Stephen Goose, director of Human Rights Watch's Arms Division, was instrumental in bringing about the 2008 convention banning cluster munitions, the 1997 treaty banning antipersonnel mines, the 1995 protocol banning blinding lasers, and the 2003 protocol requiring clean-up of explosive remnants of war. He and Human Rights Watch co-founded the International Campaign to Ban Landmines (ICBL), which received the 1997 Nobel Peace Prize. Goose created the ICBL’s Landmine Monitor initiative, the first time that non-governmental organizations around the world have worked together in a sustained and coordinated way to monitor compliance with an international disarmament or humanitarian law treaty. In 2013, he and Human Rights Watch co-founded the Campaign to Stop Killer Robots. Before joining Human Rights Watch in 1993, Goose was a US congressional staffer and a researcher at the Center for Defense Information. He has a master's degree in International Relations from the Johns Hopkins School of Advanced International Studies and a B.A. in History from Vanderbilt University.

Posted: January 1, 1970, 12:00 am

Mr. President,

Stockpile destruction is undoubtedly one of the great success stories of the Mine Ban Treaty. Under the Mine Ban Treaty, a total of 93 States Parties have collectively destroyed more than 55 million antipersonnel landmines from their stocks, including more than 1.4 million mines during 2018.

Currently, just three States Parties have stockpiled antipersonnel mines to destroy. Sri Lanka has committed to destroy its 78,000 stockpiled mines by the end of 2020, while Greece (with 643,000 mines) and Ukraine (with 3.5 million mines) remain in violation of Article 4 after repeatedly failing to complete stockpile destruction by their respective deadlines.

We appreciate the update provided by Greece today and its transparency, but are concerned to learn about the “temporary pause” in the stockpile destruction process. But we are astonished not to hear from Ukraine today. Where is Ukraine? Why is it not here at the Review Conference to explain what it is doing to destroy its stockpiled antipersonnel mines?

As HRH Prince Mired has reminded us, Landmine Monitor estimates that as many as 30 of the 33 states not party to the Mine Ban Treaty stockpile a collective total of approximately 50 million mines today. This provides added impetus for us all to encourage the states to join the Mine Ban Treaty.

Non-state armed groups do not appear to be able to obtain significant numbers of factory-made antipersonnel mines now that production and transfers have largely halted under the Mine Ban Treaty. However, Landmine Monitor has identified several groups in Afghanistan, Iraq, Libya, Myanmar, Nigeria, Pakistan, Syria, Ukraine, and Yemen that possess antipersonnel mines, mostly improvised from locally-available components. Use of these improvised antipersonnel mines in recent years has led to a sharp increase in the number of mine casualties globally.

But it’s not all bad news. The Polisario Front in Western Sahara this year completed the destruction of more than 20,000 antipersonnel mines, ending a process that has been underway since 2006.

Lastly, we wish to address an outstanding issue of concern for the International Campaign to Ban Landmines. A total of 71 States Parties have retained antipersonnel mines for training and research in detection and clearance techniques. Leading this list are Bangladesh, Finland, and Sri Lanka, which between them collectively possess nearly 50,000 retained antipersonnel mines.

We commend Botswana, Thailand and Chile for their decisions this year to destroy the stockpiled antipersonnel mines that were originally retained for research and training. They show us how it is not essential to use live mines for these purposes. And thank you to Indonesia for submitting the transparency report for the Mine Ban Treaty, detailing the status of the mines retained for training. We encourage all states with overdue transparency reports to turn them in, especially those who are retaining mines for research and training purposes. 

Cyprus, Nigeria, Senegal, and a few other states parties with mines retained under Article 3 have never used any for the permitted purposes and are, in effect, violating the nature of this exception, as they essentially are stockpiling the mines. States Parties should treat this as a compliance issue, including the involvement of the Committee on Cooperative Compliance.  

Posted: January 1, 1970, 12:00 am
Video

Chile: Reform Police in the Wake of Protests

Excessive Force against Demonstrators, Abuses in Detention

(Santiago) – Chile’s national police, Carabineros, committed serious human rights violations, including excessive use of force in the streets and abuses in detention, after thousands of Chileans took to the streets on and in the weeks following October 18, 2019, Human Rights Watch said today.

Human Rights Watch met with President Sebastián Piñera on November 26 and recommended a series of reforms directed to help prevent police misconduct and strengthen oversight in the wake of compelling evidence of excessive use of force and abuses against demonstrators and bystanders. From the beginning of the demonstrations through November 21, the National Human Rights Institute filed 442 criminal complaints on behalf of victims with prosecutors, regarding injuries, cruel treatment, torture, rape, killings, and attempted killings allegedly committed by security forces.

“There are hundreds of worrying reports of excessive force on the streets and abuse of detainees, including brutal beatings and sexual abuse, that should be promptly and thoroughly investigated to ensure victims’ access to justice,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Issues such as the indiscriminate and improper use of riot guns and shotguns, abuse of detainees in custody, and poor internal accountability systems gave rise to serious violations of the rights of many Chileans. This is precisely why police reforms are urgently needed.”

The protests began over an increase in the price of public transportation and have continued for over a month. The demonstrations broadened to reflect anger over serious deficiencies in the provision of social services and economic inequality.

On October 18, Piñera declared a state of emergency in several locations, deploying the military to enforce it. The state of emergency, which included measures restricting freedom of movement such as curfews, was lifted on October 28. The national police responded to massive protests across Chile. While most demonstrators were peaceful, some groups engaged in violent acts, including attacking police officers and police stations with rocks and Molotov cocktails, looting, and burning public and private property. On November 21, the police command said that more than 1,896 officers were injured from October 18 to November 20, about 127 of them seriously.

Human Rights Watch interviewed more than 70 people in Santiago and Valparaíso in November. Some were victims who had been injured by pellets fired from shotguns or direct hits from teargas cartridges fired from riot guns; others alleged to have suffered police abuse in the streets or police stations. Human Rights Watch also interviewed police officers, some of whom had been injured by demonstrators, doctors, lawyers, academics, representatives of civil society, and government officials, including the Supreme Court president, the attorney general, the chief public defender, the police general director, and the foreign affairs, interior, defense, and justice ministers.

Human Rights Watch found compelling evidence that police used excessive force to respond to protests, injuring thousands of people, whether they were engaged in violent actions or not. The country’s emergency services treated 11,564 people injured during the demonstrations from October 18 to November 22, the Health Ministry told Human Rights Watch. Of those, more than 1,100 had moderate or serious injuries.

The use of shotguns that scatter pellets indiscriminately over a wide area with the potential to harm anyone in their path is of particular concern, Human Rights Watch said. The pellet shotguns were the main cause of the more than 220 eye injuries documented by the National Human Rights Institute, an official and independent body. On November 17, the Health Ministry reported that 16 lost eyesight in one eye and 34 had severe eye injuries that could result in partial or total eyesight loss, with their recovery depending on an assessment in the next three months.

On November 19, the police temporarily suspended the use of the pellet shotguns for crowd control at protests while external experts evaluate the composition of pellets. Given their inherently inaccurate nature, indiscriminate impact, and evidence of the serious injuries they have caused, their use should be suspended indefinitely in all circumstances until competent and independent authorities conduct a proper examination of their risks, Human Rights Watch said.

Police also brutally beat protesters, shot bean bag rounds and teargas cartridges directly at them, and ran over some with official vehicles or motorcycles.

The Attorney General’s Office is investigating 26 deaths. Among them are a demonstrator who died after an alleged police beating on the street, three protesters allegedly fatally shot by military forces using live ammunition, and one who was run over by a Navy vehicle, according to information from the Attorney General’s Office.

Medical personnel said that one demonstrator with a heart problem died when he did not receive proper emergency care, because police were using weapons against protesters and medical personnel. The Attorney General’s Office is also investigating the deaths of two men in police custody, which it is currently treating as suicides.

Human Rights Watch learned that at least another 18 people died in fires during looting, were run over by private cars during demonstrations, or died for other reasons without evidence, so far, that government agents played a role.

The police detained more than 15,000 people and ill-treated some of them.

Of 442 criminal complaints filed by the National Human Rights Institute on behalf of victims of abuse, 341 refer to allegations of torture and inhumane treatment and 74 of sexual abuse. Many detainees allege they were brutally beaten by police. Another of the most common allegations was that police forced detainees, including children, to undress and squat fully naked in police stations, a practice banned by police protocols in March 2019 but that still occurs, including before the protests.

The police appear to be more likely to force women and girls to strip than men, based on data that the National Human Rights Institute collected and interviews Human Rights Watch conducted. A Chilean human rights lawyer told Human Rights Watch of a case in which men and women were detained in the same circumstances, but only women were forced to undress, and cases of police touching women’s genitalia after they were forced to strip.

The Attorney General’s Office has opened preliminary investigations into alleged abuses against 2,278 people, in which 203 members of security forces are allegedly implicated, including 173 police officers. Only 9 – 4 police and 5 members of the Armed Forces – have been “formalized,” meaning that their cases moved to the next investigation phase.

Before the protests, the government adopted a protocol on the use of force and promoted it. During the protests, according to information provided by the government to Human Rights Watch, it took other measures, such as requesting security forces to implement the protocol and the deployment of 250 human rights police instructors to units engaged in crowd control operations.

The abuses in detention and the serious injuries suffered by hundreds of protesters were facilitated by structural failures of oversight and accountability that predate the current wave of demonstrations, Human Rights Watch said.

For detailed recommended reforms and further information on the Human Rights Watch findings, please see below.

Recommended Reforms

  • Review police powers of detention during identity controls to ensure safeguards against arbitrary use of stop and detain powers and accountability for their use;
  • Ensure accountability for police abuses and misuse of less-lethal equipment;
  • Reform the police disciplinary system to ensure that disciplinary decisions are made by an independent decision maker not in the affected person’s direct chain of command, and ensure that staff working for internal affairs do not need to work alongside or come under the command of those they have investigated or disciplined;
  • Enact a protocol jointly with health authorities to ensure detainees are entitled to and undergo thorough independent forensic exams not in front of and out of earshot of police;
  • Enforce the existing ban on strip searching of people detained during protests (requiring them to fully undress) and punishing officers who continue that practice;
  • Install cameras in all areas within all police stations with safeguards to ensure detainee privacy, and a system to retain recordings for use by judicial and other authorities;
  • Suspend all use of pellet shotguns – not just at protests – until a proper examination of their risks is conducted by competent and independent authorities;
  • Study the use of alternative less-lethal equipment that minimizes injuries;
  • Strengthen training on less-lethal equipment and crowd control for all police, including but not limited to special forces; and
  • Ensure that police have adequate protection equipment, time off, and overtime pay.

In addition, the Attorney General’s Office and the Public Defender’s Office should closely and regularly monitor the work of the police, including by instructing judicial officials to frequently inspect police stations and interview detainees there.

Indiscriminate and Improper Use of Shotguns

Since October 18, pellet ammunitions fired in the context of anti-government protests injured at least 1,015 people in the lower and the upper body, according to the National Institute of Human Rights.

The most serious injuries include ocular lesions. At Del Salvador Hospital, where the vast majority have been treated, 77 percent of eye injuries were caused by pellets as of November 19, the Health Ministry told Human Rights Watch. Teargas cartridges caused the second most injuries.

  • Marlene Morales Canales, 33, approached a crowd near her home in Santiago on October 19 with her 14-year-old daughter, she told Human Rights Watch. She saw the police about 20 meters away, heard gunshots, and felt a pellet bursting her right eye. “I lost my eyesight immediately, and there was a lot of blood,” she said. After the gunshots, the police also started shooting teargas. Doctors told her she will never recover sight in her right eye.

Marlene Morales on November 15. 

© 2019 César Muñoz Acebes

Some of those injured were wounded by multiple pellets, suggesting they were shot at from a closer range, given that pellets scatter over a distance.

  • Ronald Barrales, 36, was participating in a demonstration in downtown Santiago on November 11 when people in front of a police truck started throwing rocks at it, he said. He was trying to walk past, when a police officer opened the passenger door, pointed a shotgun at him from eight meters away, fired, and hit him in the belly, chest, and left eye with pellets. Doctors told him he will never recover sight in that eye.

Ronald Barrales as he arrived at the Santa Maria Hospital on November 11. On the right, an X-ray showing the pellet that hit him in the eye as a round bright object. 

© 2019 Courtesy of Ronald Barrales
  • On October 29, police injured Jorge Ortiz, the Finance Unit director at the National Human Rights Institute, while he was monitoring protests in La Alameda. Ortiz was wearing a yellow jacket and helmet, widely recognized in Chile as gear used by the Institute’s team. He sustained six pellet wounds on his back, buttocks, and the back of his left leg as he was running from the police, who were shooting toward an area with demonstrators located close to the Institute’s team, Ortiz said.

Jorge Ortiz was hit by six pellets from behind despite wearing the Institute’s team widely recognized yellow jacket and helmet. 

© 2019 Courtesy of Jorge Ortiz
  • The police entered the Liceo 7 school in Santiago on November 5 after the students voted to join the demonstrations. Two girls were injured, including one who was hit with more than 10 pellets, the Children’s Ombudsperson Office (Defensoria de la Niñez) said. Prosecutors have charged a police major with inhuman treatment in this case.
  • A 16-year-old boy was looking out to the street from the hall of his apartment building with some friends in Santiago on October 19 when police officers entered and shot at him as he ran to his apartment, according to the Children’s Ombudsperson Office and the National Human Rights Institute. They hit him with at least 10 pellets in the back and ribs.

General Mario Rozas, the top police commander, said on November 13 that the police use 12mm shotguns that fire cartridges containing 12 8mm pellets, and that they are permitted to open fire “when their lives are at risk or a civilian is in danger.” Police have used them in response to attacks by demonstrators with rocks or other projectiles, police officers and witnesses said. To be authorized to fire the gun, police must undergo a two-week training course and renew their certification every year.

While initially concentrated within a small radius as they are fired, the pellets contained in the cartridges expand away from each other, to create a constellation of projectiles that can reach several decimeters in radius within a few meters of being fired.

A review published in the British Medical Journal of studies examining the use of similar types of less-lethal weapons in six regions between 1990 and 2017 documented injuries to 1,984 people with these weapons, 53 of whom died as a result. Among those injured, 71 percent had injuries that were considered severe and 300 people suffered life-long disabilities. Out of those, 84 percent had permanent eye damage.

A 2012 internal report by the Chilean police made public on November 21 by local media outlets concluded that people hit by pellets from these shotguns at a distance of 25 meters or less could suffer serious injuries and even death. Even at 30 meters the pellets could cause injuries that would result in eye loss, the report warned.

Police officers told Human Rights Watch that they are instructed to use the shotgun at a minimum distance of 30 meters and aim between the knee and the ankle, to avoid hitting vital parts of the upper body. But beyond 45 meters, they shoot straight to make sure the pellets reach rioters, said a captain of the Special Operations Group (GOPE), the elite force. Shotguns, however, do not have a scope, and therefore each officer has to roughly estimate the safe distance to fire in the midst of what are often stressful and chaotic circumstances.

Police authorities admit there is “high risk” involved in using such an imprecise weapon. “It’s not a weapon to aim,” General Rozas said. General Jorge Ávila, in charge of public order, said that, “the shooter does not control the trajectory of the pellets.” Because of the complex physical and environmental dynamics that affect the trajectory of the pellets, even when police shoot toward the lower extremities it is almost impossible to ensure that pellets do not hit the upper body, increasing the risk of grave or possibly lethal injuries.

An open cartridge and 8 mm. pellets.

© 2019 César Muñoz Acebes

Police commanders do not seem to have conveyed that risk to the rank and file, however. Human Rights Watch interviewed three officers who minimized the possible harm of the pellets. A captain said, “it’s very hard for a pellet to go through cloth, even if shot very near,” and a corporal said it was “impossible [for pellets] to cause serious eye injury.”

The University of Chile’s Mechanical Engineering Faculty published a report on November 18 that found that pellets were 80 percent silica, barium sulphite, and lead, and only 20 percent rubber. On a scale of rigidity, they are as hard as a shopping cart’s wheel. Another study by medical experts at the Carlos Van Buren hospital reached similar conclusions after analyzing pellets they removed from patients.

On November 19, after the university report was released, the police suspended their use of these shotguns when responding to protests pending an external analysis of their composition. They stated they may only be used “as an extreme measure and exclusively in self-defense, when there is an imminent risk of death.” However, even in those extreme circumstances, because of the imprecise nature of the shotguns, the police cannot ensure they hit only the intended target.

A police captain holds a teargas gun. A pellet shotgun hangs on his right side. 

© 2019 César Muñoz Acebes

Other Injuries Caused by Police

The police also need special training and a yearly certification to use the 37mm riot gun that launches teargas cartridges. They are instructed to fire toward the sky, to slow down the heavy projectile’s trajectory in a downward arc meant to land on the ground, behind the crowd, a GOPE captain said. However, there have been credible allegations that police officers shot teargas projectiles straight into the crowd, which can be lethal.

  • Juan Gabriel García Barco, 25, passed through a demonstration in downtown Santiago on November 11 as he was walking home. He passed a bridge where demonstrators were throwing stones at police vehicles blocking the way, when he was hit in the face with a projectile. He felt pain and had blood running down his face. He believes that it was a teargas cartridge, as he saw a police officer stick what he thinks was teargas riot gun out of one of the vehicles and heard a loud noise directly before he was hit. He also smelled teargas after being hit, he said. A witness said he saw police aiming at García Barco from a distance of roughly 5 meters. García Barco had no sight in his left eye when Human Rights Watch interviewed him three days later.

Juan Gabriel García Barco at the Santa María Hospital in Santiago on November 14. 

© 2019 César Muñoz Acebes
  • Claudio Inda, 26, was standing in front of a bus close to Congress in Valparaíso during a demonstration on November 21, Inda’s partner told Human Rights Watch. When the bus drove away, he saw police on the other side of the street. The police shot a teargas cartridge directly towards where Inda was standing. Human Rights Watch reviewed a video filmed by a bystander showing the incident, which Inda said was filmed at the time. Doctors treating Inda at the Van Buren Hospital told Human Rights Watch that the cartridge broke his jaw.

Image of Inda’s broken right jaw taken at the Carlos Van Buren Hospital in Valparaíso. November 21, 2019. 

 
The police appear to have also used bean bag rounds fired from riot guns against protesters. A bean bag round consists of a small fabric pillow filled with lead pellets. They are meant to be fired at extremities to reduce injuries, but there has been at least one case in which someone hit by these rounds during a demonstration was seriously injured.
  • On October 28, a doctor at the Public Emergency Care Hospital (also known as Posta Central) in Santiago operated on a patient who arrived with one of these rounds inside his skull. The doctor said the round had fractured the patient’s skull, and such an injury posed a “serious risk” to the patient’s life. Possible consequences of this trauma must continue to be assessed for a year, he said. 

X ray of a patient hit by a bean bag round and images of the round extracted from patient’s skull on October 28, 2019. 

© 2019 Courtesy of Doctor Fernando Fu Padgett

There have also been several reported cases of police hitting demonstrators with their vehicles or motorcycles.

  • On November 14, Agustin Gómez Pérez, 19, and his brother were heading to Viña del Mar to take photographs of a demonstration, when the police tried to arrest him near a metro station in Valparaíso. Gómez Pérez tried to escape, but several officers intercepted him with their motorcycles. He was run over by a police motorcycle, as can be seen in a video Human Rights Watch reviewed. The victim was admitted at Gustavo Fricke Hospital, where he was diagnosed with abdomen trauma, according to the National Human Rights Institute.

Broad Powers of Detention

Under Chilean law, in addition to detaining people caught in flagrante committing a crime or against whom there is an arrest warrant, the police have other legal basis on which to detain people, including:

  • Preventive Identity Controls: Article 12 of Law 20.931, adopted in 2016, allows police to verify the identity of any person over age 18 who is on the streets, in public spaces, or in private spaces with public access, such as a mall. Police may detain people for up to an hour to verify their identity.
  • Investigative Identity Controls: Article 85 of the Criminal Procedures Code grants the police power to detain people if there is an “indication” they may have committed or attempted to commit a crime or infraction, were about to commit one, could provide useful information to investigators about such offenses, or had hidden their face or identity. Police may register the person, clothes, baggage, or vehicle, and demand proper identification. The police have up to 8 hours to complete the identification process.

Under both provisions, the detained person must be released unless the police find they tried to hide their identity or provide a false one, or if there is evidence they committed a crime.

In the absence of rigorous monitoring of when and how these powers are invoked, this system risks facilitating discriminatory and abusive arrests. People detained for up to eight hours for identity checks are registered but not designated as “detainees,” a police station commander said. Human Rights Watch requested information to high level judicial authorities regarding how many people the police had arrested to check their identity in the context of the demonstrations. Such information is not available.

In cases in which the police intend to formally arrest a person, they have to communicate with prosecutors within 12 hours of arrest. Prosecutors then decide if the detainee should be released unconditionally, released pending a hearing set for a later date, or detained until they are brought before a judge within 24 hours of arrest. Police typically communicate with prosecutors about such cases on the phone or electronically, meaning that prosecutors do not see such detainees in person, according to public defenders interviewed by Human Rights Watch.

According to official data shared by Carabineros with a local media outlet and reviewed by Human Rights Watch, police carried out over 3.1 million identity controls in 2017 and 4.8 million in 2018. In both years, about 90 percent were considered preventive identity controls. Only 182,000 people were detained after these arrests.

Under Chilean law, prosecutors can investigate crimes, including those committed by police, by their own initiative or if someone files a complaint. However, in practice, they do not ordinarily visit police stations to examine detention conditions or the police detention and identity-check registries, the Public Defenders’ Office said.

Based on National Institute of Human Rights documentation, at least 6,972 people were formally detained in police stations in the context of the demonstrations between October 17 and November 21.

The actual number of people deprived of liberty in the context of demonstrations is, however, much higher. According to official data provided to Human Rights Watch, the police detained more than 15,000 people from October 18 to November 19, and “held” an additional 2,000 for violating the curfew during the state of emergency.

Chile’s chief public defender told Human Rights Watch that police do not have the power to detain someone for breaking a curfew and can only issue a fine. Therefore, he said, this suggests that those held by police only because they had breached the curfew may have been victims of arbitrary arrests. There is some room for interpretation under Chilean law regarding the power to hold someone who broke the curfew until the curfew ends, but several jurists told Human Rights Watch that police cannot sanction people with detention for breaking the curfew.

  • Xiomara Aguilar, 18, was on her way home with a friend in Santiago when they were detained five minutes after the curfew started at 7 p.m., she said. Police bent their arms hard, pulled their hair, and took them to the police criminal lab, she said. They spent five hours sitting in a corridor there, handcuffed. At midnight, they were transferred to a police station, where police made them undress and squat fully naked. Police kept them in a cell without water or food until 6 a.m., when the curfew ended.

Under Chilean law, detainees facing charges must be brought before a judge to assess the legality of their detention within 24 hours of arrest. The Public Defender’s Office said that in the first week of the demonstrations at such hearings nationwide, the number of detentions declared unlawful almost quadrupled—increasing from 2 percent of all detention to 7.6 percent—because there was no evidence that the detainee had committed a crime and, in some cases, because the detainee had been mistreated by the police. Since October 29, that number has decreased, but judges are still finding twice as many illegal detentions as in the months preceding the protests—4.5 percent since October 29, as compared to 2 percent previously.

Mistreatment, Sexual Abuse, and Torture in Detention

From the beginning of the demonstrations through November 21, the National Human Rights Institute filed 442 criminal complaints on behalf of victims with prosecutors alleging police-inflicted injuries, cruel treatment, torture, sexual violence, attempted killings, and killings.

The National Human Rights Institute has filed 341 complaints that refer to allegations of torture and inhumane treatment and 74 of sexual abuse since the protests began. One of the most common complaints was that detainees, including children, were forced to undress and squat naked in police stations. Police protocols explicitly ban that practice, without any exceptions. Yet, several officers said it is allowed when there is suspicion that the detainee may have drugs or a weapon hidden in body cavities.

In reality, the police have ordered people to undress in a context that did not reflect even an erroneous belief that the detainee was seeking to smuggle contraband into detention, suggesting that they discriminated against women and girls. Officers are more likely to force women and girls to strip than men, according to the data from the Institute. A Chilean human rights lawyer described a case in which men and women were detained in the same circumstances, but only women were ordered to undress, and cases in which officers touched women’s genitalia after making them strip. The Institute also documented cases of threats of rape and rapes of four men.

Chile’s Children’s Ombudsperson Office has collected information about 327 cases of possible violations of children’s rights during the demonstrations between October 18 and November 15. Of those, 118 are cases of physical injuries associated with beatings, and 54 are cases of injuries by pellets and bullets.

  • Claudio Muñoz, 18, said that two people dressed as civilians detained him and beat him as he was running away after throwing a rock at a police truck in Santiago on October 20. They handed him over to the police, who also beat him and took him to a nearby station. Inside, more than 10 officers kicked and punched him, and hit him with a police baton. The police later took him to a bigger police station, where he was again beaten twice. Police made him and three other detainees, including a 14-year-old boy, strip naked and squat, Muñoz said.

Claudio Muñoz on October 21, the day of his release from detention. 

© 2019 Courtesy of Claudio Muñoz

He was taken to a 3x3 meter cell where there were 14 men. Muñoz’s mother, who saw him briefly at the police station, noticed lacerations, a bloody mouth and ear, and bumps in the head, she said. At around midnight, a guard hosed Muñoz and the others in the cell with cold water through the bars, he said. At around 2 a.m., police placed another 15 men in his cell. It was so crammed they had to lean on one another while standing, Muñoz said. The police released him 18 hours after his arrest, without taking him before a judge.

  • Josué Maureira, 21, went into a looted supermarket in Santiago on October 21 after curfew, believing he heard a woman asking for help, he said. The police found him and beat him there, in their vehicle, and in the police station, he said. “They forced me to shout out loud ‘I am a fag,’” said Maureira, who had painted nails and wore tight pants.

A group of five police officers raped him with a police baton and then placed him in a cell, Maureira said. In the morning, the police forced him to sign an already typed confession in which he admitted to looting, he said. Maureira said he was never informed of his rights, and that he asked for a lawyer, but was not given one, or allowed to contact one.

At his hearing, the public defender raised the allegation that Maureira had been mistreated and the prosecutor set a later date for an interview with him on that matter. The judge ordered his pretrial detention. Maureira told the doctor at the jail that he had been tortured, but he only gave him some painkillers, he said. Maureira was released on October 25 after the National Human Rights Institute appealed the detention order. He had a medical exam that day that, according to his lawyer, documented that he had anal and other injuries.

  • On October 21, navy officers detained Juana Molina (pseudonym), 39, near a supermarket in Valparaíso that had recently been looted, together with 11 others who were in the area, according to testimony gathered by the legal clinic at Valparaíso University’s Law School. The officers pulled Molina’s hair, threw her to the ground, and beat her with their guns on her back. They ordered her to “walk like a dog” while pointing their guns at her until she got to a part of the street where water was running – there, the officers told her to crawl “like a snail.”

