July 7, 2005

IV. Culpability

The attacks on civilians, summary executions, torture, abductions and looting documented in this report were not spontaneous events or inevitable consequences of war.They were war crimes committed by troops within military structures with command-and-control mechanisms.And in many cases documented here, the actions or omissions of commanders resulted in or facilitated war crimes.There is compelling evidence that factional leaders either knew or should have known of ongoing serious abuses being committed by their troops, and in many cases failed to take steps to stop them.

This section describes the applicable law that governs the hostilities in 1992-1993 and outlines the command-and-control structure of each of the parties discussed in this report and the possible individual criminal responsibility of each party's main commanders.

A.Applicable law

This report describes hostilities that took place among various Afghan political-military factions after the withdrawal of Soviet forces from Afghanistan.As such, they are considered under international humanitarian law (the laws of war) to be a non-international armed conflict-i.e., not a conflict between two states-also known as an internal armed conflict or civil war.

The primary law applicable to non-international (internal) armed conflicts is article 3 common to the four Geneva Conventions of 1949. [244] Afghanistan ratified the Geneva Conventions in 1956.The Second Additional Protocol to the Geneva Conventions (Protocol II), [245] applicable to non-international armed conflicts, has not been ratified by Afghanistan.Still, most if not all of its provisions are recognized as reflective of customary international law (and were so recognized in 1992-1993).In addition, certain provisions of Protocol I of the Geneva Conventions applicable to international armed conflict, [246] including many of those concerned with protection of civilian populations, are also considered reflective of customary international law applicable at the time to non-international armed conflicts. [247]

International humanitarian law in civil armed conflicts is legally binding on both government forces and armed opposition groups.Forces within the recognized Afghan government that was formed after the collapse of the Najibullah government included Jamiat, Ittihad, and (at certain times) Wahdat and Junbish. Non-state forces fighting against the government included Hezb-e Islami and, by 1993, Wahdat.

In addition to violations of international humanitarian law amounting to war crimes, "crimes against humanity" may also have been committed.Crimes against humanity refer to acts that, by their scale or nature, outrage the conscience of humankind.Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945.Since then, the concept has been incorporated into a number of international treaties, including the Rome Statute of the International Criminal Court (ICC).Although a single legal definition of crimes against humanity did not exist in 1992-1993, there was and has been broad agreement that crimes against humanity are unlawful acts, such as murder, torture, dissapparances and rape, committed as part of a widespread or systematic attack against a civilian population by a state or non-state actor.[248]

International human rights standards are also applicable in times of conflict.During armed conflicts, international humanitarian law, as the lex specialis or specialized law, takes precedence but does not replace human rights law.Persons under the control of government or armed opposition forces in an internal armed conflict must in all cases be treated in accordance with international humanitarian law, which incorporates important human rights standards.And where that law is absent, vague, or inapplicable, human rights law still applies.Human rights law can be found, for instance, in the International Covenant on Civil and Political Rights [249] and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, [250] both of which had been ratified by Afghanistan.

Specific protections

A fundamental rule of international humanitarian law is that civilians enjoy general protection against danger arising from military operations.The rule of "civilian immunity" is binding on all parties to a conflict, regardless of whether the conflict is international or non-international in character.[251]

The principle of civilian immunity has been codified in numerous treaties. One of the clearest expressions of the principle is set out in article 51(2) of Additional Protocol I to the Geneva Conventions, which states:

The civilian population as such, as well as individual civilians, shall not be the object of attack.Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.[252]
Civilians are protected at all times from attack unless they take a direct part in the hostilities.[253]Although a precise definition of taking "direct part in hostilities" does not exist, it has generally come to mean acts that are intended to cause actual harm to the enemy, such as using or loading weapons.Providing food or other assistance to armed groups, or expressing sympathy for one side, does not deprive civilians of their civilian immunity.[254]

Civilian objects, such as residences, schools and mosques, are also protected from attack, except for such time that they are military objectives.A civilian object becomes a military target during the period it is used for military purposes.[255]

