March 26, 2009

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Re: Afghanistan

Dear President Obama,

We write to you regarding the new US policy towards Afghanistan, which we understand you are announcing tomorrow. Human Rights Watch has worked on Afghanistan for many years, publishing many reports on the human rights situation.

Human Rights Watch welcomes the clear commitment to Afghanistan that has already been demonstrated by the Obama administration through public statements, the appointment of a special representative, and the initiation of several policy reviews. We do not underestimate the scale of the challenges presented by ground realities in Afghanistan. But we expect that in implementing your new strategy, your administration will address the failures and weaknesses of the past seven years, while building on areas that have been more successful.

Members of the Obama administration have been quoted discussing a new "realism" that includes "scaling back" US ambitions for Afghan democracy in favor of more "achievable" aims. There have also been statements made that the United States is devising a new policy that emphasizes political and economic issues as well as the already predominant military strategy. It is not clear how these views can be reconciled, but we hope that the new policy does not overemphasize military strategy and relegate issues such as security for civilians, uprooting warlords, corruption, women's rights, and free and fair elections to the second tier. The previous administration articulated many bold aspirations, but the fight against the Taliban and al Qaeda was placed high above all other goals, including human rights, the rule of law, and good governance. While each of these goals will be difficult to achieve and take time, patience, and resources, it is important that this administration never forget that each is an essential element of a stable and peaceful Afghanistan.

While the United States is deploying more troops to Afghanistan to fight the Taliban and al Qaeda, there has been no similar announcement yet on the need to provide greater security for Afghans in conflict and non-conflict areas. Afghans have demanded greater security for many years, but the US and its allies have failed to respond to their pleas with adequate resources. The security situation has steadily deteriorated as the strength of warlords and the insurgents has increased.

Insecurity is cited by many Afghans as the greatest problem they face in their daily lives and the one for which they demand the most urgent action. Basic security is necessary not only for reconstruction and development efforts, but for the protection of human rights and building the rule of law. Only when Afghans feel safer will they credit the Afghan government and its allies for their efforts.

There has been a great deal of discussion about possible deals with the Taliban and other insurgents. We take no position on the political value of such deals, but we do insist that any deals ensure the protection of human rights. Recent experiences in Pakistan where agreements with armed groups have led to zones of abuse and lawlessness and the rights of women have been trampled should inform any such discussions. Many Afghans - in particular women - are appalled by the idea of peace deals with the Taliban that may result in a return of Taliban elements to power, whether at a national or local level. This was one of the key messages from the Women's Council in December 2008, which gathered over 500 women from all over the country. Any deals that are sought must ensure that the basic rights of those affected are protected, and that no amnesties be provided for those who are responsible for serious crimes in violation of international law.

The following are issues of primary concern to Human Rights Watch and our recommendations as you move forward in implementing a new strategy.

1. Warlordism

There are multiple and complex causes for the growth of the insurgency, but they cannot be understood outside the prism of lawlessness, rights abuses, and corruption under which so many Afghans live. The successes of the insurgency in recent years are partly a response to growing public disillusionment with the government, parliament, the security forces, and other state institutions.

Much of this discontent is the result of the place that warlords and abusive commanders have achieved in the post-Taliban period. To fight the Taliban, many warlords were placed in positions of authority, relied on for military support, and provided weapons and funds by the United States. Since then, warlords have greatly increased their power, leading to the creation of a political class that is largely corrupt, unrepresentative, and often antithetical to human rights and democratic ideals. The emphasis on fighting the Taliban and pursuing al Qaeda at the expense of other goals has allowed a culture of impunity to take root, undermining efforts to create the rule of law and respect for human rights.

For too long the excuse for inaction by many in the Afghan government and international community has been that tackling warlords, regional commanders, and drug lords would destabilize the country. But the past few years tell a different story: it is these very people who have eroded public support for the government and Afghan state and destabilized the country. This has accomplished what was recently unthinkable - many Afghans now suggest that the Taliban is the lesser of two evils. Rooting out these figures and their power structures to create a functional, rights respecting state will take many years. But the longer it is delayed, the more difficult the task will become. Afghanistan has no hope of a stable future unless powerful political figures cease behaving as if they are above the law, illegal armed groups are disbanded, and the illegal economy that their guns protect is dismantled.

