Rights & Freedoms

The Nerkh Killings: The problem with ‘immunity’ for US soldiers


Revelations concerning the alleged involvement of US soldiers in the forced disappearance, murder and torture of Afghans in the Nerkh district of Wardak a year ago keep surfacing. The US insists its forces come only under US legal jurisdiction, that they are ‘immune’ from Afghan courts and that it will investigate any wrongdoing by its forces. This non-negotiable demand is due to be debated at a consultative loya jirga on the Bilateral Security Agreement in just over a week’s time. Yet the Nerkh case and others show just how poor the US military and the CIA are at investigating the crimes of their own, especially when it comes to command responsibility. To date, no officer has been prosecuted for authorising crimes or failing to stop a junior committing a crime. AAN Senior Analyst, Kate Clark, reports.

Villagers in Nerkh first raised the alarm over their people going missing in November 2012. Both the US military and ISAF (according to a new report by Matthieu Aikins in Rolling Stone and the government of Afghanistan (according to UNAMA) were informed, but it was months and about a dozen ‘disappearances’ later before the Afghan government forced the unit to leave. It was only after the International Committee of the Red Cross (ICRC) presented fresh evidence to ISAF command in early June that it ordered the US military to start a criminal investigation.

Pressure on the US military to act has come from the media – with repeated investigative reports over many months by Reuters, here, here and here, the New York Times, here, here and here and the Wall Street Journal (see here) – and from the UN, the ICRC, the government of Afghanistan and local people. The allegations are serious – disappearances, arbitrary killings and torture. Ten people are believed to have been killed and a further eight have disappeared. The question is not only who carried out the killings and other crimes, but also who may have had command responsibility. This is when a superior (civilian or military) authorises or allows a subordinate to commit a crime. (1) UNAMA, writing about the incidents in July, was blunt about their gravity: “If proven to have been committed under the auspices of a party to the armed conflict [these] may amount to war crimes.”

Nerkh: Investigations and denials

After villagers and provincial council members first complained about the disappearances, the government set up first one and then a second investigation. ISAF, which often speaks on behalf of the US ‘counter-terrorism’ mission, Operation Enduring Freedom, and US military spokesmen have repeatedly denied the involvement of US forces in any mistreatment. The first denial came in January after a video was found showing an Afghan, later named as Zikria Kandahari, whom villagers said was an interpreter on the base and ISAF said was a former interpreter, beating a detainee. (Kandaharhi was arrested by the NDS in July 2013.)

In February 2013, the Afghan government ordered all US Special Forces to leave the province because of the Nerkh allegations. It seems that at this point, the US military was jolted into action. It set up a joint investigation with Afghan counterparts in early March. According to UNAMA, Afghan members of the team said the US Special Forces had perpetrated the killings and US members denied this. Then, more evidence came – literally – to light after the Special Forces unit left Nerkh and villagers could finally start digging in the hope of finding bodies. They unearthed ten sets of human remains buried in six locations near the base. Aikins reports the Afghan army commander who took over the base laughing at the suggestion that anyone could bury a body 50 yards outside the perimeter without those inside being aware of it:

“There is no possibility,” he says, pointing out that his guard towers have clear lines of sight in all directions over the flat ground. No one could start digging outside the base without attracting immediate attention. “The Americans must have known they were there.”

Witnesses repeatedly placed US soldiers as involved. Aikins, for example, reported: “Many of the men who disappeared in Nerkh were rounded up by the Americans in broad daylight, in front of dozens of witnesses.” He interviewed men who alleged they were badly beaten by US soldiers as well as by Kandahari and one who said he witnessed Kandahari killing one of the victims, Gul Rahman, in front of American soldiers. Another translator with the Special Forces unit said the team routinely abused detainees. An indication that the Nerkh abuses may not have been an isolated case came with the release of a video showing a bound, blindfolded Afghan being beaten in an interrogation by Afghans with what look to be US soldiers looking.

