US military justice has no transparency regarding war crimes

[Thanas]

Deutsche Welle

Amnesty slams US' 'poor record' of probing civilian killings in Afghanistan

Amnesty International has accused the US military of a lack of accountability for Afghan civilian deaths. A newly released report finds that thousands of civilians have been left without justice. DW examines the issue.


"Three days after the attack, the commander invited us to the base and said please forgive us … We said we won't forgive you. We told him we don't need your money; we want the perpetrators to be put on trial. We want to bring you to court." These are the words of Mohammed Nabi, whose 20-year-old brother Gul was killed, together with four youths, in a helicopter strike near the eastern Afghan city of Jalalabad on October 4, 2013.

Mohammed is one of the 125 Afghan victims, family members and eyewitnesses to attacks which resulted in civilian casualties. He was interviewed by the rights group Amnesty international (AI) for its report Left in the Dark. The document, released on Monday, August 11 in Kabul, examines the record of accountability for civilian deaths caused by international military operations between 2009 and 2013.

'Uninvestigated and unpunished'

The AI paper comes at a critical time in Afghanistan's history. While the country is still plunged in a crisis following a contested presidential election, foreign aid is dwindling and the international community is winding down its combat mission, making it more difficult for any troops accused of crimes to potentially stand trial. At the same time, there is the increasing threat of a resurgent Taliban militancy in the country.

Focusing primarily on air strikes and night raids carried out mainly by US forces, the authors of the 84-page document argue that apparent war crimes have gone uninvestigated and unpunished. "In numerous cases in which there is credible evidence of unlawful killings of civilians, the military has failed to conduct prompt, thorough and impartial investigations," the report states.

Horia Mosadiq, AI's Afghanistan Researcher, told DW that the rights group focused on ten of the most emblematic cases involving civilian casualties by foreign troops during the five-year period. "Some of these cases have been extensively covered in the media already - such as the 2009 airstrike in Kunduz that was called in by the German military - while others are less well known, including a December 2012 drone strike that killed four men and a boy."

Evidence 'ignored'

Two other case studies involve a Special Operations Forces raid on a house in Paktia province in 2010, and enforced disappearances, torture, and killings in Nerkh and Maidan Shahr districts, Wardak province, between November 2012 and February 2013.

Richard Bennett, AI's Asia Pacific Director, stressed that "none of the cases that we looked into - involving more than 140 civilian deaths - were prosecuted by the US military. Evidence of possible war crimes and unlawful killings has seemingly been ignored."

It is important to note, however, that especially in recent years, the vast majority of civilian deaths in Afghanistan have been the result of attacks by the Taliban and other armed opposition groups. In 2013, according to the United Nations Assistance Mission in Afghanistan, insurgents were responsible for more than three quarters of civilian casualties while international forces were responsible for just five percent of them.

Under international humanitarian law, not every killing of a civilian is deemed as illegal or a war crime. However, attacks in which civilians are indiscriminately or disproportionately harmed are prohibited under international law. The same is true for incidents where individuals not taking a direct part in hostilities are intentionally targeted.

Graeme Smith, a senior Afghanistan analyst for the International Crisis Group (ICG) says that a key finding of the report is the US military's lack of transparency: "In some cases the investigations may be adequate - or not - but the secrecy surrounding the process means that suspicions are never dispelled."

Smith believes that in this respect, the United States' military could be lagging behind its other Western counterparts, which have introduced somewhat more independent review systems. But he also points out that, admittedly, it's easier for other NATO countries to introduce such reforms because they are dealing with much smaller military bureaucracies and their militaries have fewer operational demands.

Erica Gaston, a human rights researcher who has documented civilian casualty incidents in Afghanistan, said "While international forces have gotten better at immediately responding to press reports of civilian casualties, and sometimes directly to family claims in Afghanistan, those ground-level improvements have not necessarily trickled back to greater transparency and accountability across the military justice system."

Immune from prosecution

Mosadiq explains that AI is aware of only six cases since 2009 in which US military personnel have faced trials over the alleged killing of civilians, the most notorious of which probably is the case of Army Sergeant Robert Bales who was sentenced to life in prison without parole after admitting to killing 16 Afghan civilians in March 2012.

The AI analyst points out, however, that in many of the cases covered in the report, US military or NATO spokespeople would announce that an investigation was being carried out, but would not release any further information about the progress or its findings - leaving victims and family members in the dark.

As part of an agreement between the US and Afghan governments, US forces are immune from prosecution in Afghan courts. Moreover, US law is less permissive of extraterritorial claims than, by contrast, UK or German laws. This means that an Afghan injured by US troops has less chances of seeing justice in a court of law than one being harmed by other NATO forces, Gaston told DW.