US military and other officials continue to meet with and have relations with warlords, including those alleged to be involved in war crimes (see section 3 below), thereby lending them credibility.

With a few exceptions, President Hamid Karzai has been unwilling to take on the power of warlords and abusive commanders. He or his successor is likely to remain unwilling to do so without greater support from the US government and others in the international community. It is important for the United States to embed in its strategy a realization that a functional and rights-respecting state cannot be built by the perpetrators of past and present crimes and abuses.

Human Rights Watch urges the United States to:

  • Develop a strategy to assist the Afghan government to sideline warlords and abusive commanders.
  • Work with the Afghan government to investigate and prosecute warlords and abusive commanders implicated in human rights abuses and other serious criminal offenses.
  • Ensure that the US does not provide direct, indirect, or political support to warlords and abusive commanders, drug lords, and other officials implicated in human rights abuses and other serious criminal offenses.
  • Work with the Afghan government to create a credible and fair process for vetting election candidates (see section 5 below).
  • Consider the use of targeted economic sanctions against warlords and others to keep them from benefiting from the illegal economy, particularly the drug and illegal weapons trade.

2. Transitional Justice

In July 2005, Human Rights Watch published a report, "Blood Stained Hands: Past Atrocities in Kabul and Afghanistan's Legacy of Impunity" (http://www.hrw.org/en/reports/2005/07/06/blood-stained-hands), that documented the involvement of some highly influential figures in the current Afghan government and legislature in war crimes during brutal fighting that killed or displaced hundreds of thousands of Afghans in the early 1990s - and precipitated the rise of the Taliban. Prominent among this group are Abdul Rabb al Rasul Sayyaf, Burhanuddin Rabbani, Minister of Energy Ismail Khan, Army Chief of Staff Abdul Rashid Dostum, and Vice President Karim Khalili, all of whom continue to misuse positions of power.

Despite the findings in this report and other reliable accounts, no action has been taken by the Afghan government or international community to sideline or prosecute the individuals responsible. President Hamid Karzai's government has done almost nothing to implement its Action Plan for Peace, Reconciliation and Justice, a five-year plan for implementing transitional justice in Afghanistan that is part of the Afghanistan Compact.

Although war crimes tribunals or truth commissions are politically sensitive, inaction is driven more by the vested interests of politicians than public opinion, which is strongly in favor of holding war criminals and human rights abusers accountable. Civil society organizations are becoming actively engaged in documentation work and a range of victims' groups are demonstrating Afghans' desire for open discussion about war crimes. Most Afghans would welcome moves by their government to hold war criminals to account, as long as it was shown to be even-handed.

Additional technical assistance is required by the government of Afghanistan to improve its capacity for forensic work for both present and past crimes. The destruction of evidence of war crimes sites such as Dasht-e-Laili should be addressed. The US should offer to provide security forces or resources to protect what remains of the war crimes sites. Perhaps most important, the US should distance itself from figures that are implicated in war crimes.

Human Rights Watch urges the United States to:

  • Press the President to extend the mandate for the Action Plan for Peace, Reconciliation and Justice and to begin implementing the plan.
  • Support civil society groups who are working on documentation, reconciliation and victims' groups.
  • Cease the employment of private security contractors who are associated with past and present crimes.
  • Ensure war crimes sites are protected and evidence of war crimes is preserved.

3. Women's Rights

The United States should lead a discussion with the Afghan government and concerned international actors to address the situation of women in Afghanistan with renewed urgency and place it at the heart of US policy.

The plight of women under the Taliban was cited as a key reason for overthrowing the Taliban government in 2001. Solemn commitments were made by the US and others to make the improvement of the situation of women and girls a high priority. However, while there have been many improvements since the fall of the Taliban, far too little real progress has been made in improving the lives of Afghan women. Afghan women and girls continue to rank among the world's worst-off by most indicators, such as life expectancy (43 years), maternal mortality (1,600 deaths per 100,000 births), and literacy (12.6 percent of females 15 and older). Existing laws that protect women's rights are not upheld or enforced. Women in public life are targeted by insurgents and receive little protection from the state.

