(Editor’s note: This article is part of a Just Security series: Reflections on Afghanistan on the Eve of Withdrawal.)
The international military forces withdrawing from Afghanistan leave behind not only a raging conflict and an uncertain future for my country, but they are also leaving behind a legacy of impunity that threatens to undermine hopes for peace and justice in Afghanistan for years to come. In the many long years of “forever war” for Afghans, the rights of civilian victims of the conflict have never been a priority for the international community or the Afghan State. The efforts for justice and accountability have been actively silenced by Afghan leaders, with at least silent endorsement from the international community, or in the case of International Criminal Court (ICC) investigation into Afghanistan, actively blocked by the United States. Now, as international forces withdraw, the least the United States and other countries involved in the conflict can do is address credible allegations of abuse of their own troops, attend to the needs of victims of the harm caused by violations of human rights and international humanitarian law, and provide political support to the national initiatives for victim-centered justice.
What it looks like for Afghans
There are numerous credible allegations and investigations by media and human rights organizations of civilian harm caused by the international forces in airstrikes, night raids, torture, and mistreatment of detainees, either solely by the international military forces or in joint operations with the Afghan security forces. While leaders of the countries engaged in Afghanistan, including the United States, have chosen to omit any reflection on this aspect of military engagement from their public speeches, the victims still live with the consequences and the wider Afghan public has not forgotten.
Abdul Satar told the Afghanistan Independent Human Rights Commission (AIHRC), where I serve as chairwoman, that he lost 16 members of his family in airstrikes in Bala Baluk, Farah, on May 4, 2009. The airstrikes happened after Afghan forces asked for American air support. American forces bombed crowded houses and a mosque. AIHRC’s findings indicated 97 people died, including 21 women and 65 children, and 19 people were injured. The community and the survivors live in poverty, the compensation by the Afghan government has been ad-hoc, and there has been no full acknowledgement of all the harm caused by U.S. forces.
An earlier example that sent shockwaves throughout Afghan society was the airstrike and bombing in Azizabad, Herat Province on Aug. 22, 2008. In this incident, in a joint operation of U.S. and Afghan forces, 91 people were killed. Sixty children (from a 5-month old to an 18-year old) and 16 women, as well elderly, were among those killed. The bombing started at 2 a.m. local time, and went on till 8 a.m. Local authorities, including the governor and police chief of Herat were not consulted or informed prior to the operation, which was instigated by an Afghan contractor who provided misleading information.
Haji Abdul Rashid, who says he lost 33 members of his family, told us 13 years after the attack that the ruins of the attack are still there in the village. Gulrukh, a woman injured in the bombing, is still paralyzed. Her family have taken her to the hospitals in Kabul, Pakistan, and India, and she still can’t stand on her feet. She lost five of her children that night. Two of the Afghans implicated in this case are in jail but victims don’t know what, if anything, happened to the Americans involved. Following the attack, the U.S. military tried to make improvements to its operations but its efforts have fallen far too short. In fact, even in January 2020, AIHRC recorded five incidents of airstrikes by U.S. forces in one month that led to civilian casualties, killing 25 civilians, most of them children.
Night raids also came to represent one of the most terrifying and harmful tactics of the war for civilians, not only taking lives of the innocent, often based on faulty information, but also making Afghans feel threatened and unsafe in their own homes by foreign forces. It is another area where U.S. forces have not only failed to provide accountability, but have actively covered up harm and possible rights violations.
Following incidents harming civilians, such as a night raid in Paktia where U.S. special forces attacked a family gathering in Khataba village, killing five civilians, including two pregnant women and a teenage girl, the American-led military command in Kabul initially claimed that the troops came across the bodies of the the women who had been “tied up, gagged and killed” and hidden in a room. Tahir, one of the members of the family told AIHRC that following the shooting in the yard, he and his brothers were taken out of the rooms, handcuffed, had their faces covered with masks, and made to stand on the snow with bare feet. The victims of this incident have shared their case with the ICC, but when we called the victims in May, they had not heard yet about any final decision or firm determination of the ICC on its investigation in Afghanistan. Even if the investigation happens, it will cover only a few cases, a sample of those qualifying as Rome Statute crimes, leaving many other incidents of harm caused by the international military forces and other actors including the Taliban untouched, and leaving many victims without access to truth and reparation. Indeed, many of the cases will languish because the ICC does not have access to information that is in the possession of the international forces who know full well what transpired.