A flawed justice system?

In light of this, Mosadiq adds that many Afghan families have, in their desperation, resorted to organizing public protests to get some modicum of public attention to the killings of their relatives. "It is extremely rare that cases involving Afghan civilian victims reach the prosecution stage - but even if they do, there are huge structural problems with the military court system," the researcher said.

At the heart of the problem lies what AI describes as the "deeply flawed" US military justice system. Essentially a form of self-policing, the US military relies on soldiers or commanders themselves to report possible human rights violations which would then trigger an investigation - but there are few incentives for them to do so. Moreover, the Afghan victims are rarely called upon to give evidence, even in internal investigations.

"Some Afghans or human rights groups do succeed in reporting civilian deaths, but unless the military troops involved also corroborate the claims, they tend to be dismissed as false unless overwhelming evidence emerges. And even then, it may result in a public apology, but not a trial," Gaston explains.

ICG analyst Smith is of the view that critics might be temped to the dismiss the research conducted by AI as less relevant now that the US forces are withdrawing. "For the victims, however, these incidents amount to unresolved blood debts. There's no feeling of closure. So, a compassionate handling of these cases may help to mitigate the aftermath of the US military presence in this country," the analyst said.

Given the apparent gaps, the AI report calls on the US and NATO to carry out prompt, thorough and impartial investigations whenever there are reports of civilian casualties. Moreover, they should consider reopening past cases to include interviews with family members and evidence from the field. The rights group ultimately calls on the US to urgently reform its military justice system by limiting the role of the commanders, strengthening the independence of judges, and establishing external accountability mechanisms.

Addressing the gaps

Human rights researcher Gaston argues that an overhaul of the military justice system is not likely in the near future, but stresses that at a minimum, there should be more transparency in investigations - at least sharing with those directly affected as to what happened to their families. "The report also illustrated deep and persistent accountability gaps with regard to Special Forces. That is an issue that will persist beyond 2014 and must be addressed," the analyst added.

Eugene R. Fidell, a senior research scholar in law who teaches military justice at Yale Law School, shares a similar view. The legal expert told DW that important changes needed to be made in the US military justice system. "At present, the justice system does not come close to complying with the international covenant on civil and political rights, even though the US is part of that agreement."

Among the changes proposed by Fidell are removing the commander's power to decide who shall be prosecuted and who shall serve in the jury. In addition, the expert says, military judges should have statutory fixed terms of office in order to ensure their independence. Fidell also recommends that the penalty for dereliction of duty be "significantly increased" in order to ensure command accountability.

Not surprising at all.[/quote]

[cadbrowser]

"For the victims, however, these incidents amount to unresolved blood debts. There's no feeling of closure. So, a compassionate handling of these cases may help to mitigate the aftermath of the US military presence in this country," the analyst said.

I've often wondered if the US Military would show at least a minimum amount of integrity when these types of allegations do come up if it would provide a better view of Americans to the Middle East. Isn't part of operating overseas to police other countries and win the heart of the locals?

Why continue to propagate the view that all Americans are blood thirsty hicks by ignoring potential violations of human decency? I served in the Army for a few years in the mid 90's and I was, then, naive enough to believe that we were the good guys. But, learning that the US has had (and continues to have) its fair share of human rights violations makes me ashamed.

It isn't right and something needs to change.

[Spekio]

Isn't part of operating overseas to police other countries and win the heart of the locals?

Are you serious?

[Grumman]

I've often wondered if the US Military would show at least a minimum amount of integrity when these types of allegations do come up if it would provide a better view of Americans to the Middle East.

I don't think there's any question about that. American demands for immunity to prosecution under Iraqi law were the biggest reason why Obama was forced to withdraw from Iraq. If the Iraqi government could trust the US to punish war criminals instead of deciding whistleblowing was a worse crime than raping prisoners to death, that would have been less of a sticking point.

[Elheru Aran]

Isn't part of operating overseas to police other countries and win the heart of the locals?

Are you serious?

If one country's military is in the process of occupying another country, then yes, I would expect them to have a certain responsibility for peace-keeping in the occupied country and following certain legal guidelines in the process of doing so. That may be what cadbrowser was meaning by 'police'.

[Spekio]

If one country's military is in the process of occupying another country, then yes, I would expect them to have a certain responsibility for peace-keeping in the occupied country and following certain legal guidelines in the process of doing so. That may be what cadbrowser was meaning by 'police'.

Do they now?

I know meta-juridic constructs, international and even national law may dictate so, but law needs to be enforceable to matter.

The U.S. is operating overseas to get whatever it needs to get, be it resources and/or political clout or whatever, but it has been proved time and time again that they don't care about such minor things as human rights. I even recall something in international law about "no rights for the enemy" or something that came from some U.S. court. - Google says it was something that was said, not an actual decision.

