Investigating war crimes in Afghanistan

The terrible civilian toll exacted by the war in Afghanistan since 2001 has been documented regularly by Afghan and international human rights organizations and, after 2009, annually by the UN.  Most of the casualties attributed to the Afghan government and its allies have been considered unintended “collateral damage”, particularly as a result of US air strikes. Claims have emerged, however, of killings and mistreatment by forces on the government side that may amount to war crimes. The International Criminal Court started preliminary investigations already in 2006. For the first time, such claims have now been officially confirmed by one of the parties involved: The recently released report by the Australian military found “credible information” that its Special Forces in Afghanistan have unlawfully killed of 39 civilians and detainees and cruelly treated two persons.

Most of the casualties attributed to the Afghan government and its allies have been considered unintended “collateral damage”, particularly as a result of US air strikes.

The report – the result of a four-year investigation by the Inspector-General of the Australian Defence Force (IGADF) – is significant on several levels apart from serving the interest of justice. It says something about the potential risks of Special Forces operating in a counter-insurgency and counter-terrorist context. It shows that for serious investigation to occur, the military leadership must be committed to holding its members accountable. But the report also hints at the difficulties of prosecuting alleged war crimes committed abroad in a national, civil court, as the local political fall-out from the report’s publication has further underscored.

Special Forces are ‘special’
A relatively small group of Special Forces, in all 25 persons, were identified as perpetrators, a few of them on multiple occasions. They belong to two units of the larger Special Air Service Regiment, one of several Australian Special Forces units sent to southern Afghanistan. That may suggests ‘a few rotten-apples’ explanation, but other features identified in the report point to systemic problems.

Standard operating procedure called for small units of 4-5 persons to operate independently under a NCO patrol commander, who wielded much power. Values promoted within the broader organization – notably secrecy and group solidarity – made it easier to conceal unlawful practices. That included “throw-downs”, whereby incriminating evidence (weapon, radio) was placed with the body of the person killed. Deliberate killing of a defenceless person was used as a form of initiation ritual to cement group solidarity. A general organizational culture embraced the sense that Special Forces are ‘special’. This fostered a ‘warrior culture’ and self-image as “warrior heroes”, rather than model professional soldiers.

Values promoted within the broader organization – notably secrecy and group solidarity – made it easier to conceal unlawful practices.

Group solidarity and concern to protect personal interests as well as institutional status contributed to a culture of silence higher up in the organization, which discouraged inquiries into early rumours of wrongdoing, the report concludes. At the same time, organizational separation from the rest of the armed forces made oversight difficult,

A difficult war
The Special Forces regiment involved has a long and until now uncontroversial history. The situational context is therefore important to understand how this could have happened. Most of the alleged war crimes took place in 2009-11, at the beginning of the US “surge” authorized by President Barack Obama. Violence escalated, as did civil casualties. Under US general David Petraeus, the international forces under ISAF command adopted a pro-active, ‘enemy-centric’ approach dubbed “kill-or-capture” strategy. Its purpose was to clear as many Taliban leaders and suspected supporters from the field as possible. These were the years of frequent night raids, generating protests from President Hamid Karzai and numerous claims from Afghans and human rights organizations that unarmed civilians and defenceless persons of all ages and both gender were being killed. 

Most of the alleged war crimes took place in 2009-11, at the beginning of the US “surge” authorized by President Barack Obama.

The mounting civilian casualties were partly due to faulty intelligence. Given the extraordinarily complicated socio-political landscape of Afghanistan, this was not surprising. The Australian report actually admits that some operations were lacking in “actionable intelligence”.

The difficulties and risks of fighting a counter-insurgency war in a foreign setting have led some Australian commentators to conclude that the country should not have participated militarily in this phase of the conflict. The official IGADF report does not go this far, but it cautions against the use of Special Forces in protracted military operations abroad. The implicit reason is that the special characteristics of the Special Forces may lead to transgression in the use of military force.

Eroding  impunity?
The Australian report creates a dent in the heavy armour of impunity that has surrounded the international pursuit of the war in Afghanistan.  The Afghanistan Independent Human Rights Commission has recently called on other nations, especially the US and UK, to follow the Australian example and open inquiries to investigate possible unlawful killings by their forces in Afghanistan. The Commission singles out the UK Special Forces as persons of particular interest. Neither the US nor the UK has made moves in this direction, but some Australians are hopeful.  “We may be the first, but we will not be the last , ” as one defense representative said.

The Australian report creates a dent in the heavy armour of impunity that has surrounded the international pursuit of the war in Afghanistan.

What made the Australian inquiry possible? The key factor is strong commitment by the military leadership to seriously examine early rumours, reports by a military whistle-blower, and media investigations. Once the commitment was made, more members of the Special Forces broke the organization’s code of silence to co-operate with the Inspector-General’s team. The team itself was led by a judge with a concurrent high military rank in the reserves, Paul Brereton.   

Brereton recommends criminal prosecution of 19 of the 25 perpetrators against whom evidence is considered sufficiently strong to hold up in a civilian Australian court. The incentives to prosecute are strong – for a start, the alternative may be an arrest warrant from the International Criminal Court.  Yet the judicial road will be long and uncertain.  Some of Brereton’s witnesses may not wish to be cross-examined in a civil court. Collecting evidence in cases that will be more than ten years old is difficult. Some defendants are expected to plead mental health defenses due to long and multiple deployments.

The political context creates more uncertainty. Powerful conservative-nationalist forces in the country are already mobilizing politically and raising money for a legal fund to assist those accused.

This blog post is written by Astri Suhrke, Senior researcher emerita at CMI.