They later took her into the supermarket that had been looted, where the officers forced her onto the floor, which was littered with broken glass, and stepped on her head and feet. The officers were not wearing name tags and had their faces covered, she told lawyers from the legal clinic. She was later taken to a police station, where she was not allowed to speak with her family or a lawyer, and the police forced her to sign a document that she said she could not read carefully stating she had “no injuries.” During her detention that night with other women, officers woke them up twice, and refused to let them go to the bathroom. On October 22, she was charged with theft and released under investigation and on condition that she does not get close to the supermarket.

  • On October 18, police detained Jaime Guevara (pseudonym), 17, near the metro station Elisa Correa in Santiago. He told Human Rights Watch he was detained by a police officer as he was running away after the police attempted to disperse a peaceful demonstration. An officer that did not have a name tag on him handcuffed one of his hands to his motorcycle, resulting in a burn on his hand, and drove away, forcing Guevara to run after the motorcycle. Guevara said he was held with another 17-year-old boy and that during their detention, which lasted all night, officers forced them to strip and squat, and brutally beat and kicked them. The officers also banged the other boy’s head against the wall, Guevara said.

Inconsistent use of cameras in police stations and not saving recordings create obstacles to investigating police station abuses. Only about half of police stations in the country have cameras, said Colonel Karina Soza, the police human rights director. At a station in Santiago supposedly covered by cameras “everywhere,” as an officer put it, Human Rights Watch found a large blind spot in the holding cells area. In addition, there is no centralized archive of images recorded by the cameras. At another station in Santiago, the major in charge said that the footage was automatically erased after seven days due to lack of local storage capacity.

As in Molina’s case, several people who said they had suffered abuse in detention stated that the police were not wearing their name tags. Colonel Soza said that some officers wear new vests without fasteners for the names.

The conditions in which injured detainees receive medical exams is another concern. Police said that the law requires them to ask detainees if they have injuries and take those who say yes to nearby medical centers. There, doctors are supposed to make an independent assessment of the injuries in a report that can be used in judicial proceedings. However, police acknowledged that the exams are often performed in cubicles without the necessary privacy. In addition, the police admitted that sometimes the same officer who makes the arrest – and could have mistreated the detainee – takes them to the medical center for the exam.

Muñoz said a police officer was standing outside the examination cubicle, within earshot. Maureira said that a doctor examined him while he was handcuffed and an officer kept him in a chokehold. And Guevara said a policeman was standing beside him the entire time. At the Posta Central hospital, the largest medical center near the biggest demonstrations in Santiago, medical personnel said that the police often try to observe the forensic exams and resist when a doctor tells them to move away.

Inadequate Internal Accountability

The police have internal disciplinary proceedings to punish officers who commit abuses with administrative sanctions, including expulsion from the force, but the system lacks independence and transparency.

Allegations of irregularities are investigated by an internal affairs department made up of about 400 staff, the comptroller general in charge of the system said. However, investigators from internal affairs can be transferred to other sections of the police force and end up working alongside the officers they previously investigated, or even work under their command. Once an irregularity has been investigated, the results are sent to “administrative prosecutor’s offices,” which are headed by colonels. These colonels are not necessarily trained as lawyers, the comptroller said. They typically work in that position for three to five years, and are then transferred to other roles within the police force. Colonels make a recommendation for disciplinary action, but the final decision comes from the immediate superior of the officer being investigated.

The Chilean government told Human Rights Watch that as of November 19, there were 273 administrative cases open against police officers for incidents related to the protests, and an additional 73 cases under preliminary investigation. Human Rights Watch could not find publicly available information about these or other internal affairs investigations and their result.

Exhausting Working Conditions for Police and Violence by Rioters

The wave of demonstrations has forced many police to work shifts that are much longer than usual – up to 16 hours a day instead of 8 – and without days off or overtime pay, police commanders said.

The police’s leadership mobilized 20,000 of the 60,000 officers to respond to demonstrations nationwide, General Rozas said. Of those, only 1,400 are members of “special forces,” the unit trained in crowd control. But given the scale of demonstrations, the leadership mobilized even officers who do administrative work, after just a day of training, several police officers said.

On the streets, the police encountered tens of thousands of peaceful demonstrators, but also groups of violent rioters. From October 18 to November 22, 1,896 officers were injured in the context of the demonstrations, according to police leadership. Official data indicates that 127 suffered serious injuries, including 5 officers who had partial or total eyesight loss. At least 2 were burned by Molotov cocktails, and others had broken bones, Alberto Naranjo, a medical doctor and the chief of emergency care at the police hospital in Santiago said.

  • Lieutenant Leandro Veloso Soto, 33, said he was in a group of about eight officers using a megaphone to tell 200 demonstrators to clear the streets of Paine on November 12, when demonstrators started throwing stones at them. Veloso, who was not wearing his visor because not enough were available, heard gunshots and then felt a hit on his right eye. Doctors told him that a projectile had ruptured the veins inside his eye, and he may recover eyesight only partially.

Standards on Use of Force

Chile is a party to the Inter-American Convention on Human Rights and has both substantive obligations to respect rights including to life (article 4), to bodily integrity and freedom from torture, inhuman and degrading treatment (article 5), and to liberty (article 7), as well as procedural obligations to investigate and punish violations of those rights. Strictly observing international standards on use of force is an essential element of respecting the rights to life and bodily integrity.

A police protocol on the use of force (Circular 1.832) requires that its deployment be proportional to the threat posed by an individual or a group, or the offense about to be committed.

These standards are consistent with the United Nation’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF), which require law enforcement officials, in carrying out their duty, to resort to non-violent means and de-escalation as much as possible before resorting to the use of firearms. Whenever the use of firearms is unavoidable, law enforcement officials should use restraint and act in proportion to the severity of the risk faced. They should prioritize the use of less-lethal equipment to ensure that the legitimate objective be achieved with minimal damage and injury, and the preservation of human life respected. The deliberate use of lethal force is permissible only when it is strictly necessary to protect life.

Although teargas is normally not a lethal weapon, it can cause serious medical problems for people exposed to it, even when it is used with restraint. As a riot control method, teargas should only be used where necessary as a proportionate response to quell violence. It should not be used in a confined space, and cartridges should not be fired directly at any individual, and never at close range. Security forces should issue warnings before firing.

BPUFF require authorities to promptly report on and investigate all incidents of law enforcement officials killing or injuring people with firearms through an independent administrative or prosecutorial process.

Posted: January 1, 1970, 12:00 am

Summary

Most antipersonnel landmines possessed by states that joined the Mine Ban Treaty were swiftly destroyed by the time the treaty entered into force on 1 March 1999. In the 20 years since, there has been steady progress to destroy remaining stocks, resulting in the destruction of more than 55 million antipersonnel landmines by 92 States Parties. The vast majority of those stockpiled antipersonnel mines were destroyed within the treaty’s four-year deadline. This was facilitated by the treaty’s unique cooperative compliance provisions and mechanisms, as well as by its community of supporters. However, the impressive compliance record by most States Parties was unfortunately not met by all as a handful missed deadlines, some significantly, in completing their stockpile destruction obligations. Two states remain in serious violation of the treaty’s stockpile destruction obligation.1

Introduction

The Mine Ban Treaty comprises an unprecedented combination of disarmament provisions and humanitarian goals. The comprehensive prohibitions on antipersonnel landmines stigmatize these explosive weapons, which are detonated by the presence, proximity, or contact of a person. The treaty contains firm deadlines requiring clearance of mined areas within 10 years, while states “in a position to do so” are obliged to provide assistance to landmine victims.

The treaty’s requirement that States Parties destroy their stockpiled antipersonnel mines within four years is one of the most visible examples of how the treaty is helping to eradicate these weapons.

This chapter looks at how landmines were once manufactured and transferred around the world, creating massive stockpiles that were used to the detriment of human lives and limbs. It reviews the largely successful implementation of the Mine Ban Treaty’s stockpile destruction obligations over the past two decades despite some serious challenges. The chapter considers how the treaty’s unique set of compliance provisions and mechanisms as well as its community of practice have helped states avoid and resolve stockpile destruction issues. Finally, the chapter provides some lessons learned.

Unless noted, all facts and figures contained in this chapter come from the Landmine Monitor reporting initiative by the International Campaign to Ban Landmines (ICBL), which has closely tracked and reported on stockpiling and destruction of antipersonnel mines since 1999.2 Human Rights Watch provides research and editing for this civil society-based verification initiative to systematically monitor a major multilateral disarmament and international humanitarian law agreement.3

Landmine Stockpiles

In their seminal 1993 report Landmines: A Deadly Legacy, ICBL co-founders Human Rights Watch and Physicians for Human Rights described landmines as “weapons of mass destruction in slow motion” due to their widespread proliferation, longevity, and the devastating harm caused by decades of unrestrained use.4 That report showed how weak and convoluted rules governing the use of landmines had been widely ignored, creating a complex humanitarian tragedy over the long-term.

More than 50 states produced antipersonnel mines at some time, of which 41 stopped before or upon joining the Mine Ban Treaty. But by that point, the damage had already been done. Hundreds of millions of antipersonnel landmines had been transferred around the world for decades, creating massive stockpiles. Some stockpiled landmines were abandoned or looted, other stocks were used, but many remained in their storage crates, untouched as the stigma against landmines grew.

The first annual Landmine Monitor report estimated that more than 250 million antipersonnel mines were stored in the arsenals of 108 countries. When it was presented to states attending the treaty’s First Meeting of States Parties held in May 1999 in Maputo, Mozambique, the ICBL called for a major effort to eradicate landmine stockpiles as a form of “preventive mine action.”5

Nearly all of the 33 states not party to the Mine Ban Treaty are still believed to stockpile landmines, despite limited information.6 But over time, major non-signatories have made notable announcements and disclosures concerning their landmine stocks as a gesture of goodwill and transparency. At the Mine Ban Treaty’s Third Review Conference in 2014, the United States announced that it had prohibited production of antipersonnel mines and disclosed that it possessed a stockpile of three million mines, a significant reduction from the more than 10 million previously reported by the United States government. China stated that it held fewer than five million mines, a massive decrease from the long-standing estimate of 110 million mines.

Fewer non-state armed groups are able to obtain factory-made antipersonnel mines now that production and transfer has largely halted under the Mine Ban Treaty. Some in states outside the treaty have acquired landmines by stealing them from government stocks or removing them from minefields. However, most have made their own improvised landmines from locally available materials. These are often known as victim-activated improvised explosive devices or IEDs. These are also banned by the treaty.

Stockpile Destruction

By the time the Mine Ban Treaty entered into force, more than 12 million stockpiled antipersonnel mines had already been destroyed by states committed to relinquishing the weapons. Canada, Norway and ten other signatories and States Parties had completed the destruction of their antipersonnel mine stocks, while eighteen more were in the process of doing so, including France, Italy, Netherlands, and the United Kingdom.7

By the treaty’s First Review Conference in 2004, 65 States Parties had completed the destruction of their stockpiles, collectively destroying more than 37.3 million antipersonnel mines.8 No State Party facing the first stockpile destruction deadline of 1 March 2003 failed to meet it. Italy destroyed the most mines (7.1 million), followed by Turkmenistan (6.6 million), while Albania, France, Germany, Japan, Romania, Sweden, Switzerland, and the United Kingdom each destroyed more than one million antipersonnel mines.

By the time of the treaty’s Second Review Conference in 2009, 86 States Parties had completed the destruction of their stockpiles, destroying a collective total of 44 million antipersonnel mines.9 However, a handful of states completed destruction of their stockpiles days or months after their respective deadlines had passed.

According to Landmine Monitor’s count, a total of 92 States Parties had destroyed a collective total of more than 55 million stockpiled antipersonnel mines as at 2019, the year of the treaty’s Fourth Review Conference.

However, there were certain exceptions to this impressive record by four States Parties, which missed their stockpile destruction deadlines by years.10

Ultimately, none of the stockpiled antipersonnel mines posed significant technical issues for States Parties to destroy, with two notable exceptions: the Soviet-made PFM-type scatterable mines and United States-made ADAM artillery-delivered mines.

Referred to by Afghans as “butterfly” mines due to their unique shape and bright colour, the Soviet-made PFM-type scatterable antipersonnel mines contain a toxic liquid explosive filling (VS6-D) that renders them extremely dangerous and difficult to destroy. PFM mines are packed in containers for delivery by helicopter, rocket, or ground dispenser, which has added another complication as their destruction requires sophisticated environmental pollution control measures.

Ukraine missed its stockpile destruction deadline due to the challenges it has faced destroying the 6 million PFM-type mines. Belarus faced similar challenges but completed the destruction of its 3.3 million PFM types mines in April 2017, while North Macedonia and Turkmenistan also destroyed stocks of PFM-type mines.

The United States-made ADAM mines stockpiled by Greece and Turkey contain a small amount of depleted uranium that requires a special industrial process to destroy, so the projectiles containing the ADAM mines were transferred to Germany for demilitarization at a specialized facility.

Any assessment of stockpile destruction under the Mine Ban Treaty would be incomplete without considering Article 3’s provision that allows a State Party to retain or transfer “a number of anti-personnel mines for the development of and training in mine detection, mine clearance, or mine destruction techniques.”

Of the 164 States Parties, 71 have retained antipersonnel mines for training and research purposes, of which 37 retain more than 1,000 mines and four each retain more than 12,000 mines.11 The remainder each retain fewer than 1,000 mines. Another 86 States Parties have declared that they do not retain any antipersonnel mines, including 34 states that stockpiled antipersonnel mines in the past.

Over the past 20 years, ICBL concerns that the retention provision would be abused by a State Party using such mines in combat have not been realized. There have been some close calls that were resolved in true cooperative compliance fashion through quiet and sustained follow-up with the State Party concerned.

However, the retention by certain states of several thousand or more than 10,000 mines still raises significant compliance questions for the Mine Ban Treaty. The ICBL is especially concerned by States Parties with retained mines that have never used them for the treaty’s permitted purposes, as these are in essence stockpiled mines.

Cooperative Compliance

Each State Party facing the Mine Ban Treaty’s stockpile destruction deadline has met that obligation, with a handful of exceptions, some serious. This section looks at how the treaty’s innovative cooperative compliance provisions and mechanisms helped contribute to this largely positive outcome.12

During the whirlwind Ottawa Process that created the treaty, states prioritized securing an unequivocal prohibition of antipersonnel mines over creating complex verification provisions. According to one diplomat, “the thinking at the time by the majority of negotiating states was that it should be politically so costly to breach the obligations of the treaty that it would deter anyone from doing it.”13

A unique “cooperative compliance” approach proposed by Canada in early 1997 was ultimately incorporated into the final text of the treaty. Under Article 8, States Parties commit to “consult and cooperate with each other” and “work together in a spirit of cooperation” to implement provisions by providing financial, technical, and other assistance.

According to the ICBL chair, Stephen D. Goose of Human Rights Watch, the cooperative compliance approach “assumes goodwill on part of all States Parties … to try to resolve issues in the quietest, friendliest, least confrontational manner” by emphasizing assistance to States Parties to meet their obligations rather than criticism for failing to do so.14  

Article 8 also lists five compliance steps that the treaty’s States Parties can follow, but none have been attempted over the past 20 years.15 In addition, the treaty’s Article 6 provision stipulates that States Parties requiring assistance to fulfill their implementation obligations should “seek and receive assistance” from other State Parties. And Article 7 requires State Parties to provide a transparency measures report detailing their implementation within six months of the treaty taking effect for that country and annually thereafter, by 30 April.16

The transparency reporting requirement has provided States Parties, Landmine Monitor and others with a particularly valuable tool to review and confirm data on stockpiled landmines as well as track efforts to destroy them.

From the outset, the Mine Ban Treaty lacked a standing institutional structure. This reflected the desire of states to spend funds in the field on mine clearance and victim assistance rather than on costly secretariats.17 It also was due to concern that States Parties remain actively involved in overseeing implementation and addressing challenges.

Over the past two decades, States Parties and the Mine Ban Treaty community have gradually put in place a web of mechanisms and structures to enable implementation concerns to be resolved cooperatively before they escalate. A lightly staffed Geneva-based implementation support unit supports States Parties, including the chairs of various committees that oversee the implementation of specific Mine Ban Treaty provisions.

The treaty’s system of regular meetings and informal sessions have facilitated support for stockpile destruction by issuing joint action plans urging States Parties that missed their deadline to comply without delay and communicate their plans to do so as well as request assistance. The treaty’s rotating stockpile destruction chairs have overseen destruction efforts, helping States Parties to overcome challenges.

Lessons Learned

Below are seven lessons that can be drawn from stockpile destruction under the Mine Ban Treaty.

First, establish a clear deadline and robust transparency mechanisms. Without the four-year stockpile destruction deadline, it is highly unlikely that the Mine Ban Treaty’s impressive compliance rate could have been achieved. The ICBL fostered positive competition, challenging State Parties to declare and destroy their stockpiled mines in advance of the four-year deadline, setting certain events and earlier dates as completion targets.18  

Second, ride the political momentum generated from the treaty negotiation process. The ICBL encouraged swift destruction of stockpiled mines as an optimal and highly visible way for states to demonstrate their strong commitment towards implementation. Heads of states and senior ministers attended completion events covered by media with campaigners and survivors present.19

Third, ensure that States Parties requiring implementation support receive the financial and technical aid they seek. Most national militaries disposed of their own landmine stocks, sometimes with external donor funding, but more often after the government allocated a budget to ensure destruction. Mine action operators, police and others played a supportive role by assisting with inventory reviews, determining how to safely destroy landmines and assisting with physical destruction of stocks.

Fourth, realize that physical destruction of landmines generally does not require sophisticated facilities. The vast majority of stockpile antipersonnel mines were destroyed through open-burning/open-detonation (OB/OD). Where the size of the stockpile or environmental constraints precluded this, states parties often transferred mines to be destroyed at facilities in other countries operated by private companies. Ultimately, no stockpiled antipersonnel mines posed significant technical issues for States Parties to destroy with two notable exceptions: the Soviet-made PFM-type scatterable mines and ADAM artillery-delivered mines.

Fifth, the Mine Ban Treaty experience demonstrated some of the side benefits that can come from the stockpile destruction. Several States Parties developed industrial processes to recover and recycle components with economic value as scrap metal. In some cases, the components were directly recycled into products. For example, Afghanistan melted the metal bodies of bounding fragmentation mines and refabricated them as manhole covers, while Ukraine has recycled the plastic bodies of some of its mines and made toy pelicans for children.

Sixth, civil society support and scrutiny is crucial to ensuring full compliance. Landmine Monitor published its first report prior to the submission deadline for states to provide their initial transparency reports under Article 7, thereby setting the standard for comprehensive and detailed reporting. Landmine Monitor’s analysis of Article 7 reports, together with its inquiries, reminders, and offers of assistance, have helped generate momentum towards stockpile destruction. When Landmine Monitor finds inconsistencies and irregularities, it engages with the State Party concerned to seek clarification and try to resolve the matter directly. 

Finally, the experience shows how no one wants to be at the top of the list when it comes to stockpiling weapons. In addition to tracking stockpiled mines, Landmine Monitor closely reviewed the quantities of mines retained by State Parties, drawing special attention to those retaining several thousand or more than 10,000 mines. Dozens of States Parties perceived this as negative publicity, especially if they were at the top of the list with the most mines, and responded by reducing the number retained or destroying the mines altogether.

Case Study: Chile

State Party Chile completed the destruction of its stockpile of 299,219 mines in August 2003, well in advance of the deadline of 1 March 2006. The process was notable for its transparency and high-level support. The Army and Navy destroyed the stocks by open detonation with assistance provided by the Organization of American States (OAS). Then-Minister of Defense Michelle Bachelet attended and spoke at several events held to mark the progressive destruction of the stocks. The ICBL, Landmine Monitor and media were also invited to witness the stockpile destruction at these events. In 2003, Chile announced that it would reduce the number of antipersonnel mines that it initially reported would be retained for training and research from 28,647. It now retains just over 2,000 mines.

Case Study: Greece

In its initial transparency report for the Mine Ban Treaty provided in 2004, State Party Greece disclosed a stockpile of 1.5 million antipersonnel mines. It started the process of stockpile destruction late, almost eight months after the 1 March 2008 deadline, and shipped a portion of the stockpile to Bulgaria for destruction. Complicated legal and contractual issues stalled any physical destruction for years. On 1 October 2014 a series of explosions demolished the Bulgarian facility of the subcontractor that held the mines, killing 15 workers. Greece resumed its efforts to destroy the stockpiled mines and committed to destroy them by the end of 2019. Earlier this year, Greece reported that 1,171,715 antipersonnel mines had been destroyed, while 396,452 mines were still to be destroyed.

Case Study: Japan

State Party Japan completed the destruction of its stockpile of one million antipersonnel mines within weeks of the treaty’s 1 March 2003 deadline. It contracted three private companies to destroy the mines at a cost of ¥ 2.068 billion (US$17.8 million). The process was notable for its high-level political support and engagement by communities living near the destruction facilities. Japan’s Prime Minister addressed 300 children from around the country at a youth summit on solutions to the landmine crisis that followed an official ceremony organized by mayor of Shin-Asahi to mark completion of the destruction process. Landmine Monitor visited the stockpile destruction facility in 2000, when Association for Aid and Relief Japan and the town organized a 70-kilometer charity run with landmine survivor Chris Moon, a former deminer, to raise awareness and support for the Mine Ban Treaty. 

Case Study: Libya

States outside the treaty have been far less open about their production, transfers, and stockpiles of landmines, but sometimes civil war and regime change enables unprecedented insights into previously hidden activities. Before the Arab Spring began in 2011, Libyan officials used to state that the country had never produced or exported antipersonnel mines and no longer stockpiled the weapon.20 Yet as the Gaddafi government progressively lost control of the country that year, government forces abandoned massive weapon depots containing landmines and other munitions.21 Their contents revealed that Libya had received hundreds of thousands of antipersonnel and antivehicle mines over the years, accumulating a stockpile of mines from countries including Belgium, Brazil, China, and the former Yugoslavia. Gaddafi forces used mines in 2011 and there is evidence that non-state armed groups continue to use them. Libyan authorities, United Nations agencies and mine clearance organizations have attempted to collect and destroy abandoned landmines, but many are still believed to be held by militias, criminal groups and in civilian hands. Imagine how many lives and limbs could have been saved if Libya had heeded calls to join the Mine Ban Treaty.

Case Study: Turkmenistan

State Party Turkmenistan reported the completion of its stockpile destruction on 28 February 2003, just ahead of its deadline.22 However, it also reported that it would retain 69,200 antipersonnel mines for demining training purposes. One year later, after several States Parties and the ICBL pointed out that the number was unacceptably high, Turkmenistan announced it would destroy the stockpile. It invited representatives from the ICBL and Human Rights Watch to witness destruction later that year. They discovered that Turkmenistan had, in fact, been retaining 572,200 individual antipersonnel mines, as most of the stock was air-delivered and it had counted only the containers and not the mines they held.

Case Study: Ukraine

In 2006, State Party Ukraine reported a stockpile of 6.6 million antipersonnel mines under its ownership or possession that it inherited from the break-up of the Soviet Union. After missing the 1 June 2010 destruction deadline, Ukraine destroyed 1.4 million antipersonnel mines from stocks between 2011 and 2017. Since 2015, NATO’s Support and Procurement Agency has been assisting with the operation to destroy the remaining stockpile of more than 5 million PFM mines at a facility in Ukraine. Belarus also missed its 1 March 2008 deadline after facing similar challenges with the extremely hazardous PFM antipersonnel mines, but completed the destruction of its stockpile in April 2017, including 3.4 million PFM-1 mines.

Conclusion

Over the past 20 years, the United States and other non-signatories have declined calls to join the Mine Ban Treaty yet tacitly supported it from the sidelines. Their arguments against joining have diminished and now boil down to a general skepticism over the utility of multilateral treaties as well as objections with the unconventional and unprecedented way in which the treaty was negotiated outside of United Nations auspices (but with firm United Nations support).

Yet the Mine Ban Treaty is thriving and provides a prime example of a multilateral instrument that is working to reduce and prevent human suffering. This is seen vividly in the way in which States Parties have swiftly destroyed their stockpiled mines.

Those facing such challenges in completing their stockpile destruction obligation have not been met with condemnation, but rather with the cooperative compliance approach. The method seems to be working as 20 years on, no State Party has triggered the treaty’s Article 8 provisions, yet.

  • 1. See “Conclusions on the status of implementation of Article 4 (Stockpile Destruction) of the Anti-Personnel Mine Ban Convention,” Mine Ban Treaty Seventeenth Meeting of States Parties, 25 September 2018. See also Landmine Monitor 2018, p. 4.
  • 2. See the Landmine and Cluster Munition Monitor website for annual reports and country profiles (http://www.the-monitor.org/en-gb/home.aspx).
  • 3. See also: Mary Wareham, “Evidence-Based Advocacy: Civil Society Monitoring of the Mine Ban Treaty,” in Wareham, Stephen D. Goose, and Jody Williams (eds.), Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security (Rowman & Littleford, 2008).
  • 4. Human Rights Watch and Physicians for Human Rights, Landmines: A Deadly Legacy, October 1993. https://www.hrw.org/news/1993/10/01/landmines-deadly-legacy
  • 5. International Campaign to Ban Landmines, Landmine Monitor Report 1999: Towards a mine-free world,” April 1999. This first report is available from the Monitor’s archived site: http://archives.the-monitor.org/
  • 6. States not party that have stockpiled antipersonnel mines: Armenia, Azerbaijan, Bahrain, China, Cuba, Egypt, Georgia, India, Iran, Israel, Kazakhstan, North Korea, South Korea, Kyrgyzstan, Lao PDR, Lebanon, Libya, Mongolia, Morocco, Myanmar, Nepal, Pakistan, Russia, Saudi Arabia, Singapore, Syria, United Arab Emirates, US, Uzbekistan, and Vietnam.
  • 7. Austria, Belgium, Canada, El Salvador, Germany, Guatemala, Luxembourg, Namibia, Norway, Philippines, South Africa, and Switzerland. See Landmine Monitor Report 1999.
  • 8. See Landmine Monitor Report 2004.
  • 9. See Landmine Monitor Report 2009.
  • 10. See Landmine Monitor 2018, p. 4.
  • 11. See Landmine Monitor 2018, p. 19.
  • 12. See also: Stephen D. Goose, “Goodwill Yields Good Results: Cooperative Compliance and the Mine Ban Treaty,” in Goose, Jody Williams, and Mary Wareham (eds.), Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security (Rowman & Littleford, 2008).
  • 13. Interview with Steffen Kongstad, Deputy Director General, Royal Norwegian Ministry of Foreign Affairs, Oslo, 5 April 2006.
  • 14. Telephone Interview with Steve Goose, Executive Director Arms Division, Human Rights Watch, 11 April 2006.
  • 15. The treaty provides for five steps to be taken: 1) One or more States Parties can request information regarding allegations of non-compliance from the requested State Party that has 28 days to respond; 2) If the requested State Party fails to respond satisfactorily (or at all), the requesting state or states may either refer the matter to the next meeting of States Parties or, if one-third of members agree, convene a special meeting of States Parties; 3) If unable to resolve the issue, the meeting or special meeting of State Parties can authorize by majority vote a fact-finding mission to the State Party concerned by a team of experts selected from a list maintained by the UN Secretary-General; 4) The fact-finding mission must give at least 72 hours notice before its arrival, and may stay up to fourteen days after which it reports its findings to the meeting or special meeting of States Parties; 5) The meeting or special meeting of States Parties reviews the fact-finding mission’s report and then, by a two-thirds vote if consensus cannot be reached, may ask the requested State Party to take measures to address the compliance issue within a specified period of time, and suggest ways and means to resolve the matter, “including the initiation of appropriate procedures in conformity with international law.”
  • 16. The treaty requires that each State Party with stockpiled antipersonnel mines report and provide updated information annually on: 1) The total number of antipersonnel mines in its ownership or possession, or under its jurisdiction or control, including a breakdown of the type, quantity and, if possible, lot numbers of each type of stockpiled mine; 2) The status of programmes to destroy stockpiled antipersonnel mines, including details of the methods to be used in destruction, location of all destruction sites and the applicable safety and environmental standards to be observed; and 3) The types and quantities of all antipersonnel mines destroyed during the previous calendar year, including the full breakdown of the quantities, types and, if possible, lot numbers of each type of stockpiled mine. See ODA Article 7 monitoring website (https://www.unog.ch/80256EE600585943/(httpPages)/E262A17349C45BDEC12573ED00387359?OpenDocument).
  • 17. By 1997, there was already fatigue over the cost and needs of treaty support structures after the Chemical Weapons Convention created the Organization for the Prohibition of Chemical Weapons (OPCW) in 1993 and the Comprehensive Nuclear Test Ban Treaty established its International Monitoring System in 1996.
  • 18. See for example, ICBL Press Release, “Landmines Campaign Challenges Governments to Complete Stockpile Destruction by September 2001,” (Buenos Aires, 6 November 2000).
  • 19. Such stockpile destruction events took place in Algeria, Croatia, Japan, Mozambique, and other states.
  • 20. Landmine Monitor interview with Col. Ali Alahrash, Ministry of Defense, Geneva, 16 March 2004.
  • 21. This included the 60-bunker Hight Razma facility near Benghazi, a 35-bunker facility near Ajdabiya, and a smaller facility near Tobruk. In September 2011, HRW visited in a Khamis Brigade base in the Salahadin neighborhood of Tripoli that included a farm compound holding approximately 15,000 antipersonnel mines and a nearby storage facility housing more than 100,000 antipersonnel and antivehicle mines. HRW, “Landmines in Libya: Technical Briefing Note,” 19 July 2011; and HRW, “Libya: Secure Unguarded Arms Depots,” 9 September 2011.
  • 22. Turkmenistan entry, Landmine Monitor Report 2004.
Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Canadian Foreign Minister Lloyd Axworthy, sitting, looks toward Nobel Peace Prize laureate Jody Williams, far left, after signing the Mine Ban Treaty in Ottawa on December 3, 1997.

