While Guantanamo Bay was widely deplored by the international community, little attention was paid to a detention centre in Afghanistan where far more prisoners were held in reportedly worse conditions.[1] The US held up to 1,700 prisoners at Bagram Detention Centre in Afghanistan with reports of widespread torture and abuse at the facility.[2] These prisoners were held for years – starting in around 2003 up till 2014 when the Americans handed over the facility to the Afghan government.[3] There were a number of foreigners held as prisoners at the site – aside from Afghan Nationals, there were around 60 international detainees, of which about 45 were Pakistanis.[4] These Pakistani prisoners at Bagram were picked up in a variety of circumstances.[5] Some were visiting Afghanistan on business trips, others were on religious pilgrimage to Iraq, some were minors, or very old, or mentally ill.[6] Kept in cages, at least two of these men were killed by American jailers through torture.[7] This article discusses the plight of Pakistani detainees at Bagram and the recourse available to them under International Humanitarian Law (‘IHL’).
Conditions at Bagram
Detainees were kept in shackles, forced to stay awake for days, made to kneel in painful positions for long periods of time, beaten, and doused in freezing water.[8] One such detainee, who spent 8 years at Bagram, suffered a permanent injury to his shoulder as US soldiers dragged him. Held for years, these detainees have not had access to a lawyer or been charged with any crime.[9] Mentally ill prisoners were kept in solitary confinement for years.[10] While the International Committee of the Red Cross facilitated phone calls to their families, the prisoners never managed to discuss the details of their detention.[11] Prisoners and their families were afforded no information regarding the grounds of their detention.[12] They were not told when and how grounds for challenging their detention in a court of law would arise.[13] Many reported that a Bagram Detainee Review Board found them innocent, but the US government did not approve their release.[14] Such hearings would occur every six months despite the previous hearing recommending release. US Courts also decided not to give Bagram detainees the right of habeas corpus.[15] As a result, prisoners could not be produced before a court to challenge their detention. This meant that no entity other than the International Committee of the Red Cross could visit those detained, leaving them to languish in prison for years without any recourse or hope.
The Release and Repatriation of Pakistanis at Bagram
In 2010, Justice Project Pakistan (‘JPP’), a non-profit law firm, filed a petition in the Lahore high Court, demanding that the Pakistani government be held accountable for failing to protect the rights of its citizens who had been detained at Bagram since 2003.[16] They were successful in securing the release of the 43 detainees after four years of proceedings in 2014.[17]
Over the course of 2014, a total of 39 Pakistani detainees were released from Bagram but the whereabouts of nine of them remained unknown.[18] JPP filed a petition in the Lahore High Court on behalf of the families of the nine Pakistani detainees.[19] Despite release from the Bagram Prison, the Pakistani authorities had not allowed the detainees to meet their families or released their whereabouts.[20] The Court directed the interior ministry to submit information regarding the released detainees’ whereabouts.[21] While many detainees were ultimately released and repatriated to Pakistan in 2014, this release and repatriation has been incredibly slow.[22] Some have remained imprisoned for years despite approval from the Bagram Detention Board for release.
Upon release without any charges, the prisoners have suffered additional hardship as a consequence of their long-term detention.[23] Due to their permanent physical injuries or the stigma associated with them, they have been unable to find employment.[24] Many are still obligated to report their activities and whereabouts at the police station weekly. [25] There has been no official statement of apology by the US, Pakistan, or Afghanistan. While they were promised compensation for their wrongful detention, none have received any.[26]
The Application of IHL
Status in an armed conflict is incredibly important under the laws of war, as your primary status, i.e., whether you are a civilian or a combatant, determines your targetability, your secondary status upon capture, and the legal framework which applies to you. The Pakistani detainees at Bagram could be combatants which belong to an armed force or a group under Article 4 of the Third Geneva Convention. This would mean they are to be accorded Prisoner of War status upon capture with all the attendant protections in the Third Geneva Convention. Or they would be civilians who are not combatants and are entitled to protected person status upon capture, receiving all the protections in the Fourth Geneva Convention. While no determination was made in this regard, whether they were POWs or protected persons, their rights granted under IHL were violated.
This section will explore whether those detained could qualify as civilians or combatants and they protections they would be afforded under either status:
Combatants and POW status
The criteria for combatant status in the Geneva Conventions is derived from the definition given to Prisoners of War under Article 4 of the Third Geneva Convention. This provision affords the status of POW to members of armed forces of a party to the conflict, members of militias or volunteer corps forming part of such forces, and members of regular armed forces which profess allegiance to an unrecognized authority by the detaining power.[27] Furthermore, if there is any doubt with regards to the status of a detainee, they shall enjoy the status of POW until a competent tribunal decides otherwise.[28] Prisoner of War (‘POW’) is a protective status afforded to combatants who fall into the hands of the adverse party in international conflicts.[29] Protections afforded to this class of people include non-prosecution for taking part in hostilities, prohibition on detention as punishment, release and repatriation without delay upon end of hostilities, humane treatment under all circumstances, prohibition on torture and violence, and minimum conditions of detention e.g., food, hygiene and accommodation.[30] Both civilians and combatants have been afforded similar protections with regards to treatment and conditions of detention under IHL.[31] Most significantly, Article 75 of the Additional Protocol I provides for humane treatment of individuals for combatants or civilians that do not fall within the definition of POW.[32] Therefore, even where POW status is not accorded to an individual, they still do not fall outside the scope of IHL.
