Donald Trump has given a presidential pardon to three members of the American military for crimes they were accused or convicted of carrying out while on service in Afghanistan or Iraq. The pardons have raised questions as to whether there will be consequences for US behaviour on the battlefield and possibly also at the International Criminal Court; an appeal is due to be held there seeking to overturn the court’s decision not to investigate alleged war crimes committed in Afghanistan. AAN’s Kate Clark looks at the ramifications of Trump’s pardons, including where they leave US assurances that military personnel accused of wrongdoing will receive justice in America.
President Trump argued in a White House statement that he had issued the pardons because, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”
Two of the men pardoned were accused of or convicted of murder in Afghanistan. Former army lieutenant Clint Lorance had served more than six years of a 19-year sentence after ordering his men to fire upon three unarmed Afghans in July 2012. The White House statement said that, “Under difficult circumstances and prioritizing the lives of American troops, Lorance ordered his men to engage, and two of the three men were killed.” Yet, as The New York Times reported, nine of Lorance’s platoon testified against him. They painted a picture of “a young lieutenant who, during just three days in command, ordered soldiers to fire repeatedly on unarmed Afghans, tried to falsify reports in order to cover up his actions and so alienated and outraged his troops that they refused to follow orders and turned him in.” In this and the other pardons, Trump was responding to a fierce campaign by conservatives in the US to free Lorance; for a fascinating account of this campaign and an assessment of the case against Lorance from the perspective of an army veteran, can be read in the military-focused media outlet, Task and Purpose.
Trump has also pardoned former army commando Major Mathew Golsteyn, who had been due to go to court in 2020. He was accused of the premeditated murder in 2010 of an Afghan named Rasul, whom he suspected was making IEDs. The White House statement said:
The terrorist bombmaker, as identified by an Afghan informant, who had killed our troops, was detained and questioned. Golsteyn was compelled to release him, however, due in part to deficiencies within the fledgling Afghan detention system. Golsteyn has said he later shot the terrorist because he was certain that the terrorist’s bombmaking activities would continue to threaten American troops and their Afghan partners, including Afghan civilians who had helped identify him.
Army investigators, reported The Washington Post, said that Golstyen had described taking the alleged bomb-maker off base, shooting him and burying his remains in a shallow grave. Later that night, he said he and two other soldiers had dug up the body, taken it to the base and burned it in a pit used to dispose of rubbish.
Trump also ordered that Navy Seal Edward Gallagher, who was demoted after being convicted of posing with a dead Islamic State captive in Iraq in 2017, should be promoted (see details of his case here).
Neither the White House nor any of the news reports seen by this author mention the names of the victims, whether Afghan or Iraqi. The Afghan media, has so far, reported only what the foreign press has said, again without the names of the victims.
The pardons have worsened an already dismal lack of accountability for members of US forces in Afghanistan accused of committing crimes. There have only been a few cases where US personnel have been put on trial. Human Rights Watch has said these tend to happen when they involve an “outlier: an obvious perpetrator clearly acting on his own, outside of any military operation, allowing for the punishment of a wrongdoer without implicating others.” The pardoned men, Lorance and Golsteyn, certainly fit this pattern, as did two other notorious cases, both of which resulted in convictions: Sergeant Robert Bates who murdered 16 Afghans, including nine children, in Panjwayi district of Kandahar in 2012, and members of what became known as the ‘kill team’, US soldiers who killed civilians in Kandahar in 2009 and collected their body parts as trophies (see media report here).
However, there have been no trials of senior officials with command responsibility and many cases, mostly uncovered by the media or advocacy groups, which have not been followed up by US military justice. There are no accounts in the public domain of accountability for alleged crimes by the CIA, whose actions the ICC prosecutor was most concerned about when it came to US actions in Afghanistan. In 2013, we made a list of some of the most notorious cases that have never gone to court, or where low-ranking personnel only were charged, or where only minimum punishments were given. (1) Coming right up to date, there are fresh allegations against the CIA and its proxy forces of killing civilians and detained combatants (see AAN reporting here and here and a recent Human Rights Watch report here) with no follow up from any court. It should be noted that other countries have similar, dismal records of prosecuting those from their armed forces accused of committing crimes in Afghanistan. (2)
Despite this poor record on accountability, the egregious nature of Trump’s pardons may well have consequences for Afghans and Afghanistan.
Possible repercussions of the pardons on the battlefield
Trump’s pardons raise three serious issues for Afghans and those concerned with justice and the rule of law. First is the prospect that American soldiers involved in current combat operations will feel less bound by the Laws of War. The Afghan Independent Human Rights Commission (AIHRC) told Tolo that the pardons of those accused and convicted of murder would cause a repetition of such crimes. This is a sentiment shared, according to The New York Times, by many in the US military, especially in military legal circles: “Privately,” it reported, “many worried that Mr. Trump’s actions could erode discipline by sending a message to troops and commanders that in some cases the laws of war would not apply.” The paper said top defence officials had actually advised the president against issuing the pardons, viewing them as “a sign of disregard not only for the decisions of military juries, but for the judicial process itself.”
