Defence`s Feeds

The number of Afghan asylum seekers in Italy has been steadily rising over the last decade. Numbers grew particularly rapidly between 2013 and 2015 and only in recent months have they slowed down. Throughout the last ten years, not only has Italy become a fixture in the mental map of Afghan migrants, but it has seen its role changing from that of a country of mere transit to one of destination. For some, Italy is a safe second-choice when they could not reach their intended destination or have been rejected from there. For others, it is a stopgap to obtain legal papers on their way to another place. Afghans in Italy remain a mostly ‘transitional’ community, despite the thousands seeking and obtaining asylum. In the end, only a fraction of those arriving remain for good. AAN’s Fabrizio Foschini and Jelena Bjelica have been looking at the path of Afghan migration to Italy in the last decade and at the direction where it is heading.

This research was supported by a grant from the Open Society Foundations.

Read our previous separate dispatch about unaccompanied Afghan minor refugees in Italy here.

After years of growth, now is a good moment to take stock of the phenomenon of Afghan migrants in Italy. This year is in fact seeing the continuation of a trend which first became apparent in late 2016. The number of Afghans seeking asylum in Italy, rapidly growing for a decade, is now beginning to taper off. Reasons for this are multiple, as we will see, but let us first get acquainted with the chronology and the specificities of this relatively new episode in the decades-long history of Afghan exile.

Afghan refugees in Italy: From ‘pure’ transit to a more mixed approach

The history of Afghan asylum-seeking in Italy might with some cynicism be summarized under the title: “From the Aristocracy to the Lumpen-Proletariat of Political Asylum-Seekers”. The gap between the first Afghans who sought refuge in Italy and the latest newcomers is vast. The first to escape political turmoil and seek shelter in Italy arrived in 1973; they were the former king, Zaher Shah, with a small retinue of aides, and members of the aristocracy who fled Afghanistan after the coup d’état by which Sardar Muhammad Daud seized power. They were occasionally joined by a few more of the old monarchist elite, each time a power change shook Kabul’s security to a new degree of violence. Altogether, they never amounted to more than a few hundred persons, and they had the financial and social means to fully integrate and start a new life in Italy or, eventually, in other European countries. (1)

Afterwards, only occasionally did Afghans arrive in Italy, a few hundred people mostly from urban backgrounds who had been displaced by the civil war of the 1990s. They were joined by groups of Hazaras, who fled Afghanistan during the harsh times of the Taleban campaigns to subdue Hazarajat in the late 1990s and, after a stopover of some length in Pakistan, Iran, Turkey and/or Greece, would make their way to Italy between the late 1990s to the mid-2000s. Most only transited through Italy on their way to northern Europe, but a significant number, amounting to a few thousands, ended up applying for asylum there.

The early 2000s: A squat in Rome

Afghans aiming for Europe in the early 2000s had the Scandinavian countries, UK, Belgium or Germany in their sights, but definitely not Italy. However, a major route bringing Afghans to Europe crossed Italy. Most Afghans would arrive, hidden on ferries coming from Patras or Igoumenitsa in Greece which sailed to the Adriatic ports of the Italian peninsula, while others travelled on small boats, crossing from Greece or Albania and arriving on the southern shores of Italy. If identified by the police, Afghans would be brought to various big camps for asylum seekers, but would quickly manage to hit the road again and regroup with fellow countrymen – most were men or older boys – in Rome. (2) The capital was then a hub for information and organisation for the next stage of the journey. Afghans heading to northern European countries would typically spend some weeks in Rome before embarking for their next intermediate destination, France.

This role, as a linking point, brought about the most famous episode involving Afghan refugees in Italy, the creation of la Buca – the hole or the pit – a spontaneous squat where mainly Afghans lived open-air or in tents and makeshift shelters in and around Rome’s Ostiense train station. Afghans transiting through Italy would concentrate there between 2007 and 2012. They received support from only a few organizations, such as MEDU (Medici per i Diritti Umani or Doctors for Human Rights). They resisted several attempts to evict or relocate them by state authorities. The camp hosted a couple of hundred persons at its height, but its centrality and the sheer length of such an unsolved situation shocked the public opinion, drawing attention to the plight of Afghan refugees, until then an unheard of phenomenon for the Italian public.

In those days, some Afghans would stop and apply for asylum in the country, either out of necessity or realizing for the first time that Italy could offer a reasonable degree of safety and protection of rights. Also, many had been fingerprinted on arrival before travelling on, only to be sent back by other European states under the Dublin Agreement. Among other things, this made the country of an asylum-seeker’s entry to the European Union, if it could be proved, responsible for their case. (3) The story of a man from Bamiyan interviewed by AAN in Rome helps illustrate the type of vicissitudes Afghans were then subjected to:

I left Afghanistan in 2005 and came to Italy, from Greece, for the first time in 2006. They put me in a big camp in Crotone, and after some days I walked out of it. My objective was to reach Scandinavia, so I continued my travel and applied for asylum in Norway. After I got there, they told me that I was a ‘Dublin case’ because I had left my fingerprints in both Greece and Italy: they said they would not send me back to Greece because there were no guarantees that my rights would be upheld there, but that, if Italy had accepted responsibility for my case, I would have to go back there. I said “Fine, I didn’t come here to break the law.” Italy accepted me, so I came back. As soon as I arrived, they sent me back to the same camp in Crotone. Then they said I had my fingerprints in Greece and I was to be sent back there. I travelled to Rome and found a lawyer. I said “How is it possible that Italy accepted responsibility for my case from Norway and now wants to send me away? If they summoned me here, they should deal with my case.” Eventually, I won in the court and I was granted the five-years protection in 2009.

The 2010s: ‘Dubliners’ on the move

Starting from 2010 onwards, the number of asylum application by Afghans started to swell rapidly.

Statistics show that, by 2007, the number of Afghan refugees had surpassed those of the late 1990s, with 971 asylum requests; this number doubled the following year, reaching 1840. Another sharp rise was registered from 2013 onwards, with 2056 asylum applicants in that year, then 2994 in 2014 and 3975 in 2015 (the year with the highest total). (The data, from the Ministry of Interior, is available here.)

While the first Afghan refugees to come to Italy had been mostly Hazaras, by the end of the first decade of the twenty-first century, Pashtuns began to comprise the main group of Afghans transiting through Italy. They were the majority in Ostiense, in Rome, and in the following years also became the majority of those who applied for asylum in Italy. The vast majority came from just a handful of provinces, namely: Nangarhar, Laghman, Kunar, Logar, Paktia, Baghlan and Kunduz. A high number among them had lived most of their lives in Pakistan and some had been born there (the same was true for many Hazaras, who had dwelt in Iran or Pakistan before – see also this AAN dispatch).

On top of a streak of Dublin cases sent back to the country where they were first fingerprinted, Italy had also become the ‘backup’ choice for other Afghans. Italy has a record of making few ‘Dublin transfers’, ie sending migrants to the EU country where they were first recorded as having made ‘landfall’. This has made it a sort of safe haven for those Afghan refugees who had ‘dangerous’ Dublin fingerprints, for example from Hungary and Bulgaria (and later also Croatia), or, in a paradoxical reversal, for Afghans who had managed to reach northern European countries without leaving their fingerprints en route, but who had been refused asylum in the north and were being threatened with deportation to Afghanistan. Some of those migrants would then make their way back to Italy to apply for asylum there, hoping it would not send them back, as Dublin cases, to Norway, Sweden, Denmark or the UK.

On top of ‘returnees’ who had already been up north without success, Italy started to be considered a more viable first choice by many Afghans who had just arrived in Europe and who either doubted their chances of obtaining asylum in northern European countries, or who were out of money, tired or unfit for further travel or simply afraid of further shocks connected to illegal travel or threats of deportation. The main reason for this was that Italy guaranteed Afghans an almost absolute certainty of receiving some sort of asylum protection.

What seems to have been the most important factor in informing Afghan migrants’ decision about whether to apply for asylum in Italy and, indeed, whereabouts in Italy, was concern about the waiting time at various stages in the process, as Italy has problems in coping with asylum seekers, in general. There was the wait before the hearing of one’s asylum case, the wait for the subsequent, albeit usually positive, answer and the wait for asylum documents and other papers (ID card, travel document, etc) to be issued by the local authorities. Immediately after this concern came considerations about the type of reception locally available (time of wait before accessing reception in a facility for refugees, hospitality in camps versus private housing, type and amount of benefits provided).

The most important factor in decision-making was the presence of fellow Afghans from the same home area, if not of close friends and relatives, as they were the main factor in passing information on to and shaping the perception of newcomers. Their counsel was the main drive behind the choice of individuals coming for the first time to the EU or having been rejected from other EU countries and deciding to head (back) to Italy and/or to a specific part of it. The distribution of Afghan asylum seekers in Italy, influenced by these factors, resulted in their concentration in the north-eastern regions, in particular in Friuli Venezia Giulia, which is easily accessible for both new arrivals from eastern Europe and returnees from northern Europe and where, at least in the regional centre of Trieste, a reception programme with higher standards than those found in many other parts of Italy was already in place.

Chances of ‘recognition’ and reception in Italy

Before looking at the most recent trends, it is useful to look at two factors which govern the treatment of asylum seekers and whether they chose to stay in a country or try to go on: the rate of recognition and how they are received.

Italy has consistently had one of the highest rates for recognising Afghans as asylum seekers in Europe. In 2015-2016, the rate was stable at 97 per cent of all asylum requests, much higher than Germany (55 per cent), Sweden (46 per cent) and the UK (35 per cent). (For Germany see previous AAN research, for data about other countries see here.) In the words of an Afghan interpreter who works with the commissions who adjudicate the cases of Afghan asylum seekers: “(For Afghans), Italy is good in that nobody asks you who you really are or what did you do before.”

For anybody acquainted with the accurate research done in some European countries on the personal background of Afghan asylum seekers, the amount of knowledge acquired by the Italian ‘Territorial Commissions’ (bodies composed of UNHCR officials, members of the local administration and the Ministry of Interior deciding on refugees’ applications) is indeed minimal. Cases are usually adjudicated after a single interview that lasts between 40 minutes and three hours. Only rarely are people summoned for a second hearing. There are probably differences between the commissions in different locations – their number has risen in recent years from 10 to 20 to deal with the increased workload – with some reportedly trying to be more accurate. (3) However, the decision to grant Afghan nationals some form of protection based on their need for asylum is less a matter of investigating and ascertaining that an individual has actually fled persecution than one stemming from a concern that Afghanistan is generally unstable and unsafe.