The US argued that POW status was inapplicable to its detainees and instead they qualified as unlawful combatants because they participated in hostilities but failed to distinguish themselves.[33] Thus, they are excluded from combat immunity. This created a legal black hole for Pakistani detainees at Bagram as they were neither recognized as combatants nor civilians. The US wrongly argued in favour of a third category which leaves a number of individuals outside the scope of the protections of IHL which incorrectly applies the law. Not only is there no third category, even where an individual is not deemed to be a POW, Article 75 API applies. He or she remains protected under IHL.
Civilians
It is likely that the Pakistani detainees at Bagram were civilians as they did not qualify as combatants. The Fourth 1949 Geneva Convention (‘Fourth Geneva Convention’) affords civilian detainees extensive protections.[34] Articles 79 to 135 provide that civilians may only be interned as a security measure and never as a punishment.[35] If internment is deemed necessary, the conditions must be comparable to those set forth for prisoners of war. Such internment may be at an assigned residence.[36] Articles 89 to 91 provide that as internees, civilians must receive adequate food, clothing and medical care, and they must be protected from the dangers of war.[37] Article 106 provides that information regarding internees must be sent to the Central Tracing Agency.[38] Articles 107 and 108 condition that internees have a right to send and receive mail, and receive relief shipments.[39] They must be released as soon as their reasons for internment cease to exist.[40]
However, even if they were not deemed to be civilians, they would still be protected by Article 75 of Additional Protocol I. There is no legal black hole for them to fall into. Thus, the US violated IHL by denying the status of POW or protected person to Pakistani detainees, keeping them in inhumane conditions, employing torture, and delaying their release and repatriation upon the end of the conflict.
State Responsibility owed to IHL Violations
The aforementioned violations of IHL trigger various routes of recourse for the victims. As per part two of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (‘Draft Articles’), the State responsible for violations of IHL must cease unlawful conduct and make full reparation, which includes restitution, compensation or satisfaction.[41] Article 3 of the Hague Convention No. IV and Article 91 of Protocol I provide for financial compensation if the case demands it.[42] In the Chorzow Factory Case, the Permanent Court of International Justice held that reparation must constitute restitution and if this is impossible, a payment of sum as compensation must be awarded.[43] States are also responsible for investigating, prosecuting, and holding individuals responsible for war crimes.[44] The 1998 Rome Statute of the International Criminal Court (‘Rome Statute’) Article 8 deems torture and other inhume treatment as war crimes.[45] Such crimes may be investigated and prosecuted by any State or, under some conditions, by international courts as well.[46] The UN may also compel States to fulfill these obligations or establish tribunals to investigate IHL violations.[47] The International Law Commission has reported that these obligations may be owed to persons as well as states. The extent to which individuals can invoke this responsibility depends on each case.[48] They may present this entitlement through their national state and even every third state at the international level.[49]
In the case at hand, the victims have suffered irreparable loss. Aside from years of their life spent in jail, they have suffered permanent injuries which prevent some of them from finding any work. Such loss cannot be completely compensated through restitution. It is likely that the nature of their suffering will be assessed to qualify for financial compensation. Additionally, the torturous acts committed by the US qualify as war crimes. Thus, the Draft Articles require the state to investigate and prosecute the persons responsible for committing such acts.
However, given the reluctance to even acknowledge what was done to those at Bagram by either of the three governments involved, it is unlikely that we will see any form of reparation or accountability towards the victims.
Conclusion
The case of Pakistani Detainees in Bagram is a grave violation of IHL. Lawyers at firms like Justice Project Pakistan have worked hard for the well-being and release of the detainees. The next step is to strive for accountability and recourse to compensate for the years long suffering endured. IHL provides routes for compensation, and prosecution of the actors involved in the illegal acts. The victims of Bagram deserve this justice. However, given the attitude of their own state, it is unlikely that they will be represented at an international forum. It is even unlikelier that the US will prompt any investigations into the IHL violations and war crimes committed by its representatives in Bagram. However, it is time that the Pakistani government takes its responsibility towards its citizens’ well being seriously. The decades of US-appeasing foreign policy has done Pakistan few favours. The suffering of victims such as those of Bagram must no longer be ignored.