[Elheru Aran]

Yeah, I wasn't saying that the US military itself actually tends to respect human rights when it comes to the crimes of their own personnel... it's obviously a serious dysfunction in their structure and something that needs to be corrected. Cadbrowser's experience is mid 90s and IIRC not a whole lot happened overseas then as far as the military went (I was overseas myself in the mission field and a child at the time, so I'm not very well versed in the events of the period).

I was merely noting an ideal which I thought cadbrowser was trying to express, rather than what the US mil actually does...

[Wicked Pilot]

We operated under very strict rules of engagement, and every time we shot we had to turn the tapes over to JAG. But this is unfortunately a war and we're not going to prosecute people every time we level a building the ground team was taking fire from. Not that aren't many cases were people clear cut need to do jail time or worse for their actions, but in most cases civilian casualties are an unavoidable consequence of the situation at hand, and the only real solution to the problem is going home.

[Ahriman238]

The U.S. Government is uninterested in investigating and prosecuting the kidnap and torture, and occasional extrajudicial murder, of our own citizens. Far less some brown-skinned people halfway around the world living in cities and towns the average voter can't even pronounce, far less find on a map.

[cadbrowser]

Isn't part of operating overseas to police other countries and win the heart of the locals?

Are you serious?

If one country's military is in the process of occupying another country, then yes, I would expect them to have a certain responsibility for peace-keeping in the occupied country and following certain legal guidelines in the process of doing so. That may be what cadbrowser was meaning by 'police'.

Yes, I was serious Spekio.

And yes Elheru Aran, to clarify that is what I was generally getting at. Not that this actually happens on a micro level, but as a general guideline of what should be happening. And not really so much a responsibility out of good will; but, if you think about it, it would seem to be to just be good business. Keep the majority of the population dumb and happy and they will let you walk all over them.

Thanas could probably clarify my point better with how well this worked in antiquity (i.e. the Roman Empire, Persia, etc.)

My utilization of the word 'police' was more in reference to how some of the 'wars' the US has been involved in were considered policing actions. It was more of a tongue-in-cheek application for lack of a better word.

[cadbrowser]

I've often wondered if the US Military would show at least a minimum amount of integrity when these types of allegations do come up if it would provide a better view of Americans to the Middle East.

I don't think there's any question about that. American demands for immunity to prosecution under Iraqi law were the biggest reason why Obama was forced to withdraw from Iraq. If the Iraqi government could trust the US to punish war criminals instead of deciding whistleblowing was a worse crime than raping prisoners to death, that would have been less of a sticking point.

Pardon my ignorance here, and this is a legit question, was the Iraqi Law during the time in question still heavily influenced by Sharia Law, or had they moved at that time to a more democratic type system?

If so, the I would understand those demands. However, I would've expected the US military to at least provide an honest effort to investigate an claims of war crimes too. In my mind that would've been a smart negotiation along with visible compliance of said agreement.

If not, then I do not understand these demands for immunity. Well, other than the fact that history is generally a good predictor of future...the US has even fewer stones to throw when calling for corrections to war crimes or human rights violations.

People lose their shit and do stupid stuff. Some even do it because they gain pleasure from it. Seems the US Military doesn't want that aspect to stop because sometimes it does get results.

[Grumman]

Pardon my ignorance here, and this is a legit question, was the Iraqi Law during the time in question still heavily influenced by Sharia Law, or had they moved at that time to a more democratic type system?

I could not tell you, sorry. I know that their criminal code was modified in 2003 from the one that existed under Saddam Hussein, but I do not know the extent of these changes.

[Elheru Aran]

Hussein's code, IIRC, was fairly modern in line with how he had reformed Iraq into a more modern country. It certainly wasn't anything like the Sharia code as far as I know.

[cadbrowser]

Well, after a cursory search on Google it seems that the Ba'ath Party was an Arab secular socialist movement that was interested in a variation of separation of church and state as it applied to Islam. During the 1979 Iranian Revolution it appears that Saddam wanted to befriend the Ayatollah's new government. However, that fell apart when the Iranian leader called for an Islamic uprising thus igniting the Iran/Iraq War.

I am not finding anything relating to the actual Laws of Iraq during the rein of Saddam, everytime I try to redefine the search parameter is kicks me to events post 2003...which isn't helping at all. Any references to Saddams' Law speaks of corruption and etcetera (in the same vain as McCarthyism was to Communism). Which I do remember those types of stories of kidnappings, torture, terrorism and the like.

Anyway, if someone has any enlightenment to fill me in briefly, I really don't want to derail the thread too much, but I feel it is important to understand the potential reasons for US to demand that immunity under Iraqi Law that was previously mentioned.