Italy, for example, does not allow for the principle of “a safe place inside one’s country” as some northern European countries do who suggest that somebody who got into trouble in Jalalabad could move to Mazar-e Sharif to live a safe life. Therefore, the only way Afghans can be denied protection is when their Afghan identity is questioned (for example, there have been several instances of Pakistanis trying to pass themselves off as Afghans). Otherwise, the debate revolves mainly around what type of protection should be given. In line with the rationale behind the decision to grant almost all Afghans asylum because of the general state of their country, the most common type of protection issued is what is called ‘subsidiary protection’, given to individuals fleeing a conflict zone: 86.8 per cent of Afghan asylum seekers whose cases were adjudicated in 2016 received this. A handful of Afghans coming from areas considered comparatively safe (by now, basically a few spots like Mazar-e Sharif and Bamiyan), or who have not been able to claim convincingly that their lives would have been at risk had they stayed in Afghanistan, are given ‘two-year humanitarian protection’ (only one per cent of the total in 2016). Only those individuals who can prove they were members of the security forces or who were specifically targeted because of their public standing are entitled to the most secure status of ‘political asylum granted’ (9.2 per cent in 2016). (4)

Waiting times for the various decisions in an asylum-seeker’s life vary considerably from one Italian city to another and depending on the season and the overall number of arrivals of migrants. Typically, increased numbers of boat trips across the central Mediterranean in summertime clog the reception system, the related bureaucracy and the work of the commissions. Taking as an example Trieste in north-eastern Italy, where between 2012 and 2015, Afghans formed a majority of asylum seekers (and which has accounted for at least one-tenth of all Afghan asylum seekers in Italy in the last five years), waiting times for accommodation ranged between one day and more than one month. (When there were constant arrivals of people from the Balkan Route,  on the eve of the opening of the Balkan humanitarian corridor in the summer of 2015, one of the Old Port’s dilapidated warehouses had a stable population of as many as 200 migrants, in a small replica of Belgrade’s Savamala; see previous AAN reporting about Belgrade squat here and here).

In the nearby city of Gorizia, an additional factor – the hostility of local politicians to refugee support organizations – meant accommodation was extremely underdeveloped and several dozen refugees were living in the town’s parks, making the alleged problem of their mere presence all the more acute for the population. The waiting time from asylum request to interview in north-eastern Italy was usually around six to seven months for ‘non-Dublin’ cases. That got increasingly longer before 2015, when new commissions were opened relieving the one in Gorizia of some of its burden.

Where the problem, nationally, of long waiting times went even deeper is in the issuing of various documents by police stations. Having to cope with a population of migrants which rose from fewer than 300 in 2014 to 1200 in 2016, Trieste police station started to experience serious delays in issuing the required papers, permits of stay and travel documents. This culminated in mutual frustration. Asylum-related paperwork in many parts of Italy, excepting a few small towns hosting limited numbers of migrants, but endowed with effective and experienced local institutions, can be even more complicated and subjected to delays (for a geographic breakdown of the waiting times for some asylum-related documents see here).

The Balkan humanitarian corridor of 2015-16 and its backwash into Italy

As mentioned, asylum requests from Afghans reached their height in 2015, with 3975 applicants. This is tiny compared to countries like Sweden, who in the first eleven months of 2015 received 36,262, but more than others like the UK, who got 1446 (data from here). This increase in arrivals could be read as a direct effect of the opening of the humanitarian corridor in the summer of 2015, when migrants were allowed through the Balkans to the EU (the corridor was effectively closed with the signing of the Turkey-EU deal in March 2016), but in fact the trend had been there since the end of 2014. (It is sometimes forgotten that the humanitarian corridor was a reaction to a situation already at boiling point, ie huge numbers of people trying to cross south-eastern Europe, as much as it was a factor which contributed to more people’s decisions to try to reach Europe).

The most direct effect of the opening of the ‘institutionalised’ Balkan Route for Italy was the reduction and near end of Afghans crossing the sea from Greece to the Italian Adriatic ports. Rome was thus cut off from the transit route towards northern Europe as almost no Afghans were then travelling through Italy to go northwards. At the same time, the number of Afghans turning to Italy after first applying and being rejected for asylum in northern European countries increased. The phenomenon assumed a new dimension because many Afghans (together with other refugees, like Iraqi Kurds) would choose to move to Italy to ask asylum even before their cases were thoroughly dealt with in the countries where they had first applied for asylum.

As detailed in previous reports by AAN (read our thematic dossier here) a great number of Afghans arrived in Europe between the summer of 2015 and March 2016 traveling through the Balkan countries. The route from Serbia to Hungary was replaced by that through Croatia and Slovenia, with the same destination as before: Austria. From there, a majority of Afghans proceeded further, most to Germany and some to the Scandinavian countries. While the humanitarian corridor was open, only a tiny fraction of these Afghans turned south once they were in Austria to come down to north-eastern Italy. In fact, the boom of arrivals in Trieste and Gorizia in the summer of 2015 was mostly caused by Pakistani nationals (the second biggest group of asylum seekers in Italy, now largely Punjabis) who had Italy as their first choice of destination. The effect of the Balkan Route was more evident starting from the late spring of 2016, when asylum seekers who had arrived in Germany or Austria a few months previously started to flow in, travelling south from the Austrian border and applying for asylum in the Friuli Venezia Giulia, Veneto and Trentino Alto Adige regions of Italy (read media report here).

Fear of deportation seems to play a decisive role as well. As one of the Afghan refugees interviewed by AAN, a young man from Paktia who just arrived in Gorizia from Germany put it: “We were in Germany and one day our president asked the German government  ‘Please send our dear youth back to us’ …  so we all knew we would be deported and we had to run away.” (5)

There are other instances of migrants who got caught in the ambiguous stances of European states and have come to Italy as a last chance to get protection in Europe, to make the risks and costs of the project worth it, for example, Afghan migrants who in November 2015 crossed the Russian-Norwegian border bicycling. According to those among them who turned up in Trieste almost one year later, they were told that the reported loophole in the border regulations, with Norway recognising asylum seekers who arrived on bike, was meant for Syrians only and that Afghans who came that way were collectively denied asylum. The official story was that all migrants who had thus crossed were to be sent back to Russia, irrespective of their nationality (see also this AAN reporting). The Afghan cyclists who came to Trieste had done so to avoid deportation by Norway.

In another, concerning development, several Afghans – including families – who crossed Croatia via the humanitarian corridor of 2015-16 and were fingerprinted there, purportedly only for ‘security purpose’, and who ended up applying for asylum in Switzerland or Austria, were later been labelled as ‘Dublin’ cases with Croatia being the responsible nation. They were deported to Croatia whence some eventually fled to nearby Trieste. In July 2017, the European Court upheld the right of states to deport as ‘Dublin cases’ even those asylum seekers who had passed through the Balkan humanitarian, despite the fact that migrants were then routinely told their fingerprints in Croatia would not result in responsibility of that country under the Dublin Regulation (media report here).

Meanwhile, the use of the Balkan Route by Afghans did not stop, men and older boys (see our separate report on unaccompanied Afghan minors here) trying to sneak across the Turkish-Bulgarian border and then into Serbia (see also this AAN report on smuggling route through the Balkans here), whence they would sometimes continue through Croatia, Slovenia and Italy; others would come by ferry from Greece while families started to occasionally arrive in Italy on container ships coming from Turkey. (6)

Changing demographic profiles and decreasing asylum applications

Afghan asylum seekers in Italy are somewhat more varied since 2015 than they were between 2012 and 2015: personal observation by one of the authors of Afghans applying for asylum in Trieste from June 2016 (thus, persons who were mostly arriving from a failed or interrupted asylum request in another European country) showed 24 provinces of Afghanistan represented, although there was a strong predominance of residents of Nangarhar who represented one-fifth of the total. The number of individuals from Kunduz and Baghlan, who until 2015 were very common among asylum seekers in this part of Italy, seem to have reduced, while smaller numbers of Hazaras, who used to be the majority until around 2010, are again featuring among asylum-seekers. What has remained a constant compared to the pre-2015 situation is gender: Afghans in Italy are overwhelmingly single adult men (92 per cent of a sample contacted by IOM in February-April 2017 in Friuli Venezia Giulia, with 6.5 per cent of the sample being male minors).

One might wonder why the number of Afghans seeking asylum seekers in Italy decreased from 2015 to 2016 (with 2856 applications), if so many Afghans are leaving central and northern European countries out of hopelessness or fear of being deported, while new arrivals from Serbia and Greece have not stopped? It is now dropping even more considerably, with only 684 requests for the first seven months of 2017. The reason seems to be France.

France has some advantages for Afghan asylum seekers over Italy. This transalpine country features a recognition rate for Afghans almost as high: in 2016, 82.4 per cent of Afghans seeking asylum were given protected status in some way (data here). Apart from already being an established destination for Afghan asylum seekers, France was historically the common staging point for Afghans coming from Rome and traveling further north, to Scandinavia or to the UK.

Afghans made up a consistent part of the population of the migrant camp known as ‘the Jungle’ in Calais – personal observation suggests it was common for Afghans migrants in Trieste and Gorizia to start for Calais shortly after receiving their Italian asylum documents. In October 2016, together with the dismantlement of the Jungle, France put some efforts into improving its reception for migrants, opening up many new camps and facilities and improving the conditions for asylum seekers. It was at this point that France became a favoured destination for Afghans, in particular for those arriving from Greece or Serbia, who would no longer stop in Italy, but aimed for the better reception benefits (reportedly 350 euros per month versus 250 euros on average of an Italian decent-quality project) and a better job market. Afghan asylum applications in France jumped from 2122 in 2015 to 5646 in 2016, making Afghans the second most numerous group of asylum seekers there.

Italy, now a second chance destination for failed asylum seekers, but a chance for what?

Through the last decade, obtaining protection and the various necessary documents in Italy has not meant the beginning of a new, sedentary life for the majority of Afghan newcomers. Mostly, they would move out of Italy to try and find a job in some other European country – usually in the black market, hoping to regularise their position in due time. Or, if they were discovered, they had the fall-back plan of returning to Italy, rather than just face deportation to Afghanistan.

But what of those who stayed in Italy? One Afghan interpreter who has been working for years with asylum seekers all over the country assesses the percentage of those who ‘gave it a try’, and stayed in Italy for some time at least after receiving their asylum documents, at maybe 40 per cent. (Personal observation of the Afghans in Friuli Venezia Giulia through the last three years leads to the impression that the percentage is even lower).

Some of those who stay for a while after the end of the state-sponsored reception, move on to private housing, mainly with a view to start the procedure for family reunification. For them, Italy represents a mid-term solution: they work for a while and in the meantime, apply for family reunion; as soon as the wife and kids arrive on a family visa, they travel further and without him to northern European countries where recognition rates for women and children are still relatively high. Afterwards, they are able to reunite with the husband who would not have been able to get asylum status in those countries as a single man. (7)

As the Italian economy has not performed particularly well during the years of the boom of Afghan arrivals, the economic incentives to remain for good have been few. Also, with an increased number of refugees, Afghan newcomers receive less attention and fewer educational and vocational training opportunities compared to those who arrived five or ten years ago. Individual Afghans without strong local connections who have made it have either been lucky or very brave and perseverant in pursuing an individual choice, instead of joining the mass of Afghans trying their luck out of Italy. But chances for integration might be narrowing amid the increasing number of migrants and the creeping xenophobia to which Italians, relatively new to being hosts of mass migration, are falling prey. As a 20-year old boy from Jalalabad commented on a recent episode involving an Afghan and two Pakistani asylum seekers in Trieste, accused of raping a 12-year old girl (see media report in Italian here):

People come here very young, they are barely kids, they leave their families behind and the moment they arrive in Europe, they forget [their families]. … Then they are accepted in a reception project, they get their documents and then they get kicked out of the project. And then they end up in the streets again, back to sleeping in the stations. And then they do something wrong. Somebody does something wrong and everybody gets a bad name because of that and the public opinion turns against the refugees and the state becomes eager to get them out of the reception projects more quickly and that only makes things worse.