Possible ramifications at the International Criminal Court (ICC)
Second is the possible consequences for the appeal, due to be held in early December, against the decision by the judges of the ICC’s Pre-Trial Chamber not to launch an investigation into potential war crimes in Afghanistan (details on the appeal here). In her request to the judges, ICC Prosecutor Fatou Bensouda identified both US and Afghan forces as facing credible allegations of committing torture, and the Taleban and other insurgents for a range of alleged crimes, including murder. (3) In April 2019, as we reported, the Pre-Trial Chamber agreed with the prosecutor that the potential crimes in her preliminary analysis could rise to the level of war crimes, and that the court did have jurisdiction in Afghanistan; one of the benchmarks for this is that victims cannot get justice elsewhere. However, they decided an investigation into possible war crimes and crimes against humanity in Afghanistan would not be “in the interests of justice” because a successful investigation and prosecution were “extremely limited.”
The pardons given by President Trump reinforce the prosecutors’ view that perpetrators are not being held to account for war crimes committed in Afghanistan, and they may give weight to the prosecutor and victims’ arguments that the ‘interests of justice’ should be guided in part by what victims want. When asked, they have said repeatedly and overwhelmingly that they want an investigation.
Potential repercussions of the pardons on negotiations
Finally, Trump’s pardons could have repercussions for any future negotiations over the presence of US forces in Afghanistan. The current Bilateral Security Agreement between the US and Afghanistan (text and analysis here) includes Clause 13 which protects US servicemen and women and those in the ‘civilian component’, ie people employed by the US ministry of defence, from Afghan criminal jurisdiction:
Status of Personnel
- Afghanistan, while retaining its sovereignty, recognizes the particular importance of disciplinary control, including judicial and non-judicial measures, by United States forces authorities over members of the force and of the civilian component. Afghanistan therefore agrees that the United States shall have the exclusive right to exercise jurisdiction over such persons in respect of any criminal or civil offenses committed in the territory of Afghanistan. Afghanistan authorizes the United States to hold trial in such cases, or take other disciplinary action, as appropriate, in the territory of Afghanistan.
During negotiations over the BSA, the US assured Afghans it did take accusations of criminal wrongdoing by its military personnel seriously and would pursue justice, but on American soil. For example, US ambassador, James Cunningham, quoted in this November 2013 dispatch told a press conference:
Our approach, to be clear, so there’s no misunderstanding, is not that American military personnel have immunity from punishment if they do something wrong, it’s that they will be punished, if it’s required that they will be punished, under American law by the American legal authority.
Such claims were belied by the record, as outlined earlier. Given the already woeful lack of accountability, is it possible that Trump’s pardons could worsen the level of trust between US and Afghan negotiators? Professor Barnett Rubin has said he thinks it will do so, pointing to talks with the Taleban. In a Twitter thread, he recalled how the same issue had come up when he was speaking to Taleban as Senior Adviser to the Special Representative for Afghanistan and Pakistan and trying to re-start peace talks. It was March 2012 and Sergeant Bales had just murdered the 16 civilians in Panjwayi, Kandahar. Barnett said he began the meeting with an apology for the massacre and said the accused had been arrested and would be tried for murder. “After a pause,” Barnett recalled, his Taleban interlocutor said, “The problem is not the crime. There will always be crime. The problem is justice.”
Barnett said Trump’s pardons would have consequences for America and its desire to retain a counter-terrorist force that would cooperate with a future Afghan government that might include the Taliban. “How do you negotiate the long-term presence of fighters,” he asks, “whose commander-in-chief explicitly authorizes them to commit war crimes?”
The AIHRC has demanded that the Afghan government should not be silent over the pardons, but “demand more clarity on the issue from the US.” Thus far, however, there have been few responses from the Afghan authorities. (4) Senate deputy speaker Muhammad Alam Azidyar reacted with resignation only over Afghanistan’s lack of power over this issue. He told Tolo: “[P]olitical necessity requires us to accept this.”
Edited by Rachel Reid
(1) The list we compiled in 2013 of particularly bad crimes committed allegedly by military or CIA personnel in Afghanistan where no-one had been prosecuted or sentences were minimal was sparked by the alleged involvement of American personnel in the killings of at least 17 civilians in Nerkh district of Maidan Wardak province in 2012 and 2013. The US army did launch an investigation into that case following media investigations, but nothing, as Human Rights Watch told AAN on 19 November 2019 ever came of it.
Our 2013 list was:
Two men, Dilawar and Habibullah, were tortured to death in Bagram in 2002, in separate incidents. Media investigations initially uncovered the fact that Dilawar had not died of ‘natural causes’ as the military had been claiming. At a trial in 2005, those involved in the killings received sentences ranging from three months in jail to reductions in rank and temporary reductions in pay. (See reporting here and here.)
