From Principle to Practice: US Military Strategy and Protection of Civilians in Afghanistan

Abstract

During its engagement in Afghanistan, the US military seriously tried to mitigate the risk of civilian casualties from airstrikes only when called for by changes in military doctrine emphasizing the need to gain the support of the population. Consistent efforts by external political and humanitarian actors to reduce casualties by demanding more transparency and clearer lines of accountability for ‘collateral damage’ had little immediate, observable effect. The case study underlines the contingent nature of progress towards protecting civilians in armed conflict even when a military institution formally accepts the principles of customary international humanitarian law, but concludes that, faute de mieux, strategies to enhance protection through greater accountability and attention to the kind of military ordinance used remain central.

ACKNOWLEDGEMENTS

This article is part of a larger research project on protection of civilians in Afghanistan, supported by the Research Council of Norway. The author wishes to thank Aziz Hakimi and Torunn Wimpelmann for research collaboration, and Adam Roberts for comments on the text.

Notes

1. Adam Roberts, ‘The Civilian in Modern War’, Yearbook of International Humanitarian Law, Vol. 12, 2009, p.14.

2. Based on annual reports of the UN Mission in Afghanistan (UNAMA), ‘Afghanistan. Annual Report on Protection of Civilians in Armed Conflict’ UNAMA, Kabul (hereafter UNAMA/PoC). UNAMA warns the figures are probably an underestimate.

3. Neta Crawford, Accountability for Killing, New York: Oxford University Press, 2013.

4. Charles Perrow, Normal Accidents: Living with High Risk Technologies, Princeton, NJ: Princeton University Press, 1999.

5. Human Rights Watch, ‘Troops in Contact’: Airstrikes and Civilian Deaths in Afghanistan, New York: Human Rights Watch, 2008.

6. UNAMA/PoC (see n.2 above).

7. ICRC, Customary IHL, Rule no. 22. Principle of Precautions against the Effect of Attacks (at: www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter6_rule22).

8. Janina Dill, Applying the Principle of Proportionality in Combat Operations, Oxford: Oxford Institute for Ethics, Law and Armed Conflict, 2010; Michael Newton and Larry May, Proportionality in International Law, New York: Oxford University Press, 2014.

9. US Department of Defence Directive 2311.01E, of 9 May 2006, para.4(1) states: ‘Members of the DoD Components comply with the law of war in all armed conflicts, however such conflicts are characterized, and in all other military operations’. The directive was reissued in 2010 and certified as current as of 22 Feb. 2011 (at: www.dtic.mil/whs/directives/corres/pdf/231101e.pdf). A similar directive had been issued in Dec. 1998. See William H. Ferrell, III, ‘No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict’, Military Law Review, Vol.178, Winter, 2003, p.97; Eric Talbot Jensen, ‘Reunifying the Law of Armed Conflict in COIN Operations through a Sovereign Agency Theory’, in William Banks (ed.), Counterinsurgency Law, New York: Oxford University Press, 2013, p.55.

10. UN, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Addendum. Mission to Afghanistan. UN General Assembly’, UN doc., A/HRC/11/2/Add.4, 6 May 2009, p.7. Italics in the original.

11. Richard B. Andres, Craig Wills and Thomas E. Griffith, Jr, ‘Winning with Allies: The Strategic Value of the Afghan Model’, International Security, Vol.30, No.3, 2005, p.6.

12. C.J. Chivers, ‘A Changed Way of War in Afghanistan's Skies’, New York Times, 15 Jan. 2012 (at: www.nytimes.com/2012/01/16/world/asia/afghan-war-reflects-changes-in-air-war.html?_r=1&ref=world).

13. The US-based NGO, Project on Defence Alternatives, estimated 1–1,300 direct casualties from bombing during the first three months, and almost three times as many deaths from related exposure, injuries, illness and flight (at: http://comw.org/pda/operation-enduring-freedom).