Parties to a conflict must make affirmative efforts to distinguish between civilian objects and military targets, as stated in article 48 of Protocol I:

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.[256]

Parties to a conflict are specifically obligated to direct attacks only at military targets.Attacks that are "indiscriminate" are prohibited.Indiscriminate attacks are "those which are not directed against a military objective," "those which employ a method or means of combat which cannot be directed at a specific military objective," or "those which employ a method or means of combat, the effects of which cannot be limited," and consequently, are "of a nature to strike military objectives and civilians or civilian objects without distinction."[257]

Article 51(5) of Protocol I details some of the characteristics of indiscriminate attacks:

Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.[258]

In addition, common article 3 to the four Geneva Conventions, applicable in non-international armed conflicts, specifically outlaws killings and mistreatment of civilians and captured combatants.Prohibited in particular are "violence to life and person . . . murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; [and] outrages upon personal dignity, in particular humiliating and degrading treatment."[259]

In addition to the protections found in common article 3, customary international humanitarian law applicable in internal armed conflicts provides civilians and captured combatants a number of fundamental guarantees. Those particularly relevant to the situation in Afghanistan in 1992-1993 include prohibitions against enforced disappearance, rape and other forms of sexual violence, arbitrary deprivation of liberty, and forced labor.[260]

Enforced disappearance, though not defined under international humanitarian law, encompasses the prohibitions against arbitrary detention, inhumane treatment, and murder.[261]It also encompasses the right of those deprived of their liberty during a conflict by a government or an armed group to have their personal details be registered.From this emerges a duty to investigate cases of alleged enforced disappearance.[262]

Rape and other forms of sexual violence have long been prohibited under international humanitarian law.[263]While not explicitly mentioned in common article 3 to the Geneva Conventions, rape is considered part of the article's prohibition against "violence to life and person," including cruel treatment and torture and "outrages upon personal dignity."[264]The Fourth Geneva Convention on the protection of civilians and Protocol II explicitly prohibit rape.[265]The statutes for the ad hoc and permanent international criminal courts have reaffirmed the prohibition against rape and other sexual violence as a war crime and as a crime against humanity.[266]

The arbitrary deprivation of liberty is prohibited during internal armed conflicts.Arbitrary detention is considered imcompatible with the requirement of humane treatment under common article 3 to the Geneva Conventions.[267]

Forced labor that is uncompensated or abusive is prohibited.[268]

Pillage and looting can also amount to war crimes. During an internal armed conflict, destroying or seizing the private property of civilians is prohibited unless there is a militarily necessary reason for doing so.Pillage, the forcible taking or destruction of property for private purposes, is strictly forbidden.Looting can be defined as the taking of property without the direct use of force.Both pillage and looting violate the general prohibition against theft.[269]

Civilians are also protected by basic human rights law.In cases where civilians are in the control of parties acting in the capacity of a sovereign power, those parties are obligated to uphold human rights norms, including the right to life; the prohibition against torture and cruel, inhumane, and degrading treatment; prohibitions against slavery and forced labor; rights to liberty and security of person; and rights of detainees to due process, among others.[270]Parties must respect these human rights norms without making distinctions based on ethnic or religious status.[271]

Individual Criminal Responsibility

All individuals, including factional leaders, military commanders, soldiers and civilians, are subject to prosecution for war crimes, crimes against humanity, and applicable domestic crimes.

Individual criminal responsibility for war crimes committed during internal armed conflicts has been explicitly provided in a number of international treaties since the early 1990s.These include the statutes for the international criminal tribunals for the former Yugoslavia and Rwanda, as well as the international criminal court, and multilateral treaties such as Amended Protocol II to the Convention on Certain Conventional Weapons.