© 2019 AP Photo/Tom Hanson

Today the Fourth Review Conference of the international Mine Ban Treaty opens in Oslo, Norway. A total of 164 states have joined the treaty, committing to cease production, use, and transfer of antipersonnel mines, to destroy their stockpiles, clear mine-affected areas, and assist mine survivors.  

It is worth celebrating the significant steps states have taken over the past 20 years to alleviate the suffering caused by antipersonnel mines through this treaty. Since the Mine Ban Treaty entered into force on March 1, 1999, 27 additional countries have joined, including many that possessed large stockpiles of or were significantly contaminated by landmines. New use of antipersonnel mines has decreased dramatically due to stigma created by the ban treaty. In 2018, only Myanmar, which has not joined the treaty, used antipersonnel mines. More than 50 states previously produced antipersonnel mines, but 41 have ceased production, including the United States and three others that have not joined the treaty. Governments have collectively destroyed more than 55 million stockpiled antipersonnel mines. A total of 31 countries once affected by antipersonnel mines have been declared mine-free. In 2018, funding for mine action totaled approximately $699.5 million, the second-highest yearly total to date.  

However, considerable challenges remain. Thirty-three states have yet to join the Mine Ban Treaty, including China, Russia, and the US. In 2018, non-state armed groups used antipersonnel landmines, often improvised versions, in six countries. According to the annual Landmine Monitor report by the International Campaign to Ban Landmines, over 6,800 people were killed or injured by landmines or explosive remnants of war in 2018. Where the age of victims was recorded, more than half of the casualties were children. Around the world, 55 countries are still mine-affected.

States still outside the treaty should take steps to join. They should participate in the Review Conference and other meetings of the treaty, submit voluntary transparency reports, and vote in favor of the annual United Nations General Assembly resolution promoting universalization and implementation of the treaty.

As a co-founder of the International Campaign to Ban Landmines, the 1997 Nobel Peace Laureate along with Jody Williams, Human Rights Watch challenges all states to step up their efforts to achieve a landmine-free world under the auspices of the Mine Ban Treaty.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

A Campaign to Stop Killer Robots publication on possible treaty elements. 

© 2019 Human Rights Watch

Major military powers are racing to embrace weapons that select and fire on targets without meaningful human control. This is raising the specter of immoral, unaccountable, largely uncontrollable weapon systems – killer robots. It is also driving fears of widespread proliferation and arms races leading to global and regional instability.

There is increasing recognition that it’s time to ring the alarm on these weapons systems. This month in Paris, United Nations Secretary-General Antonio Guterres called for a new international treaty to ban killer robots, stating that “machines that have the power and discretion to kill without human intervention are politically unacceptable and morally despicable.”

Yet at last week’s meeting of the Convention on Conventional Weapons (CCW) at the UN in Geneva, states made no progress towards launching negotiations on a treaty to ban or restrict such fully autonomous weapons. Instead, they agreed to spend the next two years developing a “normative and operational framework” to address concerns raised by such weapons systems.

This vague objective falls far short of what’s needed. Dozens of countries wish to negotiate a treaty to retain human control over the use of force, including 30 states that want a treaty banning killer robots. Yet, a handful of military powers, most notably Russia and the United States, block any movement in the direction of a legally binding instrument.

Geopolitics were on stark display at the CCW meeting. The US was mostly silent. Russia both dominated the discussions and attempted to exclude civil society from key sessions. China is playing both sides of the issue. Although it reiterated its desire to negotiate a treaty around the weapons systems, China is also among the nations most advanced in pursuing such weapons.

The next CCW meeting on killer robots will take place in six months. Meanwhile, other initiatives are working to build support for a treaty to ban killer robots. Brazil will hold a symposium on killer robots in Rio de Janiero next February, while the advocacy group, Campaign to Stop Killer Robots, will meet in Buenos Aires at the end of that month.

Within less than a decade, the killer robots have become one of the most pressing threats to humanity. There are signs that the public strongly supports regulation now. The only appropriate response is to launch negotiations to ban killer robots.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Delegates to the Convention on Conventional Weapons Meeting of High Contracting Parties deliberate the contents of the final report of the meeting on November 15, 2019. 

© Alev Erhan, 2019

Incendiary weapons drew widespread condemnation at last week’s annual meeting of the Convention on Conventional Weapons (CCW), but interventions by Russia and the United States will keep the issue off the agenda next year.

Almost all states parties that spoke on the topic condemned recent use in Syria and pushed for further multilateral discussions. But Russia and the US insisted that existing international law is adequate and blocked proposals to set aside time in 2020 to discuss CCW Protocol III, which governs the weapons. Since CCW meetings operate by consensus, opposition from the two countries was enough to keep Protocol III off next year’s agenda.

Despite that setback, the majority of states concerned about the cruel effects of incendiary weapons succeeded in joining forces and refusing to let major military powers sweep a matter of humanitarian concern under the rug. The meeting’s final report reflected these states’ widespread concern and calls to reinstate the agenda item.

Incendiary weapons, which produce heat and fire through the chemical reaction of a flammable substance, can inflict severe burns, leave extensive scarring, and cause respiratory damage and psychological trauma.  

While Protocol III imposes restrictions on the use of incendiary weapons, its definition of the weapons excludes multipurpose munitions, like white phosphorus, that have incendiary effects but are primarily designed for other purposes. The protocol also has weaker regulations for ground-launched incendiary weapons than air-dropped ones.

At least 14 of the 17 states parties that spoke about incendiary weapons condemned or expressed concern about recent use. At least 12 called for dedicated CCW discussions to assess and/or strengthen of Protocol III. The European Union, which represented 28 member states and three others, also condemned the use of incendiary weapons on civilians or in civilian areas and requested that Protocol III be put back on the agenda.

Over the coming year, countries should continue to condemn the use of incendiary weapons and renew their push for dedicated time to discuss Protocol III. In the long run, they should prepare to revisit the protocol at the CCW’s 2021 Review Conference, with an eye to increasing its impact by closing its loopholes.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Buildings destroyed by explosive weapons in the Ramouseh neighborhood of eastern Aleppo, Syria.

© 2019 AP Photo/Hassan Ammar

Summary and Recommendations

States are currently engaged in a political process to address the consequences of using explosive weapons in populated areas. That process was launched in October 2019 when more than 130 states gathered in Austria for the Vienna Conference on the Protection of Civilians in Urban Warfare.1 Over the coming months, states will convene in Geneva to negotiate the text of a political declaration to reduce the civilian harm caused by the use of explosive weapons in populated areas, also known as EWIPA. 

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Political declarations are documents in which states commit to achieving political goals through individual and coordinated action. Although not legally binding, these political commitments carry significant weight.  They outline standards for state conduct and clarify existing international law. They shape state behavior and advance a common goal.

The current process toward a political declaration aims to address the use of explosive weapons in populated areas, particularly weapons with wide area effects. When explosive weapons are used in populated areas, they cause immediate and long-term harm to the civilian population and civilian infrastructure.2 In particular, the use of EWIPA kills and injures large numbers of civilians and causes psychological harm. Hundreds of thousands of civilians across almost 120 countries have been killed or injured by explosive weapons in the past decade alone, and 90 percent of those civilian casualties occurred in populated areas.3 Reverberating effects include damage to critical infrastructure and displacement of the local population, among other adverse impacts.4

To inform the content of a new political declaration, Human Rights Watch and Harvard Law School’s International Human Rights Clinic have conducted a study of existing declarations. Focusing on political declarations related to the conduct and consequences of armed conflict (see appendix for a complete list), they assessed the structure and components of these documents. This report identifies seven key components that are common to armed conflict-related political declarations: an introduction identifying the problem of concern and six categories of commitments.

This report examines each of these components. It describes what the component entails; lays out the precedent, found in existing conflict-related declarations, for including it; discusses how that component could be applied in the forthcoming political declaration on the use of EWIPA; and explains the value of the component in bolstering political declarations and states’ movement toward common goals. The commitments proposed by the International Network on Explosive Weapons (INEW), a civil society coalition co-founded by Human Rights Watch and other nongovernmental organizations (NGOs) in 2011, parallel the structure identified in this report.5

Based on their study, Human Rights Watch and the Harvard Law School International Human Rights Clinic recommend that a political declaration on the use of EWIPA draw on the model of previous conflict-related declarations and include the following components:

  • Adoption of practical measures that concretely address EWIPA-related harms;
  • Assistance for victims of past and future explosive weapons use;

  • Adoption and promulgation of laws and policies to prevent and remediate the harm caused by explosive weapons;

  • Gathering and sharing of disaggregated data to track the problems associated with use of EWIPA and progress toward addressing them; and

  • Establishment of a framework for continued engagement around the use of EWIPA.6

Introductory Section

Description and Precedent

Each of the armed conflict-related political declarations reviewed for this report includes an introductory section that provides context for the declaration and that is followed by a series of commitments. The introduction usually includes a statement of the problem the declaration aims to alleviate and refers to existing international law and parallel efforts to address the problem.

The problem statements lay out the key issues the declarations seek to address and why those issues matter. The 2010 Oslo Commitments on Armed Violence, for example, begin by identifying armed violence as “a fundamental challenge to our common humanitarian and development goals.”7 The 2013 Declaration of Commitment to End Sexual Violence in Conflict describes the “widespread use of rape and other forms of sexual violence in armed conflicts around the world [as] one of the greatest, most persistent and most neglected injustices.”8 The 2015 Safe Schools Declaration highlights the “urgent humanitarian, development and wider social challenges” presented by the “impact of armed conflict on education,” and then elaborates on the many ways that the failure to protect educational infrastructure during war adversely affects children.9

Many political declarations dealing with armed conflict also cite widely endorsed treaties, especially the Geneva and Hague Conventions, in their introductions. These declarations tend to invoke international law in three different ways. First, they frequently highlight how the practice of concern in the declaration is already violating international law, and in so doing, bolster the case for a response.  The 2013 Declaration of Commitment to End Sexual Violence in Conflict, for example, notes that “rape and other forms of serious sexual violence in armed conflict … constitute grave breaches of the Geneva Conventions and their first Protocol.”10 Second, declarations sometimes refer to international law in order to clarify the legal context behind a particular issue. The 2007 Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups recall “all the international instruments relevant to the prevention of recruitment or use of children in armed conflict, their protection and reintegration, and to the fight against impunity for violators of children’s rights, as well as relevant regional instruments.”11 Finally, declarations encourage states to sign onto other relevant legal instruments. The 2007 Paris Commitments, for example, stress in particular the importance of ratifying the Convention on the Rights of the Child.12

Declarations also frequently note parallel efforts that advance the same objectives. The 2015 Safe Schools Declaration, for example, welcomes the non-binding Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, which “draw on existing good practice” and “provide guidance” to reduce the impact of armed conflict on education.13 That declaration additionally “commends” other international bodies for their work on the topic, notably the United Nations for monitoring the effects of armed violence on education and children, and recognizes the importance of two UN Security Council resolutions that urge states to protect children and their educational facilities during armed conflict.14

Application to an EWIPA Declaration

A problem statement on the use of EWIPA, especially those with wide area effects, should highlight the documented pattern of harm to civilians and civilian objects. In particular, the problem statement should spotlight the high incidence of civilian death and injury, infliction of psychological distress, damage to essential infrastructure, interference with health care and education, generation of displacement on a large scale, degradation of the environment, denial of humanitarian access, and contamination of territory with explosive remnants of war.15 This list would impress upon states the grave harms caused by the use of explosive weapons, especially those with wide area effects, in populated areas and the need for a declaration to increase protections for civilians.

An EWIPA political declaration should also include references to existing international law. International humanitarian law requires parties to a conflict to distinguish between civilians and combatants and prohibits the infliction of disproportionate harm.16  As the International Committee for the Red Cross (ICRC) has noted, the use of explosive weapons with wide area effects in populated areas, which is a “major cause of harm to civilians and of disruption of services essential for their survival,” is “very likely to have indiscriminate effects” and to violate international humanitarian law.17 Such a reference to existing law would underscore the problem of EWIPA and provide legal grounding for the declaration.

A political declaration could also note parallel efforts to recognize and address the problem of EWIPA. In particular, it could cite the UN Secretary-General’s annual protection of civilian reports and the recent Agenda for Disarmament, both of which recognize the harm caused by the use of EWIPA.18 The latter also calls for development of a political declaration and “new efforts to rein in the use of explosive weapons in populated areas, through common standards, the collection of data on collateral harm and the sharing of policy and practice.”19

Value of Introductory Sections

The introduction of a political declaration provides a touchstone for the general and specific commitments that follow by describing the problem at issue and placing it in a legal context. The introduction allows states to unite around clear and common concerns while setting the stage for the work they agree to do separately and together in furthering their shared objective. The problem statement in particular can provide extra motivation for states to endorse and robustly implement the declaration. Finally, references to existing international law and parallel efforts bolster the political declaration by providing a strong grounding in states’ pre-existing commitments and situating new commitments in a broader context.

General Commitment to Address the Problem

Description and Precedent

Political declarations often include a general commitment to address the problem identified in the introduction. The broadest commitment of a declaration, it presents the document’s primary objective. In so doing, it can help frame the remaining, more specific commitments that seek to advance that goal. General commitments sometimes appear as part of the introduction, and sometimes within the list of commitments that follows.20   

General commitments in conflict-related political declarations take a variety of different forms. For example, countries can commit to “end” a problem, “spare no effort to end” a problem, or “promote” solutions to a problem.21 In the 2006 Geneva Declaration on Armed Violence and Development, states resolve to “reduce armed violence and its negative impact on socio-economic and human development.”22 The 2017 Political Declaration on the Protection of Medical Care in Armed Conflict includes an overarching commitment to “take practical measures to enhance the protection of, and prevent acts of violence against, the medical and humanitarian personnel.”23 The declaration goes on to enumerate such practical measures.

Sometimes these general commitments include multiple parts that elaborate on how states will achieve a broader aim. For instance, in the 2013 Declaration of Commitment to End Sexual Violence in Conflict, countries state that “[b]y working together, sharing our knowledge and our experience, mobilising resources and committing our global political will we are determined to end the use of rape and other forms of sexual violence as weapons of war.”24  

Application to an EWIPA Declaration

In an EWIPA declaration, states should commit to stop the use of explosive weapons with wide area effects in populated areas. Wide area effects, which exacerbate the harm caused by the use of EWIPA, are attributable to the inaccuracy of a weapon, a large blast radius, and/or the delivery of multiple munitions at the same time. While the exact wording remains to be determined, a commitment to “stop” the use of EWIPA with wide area effects would have the greatest humanitarian impact because of the strength of the language.

Another proposal on the table is a general commitment to “avoid” the practice. The so-called avoidance policy proposed by the ICRC relates to international humanitarian law’s principle of proportionality. That principle prohibits attacks in which the expected harm to civilians and civilian objects would be excessive compared to the anticipated military advantage.25 The ICRC suggests that a commitment to “avoid” would create a presumption that the use of heavy explosive weapons in a populated area would cause disproportionate harm and be unlawful “unless sufficient mitigation measures are taken to limit the … consequent risk of incidental civilian harm.”26 Under this presumption, a state would have to demonstrate that it has taken sufficient measures to limit civilian harm in order to prove that the presumption against the use of EWIPA can be overcome.

Value of General Commitments

A strong general commitment can be the most critical pledge within a political declaration. The general commitment serves as a core mission statement and focuses the efforts of endorsing countries. It can also create cohesion among countries that endorse the declaration and agree to work toward a common objective. This commitment can further influence non-endorsing states and non-state actors by clarifying and crystallizing norms while generating stigma around unacceptable behavior.

Adoption of Practical Measures

Description and Precedent

Commitments to adopt practical measures identify specific, concrete steps that states agree to take to implement the general commitment or achieve the broader goals of the political declaration. These commitments are more precise and action oriented than a general commitment.

Because of their specificity, commitments to adopt practical measures vary widely depending on the problem a declaration targets. Some are directed at national programs designed to advance the declaration’s objective. For example, the 2013 Declaration of Commitment to End Sexual Violence in Conflict commits states to “[e]nsur[ing] that sexual violence prevention and response efforts are prioritised and adequately funded.”27 Other commitments regarding practical measures deal with state conduct.  In the 2006 Declaration on Anti-Vehicle Mines, states pledged not to “use any anti-vehicle mine outside of a perimeter-marked area if that mine is not detectable.”28

Political declarations also commit states to take practical steps at the international level. For example, in the 2015 Safe Schools Declaration, states pledge “where in a position to do so, [to] provide and facilitate international cooperation and assistance to programmes working to prevent or respond to attacks on education.”29

Application to an EWIPA Declaration

Commitments to adopt practical measures could take various forms in an EWIPA declaration. To prevent the harm caused by the use of EWIPA and implement the general commitment, they should encourage states to exchange best practices and update training and equipment, steps that would help improve civilian protection in urban warfare. To remediate harm that has occurred, the commitments should call on states to sponsor protection measures that enable communities to better reduce harm on their own, support the timely clearance of areas contaminated by explosive remnants of war, and promote and ensure unimpeded access to inclusive humanitarian aid. At an international level, the commitments should encourage states to provide international cooperation and assistance.30 These examples are just some of the practical commitments that states could include in an EWIPA declaration.

Value of Adopting Practical Measures

Commitments to adopt practical measures identify critical action areas that are designed to address the overarching problem. These types of commitments supplement the broad general commitment by specifying action areas for states to prioritize when working to address the problem.

Enumerating concrete actions to be taken makes it easier for states to implement the political declaration in an effective and timely manner. Furthermore, given that progress toward the general goals can be harder to assess, these specific commitments provide metrics against which countries can judge their progress and the progress of others.

Victim Assistance

Description and Precedent

Most political declarations related to armed conflict include commitments to assist victims harmed by the activities or weapons that are the focus of the declaration. Victim assistance encompasses a wide range of measures devoted to remediating ongoing human suffering regardless of when it was caused. In particular, it includes emergency and continuing medical care, physical rehabilitation, psychological and psycho-social support, measures to ensure the social and economic inclusion of survivors, and the adoption or adjustment of relevant laws and public policies supported by data collection and analysis.31

An integrated approach realizes victim assistance through wider development, human rights, and humanitarian efforts, in addition to specific initiatives aimed at addressing the needs of survivors.32 To recognize the dignity and rights of victims, such an approach also requires meaningful inclusion of victims, non-discrimination, and sensitivity to age and gender.33

The concept of victim assistance originated and has been codified in disarmament treaties. The 1997 Mine Ban Treaty commits states parties to provide assistance for people harmed by a specific type of weapon in its preamble and its provision concerning international cooperation.34 The 2003 Protocol V on Explosive Remnants of War to the Convention on Conventional Weapons and the 2008 Convention on Cluster Munitions include articles fully dedicated to the needs of victims and their rights to receive assistance.35

Victim assistance has also been incorporated in many political declarations. For example, in the 2010 Oslo Commitments on Armed Violence, states committed to “[r]ecognise the rights of victims of armed violence in a non-discriminatory manner, including provision for their adequate care and rehabilitation, as well as their social and economic inclusion, in accordance with national laws and applicable international obligations.”36 In the 2013 Declaration of Commitment to End Sexual Violence in Conflict, states committed to “[p]rovide better, more timely and comprehensive assistance and care, including health and psychosocial care that addresses the long-term consequences of sexual violence in conflict, to female, male and child victims and their families, including children born as the result of sexual violence.”37

In addition to the provision of services for critically injured individuals,38 survivors, and indirect victims, victim assistance can include support for the rebuilding of public infrastructure and compensation for the loss of property and livelihoods.39 For example, the 2015 Safe Schools Declaration includes a commitment to “support the re-establishment of educational facilities.”40 Reconstruction of infrastructure sometimes falls under the umbrella of victim assistance, although it can also be treated as one of the practical measures discussed above.

Application to an EWIPA Declaration

A political declaration on EWIPA should include a commitment to recognize the rights of victims, including individuals, their families, and affected communities, and to provide them services. Humanity & Inclusion, an NGO with particular expertise in this area,41 has recommended specifically that states, while upholding the principle of non-discrimination, should commit to ensuring that victims have their basic needs met; access to mainstream services, personal support, and disability-specific services; and assistance to compensate for the loss of their homes and/or livelihoods due to the use of explosive weapons.

Humanity & Inclusion also recommends complementary remedial commitments on reconstruction of public infrastructure, unimpeded access to principled and inclusive humanitarian aid, international cooperation and assistance, risk education, and the clearance of explosive remnants of war.42 Integrated support for affected communities is especially important in the EWIPA context, where damage to infrastructure often has severe reverberating consequences.

Value of Assisting Victims

Including a robust commitment to victim assistance addresses the needs and protects the rights of those most affected by the harm addressed in a political declaration. It is also key to ensuring a comprehensive and long-term response to the problem.

At the same time, a commitment to assist victims can bolster cooperation and support for affected states. Effective victim assistance often relies on the mobilization of both national and international resources. Countries experiencing violence related to armed conflict are not always well-positioned to respond quickly to the needs of victims within their borders. A commitment to support affected states with the provision of victim assistance helps bridge that gap and ensure that services reach those who need it most. 

Adoption and Promulgation of Laws and Policies

Description and Precedent

Political declarations usually include commitments to adopt and promulgate laws and policies. This kind of commitment can involve national or international measures, or both.43

Many armed conflict-related political declarations include commitments for endorsing states to take action at the national level, including by ensuring that domestic law and policy are consistent with pledges made in the declaration. For example, the 2017 Political Declaration on the Protection of Medical Care in Armed Conflict includes an agreement stating that “[endorsing states will review] national legislation, policies and procedures relevant to the protection of medical care in armed conflict.”44 The 2013 G8 Declaration on Preventing Sexual Violence in Conflict includes a commitment for “[g]overnments [to] review the doctrine and training provided to their national military and police where appropriate to ensure that it includes training for appropriate personnel deployed to relevant theatres on the implications of rape and other forms of sexual violence in conflict and post-conflict situations.”45 Similarly, in the 2013 Declaration of Commitment to End Sexual Violence in Conflict, states agree to “[e]nsure our national military and police doctrine and training is in accordance with international law so as to enable a more effective prevention and response to sexual violence in conflict.”46

Commitments on laws and policies can, and usually do, encourage action at the international level, such as by calling for the development of new international law. For example, in the 2006 Geneva Declaration on Armed Violence and Development, parties agree to “[promote] the development of further international instruments, including legally binding ones.”47 In the 2006 Declaration on Cluster Munitions, states “call for an agreement” to “prohibit the development, production, stockpiling, transfer and use of cluster munitions that pose serious humanitarian hazards.”48

Application to an EWIPA Declaration

In an EWIPA political declaration, commitments to adopt and promulgate laws and policies could include a number of different items. For example, the declaration should include a commitment that endorsing states will review and adapt their domestic military policies to ensure they are in line with the principles of the declaration. Similarly, it should include a commitment that endorsing states adopt legal and administrative measures to provide victim assistance. On the international level, the declaration could encourage the development of other international agreements or guidelines down the road.

Value of Adopting and Promulgating Laws and Policies

There are numerous reasons to include commitments to adopt and promulgate laws and policies in a political declaration.  Whether legally binding or not, international agreements are most effective when they are accompanied by national implementation measures. For example, agreeing to review and, if necessary, amend national military codes and policies can help ensure the most relevant actors have internalized the political declaration’s commitments. By encouraging the development of law and policy at the national level, this kind of commitment shows respect for state sovereignty. It acknowledges that states may know best how to tailor the measures of the declaration to fit their own national systems and circumstances.

A commitment to adopt and promulgate laws and policies at the international level can also have benefits. It can lead to further development of international law or standards at a later stage. In the interim, it can build and bolster legal standards and norms, thus extending the commitment’s impact beyond the states that endorse a particular declaration. By crystallizing international norms, such a commitment can influence the conduct of states that have not endorsed the declaration and non-state actors, including non-state armed groups that seek legitimacy on the international stage. In addition, civilian victims from non-endorsing states might benefit from international assistance or at least from the public recognition of the harm they suffered.

Data Gathering and Sharing

Description and Precedent

Armed conflict-related political declarations often include a commitment to support and improve the collection and sharing of data. Relevant data can include the number of casualties, disaggregated by sex, age, and ability, and the incidence of other types of harms. For example, endorsers of to the 2013 Declaration of Commitment to End Sexual Violence in Conflict pledge to “[e]ncourage and improve the safe and ethical collection of data and evidence relating to acts of sexual violence committed in conflict, to inform national and international responses.”49 In the 2010 Oslo Commitments on Armed Violence, states agree to “[m]easure and monitor the incidence and impact of armed violence at national and sub-national levels in a transparent way.”50

Application to an EWIPA Declaration

In the context of EWIPA, a political declaration should include a commitment to undertake and support others in undertaking data gathering and reporting. The data collected should encompass the use of explosive weapons in populated areas, the type of weapon used, casualties, and the destruction of civilian infrastructure and housing.51 Data on casualties should be sorted, in particular, by age, gender, and nature of injury.

