NATO's detainee dilemma in Afghanistan

NATO forces in Afghanistan have for years faced a dilemma: what to do with Taliban and other fighters they capture? For a variety of reasons, including U.S. detainee scandals, most NATO countries have been reluctant to hold prisoners for any extended period of time. (For background on alliance dynamics, see this piece by Ashley Deeks.) In the face of these pressures, alliance members have struggled to develop a common policy.

The solution appears to be obvious: hand captured fighters to the Afghan security forces who are the receiving billions in Western aid. But tranferring detainees  to the Afghan authorities has its own complications. Several accounts, including by the United Nations, have documented abuses in Afghan jails and detention centers. Given that reality, most NATO countries settled on a policy of allowing transfers while supporting reform in Afghanistan's detention practices and attempting to monitor the conditions detainees face. It appears that even that compromise is now coming apart. As the Guardian reports:

The Nato-led International Security Assistance Force (Isaf) confirmed a ban on transfers to some jails, but did not confirm if it was a reaction to the UN report.

"Based on concerns over detainee treatment at certain Afghan detention facilities, Isaf suspended the transfer of detainees to these facilities," spokesman James Graybeal said in a written response to questions. He declined to say which prisons or areas of the country had problematic treatment of prisoners, so it was not clear if they were the same jails identified in the 2011 report.

Then, nearly half of prisoners interviewed by Afghanistan's intelligence agency said they had been tortured, while a third of those arrested by Afghan police reported abuse, although the report said the ill-treatment was not "institutional or government policy".

The New York Times notes that the policy change is a significant blow to NATO efforts on detention policy:

The moves were a setback on detention issues that have created tension between the countries, and on years of international efforts to promote humane treatment of prisoners. And under American law, the torture allegations could also set off significant financial aid cutoffs to parts of the Afghan security forces, which play a crucial role in plans for an American withdrawal that are based on handing over responsibility for security to the Afghans as early as this spring. 

(While NATO may be temporarily stopping the flow of detainees, there were indications today that the Afghan government could soon face an influx from a different source; Pakistan's government announced its intention to release all Afghan Taliban in its custody.)

As with so many aspects of the Afghanistan institution-building effort, there's an unreal quality to the detainee debate. A few months from now, NATO will wash its hands of these dilemmas, and prisoners will be left to the tender mercies of the Afghan government. As long as the government survives, that is.

The Multilateralist

Would the ICC help in Syria?

After several months of relative inattention to the issue, there's been a renewed push in the past week to get the International Criminal Court (ICC) involved in Syria. The centerpiece of that effort is a letter drafted by the Swiss government and endorsed by dozens of other countries. Recognizing that the court currently lacks jurisdiction, it calls on the UN Security Council to refer the Syria violence to the Hague-based court, which can prosecute genocide, crimes against humanity, and war crimes. Leading human rights organizations have thrown their weight behind the initiative.

For all the support the Swiss missive has generated, the chances of an ICC referral still look slim. Russia, China and the United States, whose acquiescence is essential, have not backed the call. There's no evidence I'm aware of that they're shifting position on the issue. Their reasons for opposing an ICC role are likely quite different. Russia has consistently backed the Assad regime and knows that an ICC investigation would likely focus on regime higher-ups. China is generally skeptical of the court and intervention in what it sees as internal affairs; Beijing only reluctantly agreed to referrals for Sudan and Libya.

The U.S. decision not to openly support a referral is the most interesting. The Obama administration has taken several steps to improve cooperation with the court and voted for the Libya referral (the Bush administration had abstained on the 2005 Sudan referral). However it appears that the speed with which the ICC prosecutor moved in the Libya case unnerved some administration officials, who worried that the indictments against Moammar Gaddafi, his son, and the regime's intelligence chief  might foreclose a negotiated solution. That experience is likely influencing the administration view on Syria. 

With three of the Security Council's permanent members unpersuaded, the question of an ICC role in Syria is an academic one. But it's an important academic one, and the Swiss effort has shed some light on what advocates of international prosecutions hope they would achieve. Below are several of the anticipated benefits that have been discussed:

1. An ICC role would deter Syrian government and rebel leaders from committing further crimes. The Swiss letter anticipates that a referral would have "an important dissuasive effect." This expected benefit--often discussed in terms of the "signal" that a referral would send to the warring parties--has been implicit in most of the commentary.

2.   An ICC role would encourage greater discipline in the ranks of fighters on both sides. This anticipated effect is somewhat distinct from the deterrent impact on leadership figures. It suggests that local commanders might take greater care in supervising operations to ensure that they don't become the focus of investigations. A commentary by the foreign ministers of Austria, Slovenia, Ireland and Denmark (the "ASID commentary") predicted that "a referral to the ICC would make clear to every fighter on all sides of the conflict that the gravest crimes will eventually be punished."

3. The prospect of ICC prosecutions would help prevent usage of chemical or biological weapons. The legal scholar Jennifer Trahan has argued that the use of these weapons would "raise criminality to a new level that would invite high level prosecutions."

4. An ICC role would encourage defections from the Assad regime. The ASID commentary argued that an international investigation would "give the members of the al-Assad regime a further reason to question their allegiance."

5. ICC prosecutions would marginalize abusers and thereby make a negotiated solution more likely. The ASID commentary included this analysis: "As we saw in other crises, parallel political and judicial processes are mutually supporting. There is no decision to be taken here between either peace or justice – a sustainable, long-term solution requires both." For a further elaboration of this argument, see last week's Human Rights Watch press release.

These claims all come embedded in a broader, principle-based argument: that doing justice is the right thing. But to the extent advocates lean on arguments about the expected consequences of prosecutions, they invite scrutiny based on our growing experience with international justice initiatives. In a later post, I'll try to address these individual claims in more detail, but I think it's fair to say that the evidence for each of them is at best mixed and in several cases based on little more than the hope that beneficial consequences will follow from good intentions.