Afghan women and girls face discrimination in almost every aspect of their lives. They continue to struggle to exercise fundamental rights to health, education, work, freedom from violence, and freedom of movement.

The majority of Afghan women live in rural areas, and their situation is particularly difficult. Unfortunately, international aid has been very unevenly distributed, partly because of security fears, partly because of the short-term nature of many of the donor-funded projects. Results-driven development projects with short project lengths (many have a maximum two-year project length, others are even more short term) mean that many will not reach the most isolated and conservative parts of the country where the needs are often greatest.

While seats have been reserved in parliament for women and this is often cited as a major success, when women members of parliament speak out they often face threats, intimidation, and even violence. Women remain heavily underrepresented in politics, government, the judiciary, the police, and senior civil service positions.

On a macro level, Afghan national policies and budgets should be designed to promote gender equality at all levels, with specific and sufficient funds earmarked for initiatives aimed at improving women and girls' status. Donors should incorporate a gender perspective into evaluations of all funded projects.

There are many women's rights issues that need additional attention. Below we focus on two:

Education

Girls' and women's education is both a critical and symbolic measure of Afghanistan's progress. Some 5.95 million students were enrolled in formal education in the 2007/2008 school year, which is more than at any other point in Afghanistan's history. However, a majority of girls have still never been enrolled in a school, and of those that do, too many drop out at secondary school level. Currently, 37 percent of primary school students are girls, which drops to 27 percent in secondary schools. Until now donors have focused on primary schools; in order to consolidate these gains, greater efforts are needed to keep students, particularly girls, in school through secondary education.

In southern and eastern Afghanistan, girls and boys have been severely hampered from attending school because of insecurity, including targeted attacks by the Taliban and other anti-government groups against schools, teachers, and students. From March 2007 to October 2008, 220 schools were set on fire or destroyed, and 254 students and teachers were killed in attacks by insurgents, according to the Ministry of Education. In 21 of the country's 35 provinces, less than 10 percent of girls were enrolled in grades 7-9 in 2007/08; in the violence-marred provinces of Zabul, Uruzgan, and Paktika, girls' participation at the lower secondary level drops to less than one percent.

Even outside the conflict areas, girls' enrollment and attendance rates are significantly lower than that of boys. Although there are significant cultural obstacles to overcome, there is still strong demand for girls' education. At the secondary school level, the proportion of mixed and girls' schools drops. A network of community-based schools, often in remote and insecure locations, has prioritized female enrollment - and currently 60 percent of students are girls.

Many of the obstacles that deter girls are practical and surmountable. Too many existing state schools still lack buildings and perimeter walls, which make them unsuitable for adolescent Afghan girls. Too often girls have to travel long distances to reach mixed or girls' schools, with no options for transport or chaperones to address legitimate fears of sexual harassment, violence, and abductions on route to school. A dramatic increase in women teachers is needed, as almost half the districts in the country do not have a single woman teacher.

Human Rights Watch urges the United States to:

  • Work with the Ministry of Education to increase the number of girls' secondary classes by building more girls' secondary schools, converting boys' schools into coed schools, including by introducing morning and afternoon shifts, and adding secondary level classes to existing primary schools.
  • Allocate funds to provide community devised transportation for female students.
  • Analyze the current geographic distribution of primary and secondary schools and coordinate with other donors and the government on school construction projects to ensure that new schools are located strategically to fill gaps in girls' access to secondary school.
  • Work with the Ministry of Education on retention strategies for girls enrolled in primary school so they continue their education. Collect information on why students fail to enroll or drop out and use this information to develop gender-sensitive enrollment and retention strategies.
  • Assist the Ministry of Education to increase the number of female teachers by providing financial incentives and safe and appropriate housing facilities to encourage female teachers to relocate to or remain in rural areas.