State-sponsored reception programmes can last up to six months after an asylum seeker has received his or her positive answer, although in many parts of Italy, the local prefectures reduce this amount of time. Entry into a SPRAR (Protection System for Asylum Seekers and Refugees) project that offer more time and support for integration, once and ideally still the standard practice, has by now become a rare occurrence due to the large numbers of migrants of all nationalities.

Many Afghan refugees coming to Italy are bruised by past experiences in Afghanistan, during the travel or while applying for asylum in other countries; they seldom engage immediately in learning Italian, even in the few places where courses are available in sufficient number and quality. They often say they are not sure whether it is worth it until they know the result of their application, but this does not ring true: they know that the recognition rate in Italy is extremely high. More realistically, they still do not know what they will do after they get protection, as their original project for a new life in Europe has not been achieved. Also, a large number of refugees coming from the same cultural area, like the Afghan-Pakistani transitional community of asylum seekers in Trieste that is almost one-thousand strong, can work as an obstacle towards integration. It reduces the incentives for individuals to find their own paths to integration, something Afghans and other refugees need to pursue to gain access to the job market in Italy.

Italy lacks an established Afghan diaspora, a cohesive and economically well-developed community which could provide newcomers with support, advice and job positions. The nature of the first Afghans who settled in Italy, members of the elite who were negligible in number, exacerbated a phenomenon that can be found in Afghan communities in other European countries as well, that is an ‘insulation’ between older migrants, from urban and educated backgrounds who are integrated at a cultural level, and more recent newcomers.

Afghan communities in Italy are also still small and scattered. Of the 20,000 Afghans who may be residing permanently in Italy (there are no official statistics), Rome is said to host around 6000. There are two main communities loosely aligned with two ethnic groups: the Hazaras and the Pashtuns. They are roughly equivalent in number and each also attracts Tajiks, Uzbeks and other Afghans.

These two leading communities worship at different mosques and never get together to organise official gatherings or festivities, although at an individual level, there are sometimes very strong friendships. Neither of the communities has managed to produce a leadership or an organization which could work for the advancement of Afghans in Italy. Past attempts have ended unsuccessfully, while current associations labelled as Afghan whom AAN interviewed are ineffective and aimed only at extracting money from migrants in exchange for help in completing necessary paperwork.

Afghans in Rome are active in a variety of jobs, mostly in restaurants and as manual labour. They have so far failed to create the sort of string of commercial ventures that communities such as the Bangladeshis have done. Those with a more solid background who invested their capital in such enterprises lament the high taxes and the many obstacles they feel are put in front of them by state authorities, who, as one man said, “are not used to the idea of refugee businessmen and every time refugees open a shop, go and make trouble for them by subjecting it to unending controls.”

Without easy access to the job market or solid roots in the country, it seems the destiny of many Afghans who come to Italy is to eventually move on: they spend maybe three to four years there waiting to obtain asylum documents during which time they try to find a job or bring their families to Europe, but then they hit the road again, to start anew somewhere else. At the moment, according to some of the Afghans interviewed by AAN, at least some, after receiving Italian asylum documents, go on to France and apply for asylum there, as well, opportunistically signing up for another round of reception in a project for asylum seekers, for lack of other prospects.

Bureaucratic mechanisms devised by European countries to prevent ‘asylum-shopping’ are ineffective: refugees still try to improve their situation step by step, that is, country by country. The different standards in different European states, in terms of recognition rates, reception benefits, opportunities for family reunion, risks of deportation and job opportunities and standards of living provide too many incentives and pushes for Afghan migrants not to try shifting from one country to another to better their situation. The risk is that they do not invest enough of their energies and time putting down roots anywhere. This attitude may be easily portrayed as opportunistic by those who resent their presence, but the truth is that the prime victims of such a system are the Afghans themselves. As one proverb says: dar ba dar, khak ba sar – going from door to door brings nothing but destitution and humiliation.

The years-long perpetuation of conditions of liminality, economic dependence, uncertainty and unfulfilled integration must be seen as a real disaster for thousands of Afghan youths. The shortcomings of the current Italian reception system and its lack of help with integration and the contrasting attitudes towards Afghan asylum seekers by different European states risks creating scores of what could be termed ‘failed citizens’. In Italy, as elsewhere, this may lead to a multiplicity of ills: social distress, criminality, xenophobia and right-wing populism, expansion of illicit economies run by mafia networks, indentured and inhuman labour conditions for refugees stuck in a legal ‘limbo’ or rootless and unable to stand for their rights. As they are Afghans, it may be easier for commenters to later blame the ‘failed state’ they come from for any troubles they cause. Others may blame the failure of European politics.

Edited by Sari Kouvo and Kate Clark

 

(1) This was not the first instance in which an Afghan king sought asylum in Italy, as King Amanullah famously also chose Italy as a place of exile after being dethroned in 1929. Also, in his case, only a few families of supporters followed him and settled in the country.

(2) There were many instances of push-back on arrival by the police in Adriatic ports such as Bari, Ancona and Venice. Afghans and other migrants would often end up traveling back to Greece on the same ship on which they had arrived.

(3) The Dublin Regulations are a series of EU laws determining which of the Union’s countries are responsible to examine asylum applications, making the first country through which the person entered the EU and left his/her fingerprints responsible. The first convention was signed in 1997, while new regulations were implemented in 2008 and 2013 (non EU-countries like Norway and Switzerland also apply its provisions).

(4) Initially they were based in: Gorizia, Milan, Rome, Foggia, Syracuse, Crotone, Trapani, Bari, Caserta and Torino. As of 3 October 2016, the Ministry of Interior referred to 20 Territorial Commissions and 27 sub-Commissions. During 2015 and 2016, new Territorial Commissions started operations in Verona, Ancona, Brescia, Bologna, Cagliari, Catania, Firenze, Lecce, Palermo and Salerno; sub-Commissions were established in Forlì, Campobasso, Enna, Reggio Calabria, Perugia, Frosinone, Caltanissetta, Ragusa, Genova, Agrigento, Novara, Bergamo, Livorno, Monza-Brianza, Padova, Vicenza and Treviso (see here).

(5) This high recognition rate and the fact that there are fewer Afghans appealing against the commission’s decision (unless they aim at a higher type of protection than what they were given) makes Afghans less affected, at least for the moment, by the new law reform Minniti-Orlando, severely curtailing the options of asylum seekers appealing. However, the law also aims at penalises asylum seekers who move from one European country to another as Afghans have been forced to do by recent developments. For an interview summarizing criticism of the changes brought by the law see here, see here.

(6) Italy has not been pro-active in sending Afghans back to their country: in the last five years, there were only two or three voluntary repatriations per year from Italy to Afghanistan, and, also given the high recognition rate, virtually no risk of deportation to Afghanistan. (IOM data by personal communication; data for 2016 is available here.) By comparison, France has organised 529 voluntary repatriations of Afghans in 2016 (see here).

(7) Statistics of the number of Afghans arriving to Italy by sea corroborate the growing importance of the land route through the Balkans even before the opening of the humanitarian corridor in 2015. They also show the sudden drop of arrivals by sea during the time of the corridor, and their partial resuming from mid-2016 onwards, as an old-fashioned alternative to the now more difficult land route.

2012: 651 (only until mid-June, when there was a stop in reporting from the Ministry of Interior)

2013: 964

2014: 784

2015: 117

2016: 437

2017: 73 by sea in the first six-months (the last data is coherent with the drop in the overall numbers of Afghan asylum seekers which was 616 in the same period of 2017).

Data from the Ministry of the Interior as shared by IOM Italy, personal communication.

(8) This instrumental use of family reunification has been confirmed by, among others, lawyers offering legal aid to asylum seekers in Rome. The procedure for family reunification was relatively easy in the past, but it has become increasingly difficult. In particular, it seems to be hard for the relatives in Afghanistan to gain access to the Italian Embassy in Kabul to complete all the necessary paperwork and because of newly-required medical tests to prove consanguinity.

Chinese Type 86G Infantry Fighting Vehicle

The EDA GOVSATCOM Demo Ad-Hoc Working Group will meet this week to further proceed with the Project Arrangement detailing the rules and procedures of the Governmental Satellite Communications (GOVSATCOM) Pooling and Sharing demonstration project. Additionally, Member States have recently agreed for the EDA to conclude an Implementing Arrangement with the European Space Agency (ESA) on their cooperation for GOVSATCOM. This Arrangement will maximise synergies between the activities of the two Agencies to support the European Commission in its efforts for preparing an EU GOVSATCOM initiative.

The EU GOVSATCOM initiative aims to provide EU Member States, organisations and operators with assured satellite communication services by 2020. As part of the programme, the European Space Agency (ESA) this week contracted Airbus to produce a demonstrator providing a technical solution for secured interconnections between different SatCom architectures and users. 
This demonstrator contract follows on from two design studies running between 2015 and 2017 on behalf of the ESA and EDA respectively. The studies served to define and quantify the nature of the European governmental users’ needs and assess the various technologies and architectures of the GOVSATCOM programme, as well as the advantages of the ‘pooling and sharing’ model. 
The GOVSATCOM programme will initially focus on the pooling and sharing of communication capabilities provided by governmental satellites and commercial operator satellites already in orbit. In June 2017, 14 EDA Member States (Austria, Belgium, Estonia, France, Germany, Greece, Italy, Lithuania, Luxembourg, Poland, Portugal, Spain, Sweden and the United Kingdom) and Norway agreed to develop a demonstrator for pooling and sharing satellite communication capabilities. 

Background

Reliable, stable and secure communications are crucial in any CSDP mission or operation. Yet, terrestrial network infrastructures are not available everywhere, for instance in areas hit by natural disasters, at sea, in the air or in hostile zones. Satellite communications (SATCOM) can be the solution: rapidly deployable, flexible and distance insensitive, they offer communication links where terrestrial networks are damaged, overloaded or non-existent.

However, access to SATCOM cannot be taken for granted at any time, especially not when government users require them at short notice and without pre-arranged agreements. In situations of high demand, competition with other users of commercial SATCOM capacities creates a risk of non-availability and high costs. Against this backdrop, EU leaders decided in 2013 that there was a need for a new solution combining the advantages of commercial and military satellite systems in order to address both civil and military needs through European cooperation. The European Defence Agency, in collaboration with the European Commission and the European Space Agency, is now preparing the next generation of GOVSATCOM. 

GOVSATCOM will be a capability that is placed in between the commercial satellite communication market and the highly protected military satellite communication capability.

 

More information 

• 14 EDA Member States to pool & share GOVSATCOM capabilities
• Governmental Satellite Communications (GovSatcom)

The continued fragile security situation in Eastern Europe and the resurgence of Russian power politics prompts the Subcommittee on Security and Defence to examine, also in the context of the upcoming Russian-Belorussian military exercise "Zapad 2017" to take place in Belorussia in mid-September and close to the EU's external borders, various angles of the ongoing development in the post-Soviet space, which impact on regional stability and beyond.

