For the US military and Afghans, one last chance for justice

As the U.S. winds down its combat mission in Afghanistan, the debate has shifted toward accountability for civilian casualties and the importance of setting the right precedents for Afghan forces. While the U.S.-led international coalition in Afghanistan, the International Security Assistance Force (ISAF), has made real progress on reducing civilian harm, a new report by Amnesty International, “Left in the Dark,” paints a disturbing picture of U.S. military failure to provide justice for families who have suffered devastating losses as a result of its operations in Afghanistan.

From airstrikes and special operations night raids to drone strikes, the report details painful stories of loss suffered by ordinary Afghans who have endured more than a decade of war. A “near-complete lack of transparency” and the absence of impartial investigations kept the circumstances of too many Afghan deaths in the dark and denied victims and their families justice, according to Amnesty’s report.

From a legal standpoint, establishing criminal liability is a significant challenge in many of these cases. Under international law, the intentional targeting of civilians not directly participating in hostilities as well as willful or wantonly indiscriminate or disproportionate attacks constitute war crimes. Understandably, the evidentiary standards for establishing such criminal liability are high, making thorough, impartial investigations even more important. Yet Amnesty’s report reveals how, as is often the case in practice, the U.S. military’s procedures and protocols do not provide meaningful accountability.

For many Afghans, perhaps the most striking finding is that in 9 of the 10 cases investigated — in which more than 140 civilians were killed — U.S. military investigators did not interview family members or any Afghan civilian witnesses. Such investigations cannot ensure meaningful accountability. And it is no surprise that Afghan victims believe they have been denied justice.

Amnesty’s criticism of the almost total lack of transparency in U.S. military justice has been consistently documented. For example, research by Open Society Foundations in 2011 on U.S. night-raid operations, which at their height were being conducted at a rate of 40 a day, came to similar conclusions, noting widespread perception of U.S. impunity due to lacking transparency and accountability. As a result, night raids became a major flashpoint during the negotiations with Afghan President Hamid Karzai on the Bilateral Security Agreement, and it remains a symbol of foreign military abuses in the minds of many Afghans. The U.S. government continues to delay or limit the release of details on U.S. military operations and its internal investigations or findings. Since 2011, the Open Society Foundations have filed 35 Freedom of Information Act requests for records on serious incidents of civilian harm caused by the ISAF from 2007 to 2011. Of the 35 requests filed, only three led to the release of information, and the majority of them have been open and unfulfilled for more than two years.

However, in recent years the U.S. military has finally taken the issue of civilian harm seriously.  In part because of years of campaigning by international and Afghan human rights organizations, in 2009 the ISAF and the U.S. military recognized the need to reduce civilian harm and address the political and popular backlash provoked by large-scale casualties from their operations. Coalition forces have improved their monitoring of civilian casualities by investing in initiatives such as the Civilian Casualty Tracking Cell. This collection and analysis of data have contributed to improvements in civilian protection. For example, tactical directives that limited uses of force that put civilians at risk (such as bombing residential areas) have quickly brought about reductions in civilian casualties. The ISAF’s revised policies and mechanisms for providing redress and compensation to civilian victims helped in acknowledging and respecting losses. Earlier this year, the U.S. Congress approved legislation that would make such help available to all victims of U.S. combat operations, ensuring the lessons learned from the Afghan war do not vanish when the troops leave the country.

Despite these improvements, as Amnesty’s report reveals, the absence of thorough and impartial investigations means that accountability for most instances of civilian harm, including possible war crimes, have not taken place. To be fair, there are genuine security challenges to conducting such inquiries in a conflict zone. But there are also structural impediments within the military, as Amnesty rightly points to. As many have suggested for sexual assault cases in the U.S. military, shifting decision-making authority over investigations and prosecutions from commanders to independent prosecutors and judges makes sense. Some U.S. allies have already adopted such reforms. For example, in the United Kingdom, civilian judges now oversee trials of military personnel. In addition, ending the secrecy around U.S. military investigations would help ensure that proper inquiries are being conducted to provide victims with answers.

Many U.S. military officers, who saw the moral and strategic cost of civilian harm to their mission, recognize the importance of accountability and transparency. In Paktia province in 2010, as the U.S. military surge was in full swing, a U.S. military officer told me how critical it was to respond to civilian harm and how seriously his unit took such accountability. For example, when a 13-year-old Afghan boy was killed near the U.S. base’s shooting range, the officer drew storyboards to explain to the family how his death was accidental and assured his parents that American troops did not intentionally kill their son. The military provided a condolence payment and an apology. The officer understood what mattered most to Afghan victims: understanding why their loved one was killed and knowing that the U.S. military was taking the first step to acknowledge the accident in order to ensure that justice is done.

By the end of 2014, there will be few U.S. troops in Afghanistan except in Kabul, with rapidly diminishing capability to conduct the kinds of investigations these serious allegations demand. With the Afghan National Security Forces now in the lead, the U.S. faces a limited window for setting the right precedent for Afghan forces and leaving a legacy of accountability for civilian harm, not impunity from it. Amnesty’s report is yet another wake-up call and affords Barack Obama’s administration one last chance to get things right.