text
stringlengths 10
3.26k
| document_url
stringclasses 337
values | source_url
stringclasses 337
values | country
stringclasses 146
values |
|---|---|---|---|
Despite this large loss of civilian life, the attack may well have adhered to the dictates of the Tactical Directive.41 This bloodshed only amplified the anger many Afghans already felt toward coalition forces.42 34 See Memorandum from Headquarters International Security Assistance Force, subject: Revised Tactical Directive (6 July 2009), available at http://tinyurl.com/ TacticalDirective; Rajiv Chandrasekaran, Sole Informant Guided Decision on Afghan Strike, WASH. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
POST., Sept. 6, 2009, available at http://tinyurl.com/Kunduzattack; see Filkins, supra note 21 (noting that the new restrictions essentially “bann[ed the use of] bombs and missiles in populated areas unless [soldiers] were in danger of being overrun”).
35 See TROOPS IN CONTACT, supra note11, at 6.
Human Rights Watch believes that the “changes may have had some impact,” noting that a civilian casualties decreased after the changes were implemented.
See id.
36 See id.
37 See id.
at 17. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See id.
36 See id.
37 See id.
at 17.
38 Yet another option would be to temporarily cease or curtail the types of ground operations that risk creating significant collateral damage, such as certain special forces activities.
Allegedly, the U.S. Special Operations Command did just this in February of 2009, as it ordered a two-week moratorium on many special operations’ missions.
See Mark Mazzetti & Eric Schmitt, U.S.
Halted Some Raids in Afghanistan, N.Y. TIMES, Mar.
9, 2009, at A6. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
9, 2009, at A6.
Obviously, moratoriums of this sort are only stop-gap solutions.
The long-term use of such measures would cripple the war effort.
39 See generally Anthony Cordesman, Qana and the Lessons for Modern War, Center for Strategic and International Studies, July 31, 2006, http://www.csis.org/ media/csis/pubs/060731_qana_commentary.pdf (last visited Feb. 1, 2010).
40 See Chandrasekaran, supra note 34. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
40 See Chandrasekaran, supra note 34.
41 See id; see also Stephen Farrell & Richard A. Oppel, Jr., NATO Strike Magnifies Divide on Afghan War, N.Y. TIMES, Sept. 4, 2009, at A1.
42 See id.
Civilian Casualty JTF 7 This episode demonstrates that altering the rules of engagement is necessary but not sufficient to ensure meaningful change.
Given that civilian casualties will not vanish entirely, what can the military do to prevent otherwise unavoidable civilian losses from dooming its strategic goals? | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The answer appears in the aftermath of Azizabad.
As the bodies of the dead began to fill the local mosque, the Afghan Government, the United Nations and the Afghan Independent Human Rights Commission had each conducted separate investigations of the incident and announced a high—and apparently incorrect— casualty figure. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
These investigations were conducted with extreme haste and may well have been “tainted” by the political and financial interests of the villagers interviewed.43 The first two American investigations represented only slight improvements.
Indeed, the initial American inquiries were insufficiently thorough and rendered conclusions every bit as flawed as those drawn by the others.
The most thorough inquiry, the third and final American investigation, simply arrived too late to pacify the anger of the Afghans. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The United States must transform the way in which it conducts civilian casualty investigations.
This is the reality into which the United States has suffered: “A climate of denials and partial truths, such as occurred in the wake of the [Azizabad] massacre, breeds anxiety and mistrust.”44 This article recommends that the President create a Task Force on Civilian Protection (Task Force) through an executive order. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The Task Force would work with NGOs, the United Nations and the Government of Afghanistan to investigate alleged civilian casualty incidents.
Vesting this responsibility in a single entity would solve a variety of problems.
The military units that executed an attack would not be primarily responsible for any subsequent investigation, reducing the appearance of bias. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Lessons learned from casualty investigations could also be shared among the services more easily, instead of being “stovepiped” within particularly military units or commands.
Specially trained public relations and legal officers would respond to alleged civilian casualties incidents forthrightly and compassionately, minimizing the risk that ineffectual responses would inflame Afghan opinion against the coalition.45 43 See Callan, supra note 3.
44 See Nadery & Humayoon, supra note 6. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
44 See Nadery & Humayoon, supra note 6.
45 A press release issued by the U.S. Army Special Operations Command on 9 May 2007 after airstrikes allegedly killed 21 civilians exemplifies a non-effective response.
The press release failed to mention any civilian casualties, even though military commanders may have known that civilians had died in the attack.
See TROOPS IN CONTACT, supra note 11, at 18-21. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See TROOPS IN CONTACT, supra note 11, at 18-21.
Indeed, the NATO Commander told reporters a few days later that an investigation would uncover the cause of the deaths.
See id.
at 18-19.
The press release omitted entirely any mention of civilian casualties.
See id.
Instead, it should have seized the strategic and moral high-ground by preemptively apologizing for 8 Air Force Law Review Volume 65 A number of other benefits would flow from utilizing the task force model. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
First, creating a task force would signal to Afghans and the world the importance that America places on protecting vulnerable civilians in wartime.
