The detention center has come to symbolize President Hamid Karzai’s increasingly emphatic vows to secure Afghan sovereignty. But while the formal handover transferred all prisoners to Afghan custody, it has hardly produced a stand-alone Afghan justice system to try them. Afghanistan has retained a controversial American practice that will keep about three dozen detainees imprisoned without trial. Even the court’s top judges and attorney say they remain dependent on foreign assistance to operate.
“Without the coalition, there is no way this court can survive,” said one of the court’s top judges, Hayatullah. “Afghan forces cannot even transport the detainees here for their trials.”
As the 2014 withdrawal of most U.S. troops approaches, the court is just one example of several vital but fragile Afghan institutions, including hospitals and the fledgling army, that might struggle or even collapse without American support. If Afghanistan cannot provide social services and good governance, not to mention courts that provide fair trials and keep dangerous militants behind bars, there are real worries here that security could unravel. Already, the Afghan court at Parwan releases more than one in four defendants it tries.
The U.S. military and State Department are rushing to transform the Parwan population, composed of battlefield prisoners captured by U.S. forces and held under international law, into Afghan criminal defendants. More than 3,000 U.S. detainees, some held without trial for years, had already been transferred to Afghan custody before this week’s agreement added a final 700, including 30 to 40 the United States considers “enduring security threats” ineligible for either trial or release.
Karzai’s government had refused to guarantee it would not release the high-threat prisoners, dismissing U.S. concerns that they would return to the battlefield and arguing that there was no provision in Afghan law to hold them without trial. Last week’s agreement came only after the Pentagon agreed to accept what it called “private assurances” from Afghanistan that they would remain in custody, at least until the U.S. combat withdrawal.
Both sides said the agreement, which they declined to release publicly, provided for bilateral “consultation” when they disagreed about a potential release. That is criticized by some Afghan judicial officials and human rights attorneys, who say detention without trial deprives suspects of a fair trial.
“It’s totally anathema to rule of law,” said Tina M. Foster of the nonprofit International Justice Network. “It used to be that the Afghan public was afraid to be sent to (Parwan) because they would never see the light of day. Now, it’s just an Afghan version of the same thing.”