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Can Pakistan Be Held Accountable for American Crimes?

Posted: 10/06/10 12:56 PM ET

This week in Lahore, Pakistan, the legal charity Reprieve launched a lawsuit against the Pakistani government for helping the US military to abduct and imprison seven Pakistani nationals without trial or charge.

The men have been incarcerated for up to eight years, with little or no contact with their families. One was just 14 at the time of his disappearance. Several are in an extremely vulnerable mental or physical condition. None has been charged with any offense.

And all are being held in the American military prison on Bagram airbase, near Kabul, Afghanistan -- despite the fact that most of them were not in Afghanistan when abducted and have no connection with the country. They are victims of the continuing process of "rendition": illegal inter-state prisoner transfer, made famous by the CIA in the early years of this century.

Why are they there? Their stories, revealed to Reprieve investigators by their grief-stricken families, are diverse. One was a goat-herder, injured and brought to Bagram after an aerial bombardment in the region where he was tending his flock. One dropped his father off in a Karachi hospital -- over 1000 km (about 621 miles) from Bagram -- and was never seen again. Several simply failed to return from business trips or visits to family members. One, captured by the British in Iraq in 2004, was handed over to the US and rendered to Afghanistan in circumstances which the UK government has since admitted are a matter of "regret".

In Afghanistan, the country to which these prisoners have been forcibly brought, the situation continues to deteriorate. Leaked data indicates an expanding spiral of violence and insecurity. Aid agencies find the country increasingly perilous. And the population of Bagram prison grows swiftly.

In January 2009 Bagram held just over 400 people. By December 2009 it had grown to about 750; it now stands at some 1100. And yet the more it grows, the more its managers say they think it should shrink. In August 2009, the then-US commander in Afghanistan General Stanley McChrystal wrote that in Bagram "hundreds are held without charge or without a defined way ahead. This allows the enemy to radicalize them far beyond their pre-capture orientation." Later the same year, Mark Martins, the deputy commander for US detention operations in Afghanistan, stated that only 10-20% of the prison population could be considered "hard-core" or "irreconcilable" Taliban fighters, and that the rest were "candidates for eventual rehabilitation and release".

But how can one leave Bagram? Following a US appeals court decision in May, the prison remains beyond the reach of an American habeas corpus writ. Several habeas petitions, previously filed, are now on ice until the Supreme Court pronounces on the matter -- if indeed it decides to do so. In the meantime, US courts offer little likely recourse for Bagram prisoners. The prison's location in Afghanistan ensures its status as a site for indefinite detention -- even for those captured elsewhere.

The US is experimenting with solutions which do not require it to admit that it should charge prisoners with anything specific, or keep them for any defined duration. Instead it offers opportunities for prisoners to participate in a "Detainee Review Board", in which they are told some (but not all) of the allegations against them and given an opportunity to rebut them. If successful, they can be released, their status altered to "No Longer Enemy Combatant".

Despite the increasing level of violence in Afghanistan, the US is scheduled to transfer control of most of the prison population to the Afghan government by mid-2011. According to Robert Harward, the commander of Bagram prison, America will maintain control of a "subset of unilateral US detention operations" in a separate unit on the base. Politicians speculate that this unit could in future also act as a renditions location for prisoners captured in operations outside Afghanistan. What has been less widely broadcast is that it already does.

Repeated attempts within the US legal system to reunite such victims with their rights gain little traction. Other countries may take their legal responsibilities more seriously.

The Constitution of Pakistan obliges the government to ensure the security of its people, their right to due process, dignity and protection from torture. This includes a duty to intercede on behalf of their citizens in illegal custody. Reprieve is petitioning the Lahore High Court to demand redress from the Pakistani government, ministries and agencies for so far failing to uphold these rights.

The Pakistani government's response is scheduled for Oct. 19.