Early Marriage

Almost 60 percent of girls in Afghanistan are married before they reach 16 years of age. The legal age of marriage is 16 for females and 18 for males. While child marriage is punishable by up to two years in prison, there are no known cases of parents or husbands-to-be being prosecuted for child marriage. Public figures have been known to defy the legal age of consent without opprobrium. In many parts of the country it is deemed acceptable for girls to be married as soon as menstruation begins.

Child marriage has a negative impact on health. Early pregnancy is one of the major causes of high maternal mortality. Child marriage also increases the likelihood of dropping out of education, with 15 percent of dropouts citing early marriage as the reason for leaving school. Community awareness of these problems is still limited, particularly in rural areas.

The Afghan Independent Human Rights Commission and civil society groups were successful in persuading the government to update marriage registration certificates to include checks on age and consent. This could be a useful mechanism for reducing child marriage, although there is still almost no enforcement strategy in place. The Ministry of Women's Affairs plans to establish one marriage registration office per province, but it is highly unlikely that couples will travel long distances to register their marriage.

Although short public information campaigns have been created to raise awareness about registration and early marriage, such campaigns require long-term commitment, particularly in rural areas. Afghan civil society organizations are the only effective mechanism for district-based education and awareness-raising campaigns and should be given additional support.

For women in Kabul and a few other urban centers, a small number of women trying to escape child, forced, or violent marriages are now able to find civil society organizations that can help gain them access to counseling, legal aid, and shelters. However, for women in most rural areas this is still culturally and practically out of reach. Although in many parts of the country there are reports of police abuse against vulnerable women and girls, there are also reports from civil society organizations of improvements in the responsiveness of some police departments in urban areas. The creation of Family Response Units in police stations need more resources, staff, training, and oversight to have any national impact. There is only one family court in the country, located in the capital, where women have a better chance of a fair hearing, though the system is slow and bureaucratic.

Human Rights Watch urges the United States to work with the Afghan government and civil society organizations to:

  • Enforce existing legislation on the legal age of marriage.
  • Urge politicians, government officials, and religious leaders to promote the law on the legal age of marriage, and not to personally flout it.
  • Develop long-term awareness campaigns to discourage child and early marriage.
  • Make marriage registration facilities readily available throughout the country.
  • Expand gender awareness training for police, and increase the quality, monitoring, and number of Family Response Units.
  • Extend family courts throughout the country.

4. Judicial Reform

A rights-respecting and professional judicial system is essential for a functional state, but seven years after the overthrow of the Taliban limited progress has been made. Most Afghans still have no recourse to the national court system, particularly those outside urban areas. The judicial system is beset by problems of education, training, competence, professionalism, and corruption. Furthermore, the judicial system remains in the hands of deeply conservative political leaders, who do not want to see their value system challenged, and have no intention of loosening their hold on an institution that could hold them accountable for past abuses.

Judicial impartiality and independence is routinely compromised by political, tribal, and family interference. Judges and prosecutors often display limited understanding of Afghan law, sometimes improperly substituting customary law or Sharia, and routinely disregard due process.

International assistance to reform the judiciary has been poorly conceived and ineffectual. Little priority has been given to judicial reform. Although this has begun to be addressed in the last two years, much can be done. The US and other donors should devote greater resources to strengthening judicial institutions in Afghanistan. An enforceable system should be created for the impartial and independent appointment, discipline, and dismissal of judges, particularly for those found to be corrupt.

Women's rights and access to justice are limited in state, customary, and Islamic justice mechanisms. For instance, the crime of zina (sex outside marriage) is used to punish women for a wide and vague range of so-called "moral crimes," such as running away from a husband, refusing a marriage partner, fleeing domestic violence, and adultery. While community or traditional justice mechanisms have a degree of legitimacy that the national court system still lacks, particularly outside urban areas, they are often problematic in their treatment of women. Civil society organizations and international donors who work with such traditional mechanisms should incorporate women's rights and women's access to justice into their programs.

Judges have increasingly been targeted in assassinations carried out by insurgent and criminal groups. Basic security should be enhanced, including the provision of armored vehicles for those facing threats to enhanced security for the courts.