Location : Paul-Henri Spaak 4B001
Further information
Hearing programme and documents
Presentation by Anna Dyner, Analyst at the Polish Institute of International Affairs (PISM) and Eastern Europe Programme Coordinator, Warsaw
Source : © European Union, 2017 - EP

Russian T-80BVM Main Battle Tank

Russian T-90M Main Battle Tank

Chinese VN11 Heavy Armored Personnel Carrier

EU Defence Ministers today participate in “EU CYBRID 2017”, a strategic table-top cyber defence exercise. The exercise, the first of its kind, is organised by the Estonian Presidency of the Council of the European Union, the Estonian Ministry of Defence and the European Defence Agency (EDA). The objective of EU CYBRID 2017 is to raise awareness of cybersecurity incident coordination at political level and of the potential effects of offensive cyber-campaigns. It focuses on situational awareness, crisis response mechanisms and strategic communication. 

Cyber is widely recognised as a major threat in the EU’s Common Security and Defence Policy (CSDP), yet there has been limited attention to EU missions and operations’ resilience . To address cyber threats in CSDP, Estonia is organising in cooperation with the European Defence Agency a strategic table-top cyber-exercise “EU CYBRID 2017” for EU Ministers of Defence during their informal meeting in Tallinn on 7 September 2017.

“Cyber, the fifth domain of warfare, must be given as much attention as land, air, sea and space. There is no 100% protection in cyber. It is imperative that EU Defence Ministers test their cyber defence mechanisms. The buy-in of Member States is key for the EU to have the necessary skills, technology and capabilities”, Jorge Domecq, Chief Executive of the European Defence Agency, said.

The scope of the exercise is crisis response to a major offensive cyber campaign against EU military structures in a hybrid warfare context. The objectives of the exercise are:

• Situational awareness. Use the EU Intelligence and Situation Centre (INTCEN) to ensure a common understanding of the crisis and the impact of hybrid attacks on EU military structures and to give initial assessment/context for the cyber-campaign.
• Crisis Response. Raise awareness of the instruments available to the EU in to give strategic guidance on the response to a major offensive cyber-campaign against CSDP structures in a hybrid warfare context.
• STRATCOM. To coordinate initial messages among EU Member States at political level.
• Cyber defence. Raise awareness on cybersecurity incident coordination at political level and demonstrate potential effects of offensive cyber-campaigns.
• Trigger discussions at Council level with a view to examine possible measures in response to specific events, drawn from the crisis scenario.

 

About the exercise

EU CYBRID 2017 is a table-top cyber exercise focused on strategic choices and considerations at the EU ministerial level. It is not expected that exercise participants address specific technical issues that arise during the exercise: this will be addressed later in associated exercises (e.g. EU PACE 2017). The goal of the exercise is to highlight a number of strategic concerns and topics that arise in connection with any hypothetical cyber crisis. This exercise should serve as a forum for discussion at ministerial level and provide strategic guidance to address future crises.

The exercise scenario include an orchestrated cyber-attack campaign against an EU-led military operation affecting both an EU Headquarter in Rome (OHQ Rome) and its subordinated maritime assets. Multiple cyber-attacks covering a range of cyber threats combined with other incidents will take place over the course of the exercise. The exercise scenario refers to fictitious countries, organisations and operations.

 

Cyber defence and the European Defence Agency

Cyber defence is one of the priorities of the EDA’s capability development plan and of the NATO-EU Joint Declaration. A project team consisting of EDA and its participating Member States' representatives is responsible for jointly developing cyber defence capabilities within the EU CSDP, supported by R&T experts. The Agency’s main focus is on supporting member states in building a skilled military cyber defence workforce and in ensuring the availability of proactive and reactive cyber defence technology. The EDA for example develops, pilots and delivers a variety of cyber security & defence courses and exercises from basic awareness over expert level to decision maker training.

 

More information:

• Cyber defence project page and factsheet
• Cybersecurity and the Estonian Presidency of the Council of the European Union

Chinese VN17 Infantry Fighting Vehicle

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Disclaimer : The interpretation of debates serves to facilitate communication and does not constitute an authentic record of proceedings. Only the original speech or the revised written translation is authentic.
Source : © European Union, 2017 - EP

EDA Chief Executive Jorge Domecq held talks in Sofia on 3 and 4 September with the Bulgarian Minister of Defence Mr Krassimir Karakachanov, Deputy Minister of Defence Mr Atanas Zapryanov and the Deputy Foreign Minister Mrs Emiliya Kraleva. Mr Domecq also met with the Defence Committee of the National Assembly and industry representatives. Discussions focused on the preparation of the upcoming Bulgarian Presidency of the EU Council during the first half of 2018 and Bulgaria’s current and potential future contributions to EDA projects and programmes.

During the meeting with the Minister of Defence, discussions included the general state of play regarding the Implementation Plan on Security and Defence, the European Defence Fund and the EDA’s further development in view of the long-term review (LTR). Mr. Domecq also ensured Minister Karakachanov of the Agency’s support to defence related events organised in the framework of the Bulgarian Presidency. He thanked the Minister for Bulgaria’s involvement in EDA activities and invited the Minister to further explore the possibility Bulgaria to be actively involved in  EDA’s work related to the free movement of land forces in Europe.

Mr Domecq welcomed the opportunity to discuss EDA initiatives with experts from different directorates of the Ministry of Defence and the Ministry of Economy. Further discussions were held with representatives of the Bulgarian defence industry, with focus on the opportunities that EDA’s work provides for  the Bulgarian defence industry. The discussion with the Deputy Foreign Minister Emiliya Kraleva and the chairman and members of the Defence Committee of the National Assembly was mostly focused on the security context in Europe as well as in the region. 

A landmark case in the United States means that, for the first time, two of those responsible for the CIA’s post-2001 torture programme, have been held accountable in the courts. Much of this torture programme was carried out on Afghan soil. The two psychologists who designed and implemented the programme, have paid compensation to two survivors and to the family of Gul Rahman, an Afghan who died of hypothermia after being left semi-naked on a bare concrete floor in a CIA black site near Kabul in November 2002. US courts had thrown out previous attempts at litigation on the grounds of ‘national security’. As AAN’s Kate Clark reports, the successful case may open the door to other claims, including against government officials.

Gul Rahman, an Afghan living in Pakistan, had been driven up to Islamabad for a medical check-up and was staying with Ghairat Bahir, son-in-law of Hezb-e Islami leader, Gulbuddin Hekmatyar, when on 29 October 2002, both men were kidnapped by US agents and Pakistani security forces and rendered to a CIA black site in Afghanistan. Both were tortured. Bahir survived (for details, see the appendix), but Rahmat Gul froze to death on the bare concrete floor of a cell in CIA custody after interrogators ordered his clothes removed because he was being “uncooperative.” A CIA review listed contributing factors leading to his death: “dehydration, lack of food, and immobility due to ‘short chaining’ [ie being held on a short chain]”

The US never informed Gul Rahman’s family of his death. Nor did they return his body. It was only many years later, in 2010, that an investigation by the Associated Press revealed he had been killed in Afghanistan.

Now, two architects of the CIA torture programme have agreed to pay an undisclosed sum in compensation to Gul Rahman’s family and two men who survived the programme, Tanzanian Suleiman Abdullah Salim and Libyan Mohamed Ahmed Ben Soud (spellings for these and others mentioned in this dispatch are as per the official US spelling). The case, brought on behalf of the two men and Gul Rahman’s family by the American Civil Liberties Union (ACLU), was against two psychologists, James Mitchell and John ‘Bruce’ Jessen, who had been contracted by the CIA to create and implement its torture programme. The two men decided to settle before the case went to court, after failing repeatedly to get it thrown out. The ACLU explained why this is such a landmark case:

Until now, every lawsuit trying to hold people accountable for the CIA torture program has been dismissed at initial stages because the government successfully argued that letting the cases proceed would reveal state secrets. But unlike previous cases, this time the Justice Department did not try to derail the lawsuit. The defendants attempted to dismiss the case multiple times, but the court consistently ruled that the plaintiffs had valid claims.

A change in the legal landscape

What changed matters was the release of a redacted summary of an investigation by the US Senate Intelligence Committee into the CIA’s rendition and torture programme in December 2014 (read it here and our analysis of its contents here). Even though much of the information had already been in the public domain (in investigations by human rights groups and journalists who spoke to survivors and, in some cases, personnel), the fact that it was the US Senate that had published the report and that it was based on the CIA’s own files meant the information was now both public and incontrovertible. The US courts – and the government – could no longer argue so easily that scrutinising the CIA’s programme would jeopardise state secrets – the grounds on which two earlier cases had been thrown out.

In May 2006, a US court turned down a claim against the former director of the CIA, George Tenet, brought by the ACLU on behalf of a German-Lebanese man, Khaled El-Masri. He was kidnapped in Macedonia in December 2003 and rendered to Afghanistan. He was drugged, beaten, stripped and given “putrid water” to drink (read here). El-Masri was held for five months even after his innocence became clear and then, said the ACLU, “deposited at night, without explanation, on a hill in Albania,” without apology or the means to get home. Nevertheless, the court accepted a US government intervention in the case which argued that allowing it to proceed would jeopardise state secrets.

A second case was also dismissed, in February 2008. This was against a subsidiary of Boeing, Jeppesen DataPlan, Inc, which had been used by the CIA to render detainees. The ACLU which filed the lawsuit argued on behalf of five detainees that “Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.” Three of the five plaintiffs were flown to Afghanistan where they were tortured (see details in footnote 1). Again, the court accepted a government intervention asserting “state secrets privilege” and claiming that further litigation would undermine national security interests.

This time, in the case against Mitchell and Jessen, the government chose not to try to shut the case down and the court also rejected various attempts by the two men to halt proceedings. Rather, just as the case was about to go to jury trial, the pair decided to settle the claims. By this point, the court had already decided some important questions of law.

“First,” ACLU attorney Dror Laden told AAN, “there is the series of decisions the court issued that torture committed by the government and the executive branch is a question for the courts. Judges have the power and the responsibility to decide if war crimes or torture were committed.” Secondly, he said, “This case shows how national security litigation can be conducted without jeopardising national security.” He described how dozens of lawyers were present in the court room with the government side speaking up if they were concerned that questions of national security were about to be disclosed. “The answer,” he said, “is not to shut down lawsuits from the beginning, but to creatively look at how the parties can move forward in conjunction with each other.”

What the psychologists did

The Senate report revealed (or in many instances confirmed), not only the extent of the CIA’s torture programme, but also the pivotal role played by Mitchell and Jessen. As the ACLU writes:

Drawing on their experience as psychologists and relying on experiments conducted on dogs in the 1960s… [they] proposed that CIA prisoners should be psychologically destroyed through the infliction of severe mental and physical pain and suffering. They theorized that inducing a state of “learned helplessness” in captives would eradicate any resistance they might have to interrogation. This theory had never been – and could not legally or ethically be – tested, and their program involved not only torturing prisoners but experimenting on them in violation of the international ban on non-consensual human experimentation.

Despite the CIA having previously adopted a position that torture did not work, attitudes changed following the 9/11 attacks on the United States. Worries that the agency would be committing war crimes were assuaged by a Justice Department decision to define the methods proposed as not torture. President Bush’s assertion that ‘war on terror’ detainees were not covered by the Geneva Conventions, which expressly outlaw torture, also eased the way. As ACLU has written: “the decision to torture was made deliberately, in a program characterized by human experimentation, intentional brutality, and the painstaking manipulation of the law. It was as clinical as it was cruel.” The two psychologists were contracted to design the programme of interrogation and torture, despite the fact that, as the Senate report noted, “Neither psychologist had experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in terrorism, or any relevant regional, cultural, or linguistic expertise.”