Aikins said none of the witnesses or family members he had spoken to had been interviewed by the military investigators. This is a pattern AAN has found looking into other cases, for example, the (probably legal) killing of an Afghan journalist by a US soldier in Uruzgan in 2012. Reuters has also now reported new allegations, that NDS investigators said they were refused access to three US soldiers and four Afghan translators whom they wanted to interview about the killings. The soldiers are protected from Afghan criminal jurisdiction by the Status of Forces Agreement signed by the US and Afghan governments in 2003 (for more detail, see here); this is a legal protection which the Bilateral Security Agreement would re-new for any post-2014 US deployment. The translators, however, should not be protected.

The US record on investigating soldiers and CIA officials

Unfortunately, what we have seen over the Nerkh killings in the last year is a familiar pattern. As AAN said in a major report on transitional justice and reconciliation in Afghanistan:

The US military seldom publicizes the results of investigations into specific abuses, including torture, deaths in detention and indiscriminate or disproportionate use of force during ground operations. In the majority of cases, there is little indication that anyone has been held accountable for these abuses.

One could add that the few cases which have come to prosecution have predominantly been of junior soldiers and, in one case, a CIA civilian contractor. When officers have been prosecuted, it is for their direct involvement in crimes. No-one has been prosecuted for command responsibility. Yet, this is one of the key ways in ensuring systemic failures do not go unchecked. The system and culture of holding soldiers and those in command accountable is fundamental to ensuring abuses do not take place. As Human Rights Watch said in relation to Nerkh, “It is hardly a surprise that serious abuses keep occurring when the US so rarely punishes those who commit them.”

Two pieces of research which have sought to calculate how well the US army and CIA investigated the abuse of detainees were published in 2006. In the first, Human Rights First counted nearly 100 deaths of US ‘war on terror’ detainees (ie in Afghanistan and Iraq) since August 2002. Breaking this number down, it said, the US had classified 34 as suspected or confirmed homicides; Human Rights First judged a further 11 to have been due to physical abuse or harsh conditions; it said eight people had been tortured to death; finally, in almost half the cases, the cause of death remained undetermined or unannounced. Yet, it said, only 12 detainee deaths had resulted in punishment of any kind for a US official:

Of the 34 homicide cases so far identified by the military, investigators recommended criminal charges in fewer than two thirds, and charges were actually brought (based on decisions made by command) in less than half. While the CIA has been implicated in several deaths, not one CIA agent has faced a criminal charge. Crucially, among the worst cases in this list – those of detainees tortured to death – only half have resulted in punishment; the steepest sentence for anyone involved in a torture-related death: five months in jail.

The second report, by Human Rights Watch, which was based on joint research with a number of organisations (2) found US abuse of ‘war on terror’ detainees (in Afghanistan, Guantanamo Bay and Iraq) was “widespread”; it documented more than 330 cases in which US military and civilian personnel were “credibly alleged” to have abused or killed detainees. It said 54 military personnel out of the more than 600 implicated were convicted by courts martial, with just 40 sentenced to prison and of these, only ten to a term longer than one year.

Military commanders, it said, often chose to proceed with weaker non-judicial forms of disciplinary action (such as dismissal, cuts in pay and reductions in rank). No CIA officer has been put on trial. One civilian contractor working with the CIA was found guilty of assault in the beating to death of a prisoner in Kunar in 2003. Human Rights Watch found only about half the cases of alleged torture or other mistreatment appeared to have been properly investigated:

In numerous cases, military investigators appear to have closed investigations prematurely or to have delayed their resolution. In many cases, the military has simply failed to open investigations, even in cases where credible allegations have been made.

Trials and Denials

There have only been a few cases where US personnel have been put on trial. These include, recently, Sergeant Robert Bates who killed 16 civilians, including nine children, in Panjwayi in 2012 and members of what became known as the ‘kill team’, US soldiers who killed civilians in Kandahar in 2009 and collected body parts as trophies. “It is proper that Sergeant Bates has been held accountable,” said Human Rights Watch, “But in many respects this case is 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.” As for the ‘kill team’, whose murders came to light after one of their comrades ‘blew the whistle’, while the soldiers involved were convicted, with sentences ranging from several months to life, the commander who allegedly encouraged the criminal behaviour received only a letter of admonishment.

Against these high profile cases can be put some egregious crimes committed in Afghanistan where no-one has been prosecuted or sentences have been minimal:

– 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 earlier this year:

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 air strike 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 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?

