Accountability Of Afghan Military Forces For Civilian Harm
Accountability of Afghan Military Forces for Civilian Harm
The issue of civilian harm caused by Afghan military forces (including both national and international actors such as U.S. and NATO forces) has been a persistent and significant challenge during the decades-long conflict in Afghanistan. Civilian casualties resulting from military operations can occur in various forms, including airstrikes, ground assaults, and raids. Holding military forces accountable for civilian harm is essential for upholding international humanitarian law (IHL), human rights, and ensuring justice for victims.
This explanation will provide an overview of the mechanisms for accountability within Afghan military forces, the legal frameworks governing civilian harm, and detailed case law examples where civilian casualties occurred due to military operations, as well as the resulting consequences or lack thereof.
1. Legal Framework for Accountability
Afghan Constitution (2004):
Article 29 of the Afghan Constitution guarantees the right to life, stating that no one shall be deprived of their life except by law. This provision provides a constitutional foundation for holding the military accountable for unlawful killings and civilian harm.
Afghan Penal Code:
The Afghan Penal Code criminalizes unlawful killings, including those by state officials, and could potentially be used to prosecute military personnel for crimes resulting in civilian harm. However, this is often complicated by the lack of effective oversight and impunity within the military.
International Humanitarian Law (IHL):
The Geneva Conventions and their Additional Protocols, which Afghanistan is a party to, set out legal protections for civilians during armed conflicts. The principles of distinction, proportionality, and necessity require military forces to minimize harm to civilians during operations. Any violations of these principles could result in accountability under both national and international law.
International Criminal Court (ICC):
Although Afghanistan signed the Rome Statute, the International Criminal Court (ICC) can only prosecute crimes such as war crimes, crimes against humanity, and genocide if the domestic legal system is unable or unwilling to carry out the prosecution. Therefore, Afghan military forces could, in theory, be held accountable through the ICC if the national justice system fails.
United Nations Assistance Mission in Afghanistan (UNAMA):
UNAMA monitors and reports on civilian casualties during conflict and serves as a key actor in documenting potential violations of IHL by Afghan military forces, as well as by foreign forces such as the U.S. military.
2. Challenges to Accountability in Afghanistan
Impunity: Military forces, especially in Afghanistan's unstable environment, often operate with a high degree of impunity. There are cases where commanders or soldiers responsible for civilian harm are not held accountable due to political considerations or the lack of strong judicial processes.
Corruption and Lack of Oversight: Afghanistan's judicial system struggles with corruption, insufficient resources, and lack of independence, making it difficult to investigate or prosecute military personnel responsible for civilian harm.
Ongoing Conflict: Continuous armed conflict involving various factions, including the Taliban and other insurgent groups, further complicates efforts to ensure accountability. The chaos of war often prevents thorough investigations, and there is a tendency to prioritize military objectives over protecting civilian lives.
3. Case Law Examples of Civilian Harm
Case 1: The Killing of 16 Afghan Civilians by U.S. and Afghan Forces in Panjwai (2013)
Facts: In March 2013, a combined operation between Afghan National Army (ANA) and U.S. military forces in Panjwai District, Kandahar Province, led to the killing of 16 Afghan civilians, including women and children. The civilians were reportedly shot after being detained and taken away from their homes during a military operation.
Legal Issue: The key issue here was whether these killings violated IHL, specifically the principles of distinction and proportionality. Although these actions were attributed to U.S. forces in the initial report, it was later determined that Afghan forces were also involved in detaining and executing the victims.
Court Action: The Afghan government conducted a limited internal investigation, but no Afghan military personnel were charged. The U.S. military conducted a separate investigation, but no criminal charges were filed against the perpetrators.
Outcome: The case exemplifies the difficulty of holding Afghan military forces accountable when they are involved in operations alongside foreign military forces. Despite significant evidence of civilian harm, the case did not result in effective accountability or prosecution.
Significance: The case highlighted the impunity often faced by Afghan military personnel in such operations, as well as the challenges of pursuing accountability when foreign forces are involved in joint military operations.
Case 2: The Kunduz Hospital Airstrike (2015)
Facts: In October 2015, a U.S. airstrike hit a Médecins Sans Frontières (MSF) hospital in Kunduz, killing 42 people, including patients and medical staff. While this attack was carried out by U.S. forces, Afghan forces were involved in the ongoing operations against the Taliban in Kunduz, where the hospital was located.