International military operations directly harmed individual civilians, families, and villages, but they also affected institutions and services, including healthcare services, leading to a vacuum in healthcare access in some of the areas with the greatest levels of need. Safiullah Siddiqi, who was a doctor in an MSF (Doctors Without Borders) hospital in Kunduz in October 2015, says he is so traumatized after an attack on the hospital that he still fears a bombardment whenever he hears planes overhead. The hospital was bombed for an hour on Oct. 3, 2015, by U.S. forces, when there was intensified fighting between Taliban and Afghan government forces. The bombing killed 42 people, including staff, patients, and caretakers. While the United States took responsibility and called the attack an accident, MSF was not satisfied with the findings of the investigations by the Afghan government and the U.S. military and called for an independent investigation. The MSF team has yet to return to full function in Kunduz. In February 2016, Afghan forces with support from international military, raided a Swedish Committee Afghanistan Clinic in Wardak, arresting and beating staff, and taking away and killing two patients and a young child. No full and public explanation of the attack was provided either by the Afghan government or the international forces.
Another deeply problematic legacy of the conflict in Afghanistan is alleged detention abuses committed by international military forces. The examination by the ICC’s prosecutor highlighted detention abuses including a policy of torture, which was particularly prevalent in the earliest years of the U.S. military intervention. Even now, the U.S. administration is struggling to release the last of the detainees in Guantanamo. There has been no discussion of reparations for what were clearly egregious mistakes in too many of these cases, as well as systematic rights violations.
In the absence of transparency and accountability and full reparations to victims, the civilian losses due to these operations became one of the key reasons for the alienation of local populations, driving them to join the Taliban, reinforcing the existing culture of impunity in the country, as well as fueling specific fear and mistrust of international forces. In fact, the wider culture of impunity practiced by the Afghan government and tolerated by the international community, coupled with a lack of answers and accountability in these cases, greatly discredited international human rights in the country—and by extension, undermined Afghan activists’ and organizations’ efforts at putting victims’ rights at the center of Afghan national institutions and law.
Ending Impunity: What U.S. and Allied Governments Owe to Afghans
While for Western governments the departure of international troops from Afghanistan represents an end to war, civilians harmed by these incidents live with the often-permanent consequences of lives lost and rights violated to this day. Without committing to concrete actions to address these losses, the United States and other international forces will leave behind a legacy of impunity that will impact dearly the lives of Afghans now and into the future.
There are concrete steps that could be taken by democratic, liberal governments in the West to illustrate their true commitment to human rights. A reckoning with the conflict would have implications not only for their own troops, but also for the many Afghan victims. Australia’s Afghanistan Inquiry that looks at allegations of war crimes committed by Australian special forces in Uruzgan in Afghanistan is a good first step by the Australian government, but the process is yet to include the voices of Afghan victims or dedicated resources for reparations.
The international community should begin by investigating credible allegations of abuse, acknowledge the violations committed, and provide reparations to victims. Still, they owe Afghans much more. Unlike the past 20 years, they should actively support the long struggle of Afghans for justice and accountability that was actively sidelined in post-2002 Afghanistan. Western governments must right a historical wrong of contributing to culture of impunity in Afghanistan by truly supporting Afghans’ demand for justice and accountability. Here are the steps that should be taken:
Support AIHRC call for a Fact-finding Mission or Commission of Inquiry: As international troops are withdrawing, violence is escalating and targeted attacks on civil society, media workers, women, places of education, and religious and ethnic minorities continue. In the meantime, investigations by the Afghan government are slow or non-existent and fear is growing about continued and worsening atrocities. In this context, AIHRC has made a public call for greater international oversight through a U.N.-mandated Fact-finding Mission or Commission of Inquiry. The United States and the broader international community must support this call for purposes of truth and accountability as well as a potential deterrence mechanism.