Since the Task Force could be established by executive order, the President could take much of the credit for sending this signal, making this course politically advantageous.46 Second, the task force model is tried and true. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
A presidentially-created Criminal Investigation Task Force (CITF), for instance, has excelled at investigating alleged war crimes against U.S. forces and funneling this information to prosecutors.47 The task force model provides the ideal platform from which to synthesize the work of different military commands, intelligence agencies, criminal investigation agencies, NGOs and foreign governments.
A hallmark of the Task Force on Civilian Protection would be its inclusion of NGOs. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Military and humanitarian actors traditionally operate in separate spheres of a conflict.
This time-honored dichotomy, however, is rapidly evaporating.
In fact, the military and humanitarians48 have come to speak the same language: the language of any collateral damage, even if none had yet been uncovered.
The Task Force proposed here would have issued a statement apologizing for any killed or wounded civilians while promising an investigation. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Recent events show that this practice is not currently followed.
The NATO Press Release which followed the strike on the two fuel trucks, while commendable for its mention of possible civilian casualties, did not issue any sort of preemptive apology or offer assistance to affected Afghans.
See Press Release, International Security Assistance Force, ISAF Air Strike in Kunduz Province (Sept. 5, 2009), available at http://tinyurl.com/NATOrelease. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Worse, in a violation of the governing tactical directive, the local coalition contingent (led by a German unit) did not enter the area to investigate the incident until many hours later—reducing the chance that injured civilians received prompt medical attention and leaving more than enough time for the Taliban to manipulate the evidence, if they chose to do so.
See Chandrasekaran, supra note 34. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See Chandrasekaran, supra note 34.
46 The Task Force could certainly be established by other means, including by order of the commander in Afghanistan, General McChrystal.
This method would have the advantage of making the military—and General McChrystal specifically—responsible for the Task Force while still allowing the President to take credit for its successes and potentially avoid some of the blame for its failures. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
However, an executive order may be more beneficial because it would signal the President’s direct support for the operation, and so increase the likelihood that the Task Force lives up to its mission while attracting coalition partners to contribute to its proper functioning.
47 See Morris Davis, In Defense of Guantanamo Bay, 117 YALE L.J.
POCKET PART 21, 25-6 (2007), available at http://www.yalelawjournal.org/images/pdfs/579.pdf. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
48 As used in this article, the term “humanitarian” generally denotes non-governmental actors who labor to “alleviate human suffering,” namely by providing relief to victims of wars or disasters.
See U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, MARINE CORPS WARFIGHTING PUBLICATION 3-33.5, COUNTERINSURGENCY 2-29 (15 Dec. 2006) [hereinafter COIN FIELD MANUAL], available at http://www.fas.org/irp/doddir/ army/fm3-24.pdf.
But the terms “military” and “humanitarian” should not be considered mutually exclusive. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Indeed, this article attempts to show that the traditional barriers separating the two professions have substantially eroded.
“Humanitarian,” in sum, is used only as a convenient method for describing the vast array of non- Civilian Casualty JTF 9 law.
Sharing a lexicon builds bridges between the two professions and enables them to interact more closely.
Another paradigm shift may also invite closer military-humanitarian cooperation. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
This shift in thinking is titled “lawfare.”49 Lawfare denotes the weaponization of law and the myriad ways in which the law can be used to achieve tactical and strategic objectives in modern conflicts.50 Waging effective lawfare in certain contexts, such as in civilian casualty investigations, calls for the participation of humanitarian organizations. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Involving neutral players in civilian casualty investigations, so long as these organizations are not used simply to whitewash the proceedings, could enhance the credibility of the outcomes.
Additionally, reducing the number of investigations would reduce hardship on Afghans involved in casualty incidents, who would no longer have to be interviewed by multiple organizations or be misled by the results of cursory investigations.
NGOs would also benefit from this arrangement. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
NGOs would also benefit from this arrangement.
By having a seat on the proposed task force, they could directly influence military policy while ensuring that the military more accurately performed casualty investigations.
Despite their frequent disagreements, NGOs and the military share much common ground.
A Task Force on Civilian Protection would provide them with a common platform for cooperation.
Section II of this article discusses in detail the Azizabad strike and its aftermath. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Section III begins by exploring the growing nexus between humanitarians and the military.
It then advances the concept of lawfare as a potential reason to alter the civilian casualty investigation process and to include NGOs in this work.
Section IV makes the case for the Task Force on Civilian Protection. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The argument proceeds from the premise that protecting civilians is “part of the counterinsurgent’s mission, in fact, the most important part.”51 Current casualty investigation procedures fail to achieve this mission.
By working with host governments and humanitarians, the Task Force departs from the go-it-alone unilateralism that too often results in popular distrust of the military by Afghanis.
New procedures would usher in a new era of openness in a traditionally secretive arena. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
These procedures would also comply with emerging international standards for civilian casualty governmental organizations at work in today’s war zones.
