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A recent decree by President Ghani on how to deal with terrorist crimes has introduced the prospect of detaining, without trial, Afghans (and foreigners in Afghanistan) suspected of planning acts of terrorism. The relevant article allows the Afghan authorities to detain suspects indefinitely on very little evidence and with little or no opportunity to defend themselves. The president has, also, through this decree, mandated a tripling of the period that the state can hold terrorist suspects whom it wants to put on trial before they have to be sent to court. Introduced quietly together alongside other presidential decrees, these sweeping new powers have hardly been subject to public discussion so far. The measures seem to be an attempt by the Afghan government to circumvent the legal system and its protections of basic rights. AAN’s Lenny Linke reports (with input from Kate Clark).

The new decree

Presidential Decree 76 “Annex Number One (1) to the Criminal Procedure Code on Terrorist Crimes and Crimes against Internal and External Security,” creates an annex to the existing Criminal Procedure Code (which can be found here in English and Dari) and delivers additional provisions for “terrorist crimes and crimes against internal and external security.” This decree was endorsed on 25 September 2015 and published in the Official Gazette (number 1190) on 19 October 2015 and, thereby, already has the force of law. The aim of decree, according to its first article, is the “effective prosecution” of perpetrators of terrorist crimes and sixteen other offences that are mentioned in the Law on Crimes against Internal and External Security. This earlier law was passed in 1987, under the leftist, Soviet-backed Najibullah regime and was aimed at offences ranging from treason and sabotage, to assisting an enemy force, to anti-state propaganda (including “intentionally spreading false news or self-serving allegations”) and, also, not informing authorities or trying to cover up ‘anti-state crimes.’ The wordings of many of these crimes are rather broad and potentially open to abuse or the casting of a very wide net. (1)

The decree can essentially be divided into two part: 1) articles 2-9 and 11-13 of the annex contain provisions for individuals suspected of terrorist crimes and crimes against internal and external security which, among other items, extends the period of pre-trial detention and allows covert intelligence gathering without prior authorisation, and 2) article 10, which authorises “Exercising of Precautionary Measures.”

As the new decree has been introduced quietly and together with more than a dozen other decrees, there has been little public discussion to date. Human rights organisations and some people in the parliament, have caught on to the fact that, in its current form, it threatens to undermine important rights and protections. Article 10, titled “Exercising of Precautionary Measures,” has attracted the most attention.

Article 10 – measures that allow for indefinite detention without trial

With article 10 of the Annex to the Criminal Procedure Code, the state has established an internment regime – also known as administrative or preventative detention – in just four short paragraphs. Based on this single article, the Afghan state can now detain, without trial, people who are strongly suspected of having committed a crime – and keep suspects it thinks may commit (again) acts of terrorism, or ‘crimes against internal and external security’ in the future after their release from detention, even when there is not enough evidence to launch an investigation.

Article 10 reads as follows:

(1) Precautionary measures shall be taken in the following circumstances:

The person is suspected of committing terrorist crimes or crimes committed against internal and external security but gathering of incriminating evidences is not possible and as a result of detective activities, based on strong indications or reliable information, there is a strong probability that he/she will commit a crime if released.

The person has been sentenced to imprisonment for commission of terrorist crimes or crimes against internal and external security and has served his/her sentence term and based on strong indications and reliable information, there is a strong probability that he/she will again commit crimes if released. /em>

(2) National Directorate of Security shall propose to the Supreme Court detention of the suspect or the convict stated in paragraph (1) of this article after obtaining the agreement of the relevant prosecution office and confirmation of the Attorney General’s Office.

(3) The period for exercising of security measures shall be one year and in case the situation set forth in paragraph (1) of this article continues, it may be extended consecutively.

(4) Persons mentioned in paragraph (1) of this article shall be kept in a special place under the supervision of the prosecutor, separate from the detention center and prison.”

