On Wednesday the story broke that eight suspected insurgents have been detained for between eight and 14 months without trial in Camp Bastion, the main British military base in Helmand Province, Afghanistan. British lawyers have launched habeas corpus applications to try and get them released, along with up to 80 others detained for a shorter period. A minor media storm has followed, with allegations that the military has been operating a “secret prison” and comparisons to Guantanamo Bay. The media shirt-wringing, however, has largely missed the point, and whatever the rights and wrongs of these specific cases, there is a serious danger of setting a precedent that may dangerously hamstring our military in the future.
I should begin by stating that press and judicial oversight of the British army’s detention policies are vital. The abuse at Camp Breadbasket, murder of Baha Mousa, and the concerns regarding the Royal Military Police investigation of the Battle of Danny Boy all demonstrate that scrutiny is vital to keep the military on the straight and narrow. It should be clear that the military — a goal-focused organization with an important and difficult mission, and an overwhelming ethos of institutional loyalty — is not well placed to hold itself to account. To preserve the military’s honor for the long term, someone else has to.
I also do not want to write off the case being brought on behalf of the detained Afghans. Fourteen months is a long time to be held without trial, and it is neither possible to know from the outside the strength of the evidence against these individuals or what efforts the British government has gone to in order to try and ensure that Afghan detention facilities reach the standards needed to restart prisoner transfers.
However, the claim that Britain has been running a secret prison is patently false: The Minister of Defence has repeatedly briefed Parliament on the detention center at Camp Bastion. The normal detention period before transfer of a suspected insurgent to the Afghan authorities is 96 hours, but the military is allowed to extend this, with regular ministerial approval, for intelligence-gathering purposes. In addition, one of the primary reasons that these men have had to be held for so long is because the British military decided to stop prisoner transfers in November due to concerns that detainees faced torture at the hands of Afghan security forces.
In addition there is a real danger that we will tie the hands of the military if we overly restrict their ability to detain those who attack them. The idea that we should impose on an army fighting a counter-insurgency standards on a par with those required of civilian police is absurd. Why should our forces have to release back “onto the battlefield” those who fight against them because the judicial standard that there can be “no reasonable doubt” as to their guilt are not met?
This is even more true in a situation such as that faced in Afghanistan, where the court system is often incompetent or corrupt, where more sophisticated forms of evidence such as biometric data (or even fingerprints) are often not understood or accepted, and where much of the evidence held by the military cannot be handed to the civilian authorities due to constraints on giving them access to classified intelligence sources or equipment. The truth is that even where overwhelming evidence cannot be presented to the civilian authorities it may be clear that there is a serious danger to military personnel and mission success if they are released.
However, of equal importance is the danger that by making detention an impractical option for our military we will end up forcing them towards tactics that focus on killing rather than capturing insurgents. Dead insurgents rarely sue. And they don’t turn up again a week later to shoot at your comrades.
This is clearly a serious ethical concern. How can it be the case that we can legally kill people that we could not hold for more than 96 hours? And yet this is the place we find ourselves in because we accept that the military may kill on the basis of intelligence, but must employ judicial standards in order to imprison. We need to start thinking now about how to remedy this issue in future conflicts.
Internment — imprisonment without trial for the duration of the conflict — would apply the same standards to insurgents as we apply to prisoners of war during a conventional war, but it has a troubled history and is too open to abuse to be a sensible policy option.
A better option would be to create a system in which a court, operating independently from the military but under British jurisdiction, would judge whether suspected insurgents should be imprisoned for the duration of a conflict. The judge would need to be cleared to access all relevant intelligence, and while the court could not be open to the public the judge should be required to produce a declassified report justifying his decision. This would not provide the levels of assurance provided by a normal British trial, but it would provide a check to arbitrary detention without undermining the military’s ability to combat a counter-insurgency effectively.
The British Ministry of Defence now states that it has found “a safe route” to restart transfers to the Afghan authorities. We must hope that they have found a way to ensure that the basic human rights of prisoners will be respected. However, let’s also hope for more clear-sighted thinking by the government, judiciary, and international organizations about how to protect human rights without undermining the military’s ability to fight an insurgency.