By Katherine Iliopoulos
At least thirty civilians, including women and children, are confirmed dead as a result of United States air strikes against the Taliban in the Farah province of Afghanistan on May 5, 2009. The latest incident has prompted Afghan President Hamid Karzai, who termed the loss of civilians unjustifiable and unacceptable, to call for an end to the use of airstrikes by US and NATO forces.
The International Committee of the Red Cross estimates that dozens of non-combatants were killed during the battle, while Afghan officials say the death toll could be up to 150, but there is no independent confirmation of that figure. Civilians were sheltering from the fighting between government forces and Taliban militants in the Taliban-controlled district of Bala Baluk, when their houses were struck by bombs. Workers for the ICRC arrived at the scene after the attack, and reported seeing dozens of bodies in the two locations they visited. “There were bodies, there were graves, and there were people burying bodies when we were there,” said Jessica Barry, a Red Cross spokesperson.
Acting US State Department spokesman Robert Wood said in a statement on May 5 that “U.S. and international forces take extensive precautions to avoid loss of life among Afghan civilians as well as international and Afghan forces during operations against insurgents and terrorists.” The Pentagon immediately launched a joint investigation with the Afghan government into what appeared to be one of the heaviest civilian death tolls at the hands of coalition forces. A senior U.S. military official told CNN on May 7 that preliminary investigations confirmed that the airstrikes did in fact kill Afghan civilians.
Following the incident of May 5, US and NATO officials accused Taliban militants of fighting from within civilian homes, deliberately placing them in danger. Lieutenant Colonel Khalil Nehmatullah, commander of an Afghan Army battalion in the province, said: “Unfortunately the Taliban took people into some buildings and forced them to stay in there after the security forces started telling them to evacuate.” Defense Secretary Robert Gates, who was travelling in Afghanistan on May 7, expressed regret over the deaths, and referred to the use of ‘human shields’ by the Taliban who allegedly “use civilian casualties and sometimes create them to create problems for the United States and our coalition partners.”
Under international humanitarian law, the definition of a “human shield” is quite specific: parties to a conflict are prohibited from using civilians to shield military objectives or military operations from attack. According to the ICRC’s study on customary international humanitarian law, ‘the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.’
All non-State parties involved in the conflict also have obligations under international humanitarian law. They also are liable for violations of the criminal and other laws of Afghanistan.
Despite the use of human shields by the Taliban, the primary responsibility for the protection of the civilian population during armed conflict lies with the Afghan Government. However, all parties to the armed conflict, including the international forces, have responsibilities under international law to protect civilians/non-combatants and to minimize the impact of their actions on the civilian population and civilian infrastructure.
Customary rules of international humanitarian law also apply to the parties in the armed conflict in Afghanistan, and this latest incident raises concerns as to possible violations by coalition forces of the obligation to respect the principle of proportionality: that is, the incidental harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective. In circumstances where it is uncertain whether targets are civilians or fighters, forces must take all feasible precautions to avoid or minimize incidental loss of civilian life.
The May 5 incident is the latest in a series of airstrikes conducted by international forces over the last few years that have caused large numbers of civilians casualties. According to a UNAMA (United Nations Assistance Mission to Afghanistan) report released in January this year, airstrikes account for the largest percentage of civilian deaths attributed to pro-government forces. The report found that a number of joint Afghan and international operations in which excessive use of force was used allegedly resulted in civilian deaths. It also determined that civilian deaths in Afghanistan had risen 40 percent in 2008 compared with the year before to 2,118 people: the highest of any year since the Taliban were ousted in 2001. Of the 828 civilians determined killed by coalition forces, 552 were determined to be from airstrikes.
In one of the most publicised incidents of civilian casualties in Afghanistan, US troops fighting off a Taliban ambush on 3 November 2008 fired a missile at a wedding party in the Shah Wali Kot area in Kandahar, killing 37 civilians, mainly women and children. Government sources claimed that insurgents used villagers’ houses to attack the patrol and had infiltrated the wedding-party compound that was bombed. Eyewitnesses and victims interviewed by UNAMA, however, strongly denied the presence of any insurgents at the wedding party.