Based on the above article, the Afghan state can now hold someone without trial under one of the following two scenarios:

Scenario 1: If a person is suspected of having committed or may commit terrorist crimes or crimes against internal ad external security in the future, but it is not possible to gather “court-worthy” evidence. This means, if no evidence has been found, or an investigation has been inconclusive, but “detective activities” (2) based on strong indications or reliable information indicate a strong probability that he/she will commit a crime, if released (art 10, para 1, pt 1).

Scenario 2: If a person has been convicted and is in prison for a terrorist crime, or a crime against internal and external security, and has completed his/her sentence term, the state may choose not to release him or her if, “based on strong indications and reliable information,” the authorities think “there is a strong probability that he/she will again commit crimes, if released.” (art 10, para 1, pt 2)

The decree does not detail what could amount to ‘strong indications’ or ‘reliable information.’

These above-mention scenarios are not unique to Afghanistan – other countries have adopted similar measures post-9/11. Unlike in anti-terrorism legislation formulated by other countries permitting detention without trial, for example, by Australia, article 10 of the annex to the Criminal Procedure Code does not even specify an immediate future – only any time in the future ­­– for a possible suspect believed to possibly commit a crime. Many other countries severely limit the maximum period during which a person can be held without trial. In Australia, it is just 14 days. The Australian legislation also extensively details the procedures governing preventative detention – in 75 pages, as opposed to the Afghan decree’s one article with four paragraphs. See here for analysis of the Australian legislation and here for the law itself.

Who investigates and detains?

In terms of procedure, according to the new decree, it is the Afghan intelligence agency, the National Directorate of Security (NDS) that can ask for normal due process to be suspended so that an individual can be detained without trial. The NDS proposes to the Supreme Court “the detention of the suspect or convict stated in paragraph 1 of this article after obtaining the agreement of the relevant prosecution office and confirmation of the Attorney General’s office” (art 10, para 2). There is no provision in the law to allow suspects to defend themselves. There is also no mention of counsel and representation from a defence lawyer. The law, moreover, does not actually specify what the NDS has to show to the Supreme Court so that it can be given the necessary authorisation. In fact, article 10 paragraph 2 only states that the NDS has to propose the detention to the Supreme Court – from the text itself it is not clear in what form the proposal is required, or within what time frame and how the Supreme Court needs to respond to the request.

The new decree says that “the period for exercising the security measures shall be one year and if the situation set forth in paragraph 1 of this article continues, it may be extended [by the Supreme Court] consecutively” (art 10, para 3). This implies that any detention under article 10 would be fixed to one year (not more or less) and that, after that first year, all that seems to be required for the detention to be extended is that the original circumstances are deemed to be unchanged. Again, no opportunity is set out in the legislation for a suspect to argue against the continuing detention. Only another request from the NDS to the Supreme Court proposing an extension is required. The article does not specify any maximum number of renewals, nor does it mention any way that an individual could challenge or appeal against this preventative detention. However, circumstances might change or evidence might emerge that clears the detainee of suspicion. But there does not seem to be a process that would allow this new information to be brought in. In effect, this article provides the opportunity to detain a person indefinitely and without recourse.

According to Article 10 paragraph 2, the NDS needs to propose the detention without trial to the Supreme Court. It is not clear from the decree (art 10 para 3) whether individual members of the Supreme Court (official name: High Council of the Supreme Court (in Dari: شورای عالی ستره محکمه) can decide about such a NDS request or whether a full session of all of its nine members needs to take a decision.(3)

The Annex to the Criminal Procedure Code does not require any defence files to be presented or indeed to allow for anyone to argue for the detainee. In effect, this makes the procedure just an exchange of letters. Nor are there any other safeguards in the law against rubber-stamping requests. There are concerns that the session of the High Council (which do not take place every day and where other issues also need to be discussed) might not provide enough time to carefully study each case file. In particular, when the entire High Council of the Supreme Court needs to evaluate the credibility of the evidence, assess the potential threat a person might present and then come to a collective and reasoned decision.

