The Ugly Consequences of the U.S. Military Having Immunity to Commit War Crimes in Afghanistan

“The U.S. bombing of the hospital was a war crime. But the United States can bomb any place it wants—a school, refugee camp, hospital—and they will not be held accountable,” said Hakim, a physician and mentor to the grassroots organization Afghan Peace Volunteers. “U.S. immunity is atrocious. It’s intolerable. They should be held accountable like every other human being.”


Hakim, who requested his last name and city of residence be withheld for security reasons, spoke with AlterNet from Afghanistan just weeks after the Pentagon released a heavily redacted internal investigation in which it exonerated itself of war crimes for its October 2015 bombing of a Médecins Sans Frontières (MSF) hospital in Kunduz that killed 42 civilians. The 16 U.S. service members immediately responsible will face administrative consequences but not court martial, and the high-level architects of U.S. policy in Afghanistan will remain untouched. The military provided the fallacious justification that the massacre did not amount to a war crime because it was unintentional.

Consistent with a longstanding pattern, the U.S. military, in lieu of accountability, is now doling out “condolence” payments of $6,000 to the families of those killed and $3,000 to the people wounded. But what is so remarkable about this latest case is that the U.S. military is dodging real consequences for a bloodbath it now admits to perpetrating (after originally changing its story at least four times, including an initial denial of culpability). What’s more, the Pentagon appears to be getting away with it, even though MSF has a high media profile, thanks to its prominent role as a western NGO. In November, MSF received considerable coverage for its harrowing report on the carnage inflicted by the U.S. military. “Patients burned in their beds, medical staff were decapitated and lost limbs, and others were shot by the circling AC-130 gunship while fleeing the burning building,” the medical charity documented.

MSF has strongly rejected the U.S. military’s claim that it can investigate itself, instead repeatedly demanding an “independent and impartial investigation by the International Humanitarian Fact Finding Commission” under the Geneva Conventions. But with the world’s attention focused on this horrific crime against the MSF facility, another critical issue is falling by the wayside.

The U.S. and Afghan governments have signed a deal that grants the American military blanket immunity for all of its war crimes under Afghan law, from shooting massacres to drone killings to aerial bombardments. These atrocities have been waged since the turn of the century, with violent U.S. intervention in the country stretching back decades. In the aftermath of this latest mass killing, the notion that Afghans should have the right to lead the charge for justice under their own political system and legal framework is not even up for debate. Afghans’ right to self-determination is largely missing from the human rights outcry over the U.S. military’s massacre in Kunduz.

'A Failed Global System'

Despite the Obama administration’s repeated declarations that the war in Afghanistan is winding down, the U.S. has been quietly expanding its role, including through the resumption of unpopular night raids two years ago. In 2014 the U.S. and Afghanistan signed the Bilateral Security Agreement, which locks in an American military presence, as well as the funding and arming of Afghan military forces until 2024. A controversial provision of the deal grants blanket immunity to American troops, declaring that “the United States shall have the exclusive right to exercise jurisdiction over such persons in respect of any criminal or civil offenses committed in the territory of Afghanistan.” This immunity also extends to a parallel agreement between NATO and the Afghan government.

This deal persists despite the fact that there is little reason to think the U.S. can be trusted with sole jurisdiction over its military’s crimes. As the Afghanistan Analysts Network noted years ago, “The U.S. military seldom publicizes the results of investigations into specific abuses, including torture, deaths in detention and indiscriminate or disproportionate use of force during ground operations. In the majority of cases, there is little indication that anyone has been held accountable for these abuses.”

The Pentagon’s failure to take swift and meaningful action after U.S. special forces killed, tortured and disappeared up to 18 people in the Nerkh and Maidan Shahr districts of Wardak province between 2012 and 2013 is just one example of this failure. In those instances where the U.S. military does levy prosecutions for atrocities, the charges rarely extend up the chain of command. This failure precludes a more systemic indictment of the war and its strategists, despite numerous large-scale atrocities that extend far beyond the Kunduz bombing.

