On Nov. 23, 2022, a Dutch civil court ruled that the Dutch state committed a tort by violating international humanitarian law (IHL)’s principle of distinction when it bombed a quala (an Afghan residential complex) in the 2007 battle of Chora. On Feb. 3, the Netherlands announced that it will not appeal this judgment and will pay damages to the plaintiffs.
According to the Netherlands, the quala that was bombed, “quala 4131,” was a lawful military objective because it was used by the Taliban to attack NATO forces. However, the plaintiffs – surviving residents of quala 4131 and next-of-kin of deceased residents – denied that it was used by the Taliban and argued that it was a civilian object, occupied by civilians. Attacking the quala was therefore a violation of IHL’s principle of distinction, the plaintiffs submitted. The principle of distinction provides that those involved in armed conflict need to distinguish between civilians and military objectives.
The court did not conclude that the quala could not have been a lawful military target. But it concluded that the Dutch state, 15 years later, could insufficiently substantiate why the military determined this quala as a military objective. The state had argued that the quala had a strategic position in the Chora Valley, that there was enemy fire on the day of the bombing from the direction of the quala, and that there must have been additional intelligence on the basis of which the quala was identified as a military target. However, concrete intelligence could not or no longer be discovered. According to the court, it may well have been a military target, but it is the duty of the state to substantiate that, which the state insufficiently did. Accordingly, the case was decided in favor of the plaintiffs.
This case therefore turned on how much information the military has to record and keep stored so that it can substantiate why “a reasonable commander” could determine a location as a military target, which the court also noted must be retained for the duration of the statute of limitations. In the Netherlands, this is five years. Because (most of) the plaintiffs had communicated to the court within that time limit, the case eventually made it to a judgment 15 years later.
The Battle of Chora
This case arises out of events during the mid-June 2007 battle of Chora, Afghanistan. After 9/11, U.N. Security Council Resolution 1386 (Dec. 10, 2001) authorized the establishment of the International Security Assistance Force (ISAF) and the use of “all necessary means” to assist the Afghan authorities to maintain security, in particular in relation to al-Qaeda and the Taliban. ISAF came under NATO command in August 2003.
In its judgment, the court relied on the following facts related to the battle of Chora. Between Aug. 1, 2006, and Aug. 1, 2010, the Netherlands was the “lead nation” in the southern Afghan region of Uruzgan. The Dutch supreme commander of the armed forces maintained so called “full control” over all Dutch military units. The locally stationed Dutch contingent commander was the “red card holder,” meaning that he was authorized to prevent the deployment of Dutch military when such would not be in accordance with the conditions the Dutch government had provided.
The command center of Task Force Uruzgan (TFU) and Camp Holland were located in Tarin Kowt, close to the strategically placed Chora Valley on a crossroads of routes to the Gizab area in the north, Khaz Uruzgan in the east, Deh Rasnan in the south, and the Baluchi valley and Tarin Kowt in the west. From April 2007 onwards, two to three platoons (of 20-30 troops each) were permanently stationed in Chora pursuant to intelligence about an upcoming attack by the Taliban to overtake the valley. Indeed, early June saw an increase in Taliban fighters in the area, and in the early morning of June 16, groups of Taliban attacked the Chora Valley from the east and west and reportedly committed atrocities against civilians.
After a day of heavy fighting, the police posts in the west were lost to the Taliban, and around 6:30 pm, the intensity of the fighting decreased. ISAF units were pushed back to an area of around 4 square kilometers around the strategically positioned “White Compound,” which the TFU commander assessed as “very threatening”: the TFU needed to either retreat from the Chora Valley or stand and fight. At 8 pm, the TFU commander took the stand-and-fight decision, requiring “all necessary means,” partially to protect Afghan civilians against being killed by the Taliban as reprisal, but also for ISAF’s credibility and Chora’s militarily strategic position.
Directly after the stand-and-fight decision, the TFU commander requested ISAF’s Regional Command South (RC(S)) provide air assets to attack Taliban targets that were identified earlier, including targets that could no longer be directly observed. This was supported by fire from a TFU Pantserhouwitser.
