The families of thousands of Afghan civilians killed by US and NATO forces in Afghanistan have been left without justice, Amnesty International said in a new report released today, just months before the planned withdrawal of the remaining international forces from the country at the end of this year.
Focusing primarily on air strikes and night raids carried out by US forces, in particular the ‘Special Operations Forces’, the 84-page report, Left in the Dark
, finds that likely war crimes have gone un-investigated and unpunished.
The report warns of a “seriously tainted legacy” for the international military operation, if Afghan families seeking justice continue to be ignored.
Amnesty conducted detailed investigations of ten US military operations between 2009 and 2013, in which at least 140 civilians were killed, including pregnant women and at least 50 children. The organisation interviewed 125 witnesses, victims and family members.
Under international humanitarian law (the laws of war), not every civilian death occurring in armed conflict is necessarily in breach of the law. Yet if civilians appear to have been killed deliberately, indiscriminately, or as part of a disproportionate attack, the incident requires a prompt, thorough and impartial inquiry. If that inquiry shows that the laws of war were violated, a prosecution should be initiated.
However, formal criminal investigations into the killing of civilians in Afghanistan are extremely rare, and Amnesty is aware of only six cases since 2009 in which US military personnel have faced trials.
In the report, Amnesty criticises the US military justice system and says that the secrecy surrounding proceedings and determinations is unacceptable.
Two of the case studies involve abundant and compelling evidence of war crimes. The first involves a Special Operations Forces’ raid on a house in Paktia province in 2010. The second involves enforced disappearances, torture, and killings in Nerkh and Maidan Shahr districts in Wardak province, during November 2012 to February 2013. No one has been prosecuted for either of the incidents.
Of the scores of witnesses, victims and family members Amnesty spoke to, only two people said that they had been interviewed by US military investigators. In many of the cases covered in the report, US military or NATO spokespeople would announce that an investigation was being carried out, but would not release any further information about the progress of the investigation or its findings, leaving victims and family members in the dark.
Amnesty International’s Asia Pacific Director Richard Bennett said:
“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress.
“The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses.
“None of the cases that we looked into – involving more than 140 civilian deaths – were prosecuted by the US military. Evidence of possible war crimes and unlawful killings has seemingly been ignored.
“We urge the US military to immediately investigate all the cases documented in our report, and all other cases where civilians have been killed. The victims and their family members deserve justice.
“There is an urgent need to reform the US military justice system. The US should learn from other countries, many of which have made huge strides in recent years in civilianising their military justice systems.”
The report contends that the main obstacle to justice for Afghan victims and their family members is the deeply-flawed US military justice system. Essentially a form of self-policing, the military justice system is “commander-driven” and, to a large extent, relies on soldiers’ own accounts of their actions in assessing the legality of a given operation. Lacking independent prosecutorial authority, it expects soldiers and commanders to report potential human rights violations themselves, and the system has an implicit conflict of interest.
In the rare instances when a case actually reaches the prosecution stage, there are serious concerns about the lack of independence of the US military courts. It is extremely rare that Afghans themselves are invited to testify in these cases.
The report documents the almost total lack of transparency surrounding investigations of the unlawful killing of civilians in Afghanistan.The US military withholds overall data on accountability for civilian casualties, and rarely provides information on individual cases.
UK military justice reform commended
By contrast, the report notes that over the past two decades, countries such as the UK, Canada, Belgium and New Zealand have carried out extensive reforms of their military justice systems, “civilianising” their systems to various degrees by limiting the role of the commander, strengthening the independence of judges, and establishing external accountability mechanisms.
In some countries, including Denmark and Sweden, civilian courts have jurisdiction over military matters; in others, including the UK, the judges that preside over military trials are civilians, appointed in the same way as other civilian judges and benefiting from the same protections on tenure. The report finds that these changes do much to ensure fairness and due process and that they have not proven to harm military discipline or to undermine the effectiveness of military operations.
The report recommends that the US Congress commission a study of other countries’ experiences in reforming their military justice systems, and hold hearings on the topic inviting officials from countries such as the UK to testify.