As used here, the term by no means implies that the military does not fulfill humanitarian objectives. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
49 See Colonel Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts 6 (Nov. 29, 2001) (unpublished paper presented at Harvard University, Carr Center, Humanitarian Challenges in Military Intervention Workshop), available at http://www.hks.harvard.edu (search for “Dunlap intervention”) (Charles Dunlap was later promoted to the rank of Major General and retired from the Air Force as the Deputy Judge Advocate General in 2010). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
50 See DAVID KENNEDY, OF WAR AND LAW 125-127 (2006).
51 Sarah Sewell, Introduction to THE U.S. ARMY—MARINE CORPS, COUNTERINSURGENCY FIELD MANUAL xxv (Univ.
of Chic.
Press 2007).
10 Air Force Law Review Volume 65 investigations.52 Although the United States is unlikely to regard these standards as binding, complying with them will improve the accuracy of investigations while showcasing a commitment to follow international law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Once implemented, the Task Force’s significance would be more than symbolic.
Winning counterinsurgencies requires winning the support of the people.
Most Afghans likely understand the tragic truth that some innocents will die in war.
But, they are unlikely to understand why the world’s superpower must launch multiple investigations into a single incident of civilian casualties. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
They are just as unlikely to believe the results of these inquiries when their own government, the United Nations, and human rights organizations reach divergent conclusions.
The Azizabad attack sounds a warning call.
No longer can the United States appear indifferent to the needs of the people whose support it needs most. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
A Task Force on Civilian Protection, like any institution, cannot promise perfection—but it would markedly improve on the flawed infrastructure for casualty investigations in place today.
II.
A STORY OF SUFFERING: THE ATTACK ON AZIZABAD It was a deadly déjà vu.
When U.S. military commanders first saw the camera-phone video of those killed at Azizabad, their minds must have flashed back to a similar scene one year earlier. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
A strike in the same province allegedly took the lives of over 20 civilians in April of 2007.53 But this attack was worse.
Televisions worldwide showed the carnage as newspapers described the plight of relatives whose loved ones lay beneath the rubble.
The newspaper headlines alone were sufficient to give headaches to American military commanders and politicians alike.
A headline from the New York Times is representative: “U.S. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Killed 90, Including 60 Children, in Afghan Village, U.N. Finds.”54 The military reacted swiftly.
Even before the video surfaced, the American commander in Afghanistan at the time, General McKiernan, had promulgated restrictions on the use of force.55 After the video made waves, General McKiernan immediately ordered another investigation of the incident.56 U.S. Central Command, which has overall responsibility for the wars in Iraq and Afghanistan, dispatched 52 See infra Section IV.C. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
53 See TROOPS IN CONTACT, supra note 11, at 17-18.
54 See Gall, supra note 2.
55 See Eric Schmitt, 30 Civilians Died in Afghan Raid, U.S. Inquiry Finds, N.Y. TIMES, Oct. 7, 2008, at A1, available at http://www.nytimes.com/2008/10/08/washington/ 08inquiry.html.
56 See Press Release, U.S. Central Command, CENTCOM Commander Directs Review of Investigation (Sept. 7, 2008), available at http://www.centcom.mil/en/press- releases/centcom-commander-directs-review-of-investigation-2.html. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Civilian Casualty JTF 11 Brigadier General Michael W. Callan from the United States to conduct the third American investigation into the Azizabad strike.57 Sending a general officer clearly indicated the military’s interest in obtaining the truth about the civilian deaths and calming the growing angst over the incident.
Yet it was too little, too late.
Before the new investigating officer ever set foot in Afghanistan, it appeared the facts had already gelled in the public consciousness. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The Afghanistan Government had completed two of its own investigations and stood firmly by its conclusion that 90 civilians perished.58 The United Nations reached the same conclusion in a separate investigation.59 United Nations investigators supposedly found “convincing evidence, based on the testimony of eyewitnesses, and others, that some 90 civilians were killed.”60 Piling on the other conclusions, the respected Afghan Independent Human Rights Commission (AIHRC) released its own inquiry into the strike, concluding that 78 civilians perished.61 AIHRC eventually appeared to agree that 90 civilians died.62 The final American investigation did not release its results until October first, over four weeks after the attacks.63 Until then, the United States had conducted two, potentially related investigations asserting that “only 5 to 7 civilians, and 30 to 35 militants, were killed.”64 Military members first investigated the strike while assessing the battle damage immediately after the attack. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Special forces soldiers searched the destroyed houses, but their limited efforts did not disclose the full extent of the civilian toll.65 Days after the strike but before the video of 57 See Press Release, U.S. Central Command, USCENTCOM Names Investigating Officer (Sept. 9, 2008), available at http://www.centcom.mil/en/press-releases/ uscentcom-names-investigating-officer.html. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
58 Associated Press, Karzai: 90 Civilians Died in Azizabad, Sept. 15, 2008, MIL.COM, http://www.military.com/news/article/karzai-90-civilians-died-in-azizabad.html.
59 Press Release, United Nations Assistance Mission in Afghanistan, Special Representative Kai Eide on Civilian Casualties Caused by Military Operations in Shindand (Aug. 26, 2008), available at http://unama.unmissions.org/ Default.aspx?tabid=1762&ctl=Details&mid=1920&ItemID=3108.