The Targeted Quala: Civilian Objective or Military Target?
In the evening of June 16 and the following night, F-16s shot 28 guided bombs, of which 18 were dropped on six or seven qualas in the residential area of Chora, including quala 4131. During the bombing, quala 4131 was completely destroyed, including the quala’s mosque, and 18 people from four families lost their lives, several others were wounded, and 30 animals were also reported to have been killed.
The TFU Chief Joint Fires led the aerial support. According to his report, at 3:10, 3:32 and 3:43 am (on June 17), quala 4131 was bombed as an enemy firing position, after positive identification of the target by the F-16 pilot as the previously identified quala 4131, and signing off by JTAC. JTAC is the Joint Terminal Attack Controller responsible for authorizing an attack after positive identification of a target. Their report includes a statement that the target had been previously determined as a military target by their “own troops in front.” Prior to the F-16 bombings, several Afghan local authorities were given advance warning that civilians had to leave a so-called “engagement area.” A local authority confirmed prior to the bombings that the civilians had left the designated area.
Twenty hours prior to the bombing, at 6:58 am on June 16, quala 4131 had been identified as containing enemy units. Around noon, 15 hours prior to the bombings, there was more enemy firing coming “more or less from the direction of quala 4131,” which was reported to the command post but not documented in a log. Around 5 pm, the platoon was again fired at, but this time from approximately 800 meters west of quala 4131. Shortly thereafter, at 5:30 pm, (suspected) hostile units were spotted at approximately 400 meters east from quala 4131 and were fired at from the air by ISAF. This contact was not documented in a log.
According to the court, these last two instances were insufficiently related to quala 4131 to qualify as circumstances on the basis of which quala 4131 could be determined as military target. From the earlier instances, it was not clear that fire actually came from quala 4131, rather than as part of Taliban movement that passed quala 4131. Moreover, the court concluded that these circumstances were insufficiently recent to justify the bombardment many hours later in the middle of the night, particularly because the court found no evidence that the assumption that quala 4131 was used by the Taliban was verified.
During the proceedings, the Dutch state acknowledged that the information now available in and of itself would be insufficient to justify the bombing, and that more recent information on the status of quala 4131 would have been required. The state thereby argued that it can be assumed that intelligence was available that one or more identified Taliban fighters were in quala 4131, but that not all communication was recorded and stored.
The court rejected this argument as insufficiently concrete. The court thereby emphasized that the state did not argue that the intelligence had really existed but was no longer traceable, or that the substance of certain intelligence could not be shared for security reasons, but that the intelligence must be assumed to have been available. Yet, the court was not convinced that this intelligence really was available, since the target report had said that the identification had been conducted “by own troops in front,” which the court interpreted as “own ground forces in the area.” There was no guarantee this would have been sufficient intelligence for a determination that the quala was a legitimate target, because the JTAC positive identification was no more than a verification that the earlier determined target was indeed the target in range of the F-16, rather than a verification of the military use of the residential complex.
Violation of International Humanitarian Law’s Principle of Distinction
The battle of Chora has been subject to investigation by the Dutch Ministry of Defense, the U.N. Assistance Mission in Afghanistan (UNAMA), the Afghan Independent Human Rights Commission (AIHRC), and NATO. While the NATO-ISAF commander’s investigation raised concerns that it may not have been sufficiently possible to distinguish between military targets and civilian objects without direct observation of the targets, this was overruled by the NATO Supreme Allied Commander Europe and the NATO Secretary General, who concluded that TFU acted in accordance with IHL. The Dutch state, UNAMA, and AIHRC reached the same determination. On that basis, the Dutch Public Prosecutor’s Office concluded it was unnecessary to investigate further whether war crimes would have been committed.