The Senate report named 119 men as having been subject to CIA rendition and 39 of those as victims of torture. Most of the torture described in the report took place in black sites on Afghan soil and five of the 39 named torture victims are Afghan, including Gul Rahman (see the appendix for detail on the other four men). Many more men were tortured than are named in the report, however, including by the CIA and also, after CIA methods spread, by the US military, in Afghanistan, Iraq and Guantanamo Bay. Practices included: prolonged sleep deprivation (for more detail on why this is so extremely destructive, see footnote 2), forced nudity, starvation, beating, water dousing, waterboarding and extreme forms of sensory deprivation. The ACLU said the two psychologists:

… designed the abusive procedures, conditions, and cruel treatment imposed on captives during their rendition and subsequent detention, devised the torture instruments and protocols, personally tortured detainees, and trained CIA personnel in administering torture techniques. In a clear conflict of interest later acknowledged by the CIA, the two men were also tasked with evaluating the “effectiveness” of the program from which they reaped enormous profits.

Mitchell and Jessen received 1.5 and 1.1 million dollars respectively from the CIA in fees and, after they formed a company in 2005 to supply the CIA with personnel and to expand the programme, a further 81 million US dollars in the years up till 2010.

The two survivors

The two men, who along with the family of Gul Rahman, brought the case against Mitchel and Jessen were a Libyan dissident and a Tanzanian fisherman. Both had been rendered to Afghanistan. Mohamed Ahmed Ben Soud had fled Libya in 1991 and was living in Pakistan when he was kidnapped in a joint US-Pakistani operation in April 2003 and taken to Afghanistan. Human Rights Watch revealed that the then Libyan president, Muammer Gaddafi, had passed his and other names on to the US claiming they were terrorists. For much of the next year, said ACLU, the CIA kept Ben Soud “naked and chained to the wall in one of three painful stress positions designed to keep him awake. He was held in complete isolation in a dungeon-like cell, starved, with no bed, blanket, or light,” not allowed to wash for five months. CIA agents forced Ben Soud into a box less than half a metre wide, hanged him from a rod and submerged him in icy water, until a doctor would decide his temperature was dangerously low. In August 2004, he was rendered to Libya where he was sentenced to life in prison, only released in 2011, a day after the start of the revolution that led to the overthrow of Muammar Gaddafi.

Suleiman Abdullah Salim, a Tanzanian citizen, was working as a fisherman and trader in Somalia when, in March 2003, the CIA and Kenyan security forces abducted him and rendered him first to Kenya and then to Afghanistan. He was beaten, slammed into walls, hung from a rod and chained into painful stress positions for days on end. The CIA also subjected him to sleep deprivation and forced him into small boxes. He was finally freed in 2008, long after his family had given him up for dead.

More lawsuits?

The decision by Jessen and Mitchel to pay compensation may open the door to future claims. In the United States, only the state can bring a criminal lawsuit, but individuals can bring civil claims for damages. What would be even better, Human Rights Watch’s Guantanamo expert, Laura Pitter told AAN, would be if the US government acted proactively without the need for victims to go to court.

… these suits are extremely expensive. So either an NGO like the ACLU or perhaps the Center for Constitutional rights willing to make the investment necessary to pursue the case like this has to take it on, or law firms or other private attorneys do in the hopes that if they win they can recover attorneys’ fees. But that is a big risk and a big investment. The risk is lower now that the ACLU case settled because they got some good rulings, and admissions, from the defendants, but it’s still a risk so we will see. 

Up till now, the state has chosen not to prosecute anyone for the many crimes committed under the CIA’s torture programme. President George Bush authorised the programme and although President Obama banned torture as soon as he took office in 2009, his administration also decided not to prosecute. “We tortured some folks,” said Obama (quoted here) a few months before the release of the Senate torture report. “You know, it is important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.” It is impossible to see this situation changing under President Trump.

As the Office of the Prosecutor in the International Criminal Court has pointed out, the scope of the Department of Justice’s preliminary review (August 2009 to June 2011) of allegations of CIA abuse of detainees, “appears to have been limited to investigating whether any unauthorised interrogation techniques were used by CIA interrogators, and if so, whether such conduct could constitute violations of any applicable criminal statutes.” (emphasis added) In other words, there has been no criminal investigation into the use of authorised torture techniques, a point highlighted by the Office of the Prosecutor which quoted the US Attorney General:

“…the Department of Justice (DOJ) will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

There have been no prosecutions of anyone involved in the killing of Gul Rahman. His case, along with that of the Iraqi, Manadel al-Jamadi, who died in CIA custody in 2003 at the Abu Ghraib prison in Iraq, was referred to the Justice Department. It decided not to bring charges and, in 2012, the US Attorney General prosecutors announced that the investigation would be closed because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt” (see here and here).

In March 2003, said the Senate report, “just four months after the death of Gul Rahman, the CIA Station in Country recommended that [redacted] CIA officer receive a “cash award” of $2,500 for his “consistently superior work.” The manger of the detention side stayed in position and “was formally certified as a CIA interrogator in April 2003 after the practical portion of his training requirement was waived because of his past experience with interrogations” at the site.

Other avenues to seek justice

Some victims of the CIA have sought other avenues of redress, although no-one, before the current case has been able to touch any of the Americans involved in the torture programme. Two men who are still held in Guantanamo, Abdul Rahim al-Nashiri and Abu Zubayda, sued Poland at the European Court of Human Rights. It ruled on 24 July 2014 that Poland had violated the European Convention on Human Rights when it co-operated with the CIA in their renditions, allowing the unlawful detention and torture of the two men on its territory in 2002–2003. The court ordered the Polish government to pay each of the men 100,000 Euros (118 USD) in damages (read here and here). On 13 December 2012, the same court found in favour of Khaled El-Masri against the government of Macedonia which had aided the CIA in his rendition (see here and here). German authorities, though, terminated their inquest against 13 CIA staff accused of involvement in the case in April 2017. On 20 September 2012, the highest court in Italy upheld convictions against 23 CIA agents and a US air force officer, in absentia, over the abduction in February 2003 of an Egyptian imam, Abu Omar. Two Italians were also earlier convicted. Abu Omar was held in Egypt where he was tortured, including with the use of electric shocks, and held until February 2007 when he was released without charge.

Some countries have given compensation to victims. They include the UK which chose to give the nine British nationals and six British residents released from Guantanamo around one and a half million dollars each, settling civil damages claims rather than, reported AFP, “contest in court allegations that Britain’s security services were complicit in what happened.”  One of the child prisoners at Guantanamo, Canadian Omar Khadr, was given damages by his government amounting to an equivalent of eight million US dollars.

Up till the Mitchell and Jessen case, however, only claims against those tangentially involved in torture had succeeded, largely the countries which aided the CIA in its rendition programme. The pay outs by the two psychologist torturers does make future civil claims in the United States more likely. However, there is still no prospect of criminal prosecutions of American torturers in America itself. This fact, that successive US governments have chosen to give officials impunity for some of the most serious crimes possible, means the International Criminal Court (ICC) could take up this case. As AAN has reported, (3) the ICC has already decided that there is a case to answer for CIA and US military torture. It is currently pondering whether or not to proceed with building cases against specific alleged perpetrators.

 

Appendix: Other Afghan victims of CIA torture

There are many published accounts of Afghans having been tortured by the US military and by the CIA. They include the following:

Anand Gopal, No Good Men Among the Living: American, the Taliban and the War through Afghan Eyes, New York, Metropolitan Books Henry Holt and Company

Abdul Salaam Zaeef, My Life with the Taliban, London, Hurst 2011

Globalizing Torture: CIA Secret Detention and Extraordinary Rendition, Open Society Foundations, February 2013

Enduring Freedom Abuses by U.S. Forces in Afghanistan, Human Rights Watch, March 2004

There have also been official US investigations into torture by US personnel, including: United States Senate Inquiry into the Treatment of Detainees in U.S. Custody, Committee on Armed Services, 20 November 2008

Other official US reports (up till 2008) are listed by the International Center for Transitional Justice (ICTJ) here: Research Brief: Selected examples of Defence, Intelligence and Justice Investigative Reports into detention and interrogation practices, 2 November 2008

There have also been numerous reports by journalists, including for example by Craig Pyes and Kevin Sack, ‘Two Deaths Were a “Clue That Something’s Wrong”’, The Los Angeles Times, 25 September 2006 and, ‘U.S. Probing Alleged Abuse of Afghans’, The Los Angeles Times, 21 September 2004

As well as Gul Rahman, four Afghans are named by the Senate as having been tortured by the CIA. The four are:

Ghairat Bahir, son-in-law of Hekmatyar, kidnapped with Gul Rahman in October 2002 and held in the CIA’s Salt Pit for six months. “’I was left naked, sleeping on the barren concrete,’” Bahir told AP. He said his interrogators would tie him to a chair and sit on his stomach. They also hung him naked, he said, for hours on end. Bahir was subsequently moved to US military custody in Bagram and released in May 2008.

Arsala Khan, when in his mid-50s, was captured in 2003 and accused of having guided Osama bin Laden through the mountains of Tora Bora to safety in 2001. Kept in a CIA black site in Afghanistan, the Senate report said:

After 56 hours of standing sleep deprivation, Arsala Khan was described as barely able to enunciate, and being “visibly shaken by his hallucinations depicting dogs mauling and killing his sons and family.” According to CIA cables, Arsala Khan “stated that [the interrogator] was responsible for killing them and feeding them to the dogs.” Arsala Khan was subsequently allowed to sleep. Two days later, however, the interrogators returned him to standing sleep deprivation. After subjecting Khan to 21 additional hours of sleep deprivation, interrogators stopped using the CIA’s enhanced interrogation techniques.

Khan was kept at Bagram for a further four years, despite the US coming to believe he was innocent, after, the Senate report said, “the development of significant intelligence indicating that the source who reported that Arsala Khan had aided Usama bin Laden had a vendetta against Arsala Khan’s family.”

Janat Gul (also known as Hammidullah), former president of Ariana Airline, was captured in January 2003 in Lashkargar, Afghanistan. He was held in a secret CIA prison in Bucharest, Romania, in 2004 where he was subject, said the Senate report to “continuous sleep deprivation, facial holds, attention grasps, facial slaps, stress positions, and walling until he experienced auditory and visual hallucinations. Janat Gul was subsequently transferred to Guantánamo Bay and was finally released to Afghanistan on April 18, 2005.

Muhammad Rahim was detained by the Pakistani intelligence agency, the ISI, and handed over to the US in 2007. It seems Pakistan had told the US he might know the whereabouts of bin Laden and, as AAN has written, while held in a CIA black site in Afghanistan, Rahim was subject to slapping, hooding, solitary confinement, dietary manipulation and prolonged bouts of sleep deprivation:

Rahim was forcibly kept awake by being shackled in a standing position; he was also made to wear a diaper so that toilet breaks would not interrupt the sessions and, probably, as a further means of humiliation. After a first session of 104.5 hours – more than four days – without sleep, he started suffering hallucinations and was allowed to sleep for eight hours. Then, after a psychiatrist determined he had been faking the hallucinations, he was forcibly prevented from sleeping for another two and a half days. In all, he suffered eight sessions of sleep deprivation, including three which lasted for more than four days and one, the last, which lasted for almost six (138.5 hours).

