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Friday, 03.09.2012, 03:54pm (GMT)
The Government of the Islamic Republic of Afghanistan (hereinafter “Afghanistan”) and the Government of the United States of America (hereinafter “United States”), hereinafter known collectively as “Participants” and represented respectively by the Minister of Defence of the Islamic Republic of Afghanistan and the Commander, U.S. Forces Afghanistan,
Recognizing the progress already made in their partnership aimed at fighting international terrorism and extremism and stabilizing
Building on the progress of the ongoing Transition of lead responsibility in the security sector to the Afghan National Security Forces (ANSF);
Recalling the recommendations of the November 2011 Traditional Loya Jirga, with particular focus on the recommendations concerning the ‘transfer of detention facilities operated by the United States on the Afghan soil to the Government of Afghanistan as soon as possible’;
Have reached the following understandings:
1. For the purpose of this Memorandum of Understanding (MoU), prisons are defined as facilities housing convicted prisoners or persons awaiting trial. Prisons do not include facilities incident to internal disciplinary authorities exercised by the
2. For the purpose of this MoU, detention facilities are defined as facilities established to hold persons consistent with international humanitarian law, including Additional Protocol II of 1977 to the Geneva Convention of 1949.
Terms of Transfer of Detention Facilities
a) consistent with international humanitarian law, including the Additional Protocol II of 1977 to the Geneva Convention of 1949, and all of Afghanistan’s international obligations;
b) in compliance with
c) based on sustainable arrangements, including housing.
6. The Participants affirm that, upon signing of this MoU, the DFIP is to come under the management of an Afghan Commander,
a) provided that
b) the new Afghan Commander at the DFIP is to work with the United States to ensure the orderly processing and transfer of detainees within the DFIP and to other detention facilities and prisons in Afghanistan, and to continue to build the capacity of the DFIP to provide a secure and humane environment;
c) the United States Commander at the DFIP is to retain responsibility for the detainees held by the United States at the DFIP under the Law of Armed Conflict during the processing and transfer period, which is not to last more than six months;
d) both sides commit to provide the necessary resources and personnel sufficient to effect the transfers of detainees held by the United States at the DFIP under the Law of Armed Conflict within the six-month timeframe; and
8. Afghanistan affirms that it is to take all necessary steps, consistent with international humanitarian law, including Additional Protocol II, as well as its other international legal obligations, to ensure that detainees it holds are prevented from engaging in or facilitating terrorist activity so as to ensure that they do not pose a continuing threat to Afghanistan, the international community, or the United States.
9. Afghanistan affirms that it is to consult with the United States before the release, including release prior to indictment, of the transferred detainees, and, if the United States provides its assessment that continued detention is necessary to prevent the detainee from engaging in or facilitating terrorist activity, Afghanistan is to consider favorably such assessment.
a) This arrangement is subject to review as part of the Bilateral Security Agreement to be negotiated between the Participants after the signing of the Strategic Partnership.
10. The Participants reaffirm that they are to continue to cooperate in further developing
a) build no fewer than 11 sustainable detention housing units in Parwan and 9 in ANDF Pul-e-Charkhi, with a total combined capacity of 4,000 beds;
b) transfer such housing units to the control of
c) train and support the Afghan National Army Military Police Brigade in numbers sufficient to provide secure and humane care and custody to detainees; and
d) assist in establishing appropriate Afghan processes related to administrative detention.
11. The Participants intend to continue to transfer detainees, captured during military operations, to
12. The Participants, upon signing this MoU, hereby establish a Bilateral Committee on Detentions to oversee the implementation of this MoU. Co-chaired by the Minister of Defence and the Commander, U.S. Forces Afghanistan, or their designees, the Committee is to be responsible for the following tasks, among others:
a) the Committee is to ensure that the process of transition to Afghan management of the DFIP proceeds smoothly, and that modalities and implementation procedures for the transfer of detainees are established within one month of the signing of this MoU;
b) the Committee is to take decisions, consistent with Afghan law, including a risk assessment consistent with Additional Protocol II, in respect of cases that arise under paragraph 9 of this MoU; and
c) the Committee is to coordinate cooperation between the Participants in the development of
13. The understandings of the Participants reflected in this MoU are without prejudice to existing arrangements and understandings on issues related to security cooperation outside the scope of this MoU.
14. All cooperation under this MoU is to be consistent with the Participants’ respective rights, obligations, and commitments under international law, and subject to applicable laws and regulations of the Participants.
15. This MoU is intended to commence upon signature.
16. Any disputes with respect to cooperation under this MoU are to be resolved, in the first instance, in the Bilateral Committee on Detentions established in the above section, and may be settled through diplomatic consultations if not so resolved.
17. This MoU was signed on the 09th of March 2012 in the city of
For the Islamic
General Abdul Rahim Wardak General John Allen
Minister of Defence Commander,