How the Government justifies detention without trial

It is now almost three years since Afghans were last officially detained without trial on Afghan soil. The US had put a great deal of pressure on then President Karzai and his government to continue the US practice, but this was ultimately banned by Karzai who said it breached Afghan law. In the subsequent power struggle with the Americans, Karzai managed eventually to wrest control of Bagram’s Afghan detainees and, since 25 March 2013, they have had to be either put on trial or freed. (4)

Now, however, President Ghani appears to have decided to revert to the old practices. Hence, the decree came as a surprise to those who work on rule of law and detention issues, especially as Ghani has been among those criticising the US’s use of indefinite detention without trial at Guantánamo and, formerly, at Bagram. Human Rights Watch said it was “incomprehensible” that he would now introduce this draconian procedure to Afghanistan. (5) Detention without trial is an extreme measure for any state to take, but it is particularly risky where weak rule of law makes the power open to abuse. For President Ghani, however, it is the very weakness of the judicial system which, he said, led him to introduce the new powers: “We are dealing with a weak judicial system… sentences are reduced because of corruption in the courts… our security forces thought this was a mockery and people were getting out [of prison] with impunity….” (6) He added there had been “a need for a signal in the time of national emergency.” Despite the obvious need to have effective means of dealing with terrorism, this looks like a very risky way to try to do that, and here is why…

Problems with Article 10 of the decree

The issues with article 10 seem to be two-fold. First, in general, detention without trial is inherently problematic and a serious step for a state to take. Secondly, and more specifically, there is concern about the lack of defence lawyers, the ease of the process, the insufficient oversight and the absence of safeguards to ensure detainees cannot be ‘forgotten’ in Ghani’s decree.

Added to this, the Afghan context makes detention without trial particularly problematic. Currently, the war looks open-ended. This prompts the question of when and how an individual may no longer be deemed a threat. The Taleban and other militants are not identified by uniform or membership card, but mingle amongst the civilian population. This makes false arrests and false accusations easy. The decree’s language outlining what is needed to make an individual a terrorist suspect is scanty and vague: the NDS must just provide “reliable information” to the Supreme Court. Article 10 could thus very easily be used to frame another person – a business rival, a bothersome neighbour or a petitioner in a land dispute, for example, with false claims that could amount to ‘strong indications’ that this person is connected to the Taleban or Daesh (Islamic State).

There are already multiple problems with the Afghan law enforcement and judicial system when it comes to both ordinary and security crimes. Despite improvement over the past few years, Afghanistan continues to struggle to implement procedures to a satisfactory standard. This has been mentioned by the Afghanistan Independent Human Rights Commission (AIHRC), for example, for ordinary crimes and for security-related crimes by UNAMA. (See the February 2015 UNAMA report on the Update on the Treatment of Conflict- Related Detainees in Afghan Custody: Accountability and Implementation of Presidential Decree 129 – which focused on a population detained for security crimes.)

Is Article 10 even legal – or necessary?

The Laws of Armed Conflict (also known as International Humanitarian Law) acknowledge that a state may use preventative detention during wartime. For example, Additional Protocol II (APII) to the Geneva Conventions which Afghanistan ratified in 2009 says that, when a state is at war, it may deprive its citizens of “their liberty for reasons related to the armed conflict.” The first Memorandum of Understanding on handing over the Bagram detention facility from US to Afghan hands, in March 2012, (read the text here) nods to APII. However, APII does not necessarily make preventative detention legal in Afghanistan. It just makes it not a war crime per se. International Human Rights Law, such as the International Covenant on Civil and Political Rights, also recognises that some rights, including the right to a prompt trial if arrested, can be derogated from “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” (art 4, para 1). But…

The Afghan constitution already provides for such a suspension of rights during a state of emergency. Thus, President Ghani could have legalised internment by invoking article 143 (7) of the constitution and declaring a state of emergency. This is possible if there is “war, threat of war, serious rebellion, natural disasters, or situations similar.” The state of emergency can be declared in the whole country or in part of it and is permitted for two months (extendable) and with Parliament’s agreement. The president can then, with the agreement of the speakers of the Wolesi and Meshrano Jirga, and the Chief Justice of the Supreme Court make use of article 145 (8) which provides measures to suspend or restrict a number of constitutional provisions, including clause 2 of article 27 that says the due process of law must be followed in detention.