The CIA interrogators, said the Senate Report, produced no disseminated intelligence report. Even so, the US believed and continues to believe it had captured a senior associate of bin Laden. He was transferred to Guantanamo and remains there till this day. He is the last known detainee of any nationality to be rendered and tortured by the CIA and the last Afghan to be taken to Guantánamo Bay. Because the US military has classified Rahim as a ‘high value’ detainee which means the detail and much of the substance of the US case is secret. His lawyer has said he cannot publically say why he believes Rahim is innocent because to do so would reveal classified information. He has been deemed a ‘forever prisoner’, ie not suitable for release or criminal trial. (For more on this case and the many questions surrounding the US assertions of Rahim’s al Qaeda membership, see this longer AAN report).

 

(1) The following allegations were made (text from the 8 September 2010 decision by the Court of Appeal when it overturned its earlier ruling, made in April 2009 that the government could not invoke the state secrets privilege to dismiss an entire suit, only to dismiss specific evidence):

Plaintiff Binyam Mohamed, a 28-year-old Ethiopian citizen and legal resident of the United Kingdom, was arrested in Pakistan on immigration charges. Mohamed was allegedly flown to Morocco… where he claims he was transferred to the custody of Moroccan security agents. These Moroccan authorities allegedly subjected Mohamed to “severe physical and psychological torture,” including routinely beating him and breaking his bones. He says they cut him with a scalpel all over his body, including on his penis, and poured “hot stinging liquid” into the open wounds. He was blindfolded and handcuffed while being made “to listen to extremely loud music day and night.”

After 18 months in Moroccan custody, Mohamed was allegedly transferred back to American custody and flown to Afghanistan. He claims he was detained there in a CIA “dark prison” where he was kept in “near permanent darkness” and subjected to loud noise, such as the recorded screams of women and children, 24 hours a day. Mohamed was fed sparingly and irregularly and in four months he lost between 40 and 60 pounds. Eventually, Mohamed was transferred to the U.S. military prison at Guantanamo Bay, Cuba, where he remained for nearly five years. He was released and returned to the United Kingdom during the pendency of this appeal.

Plaintiff Bisher al-Rawi, a 39-year-old Iraqi citizen and legal resident of the United Kingdom, was arrested in Gambia while traveling on legitimate business. Like the other plaintiffs, al-Rawi claims he was put in a diaper and shackles and placed on an airplane, where he was flown to Afghanistan. He says he was detained in the same “dark prison” as Mohamed and loud noises were played 24 hours per day to deprive him of sleep. Al-Rawi alleges he was eventually transferred to Bagram Air Base, where he was “subjected to humiliation, degradation, and physical and psychological torture by U.S. officials,” including being beaten, deprived of sleep and threatened with death. Al-Rawi was eventually transferred to Guantanamo; in preparation for the flight, he says he was “shackled and handcuffed in excruciating pain” as a result of his beatings. Al-Rawi was eventually released from Guantanamo and returned to the United Kingdom.

Plaintiff Farag Ahmad Bashmilah, a 38-year-old Yemeni citizen, says he was apprehended by agents of the Jordanian government while he was visiting Jordan to assist his ailing mother. After a brief detention during which he was “subject[ed] to severe physical and psychological abuse,” Bashmilah claims he was given over to agents of the U.S. government, who flew him to Afghanistan in similar fashion as the other plaintiffs. Once in Afghanistan, Bashmilah says he was placed in solitary confinement, in 24-hour darkness, where he was deprived of sleep and shackled in painful positions. He was subsequently moved to another cell where he was subjected to 24-hour light and loud noise. Depressed by his conditions, Bashmilah attempted suicide three times. Later, Bashmilah claims he was transferred by airplane to an unknown CIA “black site” prison, where he “suffered sensory manipulation through constant exposure to white noise, alternating with deafeningly loud music” and 24-hour light. Bashmilah alleges he was transferred once more to Yemen, where he was tried and convicted of a trivial crime, sentenced to time served abroad and released.

Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

Plaintiff Abou Elkassim Britel, a 40-year-old Italian citizen of Moroccan origin, was arrested and detained in Pakistan on immigration charges. After several months in Pakistani detention, Britel was allegedly transferred to the custody of American officials. These officials dressed Britel in a diaper and a torn t-shirt and shackled and blindfolded him for a flight to Morocco. Once in Morocco, he says he was detained incommunicado by Moroccan security services at the Temara prison, where he was beaten, deprived of sleep and food and threatened with sexual torture, including sodomy with a bottle and castration. After being released and re-detained, Britel says he was coerced into signing a false confession, convicted of terrorism-related charges and sentenced to 15 years in a Moroccan prison.

(2) As AAN has previously written, the effects of sleep deprivation are well documented, including by the US courts. Hernan Reyes, a specialist in the medical effects of detention working with the International Committee of the Red Cross (ICRC), writing about psychological torture for the ICRC Journal quoted a 1944 case in America (Ashcraft v. Tennessee):

Although [the defendant] Ashraft was only subjected to 36 hours of sleep deprivation, the court ruled it to be both physical and mental torture. In a ruling not only categorizing sleep deprivation as torture but further emphasizing the unreliability of any information obtained in such a way, US Justice Hugo Black stated that ‘‘deprivation of sleep is the most effective torture, and certain to produce any confession desired.’’

After two nights without sleep, according to a psychoanalyst working with victims of torture who was quoted by Reyes, “the hallucinations start.” After three nights, people dream while awake, “a form of psychosis,” the psychoanalyst says. “By the week’s end, people lose their orientation in place and time – the people you’re speaking to become people from your past; a window might become a view of the sea seen in your younger days. To deprive someone of sleep is to tamper with their equilibrium and their sanity.”

(3) AAN wrote:

The information available, says the Office of the Prosecutor (OTP), provides a reasonable basis to believe that during interrogations of security detainees and in conduct supporting those interrogations, members of the US armed forces and the CIA:

… resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape… Specifically:

Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.

Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

Crucially, the OTP says, these “alleged crimes were not the abuses of a few isolated individuals,” but rather were part of a policy:

The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan.

 

 

 

 

Serbian Zastava M92 Compact Assault Rifle

A new law on freedom of assembly is under consideration in Afghanistan. The National Security Council (NSC) decided to replace the current Law on Gatherings, Demonstrations and Strikes (hereafter called the Assembly Law) after the deadly explosion which targeted protesters in the Deh Mazang area of Kabul on 23 July 2016. A draft of the law, leaked on 8 July 2017, has led to strong reactions from civil society, as it became obvious that the new law would seriously restrict the right to organise and participate in demonstrations, public gatherings, strikes and sit-ins. A group of civil society activists has now asked the government to amend the draft. In this Q&A, AAN’s Ehsan Qaane goes through the new draft law in detail, explains why it was drafted, what its implications might be and what reactions to it have been.

1. Why is the Assembly Law being redrafted?

Various factors came together to prompt the renewal of the Assembly Law: the fear of demonstrations getting out of hand and threatening a vulnerable government, the wish to limit the negative repercussions of prolonged protests on the economic and civilian life of a city, the need to protect demonstrators in mass protests from possible terrorist attack, and the need to fix a faulty law.

The current law was enacted in January 2003 based on the 1964 constitution (also known as King Zahir Shah’s Constitution, full text here), as the current constitution had not yet been endorsed (this happened in the Constitutional Loya Jirga on 24 January 2004). The decision to renew the Assembly Law was made by the National Security Council on 31 August 2016, one month after a suicide attacker detonated his explosives in the middle of a mass protest by the Enlightenment Movement, on 23 July 2016; the bomber killed more than 80 people and injured around 300 others (see AAN’s analysis about the Enlightenment demonstration here and here). The drafting process of the new Assembly Law was accelerated during another round of massive demonstrations and sit-ins by another protest movement, ‘Uprising for Change’ that took place in Kabul from 2 to 20 June 2017 (more details here and here). Uprising for Change is a socio-political movement, led by group of independent young politicians and civil society activists, mainly Tajiks.

The Enlightenment Movement, led by a group of MPs, social activists and young politicians, mainly Hazara, had called the 23 July 2016 demonstration in Deh Mazang to protest the Afghan government’s decision to route a major electricity transmission line, known as TUTAP (an acronym for Turkmenistan-Uzbekistan-Tajikistan-Afghanistan-Pakistan) from Hairatan to Kabul through Salang, rather than through Bamyan (see AAN’s analysis here and here). The protesters claimed the decision was motivated by discrimination against Hazaras who form a majority in the central region of the country, including Bamyan province. The protesters demanded the routing of TUTAP through Bamyan.

Though President Ghani banned any demonstrations for ten days after the Deh Mazang attack, his ruling failed to stop protests outside the country, which continued for several months, against the government in general and him in particular. Expatriate Afghans demonstrated against the president when he attended the Brussels Conference in October 2016, the Munich Security Conference in February 2017 and during a visit to Australia in April 2017. (1)

The Enlightenment demonstration was neither the first, nor the last demonstration since President Ghani’s administration was inaugurated in September 2014. At least in the capital, three large demonstrations were organised before the Enlightenment protest and one after it. There was the Farkhunda demonstration on 24 March 2015 (2), the demonstration of the so-called Tabasum Revolution on 11 November 2015 (3) and the first demonstration of the Enlightenment Movement on 16 May 2016. (4)

Then on 2 June 2017, thousands of Kabuli citizens, organised by Uprising for Change, took to the streets after a massive truck-bomb was detonated in Wazir Akbar Khan killing 150 people and injuring 500 more (more details here and here). The protesters demanded the resignations of President Ghani, Chief Executive Abdullah Abdullah, National Security Advisor Hanif Atmar and the security minsters for what they said was their continued failure to protect the lives of Afghan citizens in Kabul and other provinces. Six protesters, including Salem Izadyar, the son of the deputy chairman of the Upper House of the Afghan Parliament, were shot dead by soldiers from the Kabul garrison (see here). The situation was further inflamed when his funeral was targeted by two suicide bombers. The protesters, mainly Tajiks, installed protest tents at several intersections in Kabul, virtually shutting down parts of the city for 18 days until their last tent was forcibly removed by the Kabul garrison during the night of 20 June 2017 (see here).

While the Uprising for Change sit-ins continued in Kabul, President Ghani organised a large number of meetings with various groups, including political parties, civil society organisations and trade unions. In his meetings, the president discussed the negative impact of the ongoing sit-ins to public order, to the income of the private sector and the lives of private citizens. According to his official website, President Ghani met around 3,000 individuals and promised to “set the limits of freedom” explaining that “our national interests and Islamic values are our limits” (see here). According to a one-page report that was attached to the leaked draft of the law, the Law Committee of the cabinet resumed and accelerated drafting the new Assembly Law on 12 June 2017, ten days after the Uprising for Change had started its protest.