Gul Rahman, the driver of Ghairat Bahir, (son-in-law of Hezb-e Islami leader, Gulbuddin Hekmatyar) was rendered by the CIA along with Bahir from Pakistan to Afghanistan in 2002. He froze to death in a CIA detention facility known as the Salt Pit after a case officer ordered guards to strip him naked and leave him chained on a concrete floor overnight. It was not until 2010 that the Associated Press uncovered the killing. As the Open Society Foundations reported in 2013:
A CIA Office of Inspector General investigation “determined that the CIA’s top officer…at the prison displayed poor judgment by leaving Rahman in the cold.” The investigative report also “expressed concerns about the CIA station chief in Afghanistan, and later placed some blame on agency management at headquarters.” The inspector general referred the case to the Justice Department, but prosecutors decided not to bring charges. Although a review board comprised of senior officials subsequently recommended that the CIA’s top officer at the Salt Pit should be disciplined, CIA high-ranking official Kyle “Dusty” Foggo, determined no one would be punished. In 2011, Rahman’s case became one of two cases to be criminally investigated by the US Justice Department. In August 2012, Attorney General Holder summarily announced that the Justice Department would not pursue criminal charges in these cases.
Holder said “admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” (See reporting here and here.)
In March 2007 in Jalalabad, Afghanistan, US Marines fleeing an ambush, fired indiscriminately on people along a lengthy stretch of road, killing 19 civilians, including a 16-year-old girl and a 75-year-old man. Human Rights Watch said, “Although the unit was withdrawn from Afghanistan and an investigation opened, no one was ever charged.”
In Khataba, Gardez, US soldiers attempted to cover up a botched night raid in 2010 where civilians, including pregnant women, were killed. The soldiers dug bullets out of the women’s bodies and claimed they had been murdered in an ‘honour killing’ (see the original US military version here and the actual story here. The military initially tried to besmirch the reputation of the reporter who had uncovered the crime, Jerome Starkey of The Times, rather than investigating it. Eventually, the US Special Forces commander came to the village to beg forgiveness. Starkey told AAN that, as far as he knows, no-one has been charged or disciplined over the incident.
Ten election workers were killed in a US airstrike in Takhar in 2010 after intelligence mixed up who held a telephone SIM card and failed to make even the most basic ‘human intelligence’ checks. The US air force targeted the wrong man, a civilian, Zabit Amanullah, killing him and nine of his companions. Despite being presented with overwhelming evidence (see AAN reporting here) which included an interview with the man the military claimed to have killed, the US command has continued to insist they had killed a Taleban deputy governor and his Taleban fighters. Subsequently, when journalists asked the US military about the case, spokesmen deceived them as to the evidence on which they had based the targeting. As AAN said at the time:
The apparent inability, or unwillingness, of the ISAF command and US Special Forces to listen to alternative accounts of operations which Afghans and foreigners like ourselves believe have resulted in civilian casualties is troubling. How can mistakes and systemic failures be addressed without at least some honesty about what has gone wrong?
(2) Other foreign forces that have operated in Afghanistan do not have a good track record for accountability either. The German military has been engaged in a decade-long process of hearings and court proceedings following the Kunduz strike of September 2009, which killed more than 100 civilians. Soon after the strike, in November of 2009, one of Germany’s top commanders, General Wolfgang Schneiderhan, was fired for withholding information about civilian casualties. However, the German authorities refused to prosecute the man who ordered the strike, then colonel Georg Klein (who is now a brigadier general), and the Federal Court of Justice ruled that the state was not liable for compensation. Lawyers representing survivors of the attack have now won a hearing at the European Court of Human Rights, which will be held in February 2020.
Australia is currently investigating alleged war crimes by its special forces in Afghanistan, with a Supreme Court justice Paul Brereton and staff representing the Inspector-General of the Australian Defence Force (IGADF) traveling to Afghanistan earlier this year. The investigation was launched after a leak of Ministry of Defence documents pointed to wrongdoing.
An investigation by the BBC and Sunday Times released on 18 November has accused the UK military of covering up war crimes in Afghanistan and Iraq. In Afghanistan, the allegations relate to the suspicious killings during night raids, including three children and a young man killed in 2012 in Nad Ali in Helmand. Again, the media investigation was prompted by information given by “insiders.”
(3) Many had suspicions that the Pre-Trial Chamber had given in to American pressure when it decided not to investigate. Trump’s then National Security Advisor, John Bolton, using excoriating language, had threatened the officials of the court with sanctions if they went ahead with the investigation. Washington had also withdrawn Prosecutor Bensouda’s US visa. Then AIHRC chairwoman Sima Samar told AAN the judges might have given in to US bullying. Human Rights Watch and the Center for Constitutional Rights in New York quoted here also feared US pressure had been behind their decision (see this dispatch for original sources). When explaining their position, the judges had cited “lack of cooperation” for what they regarded as the limited chances of success of any investigation.
(4) Former president Hamed Karzai was quick to criticise the pardons, tweeting that they demonstrated “complete disregard for the life and dignity of Afghans and negates the values the #US proclaims.”
This article was last updated on 9 Mar 2020