However, in a civil litigation brought by the surviving quala residents and next-of-kin against the Dutch state, the District Court of The Hague (a domestic court within the Dutch legal system) agreed with the plaintiffs that IHL’s principle of distinction was violated. While this is a torts case before a court that does not usually deal with IHL, torts law assesses whether an unlawful act was committed by violating a plaintiff’s rights. The court explained that it applied IHL because the facts occurred during an armed conflict and that IHL then governs the norms of what the Dutch military were allowed to target. The court applied Articles 48, 52, and 57 of Additional Protocol I to the Geneva Conventions as reflections of customary international law.
Article 48 provides that parties to a conflict need to distinguish between civilians and combatants and between civilian objects and military objectives, and direct their operations only against military objectives. Article 52 provides that with regard to otherwise civilian objects such as a house, military objectives are only those that make an effective contribution to military action, and that in case of doubt, it shall be presumed that it is not used to make an effective contribution to military action. Article 57 concerns the obligation to take precautionary measures more than the principle of distinction but also provides that everything feasible needs to be done to verify that objectives that are to be attacked are not civilian. Article 57 for instance provides for the obligation to give effective advance warning of attacks that may affect the civilian population, which, according to the judgment, the Dutch military at least seems to have tried to do and that they had received confirmation that civilians had evacuated from the area through a local Afghan authority. The court did not address this point further, and it remains unclear how reliable that confirmation was, whether the entire area was evacuated, whether all civilians had been evacuated, for how long it remained evacuated, and whether the military tried to verify that the area was evacuated.
However, the court’s main reason to conclude that IHL was violated was because, when a plaintiff claims that a location is civilian, the state needs to be able to show on what basis a “reasonable commander” could determine that the civilian location has become a military target. The court further concluded that the state had an obligation to verify that this was still the case after a significant time lapse between identifying a location as military object and bombing it, given that the target may not still be used for military purposes.
In the Feb. 3 announcement that the Netherlands would not appeal the judgment, the Minister of Defense wrote that – 15 years after the events in Chora – the state is unable to provide further information to substantiate the decision to qualify the quala as military objective. She thereby emphasized that the court explicitly said that the judgment does not mean that the Dutch armed forces committed a war crime, nor that the court concluded that the quala that was bombed could not indeed have been a lawful military target.
So what is the takeaway? According to this Dutch civil court, the military should have documented their decisions better and/or stored that information for at least the duration of plaintiffs’ right to go to court. While it may appear as a lot to ask from the military to not only distinguish between military objectives and civilians but also to document and preserve related decision-making in ongoing combat, only then can victims exercise their right to a remedy if mistakes were made. The military cannot just be assumed to have followed the laws of armed conflict: they need to be able to explain that they did. The Netherlands accepts the decision.
Yet, in the Dutch media, the decision was criticized by some military personnel who believe that these courts don’t appreciate the complex and time-pressured circumstances and judge from hindsight. This was also a widely aired response when the Hague District Court previously also found the state (partially) responsible for a due diligence violation related to the Srebrenica genocide. Marten Zwanenburg raises that the court imposes a heavy burden on the state to record and preserve relevant information during armed conflict.
Courts are often seen as an outsider that unfairly mix themselves in military situations that they have no expertise on. However, while courts should be careful and have a realistic appreciation of those complex circumstances, the exercise of power requires checks and balances. Rather than an unwelcome outside interferer, the judiciary is there not only to help victims seek justice, but also to help the military improve their procedures where they insufficiently prevent unnecessary casualties. This is not only in the interest of victims, but also of the military that already too often return from conflict traumatized.
Whether or not the Ministry of Defense may have shared some of the concerns, their response has been to accept the judgment and not appeal, to focus on (further) improving their procedures and to pay compensation to the plaintiffs. In her Feb. 3 letter to parliament, the Minister of Defense wrote that the military is working on improvements in information-driven action and mission-archiving and that military operatives require better support in doing so in future missions.
Ideally, a judgment like that in the Chora case can provide, in addition to justice for the plaintiffs, a constructive effect towards a better functioning of the military consistent with the principles of IHL, which, when properly implemented, benefit both the military and civilians.