60 See id.
61 See Straziuso & Faiez, supra note 5. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
61 See Straziuso & Faiez, supra note 5.
62 See Nadery & Humayoon, supra note 6.
63 See Callan, supra note 3, at 1.
64 See Gall, supra note 2.
I describe the investigations as “potentially related” because the results of the first investigation—a hasty search of houses by American soldiers after the strike—likely supplemented the results of the second. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The first investigation was likely conducted in accordance with routine Battle Damage Assessment procedures which call for examining whether executed attacks achieved their objectives.
65 See id.
It appears that the special forces soldiers who executed the strike and the subsequent building-by-building search had to vacate the village for fear of reprisal or further attack from insurgents.
See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
12 Air Force Law Review Volume 65 civilian casualties appeared, a special forces Army Major visited local graveyards to assess the damage, but did not speak to any villagers.66 General Callan’s subsequent investigation stood on far more thorough fact-finding, including visits to other grave sites, extensive villager testimony, and on-site analysis.67 The final report strongly criticized the evidentiary basis underpinning the investigations done by other entities.68 General Callan decried their failure to perform any forensic analysis, their reliance on “inconsistent villager statements,” and their willingness to trust witnesses who were “tainted” by personal agendas.69 Individual compensation payments of $2,000 given by the Afghan Government, he mentioned, may have inspired villagers to make false claims.70 In the past, such payments were rendered to non- existent people.71 Documents allegedly listing the names of deceased civilians were likewise “invalid due to investigate shortfalls, and Afghan cultural realities such as no recent census, birth/death certificates and inconsistent burial evidence.”72 Working around these pitfalls, General Callan concluded that approximately 33 civilians perished, along with 22 “anti-coalition militants.”73 The mission that led to these civilian deaths began as a routine affair. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Intelligence sources suggested that militants were meeting in Azizabad on the evening of 21 August 2008.74 U.S. and Afghan forces raided the town on that evening in an attempt to apprehend or kill Mullah Sadiq, an insurgent leader slated to attend the gathering.75 Unfortunately, the meeting coincided with a memorial for a beloved tribal figure, Taimoor Shah, who had died months earlier.76 Villagers from across the area had journeyed to Azizabad for the ceremony.77 66 See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
67 See Callan, supra note 3, at 1-4.
68 See id.
at 2.
69 See id.
; see also Alastair Leithead, Afghan Bombing Drives Allies Apart, BBC NEWS, Aug. 27, 2008, available at http://news.bbc.co.uk/2/hi/south_asia/7584464.stm.
It is far from inconceivable that local villagers would purposely mislead investigators in an attempt to inflate the number of civilian casualties.
Such conduct is perhaps especially likely in Azizabad and the surrounding area.
See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See id.
As reported by the BBC, “Shindand is a fiercely tribal area and there have been claims by local people of a large number of civilian casualties in the past which have turned out to be exaggerated.” Id.
70 Associated Press, Afghan Leader: Deadly Raid Strained U.S. Relations, USA TODAY, Sept. 4, 2008, available at http://www.usatoday.com/news/world/2008-09-04-Afghan- raid_N.htm.
71 See id.
72 See id.
at 3.
73 See id.
at 1.
74 See id.
75 See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
at 3.
73 See id.
at 1.
74 See id.
75 See id.
; see also Gall, supra note 2 (mentioning that “Taliban Commander, Mullah Sadiq” was the object of the raid).
76 See Gall, supra note 2.
77 See Associated Press, supra note 58 (“Villagers said families had traveled to Azizabad for the ceremony, one of the reasons so many children were killed.”).
Civilian Casualty JTF 13 Upon entering the village, U.S. and Afghan soldiers came under fire. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Both sides exchanged small-arms fire for some time and U.S. forces eventually called for air support.
An Air Force AC-130H gunship responded.78 The ground commander positively identified militants before clearing the gunship to open fire.
The soldiers on the ground, however, apparently did not know that the militants, in General Callan’s words, had selected “fighting positions in close proximity to civilians.”79 The gunship’s heavy cannons obliterated the target area. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
After the guns fell silent, U.S. forces found evidence indicating that Mullah Sadiq lay among the dead.80 U.S. medics also treated two injured civilians while other soldiers detained five suspected Taliban members.81 General Callan did not find any violations of the Law of Armed Conflict (LOAC).82 The publicly available summary of his report states only that the force used was “necessary and proportional” to meet the threat.83 Since civilians were not purposely targeted, only an attack which “may be expected to cause incidental loss of civilian life . | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
.
.
which would be excessive in relation to the concrete and direct military advantage anticipated” would have violated LOAC.84 Applying this “macabre calculus,”85 General Callan determined that the airstrike did not transgress international law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The Callan investigation concluded by proposing three forward- thinking recommendations to the U.S. Government.86 First, troops should “attempt to comprehensively document casualties” after executing an operation, and relate any relevant “facts and evidence” to 78 See Callan, supra note 3, at 1.
