Minister for Defence
Stephen Smith MP
Afghanistan – Detainee Management
Tabled in conjunction with a Ministerial Statement
16 May 2013
The Government is committed to providing regular updates to the Parliament on Afghanistan generally, including detainee management, operational incidents and other issues associated with Australia’s compliance with its legal obligations in Afghanistan.
As part of a commitment to be open and transparent on these matters, in February this year I provided an update to the Parliament on detainee management, inquiries into civilian casualties and reviews of local source allegations, as part of a wider update on Afghanistan. I have previously provided updates on these matters as part of my regular updates to the House on Afghanistan.
Next month, I will update the House on Afghanistan generally, including progress on transition.
Today, I provide an update on detainee management and Australian Defence Force (ADF) inquiries into civilian casualties and Australian Defence Force Investigative Service (ADFIS) processes as well as local source allegations.
Detainee Management Framework
Australia approaches its responsibility for treating detainees with dignity and respect with the utmost seriousness and is committed to managing detention matters in accordance with our domestic and international legal obligations.
Australia’s detainee management framework for Afghanistan has two priorities:
First, removing insurgents from the battlefield, where they endanger Australian, ISAF and Afghan lives; and
Second, to ensure the humane treatment of detainees, consistent with Australia’s domestic and international legal obligations.
Our detainee management framework aligns with international practice and is implemented in accordance with Australia’s international and domestic legal obligations.
Australia’s detainee management framework is implemented by the deployment of professional ADF personnel trained both in the Laws of Armed Conflict and in appropriate detainee handling. It is underpinned by rigorous recording and reporting requirements, and the high priority Australia places on addressing all allegations of mistreatment reported to Australian officials.
Following their capture, detainees are transferred to a purpose-built screening facility – the Initial Screening Area (ISA) – at Multi-National Base Tarin Kot in Uruzgan.
The screening facility is under 24-hour closed circuit television (CCTV) surveillance and the facility is open to regular inspection by international humanitarian and local human rights organisations.
Detainees in ADF custody are able to freely practice their religion, and are provided access to exercise, sustenance, suitable sleeping arrangements, medical care, and other amenities.
Once initial screening is complete, detainees are transferred to Afghan custody, or released if there is insufficient evidence to justify continued detention.
To support detainee transfers, the ADF provides evidence packs to assist further investigation by local authorities and possible prosecution under Afghan law.
To ensure we meet our own high standards and continue to improve our systems, Australia’s detainee management processes in Afghanistan are subject to regular audits.
As part of our detainee management framework, Australian officials monitor the treatment, welfare and conditions of all detainees transferred from ADF custody to Afghan custody.
The Interagency Detainee Monitoring Team is comprised of Australian officials from the Department of Foreign Affairs and Trade and the Department of Defence, including ADF members.
The Interagency Detainee Monitoring Team visits each detainee shortly after transfer, and subject to operational requirements, approximately every four weeks until the detainee is sentenced or released.
Between 1 August 2010 and 15 May 2013, the Monitoring Team has conducted 140 monitoring visits. This includes: 64 visits to the National Directorate of Security facility in Tarin Kot; 24 visits to the Tarin Kot Central Prison; and 52 visits to the Detention Facility in Parwan/ Afghan National Detention Facility in Parwan.
These visits enable Australian officials to monitor the welfare, treatment and conditions of detainees apprehended by Australian forces after their transfer to Afghan custody (and in the case of Parwan in the past, US custody).
Audits of the Detainee Management Framework
Since 1 August 2010, when Australia’s current detainee management framework in Afghanistan was introduced, five comprehensive technical audits of the framework have been conducted.
In addition, in August 2012, an audit of Australia’s detainee monitoring program was conducted by officials from the Department of Defence and the Department of Foreign Affairs and Trade.
As I advised in February, this audit found that Australia’s detainee monitoring program is appropriate and complies with our policy framework and found that the members of the Interagency Detainee Monitoring Team carry out their duties professionally and effectively.
The fifth comprehensive technical audit of Australia’s detainee management framework was completed in Afghanistan last month. I will update on the outcome of that audit in due course.
These audits are an essential governance measure for assessing and, where necessary, further improving Australia’s overall detainee management framework to ensure these high standards are maintained or to adjust to the changing operational environment.
Numbers of Detainees Apprehended
During the period 1 August 2010 to 15 May 2013, the ADF detained 1898 suspected insurgents. Of these: 158 detainees have been transferred to the National Directorate of Security in Tarin Kot and 105 detainees have been transferred to the Detention Facility in Parwan/Afghan National Detention Facility in Parwan.