During the armed conflict in Afghanistan, various entities called on all parties to the conflict to respect international humanitarian law.The ICRC, in a press release on May 5, 1992, appealed "to all parties to respect international humanitarian law and to ensure respect for its rules by everyone involved in the fighting."This appeal was repeated in August of that year.[272](Later, in March 1994, the U.N. Security Council issued a statement on the situation in Afghanistan in which it "stresse[d] the importance that it attaches to full compliance with international humanitarian law in all its aspects and recalls that those who violate international humanitarian law bear individual responsibility."[273])

Persons who commit war crimes may be held criminally liable.They may also be held criminally responsible for assisting in, facilitating, aiding, or abetting the commission of a war crime. They can also be prosecuted for planning or instigating the commission of a war crime.[274]In addition, leaders, commanders and troops who deliberately order or commit widespread or systematic murder, enslavement, mutilation, or rape of civilians can also be held individually liable for crimes against humanity.Crimes against humanity give rise to universal jurisdiction, do not have a statue of limitations, and do not admit the defense of following superior orders.

Commanders and other leaders may be criminally responsible for war crimes or crimes against humanity committed by troops under their command.The responsibility of superior officers for crimes commited by their subordinates is known as command responsibility.Although the concept originated in military law, it now also includes the responsibility of civil authorities for abuses committed by persons under their authority.The doctrine of command responsibility was part of customary international law in 1992-1993 and has been upheld in decisions by the international criminal tribunals for the former Yugoslavia and for Rwanda, and is today codified in the Rome Statute for the International Criminal Court.[275]

There are two forms of command responsibility.The first is direct responsibility for orders that are unlawful, such as when a military commander authorizes or orders rapes, massacres, or intentional attacks on civilians.In this case, the commander's forces are an instrument of the commander's will, and he is directly culpable as he would be if he carried out the abuses with his own hands. Having ordered such a crime, a commander can be found liable so long as the crime was attempted, even if it was not actually committed.[276]

All combatants have a duty to disobey manifestly unlawful orders.Obeying superior orders does not relieve a subordinate of criminal responsibility so long as he knew or should have known that the orders were unlawful.[277]

The second form of command responsibility is imputed responsibility, when a superior failed to prevent or punish crimes committed by a subordinate acting on his own initiative.This second kind of responsibility depends on whether the superior knew or had reason to know of the subordinates' crimes, and was in a position to stop and punish them.A commander has "reason to know" when offenses were so numerous or notorious that a reasonable person would conclude that the commander must have known of their commission.If a commander had such notice, he can be held criminally responsible for his subordinates if he failed to take appropriate measures to control the subordinates, to prevent their atrocities, and to punish offenders.

For the doctrine of command responsibility to be applicable, two conditions must be met. A de facto superior-subordinate relationship must exist, and the superior must exercise effective control over the subordinate.Effective control includes the ability to give orders or instructions, to ensure their implementation, and to punish or discipline subordinates if the orders are disobeyed. [278]

B. Culpability of specific individuals

The militias and political-military parties implicated in the abuses outlined in this report include the Jamiat, Ittihad, Hezb-e Islami, Wahdat, Harakat, and Junbish factions.[279]This section discusses the specific culpability of these factions' commanders in the abuses documented in this report.This section also discusses (in the Jamiat and Shura-e Nazar entry below) the governmental structure under Sibghatullah Mujaddidi and Burhanuddin Rabbani, the successive presidents of Afghanistan in 1992-1993.

What follows below is not meant to provide a comprehensive legal analysis of the ultimate criminal responsibility of the individuals named.Considerably more investigative work needs to be done to establish the criminal culpability of the various commanders and leaders implicated in the war crimes documented in this report.By laying the basic groundwork, however, we hope to encourage full criminal investigations and show that such investigations are both necessary and possible.

Wahdat

During the period discussed in this report, Wahdat forces were under the overall command of Abdul Ali Mazari (killed in 1995).[280]Abdul Karim Khalili (as of mid-2005 one of the two vice-presidents under President Hamid Karzai) served as Mazari's deputy (he later took over Wahdat after Mazari's death).Second-tier Wahdat commanders in Kabul included Abdul Wahid Turkmani, Mohsin Sultani, Tahir Tofan, Sedaqat Jahori, and Commander Bahrami.Wahdat's two main commanders in west Kabul were Shafi Dawana ("Shafi the Mad") and Nasir Dawana ("Nasir the Mad").

