The Afghan president, Hamid Karzai, has demanded the return of all Afghans held prisoner by the UK military in Helmand, giving London a two-week deadline that is legally impossible for the government to meet.
Last year UK courts banned the government from transferring Afghan prisoners to their own justice system because of widespread torture in Afghan prisons.
Earlier this month the defence secretary Philip Hammond announced that Kabul and London had agreed safeguards to protect prisoners from torture, and that handovers would start after three weeks.
The delay is a requirement to allow for any legal challenges to the decision, and is almost certain to stretch out far longer, as lawyers acting for the prisoners have already said they will challenge the decision in court.
But Karzai has demanded custody of the prisoners by 22 June. His spokesman said the British legal system should not be used as “an excuse” to delay the handover.
“We are living in Afghanistan and we are talking about Afghans detained on Afghan soil and held in Afghanistan. According to our laws this is a breach of sovereignty,” Aimal Faizi told the Guardian.
“The UK … is another country with its own laws and sovereignty, [which] don’t mean anything here in Afghanistan.”
His tough stance sets the stage for weeks or even months of confrontation, even though the UK government insists it is as keen to transfer the prisoners as Karzai is to take custody of them.
“It is UK government policy to transfer UK-captured detainees into Afghan custody at the earliest opportunity. It has been the threat of UK court action that has prevented us from transferring detainees to the Afghan authorities since last November,” the British Embassy said in a statement.
“We must be satisfied that they do not face a real risk of serious mistreatment or torture. As a matter of priority the UK has been working with the Afghan government to identify a safe transfer route.”
Nato has periodically halted, then resumed, transfers of prisoners to Afghan authorities over torture concerns documented in detail by the UN. The Afghan government has also conceded that there was torture in some jails, but has been persistent in calling for control of all Afghan prisoners detained on their own soil.
Karzai had previously focused his ire on the US forces, who held a far larger number of people in a more notorious prison attached to the Bagram airbase.
Earlier this year the US handed over the vast detention complex it had built and originally run. The UK says the men held in Helmand will be sent only to this jail, which is large enough to manage all stages of detention, and open to UK monitoring to ensure there are no abuses going on.
Lawyers say previous agreements to keep prisoners in jails where the UK could monitor them for signs of torture were flouted by the Afghan government and there was nothing to suggest the latest deal had any better safeguards.
