Afghanistan Analysts Network – English

Rights and Freedoms

General Allen Leaves with an Improved Report Card on Civilian Casualties and Torture

Kate Clark 10 min

Today, 10 February 2012, the commander of ISAF and US forces in Afghanistan, General John Allen, leaves after a year and a half in the job. ‘When I got here,’ he told The New York Times, ‘I measured success in how well and how often we were fighting. Today, it’s a very different environment. The Afghans are virtually entirely in the lead across Afghanistan.’ (1) AAN’s senior AAN analyst, Kate Clark, has been measuring General Allen’s record on how well he has mitigated suffering in the war, in particular when it comes to reducing civilian casualties and dealing with ISAF’s Afghan allies when they torture detainees. She also looks ahead to how the Afghan state may end up dealing with these thorny issues, as Afghan forces increasingly take on the war against the Taleban

When Allen took command of US and ISAF forces in Afghanistan, in July 2011, there was a noticeable change in how seriously the military took civilian casualties. The change was institutional, with the effort to drive down civilian casualties made a priority of the mission. Those tasked with the job of mitigating civilian casualties had direct contact with the highest levels of the command, including directly to Allen who was informed immediately whenever there were reports of deaths among Afghan civilians. They also had a presence in the operations room, the central hub of the ISAF command. Allen ordered that all soldiers coming to Afghanistan undergo training using scenarios to explore, not just what they could legally do in a given situation, but what they should do. There was also a noticeable shift in the openness of ISAF in dealing with people like me, who were trying to investigate when operations had apparently gone wrong.

The public sign of this shift came, four months into his command, in late November and early December 2011, when Allen issued two new tactical directives to his forces, one on civilian casualties, the other on night raids. These were not the first tactical directives on these subjects, but they were – for anyone interested in protecting civilians during wartime – far better than the ones before. The language was simpler and more direct, there were clear references to the laws of armed conflict and more of the orders, especially on night raids, were unconditional.

Some of the key commands were:

Presume that: every Afghan is a civilian until otherwise apparent; all compounds are civilian structures unless otherwise apparent; in every location where there is evidence of human habitation, civilians are present until otherwise apparent. (2)

Conduct ground battle damage assessments in all situations where there is a potential loss of life or injury to insurgents or Afghan civilians, except when an assessment would put ISAF personnel at greater risk.

Investigate every allegation of civilian casualties

Apply the Laws of Armed Conflict principles: military necessity/objective, distinction, proportionality, and humanity on all operations.

A further change to orders came in the summer of 2012. This time, it was a reaction to the disastrous air strike on a compound in Barak-e Barak district of Logar in June 2012 where Taleban commanders had been gathering. The strike, according to UNAMA in its mid-year 2012 report on the Protection of Civilians in Armed Conflict, killed 18 civilians, including seven women and nine children. UNAMA’s reaction to the killings was couched in cool legal language, so the general reader may not have picked up how grave its accusation was – that the foreign military had breached the laws of armed conflict:

Although the airstrike followed a series of escalation of force measures, the effects should have been anticipated. A tactical airstrike targeting a residential compound has a high potential to cause incidental loss of civilian life and harm to civilians which could be excessive in relation to the concrete and direct military advantage.(3)

In the aftermath of these killings, Allen issued a new fragmentary order (FRAGO) amending the tactical directive on aerial operations. The order tightened the system of approving the use of air munitions considerably. Offensive fire power against suspected insurgents, ie targeted killings, is still being used, but has to be approved at the most senior level; while approval for the defensive use of air fire depends on troops on the ground being in danger, with permission given at a higher level than before. Allen referred to these new rules in his interview with The New York Times:

We had a couple of pretty rough incidents where Afghans were killed by the delivery of aviation fires. I eventually said to President Karzai that civilian structures, tents, potential areas where civilians might be either taking refuge or hiding or living, I’m not going to deliver any more fires on those structures unless my troops are pinned down, can’t move, and the only option they have is to deliver fires on these structures, or I decide, the senior leader out here, I decide to deliver fires on these structures.

Air fire, says UNAMA has been the main way in which civilians are killed by ‘pro-government forces’ (UNAMA counts the international military and ANSF together), killing four times as many civilians as any other tactic. The effect of the new order, Allen said, was that civilian causalities as a result of air fires, ‘plummeted immediately’. He admits, however: ‘It was probably a decision I could have made long before that and none of our forces were put at risk, or at greater risk because of this.’ When UNAMA publishes its forthcoming yearly 2012 report on the protection of civilians, we should have an independent assessment on the impact of the change in approving air strikes on civilian deaths. It seems likely to be substantial, however.

