After the Taliban rule was toppled in 2001, a period of violence, which went largely unreported, ensued in Afghanistan. Instead of that year becoming a beginning of a new era of ‘peace’, it turned out to be an era of violence and large scale crimes. One of the most visible forms of violence that took place in the early years of war was ethnically-motivated, including rapes, robbery and murder of Pashtun living in the northern parts of Afghanistan, as well as the atrocities committed at Dasht-e-Leili, where Northern Alliance forces led by Dostum are believed to have shot, tortured and suffocated up to 2,000 men alleged to be Taliban. Reprisals against Pashtun people, mass killings of Taliban forces and abuses committed by US forces have been documented by Human Rights Watch. Later on, as it was published by McClatchy newspapers in 2008, Dostum was also allegedly involved in destroying the evidence of killings. It was also verified by the UN and other authorities, according to a 2008 report of Associated Press. Similarly, the killing of 300 Taliban prisoners of war in Qala-i-Jangi is another incident of war crimes. Human rights organizations and law enforcement agents believe that US authorities knew about these violations, yet no action was taken to investigate the cases.
Other issues related to the violation of international laws of war range from arbitrary detentions at Bagram air base, the equivalent of Guantanamo Bay, and indiscriminate civilian casualties by NATO air strikes. “It’s common knowledge that Afghans perceive US detention operations as secretive and lacking in due process,” once said Sahr Muhammed Ally, senior associate at Human Rights First .Other human rights organizations have mentioned similar situations in their reports. The Afghan Independent Human Rights Commission (IAHRC) reported that pro-government forces were violating the International Humanitarian Law (IHL) by killing innocent civilians including women and children. The report also found that some aspects of the rule of law have been seriously undermined during the US operations. In Alston’s report it was also warned, however, that there have been chronic and deplorable accountability failures with respect to policies, practices and conduct that resulted in alleged unlawful killings – including possible war crimes – during the United States’ international operations. The Government, mentions the said report, has not only failed to effectively investigate and punish lower-ranking soldiers for such deaths, but also has not held senior officers responsible under the doctrine of command responsibility. On the contrary, it has also effectively created a zone of legal impunity for private contractors and civilian intelligence agents by failing to investigate and prosecute them. In other words, by not holding the responsible accountable, both the US and Afghan government have abetted acts of war crimes directly and indirectly.
As far as direct involvement of the US is concerned, not only does it go, in overwhelming cases, unpunished, but also sidelined by the mainstream Western media. For example, in March 2012, 20 US soldiers murdered 16 Afghan men, women, and nine children aged 2 to 12.Children were massacred while they slept, and two women were raped before soldiers killed them. Pentagon officials and mainstream media whitewashed what happened. Only one soldier was blamed for crimes these twenty soldiers committed. Nineteen got off scot-free. Apart from unwillingness to acknowledge war crimes committed by forces, the US authorities frequently block any investigation by any other agencies other than their own into such incidents. For example, according to a 2012 report of Reuters, Afghanistan’s intelligence service had to abandon its investigation into the murder of a group of civilians after being refused access by the US to the US Special Forces soldiers suspected of involvement in that notorious incident.
As a matter of fact, the US soldiers feel free to operate in Afghanistan and treat local people the way they ‘think better.’ In fact, they have been empowered by the US to do so . Under a decade long military agreement, Afghan officials cannot charge the US forces with war crimes. Another legal arrangement made by the US is an agreement with Afghanistan under article 98 of the Rome Statute. This agreement may even bar the ICC itself from investigating any crimes committed by the US soldiers in Afghanistan—hence, an open space for the’ super power’ to commit ‘super crimes’.
The story does not end here. In current scenario, the US is again trying to obtain a similar sort of agreement—legal immunity for the US’ residual forces in post-2014 scenario— with the Afghan government which, by implication, an indication of what the US forces intend to achieve after the bulk of the fighting force withdraws. Not only does this possible agreement aim to cover the past crimes of the forces, but also tends to secure their future stay in Afghanistan, apart from giving them a free hand to operate for maintaining peace and security in the name of protecting vital interests of the humanity in general, and of the US in particular.
This is, however, only one side of the picture. Lack of accountability, generally speaking, in one thing; and, the absence of an effective system of dispensing quick justice another. In the wake of the US’ occupation of Afghanistan, some efforts, though, have surely been made towards establishing a system of Justice, such as establishing a nationally based police system. But these efforts have so far, like many other efforts of the US in collaboration with the hand-picked government of Afghanistan, have failed miserably. Besides many other reasons of failure, one of the most significant one is the very social composition of the Afghan National Police, which has also been at helm of committing and abetting war crimes. Non-representative character of the Police is highly in favour of Northern alliance, which either doesn’t prevent the supporters of the alliance from indulging in committing crimes or is itself directly involved in extra-judicial killings because of lack of compliance to the Criminal Code.
Similarly, the Afghan government itself would also never go into investigating war crimes and other instances of blatant violence because the Afghan Parliament is up largely of lawmakers who once belonged to armed groups, some of which have been accused of war crimes by human rights groups and the general public. President Karzai attempted to secure his reelection in 2009 through a series of deals with many of these former warlords from all the main ethnic factions. The choice of Mohammad Qasim Fahim as Karzai’s vice presidential running mate was emblematic of this trend. Fahim has long been implicated in possible war crimes from the 1990s and is widely perceived by many Afghans to be connected to criminal gangs.
Other reasons for the failure of system include the US’ policy of alliance with different warlords and policy of giving them an open room for seeking revenge. Maghferat Samimi, a researcher with the Afghanistan Human Rights Organization, says that the warlords and their militia commanders continue to commit crimes with impunity, protected by their alliances with foreign nations and comfortable positions within the Afghan government. However, it needs to be kept in mind that the very issue of accountability of the most responsible for war crimes was not on the agenda of the international community at all since the beginning of the current Afghan conflict. It was not the part of discussion at the Bonn conference either because the selected Afghan participants of the conference were themselves among possible targets of investigations.
Patricia Gossman, former Project Director of Afghan Justice Programme, mentions that during the meetings of UN Human Rights Commission in Geneva, contrary to the proposal of AIHRC, “the US signaled that its priorities did not include accountability for either past or ongoing human rights abuses.” The stance is understandable because at the moment almost 43 countries have military presence in Afghanistan, which may turn out as an uneasy situation for NATO if ICC proceeds with the investigation. The ICC prosecutor spoke in unequivocal terms that investigations could lead to both the Taliban and the other members of the coalition forces who have been accused of civilian casualties. In such circumstances, the international community will not like that the ICC should extend its jurisdiction in Afghanistan. However, it will further cast doubts on the neutrality of the ICC which is focused on areas which serve the purposes of the powerful permanent members of the Security Council.
It is clear that the US, in a bid for covering the dark side of its misadventures in Afghanistan, is most likely to continue emphasizing the aspect of granting legal immunity to its residual forces in Afghanistan. The US’ blatant refusal to conduct investigation in order to hold the perpetrators accountable is nothing but an attempt to sweep the past under the rug after so many decades of war, notwithstanding the fact that the failure to address the legacy of impunity in Afghanistan is contributing to the ongoing insecurity and causing serious discontentment among local people. Transitional justice is not only about addressing past crimes but also about dealing with continuing impunity, which delegitimizes and hinders governance and counterinsurgency efforts, what to speak of establishing peace and security!
Salman Rafi Sheikh, research-analyst of International Relations and Pakistan’s foreign and domestic affairs, exclusively for the online magazine “New Eastern Outlook”.