Both those drafting the constitution and the International Covenant on Civil and Political Rights clearly recognised that partially suspending the rule of law is such a serious step for the state to take that it should be in the context of a declared state of emergency. However, Ghani chose not to take this route. He may have rejected this option for political or practical reasons – too much publicity, too many possible naysayers and too much potential political fallout (a state of emergency is a measure of last resort – and not utilized to ‘only’ suspend some legal provisions). But, by doing so, he has opened himself up to the accusation that he has violated the constitutional right to a trial.

More rights lost or curtailed with this decree

The other articles of Decree 76 deal with those whom the state does want to put on trial for terrorist crimes, for crimes against internal and external security and where sufficient evidence is available to do so. What the other articles of the annex do, however, is to expand many of the current time frames and provisions that are within the international norms to an extent that now they could be considered illegal. The most important ones are those that extend the powers of the state with regards to:

Covert Intelligence (article 3)

Article 3 deals with covert intelligence. Up until now, written permission (or oral permission for counter-narcotics-related activities) had to be obtained from the prosecutor’s office for any “covert detective operations,” such as wire-tapping. There is now no need for prior permission. Instead, the police or NDS can conduct wire-tapping of anyone they suspect of terrorist crimes or crimes against internal and external security for up to five days before they have to request permission from anyone to do so. Only on the sixth day do they need to have obtained a “verification of the lawfulness of their activities from the relevant division of the Supreme Court through the Prosecutors Office.”

This verification can be based on evidence collected during the first five days of surveillance. Article 3 remains silent on what happens to any intelligence if the continued collection of it is not deemed lawful – will it have to be destroyed, or is it still permissible to use in court as ‘reliable information’ for indefinite detention, even though the collection of further covert intelligence has been denied? Article 3 also fails to outline what will happen if covert intelligence operations are continued without permission after the five days. This lack of precision leaves gaps that could be easily utilized to circumvent any effective controls on the covert intelligence gathering process.

Pre-trial detention lengthened (articles 4 – 6)

Security personnel now have ten days “after learning about the occurrence” of a terrorist crime, or after the arrest of a suspect, before they need to hand over “the suspect and their activity report, documents, evidence and other collected substantiating materials” to the relevant prosecution (art 4, para 1). This more than triples the maximum period of pre-trial detention, from the current 72 hours (as per article 87 of the Criminal Procedure Code). International criminal procedure norms, according to the International Convent on the Civil and Political Rights, advocate a maximum of 72 hours before a suspect should be charged, released or further permission sought for detention. Although security personnel now have ten days to hold a suspect, according to article 5, they must still inform the prosecutor of the arrest within 24 hours.

After 72 hours of police or NDS detention, the prosecutor previously was allowed to request additional time for their investigation under existing law. The 2014 Criminal Procedure Code (article 100) allowed a judge to accede to a request for an additional seven days in the case of misdemeanours and 15 days for felonies. For terrorist crimes, these seven additional days for investigating misdemeanours have now, based on article 6 of the Annex, turned into 30 days, and the 15 days for felonies has turned into 60 (ie from two weeks to two months). A person suspected of involvement in a terrorist crime can now spend up to 70 days in custody before seeing a judge. While, under the existing Criminal Procedure Code, a total of 78 days of pre-trial detention was possible, the last 60 days at least had to have been approved by a judge and required the suspect and his or her defence lawyer to be present in court.

Other articles

Article 8 of the annex titled “Detention of the Accused during Trial” outlines the maximum number of days for each phase of the trial for the Primary, Appeal and Supreme Court – stating in paragraph 2 that the total period of detention during trial for all three stages cannot exceed 210 days. While the commitment to process a trial, so that detainees are not held for longer than necessary, is laudable, the timeline in the annex appears to be unrealistic. The setting of such a timeline is also not necessary, as due process often requires time and should not be dictated by a schedule. Such a timeline is not even set for trials in countries without the challenges of the Afghan judicial system, which tends to be plagued by delays and backlogs. A strict following of this provision threatens to harm, rather than help, due process.