These five large demonstrations against the National Unity government (NUG) in Kabul, and many smaller ones outside the country have challenged the effectiveness and legitimacy of its security and development strategies in the two and half years since its establishment. However, as well as concerns from the government that the protests highlighted its vulnerability, there were also other reasons why the NUG has wanted to try to restrict the right to protest.

Negative impact of protests on public order and economy

The government argues that these demonstrations have harmed public order and the economy, through the closure of roads, shops, banks, business centres and government institutions. Therefore, according to Second Vice-President Sarwar Danish, who heads the Law Committee of the cabinet, “the Assembly Law must balance maintaining the right of citizens to protest with the public order” (see here). According to the one page report, which was prepared on 10 April 2017 by the Ministry of Economy in cooperation with the security organs (AAN obtained a hard copy), as many as 187,713 state employees had not been able to get to work during the demonstration on 23 July 2016. In the report, three solutions were recommended to reduce financial losses:

“1) The route of a demonstration and place of gathering or sit-in have to be outside the centre of [large] cities to maintain public order and keep the roads open; 2) the route of a demonstration and place of gathering shall be away from business centres; and 3) the organisers of protests shall guarantee the security (masuniat) of the protest, the maintenance of public order and public property, traffic discipline and social and economic interests.”

Securing the protestors

The need to provide security for protesters may have been another reason behind the redrafting of the Assembly Law. This concern has existed from the beginning of the establishment of the NUG, with a review made three months into the presidency, and a drafting of a demonstration regulation by the National Security Council on 27 December 2014. The regulation aimed at preventing terrorist attacks against protesters (according to a hard copy of an NSC document obtained by AAN). Although it is not clear when the draft was finalised, five routes for demonstrations and a few places for gatherings and sit-ins were specified in the new regulation. All are located in the suburbs of Kabul city. (5)

A faulty law

Finally, the need to fill some gaps in the current Assembly Law was mentioned in official documents as the most pressing reason to draft a new Assembly Law. Although these documents did not provide details about the gaps, the new draft law does contain some improvements on the old one. Some of them are discussed in the next paragraphs.

2. What are the most important changes in the new draft of the Assembly Law?

The draft of the new Assembly Law, leaked on 8 July 2017, has six chapters and 33 articles. There are many changes, some for the better. Compared to the Assembly Law, the new draft has a better structure, with some articles having been shifted from one chapter to another, and some paragraphs from one article to the other. Some definitions have been added, for instance for sit-ins. But most of the changes curtail the freedom of assembly: more restrictions have been added to the right to protest, more responsibilities have been given to the organisers of protests, and more authorities given to the police (who now have fewer responsibilities).

The most substantive change is the addition of new provisions that introduce restrictions to the permitted time, subject, manner and place of demonstrations, strikes and gatherings, as well as limitations to the right of participation. Some of these restrictions may violate the constitution.

Restrictions on what protestors are allowed to protest

According to para (1.1) of article 8, protesters only have the right to protest when they have “reform objectives”, ie objectives that aim to improve the “situation of the country socially, economically, politically, culturally, artistically and in terms of [workers’] unions and security.” Protestors could of course argue that a protest that is critical of the government and that does not explicitly fall under any of this categories could still be seen as having ‘reform objectives’ but the government could choose to disagree. For instance, the Uprising for Change movement demanded the resignation of the president, the CE and the national security adviser, arguing that the resignation of these officials would change the security situation for the better. However, this demand was called “irrational” by some Afghan senators.

In para (1) of article 21, the drafters of the new law – representatives of the Ministry of Justice, the Ministry of Interior and the Attorney General’s Office and Nasrullah Stanekzai, the head of the Presidential Judicial Board – listed the characteristics of unlawful protests, saying that “gatherings, strikes, demonstrations and sit-ins on the basis of ethnic, religious and regional demands are not allowed.” This restriction harms the right of ethnic and religious minorities, as well as the rights of residents of particular areas. For example, based on this article, it appears that Afghan Sikhs would no longer be able to demonstrate to demand the protection of their religious rights. Or the residents of Kandahar would, for instance, not be allowed to organise a sit-in to ask for cheaper electricity in their area. Such restrictions were never part of the Assembly Law, which in its article 4 only determines a few basic red lines saying that “the protesters shall not carry weapons, violate the constitution or stand against national interests.”

Restrictions on when and how long protestors are allowed to protest

There are already restrictions in the current Assembly Law and these have been added to. The ban on demonstrations between sunset and sunrise and within 48 hours of an election, referendum or Loya Jirga (Article 8) has been expanded to include demonstrations during those events as well (Para (2) of article 11 of the draft law). There is a new ban on any sit-in that lasts more than three days (Para (7) of article 10). The ban on any kind of protests during a state of emergency (Article 21) remains.

Although limitations on demonstrations before and during an elections or referendum might make sense, this seems less obviously true before or during a Loya Jirga. During an election or referendum, each citizen uses their vote to make a decision, but in a Loya Jirga it is the officials and politicians who make decisions about issues that are directly connected to the fundamental rights of citizens, including amending of the constitution. Citizens should be able to protest and raise their voices, before and during a Loya Jirga.

Not allowing a sit-in to continue for more than three days makes it a much less effective tool for protesters, as the government knows the protest must end and will not cause it any serious problems. In general, protests are not held only to make the government aware of people’s demands, but also to force the government, through public power, to address them.

Restrictions on where protestors are allowed to protest

Article 3 of the new draft, and also of the current Assembly Law, distinguishes two types of places: public and private. ‘Public places’ refers to roads, squares, parks and other places where people can freely move and assemble. ‘Private places’ refers to an area where movement and assembly is subjected to the permission of the owner, possessor, or custodian officials. The definitions of public and private places are very similar in the Assembly Law and the new draft. Only “the permission of possessor or custodian officials” which covers state property, is added to the definition of private place provided in the draft. In other words, state property is now considered a ‘private place’.

Article 8 of the current Assembly Law only bans demonstrations, gatherings and strikes in areas close to military establishments, places where explosive and combustible material is stored, hospitals and nurseries.

The new draft expands certain restrictions using the notion of public and private places. According to para (2) of article 7, the police may ban gatherings, strikes, demonstrations and sit-ins in private places, “if necessary,” though the term of ‘necessary’ is left undefined. Para (3) of article 10 stresses that “No person may use the right to gatherings, strikes, demonstrations and sit-ins to block public roads in a manner that prevents the movement of traffic and operation of government and non-government institutions.” Para (1) of article 14 gives authority to the police to specify the route of protests under “specific conditions” which, again, are not defined either. Para (1) of article 11 states that:

Gatherings, strikes, demonstrations and sit-ins shall not be held in the following places: 1) within 500 metres of military facilities; 2) within 500 metres of explosive and combustible material storage spaces; 3) in border regions; 4) within 200 metres of hospitals, kindergartens, nurseries, holy sites, schools, higher education institutions, and government administrations; 5) in the vicinity of critical and important storage facilities and resources; 6) in the vicinity of detention centres (prisons, detention centres, [police] custody centres, and juvenile rehabilitation centres); and 7) on public roads that prevent movement of traffic completely.

Given how big cities are constructed in Afghanistan, this seriously limits the choice of available routes and places for demonstrations. Moreover, security concerns over mass protests often lead the government to close the roads along the route of a demonstration. The new rules will so severely restrict where protests can be legally held that is difficult to imagine them now being able to take place in the centre of big cities. Indeed, none of the routes described in the 2014 demonstration regulation would be permissible for protests.

Restrictions on protestors’ right to participate in protests

The current Assembly Law, as well as the new draft, bans protests by members of the Afghan security forces (article 24) and foreign citizens (article 22; who could be expelled from the country).

Para (5) of article 10 of the draft law also bans the participation of children and para (6) bans “influential people” from “politically intervening” in any kind of protest (the term is not defined in the draft). Banning children and ‘influential people’ from participating in protests appears to be contrary to article 36 of the constitution; it gives the right of demonstration or gathering to all citizens of Afghanistan, without any explicit exception. The constitutional right to demonstrate does not only cover the right to be actually present at these civic protests, but appears to cover the broader right to be involved through political, technical and financial support, which might be interpreted as ‘intervention’ under para (6) of article 10.

Other restrictions in the new draft law

Both the current Assembly Law and the new draft ban all kinds of protest when security concerns exist. Article 14 (current Assembly Law) and article 18 (the new draft) state that if the area of gathering, strike, demonstration or sit-in is no longer safe because of security concerns, protesters must immediately leave the area. Articles 8 and 29 (the new draft) say that protests will be allowed when there are no security concerns. However, neither the current law, nor the draft provides a specific and clear definition or description of the term “security concerns.” This vagueness can easily be misused by the government. The cancelation of a demonstration on 24 July 2017, on the date of anniversary of the 23 July 2016 Enlightenment demonstration and suicide attack, could be an example here, at least according to MP Raihana Azad, a member of the high council of the Enlightenment Movement and the only female MP from Uruzgan province. She said the Kabul police sent two letters to the Enlightenment Movement warning of the high possibility of terrorist attacks against protesters during their planned demonstration. It said that if they wanted to protest, they would be responsible for any consequences. As a result, the organisers cancelled the demonstration, despite not being convinced about the reality of security threats.

Para (6) of article 10 of the draft bans hunger strikes that could result in the death of the hunger striker(s). (A strike (etesab) in the new draft is defined as “the collective abstention by employees of governmental or non-governmental organisations from working, or the refraining from eating, which they exercise in order to achieve a specific goal.”

New divisions of responsibilities and authorities

The draft has given new responsibilities to the organisers of demonstrations, gatherings, strikes and sit-ins, which are legally problematic. Para (4) of article 9, for instance, makes the organisers responsible for any unlawful action that happens during the protests, regardless of whether the organisers had any role, whether active or passive, in the unlawful act. This is against the ‘modes of liability principle’ that crime is a personal act, guaranteed in article 26 of the constitution. Para (2) of article 25 (Chapter Five: Criminal Provisions) obliges the organisers “to prevent the protesters from resorting to arbitrary violence and, if they are unable to do so, to report the issue to the security authorities.” Para (3) of article 25 also obliges the organisers to identify protesters who commit violence and introduce them to the police. This seems not only impractical, but to also interfere with article 134 of the constitution, which stipulates that the investigation of a criminal act is the responsibility of police. Identifying perpetrators is part of investigating a criminal act. Putting this responsibility on the shoulders of organisers is akin to giving permission to random people to intervene in a criminal investigation and prosecution processes, something which is not allowed by the Criminal Procedure Code. Moreover, the organisers are unlikely to have the capacity to do so.

In relation to the authority of the police, the new draft law is technically clearer than the existing law. Article 5 of the draft law names the Ministry of Interior as the enforcing authority of the Assembly Law. Only when the police are unable to control violence during protests, can it ask help from other security forces, according to para (3) of article 17.

Police obligations, duties and authorities are covered under chapter three (article 14 to 20) of the draft law. Article 17 gives the police the authority to use physical barriers (such as containers and T-walls) and provide riot gear and equipment to policemen if protests turn violent. If protesters continue to commit violence, the police can respond aggressively, including opening fire, based on the Police law (gazetted in 2009). Although this provision is already covered in the current Assembly Law, more details and technical clarity is provided in the draft.

