Reform 'urgently needed"

The 84-page report released on Monday, August 11, accuses the United States military justice system of rarely conducting formal criminal investigations into the killings of civilians in the war-torn country. Focusing primarily on air strikes and night raids carried out mainly by US forces between 2009 and 2013, the authors of the document titled "Left in the Dark" argue that apparent war crimes have gone "uninvestigated and unpunished."

The report's findings are based on 125 interviews with Afghan victims, family members and eyewitnesses to operations which resulted in civilian casualties as well as a review of the US military's investigative practices, which according to Amnesty International (AI) "fall short of what is needed to ensure accountability for alleged crimes against civilians."

In a DW interview, Horia Mosadiq, Amnesty International's Afghanistan Researcher, explains why she believes the US military justice system - which mainly relies on soldiers or commanders to report possible human rights violations - is flawed.

DW: What are the main findings of the report?

Horia Mosadiq: The report examines accountability for killings of Afghan civilians by international forces in Afghanistan, focusing, in particular, on the failure of the US military justice system to conduct serious investigations into such killings.

Incidents like the killing of five civilians near Gardez in February 2010, in what appears to have been a war crime, go uninvestigated and unpunished. The report also documents the inability of ordinary Afghans to access justice after these incidents, which results, in part, from the fact that international forces are immune from prosecution in the Afghan courts.

In the vast majority of cases, even where the available evidence suggests that killings were unlawful, family members of the victims have no means of initiating an investigation. Many families have, in their desperation, resorted to organizing public protests to get some modicum of public attention to the killings of their relatives. It is extremely rare that cases involving Afghan civilian victims reach the prosecution stage - but even if they do, there are huge structural problems with the military court system.

In the report you also accuse the US military of having committed "apparent war crimes" in Afghanistan. How did you reach that conclusion?

It's important to stress that under international humanitarian law (IHL) - the so-called "laws of war" which apply in situations of armed conflict - not every killing of a civilian is illegal or a war crime. However, under IHL an indiscriminate or disproportionate attack resulting in death or injury to civilians is a war crime. The same applies for intentionally targeting civilians not taking a direct part in hostilities.

But in some cases we documented, there is compelling evidence for war crimes. To answer the question with greater certainty, a full investigation would be required. This is partly why we have released this report - we're calling for those investigations to be carried out.

What proof do you have for these allegations?

We concentrated on ten of the most emblematic cases involving civilian casualties by international forces between 2009 and 2013. These are spread across all provinces of the country. Some of these cases have been extensively covered in media already - such as the 2009 airstrike in Kunduz that was called in by the German military - while others are less well known.

One case, a December 2012 drone strike that killed four men and a boy, has never been reported in the press before. We followed up with our own field investigations in Afghanistan for each of the cases and talked to some 125 witnesses, many who had never gone public before and provided compelling new testimony. So the body of evidence is extensive - we're relying both on our own original research and documentation done by other organizations and journalists.

How often did the issue of torture come up in your investigations?

For this report, we didn't set out to document torture specifically, and it only features in one of our cases. Qandi Agha told us about the daily torture sessions he endured after being arrested by US Special Forces in a night raid in Maidan Wardak province in 2012.

He claimed that both US and Afghan forces were involved in the torture, which included beatings with cables and electric shocks. Having said that, we have serious concerns about the use of torture in Afghanistan that we have documented elsewhere - reports of torture and other ill-treatment in Afghan-led detention facilities are still rife.

How often are criminal investigations into alleged unlawful killings launched?

Investigations into these cases are very rare. In the period we examined we're only aware of six cases where US military personnel have been prosecuted for allegedly being involved in civilian killings in Afghanistan. At the heart of this problem is the deeply flawed US military justice system.

Essentially a form of self-policing, the US military justice system relies on soldiers or commanders themselves to report possible human rights violations to trigger an investigation - but there are few incentives for them to do so, and they may risk ending up facing trial themselves for reporting abuses they had a role in. On those rare occasions when cases do make it to the prosecution stage, there are still serious concerns about the independence and transparency of the military courts - and the Afghan victims are rarely called upon to testify.

Aren't Afghan authorities ultimately responsible for prosecutions?

That is exactly the problem - as part of an agreement between the US and Afghan governments, US forces are immune from prosecution in Afghan courts. This means that Afghans themselves who may have suffered human rights abuses have no way of actually filing criminal complaints against the US soldiers who may be responsible.

We are urging the Afghan government to ensure that accountability for unlawful civilian killings is guaranteed in any future bilateral security agreements signed with NATO and the US.

As for those cases that have been investigated by the military or Afghan authorities, have you detected any shortcomings?

Since Afghan authorities do not have jurisdiction to investigate US soldiers, we don't have examples of this. In terms of US investigations, it is impossible to know how many have actually been carried out given the lack of transparency from the US military. In some cases we documented, the US or NATO would announce that an investigation was ongoing, but not communicate further publicly on the status of that investigation.

One thing that is clear from our research, however, is that if investigations have been carried out, they have rarely involved the Afghan witnesses or victims who were directly involved in the cases. Of the 125 witnesses we spoke to, only two people told us that they had ever been interviewed by US military investigators for their side of events.

What do you urge the US to do about this?

The US must urgently reform its military justice system to put an end to this impunity - there are many other states that could serve as examples. Over the past two decades, countries such as the UK, Canada, Belgium and New Zealand have carried out extensive reforms of their military justice systems, "civilianizing" their systems to various degrees by limiting the role of the commander, strengthening the independence of judges, and establishing external accountability mechanisms.

Horia Mosadiq is Amnesty International's Afghanistan Researcher.