Article 9 of the annex designates the Justice Centre in Parwan (at Bagram Airbase) as the venue for any primary and secondary stages of the counter-terrorism court – this means that all trials to do with terrorism or crimes against external and internal security must be held there, without exception. (9) Generally, prosecution takes place in the same geographic location as where the crime was allegedly committed. Given the good reputation of the Justice Centre in Parwan by Afghan standards and the extensive experience among judges, prosecutors and notably defence lawyers, of dealing with these types of cases, the move to Parwan might be positive. The Justice Centre in Parwan was already dealing with the majority of terrorist crimes before Decree 76 came into force. There is the concern, however, that it might become overwhelmed with the number of cases, particularly as ‘crimes against internal and external security’ is a rather broad term. Already, there are delays with the release of prisoners who have served their time, but have not been released yet. (10)

Article 11 – 13 contain additional provisions, such as bans on non-prison terms or pardons for those convicted or terrorism or crimes against external and internal security and an authorisation to seize convicts’ assets according to the Law on Prevention of Money Laundering and Proceeds of Crimes. Again, for these provisions, there is no clear indication of how a suspect under the new decree can contest or reverse these measures. (11)

Why is this a ‘dangerous’ decree?

The new powers given to the state in this decree would be disquieting even in a stable system with a good record on the rule of law. In the Afghan context, the annex is likely to present a true challenge to upholding human rights. The AIHRC has already raised concerns pointing out that the article 10 of the annex to the criminal procedure code contradicts the human rights standards and norms. As evidenced by various reports on the Afghan system, such as UNAMA’s “Update on the Treatment of Conflict-Related Detainees in Afghan Custody: Accountability and Implementation of Presidential Decree 129“ in February 2015, or even recently released information by the AIHRC (see here), it is clear that, currently, the Afghan state cannot even efficiently and accurately implement the rules and regulations already in place.

Adding the more complicated and often ambivalent and vaguely formulated provisions of Decree 76 to the current legislation will not improve the overall situation. For example, it is not unheard of for files, and even detainees, to go missing ahead of, or even during, a trial, or for detainees to not be released after the sentence is over, or when they have been acquitted. It is a system where the powerful can easily use the law to oppress the powerless, where bribes or pressure on police, NDS, prosecutors and judges are used by strongmen to get the ‘right’ judicial outcomes. To then introduce new procedures that provide far less oversight and virtually no opportunities for defence appears to be a reckless loosening of what laws and protections Afghans (and foreigners living here) do enjoy. For example, according to the 9 December 2015 statement by the AIHRC, “at the moment more than 300 detainees in Bagram prison [aka Justice Centre in Parwan] have completed their sentences but are still incarcerated.” Afghanistan may be in a dire position vis-à-vis a brutal insurgency, but interning citizens runs the risk of being completely counter-productive.

President Ghani, in the meantime, has suggested that it was impossible for violations of the state’s new powers to take place, since human rights groups would be closely monitoring the implementation of the new law. “[Their] voice is not absent in Afghanistan,” he said in a television interview, “[their] voice is present and paid attention to. Countries get away with this when there is no voice. When there is voice, accountability follows.” However, normally, checks, balances and safeguards would be included as statutory obligations in the legislation, rather than relying on non-governmental organisations – with no statutory authority – to prevent miscarriages of justice.

Moreover, the presence and “voice” of human rights organisation has not been able to prevent other abuses from recurring. There has been, for instance, consistent evidence of the police and NDS using torture against terrorism suspects, as documented by UNAMA and AIHRC and of elements in the state manipulating the justice system to protect themselves or to deal with rivals. Human Rights Watch’s Patricia Grossman, thus cautions, “This presidential decree attempts to end-run the legal system and could put detainees at of risk of grievous, unlawful abuses.”