As was shown in section III (A) above, Wahdat forces repeatedly launched military attacks in West Kabul in 1992-1993, primarily against Ittihad forces.During these battles, there is compelling evidence that Wahdat forces failed to make efforts to distinguish between civilian objects and military targets, and that forces often fired small and heavy weapons indiscriminately into the dense civilian setting of west Kabul.In several cases documented here, Wahdat forces appear to have intentionally targeted civilians or civilian areas with gunfire, rockets. and mortar fire.

In addition, section III (A) and parts of section III (C) of this report show that Wahdat factions engaged in a pattern and practice of abductions and arbitary detentions, usually directed at civilians and apparently based on ethnic animus.Many of those detained by Wahdat-mostly Pashtuns-were severely mistreated or forced to work, and in several cases shown here, Wahdat executed civilian prisoners.

As noted above, willful killing of civilians is a war crime.Commanders involved in specific commissions of these crimes, and factional leaders who ordered abuses, are responsible under international criminal law and can be prosecuted.Higher-level Wahdat commanders not directly involved in abuses, who nonetheless had effective control over troops implicated in abuses and knew or should have known about the abuses and failed to take action to stop them, may also be liable as a matter of command responsibility.

Commanders in Wahdat may also be liable for crimes against humanity as the killings and abductions documented in this report appear to have been part of widespread and systematic attacks directed at a distinct civilian population.Wahdat commanders may be liable specifically because of their ethnic persecution-the fact that their forces appear to have targeted non-Hazara civilians for killing and abduction based on their ethnicity.There is compelling evidence that prisoners taken by Wahdat-mostly Pashtuns-were chosen from other civilians on the basis of their ethnic identity.As shown in section III (A) above, troops engaging in abuses often appear to have surmised the ethnicity of victims on the basis of their appearance, language, or accent, and decided to abuse them based on their ethnicity.Statements and actions of Wahdat officials confirmed that civilians were being arrested due to their ethnicity, suggesting a policy or a plan.As cited in Section III (A) above, Mazari and Karim Khalili each acknowledged taking Pashtun civilians as prisoners, in interviews with Reuters and Associated Press.[281]

Wahdat forces, along with the other factions discussed in this report, are also implicated in numerous acts of murder, pillage, and looting in violation of international humanitarian law.The failures by commanders to stop or prevent the abuses could make them complicit in the violations as a matter of command responsibility.

Further investigation is needed into the command-and-control structures of Wahdat forces and the specific culpability of each of its main commanders who are still alive.Mazari, Shafi Dawana and Nasir Dawana are all deceased, but Wahid Turkmani, Mohsin Sultani, Tahir Tofan, Sedaqat Jahori, and Commander Bahrami are believed to be still alive, and should be investigated for their role in the Wahdat abuses documented here.

Ittihad

Ittihad forces in 1992-1993 were under the overall command of Abdul Rabb al-Rasul Sayyaf.Second-tier Ittihad commanders included Shir Alam (parliamentary candidate and as of mid-2005 a senior commander in the defense ministry), Zalmay Tofan (until mid-2005 a senior commander in the defense ministry), Mullah Taj Mohammad (as of mid-2005, parliamentary candidate, head of political group called the Kabul Citizen's Counsel; governor of Kabul in 2003-2004), Abdullah Wardak (former minister of martyrs and disabled in President Karzai's interim 2002-2004 cabinet), "Doctor" Abdullah (as of mid-2005 a commander in the ministry of defense; no relation to Dr. Abdullah, the current foreign minister of Afghanistan), and Abdullah Shah (executed by the Afghan government in April 2004).[282]Other commanders reported to hold senior positions were Khanjar (deceased), Patang, Jaglan Naeem (as of mid-2005 reported to be serving as an official in the ministry of interior), Abdul Manan Diwana (as of mid-2005 reported to be governor of a district in Sar-e Pol province), Noor Aqi (reported to be serving as an official in the ministry of defense), Amanullah Kochi, Shirin, Mushtaq Lalai, and Mullah Kachkol (as of mid-2005 reported to be parliamentary candidate and commander in the ministry of defense).[283]

As shown in Section III (A) above, Ittihad forces repeatedly launched military attacks against Wahdat in 1992-1993.During these attacks they failed to make efforts to distinguish between civilian objects and military targets.Ittihad forces regularly fired small and heavy weapons indiscriminately within the dense civilian setting of west Kabul.In several cases, Ittihad forces appear to have intentionally targeted civilians or civilian areas with gunfire or rockets and mortar fire.