Between 1 August 2010 and 15 May 2013, the ADF re-captured 15 people who had previously been captured and were subsequently released. Seven of the individuals in question were released as there was insufficient evidence to warrant their continued detention.
For eight of these detainees there was sufficient evidence to warrant their transfer and prosecution. Four were subsequently transferred to US custody at the Detention Facility in Parwan, and four were transferred to Afghan custody at the National Directorate of Security detention facility in Uruzgan.
Since my last statement to Parliament in February 2013, the ADF has not re-captured any previously captured detainees.
In February 2012, I announced the deployment of trained ADF interrogators to Afghanistan.
Interrogation expands the ADF’s ability to obtain information of operational and tactical value to help protect Australian personnel, the ANSF, and the local population.
Interrogation is conducted by ADF personnel who are qualified in interrogation. Only those personnel who have received specialised training are authorised to conduct interrogation activities.
Interrogation is a comprehensive questioning process which is aimed at collecting intelligence on the insurgency. It is conducted within strict legal guidelines to prevent physical and mental mistreatment.
From February 2012, when the ADF commenced interrogation operations, to 15 May 2013 approximately 38 per cent of detainees apprehended by the ADF in Afghanistan, have undergone interrogation within the Initial Screening Area.
In October 2012, a team led by Headquarters Joint Operations Command conducted an external audit and review of detainee management and interrogation operations in Afghanistan and found that all interrogation activities were compliant with Australia’s Detainee Management Policy and ADF interrogation policy.
The most recent external audit of ADF detainee management and interrogation operations in Afghanistan was conducted last month. I will update on the outcome of that audit in due course.
Allegations of Mistreatment
Australia takes all allegations of detainee mistreatment seriously.
Since August 2010, I have provided regular updates on complaints and allegations of mistreatment the ADF has received.
As I have previously advised the House, the term ‘allegation of mistreatment’ is used to describe any perceived or alleged incident involving an individual who is in Australian or a partner forces’ custody.
When a detainee is brought into the ISA, they are specifically asked whether they have any complaints regarding their treatment.
Any complaint received is treated as an allegation.
This terminology does not imply any wrong-doing on the part of the ADF, simply that an individual has made an allegation or complaint about the treatment they, or another individual, has received or witnessed during the course of their interaction with the ADF or the ANSF.
During the period 1 August 2010 to 15 May 2013, there have been 198 allegations of mistreatment against Australian forces. Of these, 175 relate to treatment or an incident at the point of capture. To date, 193 of these allegations have been considered and have been assessed as being unfounded. Five allegations remain under review.
Every allegation of detainee mistreatment received or observed by the ADF is reported through the Australian Military Chain of Command.
Once reported, allegations are reviewed or investigated.
This process may include taking witness statements, examining any medical evidence, as well as reviewing records and CCTV footage.
In addition, ISAF, and human rights and humanitarian organisations are notified of any allegations and the outcomes of any subsequent assessments.
As I have advised previously, many of the allegations received relate to the circumstances of the detainee’s capture, the point of capture. It is not unexpected that a detainee may sustain minor injuries such as bruises, cuts and scrapes during their capture as this usually occurs in a complex, dangerous and hostile environment.
ADF personnel operating in Afghanistan are required to conduct their operations, including in relation to detainees, in accordance with the rules of engagement, the Laws of Armed Conflict, as well as policy direction and guidance concerning the proper treatment of detainees.
Australia’s detainee management framework is consistent with the Laws of Armed Conflict, including the Geneva Conventions and relevant human rights law.
I am regularly briefed by the Chief of the Defence Force on any detainee incidents or allegations of mistreatment.
I have previously reported to the House on the Closed Circuit Television (CCTV) which constantly monitors the ISA to ensure the humane treatment of detainees in Australia’s custody, and to assist in the investigation of any allegations or complaints of mistreatment.
A review of CCTV footage is standard procedure for any incident in the ISA.
The CCTV system has continued to be effective, including in protecting ADF members from spurious allegations.
For example, the ADF was able to refute an allegation of mistreatment made by a detainee through a review of CCTV. The review of footage confirmed that the detainee was treated in accordance with Australia’s policies and procedures for the treatment of detainees whilst in the ISA.
Treatment of Detainees by ANSF
Australia is committed to holding our own personnel to the highest standards on detainee treatment. If ADF personnel become aware of concerns regarding the treatment of detainees by our ISAF or Afghan partners, this is also treated seriously.