For a description of an AC-130 see AC-130H/U GUNSHIP, United States Air Force, Air Force Link, http://www.af.mil/information/ factsheets/factsheet.asp?fsID=71 (last visited Feb. 1, 2010). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
79 See Callan, supra note 3, at 1.
80 Press Release, U.S. Central Command, Coalition: Aug. 22 Actions in Afghanistan Justified (Sept. 2, 2008) [hereinafter Actions Justified], available at http://www.centcom.mil/en/press-releases/coalition-aug.-22-actions-in-afghanistan- justified.html.
Other evidence suggested that Mullah Sadiq might still be alive.
In particular, someone “claiming to be Mullah Sadiq called Radio Liberty” after the attack asserting that he was unharmed.
See Gall, supra note 2, at 3. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See Gall, supra note 2, at 3.
U.S. commanders called the caller an “imposter,” and reaffirmed their belief that Sadiq met his end at Azizabad.
See id.
81 See Actions Justified, supra note 82.
82 See Callan, supra note 3, at 1 83 See id.
at 5.
84 See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts art.
51(5)(b), June 8, 1977, 1125 U.N.T.S.
3 [hereinafter Additional Protocol I]. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
3 [hereinafter Additional Protocol I].
85 See Mark Benjamin, When is an Accidental Civilian Death Not an Accident?
SALON.COM, July 30, 2007, http://www.salon.com/news/feature/2007/07/30/ collateral_damage/ (last visited Feb. 1, 2010).
86 See Callan, supra note 3, at 5-6. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
86 See Callan, supra note 3, at 5-6.
14 Air Force Law Review Volume 65 the Government of Afghanistan, the United Nations and NGOs.87 U.S. troops should also “coordinate immediate humanitarian assistance” and make “solatia” payments88—discretionary gifts given in sympathy to innocent victims of conflict89—where appropriate. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Second, civilian casualty investigations should be conducted jointly with the Afghan Government.90 As it turned out, Secretary of Defense Robert Gates preempted this recommendation by agreeing on 17 September—some two weeks before General Callan released his report—to establish a “permanent joint investigative group” with Afghanistan to handle civilian casualty incidents.91 General Callan’s final recommendation encouraged military investigators to work with international governmental organizations and NGOs to acquire relevant information.92 These recommendations, however, were released long after the Azizabad attack had done its damage. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
U.S. efforts to control the fallout began weeks earlier.
President Bush, for instance, apologized for the incident to Afghanistan’s President Karzai93 and promised closer military cooperation to better protect innocent Afghans.94 Secretary Gates also participated in these efforts. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Beyond announcing the new joint commission with Afghanistan mentioned above, Gates promised that U.S. forces would apologize for civilian casualty incidents and compensate victims “even before all the facts were known.”95 President Karzai, in contrast, reacted to the Azizabad strike by going on the offensive.96 He condemned the attack and called for drastic measures to prevent future incidents of this sort.
To explore all of his options, he directed Afghan officials to examine the possibility of 87 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
88 See id.
89 See JONATHAN TRACY, COMPENSATING CIVILIAN CASUALTIES: ‘I AM SORRY FOR YOUR LOSS, AND I WISH YOU WELL IN A FREE IRAQ’ (2007), available at http://www.hks.harvard.edu/cchrp/Tracy%20Report%20Nov%203%202008.pdf.
90 See Callan, supra note 3, at 6.
91 See Thom Shanker, Gates Tries to Ease Tension in Afghan Civilian Deaths, N.Y. TIMES, Sept. 17, 2008, at A16, available at http://www.nytimes.com/2008/09/18/ world/asia/18gates.html?_r=1&hp.
92 See Callan, supra note 3, at 6. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
92 See Callan, supra note 3, at 6.
93 See Gall, supra note 2 (noting that President Bush apologized to President Karzai by phone on Wednesday, 3 September 2008).
94 See President George W. Bush, Address at the National Defense University’s Distinguished Lecture Program, Sept. 9, 2008, available at http://www.globalsecurity.org (search for “Bush NDU lecture”).
95 See Shanker, supra note 91. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
95 See Shanker, supra note 91.
96 See Kirk Semple, Official Calls for Sensitivity to Afghan Demands, N.Y. TIMES, Dec. 7, 2008, at A12, available at http://www.nytimes.com/2008/12/08/world/asia/ 08afghan.html?_r=1&ref=world (reporting the remarks of Kai Eide, the UN’s Special Representative for Afghanistan, who stated that the Azizabad attack “‘shook’ Mr. Karzai and helped to focus his concerns more acutely on the problem of civilian casualties and other problems of the foreign military engagement”). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Civilian Casualty JTF 15 banning NATO and U.S. airstrikes in populated areas.97 He also suggested that the two countries update the Status of Forces Agreement between them.98 Karzai traveled to Azizabad, telling the villagers that he strove “day and night to prevent these incidents from happening.”99 According to Karzai, “relation[s] with the foreigners” grew far worse in the aftermath of the Azizabad attack.100 In a globalized world, the effects of Azizabad extended well outside of Afghanistan. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
One notable world reaction occurred in a draft press statement submitted to the Security Council by Russia.101 The draft was not published because it could not have secured the unanimous approval of all fifteen Security Council members, a prerequisite of publication.102 The draft conveyed dismay at the number of civilians killed in Azizabad and stated that member nations “strongly deplore[d] the fact that this is not the first incident of this kind.”103 It further declared “that killing and maiming .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
.