The fact that there were already contradictions between the process as outlined in the new law and how President Ghani described it, is also potentially worrying. For example, the decree says those to be detained without trial “shall be kept in a special place under the supervision of the prosecutor, separate from the detention centre and prison” (art 10, para 4). Ghani, however, in the same interview said the Supreme Court would have oversight and, rather than detainees being held in a place separate from detention centres or prisons, they will be held at “the Bagram, Parwan detention facility that is specifically geared to provide maximum access to rule-based approaches.” (12) There would be “no black sites,” he stressed. However, the point of article 10 paragraph 4 appeared to be that suspects would be housed separately from convicts or those going to trial, but still under the prosecutor. (13)

Considering the (deteriorating) security situation in Afghanistan in 2015, it is understandable that the state feels the need for more robust legislation and associated procedures to deal more effectively with those who have, or are planning to commit terrorist crimes against the state. But the questions arise as to whether these are really necessary, given the current robust laws in place and the legal options provided by the constitution to suspend some freedoms in the case of an emergency. Therefore, the introduction of a regime of detention without trial and the extension of pre-trial detention beyond international standards risks making a system with already serious challenges much worse.

Next steps for this decree

Every decree signed by the Afghan president automatically has the force of law. This is also the case with the annex to the Criminal Procedure Code that has already been published in the Official Gazette. However, parliament still has the option of rejecting it with a veto (under article 79 of the Afghan Constitution). If, however, it does not take such action, the decree will remain in effect.

Since October 2015, when the decree was published in the Official Gazette, it could have been considered by the judiciary commission, which is tasked with reviewing decrees and recommending members of parliament to either veto or uphold them. If the decree is upheld, it has the force of legislation, since both president and parliament have agreed to it.

At the time of writing, the parliament has already rejected several of the decrees put forward by President Ghani during the last parliamentary recess session, mostly using article 79 of the Constitution, which precludes presidential decrees “in matters related to budget and financial affairs.” The rejected decrees dealt with a variety of issues, including ministerial caretakers, taxation on mobile phone cards, amendments to the customs laws, the establishment of an economic advisory unit and amendments to the electoral laws.

For the annex to the Criminal Procedure Code, there are legal grounds to justify a rejection of the decree, apart from article 79 (which might not work for this decree as there are no explicit but possibly implicit, budgetary matters). For example, based on article 7 of the constitution, (14) Afghanistan is obliged to observe its international commitments (eg International Convent on Social and Political Rights). Some of the articles in the new annex violate Afghanistan’s obligations. When Afghanistan ratifies a particular treaty or convention, it implicitly agrees to adjust its national legislation to conform to these commitments and this needs to be done through an official amendment. Article 7 of the constitution, by extension, also requires that new laws do not contradict Afghanistan’s obligations – as the Annex to the Criminal Procedure Code does.

So, while the parliament has several grounds on which to justify a rejection of the Presidential Decree 76, there are concerns whether the judiciary commission is able to effectively present these reasons and, thereby, underline the dangers of this decree. In light of statements by the palace, such as by Sayed Zafar Hashemi, the deputy spokesperson, who presented this decree as necessary to protect the Afghan population from terrorism, there is the concern that political pressure might be exerted on members of parliament to avoid a rejection of the decree.

On 16 January 2016, the head of the judiciary committee, Haji Abduh, told AAN that the judiciary commission had only recently started to discuss Decree 76, but that this discussion had not been finalised yet as “it is a very sensitive matter that requires thorough consideration.” As the parliament goes into its winter recess, which lasts for 40 days, on 21 January 2016, the decree will remain in force – meaning detention without trial can take place and all other new powers apply – until at least the beginning of March 2016. Haji Abduh also indicated that, even after the recess, the judiciary commission would still need to get extensive input on the decree from experts before it will be ready to have the decree voted on in parliament. So, while there is hope that the efforts by civil society and other stakeholders can still bring about a rejection, or at least an amendment of the decree to prevent detention without trial to Afghanistan, the already on-going implementation of the decree in the meantime cannot be underestimated in terms of its potential for human rights violations.