The previous year, on March 4, 2007, coalition forces dropped two 2,000lb bombs on a house in Jabar village, Kapisa province, just north of Kabul, hours after an attack on a nearby US base. Nine non-combatants who were inside the house - including two elderly people, two pregnant women and four children - were killed in the attack.
The US military justified its attack on the house on the basis that two men who had just fired a rocket on the US-run NATO base were seen running into the compound. “These men knowingly endangered civilians by retreating into a populated area while conducting attacks against coalition forces,” said spokesman Lieutenant Colonel David Accetta. Military spokesperson Major William Mitchell told the media: “The terrorists attacked a fire base and then retreated at a place where, unknown to us, there were also civilians.” However, according to an investigation by Human Rights Watch, there were no US ground forces in contact with Taliban fighters on the ground. At the same time, US forces conceded that their troops had been at the village the day before. A relative of the family killed said, “The Americans came here the day before they bombed, they searched the whole house and saw women and children in the house.”
The evidence suggesting that US forces knew the house was inhabited by civilians and that only two lightly armed fighters may have been present raises serious concerns that the airstrikes may have violated the international humanitarian law prohibition against disproportionate attacks. The absence of compelling evidence that Taliban fighters were present at the house at the time of the attack raises the possibility that it was unlawfully targeted merely because it was known to be the home of a local Taliban leader.
The location of military facilities close to residential areas was also a concern of UNAMA, having found that attacks on such facilities by insurgents often result in the death of civilians. Under Article 58 of Additional Protocol I, reflective of customary international law, “The Parties to the conflict shall, to the maximum extent feasible … avoid locating military objectives within or near densely populated civilian areas.”
According to the policy regulating the conduct of forces acting under Chapter VII of the UN Charter: “In its area of operation the United Nations force shall avoid, to the extent feasible, locating military objectives within or near densely populated areas, and take all necessary precautions to protect the civilian population, individual civilians and civilian objects against the dangers resulting from military operations.” (Observance by United Nations Forces of International Humanitarian Law, SG Bulletin; 6 August 1999).
In May 2008, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, who acts independently of UNAMA, concluded a 12 day visit to Afghanistan. His investigation found that “Afghanistan continues to suffer from a large number of avoidable killings of civilians.” In his report, he wrote that “the killings by international forces that most frequently raise issues of international humanitarian law are those that occur during surprise night-time raids and those that occur when soldiers fire at vehicles or passers-by that they (wrongly) suspect of being attackers” and he recommended that international forces should respect the principles of ‘accountability and transparency’ in relation to allegations of, and the prosecution of, unlawful acts committed by their troops.
Last year, US and NATO forces established new drills intended to reduce the number of civilian casualties. They also say now they launch immediate investigations alongside Afghan authorities into all reports of civilian deaths and apologise more quickly than before.
Following the Alston report, an Afghan government commission found that an airstrike on 22 August 2008 by US forces killed 90 civilians in Azizabad village in Shindand district, a finding backed by the UNAMA report. The US originally said no civilians died; a high-level investigation later concluded 33 civilians were killed. Following the killings, the top US commander in Afghanistan, Gen. David McKiernan announced a directive last September meant to reduce such deaths. He ordered commanders to consider breaking away from firefights in populated areas rather than pursuing militants into villages.
The Afghan Independent Human Rights Commission has been investigating claims that white phosphorus may have been used during the May 5 attack after Afghan doctors reported seeing ‘strange burns’ on several victims. UN human rights investigators have also seen extensive burn wounds on victims and have raised questions about the cause of such injuries.
The use of white phosphorus, when used to mark targets or create smoke screens, is not illegal under international law. However its use in populated areas can give rise to a violation of the international humanitarian law requirement that all feasible measures be taken to avoid civilian injuries and casualties. White phosphorus munitions can severely burn people and set alight fields and buildings.
Col. Greg Julian, the top U.S. military spokesman in Afghanistan, denied that the US used white phosphorus as a weapon but stated that it is only used to illuminate the night sky.
On March 14, 2009, an 8-year-old girl in Kapisa province was burned by white phosphorus munitions during a series of firefights between NATO forces and insurgent groups. Human Rights Watch has called upon NATO to reveal the results of its investigation into the incident. NATO officials said that that no rounds were found to have landed near the girl’s house, but did not deny that white phosphorus was used during the attack. They have suggested that the Taliban may have fired the rounds, but according to Human Rights Watch, they have not provided any evidence for their claim.