Aside from air strikes, trying to work out how much of a change Allen’s command has had on the number of civilians killed by international forces is much less straightforward because of the changing nature of the war during his tenure. Allen arrived in the middle of the surge and for various reasons since then – surge troops leaving, foreign forces patrolling less because of the threat of ‘green-on-blue’ attacks and Afghan forces taking over more responsibility for security as transition progresses – the fighting has become less intense. According to the Afghanistan NGO Security Office (ANSO) in its most recent report, the number of what it calls ‘incidents’ – whether initiated by the international military, Afghan forces or the Taleban and other insurgent groups – was lower by 24 per cent in 2012, compared with 2011. Breaking that down, ANSO counts attacks by the international military as reduced by 57 per cent and by the Taleban as down by 25 per cent, while it says the ANSF, which are now in charge of much more of the country and leading far more operations, are the ‘authors’ of 2 per cent more attacks.(4) The 14 per cent decrease in civilian casualties during this period, says ANSO, is tragically a relatively smaller reduction than the fall in conflict activity.(5) Again, in assessing the international military’s record on civilian casualties generally, UNAMA, which investigates individual incidents, may be able to draw more substantive and nuanced conclusions.

But it is not just on civilian casualties that Allen has shown positive leadership in ensuring that those under his command fight according to the laws of armed conflict. The other issue where he was swift to act is one which has plagued post-2001 Afghanistan – the use of torture. Early on after the 2001 intervention, US forces (I include the CIA here) were systematically and directly involved in torturing Afghan and foreign security detainees. (6) Even after this practice stopped, indirect involvement in torture continued with the armies of most of the nations that were fighting in Afghanistan and detaining suspected insurgents, handing them over to the National Directorate of Security (NDS).(7) This was in spite of the fact that handovers are illegal when, as the Convention Against Torture puts it, there are ‘substantial grounds for believing they would be subject to torture or cruel, inhuman or degrading treatment or punishment’.(8)

It has proven very difficult to get the international military and their respective governments to take seriously the torture of detainees handed over to the NDS and police. Some countries, like Canada and the UK, have been forced to act after rulings in their domestic courts or public scandal following media reports (see AAN reporting here, here and here). But the US military, and therefore ISAF generally, have been very tardy in dealing with their legal obligations.

Allen took command just as UNAMA was finishing its first report on torture by the NDS and the police (published in October 2011). He acted swiftly, suspending handovers to places named in UNAMA’s report and initiating a programme of observation, monitoring and training of the NDS.

That programme can not be judged a success, as UNAMA’s 2012 report has unfortunately shown (see AAN analysis here). Nevertheless, Allen’s intentions and efforts appear to have been honest. In a letter to UNAMA, published as an annex to its 2012 report, he said that on 80 occasions, he personally or his team had presented the Afghan government with detailed accusations of detainee abuse and in only one instance had there been a response – albeit an ambiguous one: the moving of the head of Kandahar NDS to the same position in Sar-e Pul.

The problem with ISAF’s programme and the attitude of the Afghan state, UNAMA concluded, is that, even though torture is also illegal under Afghan law, the torturers do not fear being sacked or put on trial. The lack of deterrents and disincentives to stop the torture extends also to the funding of NDS and the police. Donors have chosen not to make funding conditional on an end to torture.

That ISAF and the largely US forces of Operation Enduring Freedom have gradually changed the ways they fight in Afghanistan in order to reduce suffering is the result of years of harrying by human rights defenders and the press and political pressure from Afghans. General Allen probably has the best record of any of the commanders in this regard. However, with full transition and withdrawal looming, foreign forces will be fighting and detaining less, which will make the twin issues of civilian casualties and the torture of detainees less pressing for them. That having been said, if there is a bilateral Afghan-US agreement which provides for a post-2014, counter-terrorism operation involving US Special Operations Forces and the CIA, everything could get a whole lot murkier again; holding these forces to account on civilian casualties and detentions, without the more open presence of ISAF, would likely be far more difficult. More generally, however, Afghans will see the war moving into Afghan hands and it will be the Afghan state that will have to deal with these issues when it finds its forces killing civilians and mistreating detainees.

The Afghan government reaction to the UNAMA torture report was not encouraging and consisted mainly of denials and accusations of exaggeration (see the annex to the UNAMA report for the official responses). President Karzai did, on 22 January 2013, set up a taskforce to investigate the accusations of torture. It has yet to report back. However, as Human Rights Watch reported, the taskforce consists almost entirely of ‘Afghan government officials who have little or no human rights expertise, and includes representatives of the state agencies with the worst records on torture – the Ministry of Interior Affairs and the National Directorate of Security.’ The group’s Asia director, Brad Adams, said:

Afghanistan needs a fully independent and permanent anti-torture body staffed by experienced human rights advocates with the resources and powers to conduct long-term and consistent monitoring and reform.