Some states already collect data related to EWIPA use. For instance, states parties to Protocol V on Explosive Remnants of War to the Convention on Conventional Weapons are obligated to collect information on their own use of explosive ordnance in conflict.52 More generally, states have a duty to gather data on the impact of particular weapons on civilians in order to comply with international humanitarian law. Without in any way supplanting or assuming this primary duty of states, NGOs also are sometimes involved in the collection of such data.53

Value of Gathering and Sharing Data

Data collection can improve implementation of the declaration’s other commitments. It helps assess the effectiveness of the declaration and what further steps could be taken to strengthen the content of and compliance with the commitment. Data may also inform the design and updating of relevant programs as needed. For example, detailed data can provide states with lessons for future operations, with the goal of mitigating civilian harm. If, as discussed below, states convene further meetings focused on the issue or on the declaration’s implementation, it is particularly useful for states and supporting NGOs to have information on the declaration’s effectiveness and progress toward achieving its goals.

Collection and publication of accurate information also benefits victims. It provides ongoing recognition of the harm victims experience. In so doing, it can honor survivors and bolster efforts to mitigate or remedy their suffering. Reliable data on the numbers of victims and their circumstances, as well as information about affected communities, further facilitates the provision of victim assistance, which is discussed above. In addition, by spotlighting ongoing problems, as well as progress spurred by the declaration, the data encourages more states to join a declaration. 

Finally, a commitment to gathering and sharing data allows for monitoring of progress and promotes accountability among states. Monitoring sheds light on compliance, both with relevant existing international law and with the new political commitments in the declaration. The information gathered can then help hold states responsible for implementing their legal obligations and political commitments. For example, in the 2007 Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups, the monitoring efforts that states commit to supporting are aimed at uncovering “violations of child rights in armed conflict, including the unlawful recruitment or use of children.”54

Establishment of a Framework for Continued Engagement

Description and Precedent

Most political declarations include a commitment that endorsing states will continue engaging with the problem at hand. Such commitments often take the form of agreements to convene the group that negotiated the political declaration along with states that more recently endorsed the declaration.  

These commitments can specify the regularity by which future meetings will occur, actual dates and/or locations for future meetings, the general need to reconvene, or any combination of these agreements. For example, the 2006 Geneva Declaration on Armed Violence and Development includes a commitment to “meet[] again no later than 2008 to assess our progress in achieving these goals.”55 The 2015 Safe Schools Declaration includes a commitment to “[m]eet on a regular basis,”56 while the 2016 Joint Declaration for the Export and Subsequent Use of Armed or Strike-Enabled Unmanned Aerial Vehicles says that endorsers “are resolved to continue discussions.”57

Commitments that establish a framework for continued engagement frequently identify specific reasons why further work is necessary. The 2016 Joint Declaration for the Export and Subsequent Use of Armed or Strike-Enabled Unmanned Aerial Vehicles, for example, highlights the need for states that have endorsed the declaration to keep international standards up to date with “the rapid development of UAV technology.”58 The 2013 G8 Declaration on Preventing Sexual Violence in Conflict cites “a considered review of the implementation of the above commitments” as the rationale for continued engagement.59 Similarly, the 2015 Safe Schools Declaration states that the purpose of meeting regularly in the future is to “review the implementation of this declaration and the use of the [corresponding] guidelines.”60 In the 2013 Declaration of Commitment to End Sexual Violence in Conflict, states agree to “[s]upport and encourage the development of the International Protocol on the documentation and investigation of sexual violence in conflict at national, regional and international levels, with a view to its conclusion in 2014.”61

Application to an EWIPA Declaration

A political declaration on the use of explosive weapons should include a commitment for the states that are endorsing the declaration to meet again regularly. The commitment could also specify that discussions at these future meetings should focus on sharing information gathered, exchanging best practices, and determining what, if any, changes are necessary to strengthen implementation measures currently being undertaken. In particular, at these future meetings, states could analyze the ongoing use of explosive weapons and whether current measures associated with the declaration are sufficient.62 

Value of Establishing a Framework for Continued Engagement

Committing to establish a framework for continued engagement can be useful in several ways. First, such a commitment creates a framework for sharing ideas and information related to the declaration and its implementation. States can review the data gathered regarding the status of the problem being addressed and the progress made toward addressing it. This information can help states assess the adequacy of the political declaration and consider whether additional steps are needed. States can also exchange best practices and lessons learned regarding the operationalization of other commitments.

Second, like the data-gathering commitment, a commitment to continue engagement can facilitate compliance monitoring and promote accountability. The prospect of regular meetings can motivate states that have endorsed the declaration to achieve certain goals before they report to their peers. These meetings provide an opportunity to determine which states may need international assistance in order to achieve their political commitments. Continued engagement also normalizes and reifies the principles laid out in the declaration.

Third, a commitment to engage gives states the opportunity to address issues that they did not have the time or political will to address during the declaration drafting period.

Fourth, this kind of commitment creates an opportunity for parties to foster relationships and build on the political declaration. For example, a plan to meet again can provide a forum for states that are interested in developing other agreements complementary to the declaration in the future.

Appendix

Political Declarations Analyzed

Declaration of Commitment to End Sexual Violence in Conflict, 2013: Declaration to end rape and sexual violence in armed conflict.

Declaration on Anti-Vehicle Mines, 2006: Declaration developed through the forum of the Convention on Conventional Weapons calling on governments to limit their use of anti-vehicle mines.

Declaration on Cluster Munitions, 2006: Declaration developed through the forum of the Convention on Conventional Weapons calling for an agreement to prohibit cluster munitions.

G8 Declaration on Preventing Sexual Violence in Conflict, 2013: Declaration in which G8 foreign ministers recognize the need to work together to end sexual violence in conflict.

Geneva Declaration on Armed Violence and Development, 2006: Declaration to curb the negative effects of armed violence on development.

Joint Declaration for the Export and Subsequent Use of Armed or Strike-Enabled Unmanned Aerial Vehicles (UAVs), 2016: Declaration identifying principles to ensure the responsible export and subsequent use of unmanned aerial vehicles (UAVs).

Oslo Commitments on Armed Violence, 2010: Declaration outlining measures to prevent and reduce armed violence.

Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups, 2007: Declaration to end the recruitment and use of children by armed forces or armed groups.

Political Declaration on the Protection of Medical Care in Armed Conflict, 2017: Declaration to enhance protection of, and prevent acts of violence against, medical and humanitarian personnel.

Safe Schools Declaration, 2015: Declaration on preventing attacks on education during armed conflict, which includes endorsement of Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.

Posted: January 1, 1970, 12:00 am

Buildings destroyed by explosive weapons in the Ramouseh neighborhood of eastern Aleppo, Syria.

© 2019 AP Photo/Hassan Ammar
(Geneva) – Governments should make a commitment to protect civilians from the harmful impacts of explosive weapons used in towns and cities during conflicts, Human Rights Watch said in a report released today at a diplomatic conference in Geneva. 
 

The 23-page report, “A Commitment to Civilians: Precedent for a Political Declaration on Explosive Weapons in Populated Areas,” co-published by Harvard Law School’s International Human Rights Clinic, lays out the components of a new political declaration on explosive weapons, bolstering its case with precedent from existing declarations.

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Explosive weapons, including artillery shells, rockets, mortars, and air-dropped bombs, have recently caused civilian casualties in Afghanistan, Iraq, Libya, Syria, Yemen, and other countries. Civilians are often killed or injured by the initial explosion, crushed by collapsing buildings, or maimed by explosive remnants of war. Reverberating effects include damage to homes and essential infrastructure, interference with health care and education, large-scale displacement of people, degradation of the environment, and denial of humanitarian access.  

“We should not look away from today’s victims of conflict, who are all too often civilians living in towns and cities that are under attack from bombs, rockets, artillery shells, and other explosive weapons,” said Bonnie Docherty, senior arms researcher at Human Rights Watch. “Military forces should avoid using explosive weapons in populated areas due to the unacceptable harm they often cause.”

Two types of explosive weapons – antipersonnel landmines and cluster munitions – have been prohibited outright due to their indiscriminate and devastating effects on civilians. Yet other types of explosive weapons used in populated areas, especially those with wide-area effects, have become the primary cause of civilian harm in many of today’s armed conflicts, the organizations found.

In October 2019, more than 130 countries met in Austria to discuss how to better protect civilians in urban warfare. That meeting began a process in which, over the coming months, countries will negotiate the text of a political declaration aimed at reducing the civilian harm caused by the use of explosive weapons in populated areas. The current process is focused in particular on explosive weapons with wide-area effects, which can be attributed to inaccurate weapons, weapons with a large blast radius, or the delivery of multiple munitions at the same time. The declaration should recognize the rights of victims and affected communities.

Political declarations commit countries to individual and coordinated action to achieve agreed-upon political goals. While not legally binding, such commitments carry significant weight because they outline standards for conduct and clarify existing international law. For example, the 2015 Safe Schools Declaration, now endorsed by 99 countries, presses governments and others involved in armed conflict to restrict the military use of schools and to keep children in school during conflicts.

Political declarations almost always include commitments to adopt relevant practical measures and promulgate laws and policies at the national or international level, Human Rights Watch and the clinic said. Countries may pledge, for example, to reform military policies, increase training, and exchange best practices. Political declarations also usually include commitments to assist victims, gather and share data, and continue to engage with the problem at hand.

All of these commitments should be included in a political declaration on explosive weapons, the organizations said.

Human Rights Watch is a co-founder of the International Network on Explosive Weapons, a coalition established by humanitarian, legal, and other civil society groups in 2011 to push for immediate action to prevent human suffering from the use of explosive weapons in populated areas.

“Civilians in many countries are suffering enormous harm daily from the use of explosive weapons in urban areas,” said Docherty, who is also associate director of armed conflict and civilian protection at the clinic. “Countries should come together to say that they will do everything they can to protect people from this harm and to plan a course of action.”

Posted: January 1, 1970, 12:00 am

Thank you Mr. Chair.

The Campaign to Stop Killer Robots is the rapidly growing coalition of more than 130 non-governmental organizations in 60 countries working with urgency to prohibit fully autonomous weapons, also known as lethal autonomous weapons systems.

Mr. Chair, it’s abundantly clear from the Convention on Conventional Weapons deliberations since 2014 that such weapons systems raise a host of fundamental ethical, moral, legal, accountability, operational, and security challenges. These will only increase until there is regulation.

Weapons systems that would select and engage targets on the basis of sensor processing and that do not allow for meaningful human control will cross the threshold of acceptability and must be prohibited.

The Campaign to Stop Killer Robots urges states to launch negotiations here at the CCW or elsewhere on a legally binding instrument to ban fully autonomous weapons and preserve meaningful human control over the use of force. As we know well by now, this goal is now firmly shared by dozens of states, the United Nations (UN) Secretary-General, non-governmental organizations, and technology companies and workers.

Increasingly, we find that this goal is shared by the general public. A new poll out this week of ten European countries shows that three-quarters of those surveyed want their governments to work towards an international ban on lethal autonomous weapons systems.

One key finding is that the men and women surveyed supported the goal of a killer robots ban treaty in equal numbers. But note that for the minority of respondents who did not express support for a new treaty, more men opposed such a treaty than women. More women were undecided on the question of banning killer robots than men.

Mr. Chair, the CCW has been building a shared understanding on this issue for years now. But it struggles to agree on credible recommendations for multilateral action due to the objections of a handful of military powers, most notably Russia and the United States. Yet again, a couple of states can abuse a concept of ‘consensus’ to curb the ambition of a majority of the participating states and prevent a more focused mandate that would enable a more productive conversation.

It’s time to chart a new pathway forward. Last month at the United Nations General Assembly, foreign ministers from dozens of countries highlighted the importance of multilateral action on killer robots by signing on to the high-level political declaration presented by France and Germany.

With the political declaration behind us, we ask: what’s next? Commitments to discuss vague ‘normative frameworks’ and additional ‘guiding principles’ are a form of diplomatic treading water. You do not have time or money to waste on inconclusive deliberations. We have to ask if the purpose of these CCW talks to legitimize the development, production and use of killer robots? Because it increasingly looks like that to us. Is this what you mean by “operationalize”?

We have been listening carefully for any initiatives that you plan to undertake next year to address this concern outside of this forum as two weeks of CCW meetings per year are completely insufficient to make any meaningful progress. We welcome the symposium that Brazil plans to hold next February and urge all of you to consider how to advance discussions outside of the CCW.

Our Campaign will hold a regional meeting next month in Pakistan and then a global meeting of our membership in Argentina in February. We are focusing on building national understanding of this issue and seeking bold political leadership, which is clearly needed to achieve the goal of a new treaty.

To close, I was to remind you all that our coalition is not driven by concerns over “killer robots running amok” but rather by the urgent need to tackle the serious threats that fully autonomous weapons pose to our very humanity.

A new international ban treaty is the normative framework that’s urgently needed to prevent a dangerous future of lethal autonomous weapons systems. A new treaty is both achievable and necessary. It is a humanitarian priority and an ethical obligation.

Posted: January 1, 1970, 12:00 am

Thank you for the floor.

Human Rights Watch is one of the founders of the Campaign to Stop Killer Robots and the global coordinator of the Campaign. Over the past six years, we have urged High Contracting Parties to identify options for addressing the host of dangers posed by fully autonomous weapons, and to act concretely on those options.

We remain convinced that the only viable option is a preemptive prohibition on the development, production, and use of fully autonomous weapons. A majority of the world’s nations have called for negotiations on a legally binding instrument with prohibitions and restrictions. The UN SecretaryGeneral has called these weapons “morally repugnant and politically unacceptable.”

Yet a small group of states continues to impede significant progress in the CCW. The time is rapidly approaching when options other than the CCW must be considered.

Lethal autonomous weapons systems are not the only issue of deep concern in the CCW. Human Rights Watch also places a high priority on incendiary weapons. As we note in a new paper released this week, Protocol III imposes some restrictions on the use of incendiary weapons, but fails to provide sufficient protections for civilians.

Over the past year, the Syrian-Russian military alliance has continued to use incendiary weapons in or near civilian areas in Syria. In May and June alone, incendiary weapons were used at least 27 times, mostly in Idlib governorate, but the total number is most likely higher. A May 25 incendiary weapon attack in the Khan Sheikhoun area of Idlib burned approximately 175,000 square meters of farmland.

Since the conflict in Syria began in 2012, Human Rights Watch has documented about 150 incendiary weapon attacks by the Syrian-Russian military alliance. Human Rights Watch has used open-source material, satellite imagery analysis, and interviews to identify the attacks.

Incendiary weapons can inflict severe burns, leave extensive scarring, and cause respiratory damage and psychological trauma. They also start fires that destroy civilian homes, objects, and infrastructure.

There is a clear humanitarian imperative to deal with these cruel weapons. Yet at the last annual meeting of the CCW in November 2018, Russia blocked consensus on a widely supported proposal to continue dedicated discussions on incendiary weapons in 2019.

Protocol III has two major loopholes. First, its definition of incendiary weapons excludes multipurpose weapons, such as those with white phosphorus. White phosphorus munitions may be primarily designed to provide smokescreens or illumination, but they can inflict the same horrific injuries as other incendiary weapons.

Second, Protocol III prohibits the use of air-dropped incendiary weapons in populated areas, but allows the use of ground-delivered models in certain circumstances. Because all incendiary weapons cause the same effects, this arbitrary and outdated distinction should be eliminated. A complete ban on incendiary weapons would have the greatest humanitarian benefits.

During this meeting, High Contracting Parties should take the following steps:

  • set aside time in 2020 for an in-depth discussion of the implementation and adequacy of Protocol III;
  • condemn any use of incendiary weapons;
  • express their views on the adequacy of Protocol III, and elaborate policies and practices more generally; and
  • reinstate incendiary weapons as a separate agenda item for the CCW.

For the longer term, states should work to close Protocol III’s loopholes and further stigmatize the use of incendiary weapons, with an eye to agreeing to amend the instrument at the 2021 Review Conference.

Thank you.

Posted: January 1, 1970, 12:00 am

The Campaign to Stop Killer Robots conducts a visual stunt in front of the Brandenburg Gate in Berlin, Germany in March 2018. 

© 2018 Clare Conboy
(Geneva) – Almost three in every four people responding to a new poll in 10 European countries want their governments to work for an international treaty prohibiting lethal autonomous weapons systems, Human Rights Watch said today. At the conclusion of a diplomatic meeting scheduled for November 13-15, 2019, states will determine the next steps for addressing the threats posed by such weapons, which, once activated, would select and attack targets without human intervention.

“Banning killer robots is both politically savvy and morally necessary,” said Mary Wareham, the Arms Division advocacy director at Human Rights Watch and coordinator of the Campaign to Stop Killer Robots. “European states should take the lead and open ban treaty negotiations if they are serious about protecting the world from this horrific development.”

Countries attending the annual meeting of states parties to the Convention on Conventional Weapons (CCW) at the United Nations in Geneva will decide on November 15 whether to continue diplomatic talks on killer robots, also known as lethal autonomous weapons systems or fully autonomous weapons.

Since 2014, these states have held eight meetings on lethal autonomous weapons systems under the auspices of the Convention on Conventional Weapons (CCW), a major disarmament treaty. Over the course of those meetings, states have built a shared understanding of concern, but they have struggled to reach agreement on credible recommendations for multilateral action due to the objections of a handful of military powers, most notably Russia and the United States. These nations, along with China, Israel, and South Korea, are investing significantly in weapons with decreasing levels of human control in their critical functions, driving fears of widespread proliferation and arms races leading to global and regional instability.

Past failures by CCW states parties to stem human suffering caused by antipersonnel landmines and cluster munitions resulted in external diplomatic processes that delivered life-saving treaties to ban the weapons. Those treaties were the result of partnerships between like-minded countries, UN agencies, the International Committee of the Red Cross (ICRC), and dedicated coalitions of nongovernmental organizations. The lack of agreement among nuclear weapons states to disarm led other countries to create the 2017 Treaty on the Prohibition of Nuclear Weapons via the UN General Assembly.

“We clearly need to begin charting a new path forward in a new forum, by 2021 at the latest, as the current talks seem destined for failure,” Wareham said. “Commitments to discuss vague ‘normative frameworks’ and additional ‘guiding principles’ are simply a form of diplomatic treading water.”

Human Rights Watch co-founded and coordinates the Campaign to Stop Killer Robots, which commissioned the survey by the global public opinion and data company YouGov. The survey was conducted in October in Belgium, Finland, Germany, Hungary, Ireland, Italy, the Netherlands, Norway, Spain, and Switzerland. The governments of these countries all agree that it is important to retain human control over the use of force, but none are currently working for new international law on lethal autonomous weapons systems.

The poll asked: “Do you think [COUNTRY] should work towards an international ban on lethal autonomous weapons systems?” The YouGov survey used random respondent pools of 500 – 1,000 people in each country, except Germany, which used a random respondent pool of 2,047 people.

Seventy-three percent of survey respondents said they favor their country working for an international ban on lethal autonomous weapons systems. Thirteen percent did not, while 14 percent said they were not sure or preferred not to answer.

The strongest support was in Ireland (81 percent), the Netherlands (80 percent), Hungary (78 percent), and Spain (77 percent) followed by Italy (75 percent), Norway (72 percent), Switzerland (72 percent), Belgium (71 percent), and Germany (69 percent). In Finland, 60 percent of respondents favored their government working for an international treaty to ban killer robots, but more than a quarter (28 percent) said they did not know.

Support for creating a killer robots treaty was strong among both women (74 percent) and men (71 percent). However, more men (17 percent) opposed the idea of their country working to ban killer robots compared to women (10 percent), who were more likely to be undecided (16 percent) than men (12 percent).

All age groups polled expressed support for a treaty (from 67 percent to 78 percent). Those most in favor were age 55 or above.

Since 2013, 30 countries have called for a ban on fully autonomous weapons, including Jordan and Namibia in 2019. Austria, Brazil, and Chile have formally proposed the urgent negotiation of “a legally binding instrument to ensure meaningful human control over the critical functions” of weapons systems.

The Campaign to Stop Killer Robots is a rapidly growing coalition of 130 nongovernmental organizations in 60 countries that is working to ban fully autonomous weapons and retain meaningful human control over the use of force. Human Rights Watch arms director Steve Goose and senior arms researcher Bonnie Docherty will address a Campaign to Stop Killer Robots briefing for CCW delegates on November 13 at the UN in Geneva.

“As the public learns more about the serious threat that fully autonomous weapons pose to humanity, they will expect legislative action,” Wareham said. “Governments need to provide more than just empty rhetoric affirming the importance of retaining human control over increasingly autonomous weapons systems.”

 
Posted: January 1, 1970, 12:00 am

Use of an incendiary weapon in Bdama, Idlib in July 2018.

© 2018 Syria Civil Defense

Ten years ago, images of white phosphorus munitions raining fire on populated areas of Gaza generated international outrage and sparked discussions of incendiary weapons at the United Nations. The Israel Defense Forces’ use of white phosphorus in January 2009 caused civilian casualties and damaged civilian structures, including a school, market, humanitarian aid warehouse, and hospital.1 At the following year’s Meeting of States Parties to the Convention on Conventional Weapons (CCW), several states condemned the attacks and highlighted the shortcomings of CCW Protocol III, which governs incendiary weapons.2 Since then, as use of incendiary weapons has spread to other conflicts, including in Syria and Ukraine, calls to review the protocol’s adequacy and strengthen its humanitarian protections have increased. 

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Incendiary weapons, which start fires and burn people, are notorious for the severity of the immediate and long-term injuries they cause. Adopted in 1980, Protocol III regulates the use of incendiary weapons, but its efficacy as a humanitarian instrument is limited by two key loopholes. First, its design-based definition arguably excludes certain multipurpose munitions with incendiary effects, notably those with white phosphorus. Second, the protocol contains weaker restrictions for ground-launched incendiary weapons than air-dropped versions, even though all such weapons cause horrific harm.

After years of slow but steady progress, efforts to strengthen international law on incendiary weapons took a step backwards at the CCW’s annual meeting in November 2018. Russia took advantage of the desire for consensus and blocked the widely supported proposal to continue dedicated discussions of incendiary weapons under a separate agenda item at the CCW’s November 2019 meeting. Meanwhile, in Syria, the Syrian-Russian military alliance continued its use of incendiary weapons in or near civilian areas.

Despite this setback, CCW states parties should continue to speak out on incendiary weapons and demand time for a reassessment of Protocol III. Indeed, they should intensify their work on the topic now so that they are prepared to take concrete action at the 2021 CCW Review Conference. In particular, they should:

  • Condemn ongoing use of incendiary weapons;

  • Express their views on the adequacy of Protocol III during the general debate or the session on the status and operation of the protocols;

  • Work to close Protocol III’s loopholes and further stigmatize the use of incendiary weapons. A complete ban on incendiary weapons would have the greatest humanitarian benefits; and

  • Set aside time in 2020 for an in-depth discussion of the implementation and adequacy of Protocol III, with an eye to agreeing to amend the instrument at the 2021 Review Conference.

Incendiary Weapons and the Harm They Cause

Incendiary weapons produce heat and fire through the chemical reaction of a flammable substance.3 They can be used to burn people or material or to penetrate plate metal. Due to their extreme heat, incendiary weapons can cause severe fourth-degree or even fifth-degree burns, often killing or physically and psychologically scarring their victims.4 Survivors face an array of other short-term and long-term consequences, including but not limited to: lingering respiratory problems from smoke inhalation, severe infection, shock, organ failure, muscle weakness, and lifelong disability. The disabilities and disfigurement caused by incendiary weapons sometimes lead to socioeconomic exclusion. The use of incendiary weapons also results in the destruction of homes, hospitals, schools, farmland, and other civilian infrastructure, and can cause displacement.

Although primarily designed to produce smokescreens and thus arguably not covered by Protocol III’s definition of incendiary weapons (see further discussion below), white phosphorus munitions operate in the same manner and produce the same effects as other incendiary weapons.5 When white phosphorus comes into contact with skin, it inflicts intense and persistent burns, sometimes to the bone. Infection is common, and the body’s absorption of the chemical can cause serious damage to internal organs as well as death. Because white phosphorus burns on contact with oxygen, treated wounds can reignite when bandages are removed.

Protocol III and Its Loopholes

Protocol III seeks to protect civilians and civilian objects by regulating the use of incendiary weapons in “concentrations of civilians” and in “forests and other kinds of plant cover.”6 Nevertheless, it contains two legal loopholes that reduce its effectiveness.

First, Protocol III’s definition of incendiary weapons arguably excludes most multipurpose incendiary munitions. According to Article 1(1), an incendiary weapon is “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.” The definition does not encompass munitions, like those containing white phosphorus, that set fires and cause burns but are “primarily designed” to create smokescreens or signal troops.7 The nature or magnitude of impact or injury is not taken into account, as long as its primary purpose is considered beyond the scope of the protocol. The applicability of Protocol Ill thus depends largely on how developers, manufacturers, and users describe the purpose of a weapon.

Second, Protocol III draws an arbitrary and outdated distinction between air-dropped and ground-launched incendiary weapons. It prohibits the use of air-dropped models in concentrations of civilians, but the provision on the use of ground-launched incendiary weapons in such areas includes several caveats, falling short of a ban. This loophole ignores the reality that incendiary weapons cause the same horrific burns and destructive fires regardless of their delivery mechanism. In addition, ground-launched incendiary weapons, especially when delivered by multi-barrel rocket launchers, can have wide area effects comparable to air-dropped ones, which makes them dangerous to civilians when used in populated areas. Furthermore, non-state armed groups have greater access to ground-launched incendiary weapons and may feel less pressure not to use them if international law, and the resulting norm, is less than absolute.

It would be legally, if not politically, straightforward to close both these loopholes. Article 1(1) of Protocol III could be amended to redefine incendiary weapons as weapons that “have the effect of setting fires and causing burns….” Article 2 could be rewritten to prohibit the use of any incendiary weapon, regardless of its delivery mechanism, within a concentration of civilians. These changes would create stronger rules for states parties and increase the stigma against incendiary weapons, influencing even actors outside the treaty.

Ongoing Use in Syria

Ongoing use of incendiary weapons, including in concentrations of civilians, highlights the need for stronger international law. While the use of white phosphorus dominated discussions a decade ago, the intervening years have provided a reminder that other types of incendiary weapons are problematic as well.

Syrian government forces have been using incendiary weapons in concentrations of civilians in Syria since 2012.8 Incendiary weapons attacks in Syria became more frequent after Russia began joint operations with Syrian government forces in September 2015. Syria has not joined CCW Protocol III, but Russia is a party and legally bound by its provisions.

Since November 2012, Human Rights Watch has identified about 150 incendiary weapons attacks by the Syrian-Russian military alliance in Syria. In May-June 2019 alone, it identified 27 uses of incendiary weapons. The total number of attacks is likely much higher because some go unreported and others are not recorded by visual media so cannot be investigated.