Create a U.S.-led or multilateral mechanism to provide as much information as possible to Afghan victims: Victims of these operations and the Afghan public have a right to know the truth and access to full accounts of harm caused to civilians by international military forces. Details about the operations that have mistakenly or otherwise harmed civilians must be made public by the governments involved as one step toward accountability to Afghanistan and to those harmed. Organizations that have worked to document these harms must be supported with resources and supported in making their findings public and accessible. A concrete step for the U.S. government is to waive all Freedom of Information Act fees and expedite all requests filed by the AIHRC and victims’ organizations.
The United States must issue a presidential executive order on U.S. responsibility and redress for harm to Afghan civilians: Such an EO should include both investigation and accountability aspects, as well as individual and collective reparations due to Afghan victims and communities.
The United States must set aside funding from the current defense budget related to Afghanistan to (a) set up a reparations program that can register and record claims for compensation as well as for non-compensation forms of reparations and (b) provide funds for reparations for U.S.-related claims. Existing schemes of U.S. “condolence payments” do not offer recognition of human rights violations, do not acknowledge responsibility to repair the harm caused by those violations, and do not, therefore, constitute justice.
NATO must provide information and reparations: As international military forces withdraw from Afghanistan, there needs to be a NATO-level discussion about meaningful and comprehensive reparations to Afghan civilians harmed by international forces, both at the individual and collective level.
NATO must (a) aggregate information involving condolence payments made by all NATO members that provided military and police forces in Afghanistan and provide this to the AIHRC as the basis for a database for victims, (b) provide NATO-obtained data on Taliban and other non-State armed groups’ violations that contain information about the identities and locations of victims in Afghanistan, and (c) expand and convert the NATO-ISAF Post-Emergency Operations Relief Fund into a fund for collective reparations.
Support and fund the ICC process, including reparations for victims of war crimes and crimes against humanity: In the absence of a strong domestic justice system, and with the existing agreements between the Afghan government and international partners such as the Bilateral Security Agreement, the ICC has become the only venue for Afghans seeking justice for harm caused by international forces. The ICC investigation has already had a bumpy road, including with a current deferral request from the Afghan government, and when the proceedings go forward, they will only deal with a few cases. The moral responsibility of ensuring accountability and justice lies with the responsible countries themselves. Australia has taken a step in this direction. The United States, the United Kingdom, and others must follow by opening up investigations into credible claims of civilian loss and harm in Afghanistan. While the Rome Treaty provides for reparations, this is premised on a finding of guilt, and only for victims of those individuals found guilty; while individual criminal accountability is important and may be possible through the ICC, it cannot substitute for a national transitional justice process that provides for truth-telling about the causes and consequences of armed conflict in Afghanistan over a longer period of its history, and reparations for victims of those conflicts.
Meaningful support for national initiatives for victim-centered justice: Donors of the Afghan government should prioritize the rights of victims of international crimes in their support to the Afghan judiciary and security institutions. The support to these institutions must go beyond technical support and there should be clear political support for the demands of Afghan civil society and human rights organizations for access to truth, justice, and reparations for all victims of war, including the victims of international forces, Afghan security forces, the Taliban, and other anti-government groups. Additionally, the international community should use its leverage to advocate for the inclusion of victims and their demands in the peace process.
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The legacy of impunity in Afghanistan has taken many lives and contributed to lengthening and intensifying the conflict. As the United States and its allies conclude their direct military presence, they must make amends to the victims and reflect on their contribution to the culture of impunity in Afghanistan. There will be no lasting peace in Afghanistan without a full reckoning of all parties of the war with the legacy of impunity and the rights of victims. If the United States and its allies want to credibly act for prevention of further and worse conflict-related atrocities in Afghanistan, they must begin with holding themselves to account.