In addition, as shown in section III (A), Ittihad factions engaged in a regular pattern and practice of abduction based on ethnic grounds, usually directed at Hazara civilians.Many of those detained by Ittihad were severely mistreated or forced to work.There is clear and compelling evidence in section III (C) that during the February 1993 Afshar campaign, Ittihad forces specifically engaged in widespread killing and abduction of Hazara civilians.As shown in section III (C), Ittihad forces during the Afshar operation specifically targeted Hazara civilians for killing or abduction, based on their ethnicity.

The acts detailed above amount to war crimes.Commanders involved in specific commissions of these crimes, and factional leaders who ordered abuses, are liable and can be prosecuted.Higher-level Ittihad commanders not directly involved in abuses, who nonetheless had effective control over troops implicated in abuses and knew or should have known about the abuses and failed to take action to stop them, may also be liable on command responsibility grounds.

Commanders in Ittihad may also be liable for crimes against humanity, as the killings and abductions documented in this report appear to have been part of widespread or systematic attacks directed at a distinct civilian population.Ittihad commanders may be liable specifically because of their ethnic persecution-the fact that their forces appear to have targeted Hazara civilians for killing and abduction based on their ethnicity.There is compelling evidence, especially with respect to the Afshar operation, that most prisoners taken by Ittihad-Hazaras-were chosen from other civilians on the basis of their ethnic identity, as troops engaging in abuses appear to have surmised the ethnicity of victims on the basis of their appearance, language, or accent, as repeatedly demonstrated in sections III (A) and III (C) above.Investigations are needed to determine whether these ethnically motivated abuses were part of an Ittihad plan or policy or were merely the spontaneous acts of their troops on the ground.

As noted throughout section III, Ittihad forces, along with the other factions discussed in this report, are also implicated in numerous acts of murder, pillage, and looting in violation of international humanitarian law.The failures by commanders to stop or prevent the abuses could make them legally responsible as a matter of command responsibility.

All of the Ittihad commanders named above are alive as of mid-2005, except for Patang, who was reportedly killed in 2004, and commander Abdullah Shah, who, as noted above, was executed by the Afghan government in April 2004.[284]

Abdul Rabb al-Rasul Sayyaf, the overall leader of Ittihad, is directly implicated in the abductions and the indiscriminate and intentional targeting of civilians documented in this report.As a senior leader of Ittihad, Sayyaf had effective control over all Ittihad commanders throughout the period covered here.Sayyaf thus exercised ultimate control of Ittihad forces who committed these abuses.As noted in section III (A) above, officials in the Rabbani government in 1992-1993, which was allied with Sayyaf, acknowledged to Human Rights Watch that Sayyaf was the senior military commander of Ittihad forces, that he was in regular contact with his commanders, and that he had the power to release prisoners held by his subordinates, and in fact ordered such releases on several occasions, demonstrating his command over those commanders.[285]Health workers in west Kabul told Human Rights Watch in 2003 of additional cases in which negotiators with the International Committee of the Red Cross spoke with Sayyaf to obtain the release of prisoners, further demonstrating his control over subordinate commanders.[286]Human Rights Watch also spoke with an individual who negotiated with Sayyaf to obtain a relative's release.[287]As noted in section III (A), in June 1992, when interviewed by a journalist in Kabul about abductions, Sayyaf did not deny that Ittihad forces were abducting Hazara civilians, but instead accused Wahdat of being an agent of the Iranian government.[288]

With respect to the Afshar atrocities, section III (C) also noted that persons, including a soldier who fought with Ittihad, told Human Rights Watch that they saw Sayyaf coordinating military operations during the Afshar campaign and meeting with his sub-commanders.[289]As noted in section III (C) above, Sayyaf reportedly met with senior Ittihad commanders in Paghman the day before the Afshar campaign to discuss the Afshar attack.[290]Sayyaf was also present at a meeting convened by Massoud in the Hotel Intercontinental on the second day of the Afshar operation on February 12.[291]These facts amount to compelling evidence that Sayyaf knew or should have known about Ittihad abuses during the campaign.