Most of the documented incendiary weapon attacks in 2019 took place in Idlib governorate. An attack on May 25 in Khan Sheikhoun, Idlib, for example, left approximately 175,000 square meters of farmland burned, according to Human Rights Watch’s analysis of satellite imagery.9 

Human Rights Watch also documented this year six strikes in Hama governorate and one in the village of Tal Hadya near Aleppo. Ground-launched incendiary rockets account for almost all of the attacks recorded in 2019.

In 2018, two-thirds of the 30 incendiary weapons attacks documented by Human Rights Watch involved ground-launched models, but airstrikes also caused harm. For example, Syria Civil Defense reported that on March 16, 2018, an air attack with an RBK-500 bomb carrying ZAB incendiary submunitions killed at least 61 people and injured more than 200 in Kafr Batna in Eastern Ghouta.10

To make these identifications, Human Rights Watch reviewed videos and photographs of the use of incendiary weapons that were taken by the general public, first responders, and activists. The organization examined testimony and additional visual material from after attacks showing the effects of incendiary weapons and the remnants they left behind. Human Rights Watch also relied on satellite imagery analysis. 

Human Rights Watch is also looking into the alleged use of white phosphorus in Syria by Turkey and its allies in October 2019, but it has not confirmed whether the allegations are true.11

Political Support despite Short-Term Setback

Since 2010, the use of incendiary weapons in Gaza, Iraq, Syria, Ukraine, Yemen, and elsewhere has generated debate at the CCW’s annual meetings. Over that period, at least 36 states, the European Union, and other international actors have publicly expressed their concern about the use of incendiary weapons and white phosphorus.12 During the 2018 meeting, almost all of the 19 states that engaged in discussions about incendiary weapons expressed concerns and/or a desire to continue such discussions. Protocol III, however, was dropped from the 2019 agenda due to pressure from a few states, most vocally from Russia. Russia argued that any problems with the use of incendiary weapons were a result of poor implementation of the treaty and that continued discussions would have no added value.13

Condemnation and Concern

At least 11 states plus the European Union expressed concerns about or condemned the use of incendiary weapons on civilians since the beginning of the Syrian conflict.14 Croatia emphasized the “gruesome effects of incendiary weapons on victims” as shown in coverage of hostilities in Syria.15 New Zealand stated that it was “gravely concerned” about that use.16 These states were joined by Australia, Austria, Germany, Ireland, Mexico, Montenegro, the United Kingdom, and the European Union in their disapproval.

The final report of the meeting reflected these views. It declared that a “number of High Contracting Parties raised concerns over the recent growing number of reports of use of incendiary weapons against civilians and condemned any use of incendiary weapons against civilians or civilian objects, and any other use incompatible with relevant rules of International Humanitarian Law, including the provisions of Protocol III, where applicable.”17

States have also expressed concern about the effects of incendiary weapons in other international fora. In a statement during the UN General Assembly’s First Committee on Disarmament and International Security in October 2019, the Non-Aligned Movement expressed “grave concern over the reported use in civilian areas of harmful and potentially fatal incendiary weapons such as white phosphorus.”18

Calls for Further Discussion

Most of the states that spoke during the 2018 annual CCW meeting supported the discussions of incendiary weapons and the inclusion of Protocol III on the agenda. The majority of these also explicitly called for further work. For example, Croatia urged states to use the CCW as the forum to “address observed shortcomings of Protocol III that arise from the challenges in implementation, universalization, technological advancements and evolution of the provisions of international humanitarian law.”19 Switzerland, concerned with reports of the use of incendiary weapons, stated that “the distinction of delivery methods warrant an in-depth discussion about humanitarian considerations, military necessity and legal questions raised by the use of incendiary weapons and munitions whose effects may be similar.”20

Recognizing the need to spend more time discussing Protocol III, New Zealand called for Protocol III to remain on the agenda of the CCW’s annual meeting. It also “remain[ed] open to the convening of an informal meeting to discuss universalisation, implementation and adequacy of Protocol III in light of the humanitarian concerns that surround incendiary weapons.”21 Such a meeting would be held outside of the formal Meeting of States Parties and would allow for even more in-depth discussions.

Looking forward, multiple states argued that Protocol III should be taken up at the 2021 Review Conference. Ireland said that “the continued applicability and relevance of Protocol III is an issue appropriate for further consideration at the next Review Conference.” Panama expressed that it was imperative for states to discuss ways to strengthen the protocol and close loopholes in preparation for the next Review Conference.22 

International and nongovernmental organizations also welcomed the discussions and called for them to continue. The International Committee of the Red Cross urged states “to report on their national policies and operational practice with regard to the use of incendiary weapons, and of weapons with incidental incendiary effects, to help to inform discussions in the CCW regarding compliance with Protocol III, rules of customary IHL [international humanitarian law] applicable to incendiary weapons, and the general rules of IHL on the conduct of hostilities.”23 Civil society organizations, including Human Rights Watch, Article 36, and PAX, called for both further discussions and amendments to strengthen Protocol III.

Strengthening or Amending Protocol III

In 2018, at least seven states specifically called for strengthening or amending Protocol III to close the loopholes that exist due to the protocol’s arbitrary and outdated distinctions.24 Mexico advocated for expanding the scope of the protocol to include weapons with incendiary effects.25 Argentina emphasized that Protocol III is limited because it does not “cover all uses of incendiary weapons,” and expressed its commitment to review and strengthen the protocol.26 Recognizing that Protocol III distinguishes between different delivery mechanisms, the Holy See called for “an honest technical and legal review of the provisions contained in Protocol III in order to strengthen this instrument [so] as to remain relevant in today’s conflicts and enhance protections.”27 Additionally, Chile said that Protocol III’s scope of application and definitions are of particular concern.28 These states were joined by Austria, Croatia, and Panama.

Conclusion

The ongoing use of incendiary weapons underscores the need for stronger international law, and the statements made at last year’s CCW meeting show that there is an appetite for more in-depth consideration of the adequacy of Protocol III. States should seize the opportunity presented by the 2021 Review Conference to take concrete actions to increase the protection of civilians from incendiary weapons. They should not stand by until then, however. CCW states parties should set aside time for substantive discussions of the issue in 2020 in order to be fully prepared to initiate the process to amend Protocol III at the Review Conference.

  • 1. Human Rights Watch, Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, March 2009, https://www.hrw.org/report/2009/03/25/rain-fire/israels-unlawful-use-whi....
  • 2. Convention on Conventional Weapons (CCW) Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol Ill), adopted October 10, 1980, 1342 U.N.T.S. 171, entered into force December 2, 1983.
  • 3. For more information on the harm caused by incendiary weapons, see Human Rights Watch and the Harvard Law School International Human Rights Clinic, An Overdue Review: Addressing Incendiary Weapons in the Contemporary Context, November 2017, http://hrp.law.harvard.edu/wp-content/uploads/2017/11/AnOverdueReview.pdf, pp. 3-5.
  • 4. UN Department of Political and Security Council Affairs, “Napalm and Other Incendiary Weapons and All Aspects of Their Possible Use: Report of the Secretary-General,” A/ 8803/Rev. 1, 1973, pp. 30–31.
  • 5. Although white phosphorus munitions are generally designed to produce smokescreens, armed forces have used them specifically for their incendiary properties, including when targeting people or material or “smoking out” sheltered persons in order to kill them with other weapons.
  • 6. CCW Protocol Ill, art. 2.
  • 7. Maj. Shane R. Reeves, a military officer and professor at the US Military Academy at West Point, interprets Protocol Ill to exclude white phosphorus when it is intended for something other than burning. Major Reeves explained: “[W]hen white phosphorus munitions are employed for a non-incendiary purpose,” such as to create a smokescreen, “the munitions clearly fall outside the definition of an ‘incendiary weapon’ and will not be regulated by Protocol Ill.” Even though “white phosphorous is at times employed solely because of its ‘incidental’ incendiary effects, thus essentially converting the munition into an incendiary weapon,” the current design-based definition in Protocol Ill ensures that white phosphorus escapes regulation. Maj. Shane R. Reeves, “The ‘Incendiary’ Effect of White Phosphorous in Counterinsurgency Operations,” The Army Lawyer (June 2010), https://ssrn.com/ abstract=2295118 (accessed November 1, 2019), p. 86.
  • 8. For more information on use of incendiary weapons in Syria, see Human Rights Watch and IHRC, An Overdue Review, November 20, 2017, https://www.hrw.org/news/2017/11/20/overdue-review-addressing-incendiary..., pp. 14-18.
  • 9. Human Rights Watch, “Russia/Syria: Flurry of Prohibited Weapons Attacks,” June 3, 2019, https://www.hrw.org/news/2019/06/03/russia/syria-flurry-prohibited-weapo....
  • 10. Syria Civil Defense, “A horrific massacre including unconscienable [sic] Napalm air strikes killed at least 61 civilians in #Kafr_Bata Town,” Twitter, March 16, 2018, https://twitter.com/SyriaCivilDef/status/974660689502629889 (accessed November 1, 2019).
  • 11. “Kurds Accuse Turkey of Using Napalm and White Phosphorus,” France 24, October 24, 2019, https://www.france24.com/en/20191017-kurds-accuse-turkey-of-using-napalm... (accessed November 1, 2019).
  • 12. Argentina, Australia, Austria, Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Djibouti, Ecuador, Estonia, Finland, France, the Holy See, Hungary, Ireland, Italy, Kazakhstan, Latvia, Lithuania, Mauritius, Mexico, Moldova, Montenegro, the Netherlands, New Zealand, Nigeria, Pakistan, Palestine, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and the United States, as well as the European Union. See statements from CCW Meetings of States Parties and Review Conferences between 2010-2018, generally available at UN Office at Geneva, “The Convention on Certain Conventional Weapons: Meetings of the States Parties,” https://www.unog.ch/80256EE600585943/(httpPages)/4F0DEF093B4860B4C1257180004B1B30?OpenDocument (accessed November 1, 2019), and Reaching Critical Will, “Convention on Certain Conventional Weapons (CCW),” http://reachingcriticalwill.org/disarmament-fora/ccw (accessed November 1, 2019). See also Human Rights Watch notes from those meetings.
  • 13. Statement of Russia, CCW Meeting of States Parties, Geneva, November 22, 2018.
  • 14. Australia, Austria, Croatia, Germany, the Holy See, Ireland, Mexico, Montenegro, New Zealand, Switzerland, United Kingdom and the European Union. See statements from CCW Meeting of States Parties, 2018, generally available at UN Office at Geneva, “The Convention on Certain Conventional Weapons: Meetings of the States Parties,” and Reaching Critical Will, “Convention on Certain Conventional Weapons (CCW).” See also Human Rights Watch notes from those meetings.
  • 15. Statement of Croatia, CCW Meeting of States Parties, Geneva, November 21, 2018.
  • 16. Statement of New Zealand, CCW Meeting of States Parties, Geneva, November 22, 2018.
  • 17. CCW Meeting of High Contracting Parties, “Final Report,” CCW/MSP/2018/11, Geneva, December 28, 2018.
  • 18. Statement by Indonesia on behalf of the Non-Aligned Movement, First Committee, 74th Session, UN General Assembly, New York, November 22, 2019.
  • 19. Statement of Croatia, CCW Meeting of States Parties, Geneva, November 21, 2018.
  • 20. Statement of Switzerland, CCW Meeting of States Parties, Geneva, November 22, 2018.
  • 21. Statement of New Zealand, CCW Meeting of States Parties, Geneva, November 22, 2018.
  • 22. Statement of Panama, CCW Meeting of States Parties, Geneva, November 21, 2018 (IHRC translation).
  • 23. Statement of the International Committee of the Red Cross (ICRC), CCW Meeting of States Parties, Geneva, November 22, 2018.
  • 24. Argentina, Austria, Chile, Croatia, the Holy See, Mexico, and Panama discussed closing loopholes in Protocol III at the 2018 Meeting of States Parties. See statements from CCW Meeting of States Parties, 2018, generally available at UN Office at Geneva, “The Convention on Certain Conventional Weapons: Meetings of the States Parties,” and Reaching Critical Will, “Convention on Certain Conventional Weapons (CCW).” See also Human Rights Watch notes from those meetings.
  • 25. Statement of Mexico, CCW Meeting of States Parties, Geneva, November 21, 2018 (IHRC translation).
  • 26. Statement of Argentina, CCW Meeting of States Parties, Geneva, November 21, 2018.
  • 27. Statement of the Holy See, CCW Meeting of States Parties, Geneva, November 21, 2018.
  • 28. Statement of Chile, CCW Meeting of States Parties, Geneva, November 22, 2018.
Posted: January 1, 1970, 12:00 am

Use of an incendiary weapon in Bdama, Idlib in July 2018.

© 2018 Syria Civil Defense

(Geneva) – Russia should support, not block, diplomatic talks about possible action to address the civilian harm caused by the use of incendiary weapons, Human Rights Watch said in a report released today. 

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Issued ahead of an upcoming United Nations disarmament conference, the nine-page report, -“Standing Firm against Incendiary Weapons,” co-published by Harvard Law School’s International Human Rights Clinic, highlights the weaknesses of international law regulating incendiary weapons. Such weapons can inflict severe burns, leave extensive scarring, and cause respiratory damage and psychological trauma. Incendiary weapons also start fires that destroy civilian homes, objects, and infrastructure.

“Russia’s regrettable opposition scuttled stand-alone diplomatic discussion this year on incendiary weapons,” said Bonnie Docherty, senior arms researcher at Human Rights Watch and lead author of the report. “Yet there’s a clear humanitarian imperative to deal with these cruel weapons.”

Countries that are party to the Convention on Conventional Weapons (CCW) are scheduled to consider incendiary weapons, killer robots, and other arms concerns at the United Nations in Geneva from November 13 to 15, 2019. At the last annual meeting of the CCW in November 2018, Russia blocked consensus on a widely supported proposal to continue dedicated discussions on incendiary weapons in 2019.

Over the past year, the Syrian-Russian military alliance has continued to use incendiary weapons in or near civilian areas in Syria. In May and June alone, incendiary weapons were used at least 27 times, mostly in Idlib governorate, but the total number is most likely higher. A May 25 incendiary weapon attack in the Khan Sheikhoun area of Idlib burned approximately 175,000 square meters of farmland, based on a Human Rights Watch analysis of satellite imagery. Syria has not joined CCW’s Protocol III, which governs incendiary weapons, but Russia has.

Since the conflict in Syria began in 2012, Human Rights Watch has documented about 150 incendiary weapon attacks by the Syrian-Russian military alliance using ground-launched rockets and air-delivered weapons. Human Rights Watch has used open-source material, satellite imagery analysis, and interviews to identify the attacks.

At the United Nations in October, Russia’s diplomatic representative said it regards Protocol III as “strong and efficient” enough to prevent civilian harm from incendiary weapons. Russia said it is open to considering “concrete proposals” for reviewing the protocol’s effectiveness, but told Human Rights Watch it regards any effort to review and reopen the protocol as “dangerous.”

CCW Protocol III imposes some restrictions on the use of incendiary weapons, but it fails to provide sufficient protections for civilians. The countries at the UN meeting should agree to restart the talks blocked by Russia last year and take steps to review the protocol more formally in 2020 with the intention of strengthening its protections for civilians. They should also articulate their policies and practices on incendiary weapons.

Protocol III’s definition of incendiary weapons, one of its major loopholes, excludes multipurpose weapons, such as those with white phosphorus. White phosphorus munitions may be primarily designed to provide smokescreens or illumination, but they can inflict the same horrific injuries as other incendiary weapons. Ten years ago, images of Israeli forces using US-made white phosphorus munitions in densely-populated Gaza, which caused civilian casualties and damaged a school, market, humanitarian aid warehouse, and other civilian infrastructure, generated international outrage. Israel and the United States are party to Protocol III.

White phosphorus is highly soluble in fat and therefore deeply burns human flesh. If fragments of white phosphorus enter the bloodstream, they can lead to multiple organ failure. Already-dressed wounds can reignite when dressings are removed and they are re-exposed to oxygen.

“White phosphorus should never be used as an incendiary weapon in populated areas due to the high risk of horrific and long-lasting injury to both civilians and combatants,” said Docherty, who is also associate director of armed conflict and civilian protection at the Harvard clinic. “Because it can burn to the bone, even relatively minor burns from white phosphorus are often fatal.”

Human Rights Watch is reviewing allegations that Turkey has used white phosphorus in recent weeks in its military offensive in northeast Syria. Some media outlets have erroneously described white phosphorus as a chemical weapon. Incendiary weapons produce heat and fire through the chemical reaction of a flammable substance, while chemical weapons inflict harm due to the toxicity of the chemicals they release.

Protocol III prohibits the use of air-dropped incendiary weapons in populated areas, but allows the use of ground-delivered models in certain circumstances. Because all incendiary weapons cause the same effects, this arbitrary and outdated distinction should be eliminated. A complete ban on incendiary weapons would have the greatest humanitarian benefits.

“Humanitarian concerns call for nations to make simple fixes to close the loopholes in existing law and further stigmatize any use of incendiary weapons,” Docherty said.

Posted: January 1, 1970, 12:00 am

Summary

Through much of 2019, the United States government and Taliban insurgents were engaged in negotiations toward an agreement that could lead to the eventual withdrawal of US forces in Afghanistan. Those negotiations officially halted, at least temporarily, on September 7, 2019. In the absence of a larger political settlement, any agreement between the US and Taliban would not end the armed conflict between the Afghan government and the Taliban, nor resolve a range of conflicts that have fueled fighting among various Afghan factions for over four decades. If there is a political settlement, the kind of Afghan government that emerges, the structure of the country’s defense forces, and the extent to which existing militia and insurgent forces demobilize and disarm will all be critically important.

One glaring omission in the negotiations so far has been discussion of the future of clandestine Afghan forces operating as part of the covert operations of the Central Intelligence Agency (CIA) in Afghanistan, with ground support from US special forces seconded to the CIA and air support from the US military, including intelligence and surveillance in the identification of targets. A number of US military officials have sought to retain these Afghan paramilitary forces in Afghanistan as a bulwark against Al-Qaeda and the Islamic State (also known as ISIS). These troops include Afghan strike forces who have been responsible for extrajudicial executions and enforced disappearances, indiscriminate airstrikes, attacks on medical facilities, and other violations of international humanitarian law, or the laws of war.

Among the recent cases Human Rights Watch has documented:

In March 2018, Afghan paramilitary forces raided the home of a staff member of an Afghan nongovernmental organization (NGO). The forces arrived late at night at the family compound and separated the women from the men. They singled out the staff member’s brother and took him to another part of the house. They shot him, leaving the body, and left with another male family member, whom the government later denied holding.
In October 2018, an Afghan paramilitary force unit raided a home in the Rodat district of Nangarhar province, shooting dead five civilian members of one family, including an elderly woman and child.
In December 2018, the Khost Protection Force fatally shot six civilians during a night search operation in Paktia province. They shot Naim Faruqi, a 60-year-old tribal elder and provincial peace council member, in the eye, and his nephew, a student in his 20s, in the mouth.

These are not isolated cases. This report documents 14 cases in which CIA-backed Afghan strike forces committed serious abuses between late 2017 and mid-2019. They are illustrative of a larger pattern of serious laws-of-war violations—some amounting to war crimes—that extends to all provinces in Afghanistan where these paramilitary forces operate with impunity.

In the course of researching this report, Afghan officials, civil society and human rights activists, Afghan and foreign healthcare workers, journalists, and community elders all described abusive raids and indiscriminate airstrikes as having become a daily fact of life for many communities—often with devastating consequences. Speaking to Human Rights Watch, one diplomat familiar with Afghan strike force operations referred to them as “death squads.”

Afghan paramilitary forces nominally belong to the Afghan National Directorate of Security (NDS), the country’s primary intelligence agency. However, these forces do not fall under the ordinary chain of command within the NDS, nor under normal Afghan or US military chains of command. They largely have been recruited, trained, equipped, and overseen by the CIA. They often have US special forces personnel deployed alongside them during kill-or-capture operations; these US forces, primarily Army Rangers, have been seconded to the CIA. Afghan paramilitary strike forces generally carry out operations with US logistical support and are dependent on US intelligence and surveillance for targeting.

Search operations in Afghan villages to “kill or capture” insurgents conducted at night (“night raids”) have long raised controversy in Afghanistan because they frequently harm civilians and civilian property. Nonetheless, there has been a sharp increase in these operations since late 2017.

In 2017, in a departure from previous policy, the US authorized Afghan special forces, including these paramilitary units, to call in airstrikes for support even without US forces present to identify the targets. Changes to targeting directives have meant that airstrikes are hitting more residential buildings, while a decreased US ground presence and a reliance on local Afghan intelligence sources has meant there is less information available about the possible presence of civilians in those buildings.

Taliban forces have frequently committed violations of the laws of war and human rights abuses, including indiscriminate attacks that have killed and injured civilians, as well as using civilians as shields. Afghan National Defense and Security Force (ANDSF) officials and their US counterparts contend that night raids backed by air operations are necessary in a war in which insurgent forces deploy among the civilian population. But Taliban forces unlawfully putting civilians at risk does not justify Afghan and US military operations that cause indiscriminate or disproportionate loss of civilian life, nor attacks on medical facilities. The deliberate killing of civilians or combatants in custody is never lawful.

In many of the night raids that Human Rights Watch investigated, Afghan paramilitary forces seem to have unlawfully targeted civilians because of mistaken identity, poor intelligence, or political rivalries in the locality.

Faulty Intelligence

In many cases, paramilitary units apparently targeted houses for night raids or airstrikes based on intelligence that family members had provided food to Taliban or ISIS insurgents (often under duress); were nearby when insurgents carried out attacks on government forces; or may have had political or tribal links that made them susceptible to local rivalries and false accusations of links with insurgent groups.

Guilt by Association

In some cases, these paramilitary forces targeted medical staff working in clinics in contested or Taliban-controlled areas because they treated wounded insurgents. Civilians in these areas also described living in fear that the near constant presence of drones, aircraft, and helicopters searching for insurgents who live in their villages left them vulnerable to being targeted at any time as fighters.

Willful Violation of the Law

In many cases, paramilitary strike forces summarily executed persons taken into custody or forcibly disappeared them, not telling their families about their fate or whereabouts. In none of the cases Human Rights Watch investigated did the civilians who were killed offer resistance or act in any way that justified the use of force.

Failure to Investigate

Under the laws of war, the government has an obligation to investigate alleged war crimes by its forces and appropriately prosecute those responsible. Neither the Afghan military nor the government has developed any meaningful capacity to investigate possible violations arising from their military operations, despite years of training by the US and others. They lack both the capacity and the political will to investigate incidents involving these CIA-backed paramilitary forces.

In the very few cases in which the Afghan government has promised to investigate incidents, no findings have been made public. We are unaware of any cases in which those responsible for serious crimes, including murder, have been held to account, nor have the victims been able to obtain redress. Foreign forces taking part in military operations are also obligated to investigate alleged wrongdoing. As a matter of policy, the US military does not respond to questions about clandestine operations.

At their core, the behavior of these Afghan paramilitary forces reflects the propensity of the US and Afghan governments to prioritize short-term military fixes over long-term reforms that would promote security and the rule of law. As these forces commit serious abuses without accountability, they foster an environment that contributes to, rather than reduces, general lawlessness and distrust of the government in the areas in which they deploy.

Even though the paramilitary strike forces operate outside of the usual Afghan military chain of command and have repeatedly been involved in rights abuses, official calls to preserve them remain strong. Ultimately, the strike forces are just the latest manifestation of US and Afghan government attempts since 2001 to unleash forces largely unbound by the laws of war in a counterproductive approach to combatting insurgency, from the Taliban to Al-Qaeda to ISIS. Rather than bringing stability to Afghanistan, they have undermined Afghan institutions and put many Afghans at risk.

Recommendations

All parties to the armed conflict in Afghanistan, including insurgent forces, are obligated to abide by international humanitarian law, or the laws of war. Specifically, the laws of war prohibit deliberate or indiscriminate attacks on civilians and civilian structures, including medical workers and facilities; summary executions of anyone in custody; and enforced disappearances, including secret detention.

To the Government of Afghanistan

Immediately disband and disarm all pro-government armed groups, paramilitary strike forces, and militias, including National Directorate of Security strike force units, the Khost Protection Force, and other counterinsurgency forces that are not under the Afghan National Defense and Security Forces chain of command. Only incorporate such forces into the ANDSF following a robust vetting procedure to screen out individuals against whom there are credible allegations of war crimes.
Cooperate with independent investigations into these allegations, including those carried out by the Afghanistan Independent Human Rights Commission, in order to facilitate accountability.Cooperate with independent investigations into these allegations, including those carried out by the Afghanistan Independent Human Rights Commission, in order to facilitate accountability.
Promptly and impartially investigate existing allegations of secret detentions and enforced disappearances, locate and release those unlawfully held, and prosecute those responsible, including as a matter of command responsibility.
Take all necessary measures to end attacks on medical personnel and medical facilities, including those providing care to suspected insurgents.
Investigate all serious allegations of violations of human rights and the laws of war, and appropriately prosecute those responsible for war crimes.
Investigate military operations that result in civilian casualties to provide an effective feedback mechanism to reduce civilian casualties in the future.
Provide timely and appropriate compensation to civilians harmed in unlawful attacks.

To the Government of the United States

Clarify command responsibility for operations by Afghan paramilitary strike forces, NDS special forces, the Khost Protection Force, and other Afghan counterinsurgency forces.
In all circumstances, comply with international humanitarian law standards to protect civilians from the dangers arising from military operations. These include prohibitions on attacks against civilians and civilian objects, indiscriminate attacks, and attacks that cause harm to civilians or civilian objects that are excessive in relation to the anticipated military advantage.
Cooperate with independent investigations into these allegations, including those carried out by the Afghanistan Independent Human Rights Commission, in order to facilitate accountability.
US forces should, in all instances, take all appropriate steps to prevent or stop Afghan forces deployed with or under the command of US forces from committing violations of international human rights and humanitarian law. Those who do should be turned over to the proper Afghan authorities for disciplinary action or criminal prosecution.
Assist Afghan investigations into alleged secret detentions and enforced disappearances.
Press the Afghan government to promptly and impartially investigate alleged serious violations of human rights and the laws of war.
Investigate alleged war crimes involving the participation of US forces, and appropriately prosecute or transfer for prosecution US personnel implicated in war crimes.
Restore safeguards prohibiting US airstrikes in densely populated areas unless the intelligence is highly reliable and US forces have visually identified the target and made an on-the-ground assessment of the presence of civilians.
Provide accurate information on civilian casualties in military operations, and refrain from denying responsibility for civilian loss before a thorough investigation has been conducted.
Conduct immediate and transparent investigations of airstrikes in which there are civilian casualties, and publicly report the findings.
Rebuild the capacity of the Resolute Support civilian casualty mitigation units to monitor, investigate, and publicly report on all incidents of civilian casualties.
Provide timely and appropriate compensation or ex gratia (condolence) payments to civilians harmed in operations involving US forces.