Human Rights Watch urges the United States to undertake or support efforts to:

  • Prioritize and speed up the judicial reform process to strengthen judicial institutions and ensure that judges and prosecutors are professional and independent.
  • Enhance protections for judges.
  • Increase awareness of women's rights in the national and traditional justice mechanisms and improve women's access to justice.

5. Elections and Vetting

In recent years the US has emphasized elections and democracy building. Presidential and parliamentary elections in 2004 and 2005 were broadly welcomed by Afghans. However, the polls were deeply flawed. A vetting process that would have identified individuals implicated in war crimes and serious human rights abuses and excluded them as candidates was never implemented, leaving many Afghans to describe the new parliament as a "chamber for warlords."

The elections of 2009 and 2010 provide the Afghan people with the opportunity to make a break with impunity. If, as in 2005, the perpetrators of so many past and present crimes are returned to power and legitimized by the electoral process, many Afghans will begin to lose faith in elections.

For this reason, we urge that a strong vetting procedure be created to disqualify human rights abusers as candidates for election. Even a modest but effective vetting process would offer a chance to begin to change the nature of Afghan politics, and signal to the Afghan people a break with the past. The vetting process is currently being held up by the lack of a political commitment by the Afghan government and slow information sharing by Provincial Reconstruction Teams (PRTs) and UNAMA about illegal armed groups with the Disbandment of Illegal Armed Groups (DIAG) initiative. If there are flaws in the DIAG list and the vetting process these must be openly discussed and reformed in time for the 2010 elections.

The US has in the past been accused of failing to fully cooperate with vetting processes because of its own alliances with or use of warlords, regional commanders, and illegal armed groups. The US should now wholeheartedly and publicly support the vetting process, no matter who it may disqualify as a candidate.

The Afghan government has also failed to meet its commitment to vet senior civil servants through the senior appointments panel. The US, in conjunction with other donors, should use its influence to ensure that this process is respected, with the UN actively fulfilling its mandated role in the process. This is particularly important at the local level, where the Afghan government is generally perceived as corrupt, ineffectual, and untrustworthy. The Independent Directorate of Local Government (IDLG) and its Afghan Social Outreach Program created hopes of improved levels of accountability and transparency in local government. But the work of the IDLG has become increasingly tarnished by accusations of patronage.

Human Rights Watch urges the United States to:

  • Make a public commitment about the centrality to US policy of the importance and right of Afghans to choose their leaders through free and fair elections.
  • Support the work of DIAG and encourage the cooperation of the government of Afghanistan in disarming illegal armed groups.
  • Ensure that PRTs fulfill their obligations to share information about illegal armed groups for the vetting process.
  • Ensure that the vetting process is not used by the government as a political weapon against political opponents.
  • Ensure the US is not associated with warlords, alleged war criminals, militia leaders, and corrupt politicians in the run-up to the elections.

6. Freedom of Expression

Freedom of expression and an independent media, one of the success stories after the fall of the Taliban, are now under attack. We appreciate that the US is the most active external supporter of media freedom in Afghanistan. These efforts have to be redoubled and the Afghan government be encouraged to make it a greater priority. The international donor community must recognize the growing vulnerability of independent media and continue to provide protection as well as technical and training support.

Threats, violence, and murders against journalists are carried out with impunity. When journalists have been killed, such as Zakia Zaki in June 2007 and Abdul Samad Rohani in June 2008, no one is brought to justice. The government and the courts are increasingly repressive in their response to critical or provocative journalism. Several journalists and writers have been accused of blasphemy or apostasy by courts. One journalist, Parviz Kambakhsh, was sentenced to 20 years of imprisonment for blasphemy for an article he says he merely downloaded from the Internet. As a result, journalists are increasingly engaged in self-censorship, avoiding important issues like religion in society, corruption, warlordism, and the drugs mafia. Politicization, intimidation, and bribery mean an independent TV and print media barely exist in most of the country - a serious threat to free and fair elections in 2009 and 2010.