The most egregious point in the draft, however, is the authority given to the police to withhold permission for demonstrations, gatherings, strikes and sit-ins, if they determine they may threaten the public order or there is a security concern (para (3) of article 29). Though the organisers can appeal a refusal to the Ministry of Interior (in Kabul) or the governor’s office (in provinces), the subsequent decision of the ministry or the governor’s office will be final (para (4) of article 29). The police also have the authority to cancel a permission after its issuance it has been given (para 2 of article 20).

3. How do the new draft and the current Assembly Law protect the freedom of assembly?

Both the current Assembly Law and the draft mention protests as the right of every Afghan citizen. According to article 4 in the new draft (article 2 in the current law):

Citizens of the country shall have the right to gather, strike, demonstrate and sit-in, without carrying weapons and in accordance with the law, for peaceful and lawful purposes which are not against the national interests and provisions of the Constitution.

Article 36 of the constitution foresees the right of “demonstrating and gathering,” without defining this, but does not explicitly mention the right to go on strike or hold a sit-in. ‘Strike’ was added and defined in the current Assembly Law and ‘sit-in’ in the draft of the new assembly law. Recognition and definition (4) of demonstration, gathering, strike and sit-in are the most notable parts of these two legislative documents in terms of maintaining the right to protest.

In addition to that, article 6 of the current Assembly Law obliges the government to ensure the security of the protesters. This provision has been removed from the draft.

Both the draft and the currently Assembly Law prevent intervention by the police in ongoing peaceful protests, ie those which are conducted in accordance to the law. Both documents forbid the government from prohibiting citizens from using their right to conduct demonstrations, gatherings, strikes and sit-ins without “serious specified excuse[s]”. These two obligations make the government responsible for providing an atmosphere in which citizens can enjoy their right to protest.

Though the mentioned provisions are strong, they are in practice undermined by the many other restrictions and the fact that the government has absolved itself of the responsibility to ensure the security of protesters.

4. How has Civil Society and the Afghan Independent Human Rights Commission (AIHRC) reacted to the new draft law?

Nine days after the draft was leaked on 8 July 2017, a group of Afghan civil society organisations called a press conference to share their concerns about the draft (full text here). They compared the legislation to the laws of the Afghan communist regime (1979 to 1992) saying that:

The recent National Unity Government’s decision to redraft the demonstration [Assembly] [L]aw, particularly after the last two demonstrations [the Enlightenment demonstration and the [U]prising for [C]hange demonstration] is evidence of an attempt to control the freedom of citizens. This reminds the public of the suppression, torture, and assassination policies that were enacted from the late 1970s to the late 1980s […].

In their press release, they also mentioned:

The draft law stands against all democratic values and principles. The confining and limiting aspects of this draft obviously violates the constitution of Afghanistan, all democratic values, and are against all the gains that we have struggled for during the past fifty years of our history.

The day after the press conference, on 18 July 2017, the Law Committee of the Afghan cabinet invited representatives of civil society organisations and the Afghan Independent Human Rights Commission (AIHRC) to provide their opinions in the draft. According to Khalil Raufi, one of the civil society representatives, they could not review the whole draft in the meeting. Nevertheless, Sarwar Danish asked them to submit their recommendations in writing. In the meeting, Danish asked the representative of the Ministry of Justice to finalise the draft after receiving the recommendations and to submit the draft to the cabinet for its approval.

The AIHRC and the group of civil society organisations submitted their recommendations on 25 July 2017 (see here). They recommended removing all phrases that were open to differing interpretations or that could be misinterpreted. (6) They determined that para (4) of article 9, which holds organisers responsible for any unlawful acts committed by protesters was against article 26 of the constitution and asked for its removal. They also recommended that all protests should be based on the principle of ‘pre-announcement’ rather than ‘pre-permission’ meaning that protesters do not need to gain permission to protest, but rather that informing the police should be enough.

(So far, there has been no organised response from other parties, whether economic groupings of business people or trade unions) or political parties. Nor has the draft been debated in parliament.)

5. How do the two main mass opposition movements view the draft law?

The Enlightenment Movement has not had any public position on the new draft of the Assembly Law, but MP Raihana Azad of its high council, criticised the government’s move in a conversation with AAN on 13 August 2017. She accused President Ghani and a close circle around him in the palace of trying to shut up any voice against the government by re-writing the Assembly Law:

Demonstrations and media are two tools that citizens and political opponents have to raise their voices against the policies and failures of the National Unity Government. The draft [of the new Assembly Law] indirectly and practically bans demonstrations, even though it determines demonstration as a right of citizens. The barriers on place, in the draft, are set in such a way that the protesters cannot find places in big cities for their demonstrations. They are not allowed to demonstrate close to universities, schools, hospitals, military facilities and explosive materials storages. The protesters are banned to close roads during their protest, which is impossible to avoid in practice.

The Uprising for Change movement released a statement at the end of their final demonstration on 27 July 2017, denouncing the draft as against the constitution, the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights (see here) Asar Hakimi, a member of the leadership council, told AAN on 14 August 2017 that he believed the current Assembly Law was being re-drafted to restrict civic movements like his own. He believed the curtailment of sit-ins to only three days was, in particular, a direct response to their 18 day sit-ins and protest tents in June 2017. Hakimi also complained that even now, the situation for protesters was not easy; when the Uprising for Change informed Kabul police about their second demonstration, it took almost a week for the permission was issued, though the police are obliged to provide a space for protest 24 hours after an application is submitted.

Edited by Martine van Bijlert, Sari Kouvo, Jelena Bjelica and Kate Clark

 

(1) For example, on 5 October 2016, during the Brussels Conference for Afghanistan, where most of Afghanistan’s international donors came together to promise their support for the coming four years, a demonstration against President Ghani’s development policy was organised in Brussels. The protesters asked Afghanistan’s international donors to support the Afghan government on the condition that there would be no more discrimination. Inside the country, public discontent among the Hazara population increased against the president and his national adviser, Hanif Atmar, with some claiming that government officials, including Atmar, had intentionally not provided security to the protesters. For more analysis about the challenges the Enlightenment Movement created to the National Unity Government (NUG), see this previous AAN analysis).

(2) Six months after President Ghani became president of the National Unity Government (NUG), Farkhunda Malikzada, a young woman, was cruelly beaten to death and her body burned by a mob in the centre of Kabul, while dozens of Afghan policemen watched (more details here and here). The shocking crime in the middle of the city led to a large demonstration in front of the Supreme Court on 24 March 2015 (more details about the prosecution of the perpetrators here). The protesters criticized the NUG’s security forces for its failure to protect Farkhunda, noting that the atrocity occurred within a few kilometres of the presidential palace, and went on for more than half an hour. They demanded that the Supreme Court prosecute both the perpetrators and the policemen who did not prevent the murder (see here).

(3) On 11 November 2015, thousands of Kabul citizens demonstrated and marched toward Pashtunistan square, where one of the entries of the presidential palace is located. The protesters had named their demonstration Enqilab-e Tabasum (Tabasum Revolution), after Shukria Tabasum, a nine-year old girl, one of seven Hazaras who had been abducted and beheaded by anti-government forces in Zabul province (local officials claimed that ISIS had committed this atrocity). They had been part of a larger group of 31 Hazaras who had been taken hostage on their way from Kandahar to Kabul and held for 50 days, before being beheaded (see here). The massive demonstration and the fact that a group of angry protesters managed to enter the grounds of the presidential palace (but were stopped after the security guards opened fire), greatly alarmed the government (see this AAN dispatch for more details and this article).

(4) On 16 May 2016, the Enlightenment Movement held its first demonstration, which was even larger than the one that took place a few weeks later on 23 July 2016. Karim Khalili, the former second-vice president under Karzai (now the chairman of the High Peace Council), was one of the organisers that time. He left the movement to create a joint technical committee, established by President Ghani, that was to revise the route of TUTAP line. However the main body of the movement did not accept the governmental led committee and continued their protest.

(5) Based on this regulation, demonstrations can only be conducted on the following routes 1) Shahid Mazari Square toward Haji Nabi [Omid Sabz] town (west and southwest Kabul); 2) Kutal-e Khairkhana to Cheshm-e Dugh (north Kabul); 3) Chaman-e Hozuri (centre of the city); 4) Kart-e Naw to Ahmad Shah Baba Maineh Square (east Kabul); and 5) Beni Hesar to Pul-e Sang Naweshta (south Kabul). Parks, such as Shahr-e Naw Park, Chaman-e Hozuri and Park-e Heseh Awal-e Khairkhana, were allocated for gatherings and sit-ins.

(6) For example sub para 3 of para (1) of article 8 states: “the organisers [of protests] shall commit not to carry weapons, lacerating and battery tools, not to disrupt the public order and safety and not to promote divisions, hatred, discrimination, violence and conflict.” They suggested to only keep “shall not carry weapons, lacerating and battery tools” and remove the other parts.

(7) In the new draft, demonstrations, gatherings, strikes (with mini-changes compare to the current Assembly Law) and sit-ins are defined as follows:

Gathering: an assembly of more than 10 people in an organised and coordinated manner in a public space where they express their opinion and sentiments regarding a legitimate and lawful matter to attract the government and public opinion regarding the matter.

Strike: the collective abstention by employees of governmental or non-governmental organisations from working or refraining from eating which they exercise in order to achieve a specific goal.

Demonstration: a peaceful, organised and public gathering and march of people on a specified route to express their sentiments or make specific demands.

Sit-in: a situation where one, or more than one, person occupies a specific place by setting up tents, or without tents, in order to make legitimate and lawful demands or see his/her absolute rights or those of other persons fulfilled.

 

 

 

 

On 22 August France joined the EU SatCom Market, becoming the 24th member of this EDA initiative launched in 2009 to provide contributing members with flexible commercial satellite communication (SatCom) solutions and more recently also Communication and Information System (CIS) services.

SatCom and CIS services are fundamental for Communication, Command and Control in any military or security related operation or mission. It enables Commanders to connect units in remote areas with HQs and capitals and to manage its mission and tasks. The EU SatCom Market project provides a flexible and cost-effective way of doing this, offering members a pay-per-use solution without imposing any binding financial commitments beyond services ordered. 

The contributing members have mandated the EDA through a ‘Joint Procurement Arrangement’ (JPA), to manage the project including the negotiation and management of Framework Contracts (FWCs) and service requests on their behalf.  So far contracts are signed with Airbus Defence & Space for SatCom  services and with Airbus Defence & Space and Thales Communications & Security for CIS services. 

The current 24 contributing members are: Austria, Belgium, Cyprus, Estonia, France, Finland, Germany, Greece, Italy, Latvia, Lithuania, Luxemburg, Poland, Portugal, Romania, Spain, the United Kingdom, Republic of Serbia, the Athena Mechanism and the civilian missions EUCAP SAHEL Niger, EUCAP SAHEL Mali, EUAM Ukraine, EUCAP NESTOR and EUMM Georgia.
 

More information:

• EU SatCom Market project page
• EU SatCom Market factsheet

On 4 September, the Subcommittee will consider the draft report on the implementation of the Common Security and Defence Policy by Michael GAHLER, EPP. The draft report advocates a thorough revision of the CSDP to better equip Europe in an increasingly unstable and volatile internal and external security environment.
Further information
Meeting documents
Source : © European Union, 2017 - EP

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