facilities are NDS Kabul, known as "Department 17", NDS Kandahar and NDS Lashkar Gah.

The judgment pointed out that "written assurances in themselves do not take matters very far . . . actions speak louder than words". It continued: "UK officials in Kabul reported that despite advice from London, the MOU was meaningless locally. The NDS did not recognise the authority of the Afghan minister of defence to promise anything on behalf of the NDS."

It continues that, because of deficiencies in the monitoring system, "the possibility of other cases of abuse which the monitoring system has failed to identify cannot be dismissed". However, the British judges refused to rule that the transfer of detainees was illegal. Transfers to NDS Kandahar and NDS Lashkar Gah could continue, "provided that existing safeguards are strengthened by observance of specified conditions".

That seems unlikely to happen: the Afghan­istan Independent Human Rights Commission has repeatedly been denied proper access to NDS facilities. During one visit in 2007, detainees were hidden on a roof.

The judgment also described the position at NDS Kabul as "particularly troubling". As it stated: "Little occurred by way of UK visits before the NDS refused all access to the facility in late 2008." Access to NDS Kandahar was limited. At NDS Lashkar Gah, visits were cancelled for security reasons and the character of visits was described as falling "well short of best practice"; guards were present during the interviews, and it was only possible to see detainees in groups with the guards still in earshot.

It was only through the high court hearings that the allegations of torture and abuse came to public attention in the UK. If those in charge of the Copenhagen Process have their way, the accusations are unlikely to surface again.

In the meantime, however, British troops continue to hand over detainees to their Afghan counterparts. The UK Ministry of Defence argues that, with better supervision, the situation has improved, but confirms that accounts of abuse continue to surface.

“We take all allegations of abuse seriously and consider these in all future transfer decisions," an MoD spokesman says. "We can confirm that there [has] been a very small number of allegations received since the judgment was handed down, but cannot give full details as they can only be passed on with the permission of the detainee and may be subject to an ongoing investigation, either by UK or Afghan authorities. Where permission is given by the detainee, an allegation will be passed to the Afghan authorities for further investigation."

As Nato-led forces plan to pull out from Afghanistan, the focus on how western armies can hand over detainees without breaching international law has intensified. Before the "war on terror" the west made great play of trying to engage with torturing regimes in an effort to get them to change their ways. Now, it stands accused of complicity, the result of a cynical attempt to erode the basic principles of the Geneva Conventions, international human rights and humanitarian law.

Angus Stickler is chief reporter at the Bureau of Investigative Journalism, a not-for-profit organisation based at City University London

Kate Clark is a senior analyst with the Afghanistan Analysts Network

This feature article was produced in association with the Bureau of Investigative Journalism

This article first appeared in the 29 August 2011 issue of the New Statesman, Gold

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The French millennials marching behind Marine Le Pen

A Front National rally attracts former socialists with manicured beards, and a lesbian couple. 

“In 85 days, Marine will be President of the French Republic!” The 150-strong crowd cheered at the sound of the words. On stage, the speaker, the vice-president of the far-right Front National (FN), Florian Philippot, continued: “We will be told that it’s the apocalypse, by the same banks, media, politicians, who were telling the British that Brexit would be an immediate catastrophe.

"Well, they voted, and it’s not! The British are much better off than we are!” The applause grew louder and louder. 

I was in the medieval city of Metz, in a municipal hall near the banks of the Moselle River, a tributary of the Rhine from which the region takes its name. The German border lies 49km east; Luxembourg City is less than an hour’s drive away. This is the "Country of the Three Borders", equidistant from Strasbourg and Frankfurt, and French, German and French again after various wars. Yet for all that local history is deeply rooted in the wider European history, votes for the Front National rank among the highest nationally, and continue to rise at every poll. 

In rural Moselle, “Marine”, as the Front National leader Marine Le Pen is known, has an envoy. In 2014, the well-spoken, elite-educated Philippot, 35, ran for mayor in Forbach, a former miner’s town near the border. He lost to the Socialist candidate but has visited regularly since. Enough for the locals to call him “Florian".

I grew up in a small town, Saint-Avold, halfway between Metz and Forbach. When my grandfather was working in the then-prosperous coal mines, the Moselle region attracted many foreign workers. Many of my fellow schoolmates bore Italian and Polish surnames. But the last mine closed in 2004, and now, some of the immigrants’ grandchildren are voting for the National Front.

Returning, I can't help but wonder: How did my generation, born with the Maastricht treaty, end up turning to the Eurosceptic, hard right FN?

“We’ve seen what the other political parties do – it’s always the same. We must try something else," said Candice Bertrand, 23, She might not be part of the group asking Philippot for selfies, but she had voted FN at every election, and her family agreed. “My mum was a Communist, then voted for [Nicolas] Sarkozy, and now she votes FN. She’s come a long way.”  The way, it seemed, was political distrust.

Minutes earlier, Philippot had pleaded with the audience to talk to their relatives and neighbours. Bertrand had brought her girlfriend, Lola, whom she was trying to convince to vote FN.  Lola wouldn’t give her surname – her strongly left-wing family would “certainly not” like to know she was there. She herself had never voted.

This infuriated Bertrand. “Women have fought for the right to vote!” she declared. Daily chats with Bertrand and her family had warmed up Lola to voting Le Pen in the first round, although not yet in the second. “I’m scared of a major change,” she confided, looking lost. “It’s a bit too extreme.” Both were too young to remember 2002, when a presidential victory for the then-Front National leader Jean-Marie Le Pen, was only a few percentage points away.

