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Afghan police sex abuse charges raise legal question for US aid

Experts say US military should have reported rampant abuse of boys by Afghan police to the State Department

New allegations that U.S. servicemen in Afghanistan were instructed not to report the widespread abuse of boys by commanders in the Afghan police and allied militias could call into question the legality — and strategic wisdom — of U.S. military assistance to the country, legal experts say.

According to a New York Times investigation published over the weekend, several U.S. soldiers and Marines serving in Afghanistan repeatedly observed evidence that boys were being sexually abused by allied Afghan police commanders and militia leaders — a widely-reported practice called bacha bazi or “boy play” — including on American military bases. On several occasions when servicemen raised the issue with superiors, however, they were instructed to look the other way and told that was just “their culture,” said the father of one now deceased Marine.

If true, the allegations could raise questions about the military's interpretation of the Leahy Law, which bans U.S. taxpayer-funded military aid to foreign units that have committed gross human rights violations. Under those stipulations, the Pentagon is required to promptly share any credible information of such violations — including extrajudicial killings, torture and rape — with the State Department, which must then investigate and determine whether aid should be cut off.

The Times report suggested that at best, U.S. commanders were not being proactive in reporting violations, and at worst, they were sweeping them under the rug. A spokesman for the American command in Afghanistan told the Times that, generally, allegations of child sex abuse were "a matter of domestic Afghan criminal law" and that “there would be no express requirement that U.S. military personnel in Afghanistan report it” (though he noted an exception for when rape is being used as a weapon of war).

Though the abuse of young boys by warlords or commanders has long been “known as something that happens in Afghanistan, what's shocking is the proximity it was taking place to U.S. soldiers and the allegations that those aberrant acts can apparently be ignored,” said Jonathan Horowitz, a legal officer for the Open Society Justice Initiative.

“If the U.S. military truly aren’t required to report sexual violence unless it’s used as a weapon of war,” he said, “then the military has to change its rules immediately and do some serious soul searching.”

The Leahy Law, which has been on the books since 1997, is designed to leverage crucial U.S. military aid to discourage the types of abuses that push civilians and potential fighters into the arms of insurgent groups like the Taliban. The law is triggered when rights violations can be verified and attributed to a specific military unit, cutting off aid until such a point that local authorities demonstrate they have taken measures to rectify the abuse.

The U.S. servicemen who spoke to the Times provided ample testimony to suggest grounds for a Leahy investigation, experts said. They also observed, in many cases, that the impunity enjoyed by their allied commanders seemed to be working contrary to their mission — to pry local support away from the Taliban.

“The reason we were here is because we heard the terrible things the Taliban were doing to people, how they were taking away human rights,” said Dan Quinn, a former Special Forces captain who was relieved from his position after beating up an allied militia commander who kept a boy chained to his bed as a sex slave, according to the Times. “But we were putting people into power who would do things that were worse than the Taliban did — that was something village elders voiced to me.”

As experts have noted, the wording of the Leahy Law leaves some room for interpretation about just how “proactive” the military is required to be. Many of the alleged abuses committed by Afghan commanders take place in remote areas where it is often too dangerous for journalists and rights groups to operate, meaning that the onus falls on the military to self-report. And, as the Times report underlines, the military may see mixed incentives in reporting its local partners' abuses.

Military officials critical of the Leahy Law have occasionally complained that disqualifying units from U.S. arms on account of their commander's personal transgressions can seem self-defeating in the short term, especially in places like Afghanistan, where there are few "clean" partners to choose from. At least one soldier interviewed by the Times subscribed to that argument: “The bigger picture was fighting the Taliban,” said a Marine lance corporal who asked to remain anonymous. “It wasn’t to stop molestation.”

The Pentagon provided little clarity on Monday. Responding to the controversy, spokesman Jeff Davis told reporters that the Pentagon had “never had a policy in place that directs any military member or any government personnel overseas to ignore human rights abuses.”

Another Defense spokesman, Roger Cabiness, did not directly respond to a query from Al Jazeera about whether the Pentagon had plans to investigate the abuse allegations further and forward credible information to the State Department for Leahy vetting. “I can tell you we will continue to monitor these reported abhorrent acts of abuse and coordinate and report as appropriate to relevant Afghan authorities and regional stakeholders," Cabiness said.

But rights monitors underline that the abuses by allied commanders, including the Afghan National Police and the Afghan Local Police (ANP and ALP), have not been a secret for some time. In June, Child Soldiers International released a report that found widespread recruitment of children by the ANP and ALP, many who began as "tea boys" — a well-known euphemism for sexual slavery, said CSI's Asia program manager, Charu Lata Hogg. 

The Army itself acknowledged the problem in a 2011 report, A Crisis of Trust and Cultural Incompatibility, that sought to explain rising tensions between the Afghan National Security Forces (ANSF) and NATO forces in the latter days of U.S. occupation, as evidenced by the rising frequency of so-called blue-on-green attacks. The report, which the U.S. attempted to re-classify in 2012, indicated the military might be well-served by adopting a policy of non-intervention in certain cultural matters, specifically mentioning bacha bazi.

Noting that "one reason some Afghan civilians prefer insurgents over the ANSF are the latter’s propensity to seize their little boys at checkpoints and sexually assault them,” the report's author warned of potential “violent confrontations” if U.S. soldiers confront the perpetrators of “such barbaric acts” (the report cited complaints relayed to Canadian troops, but did not indicate that Americans had been witness to them). That policy may explain, in part, the military's dismissive response to the allegations detailed in the Times report.

Leahy Law advocates call these “cultural” exceptions into question, however. “Child rape by a partnered security force member should not escape the gaze of the Leahy Law,” said Horowitz, of Open Society. “It’s not regarded as culturally relevant when it comes to definitions of war crimes, and the same should apply here.”

“Now towns don’t trust local police in charge of security,” added Seth Binder, with the Center for International Policy’s Security Assistance Monitor. “It just breeds further insecurity and radicalization. That’s the danger of allowing this to continue.”

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