Mods, if I am detracting too far from the subject at hand, please let me know and I'll not pursue this any more and attempt to re-orient.

[Spekio]

Snip

I'll refer you to my reply to Elheru Aran then.

My utilization of the word 'police' was more in reference to how some of the 'wars' the US has been involved in were considered policing actions. It was more of a tongue-in-cheek application for lack of a better word.

I understand what you were getting at.

We operated under very strict rules of engagement, and every time we shot we had to turn the tapes over to JAG. But this is unfortunately a war and we're not going to prosecute people every time we level a building the ground team was taking fire from. Not that aren't many cases were people clear cut need to do jail time or worse for their actions, but in most cases civilian casualties are an unavoidable consequence of the situation at hand, and the only real solution to the problem is going home.

Or never invading.

[cadbrowser]

Snip

I'll refer you to my reply to Elheru Aran then.

Right, I saw that; which prompted me to delve into it a little deeper. Thank you.

[Thanas]

Thanas could probably clarify my point better with how well this worked in antiquity (i.e. the Roman Empire, Persia, etc.)

Oh it worked, but I don't think it is that applicable to the modern world. Especially because some of the terror tactics the Romans used would not be accepted today unless you were the SS or SD (and probably not even there in the entirety).

For example, back in the days of antiquity, the laws of warfare were very clear - and we know that because the Roman military law is preserved very well, especially the law of the late republic. In essence, as an enemy you have a right to be spared and be allowed to negotiate a settlement until the moment the enemy's "ram has touched the wall" (literal quote). Roman leaders who did not follow that rule were considered war criminals and punished (by being turned over to the enemies they had acted in bad faith against).

But once the ram has touched the wall? Anything goes. You were almost certainly going to get at the very least gang-raped, which would have been applied to both genders. One of the typical punishments in ancient greece of a defeated enemy was gang rape to take away their manliness, castration was also common. You were almost certainly going to get sold as a slave if not outright killed. If the Romans had a bad day, you were also going to be crucified, buried alive, burnt alive, drowned, staked or whatever other fun times the Roman, Greek, Gaul or other ancient commander could think of.

Those terror tactics were well known and are part of the reasons why guerilla warfare, insurrections and civic warfare are not that well known in ancient times. Because retaliation was extreme and boundless. Even moreso, these tactics were not only widely expected, they were also widely accepted as part of the usual way of waging war.

You don't get such terror tactics in the modern time. ISIS is about the only one who comes even close to using Roman tactics and they would probbaly be viewed as pussies by some people like Titus, who regularly slaughtered hundreds of captives from his massive captive train whenever he felt like having some games.

It is only in the Roman Empire where we find the notion that a defeated enemy deserves pity and that you are supposed to treat them with kindness, the well-known clementia caesaris. Every modern theory of a just war or the division between soldiers and civilians stems from this. (It also very much suits an empire that has to integrate over fifty different ethnicities).

But that is just one part of why the Romans ruled for so long. They also kept their political deals, treated local religions with respect (even turning over soldiers to religious mobs if they had insulted the local religion) and made sure the life of the citizens was better than before, that the streets were secure, that one could travel and commerce.

The last parts is where the US has absolutely failed. The war crimes would not matter much if they had actually made a real effort at nation-building (see: Germany and Japan, where the US main mode of waging warfare was terror bombing). But because the USA half-assed the war crime persecution and the nation-building over the last two decades the end result is not unexpected.

[cadbrowser]

Damn Thanas, thank you for the follow up.

I seriously do not understand the half-assed war crime persecution on behalf of those violators in the US Military. Well...let me back up just a bit on that. I do understand (but do not condone) not allowing such investigations to criminally imply Officers as that would cause some sort of questioning of authority. Potentially in the worst situations. I believe I remember hearing this before...perhaps when the whole debacle came out about those Saudi prisoners being mistreated.

What I do not understand at all is the half-assed attempt at nation-building. You would think that as many times as the US has done it they would eventually get better at it. What I also do not understand is WHY it seems to be the norm to go in, tear a country down in the name of democracy, and then fail to do the work that was promised. Do you (or anyone) have any ideas as to why this continues to be a problem?

Some initial thoughts from my end in that regard:

1. Corruption (it is more profitable to go in half assed)?
2. Too many Chiefs, not enough Indians?
3. Political disconnect from the perspective of the culture being helped?
4. Domestic complaints by Jon & Jane Q taxpayer to be done quickly?

Any other ideas?

[Spekio]

Because occupation is much less popular than "Defending our freedoms!"? Public pressure has always been to take the troops out of the invaded country du jour instead of rebuilding the country you invaded for resources then leave.