.
civilians” flagrantly violates international law.104 The Azizabad strike carried grave political consequences.105 To many observers, the strike’s aftermath called to mind Israel’s attack on Qana, Lebanon in July of 2006 which took the lives of some 28 civilians.106 As mentioned above, the Azizabad strike shared unwanted similarities with a similar civilian casualty incident in Afghanistan one year earlier.
An association with the Qana attack, however, would inspire an even more unfortunate déjà vu. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The Qana strike seemed to catalyze opposition to the Israeli war effort.107 Azizabad, quite fortunately, did not wreak this level of havoc on U.S. operations in Afghanistan.
Unless the United States enhances its casualty prevention and investigation procedures, future tragedies like the one in Azizabad 97 Associated Press, Afghan Leader: Deadly Raid Strained U.S. Relations, USA TODAY, Sept. 4, 2008, available at http://www.usatoday.com/news/world/2008-09-04- Afghan-raid_N.htm.
98 See id.
99 See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
98 See id.
99 See id.
100 See id.
101 See Fisnik Abrashi, U.N.
Accuses U.S.-led Troops in Afghan Deaths, TIMES ARGUS, Aug. 27, 2008, available at http://www.timesargus.com/apps/pbcs.dll/article?AID=/ 20080827/NEWS01/808270308/1002/NEWS01.
102 See id.
103 See id.
104 See id.
105 See, e.g., Shanker, supra note 91 (noting that “While [the Azizabad attack] is not the first case of such civilian casualties, it has been the focus of Afghan and global outrage”). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
106 For commentary on the Qana incident, see Press Release, Human Rights Watch, Lebanon/Israel: IDF Fails to Explain Qana Bombing (Aug. 2, 2006), available at http://www.hrw.org (search for “Qana bombing”).
107 See David Schenker, Op-ed., Laying Out the Qana Calculation: Disarming Hezbollah Presents More Crises, CHI.
TRIB., Aug. 2, 2006 (predicting that the Qana incident would “prove a pivotal moment in the Hezbollah-Israel war”).
16 Air Force Law Review Volume 65 could threaten even greater harm. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
It will take bold changes to avoid this possibility, and bold leaders to implement these changes.
Before discussing the substance of the changes proposed herein, two background developments must first be explored.
III.
THE DEATH OF THE DICHOTOMY?
THE INCREASING HARMONY BETWEEN MILITARY AND HUMANITARIAN ACTORS Once regarded as enemies, military personnel and humanitarians are increasingly finding common ground.
The increasing interaction between the two organizations promises tremendous benefits. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Specifically, warming civil-military relations enable the creation of the Task Force on Civilian Protection proposed in this article.
A.
The Traditional Dichotomy Between the Military and Humanitarians Customarily, humanitarians and the military have maintained a somewhat chilly relationship.
Fundamentally different goals separated the two professions. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Humanitarians made peace, it was thought, while the military made war.108 The very definition of humanitarian work discloses the differences that separate it from the military.
The military’s new Counterinsurgency Field Manual, for instance, defines humanitarian organizations as those that exist to alleviate human suffering and to achieve a host of other goods, including education and economic development.109 Others define these organizations by what they refrain from doing. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In this view, NGOs “are private, non-profit organizations which attempt to dissociate themselves from governments wherever possible.”110 If humanitarian NGOs dislike associating with the government, they tend to especially detest associating with the military.111 These organizations typically adhere to a code of neutrality as a means of 108 See generally KENNEDY, supra note 50, at 29-33 (discussing the differences between humanitarians and military actors). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
109 See COIN FIELD MANUAL, supra note 48, at 2-29.
110 See Roy L. Allgauer, The U.S. Military and NGO Relationship During Post-Conflict Humanitarian Emergency Operations: How Can the U .S.
Military Improve It?
(May 16, 2006) (unpublished thesis, Naval War College), available at http://www.dtic.mil (search for “Allgauer”). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
111 See Major Kimberly Fields, Civil-Military Relations: A Military Civil Affairs Perspective (relaying the reluctance of some NGOs in Afghanistan to cooperate with the U.S. military), available at http://www.hks.harvard.edu (search for “Kimberly Fields”); see also Edward Walsh, Aid Groups Fear Civilian, Military Lines May Blur, WASH. POST, Apr. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
3, 2002, at A14 (describing the fear of some in the humanitarian community that military members working on humanitarian projects while wearing civilian clothes endangered the safety of humanitarian organizations, whose safety depends on their separation from governments).