To the Taliban and Other Insurgent Forces

Take all feasible measures to protect civilians from the effects of attacks, and, to the extent feasible, remove civilians from the vicinity of insurgent forces.
Avoid deploying forces within or near densely populated areas.
Cease the requisition of food and other private property through threats and the use of force and without payment.

Methodology

Human Rights Watch conducted research for this report in Afghanistan between November 2017 and August 2019. Human Rights Watch researchers interviewed 39 local residents and other witnesses to night raids in Ghazni, Helmand, Kabul, Kandahar, Nangarhar, Paktia, Uruzgan, Wardak, and Zabul provinces. We identified incidents on the basis of reports from local media and Afghan NGOs tracking civilian casualties. We also interviewed staff at Afghan human rights groups who have documented these raids, and NGO officials whose Afghan staff have been caught up in raids. Most interviews were conducted in Dari and Pashto. Some of the interviews were conducted by telephone.

All of the witnesses with whom we spoke were informed of the purpose of the interview and the ways in which the information would be used, and were offered anonymity in our reporting. This report withholds identifying information for most interviewees to protect their privacy and security. None of the interviewees received financial or other incentives for speaking with us.

Human Rights Watch also interviewed staff members of Afghanistan-based NGOs and international humanitarian organizations, representatives from the United Nations, journalists, and military analysts familiar with Afghanistan’s security institutions and oversight of special forces operations.

In August 2019, Human Rights Watch asked the Afghan government and US military for information, including any investigations into the incidents documented in this report, and for their comments. Responses from the US Forces-Afghanistan and Resolute Support and from the CIA are included in appendices to this report.

I. Extrajudicial Killings by CIA-Backed Afghan Special Forces

United States and Afghan security force operations in Afghanistan are claiming the highest civilian toll in more than a decade. According to the United Nations Assistance Mission in Afghanistan (UNAMA), international and Afghan government forces caused more civilian deaths than the Taliban and other insurgent groups in Afghanistan in the first six months of 2019.[1] Airstrikes, many of which hit residential buildings, have been the leading cause of these deaths, but UNAMA also noted a 79 percent increase in civilian casualties from search operations conducted by Afghan paramilitary strike forces as of mid-2019.[2]

Role of US Personnel in Kill-or-Capture Operations

Kill-or-capture operations conducted at night (“night raids”) have long been a controversial military tactic in Afghanistan.[3] Soon after the US-led invasion of Afghanistan in late 2001, the Central Intelligence Agency recruited forces from among existing anti-Taliban militias to conduct kill-or-capture operations as an early feature of US special forces operations after 2001.

Such raids increased during the “surge” of 2009-2010 that brought 50,000 additional US troops to Afghanistan.[4] Between December 2010 and February 2011, US special forces, often accompanying Afghan government forces, carried out on average 19 night raids per night.[5] Following public protests in Afghanistan and criticism from human rights organizations about rising civilian casualties in these operations, as well as concerns for rising numbers of deaths of US special forces personnel, the US military in 2011 cut back the involvement of its special forces in night raids.[6] In subsequent years, however, the CIA expanded its recruitment and training of Afghan paramilitary units to work with CIA operatives to carry out kill-or-capture operations.[7]

According to the New York Times, Afghan paramilitary strike force units recruited, trained, equipped, and overseen by the CIA operate “in a parallel mission to the United States military’s, but with looser rules of engagement,” in which Afghan security institutions maintain only a “liaison relationship.”[8] The development of these strike forces is linked to the US military’s practice of lending US special forces to the CIA through a program initially known by the code name Omega.[9] Although Afghan forces “are doing the assaulting and the killing and the capturing,” US special forces, principally US Army Rangers, are often, but not always, deployed alongside them.[10] Even where no US forces take part in the operation, the US military often provides logistical and tactical support to these CIA-backed operations, including planning, delivering the forces to the location via helicopters, and providing air support.[11]

CIA-Backed Covert Afghan Paramilitary Forces in Afghanistan

From the initial weeks after the September 11, 2001 attacks on the US, the CIA worked with existing Afghan anti-Taliban forces and recruited new Afghan militias to pursue Al-Qaeda militants.[12] The early versions of these paramilitary strike forces were in place and operating as part of the CIA’s covert operations before other US ground forces arrived in Afghanistan in November 2001, before the Bonn Agreement was signed in December 2001, and more than a year before the Afghan National Army was created in December 2002.[13]

Since 2001, the CIA has maintained a counterterrorism operation in Afghanistan parallel to the US military operation.[14] Some US special forces personnel have been seconded to this CIA operation over the years, initially under the Omega program which began in 2001.[15] The CIA counterterrorism operation, which falls under different US legal authorities than the US military operation, has continued to recruit, equip, train, and deploy Afghan paramilitary forces in pursuit of Al-Qaeda and Taliban forces, and, after 2014, militants affiliated with ISIS. CIA officers from the agency’s Special Activities Center oversee operations along with operatives from Afghanistan’s intelligence agency—the National Directorate of Security, which was established by the CIA in 2002—outside of the ordinary NDS chain of command.[16] The operations include elite US troops from the Joint Special Operations Command, generally Army Rangers, and contractors.[17] The majority of the forces taking part in these operations are Afghan.[18]

The earliest of these Afghan forces, the Khost Protection Force (KPF), has operated since the mid-2000s, and the Kandahar Strike Force (KSF) since at least 2009.[19] Operations by the NDS 04 paramilitary force first garnered headlines in 2013 following airstrikes in Kunar that killed 26 civilians;[20] the first reports about NDS 01 and NDS 02 operations appeared from 2017.[21] The KPF and KSF operate out of CIA bases (Camp Chapman and “Mullah Omar’s house,” respectively). They function as part of US covert operations and often have US special forces officers deployed alongside them during kill-or-capture operations.[22] They carry out operations with US logistical support and are dependent on US intelligence and surveillance for targeting.[23] Since 2017, these paramilitary strike forces have stepped up night raids, apparently as part of a US strategy to cause maximum casualties to the Taliban and other insurgents before a US troop withdrawal.[24]

The Afghan National Defense and Security Forces, including the Afghan National Army and Afghan National Police, have their own special forces.[25] They are not part of the CIA’s covert operations.

US Forces Involved in Counterterrorism Operations in Afghanistan

CIA operations involving Afghan paramilitary strike forces fall under the authority of Title 50 of the US Code, covering covert activities.[26] The US commander in Afghanistan—currently Gen. Austin Scott Miller, a former Army Ranger—is head of both the US counterterrorism mission, Operation Freedom’s Sentinel (OFS), and the NATO mission, Resolute Support. Only OFS is a combat operation; NATO ceased combat operations at the end of 2014.[27]

All US military commands, including the Joint Special Operations Command (JSOC), operate under the US Commander. “White” special force operations include US forces who support the Afghan National Army in conventional operations and Crisis Response Units in Kabul. “Black” special forces operations include those of JSOC.[28]

The most clandestine “black ops” units are also drawn from JSOC and seconded to the CIA. Initially known as the Omega program and drawn primarily from SEAL Team 6, the program has since 2009 recruited experienced Army Rangers. The objectives for these units have evolved from the original counterterrorism pursuit teams of the early 2000s, focused on Al-Qaeda, to become more focused on the Taliban, especially after 2009, then on groups linked to ISIS after 2014. As of 2019, the focus is largely on the Taliban leadership, ISIS-affiliated groups, and groups claiming to be Al-Qaeda.[29]

Since 2015, Afghan paramilitary strike forces have stepped up night raids against the Taliban and other insurgents. The US military does not publish statistics on the numbers of such raids, but there has been a sharp increase in these operations since late 2017 as part of the new US South Asia policy that expanded both airstrikes and CIA operations to target the Taliban as well as Al-Qaeda.[30]In October 2017, senior US administration officials told the New York Times that the CIA was expanding its covert operations in Afghanistan by sending officers and contractors to work with Afghan forces to “hunt and kill” Taliban militants.[31] On October 12, then-CIA Director Mike Pompeo publicly announced that under the Trump administration, the CIA was adopting a more aggressive approach:

The CIA, to be successful, must be aggressive, vicious, unforgiving, relentless—you pick the word. We must every minute be focused on crushing our enemies.… President Trump gets this. Whenever we’ve discussed the challenges the agency is facing, he has given us what we need, whether it’s funding, authorities, or policy guidance—such as when the law already permits a given action, but the previous administration chose not to do it.… So with the president’s backing, we’re taking several steps to make CIA faster and more aggressive.[32]

The UN Assistance Mission in Afghanistan has raised concerns about “the lack of transparency for command, control, rules of engagement, and policy framework” guiding these forces, noting that no one “within the Afghan national security forces or civilian government administration has been willing or able to discuss incidents … or address issues of accountability.”[33]

UNAMA noted in February 2019 that a significant reason for the increase in civilian casualties caused by pro-government forces was kill-or-capture operations attributed to NDS special forces and the Khost Protection Force.[34] These forces operate as part of the covert program backed by the CIA. With regard to the Khost Protection Force, UNAMA said:

As a pro-government armed group that operates outside of the tashkil [personnel list] of the Afghan National Security Forces, there is no legal basis for the existence of the Khost Protection Force, and the continued widespread impunity for abuses its members enjoy remains of grave concern. The Afghan authorities have not taken the necessary action to hold members of this group accountable with respect to allegations of excessive use of force, intentional killings, and other abuses that severely impact the human rights and the lives of Afghans.[35]

In 2018, UNAMA documented 353 civilian casualties (284 deaths and 69 injured) from search operations, with the majority caused by NDS special forces and the Khost Protection Force, and noted that the “high number of fatalities compared to the number of injured suggests that force was employed indiscriminately.”[36] Following the alleged killing of 11 men in Zurmat district in August 2019 (described below), the former head of UNAMA’s human rights unit tweeted that the killings needed “investigating, not only the incident but the pattern.”[37]

Peace talks between the Taliban and the US government, which began in late 2018, have focused on the withdrawal of US forces, but the status and fate of these paramilitary forces remains unclear. Some US officials have pushed for retaining all intelligence forces to continue the fight against ISIS and other groups and to act as a deterrent against groups like Al-Qaeda regaining a strong presence in Afghanistan. But the continued presence of paramilitary forces implicated in serious human right abuses—in some cases possibly fueled by tribal or political loyalties—would pose a threat to communities already victimized by these forces.[38]

Airstrikes Accompanying Night Raids

In many cases, night raids have been accompanied by airstrikes that have indiscriminately and disproportionately killed Afghan civilians.[39] According to UNAMA, civilian casualties from US airstrikes have increased steadily since 2017.[40] In a departure from previous policy, sometime after 2016, the US authorized Afghan forces to call in airstrikes for support even without US forces present to identify the targets.[41]

Changes to targeting directives have meant that airstrikes are hitting more residential buildings, at a time when a decreased ground presence and a reliance on local Afghan intelligence sources have limited the amount of information about the possible presence of civilians in those buildings.[42] Such strikes carry inherently greater risks for civilians because of the difficulties in determining whether civilians are inside prior to a strike.[43]

This intensification in offensive operations has coincided with decreased US government transparency. While CIA operations and actions by CIA-backed forces have never been made public, Resolute Support, the US-led NATO mission in Afghanistan, published a monthly breakdown of air operations from the NATO mission from January 2015 through October 2017. This stopped after October 2017. In October 2018, Resolute Support resumed publishing strike data, but from November 2018, the data no longer included information about targets due to “operational concerns.”[44] The decision to remove targeting data followed a report by the Bureau of Investigative Journalism, which maintains a strike log for US operations in Afghanistan, on the increase in civilian casualties from airstrikes on residential buildings.[45]

II. Afghan Forces Responsible for Abuses

Before the drawdown of most international forces from Afghanistan in 2014, the CIA began expanding the number of Afghan paramilitary units fighting the Taliban and other insurgents. A 2013 report by the Afghanistan Analysts Network described a military operation in Kunar province carried out by a paramilitary unit known as NDS 04, led by CIA officers. NDS 04 had called in two airstrikes over a two-month period in Kunar that killed 26 civilians.[46] Reports on NDS 01 and 02 appeared in 2017. The numbers refer to the regional NDS directorates. Specific operations led by NDS strike forces may include units from other Afghan National Defense and Security Forces, including the Afghan National Army (ANA) and Afghan National Police (ANP).

While these forces are nominally under the National Directorate of Security, they operate outside the normal chain of command of the Afghan security forces and as part of CIA-backed covert operations. The forces are reliant on the US military for logistical and air support, including helicopters to transport the forces during operations—even for operations that are not directly partnered by US or allied non-Afghan special forces.

NDS 01

Operates in Afghanistan’s central region, in Kabul, Parwan, Wardak, Logar, and possibly other bordering provinces.[47]

NDS 02

Operates in Afghanistan’s eastern region, in Nangarhar and possibly other bordering provinces.

NDS 03 (Kandahar Strike Force)

One of the older counterterrorism pursuit teams established by the CIA to “pursue” Al-Qaeda suspects into Pakistan after 2001 (like the KPF, below). The KSF is based in Kandahar in the former compound of the late Taliban leader Mullah Omar, renamed “Gekho” after US forces occupied it, but still commonly referred to as “Mullah Omar’s house.” It operates in Afghanistan’s southern region, in Kandahar, Helmand, and Uruzgan. Ahmad Wali Karzai, the late brother of former president Hamid Karzai, reportedly oversaw KSF operations until his assassination in 2011.[48]

NDS 04

Operates in Nuristan, Kunar, and other bordering northeastern provinces.[49]

Khost Protection Force

The first of the CIA-supported special forces units established in the mid-2000s.[50] As with the NDS strike force units listed above, CIA officers or contractors sometimes accompany the KPF on operations. At the same time, according to UNAMA, a KPF commander “participates in the weekly security meetings in Khost province, chaired by the provincial governor, alongside Afghan national security forces, which suggests some degree of information-sharing and tacit consent by the [Afghan] government of its operations.”[51] The KPF base is Camp Chapman outside Khost city. It reportedly has battalions in Sharana, Paktika province, and Gardez, Paktia province, and is the largest of the paramilitary strike forces, with between 3,000 and 10,000 men and a network of informants.[52]

III. Assaults, Arbitrary Detentions, and Summary Executions during Night Raids

Night raids by US and Afghan forces aimed at killing or capturing insurgents largely occur in rural areas of Afghanistan that are under Taliban control or being contested by Afghan government forces. Urban-based journalists have little access to the incidents, and many do not get reported in the mainstream Afghan media, particularly in English-language outlets. Journalists based in the provinces report on some of the incidents, particularly those that spark protests from local residents.[53] An Afghan NGO staff member based in Kabul described the incidents as “severely and maybe sometimes intentionally under reported,” because Afghan media outlets are under pressure from Afghanistan’s security institutions not to publish reports critical of the security forces.[54]

The modus operandi of night raids by Afghan paramilitary forces is that helicopters arrive late at night or early morning, airlifting a strike force unit to a designated area.[55] These forces then breach the outer walls of residential compounds, clinics, offices, or other facilities, generally by using an explosive. Upon entering the buildings, they separate men and teenage boys from women, teenage girls, and younger children, who usually remain in a single room. Following questioning, some of the men may be detained and taken away by the forces for further interrogation.[56] In some cases, those detained are brought to the Parwan detention facility in Bagram, on the US military base north of Kabul. Others have been detained in facilities in different parts of Afghanistan. Cases where family members are not informed of their detained relatives’ whereabouts constitute enforced disappearances. In some other cases, the suspect is shot, execution-style.

While the targeting of a specific area or house for a night raid is supposed to be based on accurate intelligence about insurgent activity, in practice, certain activities leave local residents who are not involved in insurgent activity vulnerable to being targeted. These include providing food to Taliban insurgents, even if under duress; proximity to insurgent activities; or incidental contact with insurgent groups. Political rivalries within the community have also been a factor in targeting civilians who demonstrated no belligerent conduct or status.[57]

These problems were identified several years ago and were supposed to have been addressed in revised rules of engagement. A 2011 report on night raids observed similar abuses at a time when the Afghan administration under President Karzai sought to curtail US-led night raids: “The lack of transparency or strong accountability mechanisms have reinforced Afghan perceptions that international military use night raids to kill, harass, and intimidate civilians with impunity.”[58]

Witness to a Night Raid

An Afghan employee of a Kabul-based NGO described his experience of being in the vicinity of a night raid during the Eid holidays in June 2019:[59]

The first three nights of Eid were okay. Then on the fourth night [June 7], at about 11 p.m. we were playing cards. We heard the noise of helicopters hovering over the roof. It was a terrifying moment. My in-laws knew the situation. They said, “Turn off all the lights and stay calm.” I was in one room with some relatives and the women and kids were in another room. My wife took my computer and ID card with her because they would not check her. We were waiting to see if they were coming to the house. In the normal situation you should wait 30 minutes—either a rocket [will come] or there will be knocking at the gates. After 30 minutes, the helicopters were still hovering. After 15 minutes, we heard one rocket, then after 30 minutes, the sound of another rocket. Then we realized it was not [focused on] our house, but near our house. By then we were all in the same room—we could not sleep. I shared my email password with my relatives in case something happened to me. The helicopters continued to hover until 2 a.m. We waited for three more hours [until daylight]. At first we would not come out—we were worried they would be waiting to shoot. Even the imam did not come to the mosque [for the dawn prayer]. After that, slowly, slowly, people began to come out.

Around 7 a.m., my in-laws learned that the raid had targeted two houses [in another area of the village]. My sister-in-law was in that house—she is married to someone who lives there and they told me the story. Her family had also turned off the lights and waited—that is the way in all villages. We know they’ve shot many like this.

A rocket destroyed the wall of that house. The second rocket destroyed the gate. They said American and Afghan commandos came up through the [destroyed] wall. Speaking through a [megaphone], they told everyone to come out and carry nothing with them—put everything on the floor. Women to one room. The men to the yard. The men were sitting there and the forces were questioning them—their names, sons, and so on. They said they had a report that some Taliban had entered the house. The owner of the house [my brother’s father-in-law] told them, “Search—and if you find them, you can shoot us.”

The soldiers turned everything upside down in the house, breaking wardrobes and metal boxes. They made a big mess in all the rooms. Then they took two brothers with them—one is a teacher in a local school and the other is a laborer. They said “We will release them soon.” Then they left.

They brought the two brothers to Bagram. I shared the information with [some foreign journalists and NGO members] who contacted [US officials]. The brothers were held for two weeks and then released. They also raided another house [in the village] in the same way, by destroying a wall and taking the owner with them. He has not returned.

Summary Executions in Zurmat, Paktia

Strike force units have conducted multiple raids in Zurmat district in Paktia province since 2018, killing at least 17 civilians.

On August 11, 2019, a raid by NDS 01 in Kulalgo village began at about 10:30 p.m.[60] According to a witness whose house was targeted, the Afghan strike forces were accompanied by US forces who blew open the doors of the house and shot four men in front of the rest of the family. In another house, they fatally shot three shopkeepers and one of their guests, all of whom were home for Eid celebrations. In the third incident, they killed a religious teacher and two construction workers.[61]

The Afghanistan Analysts Network (AAN), a Kabul-based research NGO, identified the men who were killed in the second house as Rahatullah, Nasratullah, and Hekmatullah, brothers who had a shop in Ghazni city. Nasratullah was also studying at Ghazni University to become a teacher, while Hekmatullah was a high school teacher.

Relatives told AAN that the strike force had asked males to present their ID cards. Said one:

When the residents complied—there was no resistance—some were asked to come out of the rooms they were staying in. They were then separated from other family members and taken to separate rooms and later shot dead. No one saw who exactly did the shooting, but multiple family members said their relatives were shot in the eyes or the mouth.[62]

According to AAN, eight of the men belonged to one tribe, and the four cousins were part of the extended family of a well-known local tribal elder—a family “known not to be associated with the Taleban or any other armed opposition group.”[63] In fact, the family patriarch, who died some years ago, was openly critical of the Taliban and had been forced to live out the last years of his life in Kabul.[64]

AAN also noted that on the same night, local residents reported a raid on a known Taliban house elsewhere in Zurmat that proved unsuccessful, as the Talban fighters escaped. That both raids occurred on the same night in Zurmat, and that the National Directorate of Security initially claimed that the 11 killed were Taliban, suggests that the strike forces might have targeted the wrong house, or operated on faulty intelligence, possibly fueled by local rivalries.[65] The laws of war prohibit the summary execution of any individual in custody; those responsible for such acts are committing war crimes.[66]

On August 15, 2019, the Afghan government ordered an investigation into the Kulalgo killings. At time of writing, no findings had been made public.

According to the UN Assistance Mission in Afghanistan, an earlier night raid occurred in Zurmat on December 30, 2018, when the Khost Protection Force killed six civilians during a nighttime kill-or-capture operation that targeted a member of the provincial peace council and a tribal elder.[67] In the manner of other night raids, a helicopter delivered the KPF forces, who first breached the compound walls with an explosive, then shouted at those inside the house not to move or turn on the lights.[68]

One of the survivors, Ghulam Mohammad, told AAN that the strike forces forced him to come outside, where they questioned him about the Taliban. When the forces left and he returned to the house, Ghulam Mohammad found they had killed his son, Mohammad Karim, a student in his 20s; his brothers Sayid Hassan, mid-40s, and Naim Faruqi, 60; his nephews Attiqullah and Fath al-Rahman, students in their 20s; and Mohammad Omar, a neighbor in his 40s. Naim had been shot in the eye, and Karim in the mouth.[69]

The family decided to take the bodies to the governor in Gardez city to protest the killings, where they were joined by 100 residents demanding justice.[70] However, no investigation was announced.

Summary Execution in Nerkh, Wardak

Nerkh district in Wardak province has been a contested area for at least a decade, with a history of special operations abuses against local civilians.[71] As of mid-2019, the Taliban dominated much of the district. Clashes between Afghan security forces and the Taliban have been frequent.

M., an ustad (teacher) and elder from Pair Dad village in Nerkh, told Human Rights Watch that NDS 01 activity had increased in recent months:

01 activity is very high. Every week there is something. They just appear, and civilians are the most affected. [Recently] there have been operations in eight villages. They blow up the houses. The Taliban come every night demanding food—some are from these villages. We have to feed them. We are caught in between. Small people, simple people—they cannot talk to VIPs [about this]. So every day we are coming to the district governor about the civilians, but he says it’s out of his hands. Many people are affected. They cannot always report these things, cannot get compensation for their houses that have been destroyed.[72]

On October 8, 2018, a strike force conducted a large-scale operation with US air support to search for Taliban fighters in the area.[73] D.D., a 70-year-old farmer, had four daughters in Nerkh, one son working in Kabul, and two sons who had returned in mid-2018 from Iran, where they had worked as laborers for several years. One of those sons was shot dead in the raid and another was taken into custody. D.D. described what happened:

At around midnight on the 15th of Mezan [October 8], the NDS 01 destroyed the gate to our compound with an explosive device. They killed one of my sons at the back of our home and took the other with them. My sons had returned home after three years from Iran doing hard labor jobs over there. We are not terrorists. The forces accused us, “Why are you feeding the Taliban?” But the Taliban come asking for food. If you don’t feed them, then they harass you.[74]

Summary Execution, Enforced Disappearances in Panjwai, Kandahar

Around March 21, 2019, a strike force unit arrived in Panjwai at night and ordered all the men in the village to come outside, where they tied their hands and hooded them. After questioning them, they took two men, only one of whom has returned. Based on their uniforms, the fact that Gekho base is the only base in the vicinity reachable by road, and the fact that they had carried out previous raids in the district, witnesses identified the unit as belonging to the NDS 03, or Kandahar Strike Force, based at Gekho, west of Kandahar city.[75]

A few weeks later, on April 10, a strike force unit carried out a raid in Talokan village and neighboring villages in Panjwai. They killed Mohammad Gul, 60, who had been the principal of the primary school since 2011.[76] M.M., a relative, said that Mohammad Gul had been at home with his wife and daughters at the time of the raid. Based on their uniforms and the fact they traveled by road from east of Panjwai, M.M. believed the forces had come from the US base in Gekho, which is also known as “Mullah Omar’s house.” M.M. said:

They came from “Mullah Omar’s house”—all the dangerous operations come from there. At 11 p.m., the soldiers came to the house. They locked the women in one room, then they went to Mohammad Gul’s room, where he was alone, and shot him three times. Then they dragged the body out to the courtyard. The forces were speaking Pashto.[77]

The forces also detained five men—one from Talokan and four from Sarkilla village—and took them to an undisclosed location, effectively forcibly disappearing them.[78] According to M.M.:

Since this latest incident, we decided to protest. This is the second time something has happened here. We should just leave. Please tell this story. Why are we always being killed by them? What’s our mistake? Also, they got [Mohammad Gul’s] phones—if they find anything in the phones, we will accept [that he did something wrong]. We want our rights. He was very respected, and now the school is closed. He was an employee of the government. Why do they kill their own people?[79]

Summary Executions in Rodat, Nangarhar

On October 23, 2018, an NDS strike force unit carried out a raid in the Rodat district of Nangarhar, after first calling in an airstrike. G.G., a resident of Shahidanu Mena, Rodat, said that it was the NDS 02 unit.[80] He said they came at midnight and began shooting almost immediately, killing five members of one family and injuring two others:

First they blew up the door. When a father of the family came out of the house, they shot him first, then the sons came out to check on him and they killed them, then another brother came, and then the women stopped another brother from coming out. The women said, “Please don’t kill us,” and then they shot an older woman. A younger girl ran to the brother and they shot her, injuring her, then killed the last brother. They carried out raids for two more nights.[81]

The Bureau of Investigative Journalism investigated the raid and documented 13 civilian deaths in the incident, including the guard at the government school and the village pharmacist. Jamal Khan, a relative of the school guard, told the Bureau of Investigative Journalism that the raid started with an airstrike. “First, they attacked us with bombs,” he said. “Then they entered the living room and started to shoot around. They didn't care about who they were killing. They killed my uncle and his 9-year-old son. His wife and his other child were injured.”[82]

The government claimed that all those killed were ISIS fighters, but G.G. said that district officials had visited him to look into the incident and told him that what happened “was wrong.” He said NDS paid compensation to the affected families.[83]

Summary Executions in Maiwand, Kandahar

On the evening of January 31, 2018, an Afghan paramilitary force unit backed by US airstrikes began an offensive against Taliban insurgents in the Band-e Timor area of Maiwand district and the Reg area of Panjwai district, long-time Taliban strongholds located on a strategic transportation route.[84] A witness in Band-e Timor told Human Rights Watch that the Afghan forces opened fire on men as they attempted to flee, killing Taliban fighters and at least 20 civilians.[85]

Another witness told Human Rights Watch: “When the airplanes came, we fled. But as the people were running away, the forces were shooting them.”[86] He said security force personnel dragged some men from their homes and shot them.[87] The NDS claimed that the air and ground operation killed 50 militants, and that 32 suspects had been detained.[88]

A Kandahar-based civil society activist who had contacted local officials told Human Rights Watch that the forces included NDS 03, as well as counterinsurgency forces of the Afghan National Police under Lt. Col. Sultan Mohammad.[89] The Kandahar police have been accused of systematic human rights violations, including torture, enforced disappearances, and extrajudicial executions.[90]

Summary Executions in Dehbala, Nangarhar

Several border districts of southern Nangarhar province, particularly Dehbala, Achin, and Khogyani, have seen intense fighting since 2016. Afghan government forces operating with US air support have stepped up military operations in areas that have been controlled or heavily influenced by the Islamic State of Khorasan Province (ISKP), an insurgent group that has affiliated itself with ISIS.[91] Since January 2017, US forces have carried out numerous air operations in eastern Nangarhar province, in some cases accompanying raids by NDS 02 strike forces.[92]

D.D., 65, a resident of Dehbala district, described a deadly night raid in August 2017 that included forces who spoke English, which he identified as NDS 02:

At around 12:20 a.m., helicopters arrived in the area, bringing ground forces. My cousin’s house is located at a distance of about 100 meters from my house [in the same compound]. The forces, Americans and Afghans, blew up the gate of my cousin’s house. According to relatives in the house, my cousin went to his mother’s room and shouted through the window to my brother [who lived beside them] not to go out because the helicopters were hovering above and they might target him. Afterward, he went to his children’s room to check on them, but the forces shot him dead through the window of that room.