(1) Article 1 of the Annex of the Criminal Procedure Code says suspects of the following offences from The Law for Crimes Committed against Internal and External Security can be detained without trial: national treason (article 1); espionage (article 2); terror – ie assassination of state personality or political, social, or religious leader, in order to sabotage and weaken the people’s sovereignty (article 3); sabotage – ie intentionally or unintentionally committing acts to weaken state authority, or key economic activities or disrupting the activities of state or social organisations (article 6); anti-state propaganda – ie for personal purposes and for the purpose of weakening the people’s authority, intentionally spreading false news or self-serving allegations, embarking on provocative propaganda, or oral and written propaganda or the possession of such publications (article 7); propagating war in any form (article 8); organised activities against internal and external security – ie forming, organising or administering an underground/secret organisation in order to commit crimes, or becoming a member of such organisation or establishing contact with such an organisation in order to achieve illegitimate goals, or encouraging and persuading others by physical or mental pressure (article 9); crimes against the diplomatic relations of Afghanistan with foreign countries – ie any act that harms or damages the bi-lateral relations of Afghanistan with foreign states or leads to the breakage of the diplomatic relations between Afghanistan and foreign nations (article 10); wilfully moving and administering Armed Forces divisions without an authoritative order or legitimate reason, in order to commit a crime, or despite an order to stop or disarm continuing to act (article 12); exposing state secrets without any intention of committing treason to homeland (article 13); looting, banditry or gangsterism (article 15); illegal occupation of public facilities (article 18); assisting the force of the enemy to gain material or spiritual benefits (article 23); not passing on valid information about crimes of upcoming crimes of national treason, terror, espionage, sabotage, disruption, war propaganda, anti-state activities, banditry and forgery (article 28).

Offences not listed in the Annex to the Criminal Procedure Code include destruction (art 5), hostage taking (art 16), collecting money and material assistance for anti-state organisations (art 20). The full text of “Crimes against Internal or External Security” in English is here.

(2) Article 10, paragraph 1, point 1 refers to “detective” activities, meaning detection (in Dari “کشف“) of crimes, rather than investigation (in Dari “تحقیق”). In the Afghan context, police and NDS detect the crime and prosecutors then investigate it after a suspect has been arrested and his/her file has been handed over to the prosecution.

(3) Unless the Supreme Court later interprets the provisions in article 10, paragraph 3 as meaning that only one or more judges of the High Council can make these decisions. Ghani has also referred to the entire Supreme Court making the decision.

(4) In 2012, when the Afghan state started to gain control of Bagram prison, it initially signed up to detention without trial and for several months, as AAN reported, the Afghan state did indeed hold Afghans without trial. However, when President Karzai found out that he had unwittingly agreed to this practice, he banned it, saying it breached Afghan law.

The exception to this are the seven Afghans still held by United States forces in Guantánamo and at least four foreign detainees still held by the Afghan state at Bagram (officially known as the Detention Centre in Parwan) also without trial.

(5) “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 Grossman from Human Rights Watch. “Afghanistan needs to take steps to address terrorism and protect public safety, but not by denying Afghans the right to a fair trial.”

(6) Taken from the interview with Ashraf Ghani in Deutsche Welle’s “Conflict Zone” programme, recorded on 16 December 2015. The relevant part is from 15:58 to 18:21. The transcript (by AAN) is as follows:

Tim Sebastian: But you did find the time to propose a pretty draconian amendment to the Criminal Procedure Code, didn’t you? That would allow for indefinite detention without trial. Why when you were so critical of American methods in Guantanamo, do you adopt the same kind of method –

Ashraf Ghani: – we have not –

TS: – indefinite detention without trial

AG: ­– we are dealing with suicide bombers on a daily basis, we are dealing with a weak judicial system, where people are given one year sentences in the primary court, their sentences are reduced because of corruption in the courts to six months or a year and they did not serve, our security forces thought this was a mockery and people were getting out with impunity – and repeatedly committing crimes. Because of this there was need for a signal in the time of national emergency and to be able to do this ­– But the procedure, again you need to understand and I respectfully bring it to your attention, it is the Supreme Court that makes the decisions and not the administrative part.

TS: But human rights groups think it is a mockery because there is no specifying if the detainee will have access to family members or a lawyer or the right to examine the evidence against him, or the right to challenge this evidence

AG: The court system can ensure [this] once the Supreme Court is charged with this and we have an excellent chief justice whose integrity and commitment to law is second to none, {he] can ensure this.

