Amnesty International – Left in the dark: Failures of accountability for civilian casualties caused by international military operations in Afghanistan

This report by Amnesty International examines the performance of international military forces in investigating civilian casualties and prosecuting potential war crimes committed in Afghanistan between 2009 and 2013. Considering that United States troops have comprised the large majority of international forces in Afghanistan, the report focuses, in particular, on the U.S. record of accountability. To this end, it relies on interviews with survivors of military operations by international forces, family members of the victims and eyewitnesses, as well as documentary records.  

The report comprises nine sections. Following a brief summary of the findings, Section Two provides a background analysis of the structure of the international forces operating in Afghanistan. Section Three describes the principal scenarios that have resulted in civilian casualties, namely air strikes, night raids (frequently carried out by special operation forces), and escalation of force incidents. It is noted that, although data are incomplete, approximately 1,800 civilian deaths have been recorded in the period from 2009 to 2013. Section Four discusses ten case studies, in which a total of at least 140 civilians were killed and for which no person has been criminally prosecuted. These incidents raise concerns about the unlawful use of force by international forces and the lack of prompt, thorough and impartial investigations by the competent authorities. It is each troop-contributing country’s national justice system that is responsible for investigating and prosecuting crimes committed by that country’s troops. Pursuant to the ISAF agreement, indeed, Afghan courts have no jurisdiction over offences committed by international military personnel in the territory of the State. In this respect, Section Five defines the main limitation of ISAF’s role in investigating civilian deaths and the challenges of overseas prosecutions of crimes committed in Afghanistan.

The Sixth Section focuses specifically on the US military justice system, highlighting both substantive and procedural obstacles to meaningful investigations and prosecution of alleged crimes perpetrated by U.S. troops. The legal foundation of the military justice system is the Uniform Code of Military Justice, which applies to all active-duty military personnel both in the U.S. and abroad. Substantially, the Code does not include a specific section on war crimes nor makes any reference to the Geneva Convention. Thus, military personnel in Afghanistan accused of having deliberately killed civilians have been charged with murder. From a procedural standpoint, the military justice system is “commander-driven”, for it is the commander who decides whether a case will be referred to trial, resolved administratively, or dropped altogether. A defendant’s commanding officer also has the power to veto any prosecution, no matter how clearly in the interests of justice it is. Because commanders have little incentives to push investigation forwards, very few cases make it to court. Even if they do, the judges in all the proceedings are drawn from the military itself and are hand-picked by the commanding officer who oversees the trial.

Section Seven includes an overview of international legal standards on accountability applying to international forces operating in Afghanistan. Particular attention is given to the duty to investigate unlawful civilian deaths and prosecute those responsible.

Sections Eight and Nine respectively present AI’s conclusions and recommendations to the U.S. Government, NATO/ISAF and the Government of Afghanistan. The report notes that international forces in Afghanistan have a poor record of accountability and many incidents that appear to have violated international humanitarian law go uninvestigated and unpunished. U.S. military’s investigative and prosecutorial system, in particular, presents important structural flaws, including lack of independence. Accordingly, Amnesty International encourages the U.S. to consider reforming the military justice system, publish annual reports on civilian casualties, follow-up on the cases outlined in the report, and establish an Office of Civilian Protection responsible for monitoring the military’s efforts to protect civilians.