After that, the forces made their way to our house and told all of the family to surrender. Another cousin left the house and went into the yard, saying he would surrender. He told the forces there was nothing going on and they could come in, but the forces opened fired and shot him in the yard.[93]

D.D. said that when the forces entered the compound, they shot one of his brothers and a nephew, then detained another brother of his, whom they took when they left:

My brother was lying on the ground and bleeding, and when my other brother came to see him, an Afghan solider took him away and put a stamp on his back. They have some type of stamp. If they put the stamp on anyone, they won’t kill him, but just arrest him. It is their secret.[94]

D.D. said the village held a protest, and he reported the incident to the district governor:

With the help of the villagers, we took all the dead bodies to the road, and villagers staged a protest on the road asking the government to bring the perpetrators to justice. Three days after the incident, I told the governor that if anyone put forward any evidence about [my family having] links with Daesh [ISIS] or the Taliban, they could hang [the detained brother].

The whole village was besieged. I understand that Americans do not know where my house was, and I think they were brought by some Afghans there. They have to ask the Afghans who gave them incorrect reports about the presence of the Taliban or Daesh. Why would they shoot everyone? All of them were just poor guys.[95]

It is unclear whether US or Afghan authorities carried out an investigation. No findings have been made public.

IV. Kill-or-Capture Operations Involving Airstrikes

Air operations may precede or follow a night raid. In a number of incidents Human Rights Watch investigated, airstrikes or helicopter-fired munitions killed and injured civilians before or after night raids. The dramatic increase in civilian casualties from US air operations in Afghanistan may reflect a result of changes to tactical directives that eliminated former measures that had reduced civilian harm.

In 2008, civilian harm from US airstrikes in Afghanistan was at what was then an all-time high (it was surpassed in 2018-2019). After UNAMA began publishing reports detailing civilian harm from airstrikes, and Human Rights Watch published its report on civilian casualties, Troops in Contact, NATO created a civilian casualties tracking unit within its mission designed to have direct input to lessons learned that could feed into air operations. The changes that were implemented—including restrictions on targeting, not using explosive weapons with wide impact in populated areas unless troops were under attack, and the use of precise, low-collateral weapons where appropriate—had a measurable impact in terms of reduced civilian casualties.[96]

However, after 2014, NATO’s noncombat Resolute Support mission significantly reduced its civilian casualty tracking team. The Afghan government took over basic tracking of casualties caused by its forces at the Presidential Information Coordination Center, known as the Tawhid Center, which collects information but does not conduct independent investigations.

Since then, the US military has rescinded directives restricting targeting, and has authorized ground troops to approve targets and Afghan special forces to call in airstrikes, even in situations where there is limited information about civilian presence in the identified target area.[97]

Deadly Airstrike during Kill-or-Capture Operation in Hesarak

On March 10, 2019, an Afghan paramilitary strike force carried out a search in Nasir Khil, a village about four kilometers north of the district center of Hesarak, in Nangarhar province. According to the New York Times and witnesses who spoke with Human Rights Watch, the unit was NDS 02. The strike force arrived in the early morning and called in air support after coming under fire. The strikes killed at least 13 civilian members of two families, including several children.[98] One resident told Human Rights Watch:

The airstrikes hit two houses. A soldier of the Afghan National Army, his wife, and four children were in one of the houses. All were killed. The village doctor, his wife, and their five daughters were in the other house that was hit, and all of them died.[99]

According to a New York Times report, a Resolute Support spokesperson said that the mission was looking into the situation:

In self-defense, precision airstrikes were used to support the troops on the ground.… We are fighting in a complex environment against those who intentionally kill and hide behind civilians. We hold ourselves to the highest standards of accuracy and accountability, and we are looking into this.[100]

The governor of Nangarhar, Shahmahmood Miakhel, claimed that “an important Taliban commander” had been killed in the strikes, but witnesses said that the airstrikes did not hit a house known to belong to a Taliban commander, instead hitting civilian houses.[101] The father of the killed soldier asked Human Rights Watch, “Why didn’t they know which house?”[102]

Deadly Airstrike following Raid in Wardak

On the night of September 22, 2018, US and NDS 01 forces carried out a raid in the village of Mullah Hafiz, Jaghatu district, in Wardak province. The next morning, US forces carried out an airstrike that killed 12 civilians, all of whom were women and children from the same family.[103] The children ranged in age from 4 to 16 years old.[104]

Masih Ur-Rahman Mubarez, whose entire family was killed, told Human Rights Watch that a Taliban prison was located in the area. He said that US forces and Afghan strike forces had been searching for the prison, checking all the houses in the area. He said that in the middle of the night, his wife, Amina, called him to say there was a raid in the village.[105] He told her to keep the phone on so he could reach her.[106]

Mubarez later learned that after he spoke with Amina, fighting had broken out in the village between the Taliban and US and Afghan forces. Sometime between 9 and 10 a.m. the next morning, US forces carried out several airstrikes, one of which destroyed his family’s house and killed everyone inside, including his wife and seven children. He said: “I tried to call my family that morning. I could not reach them. Then a neighbor called and told me my house had been hit.… I have lost everyone—I am alone now.”[107]

Those killed were Masih Ur-Rahman Mubarez’s wife, Amina, 32; daughters Anisa, 14, Safia, 12, Samina, 7, and Fahima, 5; sons Mohammad Wiqad, 10, Mohammad Ilyas, 8, and Fayaz, 4; and nieces Rahmania, 16, Nafisa, 14, Zarifa, 12, and Amina, 10. Mubarez said no one had come from the government to investigate the incident. Because of fighting in the area, Mubarez said that villagers could not retrieve the bodies from under the rubble of the house for two days.[108]

V. Special Forces Raids on Medical Facilities

Human Rights Watch documented an increase in Afghan special forces raids on medical facilities between May 2018 and July 2019. The forces that carried these out were NDS 01, NDS 02, the Kandahar Strike Force (NDS 03), and other special forces units, all of which are supported, and sometimes accompanied, by US forces. During these kill-or-capture operations, the forces involved assaulted and, in some cases, killed medical staff; assaulted or killed accompanying civilian or noncombatant caregivers; and caused damage to the facilities.

The laws of war, applicable to the armed conflict in Afghanistan, protects patients, including wounded soldiers, and all medical personnel from attack. Hospitals and other medical facilities are also protected from attack unless they are being used outside their humanitarian function to commit acts harmful to the enemy, such as to fire artillery or store munitions. Commanders and combatants who willfully violate these protections are responsible for war crimes.

Clinic Disrupted in Andar, Ghazni

Ghazni province has seen significant fighting since August 2018 when the Taliban took control of the city for 10 days before US airstrikes and special forces operations forced them out. The Taliban have maintained a significant presence in many districts of Ghazni province, including Andar, which lies south of Ghazni city.[109] From April 15 to May 7, 2019, US forces carried out 55 airstrikes in Ghazni province, many of them in Andar district, as well as many night raids.[110]

Several raids took place in Andar on May 14, including one in which a strike force unit accompanied by US forces searched an NGO-run clinic.[111] The forces questioned staff members about the identities of patients who had sought treatment at the clinic, specifically a Taliban commander in the area. According to an unpublished report, the forces took the staff members’ phones and searched the contents. They questioned the staff about any explosives in the clinic, then took them to a nearby building, forcing the staff to walk ahead of them in the dark, with the forces taking cover behind them. When the Afghan and US forces left at 3:30 a.m., they took the staff members’ phones with them, as well as the clinic’s patient logbook.[112]

While medical facilities can be searched to ensure they are genuinely providing medical services, using the staff as a civilian shield against insurgent attack, disrupting operations by questioning staff, and stealing medical equipment are all unlawful.

Clinic Raided, Equipment Destroyed in Uruzgan

On January 14, 2019, an NDS 03 unit carried out an operation during which they deliberately caused damage to the NGO-run Surmurghab Adda clinic, which provides services to nearby villages.[113]

Before the raid there had been fighting nearby, across a river from the clinic. Taliban fighters had opened fire, and a special forces helicopter had fired on the fighters, killing them.[114] The strike force raid on the clinic began at about 12:30 a.m. A member of the clinic staff said:

Helicopters landed on the main road close to the clinic. [Due to these raids] the hospital directors leave the clinic at night and so do any Taliban, so there were no doctors in the clinic and no patients [only night staff]. The special forces came in and accused the staff of treating Taliban fighters. They broke the tables and equipment. They set fire to two generators and an ambulance. The forces were in uniform, but not normal ANA [Afghan National Army] uniforms.[115]

Raid Killing Medical Staff, Other Civilians in Wardak

On the night of July 8, 2019, a special forces unit identified by witnesses as NDS 01 raided an NGO medical clinic in Day Mirdad, Wardak province. A member of the local health council told Human Rights Watch that at about 9 p.m. on July 8, he heard helicopters and knew a raid was underway. At 5 a.m., he and others from the health council went to the clinic and found the guard’s room shattered by a rocket that had left a crater.[116]

A clinic staff member said that the strike force had tied the hands of all the staff and visiting family caregivers and taken them to a room, where they questioned them about the whereabouts of the Taliban. Then they took four men with them, including the clinic’s director, Dr. Wahidullah, and told the remaining staff to stay in the room.[117]

After the Afghan forces left, villagers discovered the bodies of three of the men who had been taken. The villagers were unable to locate Dr. Wahidullah, whom they believe the forces may have detained. The body of a family caregiver was also found on the premises.[118]

On July 11, the Swedish Committee for Afghanistan, a humanitarian organization that runs the clinic, described the incident as a “shocking violation” of international humanitarian law, and said that “such outrageous use of force against civilians and health facilities constitutes a serious violation of applicable international humanitarian law and it affects provision of health services delivery to the people in the local community.”[119]

A media report cited Haji Waheed Akbarzai, a member of the Wardak provincial assembly, saying that the clinic was located in an area that is under Taliban control. “The Afghan forces raided the hospital because they received information that Taliban [members] were being treated and were hiding there,” he said.[120]

Afghan forces had previously targeted the Day Mirdad clinic. On February 17, 2016, Afghan forces accompanied by international forces raided the facility, dragging away two patients and a visiting 11-year-old and shooting dead all three outside the hospital premises.[121]

Clinic Raided, Enforced Disappearance in Kajaki, Helmand

On the night of July 9, 2019, a special forces unit carried out a raid on an NGO clinic in the Zamindawar area of Kajaki district, Helmand. Kajaki has been under Taliban control for several years. The clinic provided basic health services and first aid.

The raid began at about 2:30 a.m. when helicopters arrived, dropping the unit. The staff described the unit as commandos who spoke in a Kandahari accent.[122] The modus operandi of arriving by helicopters at night is similar to that of the NDS 03 based at Gekho in Kandahar.

The forces tied the hands of the five clinic staff members and questioned them as to the location of the Taliban, before departing about an hour later.[123] A farmer who lived nearby said that he went to the clinic in the morning and the staff told him the soldiers had beaten them; one had a black eye and others had bruises. They told him the strike force had taken the doctor who was in charge of the clinic to an undisclosed location. According to the clinic staff, he has not been released, and his whereabouts remain unknown.[124]

VI. International Humanitarian Law

Applicability of the Laws of War

The armed conflict in Afghanistan is considered to be a non-international conflict under international humanitarian law, or the laws of war. Even though many countries have been involved in the armed conflict in Afghanistan, the fighting does not involve one state engaged in hostilities with another state, so it is considered a non-international armed conflict. As a practical matter, the laws of war are largely the same for international and non-international armed conflicts.

Afghanistan’s armed conflict is governed by law set out in treaties and in the rules of customary international law.[125] The most important treaty law is Common Article 3 to the Geneva Conventions of 1949, which sets forth minimum standards for all parties to non-international conflicts.[126] Afghanistan is also party to Protocol II to the Geneva Conventions, which provides further protections for combatants and civilians during non-international armed conflicts.[127]

All parties to Afghanistan’s armed conflict—including non-state armed groups—are responsible for complying with the requirements of international humanitarian law. This obligation does not depend on reciprocity; parties to a conflict must respect the requirements whether or not the opposing side abides by them.[128]

Fundamental Protections

The laws of war provide protections to civilians and other noncombatants from the hazards of armed conflict. It addresses the conduct of hostilities—the means and methods of warfare—by all sides. Foremost are the principles of “civilian immunity” and “distinction”—the requirements that civilians may never be the deliberate target of attacks and that parties to a conflict must distinguish at all times between combatants and civilians, and between military objectives and civilian objects.[129] Parties to the conflict are required to take all feasible precautions to minimize harm to civilians and civilian objects, and to not carry out attacks that fail to discriminate between combatants and civilians, or would cause disproportionate harm to the civilian population.[130]

Common Article 3 provides a number of fundamental protections for civilians and those who are no longer taking part in hostilities, such as captured combatants and those who have surrendered or are unable to fight because of wounds or illness. It prohibits violence against them—particularly murder, cruel treatment, and torture—as well as outrages against their personal dignity and degrading or humiliating treatment.[131]

Treatment of Detainees

Even during armed conflicts, international human rights law remains in effect. Afghanistan and the other countries involved in the fighting are all party to a number of human rights treaties, including the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[132] These treaties outline guarantees for fundamental rights, many of which correspond to the rights to which combatants and civilians are entitled under international humanitarian law (for example, the right to a fair trial and the prohibition on torture and inhuman and degrading treatment).

International law prohibits enforced disappearances, which are defined as the arrest or detention of anyone by government forces or their agents followed by a refusal to acknowledge the detention or whereabouts of the person.[133]

Under international human rights law, detainees are entitled to judicial review of the legality of their detention, and all the rights to a fair trial, including the right to be tried and convicted for a criminal offense only by a court of law. Unacknowledged detention is prohibited at all times.[134]

Distinction and Precautions in Attack

The laws of war limit attacks to “military objectives.” Military objectives are personnel and objects that are making an effective contribution to military action and whose destruction, capture, or neutralization offers a definite military advantage.[135] This would include enemy fighters, weapons and ammunition, and objects being used for military purposes. While humanitarian law recognizes that some civilian casualties are inevitable during armed conflict, it imposes a duty on parties to the conflict at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives.

Combatants include members of a country’s armed forces and commanders and fighters in non-state armed groups.[136] They are subject to attack at all times during hostilities unless they are captured or incapacitated. Civilians lose their immunity from attack when and only for such time as they are “directly participating in hostilities.”[137] The International Committee of the Red Cross says that the laws of war distinguish members of the organized fighting forces of a non-state party, who may be targeted when there is fighting, from those who assume exclusively political, administrative, or other non-combat functions, who may not be targeted even when there is fighting. An individual recruited, trained, and equipped by a non-state armed group is considered integrated into that group even before carrying out a hostile act at a time of fighting.[138]

The laws of war also protect “civilian objects,” which are defined as anything not considered a military objective. Direct attacks against civilian objects—such as homes, apartments and civilian businesses, places of worship, medical clinics and hospitals, and schools—are prohibited unless they are being used for military purposes and thus become military objectives.[139] This would be the case if military forces are deployed in what are normally civilian objects. Where there is doubt about the nature of an object, the attacking force must presume it to be civilian.[140]

Direct attacks on civilians and civilian objects, as noted above, are prohibited.[141] The laws of war also prohibit indiscriminate attacks, which strike military objectives and civilians or civilian objects without distinction. Examples are attacks that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective.[142]

Military commanders must choose a means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed.

Attacks that violate the principle of proportionality are also prohibited. An attack is disproportionate if it may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.[143]

The laws of war do not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on parties to the conflict to take steps to minimize harm to civilians. Parties to a conflict are required to take constant care during military operations to spare the civilian population and “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects.[144] These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving “effective advance warning” of attacks when circumstances permit.[145]

Forces must take all feasible precautions to protect civilians under their control from the effects of attacks.[146] They should remove civilians from the vicinity of military operations and avoid locating military objectives near densely populated areas.[147] They are prohibited from deliberately using civilians to shield military objectives or operations from attack.[148]

The attacking party is not relieved of its obligation to take into account the risk to civilians simply because it considers the defending party responsible for locating legitimate military targets within or near populated areas. The use of explosive weapons with wide-area effects (weapons with a wide blast radius or indirect-fire weapons without adequate spotting) against military objectives in populated areas heightens concerns of unlawful indiscriminate and disproportionate attacks.[149] All parties to armed conflict should thus avoid the use of explosive weapons with a wide impact area in populated areas.[150]

Protections for Medical Facilities and Personnel

Medical units are civilian objects that have special protections under the laws of war. They include hospitals, clinics, medical centers and similar facilities, whether military or civilian. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.”[151]

Several types of acts do not constitute “acts harmful to the enemy,” such as the presence of armed guards or when small arms from the wounded are found in the hospital. Even if military forces misuse a hospital to store weapons or shelter able-bodied combatants, the attacking force must issue a warning to cease this misuse, setting a reasonable time limit for it to end, and attacking only after such a warning has gone unheeded.[152]

Under the laws of war, doctors, nurses, and other medical personnel must be permitted to provide care and attention to the wounded and sick without adverse distinction. They may not be punished for performing their medical duties.[153]

Armed personnel may enter medical facilities “for legitimate purposes such as searching for alleged criminals; interrogating and arresting suspects; searching for and arresting combatants or fighters posing an imperative threat to their security; or verifying that a medical unit is not used for military purposes.” At the same time, the military personnel may not disrupt the normal functioning of the medical facility, interfering with or denying medical treatment.[154]

Accountability for Alleged War Crimes

Serious violations of international humanitarian law committed with criminal intent—that is, deliberately or recklessly—are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the International Criminal Court statute and other sources, include a wide array of offenses for which individuals may be held criminally liable—deliberate, indiscriminate, and disproportionate attacks harming civilians; hostage taking; using human shields; and imposing collective punishment, among others.[155] Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.

Responsibility also may fall on people planning or instigating a war crime.[156] Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[157]

Ensuring justice for serious violations is, in the first instance, the responsibility of the country whose nationals are implicated in the violations. Governments have an obligation to investigate serious violations that implicate their officials or other people under their jurisdiction. The government must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds.[158]

While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.[159]

Acknowledgments

This report was written by Patricia Gossman, associate Asia director at Human Rights Watch. Brad Adams, Asia director, edited the report. James Ross, legal and policy director, and Joseph Saunders, deputy program director, provided legal and program review. John Sifton, Asia advocacy director, and Andrea Prasow, deputy Washington director, provided additional review. The report was prepared for publication by Jose Martinez, administrative officer, and Fitzroy Hepkins, senior administrative manager.

Human Rights Watch wishes to thank those who agreed to be interviewed in Afghanistan, those who facilitated research, and the many Afghan activists, lawyers, health care providers, and rights advocates who provided input. In deference to their concerns, we have honored their requests for anonymity.

 

[1] UNAMA, “Midyear Update on the Protection of Civilians in Armed Conflict: 1 January to 30 June 2019,” July 30, 2019, https://unama.unmissions.org/sites/default/files/unama_poc_midyear_updat... (accessed August 22, 2019).

[2] Ibid. Between January 1 and June 30, 2019, UNAMA recorded 519 civilian casualties (363 deaths and 156 injured), 150 of which were children (89 deaths and 61 injured), a 39 percent increase from aerial operations in comparison to the first half of 2018. UNAMA also documented 218 civilian casualties (159 deaths and 59 injured) as a result of search operations, more than half of which were caused by NDS special forces. In the first half of 2018, such search operations caused 122 civilian casualties (99 deaths and 23 injured).

[3] Open Society Foundations and The Liaison Office, “The Cost of Kill/Capture: Impact of the Night Raid Surge on Afghan Civilians,” September 2011, https://www.opensocietyfoundations.org/publications/cost-killcapture-imp... (accessed August 22, 2019).

[4] Adding to the 50,000 already there. “Afghanistan War: Trump’s Allies and Troop Numbers,” BBC News, August 22, 2017, https://www.bbc.com/news/world-41014263 (accessed August 22, 2019).

[5] Open Society Foundations and The Liaison Office, “The Cost of Kill/Capture.”

[6] Human Rights Watch telephone interview with military analyst, September 21, 2019.

[7] Before 2011, the CIA was already working with some Afghan units as “counterterrorism pursuit teams,” created to “pursue” Al-Qaeda militants into Pakistan, where the US military had no legal authority to conduct operations. Some of these units, particularly the Khost Protection Force and Kandahar Strike Force, conducted operations inside Afghanistan. In 2013, then-President Hamid Karzai responded to public protests over disappearances and killings by US forces during night raids in Maidan Wardak by greatly restricting the use of such raids. However, when President Ashraf Ghani took office in September 2014, he lifted the restrictions and authorized the presence of US special operations forces to accompany Afghan forces in an “advisory” capacity during the raids. John Wendle, “Fear and Loathing in Afghanistan,” Independent, March 12, 2013, https://www.independent.co.uk/news/world/asia/fear-and-loathing-in-afgha... (accessed October 19, 2019); Rod Nordland and Taimoor Shah, “Afghanistan Quietly Lifts Ban on Nighttime Raids,” New York Times, November 23, 2014, https://www.nytimes.com/2014/11/24/world/asia/afghanistan-quietly-lifts-... (accessed October 19, 2019).

[8] Mujib Mashal, “C.I.A.’s Afghan Forces Leave a Trail of Abuse and Anger,” New York Times, December 31, 2018, https://www.nytimes.com/2018/12/31/world/asia/cia-afghanistan-strike-for... (accessed August 5, 2019). Members of these forces are paid about US$1,000 monthly, much more than an ordinary soldier. Stefanie Glinski, “How the CIA Aims to Keep a Footprint in Afghanistan,” Foreign Policy, August 8, 2019, https://foreignpolicy.com/2019/08/08/how-the-cia-aims-to-keep-a-footprin... (accessed August 20, 2019).

[9] Wesley Morgan, “U.S. Soldier Killed in Afghanistan Was Part of CIA Operation,” Politico, July 24, 2018, https://www.politico.com/story/2018/07/24/afghanistan-defense-cia-operat... (accessed August 20, 2019).

[10] Ibid.

[11] Human Rights Watch telephone and text interviews with military analyst and former US special forces officer, September 11 and 15, 2019.

[12] For extensive documentation of this effort, see Steve Coll, Directorate S: The C.I.A. and America’s Secret Wars in Afghanistan and Pakistan (New York: Penguin Press, 2018).

[13] International Crisis Group, “A Force in Fragments: Reconstituting the Afghan National Army,” May 12, 2010.

[14] In 2002, President Bush gave written legal authority to the CIA to “hunt down and kill the terrorists without seeking further approval.” James Risen and David Johnston, “Threats and Responses: Hunt for Al Qaeda; Bush Has Widened Authority of C.I.A. to Kill Terrorists,” New York Times, December 15, 2002, https://www.nytimes.com/2002/12/15/world/threats-responses-hunt-for-al-q... (accessed October 9, 2019); Human Rights Watch, “Enduring Freedom”: Abuses by U.S. Forces in Afghanistan, March 2004, https://www.hrw.org/report/2004/03/07/enduring-freedom/abuses-us-forces-... Coll, Directorate S; Bob Woodward, Obama’s Wars (New York: Simon and Schuster, 2010).

[15] Human Rights Watch telephone interview with military analyst, September 21, 2019; Coll, Directorate S, p. 118, 160-161, 237; Morgan, “U.S. Soldier Killed in Afghanistan Was Part of CIA Operation,” Politico.

[16] Michael E. DeVine, “Covert Action and Clandestine Activities of the Intelligence Community: Selected Definitions in Brief,” Congressional Research Service, June 14, 2019, https://fas.org/sgp/crs/intel/R45175.pdf (accessed September 26, 2019); Mashal, “C.I.A.’s Afghan Forces Leave a Trail of Abuse and Anger,” New York Times; Glinski, “How the CIA Aims to Keep a Footprint in Afghanistan,” Foreign Policy; Kate Clark, “What Exactly is the CIA Doing in Afghanistan? Proxy Militias and Two Airstrikes in Kunar,” Afghanistan Analysts Network, April 28, 2013, https://www.afghanistan-analysts.org/what-exactly-is-the-cia-doing-in-af... (accessed October 8, 2019); Coll, Directorate S.

[17] Kenneth Anderson, “CIA, Drones and Proxy Forces, and the Exit from Afghanistan,” Lawfare, March 3, 2012, https://www.lawfareblog.com/cia-drones-and-proxy-forces-and-exit-afghani... (accessed October 9, 2019); Morgan, “U.S. Soldier Killed in Afghanistan Was Part of CIA Operation,” Politico.

[18] Thomas Gibbons-Neff, Eric Schmitt, and Adam Goldman, “A Newly Assertive C.I.A. Expands Its Taliban Hunt in Afghanistan,” New York Times, October 22, 2017, https://www.nytimes.com/2017/10/22/world/asia/cia-expanding-taliban-figh... (accessed August 23, 2019).

[19] UNAMA has documented abuses by the Khost Protection Force for many years. In its 2018 annual report, UNAMA stated: “The Khost Protection Force is a pro-Government paramilitary group that has carried out specialized operations in the southeast of Afghanistan since at least 2007. It functions outside of the regular military command and control structures, does not exist in the official Government tashkil, and its operations are often not coordinated with local authorities or the National Directorate of Security.… The vast majority of civilian deaths attributed to the Khost Protection Force were caused by intentional shooting, mostly in the context of search operations.” See also Sudarsan Raghavan, “CIA Runs Shadow War with Afghan Militia Implicated in Civilian Killings,” Washington Post, December 3, 2015, https://www.washingtonpost.com/world/cia-backed-afghan-militias-fight-a-... (accessed October 8, 2019). The Wikileaks war logs, released in 2010, contain references to the CIA’s private army in Khost. Martin Smith and Stephen Grey, “The Secret War,” PBS Frontline, January 3, 2012, https://www.pbs.org/wgbh/frontline/film/secret-war/ (accessed October 8, 2019); Jules Cavendish, “CIA Trains Covert Units of Afghans to Continue the Fight against Taliban,” Independent, July 20, 2011, https://www.independent.co.uk/news/world/asia/cia-trains-covert-units-of... (accessed October 8, 2019).