Civilian Casualty JTF 17 securing the “impartiality they need to perform humanitarian work.”112 Neutrality, for them, is a type of life insurance policy. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In order to serve the suffering in areas of conflict, humanitarians seek to be considered apolitical actors.113 They care for people, not politics.
Consequently, many NGOs scrupulously avoid even the appearance of cooperation with the military.
Military missions, after all, are executed in support of political goals. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As Clausewitz instructed, war is simply “the continuation of politics by other means.”114 Cooperating too closely with the military might tarnish the impartiality of NGOs, which in turn could lead to a loss of “inviolability”—the ability of humanitarians to administer aid to all without being vulnerable to attack.115 The military has long accepted, and even appreciated, these bifurcated roles. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Military members were content to fight the wars and leave it to NGOs to meet humanitarian needs.116 The belief that the two professions had incompatible purposes prevented close cooperation, even though both organizations commonly work “in the same remote and dangerous locations.”117 Cooperating requires convincing often skeptical NGOs that their needs will be best met by working with the military.118 NGOs may interpret the current security environment as counseling against such cooperation. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Attacks in Afghanistan against humanitarian organizations in the summer months of 2008 reached their highest point since 2002.119 All told, at least 72 aid workers were abducted and 28 others were killed in Afghanistan in the first nine months of 2008 alone.120 Two reasons might suggest that working with the military could decrease NGO security even further.
First, working with military forces places aid workers in close proximity to any attacks against those military units. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Second, associating with the military risks signaling to the population that an NGO is an agent of foreign military forces, which may dampen the willingness of locals to trust NGOs and encourage attacks by militants.
112 See Allgauer, supra note 110, at 2.
113 Kenneth Anderson, Humanitarian Inviolability in Crisis: The Meaning of Impartiality and Neutrality for U.N. and NGO Agencies Following the 2003-2004 Afghanistan and Iraq Conflicts, 17 HARV.
HUM.
RTS.
J.
41, 41 (2004). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
HUM.
RTS.
J.
41, 41 (2004).
114 CARL VON CLAUSEWITZ, ON WAR 119 (J.J. Graham, trans., Anatol Rapoport ed., 1968).
115 See Anderson, supra note 113, at 41-42.
116 See Allgauer, supra note110, at 2.
117 See id.
at ii.
118 See, e.g., Fields, supra note111.
119 See Press Release, Integrated Regional Information Networks, Afghanistan: Attacks Force Aid Agencies to Scale Down Operations (Oct. 16, 2008), available at http://tinyurl.com/Aidattacks.
120 See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
120 See id.
18 Air Force Law Review Volume 65 Humanitarians also tend to believe that they see the world through different eyes than do military members. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
A recent Human Rights Watch report explains these divergent perspectives in the context of evaluating the lawfulness of a military attack.121 “While the military conducts [battle damage] assessments to determine the military success of an operation, Human Rights Watch reviews the same incidents from a humanitarian law perspective.”122 Human Rights Watch’s description suggests a clear delineation in perspective between the military and humanitarians. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Recent developments, however, give ample reason to doubt that such a fine distinction exists.
B. Bridging the Military-Humanitarian Divide The harsh dichotomy between the military and humanitarians may be dying.
Increasingly, a striking coalescence of concerns has begun to unite the military with its humanitarian colleagues.
Two developments have been particularly important. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Two developments have been particularly important.
First, international law has become what can be called the “new English”: a shared language that has the potential to foster closer civil-military cooperation.
Second, in order to deal with militants that do not distinguish between military members and humanitarians, and a military that is increasingly involved in humanitarian-type projects, NGOs simply must work more closely with the military. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
After discussing these changes, two case studies will show that the divide separating the two professions is decreasing as a practical, and not only a theoretical, matter.
1.
Law as a Link Between the Military and Humanitarians No longer do the laws fall silent when the guns sound.123 The hand of law now reaches the very levers of war. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Those opposed to a proposed war denounce it as an illegal transgression of the jus ad bellum—the laws governing the recourse to force.124 Those sickened by the effects of a particular attack condemn it as violating the jus in 121 See TROOPS IN CONTACT, supra note 11, at 9.
122 See id.
123 See, e.g., YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 1 (2004).
Cicero’s maxim, that “‘during war [the] law is silent,’” can no longer be called a maxim. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See Lee Epstein, Daniel E. Ho, Gary King & Jeffrey A. Segal, The Supreme Court During Crisis: How War Affects Only Non-war Cases, 80 N.Y.U.
L. Rev.
1, 3-4 (2005).
Instead, his words encourage us to consider the relative novelty of law’s infusion into the world of war.
124 See generally KENNEDY, supra note 50, at 7-8. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
124 See generally KENNEDY, supra note 50, at 7-8.
Once a war clears these initial legal hurdles, the military will not fire a shot before “‘legally condition[ing] the battlefield’ by informing civilians that [it is] entitled to kill civilians .
.
.
.” Id.
at 8.
Civilian Casualty JTF 19 bello—the laws governing the use of force in war.125 The law reaches further still, infiltrating even the military’s internal decision mechanisms. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Before striking a target, ever-present military lawyers ensure that the proposed attack accords with the applicable LOAC principle.
