Accountability For Civilian Casualties In Armed Conflict Under Afghan Law
In Afghanistan, the issue of civilian casualties in armed conflict has been a persistent concern due to ongoing violence involving various factions, including the Taliban, the Afghan National Security Forces (ANSF), and international forces such as the U.S. military. Accountability for civilian casualties in armed conflict is governed by both domestic Afghan law and international humanitarian law (IHL), with a focus on the protection of civilians under the Geneva Conventions and customary international law.
This explanation will explore Afghan law regarding civilian casualties in armed conflict, detailing relevant cases and examples that highlight how the legal system addresses this issue. It will also consider accountability mechanisms under both Afghan law and international legal standards.
1. Legal Framework Under Afghan Law
Afghan law governing the protection of civilians in armed conflict draws from multiple sources:
Constitution of Afghanistan (2004): The Afghan Constitution guarantees the protection of human rights, including the right to life and personal security, under Article 23, which enshrines that no one should be deprived of their life except through a fair trial and according to the law.
Afghan Penal Code (1976): This Penal Code criminalizes various forms of unlawful violence, including murder, and allows for prosecution of those responsible for the deaths of civilians. However, the application of this code in conflict situations is complex due to the ongoing instability and the prevalence of warlords and militias.
International Humanitarian Law (IHL): Afghanistan, as a party to the Geneva Conventions (1949) and their Additional Protocols, is bound by IHL, which regulates the conduct of war and seeks to protect civilians from the effects of armed conflict.
Laws of War and Protection of Civilians: International law, including Customary International Humanitarian Law (CIHL), places a duty on all parties to a conflict to distinguish between combatants and civilians and to avoid targeting civilians. Civilian casualties are only permissible if they result from an attack that is proportionate, necessary, and not indiscriminate.
2. Accountability for Civilian Casualties
The key challenges in ensuring accountability for civilian casualties in Afghanistan include the fragmented legal system, the lack of effective governance, and the influence of non-state actors like the Taliban. However, there are several examples of efforts to pursue justice, as well as failures in holding perpetrators accountable.
Case 1: The Kunduz Hospital Airstrike (2015)
One of the most widely known incidents in Afghanistan regarding civilian casualties was the bombing of a Médecins Sans Frontières (MSF) hospital in Kunduz in 2015. This airstrike, which resulted in 42 civilian deaths, was conducted by U.S. Air Forces as part of an operation to retake the city from Taliban forces.
Legal Framework: Under Afghan law, the government is obligated to protect its citizens, but it also has to adhere to IHL during conflicts, which forbids indiscriminate attacks. Under International Law, the Geneva Conventions, especially Article 18 of the 1977 Additional Protocol I, prohibit attacks on medical facilities unless they are being used for military purposes.
Accountability Efforts: The U.S. military acknowledged the strike was a mistake, and an internal investigation by the U.S. Department of Defense concluded that the airstrike was an error. However, no Afghan legal system investigation was conducted into the case, leaving civilian accountability largely dependent on the actions of foreign forces and international organizations.
Outcome: The lack of accountability within Afghanistan’s legal system meant that victims’ families received little to no legal recourse. The incident highlighted the significant challenges in holding parties responsible when foreign forces are involved in civilian harm.
Case 2: The Operation in Herat (2016)
In 2016, during an operation in the Herat province, Afghan security forces reportedly caused civilian casualties when they mistakenly bombed a residential area while fighting insurgents. The Afghan National Army (ANA) conducted airstrikes and artillery fire that hit civilian homes.
Legal Framework: According to Afghan law, civilians are entitled to protection under Article 24 of the Afghan Constitution, which guarantees protection of life and property during times of conflict. International humanitarian law (IHL) also prohibits direct attacks against civilians and civilian property unless they are being used for military purposes.
Accountability Efforts: The Afghan Ministry of Defense (MoD) and the Afghan National Police (ANP) conducted internal investigations into the airstrike. However, the findings were often classified, and there was no public report detailing any action taken against responsible officers.
Outcome: There were no significant legal repercussions for Afghan security forces under Afghan law. This case highlighted the lack of civilian protection mechanisms and the failure to hold Afghan military personnel accountable, as many of the local population's grievances were ignored by both Afghan authorities and international actors.
Case 3: The Airstrike on the Wedding Party in Nangarhar (2018)
In 2018, an airstrike carried out by the U.S. Air Force struck a wedding party in Nangarhar province, resulting in over 30 civilian deaths, many of them women and children. The U.S. initially claimed that the airstrike targeted a Taliban weapons cache, but investigations later suggested that civilians were struck by mistake.
Legal Framework: The U.S. airstrike violated Afghan law, particularly in terms of the constitutional guarantee of civilian protection. It also breached the principles of International Humanitarian Law, specifically the principle of distinction and the principle of proportionality outlined in the Geneva Conventions, which requires all parties to distinguish between military and civilian targets and to minimize civilian harm.
Accountability Efforts: The Afghan Ministry of Interior launched an investigation, but the U.S. military conducted its own internal inquiry, which concluded that the strike was justified based on the intelligence available. Despite calls from Afghan civil society for accountability, the case did not lead to any major legal consequences in Afghanistan.
Outcome: The case underlined the impunity enjoyed by international forces operating in Afghanistan, with limited accountability mechanisms under Afghan law for foreign actions. This created a perception of unaccountability and frustration among the Afghan population regarding the protection of civilians.
Case 4: The Massacre in Panjwai (2012)
In 2012, a U.S. Army sergeant, Robert Bales, was responsible for killing 16 Afghan civilians, including 9 children, in the Panjwai district of Kandahar province. This incident, widely considered a massacre, shocked the world and raised significant questions about accountability for civilian deaths caused by foreign troops.
Legal Framework: This case also violated Afghan law and IHL. The Afghan government condemned the killings, and under both Afghan law and IHL, there were clear violations of the right to life and protection of civilians.
Accountability Efforts: The U.S. conducted a military court trial in the U.S., where Sergeant Bales was convicted and sentenced to life imprisonment. However, no Afghan courts were involved in the legal proceedings, and the Afghan government had limited influence over the outcome.
Outcome: While Sergeant Bales was held accountable under U.S. military law, there was no direct accountability within the Afghan legal system, which led to criticism from Afghan citizens and human rights organizations. The case demonstrated the legal gap between international justice and domestic Afghan accountability, with the Afghan legal system unable to prosecute foreign military personnel for crimes committed on Afghan soil.
Case 5: The Civilian Deaths in the Battle of Marjah (2010)
During the Battle of Marjah in Helmand province (part of Operation Moshtarak), a joint operation involving U.S., NATO, and Afghan forces aimed at ousting the Taliban, numerous civilian casualties were reported as a result of aerial bombardments and ground operations.
Legal Framework: Afghan law and international humanitarian law (IHL) protect civilians from indiscriminate attacks and call for the distinction between military and civilian targets. Article 23 of the Afghan Constitution guarantees the right to life and liberty for Afghan citizens, and IHL principles such as distinction, proportionality, and precaution must apply to minimize civilian harm.
Accountability Efforts: NATO forces admitted responsibility for civilian deaths and offered compensation to victims’ families. The Afghan government, under President Karzai, often voiced frustration with civilian casualties caused by international forces, calling for greater accountability from foreign troops operating in Afghanistan.
Outcome: NATO’s response included some attempts at compensation, but the lack of thorough judicial investigation or accountability under Afghan law left many victims without recourse. The legal framework in Afghanistan failed to ensure justice for civilian casualties caused by international forces, further eroding trust in the justice system.
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