In a leaked draft agreement sent by Afghanistan to NATO in January this year, one of the proposed measures for reducing civilian casualties and collateral damage was that “the use of indirect fire and air attack assets in support of ground operations in populated areas should be avoided.” The document, entitled “Draft Technical Agreement Between the Government of Afghanistan and the North Atlantic Treaty Organization as a Framework to Improve Methods and Procedures for the Prosecution of the Global War on Terrorism to Ensure Our Joint Success,” which is yet to be agreed upon, seeks to lay a foundation for agreed guidelines on the conduct of Afghan and NATO operations so as to reduce civilian casualties.
Despite President Karzai’s claim that air raids were not producing a substantial impact on a Taliban insurgency that has been gathering strength across the south and east of the country, the US has rejected his plea for an absolute end to the use of airstrikes, with White House National Security Advisor James Jones saying that US could not be expected to fight “with one hand tied behind our back.”
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Afghanistan: NATO Should ‘Come Clean’ on White Phosphorus
Human Rights Watch
May 8, 2009
Afghanistan: ICRC Confirms Dozens Killed in Airstrikes
International Committee of the Red Cross
May 6, 2009
Afghanistan Seeking SOFA terms?
Foreign Policy
February 24, 2009
Alarm over Afghan Civilian Deaths
BBC
February 17, 2009
Afghanistan: We Can Do Better
By Jaap de Hoop Scheffer, Secretary General of NATO
Washington Post, January 18, 2009
Afghanistan: Annual Report on Protection of Civilians in Armed Conflict, 2008 (PDF)
Human Rights UnitUnited Nations Assistance Mission to Afghanistan
January 2009
Troops in Contact: US and NATO Bombing and Civilian Deaths
Human Rights Watch
September 8, 2008
US Airstrike in Kabul Kills Nine Members of Same Family
By Declan Walsh
The Guardian, March 6, 2007
US Airstrikes Kill Dozens of Civilians in Afghanistan
By Katherine Iliopoulos
At least thirty civilians, including women and children, are confirmed dead as a result of United States air strikes against the Taliban in the Farah province of Afghanistan on May 5, 2009. The latest incident has prompted Afghan President Hamid Karzai, who termed the loss of civilians unjustifiable and unacceptable, to call for an end to the use of airstrikes by US and NATO forces.
The International Committee of the Red Cross estimates that dozens of non-combatants were killed during the battle, while Afghan officials say the death toll could be up to 150, but there is no independent confirmation of that figure. Civilians were sheltering from the fighting between government forces and Taliban militants in the Taliban-controlled district of Bala Baluk, when their houses were struck by bombs. Workers for the ICRC arrived at the scene after the attack, and reported seeing dozens of bodies in the two locations they visited. “There were bodies, there were graves, and there were people burying bodies when we were there,” said Jessica Barry, a Red Cross spokesperson.
Acting US State Department spokesman Robert Wood said in a statement on May 5 that “U.S. and international forces take extensive precautions to avoid loss of life among Afghan civilians as well as international and Afghan forces during operations against insurgents and terrorists.” The Pentagon immediately launched a joint investigation with the Afghan government into what appeared to be one of the heaviest civilian death tolls at the hands of coalition forces. A senior U.S. military official told CNN on May 7 that preliminary investigations confirmed that the airstrikes did in fact kill Afghan civilians.
Following the incident of May 5, US and NATO officials accused Taliban militants of fighting from within civilian homes, deliberately placing them in danger. Lieutenant Colonel Khalil Nehmatullah, commander of an Afghan Army battalion in the province, said: “Unfortunately the Taliban took people into some buildings and forced them to stay in there after the security forces started telling them to evacuate.” Defense Secretary Robert Gates, who was travelling in Afghanistan on May 7, expressed regret over the deaths, and referred to the use of ‘human shields’ by the Taliban who allegedly “use civilian casualties and sometimes create them to create problems for the United States and our coalition partners.”