Since then, under the leadership of his daughter, Marine, the FN has broken every record. But in this region, the FN’s success isn’t new. In 2002, when liberal France was shocked to see Le Pen reach the second round of the presidential election, the FN was already sailing in Moselle. Le Pen grabbed 23.7 per cent of the Moselle vote in the first round and 21.9 per cent in the second, compared to 16.9 per cent and 17.8 per cent nationally. 

The far-right vote in Moselle remained higher than the national average before skyrocketing in 2012. By then, the younger, softer-looking Marine had taken over the party. In that year, the FN won an astonishing 24.7 per cent of the Moselle vote, and 17.8 per cent nationwide.

For some people of my generation, the FN has already provided opportunities. With his manicured beard and chic suit, Emilien Noé still looks like the Young Socialist he was between 16 and 18 years old. But looks can be deceiving. “I have been disgusted by the internal politics at the Socialist Party, the lack of respect for the low-ranked campaigners," he told me. So instead, he stood as the FN’s youngest national candidate to become mayor in his village, Gosselming, in 2014. “I entered directly into action," he said. (He lost). Now, at just 21, Noé is the FN’s youth coordinator for Eastern France.

Metz, Creative Commons licence credit Morgaine

Next to him stood Kevin Pfeiffer, 27. He told me he used to believe in the Socialist ideal, too - in 2007, as a 17-year-old, he backed Ségolène Royal against Sarkozy. But he is now a FN local councillor and acts as the party's general co-ordinator in the region. Both Noé and Pfeiffer radiated a quiet self-confidence, the sort that such swift rises induces. They shared a deep respect for the young-achiever-in-chief: Philippot. “We’re young and we know we can have perspectives in this party without being a graduate of l’ENA,” said another activist, Olivier Musci, 24. (The elite school Ecole Nationale d’Administration, or ENA, is considered something of a mandatory finishing school for politicians. It counts Francois Hollande and Nicolas Sarkozy among its alumni. Ironically, Philippot is one, too.)

“Florian” likes to say that the FN scores the highest among the young. “Today’s youth have not grown up in a left-right divide”, he told me when I asked why. “The big topics, for them, were Maastricht, 9/11, the Chinese competition, and now Brexit. They have grown up in a political world structured around two poles: globalism versus patriotism.” Notably, half his speech was dedicated to ridiculing the FN's most probably rival, the maverick centrist Emmanuel Macron. “It is a time of the nations. Macron is the opposite of that," Philippot declared. 

At the rally, the blue, red and white flame, the FN’s historic logo, was nowhere to be seen. Even the words “Front National” had deserted the posters, which were instead plastered with “in the name of the people” slogans beneath Marine’s name and large smile. But everyone wears a blue rose at the buttonhole. “It’s the synthesis between the left’s rose and the right’s blue colour”, Pfeiffer said. “The symbol of the impossible becoming possible.” So, neither left nor right? I ask, echoing Macron’s campaign appeal. “Or both left and right”, Pfeiffer answered with a grin.

This nationwide rebranding follows years of efforts to polish the party’s jackass image, forged by decades of xenophobic, racist and anti-Semitic declarations by Le Pen Sr. His daughter evicted him from the party in 2015.

Still, Le Pen’s main pledges revolve around the same issue her father obsessed over - immigration. The resources spent on "dealing with migrants" will, Le Pen promises, be redirected to address the concerns of "the French people". Unemployment, which has been hovering at 10 per cent for years, is very much one of them. Moselle's damaged job market is a booster for the FN - between 10 and 12 per cent of young people are unemployed.

Yet the two phenomena cannot always rationally be linked. The female FN supporters I met candidly admitted they drove from France to Luxembourg every day for work and, like many locals, often went shopping in Germany. Yet they hopep to see the candidate of “Frexit” enter the Elysee palace in May. “We've never had problems to work in Luxembourg. Why would that change?” asked Bertrand. (Le Pen's “144 campaign pledges” promise frontier workers “special measures” to cross the border once out of the Schengen area, which sounds very much like the concept of the Schengen area itself.)

Grégoire Laloux, 21, studied history at the University of Metz. He didn't believe in the European Union. “Countries have their own interests. There are people, but no European people,” he said. “Marine is different because she defends patriotism, sovereignty, French greatness and French history.” He compared Le Pen to Richelieu, the cardinal who made Louis XIV's absolute monarchy possible:  “She, too, wants to build a modern state.”

French populists are quick to link the country's current problems to immigration, and these FN supporters were no exception. “With 7m poor and unemployed, we can't accept all the world's misery,” Olivier Musci, 24, a grandchild of Polish and Italian immigrants, told me. “Those we welcome must serve the country and be proud to be here.”

Lola echoed this call for more assimilation. “At our shopping centre, everyone speaks Arabic now," she said. "People have spat on us, thrown pebbles at us because we're lesbians. But I'm in my country and I have the right to do what I want.” When I asked if the people who attacked them were migrants, she was not so sure. “Let's say, they weren't white.”

Trump promised to “Make America Great Again”. To where would Le Pen's France return? Would it be sovereign again? White again? French again? Ruled by absolutism again? She has blurred enough lines to seduce voters her father never could – the young, the gay, the left-wingers. At the end of his speech, under the rebranded banners, Philippot invited the audience to sing La Marseillaise with him. And in one voice they did: “To arms citizens! Form your battalions! March, march, let impure blood, water our furrows...” The song is the same as the one I knew growing up. But it seemed to me, this time, a more sinister tune.