“1.2 This Policy Statement, which is to be observed whenever UK Armed Forces undertake detention in an operational theatre reflects the importance which I attach to ensuring the humane treatment of those it is necessary to detain in the course of our operations. … 2.1 This policy applies across the MOD and the Armed Forces and to all detention activities undertaken in military theatres of operation. It sets out the minimum standards which must be applied. … 3.1 I require the Ministry of Defence and Armed Forces to: … (f) Ensure that Detained Persons are not transferred from UK custody to any nation where there is a real risk at the time of transfer that the Detained Person will suffer torture [or] serious mistreatment ….” … (f) Ensure that Detained Persons are not transferred from UK custody to any nation where there is a real risk at the time of transfer that the Detained Person will suffer torture [or] serious mistreatment ….”
“Cases of torture and ill-treatment of detainees held by the Afghan authorities continue to be reported. In this regard, the absence of effective oversight of the NDS is of particular concern”
“Over the past two years, Amnesty International has received repeated reports of torture and other ill-treatment of detainees by the NDS from alleged victims and their relatives, as well as a range of organisations including UN agencies. The organisation is gravely concerned [that in] the absence of effective investigations and prosecution of those responsible, a culture of impunity persists with victims having little hope of justice or redress. …”
“Despite the limitations, we are not aware of any reports of mistreatment at Lashkar Gah and the prisoners we have visited have all appeared to be in good health. Furthermore, the NDS appear to have a semblance of a system for handling people … Against this, however, it should be borne in mind that all convictions in Helmand are obtained on the basis of confession evidence, and the rule of law is considered the weakest sector within plans for the development of governance within the province. We therefore need a sense of balance in that the positive indicators above are against a pretty woeful backdrop insofar as respect for human rights and respect for the judicial process is concerned.”
“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.”
“It is the undertaking of the undersigned that the aforementioned bilateral arrangements are to be interpreted as permitting officials from each undersigned government (including officials from our respective Embassies, members of our armed forces, and others duly authorised to represent our governments) to enjoy access to Afghan detention facilities to the extent necessary to ascertain the location and treatment of any detainee transferred by that government to the Government of Afghanistan. On request, an official from one of the undersigned governments may interview in private any detainee transferred by that government to the custody of Afghan authorities. Access to Afghan facilities is to be permitted to organisations that are already afforded access under that government’s bilateral arrangements with the Government of Afghanistan including, where applicable, the International Committee of the Red Cross and Red Crescent (ICRC), relevant human rights institutions within the UN system, and the Afghan Independent Human Rights Commission (AIHRC).”
“[N]o detainee transferred to the NDS by the British Armed Forces will be transferred to any other facility belonging to the NDS or other Afghan authority without notification of the British Embassy in Kabul. In the unlikely event that the NDS wished to transfer a detainee to any other state, it would seek the prior written agreement of the United Kingdom via the British Embassy in Kabul. … [T]he NDS will allow representatives of the British Government, including members of the British Armed Forces, full access in private to any detainee transferred to the NDS by the British Armed Forces while such persons are in custody of the NDS. The NDS will also notify the British Embassy in Kabul promptly of any allegations of ill-treatment made by any detainee transferred to the NDS by British Armed Forces; will investigate promptly any such allegations or, at the request of the British Armed Forces, any allegations made to them; and will keep the British Armed Forces informed of the progress and outcome.”
“During the investigation it was found that incident happened by [a senior NDS official] who was the head of the department. [The official] was sacked from his post by NDS leadership due to his harsh behaviour. Since his dismissal he is living out of Afghanistan.”
“Whenever NDS arrest or receive a detainee from our international allies, [we] try to collect sufficient information to support the court, when we show the evidences and the supporting information to the detainees in the initial phase of the investigation they confess their involvement”
“NDS remains committed to respect the human rights and investigate any action that violates it”
“His colleagues at the NDS, on the other hand, sometimes need to get rough with their subjects, he added. ‘In these cases, these people need some torture, because without torture they will never say anything’, Col. Saddiqui said. Sadullah Khan, Kandahar NDS chief, initially denied all allegations of torture during a telephone interview last week. After repeated questions, however, Mr Khan acknowledged that minor mistakes may have occurred during interrogations. ‘We never beat people’, the NDS chief said. ‘Maybe small things happened, but now we’re trying to leave those things behind.”
“… [In] the critical days after a detainee had been transferred to the Afghan intelligence service, nobody was able to monitor them. … During those crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured. The most common forms of torture were beating, whipping with power cables, and the use of electricity. Also common was sleep deprivation, use of temperature extremes, use of knives and open flames, and sexual abuse – that is, rape. Torture might be limited to the first days or it could go on for months. According to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure.”
“While it is possible that these complaints were fabricated, it is noteworthy that the methods of torture described by detainees are consistent with the type of torture practices that are employed in Afghan prisons, as recorded in independent country condition reports”
“In cases which rest not on a personal risk of harm (for example, where the police or prison staff would have cause to target a claimant) but on a risk of serious harm said to face people generally, for example in this case all persons detained pending trial, it cannot be said that they would face a real risk of serious harm unless in that country there is a consistent pattern of gross and systematic violations of their human rights whilst in detention.”
“[a]bsent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant was returning was one in which such violence was generally or consistently happening”, and “[t]he fact that ill-treatment or misconduct might be routine or frequent would not be enough” (para 8). Hariri was followed in Batayav v Secretary of State for the Home Department (No.1)[2003] EWCA Civ 1489 , a case about prison conditions. But in Batayav (No.1) Sedley LJ, with whom the other members of the court agreed, made these important cautionary remarks about the language used by Laws LJ in Hariri: “37. I want to add a word, however, about the evaluation of conditions which are alleged to create a real risk of inhuman treatment. The authority of this court has been lent, through the decision in Hariri, to the formulation that ill-treatment which is ‘frequent’ or even ‘routine’ does not present a real risk to the individual unless it is ‘general’ or ‘systematic’ or ‘consistently happening’ …. 38. Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT’s more cautious phrase in Iqbal, ‘a consistent pattern’, which the court in Hariri sought to endorse. 39. There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is.”
“114. I do not consider that these decisions establish a principle that assurances must eliminate all risk of inhuman treatment before they can be relied upon. It is obvious that if a state seeks to rely on assurances that are given by a country with a record for disregarding fundamental human rights, it will need to show that there is good reason to treat the assurances as providing a reliable guarantee that the deportee will not be subject to such treatment. If, however, after consideration of all the relevant circumstances of which assurances form part, there are no substantial grounds for believing that a deportee will be at real risk of inhuman treatment, there will be no basis for holding that deportation will violate article 3. 115. That said, there is an abundance of material that supports the proposition that assurances should be treated with scepticism if they are given by a country where inhuman treatment by state agents is endemic. This comes close to the ‘Catch 22’ proposition that if you need to ask for assurances you cannot rely on them. If a state is unwilling or unable to comply with the obligations of international law in relation to the avoidance and prevention of inhuman treatment, how can it be trusted to be willing or able to give effect to an undertaking that an individual deportee will not be subject to such treatment?”