Under international humanitarian law, the definition of a “human shield” is quite specific: parties to a conflict are prohibited from using civilians to shield military objectives or military operations from attack. According to the ICRC’s study on customary international humanitarian law, ‘the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.’
All non-State parties involved in the conflict also have obligations under international humanitarian law. They also are liable for violations of the criminal and other laws of Afghanistan.
Despite the use of human shields by the Taliban, the primary responsibility for the protection of the civilian population during armed conflict lies with the Afghan Government. However, all parties to the armed conflict, including the international forces, have responsibilities under international law to protect civilians/non-combatants and to minimize the impact of their actions on the civilian population and civilian infrastructure.
Customary rules of international humanitarian law also apply to the parties in the armed conflict in Afghanistan, and this latest incident raises concerns as to possible violations by coalition forces of the obligation to respect the principle of proportionality: that is, the incidental harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective. In circumstances where it is uncertain whether targets are civilians or fighters, forces must take all feasible precautions to avoid or minimize incidental loss of civilian life.
The May 5 incident is the latest in a series of airstrikes conducted by international forces over the last few years that have caused large numbers of civilians casualties. According to a UNAMA (United Nations Assistance Mission to Afghanistan) report released in January this year, airstrikes account for the largest percentage of civilian deaths attributed to pro-government forces. The report found that a number of joint Afghan and international operations in which excessive use of force was used allegedly resulted in civilian deaths. It also determined that civilian deaths in Afghanistan had risen 40 percent in 2008 compared with the year before to 2,118 people: the highest of any year since the Taliban were ousted in 2001. Of the 828 civilians determined killed by coalition forces, 552 were determined to be from airstrikes.
In one of the most publicised incidents of civilian casualties in Afghanistan, US troops fighting off a Taliban ambush on 3 November 2008 fired a missile at a wedding party in the Shah Wali Kot area in Kandahar, killing 37 civilians, mainly women and children. Government sources claimed that insurgents used villagers’ houses to attack the patrol and had infiltrated the wedding-party compound that was bombed. Eyewitnesses and victims interviewed by UNAMA, however, strongly denied the presence of any insurgents at the wedding party.
The previous year, on March 4, 2007, coalition forces dropped two 2,000lb bombs on a house in Jabar village, Kapisa province, just north of Kabul, hours after an attack on a nearby US base. Nine non-combatants who were inside the house - including two elderly people, two pregnant women and four children - were killed in the attack.
The US military justified its attack on the house on the basis that two men who had just fired a rocket on the US-run NATO base were seen running into the compound. “These men knowingly endangered civilians by retreating into a populated area while conducting attacks against coalition forces,” said spokesman Lieutenant Colonel David Accetta. Military spokesperson Major William Mitchell told the media: “The terrorists attacked a fire base and then retreated at a place where, unknown to us, there were also civilians.” However, according to an investigation by Human Rights Watch, there were no US ground forces in contact with Taliban fighters on the ground. At the same time, US forces conceded that their troops had been at the village the day before. A relative of the family killed said, “The Americans came here the day before they bombed, they searched the whole house and saw women and children in the house.”
The evidence suggesting that US forces knew the house was inhabited by civilians and that only two lightly armed fighters may have been present raises serious concerns that the airstrikes may have violated the international humanitarian law prohibition against disproportionate attacks. The absence of compelling evidence that Taliban fighters were present at the house at the time of the attack raises the possibility that it was unlawfully targeted merely because it was known to be the home of a local Taliban leader.
The location of military facilities close to residential areas was also a concern of UNAMA, having found that attacks on such facilities by insurgents often result in the death of civilians. Under Article 58 of Additional Protocol I, reflective of customary international law, “The Parties to the conflict shall, to the maximum extent feasible … avoid locating military objectives within or near densely populated civilian areas.”
According to the policy regulating the conduct of forces acting under Chapter VII of the UN Charter: “In its area of operation the United Nations force shall avoid, to the extent feasible, locating military objectives within or near densely populated areas, and take all necessary precautions to protect the civilian population, individual civilians and civilian objects against the dangers resulting from military operations.” (Observance by United Nations Forces of International Humanitarian Law, SG Bulletin; 6 August 1999).