Human Rights Watch urges the United States to:

  • Press the government of Afghanistan to fulfill its obligations in the Afghan constitution to guarantee freedom of expression and freedom of information.
  • Provide political support for freedom of the media and strongly intervene in all cases of threats, arbitrary arrests and detention, and violence against journalists.
  • Provide increased support for training of journalists.
  • Support efforts to create a cadre of lawyers trained in sharia and media law to defend journalists charged with blasphemy and similar offenses.
  • Protest Afghan government actions that misuse the security forces and the criminal courts to punish journalists for critical reporting or for having legitimate contact or interviews with anti-government elements.

7. National Directorate of Security

The mandate of the National Directorate of Security (NDS), Afghanistan's main intelligence agency, is opaque, but appears to include broad scope to arrest and detain. Human rights groups have received persistent reports of arbitrary detention, mistreatment, and torture of prisoners in NDS detention, including sleep deprivation, stress positions, shackling, and electric shock during interrogations. Detainees are routinely denied access to legal counsel and to family members. The US works closely with the NDS and risks allegations of complicity in illegality if the NDS is not reformed.

Human Rights Watch urges the United States to:

  • Insist on an end to arbitrary arrest and detention and torture and other ill-treatment by the NDS. Integrate human rights principles and practices into efforts to reform the NDS.
  • Ensure that the Afghan Independent Human Rights Commission, UNAMA, and other impartial humanitarian agencies, are given access to NDS detention facilities around the country.

8. Tribal Militia/Afghan Public Protection Force

The US has been very supportive of the creation of the Afghan Public Protection Force (APPF) under the auspices of the IDLG and Ministry of Interior. The APPF is intended to provide community based security, with the active involvement of local shuras. The failure of previous national and international attempts to gain the support of Afghanistan's tribes are well documented, with most efforts being exploited by local politicians and other actors, which exacerbated tribal discord and increased the black market in weapon.

The rules of engagement for the APPF have still not been clearly defined. It is not clear under what conditions the APPF will become active, whom they are intended to provide protection against, or the scope of their ability to retaliate against attack. The command of APPF lies with the Ministry of Interior, which already faces serious capacity problems controlling the Afghan National Police. We are also concerned that this new force will have less pay, weaker command structures, and lower levels of training than current police recruits. These problems must not be glossed over in a rush to expand the program into seven additional provinces. They raise serious concerns that the APPF will become implicated in human rights abuses.

The government has rejected accusations that they are "re-arming the tribes" by claiming that the recruits will be able to use their own weapons. However, 9,000 new weapons are being made available. There are built-in disincentives to admitting ownership of a weapon, which must be registered, and is likely to then become state property. The risk of exacerbating north-south tensions by rolling out the APPF in the south and east while disarming the north should not be minimized.

It is noticeable that the five provinces that have been failing to fulfill their obligations to disarm under DIAG have Pashtun-majority populations. Indeed, the ethnic Pashtun population faces the brunt of the violence from anti-government insurgents and from national and international military forces. Pashtuns complain of alienation from their own government and international military forces. Their frustration and anger with arbitrary detentions, violent and extortionist practices of parts of the state, endemic corruption, and nepotism all play into the hands of anti-government elements.

Human Rights Watch urges the United States to:

  • Reconsider US support for the APPF, which is a potentially destabilizing and abusive force.
  • If the US continues to support the APPF, engage in much better oversight of the APPF, including monitoring politicization and tribal bias. Ensure that rules of engagement are clearly defined and incorporated into training. Ensure that the Afghan government provides effective command and control at the village level to deter human rights abuses and takes disciplinary action as appropriate. Do not expand the pilot project until an honest and transparent assessment of its effectiveness has been carried out.

9. US Military Policy

Human Rights Watch takes no position on the efficacy of an increase in US and NATO troops to fight the Taliban and other insurgents. However, there are serious concerns in Afghanistan that an increase in troops will lead to an increase in civilian casualties as the conflict intensifies and spreads. Below we discuss various elements of US military policy in Afghanistan:

 

Civilian Casualties

The US and NATO have taken steps in recent months to reduce civilian deaths, including the issuance of a tactical directive urging "proportionality, restraint, and utmost discrimination" in the use of firepower; making the greatest possible use of precision systems; having on-scene commanders make every effort to confirm that targeted houses are not sheltering civilians; and minimizing the use of deadly force in "escalation of force" procedures. Despite these commitments, there were continuing civilian casualties through the beginning of 2009. Following the influx of additional troops this year, there is even greater potential for civilian deaths with increased military operations.