The infusion of law into war has been a long time in the making. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Individuals like Henri Dunant campaigned valiantly to humanize war.126 The organization that he left behind, the International Committee of the Red Cross (ICRC), now symbolizes the collective movement to protect innocents from the horrors of war.127 The ICRC played a decisive role in the effort to craft a body of law whose name reveals its purpose: International Humanitarian Law (IHL).
Countless other organizations now walk in the trail blazed by the ICRC. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In addition to IHL treaties, NGOs have succeeded in implementing new legal standards and mechanisms of enforcement, such as the Landmines Convention and the International Criminal Court, respectively.128 The attempt to leash the dogs of war with law has, in many ways, been successful.129 As a result of this success, law has “become a vocabulary for judgment, for action, [and] for communication.”130 The enterprise of war, in other words, is now open to influence from those outside of the military and political spheres. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Law serves as the lexicon that allows communication with the military on an unprecedented level.131 “Expert outsiders” like human rights organizations and journalists,132 have “gradually [become] accustomed to using the language of the jurisprudence of war” to achieve their desired aims.133 125 See, e.g., TROOPS IN CONTACT, supra note 11 (asserting that a U.S. airstrike in the Kipisa Province of Afghanistan may have violated the jus in bello by failing to meet the proportionality requirement imposed by that set of laws). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
126 See Francois Bugnion, The International Committee of the Red Cross and the Development of International Humanitarian Law, 5 CHI.
J. INT’L L. 191, 191-93 (2004); see also Leah M. Nicholls, The Humanitarian Monarchy Legislates: The International Committee of the Red Cross and its 161 Rules of Customary International Humanitarian Law, 17 DUKE J. COMP.
& INT’L L. 223, 225-26 (2006).
Yet it was not always humanitarians who led the charge towards greater respect for civilians in war. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
One of the most notable attempts to balance humanitarian and military aims in war, for example, was promulgated by President Lincoln.
See FRANCIS LIEBER, INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD (April 24, 1863), available at http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument.
127 See KENNEDY, supra note 50 at 6.
128 See Dinah PoKempner, Marc Garlasco & Bonnie Docherty, Off Target: A Response to Professor Schmitt, 6 Y.B.
INT’L HUM.
L. 111, 111 (2003). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
INT’L HUM.
L. 111, 111 (2003).
129 See KENNEDY, supra note 50, at 45.
130 Id.
131 See id.
at 10 (“Military and civilian professionals are speaking in the same legal vocabulary.”).
132 See PoKempner et al., supra note 128, at 112.
133 Francoise Bouchet-Saulnier, Introduction to International Humanitarian Law, in CRIMES OF WAR 2.0: WHAT THE PUBLIC SHOULD KNOW (Francis Hodgson trans. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
2007), 20 Air Force Law Review Volume 65 Just as the spread of the English language eases the burdens of communicating across continents, the spread of the legal lexicon enables heightened interaction between co-linguists.
This extending mantle of law offers humanitarians and the military numerous opportunities to cooperate without requiring them always to agree. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Indeed, “[m]ilitary and humanitarian professionals will rarely evaluate the strategic usefulness of sharp and fuzzy distinctions in a given case the same way.”134 At the tactical level of war, civilians may also disagree with the military’s jus in bello calculations in specific attacks.135 As a result of globalization, civilians are more likely than ever to learn about the facts behind individual strikes in once-distant battlefields. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As epitomized by the work of Human Rights Watch,136 civilians now routinely engage in “real-time battle-field reporting and post-battle analysis.”137 The omnipresence of civilians second-guessing wartime acts forces, for better or worse, the military to justify its actions more frequently.
Few aspects of the military’s operation are not on display.
As happened in Azizabad, civilian experts can swarm the scene of an attack soon after the bombs fall. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Video of the attack can appear instantly on televisions worldwide.
Civilians who investigate and comment on military actions often speak in the language of law.138 In fact, ordinary civilians who live within the combat zone can, intentionally or not, use words with strong legal implications that influence the government’s subsequent actions.139 Humanitarians may underestimate the extent to which war is now colored by law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Consider the attempt of Human Rights Watch to explain the differences separating its work from the military’s.
As described above, Human Rights Watch wrote that it reviews a military available at http://www.crimesofwar.org/thebook/intro-ihl.html (discussing specifically the increasing use in the language of war among those observing the conflict in Bosnia).
134 See KENNEDY, supra note 50, at 128.
135 See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
135 See id.
(“As the military assure us the dead civilians were unavoidable collateral damage humanitarians will insist that the death of every civilian is an outrageous violation.”).
136 See, e.g., Human Rights Watch, Our Work, http://www.hrw.org/en/our-work (last visited Mar.
1, 2010).
137 See PoKempner et al., supra note 128, at 112.
138 See TROOPS IN CONTACT, supra note 11. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
End of preview. Expand
in Dataset Viewer.
README.md exists but content is empty.
Use the Edit dataset card button to edit it.
- Downloads last month
- 6