On 17 February, President Hamid Karzai issued a widely-reported decree banning Afghan security forces from requesting coalition air-strikes on ‘Afghan homes or villages’. This followed the reported deaths of 10 civilians in an airstrike a week earlier on a village in eastern Afghanistan. It is also in the wake of an ISAF tactical directive of June last year, which forbade international forces from using airstrikes against insurgents ‘within civilian dwellings’. The Karzai statement was well-received in Afghanistan and in the western media and, particularly (one suspects), by the Taliban and their supporters. But is it really as simple as this?
Of course, there is an obligation on all combatants in war to protect from harm those who are not participating in the hostilities (non-combatants). Combatants are expected to have a ‘right intention’ in this respect. Where the evidence is that the distinction is not being drawn and that civilians are being carelessly or deliberately targeted, it is appropriate to talk of ‘war crimes’. This is particularly so where such civilian targeting appears to be a common practice, or dominant tactic. Indeed, this is terrorism.
On the other hand, it is a regrettable fact that non-combatants do get harmed in war. This will particularly be the case where a belligerent party places itself amongst civilians and chooses to prosecute hostilities from that position. There are all sorts of variations on this situation but in the event that the other party must continue the action, it is faced with a difficult choice. If it eschews heavy, and inevitably less discriminating, weaponry (including air-strikes), it faces the prospect of greater losses in completing its mission, or even failing altogether. On the other hand, if some use is made of heavy weaponry or aerial support , civilian casualties are more likely, perhaps inevitable. Depending on the facts of the case, this may still be excusable from a humanitarian law point of view, on grounds of military necessity.
In this context, the Karzai decree, and an earlier ISAF tactical directive of last June which forbade international troops from using airstrikes against insurgents ‘within civilian dwellings’, are both naïve political posturing. Similarly, Rules of Engagement that prohibit the return of fire until the attacker identifies himself by, say, emerging from cover and continuing the attack, are absurd. As noted earlier, the essence here is intention. The relevant war crime is “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in the hostilities”. (Rome Statute of the International Court, Article 82, 2(b) (i))
Of course, it is understood that harming civilians, through whatever cause, is good PR for the other side and, in the crazy logic of contemporary irregular warfare, PR is king. This is especially the case where the dominant media commentary is largely in the hands of persons who have limited understanding of the fundamentals of humanitarian law and, not infrequently, particular agendas of their own.
As far as President Karzai is concerned, it remains to be seen how his own troops react to Rules of Engagement that have them fighting with one hand behind their backs, when the Afghan people are solely responsible for their own defence. It might even be that ordinary citizens, who have a stake in who is running their country, recognise a need for a determined effort to prevent the return of the Taliban, and will thus apply a more sophisticated understanding of the laws of war.
There is another aspect to all this, which has a bearing on the sorts of moral judgement that might be made, and that concerns the overall statistics for non-combatant harming during the Afghan war. The latest of these came out a few days ago in an official UN report. It showed that the Taliban and associated parties were again responsible for the vast majority of the civilian deaths and injuries (81% last year). By contrast, 8% of civilian deaths were caused by pro-government forces, including NATO. (The missing 11% were unattributable). So why does the media commentary focus on the 8% and virtually ignore the 80%? The question is particularly pertinent since, in relation to the 80%, there is little room for doubt about the intention. According to the same UN report, these are ‘deliberately targeted killings’, and increasingly, of women, girls and government employees.
This may be contrasted with the ‘8%’, who are, for the most part, plausibly unintended victims. This even applies to the widely reported 10 civilian deaths in an Afghan village in Kunar Province close to the Pakistan border, which provoked the Karzai ban. In this case the targets were a pair of senior Taliban commanders, who, according to reports, were staying with ‘family’ in nearby houses. In the course of an air and ground assault the two were killed, along with (in some reports) two other ‘insurgents’. The ten civilians, also killed, included four women, one man and five children between the ages 8 and 13 (New York Times report). We may raise questions about this episode and, in particular, we might ask whether the killing or capture of these two could not have been achieved in another way but there is little doubt that those specifically targeted were combatants and that the operation would have met the other test of humanitarian law: military necessity.
Wars (and individual actions within them) have purposes. These should not be sacrificed by lapsing into naïve sentimentalism, however much we may regret the deaths of innocent victims.