The occurrence of civilian casualties does not necessarily mean that there has been a violation of the laws of armed conflict, but any loss of civilian life can have a profoundly detrimental effect on the local population. Further efforts are needed to minimize civilian casualties. The use of high levels of military firepower in operations to kill or capture mid-level Taliban commanders has frequently resulted in civilian casualties that carry a high cost in terms of public opinion, often for limited military gain. When making proportionately assessments for such attacks, weighing anticipated civilian loss against expected military gain, US forces should consider the relative ease with which insurgent groups have been able to replace mid-level commanders.

US and ISAF forces have made significant commitments, at high levels, to reduce their use of airstrikes to reduce civilian casualties. However, despite the deployment of additional troops, the current size and strength of the insurgency means that the way in which the war is waged is unlikely to change - there will still be a reliance on small unit actions by ground troops, who will in turn rely on close air support when they come under attack.

The US has an obligation under the laws of armed conflict to take all feasible precautions to avoid civilian loss of life and property. Airstrikes on populated villages should be avoided. Area-effect weapons such as howitzers and other heavy artillery should also not be used against targets in populated villages - their blast and fragmentation radius is so large they have indiscriminate effects.

The US and ISAF too often blame the Taliban's use of "human shields" for civilian casualty incidents. Human Rights Watch has documented many cases where shielding has occurred or Taliban forces improperly deployed among civilians, but there are many others where such claims were not warranted. Even when Taliban and other insurgent groups have used civilians to shield their forces, the US forces are still legally obliged to take all feasible measures to avoid loss of civilian life.

Finally, US investigations into civilian casualty incidents still lack transparency and minimal public reporting of findings, and have not to our knowledge resulted in individuals being appropriately held to account for improper actions.

Human Rights Watch urges the US to:

  • Ensure air attacks comply with the legal obligation to take all feasible precautions to minimize harm to the civilian population.
  • Refrain from using airstrikes in densely populated areas.
  • Take greater efforts to ensure that intelligence is highly reliable, and avoid reliance on single sources of human intelligence.
  • Avoid carrying out airstrikes without an adequate Collateral Damage Estimate (CDE).
  • Use precision-guided low collateral-damage munitions whenever possible, especially on targets in populated areas.
  • Refrain from using area-effect weapons such as 105mm howitzers against targets in densely populated areas.
  • Reduce reliance on Special Forces operations in civilian areas that are likely to result in "troops in contact" situations requiring close air support.
  • Reconsider the value of kill/capture operations against replaceable commanders when civilian loss is likely.
  • Publicly provide accurate and timely information on civilian casualties in military operations.
  • Impartially, thoroughly, and transparently investigate civilian casualty incidents, take responsibility when warranted, and take appropriate disciplinary or criminal action.
  • Stop publicly claiming that Taliban use of "human shields" was responsible for civilian casualties when untrue or unproven.

Night Raids

US military raids on targets in populated areas have also served to alienate the local population. As with airstrikes, the issue is not necessarily whether the actions are in violation of the laws of armed conflict, but the impact of such actions on the population. Afghans frequently complain about night raids that appear to use unnecessary or excessive force, insult local customs, and antagonize the civilian population. Human Rights Watch has learned of recent night raids by US forces where women and children have been killed. The UN Rapporteur on Extrajudicial, Summary, and Arbitrary Execution, Philip Alston, noted several cases in 2007 and 2008 where killings had taken place during night raids involving national and international forces for which no state or military command appears ready to acknowledge responsibility.

In recent tactical directives ISAF and US forces promise to put an "Afghan face" on such raids, but according to Human Rights Watch interviews with tribal elders, this does not necessarily reassure the local population, since Afghan soldiers or intelligence officers are likely to be from different families, tribes and ethnicities, and still accompanied by foreigners.