[20] Aimal Faizy, then spokesperson for President Hamid Karzai, called the NDS 04 a “CIA proxy” that was “not armed by the NDS, not paid by the NDS, and not sent to operations by the NDS.” Emma Graham-Harrison, “Hamid Karzai Seeks to Curb CIA Operations in Afghanistan,” Guardian, April 19, 2013, https://www.theguardian.com/world/2013/apr/19/hamid-karzai-curb-cia-afgh... (accessed October 8, 2019); Clark, “What Exactly is the CIA Doing in Afghanistan?” Afghanistan Analysts Network.

[21] While UNAMA reported on NDS special forces working with international forces in its 2017 annual report, it did not name the individual NDS 01 and 02 units until 2018. Human Rights Watch first investigated a night raid by 02 in 2017.

[22] Mashal, “C.I.A.’s Afghan Forces Leave a Trail of Abuse and Anger,” New York Times; Glinski, “How the CIA Aims to Keep a Footprint in Afghanistan,” Foreign Policy.

[23] Human Rights Watch telephone and text interviews with military analysts and former US special forces officer, September 11, 15, and 21, 2019.

[24] Craig Nelson, “Afghans Supported by U.S. Repel Taliban to Increase Leverage in Talks,” Wall Street Journal, June 25, 2019, https://www.wsj.com/articles/afghans-supported-by-u-s-repel-taliban-to-i... (accessed October 9, 2019).

[25] US Department of Defense, “Enhancing Security and Stability in Afghanistan,” June 2019, https://media.defense.gov/2019/Jul/12/2002156816/-1/-1/1/ENHANCING-SECUR... (accessed October 9, 2019).

[26] DeVine, “Covert Action and Clandestine Activities of the Intelligence Community,” Congressional Research Service.

[27] “NATO and Afghanistan,” March 5, 2019, https://www.nato.int/cps/en/natohq/topics_8189.htm (accessed October 18, 2019).

[28] In Afghanistan, these include US Army Rangers, who partner with Afghanistan’s Ktah Khas counterterrorism brigade, created in 2009, which relies on the US for intelligence, targeting, and air transportation. Human Rights Watch telephone and text interviews with military analysts and former US special forces officer, September 11, 15, and 21, 2019.

[29] Ibid.

[30] UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” February 2019, https://unama.unmissions.org/sites/default/files/unama_annual_protection... (accessed September 10, 2019); Gibbons-Neff, Schmitt, and Goldman, “A Newly Assertive C.I.A. Expands Its Taliban Hunt in Afghanistan,” New York Times; Astri Suhrke and Antonio De Lauri, “The CIA’s ‘Army’: A Threat to Human Rights and an Obstacle to Peace in Afghanistan,” Brown University, August 21, 2019, https://watson.brown.edu/costsofwar/files/cow/imce/papers/2019/Costs%20o... (accessed August 23, 2019).

[31] Gibbons-Neff, Schmitt, and Goldman, “A Newly Assertive C.I.A. Expands Its Taliban Hunt in Afghanistan,” New York Times.

[32] CIA Director Mike Pompeo, “Remarks at UT Austin National Security Forum,” October 12, 2017, https://www.cia.gov/news-information/speeches-testimony/2017-speeches-te... (accessed September 12, 2019).

[33] UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 36.

[34] UNAMA, “Midyear Update on the Protection of Civilians in Armed Conflict: 1 January to 30 June 2019.”

[35] A tashkil is the Afghan government’s official list of required ANA and ANP personnel by position and rank. UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 37.

[36] Ibid., p. 42.

[37] Richard Bennett (@richard11215), Twitter, August 15, 2019, https://twitter.com/richard11215/status/1162190350951170048 (accessed August 22, 2019).

[38] Suhrke and De Lauri, “The CIA’s ‘Army,’” Brown University.

[39] Gibbons-Neff, Schmitt, and Goldman, “A Newly Assertive C.I.A. Expands Its Taliban Hunt in Afghanistan,” New York Times.

[40] “Throughout 2018, UNAMA documented a steady increase in civilian casualties caused by aerial operations by Pro-Government Forces. This follows from a relaxation of the rules of engagement for airstrikes by United States forces in Afghanistan at the end of 2017. In 2018, UNAMA documented … a 61 percent increase in civilian casualties from this tactic from 2017. This is the highest number of civilian casualties from airstrikes in a single year since UNAMA began systematic documentation in 2009.” UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 38. UNAMA noted a further 39 percent increase in civilian casualties from air operations in the first half of 2018. UNAMA, “Midyear update on the protection of civilians in armed conflict: 1 January to 30 June 2019.”

[41] Jessica Purkiss, Abigail Fielding-Smith, and Emran Feroz, “CIA-Backed Afghan Unit Accused of Atrocities Is Able to Call in Air Strikes,” Bureau of Investigative Journalism, February 8, 2019, https://www.thebureauinvestigates.com/stories/2019-02-08/cia-backed-afgh... (accessed October 10, 2019).

[42] With the advent of President Trump’s South Asia policy in August 2017 which abrogated tactical directives that had imposed constraints on US military operations, Afghanistan has witnessed an unprecedented increase in air operations and dropped munitions. Aaron Mehta, “Mattis Reveals New Rules of Engagement,” Military Times, October 3, 2017, https://www.militarytimes.com/flashpoints/2017/10/03/mattis-reveals-new-... (accessed August 18, 2019). For more on the tactical directives and how they reduced civilian casualties, see Marc Garlasco, “How to Fix the US Military’s Broken Targeting System,” Just Security, December 12, 2017, https://www.justsecurity.org/49133/fix-militarys-broken-targeting-system/ (accessed August 18, 2019); Center for Civilians in Conflict, “Civilian Harm Tracking: Analysis of ISAF Efforts in Afghanistan,” 2014, https://civiliansinconflict.org/wp-content/uploads/2017/09/ISAF_Civilian... (accessed August 18, 2019). Human Rights Watch made recommendations on these directives in its 2008 report, Troops in Contact: Airstrikes and Civilian Deaths in Afghanistan, September 2008, https://www.hrw.org/sites/default/files/reports/afghanistan0908web_0.pdf.

[43] In 2008, Gen. Stanley McChrystal, then serving as the top US commander in Afghanistan, banned airstrikes that targeted residential buildings except in the most extreme cases. “The directive calls for military commanders to ‘scrutinize’ and ‘limit’ the use of close air support (CAS) against residential compounds and other areas likely to result in civilian casualties.” Jonathan Burch, “New U.S. Combat Order to Cut Afghan Civilian Deaths,” Reuters, July 6, 2009, https://www.reuters.com/article/us-afghanistan-civilian-casualties-sb-id... (accessed August 18, 2019).

[44] Abigail Fielding-Smith and Jessica Purkiss, “US Ends Blackout on Afghan Air Strike Data,” Bureau of Investigative Journalism, October 5, 2018, https://www.thebureauinvestigates.com/stories/2018-10-05/us-resumes-rele... (accessed August 18, 2019). This data did not include drone operations or other air operations by other agencies, notably the CIA.

[45] Ibid.

[46] President Karzai’s spokesperson at the time referred to the unit as a counterterrorism pursuit team. The term has been applied to other US-backed Afghan paramilitary forces. Rod Nordland, “After Airstrike, Afghan Points to C.I.A. and Secret Militias,” New York Times, April 18, 2013, https://www.nytimes.com/2013/04/19/world/asia/after-airstrike-afghan-poi... (accessed September 2, 2019).

[47] UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 41, fn. 158.

[48] Kate Clark, “CIA-Proxy Militias, CIA-Drones in Afghanistan: ‘Hunt and Kill’ Deja Vu,” Afghanistan Analysts Network, October 26, 2017, https://www.afghanistan-analysts.org/cia-proxy-militias-cia-drones-in-af... (accessed September 1, 2019).

[49] Clark, “What Exactly is the CIA Doing in Afghanistan?” Afghanistan Analysts Network.

[50] “The Khost Protection Force emerged out of the 25th Division of the ‘Afghan Military Forces,’ the term used to describe the various Afghan armed forces that came under formal Ministry of Defence command in 2001 and 2002 and received US funding.… The Afghan Military Forces encompassed a wide range of militias and forces drawn from the Northern Alliance and those loyal to pro-US Pashtun commanders. The 25th Division in Khost was unusual in that it had a high proportion of former members of the PDPA army, from the party’s Khalqi wing.… The 25th Division was spared Disarmament, Demobilisation and Reintegration (DDR) because of its good links to the CIA.” Kate Clark, “Khost Protection Force Accused of Fresh Killings: Six Men Shot Dead in Zurmat,” Afghanistan Analysts Network, January 21, 2019, https://www.afghanistan-analysts.org/khost-protection-force-accused-of-f... (accessed August 22, 2019).

[51] UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 36.

[52] Clark, “Khost Protection Force Accused of Fresh Killings,” Afghanistan Analysts Network; Mashal, “C.I.A.’s Afghan Forces Leave a Trail of Abuse and Anger,” New York Times. In previous years, UNAMA documented KPF incidents exclusively in Khost province; in 2018, however, it noted a geographic expansion in KPF operations, with 14 incidents with civilian casualties in Khost, four in Paktika, and four in Paktia. UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018.”

[53] For example, after an NDS 01 raid killed three members of a family in Jabal Saraj, Parwan province, on the night of November 23, 2018, villagers blocked the Parwan-Kabul highway in protest, claiming that the forces had been searching for a known criminal and had targeted the family by mistake. Farid Tanha, “3 Civilians Killed, 4 Injured in Parwan Overnight Raid,” Pajhwok, November 23, 2018, https://www.pajhwok.com/en/2018/11/23/3-civilians-killed-4-injured-parwa... (accessed September 1, 2019). Following numerous night raids in Wardak province in July 2019, residents threatened to close roads and “boycott” the government. “If Civilian Killings Continue, We Will Boycott Govt,” Pajhwok, July 22, 2019, https://www.pajhwok.com/en/2019/07/22/%E2%80%98if-civilian-killings-cont... (accessed September 1, 2019).

[54] Human Rights Watch email correspondence with NGO staff member, Kabul, July 17, 2019.

[55] In some cases where operations are closer to the forces’ command center, or do not entail extensive travel through insurgent-held territory, the units may travel by road.

[56] “Americans have a presence at bases where detainees have accused the units of torture and abuse, officials say.… Sabrina Hamidi, who leads the Afghan Human Rights Commission in the east, said that during her 13 years of work at the commission, she could not recall a single example of access to the regional forces to examine accusation of abuses. ‘In their operations, most of the times the harm to civilians is direct,’ Ms. Hamidi said about the 02 unit. ‘When they make arrests, there is usually torture involved, also.’” Mashal, “C.I.A.’s Afghan Forces Leave a Trail of Abuse and Anger,” New York Times.

[57] Open Society Foundations and The Liaison Office, “The Cost of Kill/Capture.”

[58] Ibid.

[59] Human Rights Watch telephone interview with NGO staff member, Kabul, July 16, 2019. Identifying details of the raid have been withheld to protect the source.

[60] NDS 01 took credit for the raid in a tweet on August 12; other media reported it as well. NDS 01 Unit (@NDS_Afghanistan), Twitter, August 12, 2019, https://twitter.com/NDS_Afghanistan/status/1160810703357468675 (accessed August 24, 2019); “11 Civilians Killed in Special Unit’s Raid in Paktia: Residents,” Tolo News, August 14, 2019, https://www.tolonews.com/afghanistan/11-civilians-killed-special-unit%E2... (accessed August 24, 2019).

[61] Human Rights Watch telephone interview with Afghan human rights activist who interviewed the relatives of the victims, August 16, 2019.

[62] Thomas Ruttig and AAN team, “‘Murder Is Always’: The Kulalgo Night Raid Killings,” Afghanistan Analysts Network, August 17, 2019, https://www.afghanistan-analysts.org/murder-is-always-the-kulalgo-night-... (accessed August 24, 2019).

[63] Ibid.

[64] Ibid.

[65] Tolo News (@TOLOnews), Twitter, August 12, 2019, https://twitter.com/TOLOnews/status/1160822773780025344?s=20 (accessed August 25, 2019).

[66] Common Article 3 of the 1949 Geneva Conventions prohibits at any time and in any place whatsoever “violence to life and person, in particular murder of all kinds” and “the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” with respect to “persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause.” See International Committee of the Red Cross, “Customary Law: Practice Relating to Rule 89. Violence to Life,” https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule89 (accessed August 24, 2019).

[67] UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 43.

[68] Clark, “Khost Protection Force Accused of Fresh Killings,” Afghanistan Analysts Network.

[69] The families were known to be staunchly anti-Haqqani, which makes any accusation of supporting the Taliban baffling. For an in-depth analysis of the possible political motivations for the killings, see Clark, “Khost Protection Force Accused of Fresh Killings,” Afghanistan Analysts Network.

[70] UNAMA, “Protection of Civilians in Armed Conflict: Annual Report 2018,” p. 43.

[71] The district first garnered international media attention when US Green Berets established themselves at a US military base there in late 2012. By my mid-2013, they had left under a cloud as evidence of alleged war crimes came to light. Over a period of months, US special forces had detained 18 Nerkh men whose bodies were found in a shallow grave near the base or elsewhere in the vicinity. UNAMA stated that the disappearances and killings—if proven to be the responsibility of a party to the conflict—amounted to war crimes. In August 2015, the US military reopened a criminal investigation into 17 alleged murders of civilians by the special forces team. Matthieu Aikens, “The A-Team Killings,” Rolling Stone, November 6, 2013, https://www.rollingstone.com/interactive/feature-a-team-killings-afghani... (accessed August 24, 2019); Rod Nordland, “U.S. Army Reopens Criminal Inquiry into Afghan Civilians’ Deaths,” New York Times, August 24, 2015, https://www.nytimes.com/2015/08/25/world/asia/us-army-reopens-criminal-i... (accessed August 24, 2019). The findings of that investigation have not been made public.

[72] Human Rights Watch interview with M., Kabul, November 5, 2018.

[73] The US Forces-Resolute Support press release on the October 8 airstrikes in Wardak has been removed. Bureau of Investigative Journalism, “Afghanistan: Reported US Covert Actions 2018,” https://www.thebureauinvestigates.com/drone-war/data/afghanistan-reporte... (accessed September 11, 2019).

[74] Human Rights Watch interview with D.D., Kabul, November 5, 2018.

[75] Human Rights Watch telephone interview with M.M., April 13, 2019. Camp Gekho is a US base located west of Kandahar city.

[76] Fahim Abed, “Afghan War Casualty Report: April 5-11,” New York Times, April 11, 2019, https://www.nytimes.com/2019/04/11/magazine/afghan-war-casualty-report.html (accessed August 25, 2019).

[77] Human Rights Watch telephone interview with M.M., April 13, 2019.

[78] Mujib Mashal (@MujMash), Twitter, April 11, 2019, https://twitter.com/MujMash/status/1116224969741164544 (accessed August 25, 2019). Human Rights Watch has been unable to learn if any had been released. The arrest or detention of anyone by government forces followed by a refusal to acknowledge the detention or whereabouts of the person, is considered an enforced disappearance under human rights law. International Convention for the Protection of All Persons from Enforced Disappearance, adopted December 20, 2006, G.A. Res. 177 (LXI), U.N. Doc. A/RES/61/177 (2006), entered into force December 23, 2010.

[79] Human Rights Watch telephone interview with M.M., April 13, 2019.

[80] Human Rights Watch interview with G.G., November 4, 2018.

[81] Ibid.

[82] Bureau of Investigative Journalism, “Afghanistan: Reported US Covert Actions 2018.”

[83] Ibid.; Human Rights Watch interview with G.G., November 4, 2018. The NDS pays up to 100,000 afghanis (US$1,280) in cases of wrongful death.

[84] “‘Dozens’ of Taliban Militants Killed in Southern Afghanistan,” Radio Free Europe/Radio Liberty, February 2, 2018, https://www.rferl.org/a/afghanistan-kandahar-dozens-taliban-killed/29011... (accessed October 6, 2018). Band-e Timor was a Taliban stronghold before 2002. In April 2002, Ishaqzai tribal elders in Band-e Timor, who had supported the Taliban, pledged their allegiance to President Hamid Karzai. However, Gul Agha Sherzai, the former governor of Kandahar whose depredations helped pave the way for a Taliban takeover in 1994, saw the Ishaqzai as rivals and informed US officials that they were all Taliban sympathizers. In a single operation in May 2002, US special forces raided villages in the district. The US forces shot and wounded several men and detained 55. Haji Burget Khan, the most senior elder in the community who had persuaded the others to support Karzai, died of gunshot wounds five days later. Over the next two years, Band-e Timor became a stronghold of the Taliban resurgence. Gul Agha Sherzai again became governor of Kandahar and was implicated in a number of corruption scandals related to lucrative US contracts for the Kandahar airfield and US military base. See Anand Gopal, “Dick Cheney’s Gift to the Middle East: How America Created an Afghan Blackwater,” Salon, April 12, 2015, https://www.salon.com/2015/04/12/dick_cheneys_gift_to_the_middle_east_ho... (accessed August 26, 2019).

[85] Human Rights Watch telephone interview with witness in Kandahar, February 14, 2018.

[86] Human Rights Watch interview with witness from Kandahar, Kabul, February 14, 2018.

[87] Human Rights Watch email correspondence with witness in Kabul, February 16, 2018.

[88] “50 Taliban Militants Killed in Kandahar Offensive,” Tolo News, February 2, 2018, https://www.tolonews.com/afghanistan/50-taliban-militants-killed-kandaha... (accessed August 26, 2019).

[89] Human Rights Watch interview with witness from Kandahar, Kabul, February 14, 2018. See also “‘Dozens’ of Taliban Militants Killed in Southern Afghanistan,” Radio Free Europe/Radio Liberty.

[90] Human Rights Watch, “Today We Shall All Die”: Afghanistan’s Strongmen and the Legacy of Impunity, March 2015, https://www.hrw.org/report/2015/03/03/today-we-shall-all-die/afghanistan....

[91] The ISKP emerged in 2015 out of a loose affiliation of militant organizations driven out of Pakistan by military operations in 2009-2010. ISKP has exercised brutal control over these districts, extorting taxes, forcing schools and clinics to close, and summarily executing some who resisted. ISKP cells have carried out suicide bombings in Jalalabad, Kabul, and other cities, killing and injuring hundreds of civilians. Human Rights Watch, “No Safe Place”: Insurgent Attacks on Civilians in Afghanistan, May 2018, https://www.hrw.org/sites/default/files/report_pdf/afghanistan0518_web_1..., p. 8-11.

[92] In December 2017 and February 2018, Human Rights Watch interviewed residents from Nangarhar districts who said that some of these air operations killed and injured civilians. Human Rights Watch, “Afghanistan: Weak Investigations into Civilian Airstrike Deaths,” May 16, 2018, https://www.hrw.org/news/2018/05/16/afghanistan-weak-investigations-civi....

[93] Human Rights Watch interview with D.D., Jalalabad, November 30, 2017.

[94] Ibid.

[95] Ibid.

[96] Tactical directives that NATO’s International Security Assistance Force (ISAF) put in place after 2007 were a major factor in reducing civilian deaths by airstrikes in Afghanistan by nearly 70 percent from 2008 to 2012. See Garlasco, “How to Fix the US Military’s Broken Targeting System,” Just Security.

[97] Previously, under the tactical directives, every strike directed against a building had to be authorized by an admiral or general. “In practice, this means that a strike approval coming from a flag officer sitting in an operations center has myriad checks and balances.… Relinquishing this authority to troops in the field potentially curtails many of the checks and balances built into the system to protect civilians.” Garlasco, “How to Fix the US Military’s Broken Targeting System,” Just Security.

[98] Zabihullah Ghazi and Fahim Abed, “13 Civilians Reported Killed in U.S. Airstrikes in Afghanistan,” New York Times, March 10, 2019, https://www.nytimes.com/2019/03/10/world/asia/airstrikes-nangarhar-afgha... (accessed August 26, 2019).

[99] Human Rights Watch telephone interview with witness in Nangarhar, April 13, 2019.

[100] Statement attributed to Sgt. First Class Debra Richardson, who added that “the Afghans had been targeting a Taliban operations center.” Ghazi and Abed, “13 Civilians Reported Killed in U.S. Airstrikes in Afghanistan,” New York Times.

[101] Bureau of Investigative Journalism, “Afghanistan: Reported US Covert Actions 2019,” https://www.thebureauinvestigates.com/drone-war/data/afghanistan-reporte... (accessed September 12, 2019).

[102] Human Rights Watch telephone interview with witness in Nangarhar, April 13, 2019.

[103] UNAMA, “Preliminary Findings Indicate Airstrike Killed 12 Civilians in Maidan Wardak Province,” September 25, 2018, https://unama.unmissions.org/preliminary-findings-indicate-airstrike-kil... (accessed August 26, 2019); Jessica Purkiss and Mateen Arian, “How US ‘Good Guys’ Wiped Out an Afghan Family,” Bureau of Investigative Journalism, June 3, 2019, https://www.thebureauinvestigates.com/stories/2019-06-03/us-bomb-kills-a... (accessed October 5, 2019).

[104] Purkiss and Arian, “How US ‘Good Guys’ Wiped Out an Afghan Family,” Bureau of Investigative Journalism.

[105] Human Rights Watch telephone interview with Masih Ur-Rahman Mubarez, April 13, 2019.

[106] According to the Bureau of Investigative Journalism, she had been told to switch off the phone. Purkiss and Arian, “How US ‘Good Guys’ Wiped Out an Afghan Family,” Bureau of Investigative Journalism.

[107] Human Rights Watch telephone interview with Masih Ur-Rahman Mubarez, April 13, 2019.

[108] Ibid. According to the Bureau of Investigative Journalism, the US military mission in Afghanistan first denied responsibility for the airstrike, then confirmed that US forces on the ground had called for air support, and a strike had been carried out in “self-defense.” Purkiss and Arian, “How US ‘Good Guys’ Wiped Out an Afghan Family,” Bureau of Investigative Journalism.

[109] In mid-2012, the Taliban lost control of Andar district in the so-called Andar Uprising, which the Afghan government and US military seized on as a hoped-for turning point in the war. However, the Taliban’s temporary setback had much more to do with local power dynamics, and by 2017 the district was again in Taliban control. Fazal Muzhary and Kate Clark, “Uprising, ALP and Taleban in Andar: The Arc of Government Failure,” Afghanistan Analysts Network, May 22, 2018, https://www.afghanistan-analysts.org/uprising-alp-and-taleban-in-andar-t... (accessed August 24, 2019).

[110] On the number of airstrikes, see Bureau of Investigative Journalism, “Afghanistan: Reported US Covert Actions 2019.”

[111] For an account of some of the night raids, see Fazal Muzhary, “One Land, Two Rules (7): Delivering Public Services in Insurgency-Affected Andar District in Ghazni Province,” Afghanistan Analysts Network, June 13, 2019, https://www.afghanistan-analysts.org/one-land-two-rules-7-delivering-pub... (accessed August 24, 2019).

[112] Unpublished report on threats to healthcare facilities in Afghanistan, 2019, on file with Human Rights Watch.

[113] Ibid.

[114] Human Rights Watch telephone interview with clinic staff member, August 25, 2019. Details corroborated in unpublished report on threats to healthcare facilities in Afghanistan.

[115] Ibid.

[116] Human Rights Watch telephone interview with two local health council members in Day Mirdad, July 12, 2019.

[117] Ibid.

[118] Ibid.

[119] Swedish Committee of Afghanistan, “SCA Strongly Condemns Attack on Health Clinic in Wardak Province,” July 14, 2019, https://swedishcommittee.org/blog/sca-strongly-condemns-attack-health-cl... (accessed August 24, 2019).

[120] Shehreena Qazi, “Swedish-Run Clinics Stay Shut in Afghanistan for Fifth Day,” Al Jazeera, July 18, 2019, https://www.aljazeera.com/news/2019/07/swedish-run-clinics-stay-shut-afg... (accessed August 24, 2019).

[121] Human Rights Watch, “Afghanistan: Investigate Army Killings of Hospital Patients,” February 19, 2016, https://www.hrw.org/news/2016/02/19/afghanistan-investigate-army-killing....

[122] Human Rights Watch telephone interview with resident of Kajaki, August 30, 2019.

[123] Ibid.; unpublished report on threats to healthcare facilities in Afghanistan, 2019, on file with Human Rights Watch.

[124] Ibid.

[125] See generally, International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005).

[126] Article 3 common to the First, Second, Third, and Fourth Geneva Conventions (Common Article 3). Afghanistan became a party to the Geneva Conventions in 1956; the US became a party to the Geneva Conventions in 1955.

[127] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978. Article 1 states the protocol applies to “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

[128] See generally the discussion of the applicability of international humanitarian law to non-state armed groups in ICRC, Customary International Humanitarian Law, p. 497-498.

[129] ICRC, Customary International Humanitarian Law, rules 1-10, citing, for example, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978.

[130] ICRC, Customary International Humanitarian Law, rules 15-21.

[131] Common Article 3(1).

[132] International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.

[133] International Convention for the Protection of All Persons from Enforced Disappearance, adopted December 20, 2006, G.A. Res. 177 (LXI), U.N. Doc. A/RES/61/177 (2006), entered into force December 23, 2010, art. 2; see also ICRC, Customary International Humanitarian Law, rule 98.

[134] ICCPR, arts. 9 and 14.

[135] ICRC, Customary International Humanitarian Law, rules 7-10, citing Protocol I, art. 48, 52(2).

[136] Ibid., rule 1.

[137] Ibid., rule 6.

[138] See generally, ICRC, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,” May 2009.

[139] ICRC, Customary International Humanitarian Law, rules 7-10.

[140] Protocol I, art. 52(3).

[141] ICRC, Customary International Humanitarian Law, rules 1 and 7.

[142] Ibid., rules 11-13, citing Protocol I, art. 51(4).

[143] Ibid., rule 14, citing Protocol I, art. 51(5).

[144] Ibid., rule 15, citing Protocol I, art. 57.

[145] Ibid., rule 20, citing Protocol I, art. 57(2).

[146] Ibid., rule 22, citing Protocol I, art. 58.

[147] Ibid., rule 24, citing Protocol I, art. 58.

[148] Ibid., rule 97, citing Third Geneva Convention, art. 23; Fourth Geneva Convention, art. 28; and Protocol I, art. 51.

[149] See “ICRC Q&A on the Issue of Explosive Weapons in Populated Areas,” International Review of the Red Cross, vol. 98, no. 901 (2016), p. 97-105.

[150] See “Explosive Weapons in Cities: Civilian Devastation and Suffering Must Stop,” UN Secretary-General and ICRC President joint statement, September 18, 2019.

[151] ICRC, Customary International Humanitarian Law, rule 28, citing Protocol II, art. 11(1).

[152] Ibid.

[153] Ibid., rule 26, citing Protocol II, arts. 9 and 10.

[154] See Alexander Breitegger, “The Legal Framework Applicable to Insecurity and Violence Affecting the Delivery of Health Care in Armed Conflicts and Other Emergencies,” International Review of the Red Cross, vol. 95, no. 889 (2013), p. 117-118.

[155] ICRC, Customary International Humanitarian Law, rule 156.

[156] Ibid., rule 151.

[157] Ibid., rule 153.

[158] Ibid., rule 158.

[159] Ibid., rule 150.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am