In May 2008, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, who acts independently of UNAMA, concluded a 12 day visit to Afghanistan. His investigation found that “Afghanistan continues to suffer from a large number of avoidable killings of civilians.” In his report, he wrote that “the killings by international forces that most frequently raise issues of international humanitarian law are those that occur during surprise night-time raids and those that occur when soldiers fire at vehicles or passers-by that they (wrongly) suspect of being attackers” and he recommended that international forces should respect the principles of ‘accountability and transparency’ in relation to allegations of, and the prosecution of, unlawful acts committed by their troops.
Last year, US and NATO forces established new drills intended to reduce the number of civilian casualties. They also say now they launch immediate investigations alongside Afghan authorities into all reports of civilian deaths and apologise more quickly than before.
Following the Alston report, an Afghan government commission found that an airstrike on 22 August 2008 by US forces killed 90 civilians in Azizabad village in Shindand district, a finding backed by the UNAMA report. The US originally said no civilians died; a high-level investigation later concluded 33 civilians were killed. Following the killings, the top US commander in Afghanistan, Gen. David McKiernan announced a directive last September meant to reduce such deaths. He ordered commanders to consider breaking away from firefights in populated areas rather than pursuing militants into villages.
The Afghan Independent Human Rights Commission has been investigating claims that white phosphorus may have been used during the May 5 attack after Afghan doctors reported seeing ‘strange burns’ on several victims. UN human rights investigators have also seen extensive burn wounds on victims and have raised questions about the cause of such injuries.
The use of white phosphorus, when used to mark targets or create smoke screens, is not illegal under international law. However its use in populated areas can give rise to a violation of the international humanitarian law requirement that all feasible measures be taken to avoid civilian injuries and casualties. White phosphorus munitions can severely burn people and set alight fields and buildings.
Col. Greg Julian, the top U.S. military spokesman in Afghanistan, denied that the US used white phosphorus as a weapon but stated that it is only used to illuminate the night sky.
On March 14, 2009, an 8-year-old girl in Kapisa province was burned by white phosphorus munitions during a series of firefights between NATO forces and insurgent groups. Human Rights Watch has called upon NATO to reveal the results of its investigation into the incident. NATO officials said that that no rounds were found to have landed near the girl’s house, but did not deny that white phosphorus was used during the attack. They have suggested that the Taliban may have fired the rounds, but according to Human Rights Watch, they have not provided any evidence for their claim.
In a leaked draft agreement sent by Afghanistan to NATO in January this year, one of the proposed measures for reducing civilian casualties and collateral damage was that “the use of indirect fire and air attack assets in support of ground operations in populated areas should be avoided.” The document, entitled “Draft Technical Agreement Between the Government of Afghanistan and the North Atlantic Treaty Organization as a Framework to Improve Methods and Procedures for the Prosecution of the Global War on Terrorism to Ensure Our Joint Success,” which is yet to be agreed upon, seeks to lay a foundation for agreed guidelines on the conduct of Afghan and NATO operations so as to reduce civilian casualties.
Despite President Karzai’s claim that air raids were not producing a substantial impact on a Taliban insurgency that has been gathering strength across the south and east of the country, the US has rejected his plea for an absolute end to the use of airstrikes, with White House National Security Advisor James Jones saying that US could not be expected to fight “with one hand tied behind our back.”
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Afghanistan: NATO Should ‘Come Clean’ on White Phosphorus
Human Rights Watch
May 8, 2009
Afghanistan: ICRC Confirms Dozens Killed in Airstrikes
International Committee of the Red Cross
May 6, 2009
Afghanistan Seeking SOFA terms?
Foreign Policy
February 24, 2009
Alarm over Afghan Civilian Deaths
BBC
February 17, 2009
Afghanistan: We Can Do Better
By Jaap de Hoop Scheffer, Secretary General of NATO
Washington Post, January 18, 2009
Afghanistan: Annual Report on Protection of Civilians in Armed Conflict, 2008 (PDF)
Human Rights UnitUnited Nations Assistance Mission to Afghanistan
January 2009
Troops in Contact: US and NATO Bombing and Civilian Deaths
Human Rights Watch
September 8, 2008
US Airstrike in Kabul Kills Nine Members of Same Family
By Declan Walsh
The Guardian, March 6, 2007
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