The rising number of civilian casualties and the leaking of thousands of confidential war papers by whistleblower website Wikileaks have prompted fresh calls to bring alleged war criminals in Afghanistan to book.
Immediately after the UN Assistance Mission in Afghanistan (UNAMA) released a 10 August report on civilian casualties, the UK-based Amnesty International said the Taliban must be prosecuted for war crimes.
“The Taliban and other insurgents are becoming far bolder in their systematic killing of civilians. Targeting of civilians is a war crime, plain and simple” Sam Zarifi, Amnesty International’s Asia-Pacific director, said in a press release.
Taliban insurgents have been widely condemned for their alleged deliberate, widespread and systematic attacks on civilians.
UNAMA’s report - rejected by the Taliban as biased and one-sided - blamed the insurgents for 76 percent of the 3,286 civilian casualties (1,271 deaths and 1,997 injuries) reported in January-June 2010.
UNAMA attributed 12 percent of the civilian casualties (223 deaths and 386 injuries) to pro-government forces.
The report blamed the Taliban for the rising number of civilian casualties, while welcoming the reduction in military harm to non-combatants by pro-government Afghan and foreign forces. Civilian casualties attributed to US/NATO forces were described as unintentional or “collateral” damage.
The leaked US/NATO war documents, however, point to possible war crimes committed by pro-government forces, according to the founder and director of Wikileaks, Julian Assange.
What are war crimes?
A war crime is a serious violation of international humanitarian law (IHL) committed during international or internal armed conflict, according to Marnie Elspeth, a legal adviser with the International Committee of the Red Cross (ICRC).
Willful killing and torturing of a protected person (wounded or sick combatant, prisoner of war, civilian); using prohibited weapons or methods of warfare; and making improper use of the distinctive red cross or red crescent emblem or other protective signs, are war crimes, she said.
Other serious human rights violations - mostly reported during war and social turmoil - are crimes against humanity which include murder, deportation, imprisonment, torture, sexual offences and prosecutions based on religious, ethnic and other kinds of discrimination.
“These acts and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice,” Elspeth told IRIN, adding that isolated human rights violations fell short of the category of crimes against humanity.
Who should address the crimes?
Primary responsibility for the investigation of war crimes and crimes against humanity and the prosecution of alleged perpetrators lies with states, according to IHL and the Geneva conventions.
Photo: Abdullah Shaheen/ IRIN
|Armed militia groups have been accused of war crimes but none have been held accountable|
Where a state is unable to do this, it can ask the international community, the UN and NGOs to provide support.
In 1993 and 1994, the UN Security Council authorized the setting up of International Criminal Tribunals to try individuals accused of war crimes in the former Yugoslavia and Rwanda.
“Suspected war criminals must be prosecuted at all times and in all places, and states are responsible for ensuring that this is done,” said ICRC’s Elspeth.
The killing of hundreds of thousands of civilians and various other serious crimes committed in the past three decades of war have been attributed to different Afghan and foreign warring parties and militia groups.
However, war crimes and crimes against humanity have hitherto not been officially investigated by the government or the UN.
“War crimes have occurred in Afghanistan and the government is committed to bringing the criminals to justice in areas which are controlled by the government,” said Hamid Elmi, a spokesman of President Karzai.
He said many criminals were fugitives and therefore beyond the judicial writ of the government.
Any request for international cooperation to investigate and adjudicate war crimes must come from Afghanistan’s judiciary, said Elmi.
Pacifying the insurgents
A transitional justice plan, which aimed to uncover egregious rights violations committed in 1979-2001, has been dumped by the government of President Hamid Karzai, human rights groups say.
Karzai has been accused of forging strategic alliances and providing political support to powerful warlords and militia leaders who have allegedly committed appalling crimes over the past 30 years, and of embarking on a controversial peace strategy.
“For his personal survival, Karzai is trying to offer the Taliban a blank cheque… tantamount to blanket impunity, legitimacy and power-sharing,” said Ajmal Samadi, director of the Afghanistan Rights Monitor, a Kabul-based human rights organization.
Karzai has rejected such criticisms but has repeatedly called on the insurgents to cease violence and engage in conventional politics.
The insurgents, however, have vehemently dismissed such calls and vowed to expand their armed rebellion.
Afghanistan’s recent history is replete with rights violations - perhaps many war crimes and crimes against humanity - but there has been little domestic political will or capacity to investigate and bring alleged local and foreign criminals to account.
“As the guardian of IHL, the ICRC supports efforts to end impunity for international crimes and is keenly interested in the establishment and jurisprudence of international criminal tribunals,” said ICRC’s Elspeth.
“But as a neutral and independent organization, we strongly believe that we will only be able to do this by ensuring continuous and confidential dialogue with all parties to the conflict.”