References
[1] Times T, ‘The Guantanamo Docket’ The New York Times (2022) <https://www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html> accessed 22 May 2022
[2] Golden T, ‘In U.S. Report, Brutal Details Of 2 Afghan Inmates’ Deaths’ The New York Times (2022) <https://www.nytimes.com/2005/05/20/world/asia/in-us-report-brutal-details-of-2-afghan-inmates-deaths.html>
[3] ‘The Gitmo No One Talks About’ (Salon, 2022) <https://www.salon.com/2011/06/04/bagram_obama_gitmo/>
[4] Clark K, ‘The ‘Other Guantanamo’ (8): A Full List Of Foreign Detainees At Bagram?’ Afghanistan Analyst Network (2014) (‘Full List Bagram’) <https://www.afghanistan-analysts.org/en/reports/war-and-peace/the-other-guantanamo-8-a-full-list-of-foreign-detainees-at-bagram/>
[5] Full List Bagram
[6] Full List Bagram
[7] Feniton J, ‘Pakistanis Describe ‘Hell’ Of Bagram Base Detention’ AlJazeera (2016) (‘AlJazeera’) <https://www.aljazeera.com/news/2016/7/20/pakistanis-describe-hell-of-bagram-base-detention>
[8] ‘“Enduring Freedom:” Abuses By U.S. Forces In Afghanistan (Human Rights Watch Report, March 2004)’ (Hrw.org, 2004) <https://www.hrw.org/reports/2004/afghanistan0304/index.htm>
[9] Belal S, ‘Innocent And Imprisoned: The Forgotten Pakistanis Of Bagram’ Dawn (2022) <http://Innocent and imprisoned: the forgotten Pakistanis of Bagram>
[10] Id.
[11] AlJazeera
[12] Belal S, and Rogers C, ‘Bagram Prison Inmates Deserve Clear Answers About Their Fates’ Open Society Foundations (2012)(‘Open Society Foundation’) <https://www.opensocietyfoundations.org/voices/bagram-prison-inmates-deserve-clear-answers-about-their-fates>
[13] Id.
[14] AlJazeera
[15] Full List Bagram
[16] Shah R, ‘Stories From Bagram Returnees And Their Families’ (Justice Project Pakistan 2019) <https://data.jpp.org.pk/ur/document/voauaji9y0o?page=11>
[17] Id.
[18] Web Desk, ‘US Releases 14 Pakistanis from Afghan Jail’ Samaa (30 November 2014) <https://www.samaaenglish.tv/news/516801>
[19] Correspondent, ‘Released: LHC Seeks Details on Ex-Bagram Detainees’ The Express Tribune (28 June 2014) <https://tribune.com.pk/story/754680/released-lhc-seeks-details-on-ex-bagram-detainees?amp=1>
[20] Id.
[21] Dawn.com, ‘Released Bagram Prisoners: LHC Directs Interior Ministry to Reply’ Dawn (3 June 2014) <https://www.dawn.com/news/1159743>
[22] Open Society Foundation
[23] AlJazeera
[24] AlJazeera
[25] AlJazeera
[26] AlJazeera
[27] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) Art 4 (A)(1), Art 4(A)(3), 12 August 1949, 75 UNTS 135
[28] Id, Article 5.
[29] ICRC
[30] ICRC
[31] ICRC.
[32] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. Article 75.
[33] Brett Shumate, ‘New Rules for a New War: The Applicability of the Geneva Conventions to Al-Qaeda and Taliban Detainees Captured in Afghanistan’ (2003) New York International Law Review Vol 18. No. 2 at 22 <https://ihl-databases.icrc.org/ihl/INTRO/470>
[34] ‘Prisoners Of War And Detainees Protected Under International Humanitarian Law – ICRC’ (Icrc.org, 2010) (‘ICRC’) <https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm>; International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287 (‘Fourth Geneva Convention’)
[35] Fourth Geneva Convention, Article 79-135.
[36] Id.
[37] Fourth Geneva Convention, Articles 89-91.
[38] Fourth Geneva Convention, Article 106.
[39] Fourth Geneva Convention, Article 107-108.
[40] ICRC
[41] Sassòli M, ‘State Responsibility For Violations Of International Humanitarian Law’ (2002) Vol. 84 IRRC, p 418-419 (‘Sassòli ‘) <https://www.icrc.org/en/doc/assets/files/other/401_434_sassoli.pdf>
[42] Id; International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Article 91; International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 3.
[43] Factory at Chorzów (Claim for Indemnity, Merits) PCIJ Series A, no. 17, 13 September 1928, page 47.
[44] ‘Frequently Asked Questions On The Rules Of War’ (International Committee of the Red Cross, 2002) <https://www.icrc.org/en/document/ihl-rules-of-war-faq-geneva-conventions>
[45] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No 92-9227-227-6, Article 8.
[46] Id.
[47] Id.
[48] Id.
[49] Sassòli, 419