Human Rights Watch urges the United States to:

  • Conduct a review of the use of night raids in conjunction with the government of Afghanistan to develop alternative arrest strategies that will not alienate the local population.
  • Exercise precaution in the use of force during night raids to minimize harm to the civilian population.
  • Where the circumstances surrounding the arrest reflect a policing rather than an armed conflict situation, exercise restraint in the use of force and act in proportion to the legitimate objective to be achieved.
  • Improve transparency about the involvement of US personnel in raids and acknowledge responsibility where civilian harm has occurred.

Compensation (Condolence Payments)

Most Afghans who are injured or lose family members or property during military operations receive no compensation from international forces. This causes hardship for such persons and inflames public opinion against international forces.

ISAF has no unified or systematic mechanism for compensating civilians for damage or loss caused by military operations. Rather, the processes for dispensing compensation and non-legally binding "ex gratia" payments (done as a favor) are opaque, ad hoc, and vary from nation to nation. The US has been one of the more responsive nations and often provides solatia payments (for suffering or loss), but not in all cases.

Human Rights Watch urges the United States to:

  • Provide timely and adequate compensation when civilians are killed, injured, or their property is damaged or destroyed during military operations.
  • Consider the creation of a unified central fund with other ISAF contributing nations.
  • Implement the new annex to the Standard Operating Procedures that aims to harmonize condolence payments with other ISAF nations.

Detention and Detainees

US detention practices in Afghanistan violate fundamental due process rights and undermine efforts to persuade the Afghan government to respect basic rights in its treatment of persons in custody. No less than with Guantanamo, the United States needs to reassess its detention regime at the Bagram detention facility in Afghanistan to meet international law requirements.

Currently, more than 600 people are being held in Bagram, and they have fewer rights than those detained at Guantánamo - no right to a lawyer, no access to the courts, and barely any right to challenge the grounds of their arrest. The US essentially treats persons it takes into custody as if the applicable law was the law of an international armed conflict - that is, a conflict between two states. But at least since the formation of the Karzai government in 2002, the conflict in Afghanistan has been a non-international armed conflict under the laws of war. During this conflict - a civil war - all persons taken into custody are entitled to the legal protections of domestic law, regardless of whether they are in the physical control of the Afghan government or a foreign government. This includes the right to be promptly charged with a criminal offense and be fairly tried before domestic courts.  Even in the absence of a functioning judicial system, persons are still entitled to minimum protections, including being provided a specific reason for detention, having prompt access to family members and legal counsel, and being able to challenge the basis for the detention before an impartial tribunal. These rights are not being fully met and should be. Moreover, persons apprehended by the United States abroad and brought to Bagram remain primarily subject to US law, and are entitled to the full protections of US law, including habeas corpus rights.

The US should begin planning the closure of its detention facility at Bagram and the transfer of lawfully held detainees from US to Afghan custody, ensuring that no one facing torture be handed over. Although there are grave problems with detention practices in Afghanistan, much greater civilian input could be used to reform Afghan detention facilities and practices. The only long-term solution is for Afghan capacity in handling national security cases to improve and for fundamental due process and fair trial rights to be respected. The US should play a greater role in this process, particularly with civilian involvement.

Human Rights Watch urges the United States to:

  • Provide all Bagram detainees prompt access to lawyers and family members.
  • Create a fair process, ideally before Afghan courts, for detainees to challenge their detention.
  • Allow full access to Bagram to the Afghan Independent Human Rights Commission and UNAMA.
  • Provide greater civilian technical support and training to help reform the Afghan police, intelligence, and prison services.
  • Begin planning for the closure of Bagram and the transfer of lawfully held detainees to Afghan custody.

Thank you for your consideration. We look forward to discussing these and other issues related to Afghanistan.

Sincerely yours,

Brad Adams
Asia Director

Tom Malinowski
Washington Advocacy Director 

Cc:

Secretary of Defense Robert Gates
Secretary of State Hillary Clinton
Special Representative for Afghanistan and Pakistan Richard Holbrooke
Bruce Riedel, Senior Fellow, Brookings Institute
General David McKiernan, ISAF and USFOR-A Commander
US Acting Ambassador to Afghanistan Chris Dell

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