During the period 1 August 2010 to 15 May 2013, 61 allegations of detainee mistreatment have been made against the ANSF at the point of capture.
As part of the ADF’s mentoring, ANSF personnel receive human rights training and advice on the correct procedures for handling detainees. They are also trained on the applicable international legal obligations for the treatment of detainees and the protection of the local civilian population.
The ANSF in Uruzgan also receive specific human rights training from the Afghanistan Independent Human Rights Commission, which specifically covers the application of those rights when conducting detention operations.
The ADF also provides Afghan personnel practical advice on these issues during partnered operations.
If ADF personnel witness any instances of mistreatment of detainees who are under the control of Afghan forces, they are required to report the matter to Australian authorities so it may be raised with Afghan authorities.
Suspension of transfers to the National Directorate of Security Detention Facility in Tarin Kot
On 11 March, Australian officials were informed of two allegations of mistreatment raised by non-ADF transferred detainees at the National Directorate of Security detention facility in Tarin Kot.
The allegations do not involve detainees apprehended by the ADF.
In light of these allegations, on 15 March the ADF suspended the transfer of detainees to the National Directorate of Security detention facility in Tarin Kot.
At the time of suspension on 15 March there was one ADF transferred detainee in the NDS detention facility. He was visited by Australia’s Interagency Detainee Monitoring Team on 12 March and he advised that he had not been mistreated. That detainee was transferred to the Tarin Kot Central Prison on 19 March, where he is still subject to regular monitoring visits.
No ADF-transferred detainees remain in the National Directorate of Security detention facility in Tarin Kot.
Since the suspension has been in place, the ADF has released 14 detainees from the ISA.
One detainee has been transferred to the Afghan National Detention Facility in Parwan since the suspension has been in place.
Australia has raised our concerns about this matter with Afghan authorities, Afghan and international human rights organisations and ISAF.
On 21 March, I advised Afghan Foreign Minister Rassoul of our concerns about this matter during his visit that day to Canberra, the last day before the Parliament rose before Easter.
Australia has reiterated the importance of the proper treatment of detainees and the need to investigate any allegations of detainee mistreatment in a robust and transparent manner.
Afghan authorities advise they are taking these allegations seriously and are conducting a thorough investigation, which is ongoing.
It is appropriate for Australia to await the outcome of the Afghan investigation into this matter, and advice on any action to be taken, before Australia will consider a resumption of the transfer of ADF-apprehended detainees to Afghan authorities in Tarin Kot.
Afghan detention facilities
It is a condition of Australian transfer that amenities at facilities meet standards suitable to local conditions.
In my previous update in February, I advised the House about ISAF’s detention facility certification process. Australia welcomes ISAF’s continued work to certify detention facilities across Afghanistan, including Uruzgan.
Australia will continue to work closely with ISAF, Afghan authorities, the United Nations and Afghan and International humanitarian and human rights organisations to promote the humane treatment of detainees in Tarin Kot, including at the NDS facility.
I will provide further updates on this matter.
In August 2012, I advised the House, that in line with Australia’s desire to ensure appropriate treatment of detainees, the ADF was considering proposed upgrades to Afghan detention facilities, including to the amenities at the National Directorate of Security facility in Tarin Kot.
These upgrades were being considered to further improve current amenities at the facilities.
Last month, the Provincial Reconstruction Team (PRT) and the ADF completed upgrades to amenities at both the Juvenile Detention Centre and the National Directorate of Security detention facility in Tarin Kot. The new structures represent a significant improvement on existing amenities.
Detainee Management Transition
In line with the broader transition of lead security responsibility from ISAF to the ANSF, Afghan forces are increasingly taking the lead in detention operations.
As operations in Uruzgan transition to an Afghan lead, this will inevitably see the ADF apprehending fewer detainees in partnered operations with the ANSF. The ADF has taken 58 detainees to 15 May this year.
Closure of the Initial Screening Area
The purpose-built Initial Screening Area (ISA) is the central element of Australia’s current Detainee Management Framework in Afghanistan.
On 26 March, the Prime Minister and I welcomed the decision by ISAF to close Multi National Base – Tarin Kot in Uruzgan Province, Afghanistan at the end of this year.
In line with the broader redeployment and remediation process at Multi-National Base Tarin Kot, the ISA will be dismantled and remediated in the last quarter of 2013.