As for civilian casualties, a new report from the NGO, Civilians in Conflict, which was a pioneer in holding foreign forces to account, has been looking at how well the ANSF investigate when its forces kill Afghan civilians, whether they learn from mistakes and whether they compensate families who lose members.(9) Civilians in Conflict says the fact that the government has set up programmes to do all these things is ‘commendable’, but there are numerous flaws in how the systems work:

The problems begin immediately following a civilian casualty incident, as the ANSF infrequently investigates what happened and who was harmed, leaving many civilians who would otherwise be eligible for monetary payments overlooked. Any investigations that do occur are largely ad hoc. Infrequent reporting of civilian casualties by Afghan forces, poor access in territory controlled by armed groups, as well as the reluctance of some Afghan officials to acknowledge civilian harm caused by the ANSF, all impede investigations.

Due in part to weak investigation mechanisms, civilians harmed by the ANSF may not receive any help. Among civilians we interviewed for this report, the overwhelming majority that suffered harm caused by the ANSF, or during an armed clash involving Afghan forces, did not receive any assistance from the Afghan government. Complaints to Afghan security officials or provincial authorities by civilians also did not appear to trigger investigations or accountability mechanisms when it occurred. If investigations were initiated, affected civilians we interviewed were not consulted by investigators or informed of the results.

As ISAF’s experience has shown, and Civilians in Conflict points out, unless civilian protection measures are prioritized within the highest levels of the command of the ANSF and the Afghan government, Afghan forces are likely to be responsible for the death of an increasing number of civilians as they conduct more combat operations on their own. The political dynamics of Afghan, rather than foreign forces killing Afghan civilians during fighting or torturing Afghan prisoners are, of course, very different. However, if large numbers of civilians do start to be killed by Afghan forces, the government may well have to face some serious political consequences.

(1) See excerpts from his interview here.

(2) The principle that, ‘in case of doubt, military forces must presume a target is civilian’ is found in Additional Protocol I (53.3). Although this is not binding in a ‘non-international conflict’ such as Afghanistan’s, it can be argued by analogy to be applicable.

(3) The UNAMA report goes on to explain the legal basis for its criticism:

Customary international humanitarian law explicitly states that parties to the conflict must do everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

(4) There has certainly been a sharp decrease in the intensity of the fighting, although different organisations date the start of the decline differently – ISAF from 2010 (see graphs here for its figures) and ANSO (cited earlier) from 2011. See this AAN blog on the different ways ISAF, the UN and ANSO count casualties and attacks which may help explain the discrepancy.

ISAF sees the lower Taleban activity as proof of the degradation of the movement’s capabilities, whereas ANSO sees a mutual de-escalation:

The structure of the conflict has not changed… The current reduction is a controlled process rather than an imposition on either side. We conclude that the reduction of armed opposition groups is a deliberate and reversible response to the international military forces’ withdrawal.

(5) The trend towards the bulk of civilian casualties being caused by insurgents has continued, rising, according to ANSO, from 87per cent of all casualties in 2011 to 90per cent in 2012.

(6) For details, see the Human Rights Watch 2004 report, ‘Enduring Freedom’ Abuses by U.S. Forces in Afghanistan and a recent Open Societies Foundation report, the most comprehensive to date on the CIA’s involvement, globally, in torture and extraordinary rendition; it details how many detainees were brought from outside Afghanistan and kept secretly in ‘black sites’ where they were interrogated and maltreated.

(7) Some nations deploying to ISAF have never detained Afghans. Most who did, transferred them to NDS. The US alone has kept its own detention operations, keeping some detainees, involving largely, it seems, those picked up by the non-ISAF forces of Operation Enduring Freedom, at Bagram.

(8) The transfer of prisoners from foreign forces deployed in Afghanistan to the Afghan authorities would be covered by Article 3 of the Convention Against Torture which provides that, ‘no State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’

(9) AAN has been particularly concerned when civilians are killed as a result of breaches in the laws of armed conflict (see reporting here, here and here).

Photo: Gen Allen with Afghan women – he was hailed on the social media today for his remark that improving the situation of Afghan women was key to ensuring that Taleban won#t sway majority of public opinion. Photo from ISAF website.

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Human Rights US Torture ISAF

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