Criminal Jurisdiction and the Bilateral Security Agreement

The US military is not the only country with troops deployed in Afghanistan which has proved poor at investigating its own. As recent court cases in the UK (3) and Germany (4) show, failings go much wider. Yet, it is the US which is in the spotlight because of its demand that US forces fall only under US criminal jurisdiction. From the US point of view, it is unthinkable that it would allow its forces to be put in harm’s way by exposing them to the courts of any country, let alone those in Afghanistan where the justice system is deeply flawed. In the Afghan and often the international press, this demand is frequently presented as their being ‘immune’ from prosecution and US officials are keen to argue why this is not the case, for example US ambassador, James Cunningham in a recent press conference (the text was emailed by the embassy to AAN):

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.

Yet claims by the US that it takes the crimes of its soldiers seriously are simply belied by the record. Afghanistan might still decide that, on balance, continuing to give up the right to legal jurisdiction over US forces is worth accepting for the benefits the Bilateral Security Agreement might bring. However, the way the US military has gone about addressing the serious allegations made in Nerkh gives little confidence that any crimes committed by US forces after 2014 would be properly investigated, let alone prosecuted. Moreover, indicators suggest this is likely to get worse. The international media has played a major role in uncovering crimes since 2001 and is already reducing its presence in Afghanistan. Also, after 2014, the planned US counter-terrorism force would be most probably be made up of Special Operations Forces and the CIA, who are both much more secretive than conventional forces. If the Bilateral Security Agreement is signed and US troops stay on after 2014 still under US criminal jurisdiction, it is likely to become even more difficult for Afghans to get justice.

 

(1) For a commander to be held responsible for the acts of his subordinates (according to Art. 28 of the Rome Statute of the International Criminal Court):

• The subordinates must be under the effective command and control, or the effective authority or control of the superior;

• The military commander knew or should have known that his forces were committing or about to commit such a crime;

• The military commander failed to take all necessary and reasonable measures to prevent the crimes or to punish them by submitting them to the competent authorities for investigation and prosecution;

• If the superior is a civilian, he will be responsible if he knew or consciously disregarded information which indicated that his subordinates were committing crimes.

(2) The Detainee Abuse and Accountability Project was a joint research effort by the Centre for Human Rights and Global Justice at New York University School of Law, Human Rights Watch and Human Rights First.

(3) In the last week, a British marine was found guilty of murdering a wounded Taleban detainee in Helmand. The killing came to light 12 months after it took place when civilian police arrested another marine (possibly one of those on the same patrol) during a completely different investigation and found a clip on his laptop showing members of the patrol dragging the Taleb across the field and talking about killing him. This was enough for the civilian police to get the military police involved.

Another clip was unearthed in the investigation showing the actual shot being fired and the marine (who has not been named) quoting Shakespeare: “Shuffle off this mortal coil, you cunt” and telling the rest of the patrol, “Obviously this doesn’t go anywhere fellas. I’ve just broken the Geneva convention.”

Three marines were charged with the murder and one was convicted. The two who were found not guilty, as well as other members of the patrol witnessed the killing and did not report it and some, at least, have returned to active duty. (For reporting, see here here and here.)

(4) A local court in Bonn (Thomas Ruttig writes) is currently examining whether relatives of the victims of an air strike ordered by the German PRT commander in Kunduz in 2009 can claim compensation from the German government. Earlier, after a preliminary investigation, the German Federal Prosecutor’s Office had concluded that neither international or German law had been broken.

The strike killed around 90 civilians on 4 September 2009 on the border of Chahrdara and Aliabad districts of Kunduz. The PRT commander had ordered the strike on two fuel tankers which had been hijacked by Taleban. The lorries had got stuck in a riverbed and the Taleban had called locals to pump out the fuel, but the commander relied on a single local source who claimed that only Taleban were on the spot. He declared the PRT to be in ‘imminent danger’ and falsely claimed troops were ‘in contact’ (ie engaged in a firefight and needing air support). He also rejected the offer of a ‘show of force’ low-altitude over-flight to disperse the crowd by the two US jet pilots who ultimately carried out the strike. (For reporting on the strike, see here and here, and on the recent and earlier court proceedings see here.) The Laws of War stipulate that parties to a conflict cannot target civilians and must take all feasible precautions to protect them.

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Thematic Category: Rights & Freedoms