By Katherine Iliopoulos
2009 was the worst year since the fall of the Taliban regime in 2001 for civilians caught up in the armed conflict, with the number of Afghan civilians killed the highest of any year since the beginning of the insurgency.
According to a United Nations report released this month, the deaths of 1,630 innocent civilians – including at least 345 children – were predominantly due to the insurgents and their indiscriminate use of roadside bombs and other terror tactics. NATO and Afghan troops were responsible for the deaths of 596 civilians last year, with the drop of nearly 30 per cent from 2008 attributable to new orders given last June to NATO forces by General Stanley McChrystal for troops to follow much stricter rules of engagement to avoid civilian casualties.
There are fears that there will be a further increase in civilian casualties as the intensity of fighting increases with the surge of over 30,000 US and NATO troops due to be completed by the middle of 2010.
The report of the United Nations Assistance Mission in Afghanistan (UNAMA) pointed to the use asymmetric tactics by the armed opposition as a significant factor in the increase in the number of civilians who killed or injured, together with the use of air strikes and the placement of military facilities in civilian areas.
Violations of international humanitarian law (IHL) occurred regularly in 2009. Common Article 3 to the 1949 Geneva Conventions applies in the case of an armed conflict of a non-international character occuring on the territory of a state party. This is the case for Afghanistan (a state party), in which the Government is fighting against a number of non-state armed groups, particularly the Taliban. The conflict is also regulated by other provisions of customary international law.
On 24 December 2009, Afghanistan became party to 1977 Additional Protocol II, which deals with non-international armed conflicts. The threshold of violence for the application of the Protocol is higher than it is for common Article 3, but since the Protocol entered into force for Afghanistan it has applied to the conflict at its current intensity, not only to Afghan government forces, but also to the armed forces of any state member of the International Security Assistance Force in Afghanistan (ISAF) and who is also a party to the Protocol.
In some cases, insurgents intentionally used civilians and their homes as shields from military attack, in violation of IHL. Some anti-government elements (AGEs) who were targeted in military operations had deliberately taken shelter in the houses of those not involved in the insurgency in order to deter attacks. Some took advantage of traditional codes of hospitality and power imbalances which prevented villagers who live in areas with a significant AGE presence from refusing to shelter AGE commanders.
According to customary international law, the use of human shields is prohibited. This means that the “intentional collocation of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives” is prohibited (ICRC Customary International Law Study). The report identified the use of this tactic combined with the use of air strikes by international forces as having put civilians at risk of attack by Afghan and international forces.
Suicide attacks and the use of improvised explosive devices (IED) by AGEs were responsible for the majority of civilian deaths. While they were primarily targeted at international forces, they were often conducted in residential areas. AGEs frequently feign civilian status while conducting suicide and other attacks, violating the prohibition of perfidy under customary international law. This deception often made it difficult for pro-Government forces to respect their obligation under international humanitarian law to distinguish between civilians and combatants.
The report also expressed concern at the deliberate American strategy to bring the battle to populated areas, such as bazaars and district centres, increasing the risk of harm to civilians and running counter to international humanitarian law principles designed to protect the civilian population against the dangers of military operations. The report stated that the UN “has highlighted concerns in numerous reports, briefings, and dialogue with ISAF [International Security Assistance Force] on the issue of the location of military facilities within or near areas where civilians are concentrated.”
Health centres have also been targeted. The report details an air strike on a clinic by Pro-Government Forces (PGF) on 26 August 2009 where an injured Taliban Commander and at least two other AGEs were receiving medical treatment. The clinic was partially damaged and civilian casualties were recorded. During an armed conflict, health centres are presumed to be civilian objects – even if they are treating wounded combatants – and thus immune from attack, except if they are used as a base for military activities.
As well as being victims of air strikes, suicide attacks and roadside bombings, Afghan children have also been recruited and illegally detained by armed groups. In some situations children are being used as suicide bombers, human shields, or even to plant explosives, often resulting in their deaths and the deaths of other civilians.
The detention and ill-treatment of minors allegedly associated with armed groups by pro-government military forces also remains a concern according to the report, which revealed children have been detained for extended periods of time in government detention centres without due process.
The report details the case of Mohammed Jawad. Aged 12 at the time of his arrest in 2002 for allegedly throwing a hand-grenade at a US military vehicle, he was eventually released in July 2009 from Guantanamo. According to his legal team, Jawad was subjected to “cruel, inhuman and degrading treatment amounting to torture” during his time in detention in Afghanistan and Guantanamo.
The United Nations called on all parties involved in the conflict to maintain their obligations under the international law and, as the conflict continues into 2010, to “minimize [its] impact on civilians.”
More than 110,000 international troops are currently based in Afghanistan, including about 68,000 US troops. UNAMA, a political Mission directed by the UN Department of Peacekeeping Operations (DPKO), was established by the Security Council in 2002 to provide political and strategic advice for the peace process following the overthrow of the Taliban.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Annual Report on Protection of Civilians in Armed Conflict, 2009
United Nations Assistance Mission in Afghanistan