TS: And they are kept supposedly in a special place under the supervision of the prosecutor, separate from detention centres and prisons. What kind of place are these, are these black sites? Á la CIA?

AG: No black sites, it’s the Bagram, Parwan detention facility that is specifically geared to provide maximum access to rule-based approaches

TS: Without oversight?

AG: Oversight is that by the Supreme Court, I just brought this to your attention.

TS: But how do we know that they are going to do that properly?

AG: Ask the Supreme Court!

TS: And avoid the unlawful abuse that we have seen at other detention centres.

AG: You think that the human rights community is silent? With the megaphones that they have? There is going to be silence…any abused? Voice is not absent in Afghanistan, voice is present and paid attention to. Countries can get away with this when there is no voice. When there is voice, accountability follows.

(8) Article 145 of the Afghan Constitution states: During the state of emergency, the President can, after approval by the presidents of the National Assembly as well as the Chief Justice of the Supreme Court, suspend the enforcement of the following provisions or place restrictions on them:

Clause Two of Article Twenty-Seven (No one shall be pursued, arrested, or detained without due process of law.) Article Thirty-Six (The people of Afghanistan shall have the right to gather and hold unarmed demonstrations, in accordance with the law, for attaining legitimate and peaceful purposes.); Clause Two of Article Thirty-Eight (In case of an evident crime, the responsible official shall enter or search a personal residence without prior court order. The aforementioned official, shall, after entrance or completion of search, obtain a court order within the time limit set by law.)

(9) The Justice Centre in Parwan on the Bagram airbase has pre-trial detention and prison facilities, along with prosecutors offices and a courthouse: it is where the United States held its detainees without charge for more than a decade and where the Afghan state now tries and houses most terrorist suspects and convicts.

(10) While article 9 paragraph 2 acknowledges that the juvenile code applies to the confinement of juveniles falling under this decree, it does not detail explicitly which procedures will be applied during the investigation and interrogation of juveniles.

(11) Article 11, which states “Convicts of terrorist crimes and crimes against internal and external security may not benefit from the decrees on pardoning and commutation of penalties,” ensures that, unlike in the past, those rightfully convicted cannot find a loophole to secure their release. However, given the increase of the other powers in this annex there is the concern that, in cases of miscarriages of justice, it will be more difficult for those individuals to be released.

Article 12, which covers “Proceeds of Crimes,” make reference to “suspects and accused of crimes stated in this annex” and tasks “Security Personnel, prosecution offices and courts” “to identify the properties [of those individuals] which are under their possession or have, somehow been transferred to other persons and determine the proceeds of the crime and take action to seize, freeze and confiscate such proceeds, in accordance with the Law on Prevention of Money Laundering and Proceeds of Crimes.” There is no mention of how those affected by this provision are able to regain possession of their property.

Articles 13 on “Restrictions” outlines that “provisions on Alternatives to imprisonment, suspension of enforcement of sentence, temporary release, release on parole, and granting of time-offs shall not be applicable to convicts of terrorist crimes against internal and external security.”

(Article 14 only specifies the immediate enforcement of all the provisions in the annex and its publication in the official gazette).

(12) Although the official designation for the location is Justice Centre Parwan or Justice Affairs Centre Parwan, it is still commonly referred to as Bagram Jail, Bagram Prison or Bagram Detention Centre. This might also explain Ghani’s “Bagram, Parwan” reference.

(13) Housing those in detention without trial in a separate facility from the suspects under investigation by the prosecutor for terrorism crimes (pre-trial detention) or convicted terrorists (prison) seems prudent, in order to prevent these populations from mixing and to thereby risk potential radicalization. At the same time, as HRW points out, “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.“

(14) Article 7 of the Afghan Constitution states: “The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.”

Text of the Presidential Decree 76 – in Dari (Annex1 of CPC-Official Gazette 1190) and English (2015 09 Pres. Legis. Decree 76, Annex 1 to CPC English- 2016 Jan. 11 v.4 from UNAMA)