14. The basic events described here are not disputed.

15. The content was leaked to the press. Brian Knowlton, ‘UN Report Suggests Higher Afghan Death Count in U.S. Strike’, New York Times, 30 Jul. 2002 (at: www.nytimes.com/2002/07/30/news/30iht-report_ed3_.html).

16. ‘Unclassified Executive Summary. Investigation of Civilian Casualties, Oruzgan Province

Operation FULL THROTTLE, 30 June 2002’, CENTCOM report, unclassified, 6 Sep. 2002 (at: www.globalsecurity.org/military/library/report/2002/summ-oruzgan-investigation.htm).

17. Carlotta Gall, ‘In Kabul, Rumsfeld Aide Regrets Toll in Raid’, New York Times, 16 Jul. 2002 (at: www.nytimes.com/2002/07/16/world/in-kabul-rumsfeld-aide-regrets-toll-in-raid.html).

18. CENTCOM (see n.16 above).

19. Ibid.

20. ‘US Justifies Afghan Wedding Bombing’, BBC, 7 Sep. 2002 (at: http://news.bbc.co.uk/2hi/south_asia/2242428.stm).

21. The Afghan Independent Human Rights Commission was being established and not yet operative.

22. The Dasht-i-Leili events in December 2001. Aziz Hakimi and Astri Suhrke, ‘A Poisonous Chalice: The Struggle for Human Rights and Accountability in Afghanistan’, Nordic Journal of Human Rights, Vol.31, No.2, 2013, pp.201–23.

23. A UNAMA spokesperson subsequently said that the role of the team was not to investigate, but assess the need for humanitarian assistance. Knowlton (see n.15 above).

24. Norah Niland, ‘Justice Postponed: The Marginalization of Human Rights in Afghanistan’, in Antonio Donini and Karin Wermester (eds), Nation-Building Unraveled? Aid, Peace and Justice in Afghanistan, Bloomfield, CT: Kumarian Press, 2004, pp.61–82.

25. David W. Barno, ‘Fighting “the Other War”: Counterinsurgency Strategy in Afghanistan. 2003–2005’, Military Review, Sep.–Oct., 2007, pp.32–44.

26. Ibid., p.35.

27. Ibid.

28. UN, ‘Report of the Independent Expert of the Commission on Human Rights on the Situation of Human Rights in Afghanistan’, UN doc., A/59/370, 2004; UN, ‘Report of the Independent Expert of the Commission on Human Rights on the Situation of Human Rights in Afghanistan’, UN doc., E/CN.4/2005/122, 2005.

29. The OEF and the ISAF commands were separate until unified in Oct. 2008, although both were headed by a US general in 2007–08. In 2009 US Special Forces were also brought into the unified command.

30. Barno (see n.25 above), p.43.

31. Human Rights Watch (see n.5 above).

32. Astri Suhrke, When More Is Less: The International Project in Afghanistan, London: Hurst, 2011, pp.43–5.

33. Human Rights Watch (see n.5 above), p.7.

34. Niamatullah Ibrahimi, ‘When Few Means Many: The Consequences of Civilian Casualties for Civil–Military Relations in Afghanistan’, in William Maley and Susanne Schmeidl (eds), Reconstructing Afghanistan: Civil–Military Experiences in Comparative Perspective, London: Routledge, 2014, pp.165–77.

35. On 19 June 2007, the coordinating body for humanitarian organizations operating in Afghanistan, ACBAR, made a strong public statement condemning ‘disproportionate and indiscriminate use of force’ by the international military forces (at: www.oxfam.ca/sites/default/files/file_attachments/protecting-afghan-civilians-statement-on-the-conduct-of-military-operations_0.pdf).

36. ‘The cases described here raise concerns as to whether the attacking forces acted in accordance with their obligation under the laws of war.’ Human Rights Watch (see n.5 above), p.4.

37. Norah Niland, ‘Civilian Casualties in Afghanistan: Evidence-Based Advocacy and Enhanced Protection’, Humanitarian Exchange Magazine, No. 49, 2011 (at: www.odihpn.org/humanitarian-exchange-magazine/issue-49/civilian-casualties-in-afghanistan-evidence-based-advocacy-and-enhanced-protection).