Seelai, a U.S.-based organizer with Afghans United for Justice—whose members live in Afghanistan and abroad—told AlterNet that U.S. immunity inflicts a further injustice on those seeking restitution by violating the most fundamental principles of self-determination. “The fact that the U.S. military is occupying the land of Afghanistan and killing people there without a response from the American public, that in itself is undermining the ways in which the Afghan people would like to live their lives on a day-to-day basis,” said Seelai, who requested her last name be withheld for security reasons.

For this reason, similar American demands for immunity have been controversial around the world. The rejection of U.S. immunity by Iraq's congress played a role in forcing the Obama administration to pull most U.S. troops from the country in 2011. Meanwhile, the U.S. military’s effective immunity in the Philippines has provoked widespread protest and outrage.

But according to Hakim, “There is no single political leader today who has the guts to hold the U.S. or any party to the conflict responsible for breaking the law. We have a failed global system and we need an alternative.”

Counting the Crimes

What would an honest accounting of the U.S. military’s harm to Afghanistan, this century alone, look like? All publicly available figures indicate that nearly 15 years of continuous war have devastated ordinary people and left the Taliban stronger than ever.

In April, the United Nations Assistance Mission in Afghanistan (UNAMA) reported that “the first quarter civilian casualty data for 2016 showed continued record numbers of civilian casualties.” According to these calculations, “Actions by anti-government elements caused at least 60 percent of casualties while pro-government forces caused at least 19 percent.”

However, journalists Emma Graham-Harrison and Rob Evans noted earlier this month in the Observer that “there could be hundreds more civilian victims of the past 15 years of fighting whose deaths are missing from the records.”

The spike in civilian deaths sheds light on the cycles of violence unleashed by the United States. But how many of those people died directly at the hands of American forces? According to calculations released in February by UNAMA, 103 civilian deaths and 67 injuries  in 2015 can be attributed to “Aerial operations carried out by international military forces.” This marks a 9 percent increase from 2014.

The U.S. is less forthcoming about how many people are dying in its bombings. While the U.S. military produces a monthly report of air strikes in Afghanistan, this list omits information about where the bombing occurred, who was killed and for what reason. According to calculations by the watchdog publication Bureau of Investigative Journalism, “on average a civilian was killed every fourth drone or jet strike in 2015—up from one in 11 attacks the year before and the first time the casualty rate has risen since 2011. The rate was last at such levels at the height of the Afghan war in 2008.”

Meanwhile, there are the difficult-to-measure impacts of destabilization, starvation, poverty and infrastructure damage, not to mention the long-term physical and psychological wounds the Afghan people have been forced to endure. According to a report from the Afghanistan Analysts Network, Afghans are now the second largest group of refugees seeking asylum in Europe. The analysts attribute this mass displacement to “regime changes, wars, fragile statehood, and economic despair.”

At the very least, U.S. immunity obstructs the most modest advances toward U.S. accountability and reparations for its crimes. At worst, it is a tool of occupation and military dominance used to deny the self-determination of the people of Afghanistan.

Yet, Seelai noted, “Even though the U.S. is still involved in this war, no attention is being focused on this. That’s one of the many reasons why the U.S. government and military can get away with war crimes in Afghanistan. Folks on the ground here in America, whose tax dollars are paying for this war, they don’t know about this.”

Amid this silence, which extends to the 2016 presidential contest, Afghans United for Justice has issued a series of demands, including the prosecution of the U.S. military personnel behind the Kunduz bombing in Afghanistan, under the country’s laws.

For Hakim, an ultimate solution will require solidarity from communities in the United States. “The reason the U.S. government can get away with this is U.S. citizens believe too much in what your politicians tell you,” he said. “You are not questioning your government enough. The U.S. military—your military—is the strongest military in the world, and your country exports the greatest number of weapons. This is what it is doing to Afghans in a faraway country that is no threat to you at all.”

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