Amid War Crimes Allegations, Afghan Government Lacks Proper Mechanisms to Investigate

Human Rights Watch recently published a detailed report outlining evidence of summary executions and other “grave abuses,” including some that the organization said amounted to war crimes, committed by Afghan paramilitary forces backed by the CIA. Human Rights Watch noted that the forces “nominally belong to” the National Directorate of Security (NDS), Afghanistan’s intelligence service, though they are “recruited, trained, equipped and overseen by the CIA.”

Human Rights Watch called for the immediate disbanding and disarming of these forces and for proper investigations to be conducted to bring those responsible for the crimes to justice. In response, the CIA deflected primary responsibility to the Afghan government. Yet the Afghan government lacks a proper investigating body or a mechanism to ensure accountability for civilian casualties.

The report detailed “14 cases in which CIA-backed Afghan strike forces committed serious abuses” between late 2017 and mid-2019. Afghan civilians interviewed by Human Rights Watch described night raids and air strikes as becoming “a daily fact of life for many communities” and referred to the forces behind them as “death squads.”

The number of civilian casualties in the Afghan conflict has been alarmingly high in recent years, and several reports have raised concerns over misconduct and harm to civilians by certain pro-government forces (for example, see here, here, and here). The United Nations Assistance Mission in Afghanistan (UNAMA), which has tracked civilian casualties since 2009, recorded 8,239 civilian casualties — 2,563 killed and 5,676 injured — during the first nine months of 2019. The last quarter of that period marked the highest number of civilian casualties in a single quarter since the mission began documentation. During the nine-month period, 41 percent of the civilian casualties were women and children, and 62 percent were attributed to “anti-government elements.”

In response, the CIA stated that it would review the report, and if the review “raises any concerns about the foreign partner’s conduct,” agency officials would make their “concerns known to the foreign partner.” That essentially means that the CIA does not consider itself primarily responsible for these forces. Human Rights Watch notes that the forces operate outside the usual chain of command under the NDS, nor do they operate under the normal U.S. or Afghan military authority.

At the same time, Human Rights Watch noted that the Afghan government lacks “both the capacity and the political will to investigate incidents involving these CIA-backed paramilitary forces.” And this is the case “despite years of training by the U.S. and others,” the organization said.

Still, the Afghan government, which is bound by international humanitarian law (IHL), is primarily responsible for civilian protection and investigating these allegations, since these incidents occurred on Afghan soil. The government has pledged to investigate the allegations. Afghanistan’s Office of the National Security Council (ONSC) issued a statement saying the Human Rights Watch report contains some mistakes alongside certain facts, but pledged to investigate the allegations and provide a detailed response.

Moreover, President Ashraf Ghani has repeatedly said that the government has zero tolerance for civilian casualties. Ghani in September accepted the resignation of the NDS chief after its forces reportedly killed four members of a family in Nangarhar province in the country’s east whom it believed were members of the Afghan arm of the self-proclaimed Islamic State extremist group. President Ghani also stated in a tweet at the time that he had ordered the Attorney General “to investigate this incident immediately, and to bring the perpetrators to justice.”

The Afghan government established the Civilian Casualties Prevention and Mitigation Board in May 2016 at the Presidential Information Coordination Center, also known as Tawhid Center, and adopted a National Civilian Casualties Prevention and Mitigation Policy in mid-2016. However, in practice, the center demonstrates little evidence of impact, considering that civilian casualties have been rising continuously in recent years. Moreover, the Tawhid Center, as Human Rights Watch also indicates, only collects data on civilian casualties and lacks any required capabilities for conducting independent investigations.

In the absence of such a permanent institutional capacity, a common practice within the Afghan government has been to issue a presidential decree forming an ad-hoc fact-finding delegation of officials from various government offices. These delegations are usually headed by one of the president’s advisors and include representatives of involved governmental institutions and Members of Parliaments (MPs). For cases of civilian casualties, the delegation usually includes a member from the ONSC, the Ministry of Defense (MOD), the Ministry of Interior Affairs (MOI), the NDS, and the Attorney General’s Office. President Ghani assigned a similar task force to investigate an incident of civilian casualties in Nirkh district of Wardak province by NDS paramilitary forces, in which seven persons were killed on Oct. 15. After the incident, the local community had protested and blocked the Kabul–Ghazni highway, a demonstration that demanded some kind of response from the government.

The Afghan government has created dozens of such delegations in recent years for investigating incidents and disputes between communities and/or between communities and the government. These delegations usually submit their findings to the president, and none of their reports are publicly available. Moreover, no security officer accused of killing or harming civilians has been brought to justice as a result of the findings of such delegations, or at least no such information has been released to the public. Usually, information that such a delegation has been formed is the last thing the public hears about an incident.

Two other factors account for the failure of such delegations to have any impact. First, the security institution involved in the incident of civilian casualties that is to be investigated generally is represented on the delegations, eroding the panel’s impartiality. As Human Rights Watch noted, many Afghan security officials do not consider the majority of those killed to be civilians. Because the Taliban and other insurgents wear civilian Afghan clothes, it is hard to distinguish them from civilians, and vice versa, so there might be cases in which a human rights organization gathering information might count a Taliban member as a civilian. Of course, the opposite is true as well – civilians may be harmed because they are suspected of being Taliban, in part based on their clothing.

The second factor accounting for the failure of the Afghan government’s ad-hoc delegations is that the members appointed often lack professional capabilities and experience for investigating such incidents, in part because they are drawn from a range of government offices and are formed anew for each case. Fact-finding missions amid an ongoing conflict, where both sides accuse each other of using civilians as human shields and of using civilian casualties as war propaganda, require high-level professional skills in addition to a commitment to seek the truth. In a conflict with such a high number of civilian casualties, it is odd and unprofessional to give the fact-finding missions to officials without prior experience in investigating such incidents and with the potential of bias.

Considering the current trend of increasing civilian casualties, the Afghan government needs to establish an independent and authorized institution for reducing and investigating civilian casualties, train Afghan National Defense and Security Forces (ANDSF) on civilian protection measures, and properly investigate all allegations of civilian harm so that those responsible can be brought to justice.

The Afghan government also should understand that its citizens have a right to be informed about the results and findings of civilian casualty investigations. Reports from such task forces should be released publicly, and the trials should either be open to the public or reports of such trials should be publicly available. Failure to adopt such measures will cost the Afghan government legitimacy and public support in the long term.

(The author’s views are his own and do not represent those of any organization with which he is affiliated.)

IMAGE: Forces with Afghanistan’s National Directorate of Security (NDS) escort an alleged militant as Taliban and Islamic State (IS) fighters are presented to the media in Jalalabad on May 23, 2019. Afghan security forces had detained seven alleged Taliban and four ISIS militants and seized a suicide vest and ammunition during an operation in Nangarhar province, an official said. (Photo by NOORULLAH SHIRZADA/AFP via Getty Images)

 

About the Author(s)

Qayoom Suroush

Researcher at the Center for Civilians in Conflict (CIVIC). Earlier served as Senior Research Advisor for the Office of the National Security Council (ONSC) of Afghanistan. Follow him on Twitter at (@Suroush1)