38. Res.1806, para.4(g), 23 Mar. 2008.

39. There were exceptions. For instance, an airstrike in Sangin (Helmand) in July 2010 that according to the Afghan government claimed 39 civilian lives, and which caused street demonstrations in Kabul, was not even mentioned in the UNAMA report for that year. A joint Afghan–ISAF investigation revised the figure down to six.

40. The UNAMA report found 62 of the dead were children. UNAMA/PoC, 2009 (see n.2 above), p.9.

41. BBC, ‘Afghans Sacked over Deadly Strike’, 24 Aug. 2008.

42. Nader Nadery and Haseeb Humayoon, ‘Peace under Friendly Fire’, New York Times, 5 Oct. 2008 (at: www.nytimes.com/2008/10/05/opinion/05nadery.html?pagewanted=all).

43. CENTCOM, ‘Executive Summary of AR 15-6 Investigation into New Information Relative to Civilian Casualties from Engagement by U.S. and Afghan Forces on 21–22 AUG 2008 in Azizabad, Shindand District, Herat Province, Afghanistan’, CENTCOM, 1 Oct. 2008 (at: www.channel4.com/media/dispatches_downloads/CENTCOM_Shindand_Investigation.pdf).

44. ‘[T]he decision to launch an area-effect weapon in a populated village in the middle of the night, in the absence of any suggestion that the presence/absence of civilians had been verified, does not appear to have been a decision that any reasonable commander … would have made.’ Rebecca J. Barber, ‘The Proportionality Equation: Balancing Military Objectives with Civilian Lives in Armed Conflict in Afghanistan’, Journal of Conflict and Security Law, Vol.15, No.3, 2010, p.490.

45. At: www.hrw.org/news/2009/01/15/afghanistan-us-investigation-airstrike-deaths-deeply-flawed.

46. The ISAF version limited airstrikes on village compounds when ISAF forces were not in ‘imminent danger’, in such cases tactical withdrawal should be undertaken. Robert Dreyfuss, ‘Mass Casualty Attacks in the Afghan War’, The Nation, 19 Sep. 2013 (at: www.theinvestigativefund.org/investigations/international/1846/mass_casualty_attacks_in_the_afghan_war?page=entire).

47. Tactical Directive, 30 Dec. 2008, HQ ISAF/COM/08. All citations from para.5 (at: www.nato.int/isaf/docu/official_texts/Tactical_Directive_090114.pdf).

48. Dreyfuss (see n. 46 above).

49. The ISAF command waited two weeks before investigating Azizabad, and complained to a UN Security Council (UNSC) mission visiting in November 2008 that civilians accidentally killed in the course of counter-terrorist operations were given excessive attention compared to the deliberate killings by the insurgents. UN Security Council, ‘Report of the Security Council Mission to Afghanistan, 21 to 28 November’, UN doc., 2008S/2008/782, 2008, p.4.

50. Crawford (see n.3 above), pp.14–15; UNAMA, 2009 (see n.2 above), p.17.

51. CENTCOM, ‘U.S. Central Command Investigation into Civilian Casualties in Farah Province, Afghanistan on 4 May 2009. Unclassified Executive Summary. 18 June 2009’, 2009 (at: http://reliefweb.int/report/afghanistan/afghanistan-us-central-command-investigation-civilian-casualties-farah-province).

52. Ibid., p.7.

53. Ibid., p.10.

54. Ibid.

55. Barber (see n.44 above).

56. Suhrke (see n.32 above), pp.62–3.

57. NATO/ISAF, ‘Tactical Directive’, Kabul: Headquarters, International Security Assistance Force, 6 Jul. 2009. Unclassified portion (no pp.).

58. Ibid.

59. Ibid.

60. Based on reports from a local informant, the German command in the area determined that people milling around the stranded tanker were Taliban and called in US airstrikes.