Just as Australia reviewed the ADF’s detainee management framework and requirements in the run up to the withdrawal of the Dutch from Uruzgan and put in place the current detainee management framework in August 2010, Australia will review the ADF’s detainee management requirements as the transition process proceeds.
Transfer of the Detention Facility in Parwan to Afghan Control
I have previously provided the House with updates on the status of the transfer of the United States-run Detention Facility in Parwan to Afghan responsibility.
The agreement reached between the US and Afghan Governments to transfer the Detention Facility in Parwan to Afghan control represents a significant milestone in the transition of detention operations.
During President Karzai’s January 2013 visit to Washington, the US and Afghanistan reiterated their agreement for the US to transfer control of the Detention Facility in Parwan to Afghan authorities.
On 9 March 2012, the United States and Afghanistan signed a Memorandum of Understanding to commence the transfer of the facility to Afghan control.
The official ceremony to mark the transfer of the facility to Afghan authorities and the renaming of the facility as the Afghan National Detention Facility in Parwan occurred on 25 March 2013.
The official transfer is a positive development for the Afghan Government and is a reflection of the transition of security across Afghanistan.
Australia will continue to transfer ADF-apprehended detainees to the Afghan National Detention Facility in Parwan. We have received ongoing assurances from the Afghan authorities that our monitoring team access to ADF-transferred detainees at the Afghan National Detention Facility in Parwan will continue under our existing arrangement with the Afghan Government.
As at 15 May 2013, there are 68 ADF-apprehended detainees in the Afghan National Detention Facility in Parwan.
These detainees are regularly monitored by the Interagency Detainee Monitoring Team and, to date, no concerns have been identified with their treatment.
Australia will continue to engage with our partners to ensure that ADF transferred detainees continue to be treated humanely in accordance with the applicable law.
Allegations of Procedural Misconduct
I first advised in my March 2011 Ministerial Statement to Parliament, that in late January of that year, the Australian Defence Force Investigative Service (ADFIS) had initiated an investigation into allegations of non-compliance with the management and administrative procedures for the processing of detainees at the ADF detainee screening facility.
As advised in my February 2013 update, four previous members of the first Detention Management Team in Afghanistan, involved in managing the Initial Screening Area (ISA), had been charged with service offences of falsifying service documents which related to the administrative processing of detainees.
Trials under the Defence Force Discipline Act 1982 have been concluded and I can now provide the House with a final update.
The Director of Military Prosecutions charged four members of the first Detention Management Team, including the former officer in command of the team.
The charges alleged that three members placed their own fingerprints on detainee release and transfer forms to conceal the failure by Detention Management Team personnel to obtain detainee fingerprints prior to their release or transfer.
The former officer in command of the team was alleged to have written false entries into detainee log books.
The first trial was held on 27 July 2012 and the member was convicted and received a severe reprimand for one count of prejudicial conduct.
The second member was tried on 23 August 2012 and was convicted of two counts of falsifying a service document. He received a reprimand for each offence.
The third member was tried on 21 November 2012 and was convicted of four counts of falsifying a service document and one count of prejudicial conduct. He was fined $2000 for each of two offences and awarded a loss of seniority in rank for each of the other three offences.
The trial of the former officer in command of the first Detention Management Team commenced on 19 March 2013 and concluded in 3 April 2013. The member pleaded not guilty to a range of charges, including suppressing a service document and making false entries in service documents.
He was convicted of two counts of making a false entry in a log book which provides a record of detainee processing, and acquitted of four related charges. The prosecution alleged that the false entries were made to conceal the fact that a detainee was held for four and a half hours longer than is permitted under the Detainee Management Policy and to falsely represent that a subordinate member of the Detention Management Team had made the required entries in the log book.
The former officer in command was reduced from the rank of major to the rank of captain for both offences.
Australian Defence Force Investigative Service (ADFIS)
I first advised in my 24 May 2012 Ministerial Statement to Parliament that a number of matters had been raised in the context of an Inspector General of the ADF (IGADF) Inquiry into allegations of flawed ADFIS processes in the Middle East Area of Operations (MEAO).
The allegations included: the incorrect orientation of caskets used to repatriate ADF human remains; that ADF human remains were not repatriated in accordance with Defence policy; that the remains of an Afghan local national were handled inappropriately; and that a 16-year-old Afghan minor was detained inappropriately.
Part 1 of the IGADF Inquiry was completed on 15 October 2012. Part 2 of the Inquiry was completed on 21 December 2012. I am now providing the House w