War crimes on the Hindu Kush?Death by drone – the United States' vicious Afghan legacy
The villagers say it has happened to them many times, and never – not once – has it made news anywhere outside Afghanistan. In November 2018, an American Reaper drone targeted a group of villagers in the mountainous area of Afghanistan’s southeastern province of Paktia, killing seven of them. Paktia has long been home to Taliban militants, yet local residents maintain that all the victims were civilians, including three women and one child. They had gone to the remote area to graze their cattle and collect wood. Suddenly, they were dead.
"Nobody wants to listen to us. I doubt the murderers will ever face justice. God is our only hope," said Mohammad Anwar, a resident of Zazai Aryob, a district in Paktia. The killers he is talking about are sitting far away in one of the many U.S. military bases that conduct drone operations.
According to Mohammad Anwar, a relative of the victims, some families lost their male breadwinners, as so often happens with such attacks. “They are desperate. Their future is very uncertain,” he told Foreign Policy by phone.
And now things are more uncertain than ever. The newly signed U.S.-Taliban truce contains confidential appendices that will reportedly feed the Taliban information, thus allowing the Islamist insurgent group to prevent attacks during the U.S. withdrawal. While the Afghan national government and its officials have been side-lined, despite on-going calls for peace talks between all the various Afghan factions, ordinary Afghans still have no recourse to justice and don’t know whether the drone strikes will let up.
You can't "fight terror with terror"
According to Lisa Ling, a former drone technician with the U.S. Air Force in Afghanistan, civilian casualties caused by drone strikes must be investigated and should be regarded as war crimes. "Every strike where community leaders speak out and tell us that we are killing their civilians should be thoroughly investigated by the ICC – the international community should listen," she told Foreign Policy via Signal.
Ling, who has turned whistle-blower and is a staunch critic of drone attacks, believes that "this kind of warfare is wrong on so many levels" and that the Americans cannot "fight terror with terror." Neither the U.S. military nor the CIA responded to a request for comment. But both typically portray drone attacks as "precision strikes" that kill "alleged militants" or "suspected terrorists", and actual on-the-ground investigations rarely take place afterward.
A recent analysis of 228 official U.S. military investigations conducted in Afghanistan, Iraq and Syria between 2002 and 2015, revealed that most investigations of alleged civilian casualty incidents don’t include even a single visit. The military conducted site inspections in only 16 percent of the casualty investigations reviewed for the study by researchers from the Center of Civilians in Conflict and the Columbia Law School Human Rights Institute.
The same was true of the strike in Paktia. Not a single U.S. investigator is believed to have visited the site of the killings afterward. On its Twitter page in Dari, CENTCOM reported that an action had allegedly killed Taliban members from Faryab province during the same time-span, but it did not mention any drone strikes or civilian casualties.
Civilians traumatised by fear
Despite the U.S.-Taliban truce, residents of Zazai Aryob are still afraid, saying that they have been haunted by American drone strikes for years, and that their fate is often ignored by both the U.S. military and the Afghan government in Kabul.
"They keep saying that they are killing terrorists. But that’s not true. Farmers, shepherds and women are not terrorists. One of the victims, Naqib Jan, was a two-year-old child!" said Islam Khan, who works as a teacher in a local village.
During the last months and years, several relatives and members of his family were killed by drone strikes. Khan claims that his fellow tribesmen are terrified and depressed, suffering from trauma, and that many children fear to play outside. "We tried to make ourselves heard. We even confronted President Ashraf Ghani about the issue, but he does not care," he added.
While former Afghan President Hamid Karzai took a critical stance towards U.S. airstrikes and criticised them in public, the administration of current President Ashraf Ghani – heavily dependent on the U.S. for aid and support at a time when the Taliban are winning in many parts of the country – has preferred to largely conform to Washington’s "War on Terror" narrative, largely ignoring civilian casualties.
In some cases, Ghani’s officials even rejected the findings of independent observers and human rights organisations that offered proof of civilian casualties. U.S. military officials have also sometimes claimed that their Afghan army allies ordered the strikes.
War crimes investigation launched by ICC
In early March, senior judges at the International Criminal Court authorised an investigation into alleged war crimes and crimes against humanity in Afghanistan. In doing so, they overturned an earlier rejection of the inquiry. The ICC investigation will principally examine the actions of U.S, Afghan and Taliban troops.
Following the ICC’s announcement, U.S. Secretary of State Mike Pompeo was quick to attack the ruling, describing it as "reckless", and said his administration would outline measures in the coming weeks to prevent U.S. citizens being brought before the court.
In terms of possible American war crimes, the ICC is focussing on CIA torture and some cases of forced disappearance and extrajudicial killings. However, it seems that drone strikes, like the one that wiped out Islam Khan’s family members, will not be included.
"These strikes could be seen as violations of international humanitarian law. But that does not make it a war crime, which has to be intentional or sufficiently reckless. Determining recklessness requires a legal analysis in each case of the evidence," Patricia Gossman, Associate Asia Director for Human Rights, told Foreign Policy via email.
Family members of the victims in Paktia are in no doubt as to the nature of the human rights violations. "We don’t believe that it was a mistake. It happened too often. We want the culprits to face persecution and trial," Islam Khan said.
Other Afghans share his opinion. "What happened in Paktia was a war crime. Those responsible need to be brought to trial. We are not interested in quibbling words and phrases. We want justice. This is just one of thousands of similar incidents that have occurred since the end of 2001," said Abdul Malik Zazai, head of Paktia’s provincial council, in a phone conversation.
Above the law?
The U.S. military does not differ between strikes conducted by drones or conventional aircraft. At the end of 2001, the age of drone warfare began in Afghanistan where the very first lethal strike of an unmanned aircraft took place in human history.
According to the London-based Bureau of Investigative Journalism, which monitors U.S. drone warfare around the world, at least 6,825 drone strikes took place in Afghanistan in 2019. The majority of the victims remain unknown, since most of these attacks occur in remote areas like in Zazai Aryob.
“The Americans are benefitting from the nature of this war, and from the status quo of the international community. They believe they are above the law,” said Karim Popal, an Afghan-German lawyer who represents the victims of a 2009 NATO airstrike ordered by a German colonel in Kunduz province. Back then, dozens of civilians were killed.
A German court rejected considering the massacre as a war crime and paying compensation to the victims’ families. Few years later, the responsible colonel was promoted. Recently, however, a hearing took place at the European Court for Human Rights in Strasbourg, with no outcome as yet.
"This is a huge success, but at the same time, it’s very clear that many Western countries, including Germany and the United States, are not interested in addressing the crimes their troops committed," Popal said by phone. "Imagine being the Afghan father or mother who hears that the person who killed their children was promoted, rather than convicted. It’s scandalous."
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