Memorandum of Understanding

between

The Islamic Republic of Afghanistan and the United States of America

On

Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan

 

 

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 Afghanistan;

 

Building on the progress of the ongoing Transition of lead responsibility in the security sector to the Afghan National Security Forces (ANSF);

 

Highlighting the United States’ full respect to Afghanistan’s sovereignty and emphasizing the importance of cooperation between Participants in a manner that further strengthens the exercise of Afghan sovereignty;

 

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:

 

 

Section One

 

Definitions

 

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 United States military authorities over United States personnel.

 

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.

 

  

Section Two

 

Terms of Transfer of Detention Facilities

 

3.      The United States reaffirms that it does not operate prisons in Afghan territory and that, consistent with the provisions of this MoU, it is to transfer U.S. detention facilities in Afghan territory to Afghan control.

 

4.      The United States reaffirms that it is to transfer Afghan nationals detained by U.S. forces at the Detention Facility in Parwan (DFIP) to Afghanistan according to the provisions of this MoU.

 

5.      Afghanistan affirms that it has established an administrative detention regime under its domestic law which is:

 

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 Afghanistan’s international obligations with respect to humane treatment and applicable due process; and

 

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 Afghanistan appoints a three star Army General with appropriate qualifications and the required staff prior to the date;

 

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

 

e)     the United States is to continue its presence at the DFIP in order to provide advisory, technical and logistical support for a period of one year from the signing of this MoU.

 

7.      Afghanistan affirms that it is to provide the United States and relevant humanitarian bodies sufficient access to transferred detainees for the purpose of monitoring the application of the provisions of international humanitarian law.

 

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.

 

b)     Afghanistan affirms that it is to notify the United States prior to the transfer beyond the DFIP of any transferred detainee.

 

10. The Participants reaffirm that they are to continue to cooperate in further developing Afghanistan’s capacity to ensure secure and humane administrative detention operations.   Such cooperation is to include, but not be limited to, a continued U.S. commitment to:

 

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 Afghanistan as they are completed;

 

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.

 

  

Section Three

 

Final Provisions

 

11. The Participants intend to continue to transfer detainees, captured during military operations, to Afghanistan to be held in administrative detention consistent with Additional Protocol II, or for prosecution at the Justice Center in Parwan (JCIP) consistent with the criminal laws of Afghanistan.  The Participants intend to address this matter further in a separate document.

 

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 Afghanistan’s capacity to ensure a secure and humane administrative detention regime.

 

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 09^th of March 2012 in the city of Kabul.  The English, Pashto, and Dari versions carry equal weight.   

  

 

 

For the Islamic Republic of Afghanistan                 For the United States of America

 

 

 

General Abdul Rahim Wardak                                General John Allen

Minister of Defence                                                  Commander, U.S. Forces Afghanistan

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