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