61. Rajiv Chandrasekaran, ‘Decision on Airstrike in Afghanistan Was Based Largely on Sole Informant's Assessment’, Washington Post, 6 Sep. 2009 (at: www.washingtonpost.com/wp-dyn/content/article/2009/09/05/AR2009090502832.html).

62. The German government immediately recalled the senior officers involved. A judicial inquiry found against prosecution, but the entire senior leadership in the Ministry of Defence was removed. Thomas Rid and Martin Zapfe, ‘Mission Command without a Mission: German Military Adaptation in Afghanistan’, in Theo Farrell, Frans Osinga and James A. Russell (eds), Military Adaptation in Afghanistan, Stanford, CA: Stanford University Press, 2013, pp.210–11.

63. Karin Brulliard, ‘Drone Operators Blamed in Airstrike That Killed Afghan Civilians in February’, Washington Post, 30 May 2010 (at: www.washingtonpost.com/wp-dyn/content/article/2010/05/29/AR2010052901390.html).

64. The Kunduz attack in Sep. 2009 skewed the figures for the second half of 2009, but if this outlier is removed, the early trend is clear.

65. Chris Jenks, ‘Agency of Risk: The Competing Balance between Protecting Military Forces and the Civilian Population during Counterinsurgency Operations in Afghanistan’, in Willlam Banks (ed.), Counterinsurgency Law, New York: Oxford University Press, 2013, pp.108–26. The author served in the US Army Judge Advocate General Corps.

66. Ibid., p.116.

67. E.g. Joint Civilian Casualty Study, ‘Reducing and Mitigating Civilian Casualties’, Washington, DC: US Department of Defence, 2011 (at: www.cna.org/research/2010/joint-civilian-casualty-study-jccs-executive); a manual produced by the US Army's Center for Lessons Learned, ‘Afghanistan Civilian Casualities Prevention’ (at: https://call2.army.mil/toc.aspx?document=6971&filename=docs/doc6971/12-16.pdf); and a report on ‘the institutionalization of CIVCAS lessons learned’ in Afghanistan by the US Joint forces Command, ‘Adaptive Learning for Afghanistan’ (at: http://publicintelligence.net/jcoa-civcas-learning-for-afghanistan/).

68. The German government, by contrast, responded to the Kunduz incident by censoring the military and firing the political leadership (see n.62 above).

69. Antonio Giustozzi, ‘The Taliban's “Military Courts”’, Small Wars & Insurgencies Vol.25, No.2, 2014, pp.284–96.

70. The Civilian Casualties Tracking Cell established in 2008 was followed by an expanded mechanism, the Civilian Casualties Monitoring Team. The changes were introduced after concerted demands for greater transparency by the UN and the human rights community in Kabul. See Niland (n.37 above).

71. Key principles regarding the obligation to discriminate and not to use excessive force in relation to anticipated military advantage (the proportionality test), refer to assessments of ‘the reasonable commander’ at time of the attack, not how the situation might seem afterwards.

72. United Nations (see n.10 above), p.21.

73. See, e.g., UNAMA/PoC, 2010 (see n.2 above), pp.24–7, reporting ISAF failure to provide information despite repeated requests, and in one case denial that strikes had occurred at all.

74. UNAMA/PoC, 2012 (see n.2 above), pp.26–7.

75. Human Rights Watch (see n.5 above), and Barber (see n.44 above).

76. Amnesty International, Left in the Dark, London: Amnesty International, 2014.

77. By contrast, UNAMA took a clear stand on a recent case that appeared to involve deliberate targeting of civilians, saying the torture, killing and disappearances of ten villagers in Wardak by Afghans working with US special forces ‘may amount to war crimes’. UNAMA/PoC, mid-year report 2013 (see n.2 above), p.48.

Additional information

ABOUT THE AUTHOR

Astri Suhrke is a senior researcher at the Chr. Michelsen Institute, Bergen (Norway) and Fellow at the Asia-Pacific College of Diplomacy, The Australian National University, Canberra. Her latest single-authored book is When More Is Less: The International Project in Afghanistan (Hurst, 2011).