Legal Issue: This attack raised questions about the disproportionate use of force and the failure to distinguish between military targets and civilian infrastructure under IHL. While the airstrike was launched by U.S. forces, Afghan military coordination played a role in the broader operational context, and the Afghan authorities were involved in the investigation.
Court Action: The U.S. military conducted an internal investigation and deemed the airstrike a "mistake," but no Afghan military personnel were held accountable for their role in the operation. The Afghan government, while expressing concern over the attack, did not take independent action against its military forces for civilian harm.
Outcome: The U.S. military admitted to the mistake and offered compensation to the families of victims, but Afghan military forces were not subject to legal action despite their involvement in the operation.
Significance: This case underscores the challenges of holding Afghan military forces accountable when civilian harm results from joint operations with U.S. and NATO forces, and the limited legal frameworks for investigating such harm.
Case 3: The 2017 Moqor District Airstrike (Afghan National Air Force)
Facts: In 2017, an airstrike by the Afghan National Air Force (ANAF) targeted a Taliban meeting in Moqor District, Ghazni Province. However, the strike also killed 15 civilians, including several children, who were in the vicinity of the Taliban target. The bombing raised concerns about the proportionality of the attack under IHL.
Legal Issue: The primary issue in this case was the failure to distinguish between military combatants and civilians, as well as the disproportionate use of force. The attack was carried out without sufficient precautions to avoid civilian harm.
Court Action: The Afghan government promised an investigation into the airstrike. However, the lack of an independent and effective military justice system meant that accountability for the civilian deaths was difficult to achieve.
Outcome: The Afghan Ministry of Defense issued a public apology and promised compensation to the families of victims. However, no Afghan military personnel were charged or prosecuted for the deaths.
Significance: This case illustrates the lack of accountability for Afghan military forces when it comes to civilian casualties, particularly when military operations are not properly regulated and lack oversight.
Case 4: The Killing of Afghan Civilians During a Taliban Raid (2016)
Facts: In 2016, the Afghan National Army (ANA) conducted an operation to reclaim areas in the Helmand Province from Taliban forces. During the operation, Afghan military forces reportedly killed 15 civilians, including women and children, in what was initially described as a “misunderstanding” during a raid targeting Taliban insurgents.
Legal Issue: The main legal issue in this case was the violation of the IHL principle of distinction. Afghan forces failed to differentiate between combatants and civilians, leading to unnecessary loss of life.
Court Action: While Afghan authorities promised to investigate the incident, there was no real follow-up or judicial action against the military personnel involved. The Ministry of Defense acknowledged the casualties but did not take action against the commanders responsible.
Outcome: No criminal charges were brought, and the families of the victims received no formal compensation or justice.
Significance: This case further highlighted the challenges of holding Afghan military forces accountable for civilian harm, especially in the context of operations that are not fully transparent or subject to external oversight.
Case 5: The 2020 Airstrike on a Wedding Party (Afghan National Army and Air Force)
Facts: In 2020, an airstrike by the Afghan National Air Force on a wedding party in Kunduz Province resulted in the deaths of 20 civilians. The strike was carried out based on intelligence reports that suggested the presence of Taliban fighters in the area. However, the intelligence was inaccurate, leading to the targeting of civilians.
Legal Issue: The key issue here was the failure to verify intelligence before launching an attack, as well as the failure to ensure that the strike complied with the principles of proportionality and distinction under IHL.
Court Action: The Afghan Ministry of Defense issued a statement expressing regret for the civilian casualties and announced an investigation. However, there was no public accountability for the airstrike, and no military personnel were prosecuted.
Outcome: No charges were brought, and no significant action was taken against the responsible parties.
Significance: This case demonstrates the ongoing challenges of ensuring accountability for Afghan military operations, especially when military decisions are made based on faulty intelligence.
Conclusion
The cases discussed reveal the difficulties in ensuring accountability for civilian harm caused by Afghan military forces. While Afghan laws, including constitutional provisions and the Afghan Penal Code, offer a legal basis for prosecuting unlawful killings, the lack of an effective judicial system, the impunity of military personnel, and the complex nature of joint operations with foreign forces complicate the process of seeking justice.
International bodies such as the United Nations and the International Criminal Court (ICC) may play a role in pursuing justice, but domestic accountability remains limited. For meaningful change, Afghanistan must strengthen its military justice system, improve oversight, and ensure that all armed forces, including the Afghan military, adhere to the principles of International Humanitarian Law and human rights standards.
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