Other Ittihad commanders may be implicated in Ittihad abuses.As noted in Sections III (A) and (C) above, several officials, journalists, and military commanders described to Human Rights Watch how Ittihad commanders Shir Alam, Zalmay Tofan, Mullah Taj Mohammad, Abdullah Wardak, "Doctor" Abdullah, and Abdullah Shah had effective control over troops responsible for abductions and mistreatment of detainees during street fighting with Wahdat forces in west Kabul, and that they commanded troops at Afshar.[292]Commanders Khanjar and Patang were said to have been commanding troops at Afshar.[293]One witness who was abducted and put into forced labor in Paghman under Ittihad troops saw and spoke with Zalmay Tofan while in captivity, pleading for medical assistance.[294]Persons interviewed by Human Rights Watch and the Afghan Justice Project claim that they saw Zalmay Tofan, Shir Alam, Dr. Abdullah (Ittihad), and Abdullah Shah leading troops on the ground during the Afshar campaign.[295]The Afghan Justice Project interviewed persons who identified other commanders who were seen directing troops during the Afshar campaign, includingDr. Abdullah and Khanjar, as well as other Ittihad commanders, including Jaglan Naeem, Abdul Manan Diwana, Amanullah Kochi, Shirin, Mushtaq Lalai, and Mullah Kachkol.[296]According to one witness interviewed by the Afghan Justice Project, two senior Ittihad commanders-Shir Alam and Zalmay Tofan-were at the meeting convened by Massoud the day before the Afshar attack.[297]

The exact role these Ittihad commanders played in the events described in this report requires further investigation.However, there is evidence that the command structure of Ittihad beneath Sayyaf is implicated in the abuses documented here.Both Sayyaf and his Ittihad commanders need to be thoroughly investigated regarding their role in the events described in this report.

Hezb-e Islami

Hezb-e Islami in 1992-1993 was headed by Gulbuddin Hekmatyar, whose current location is unknown.Forces consisted of the Kabul-based Firqa Sama; the Lashkar-e Isar (Army of Sacrifice), a conventional military force of over 6,000 troops Hekmatyer had organized in the late 1980s with the help of Pakistan and the United States; and other militias that joined these forces as the Najibullah regime collapsed in 1992.[298]

According to the Afghan Justice Project, which has researched the command structure of Hezb-e Islami, there was a Hezb-e Islami Shura Nizami (military council) under Hekmatyar, which consisted of ten to twelve members.[299]The Kabul-based commanders on the council were the Generals Faiz Mohammad (deceased) and Kashmir Khan (location unknown).[300]The Hezb-e Islami chief of staff was initially held by Commander Sabawon (as of mid-2005 an advisor to President Karzai), but shifted to Kashmir Khan sometime in 1992.[301]The chief artillery officer who supervised shelling and rocketing operation during late 1992 into 1993 was Toran Khalil.[302]

As shown in this report, Hezb-e Islami forces committed grave violations of international humanitarian law by intentionally targeting civilians and civilian areas for attack, or indiscriminately attacking areas in Kabul without distinguishing between civilian areas and military targets.Accounts and information presented in sections III (A) and III (B) show regular and repeated artillery strikes on civilian areas.Accounts and information in those sections also show that Hezb-e Islami regularly and repeatedly fired rockets into Kabul.As shown in those sections, Hezb-e Islami forces repeatedly used artillery and rockets in a manner suggesting that they were either intentionally targeting civilian sites, failing to aim at military objectives (with respect to artillery guns), or treating the whole city as one unified military target-any and all of which can amount to war crimes.

Hezb-e Islami's methods of attack and use of weapons systems demonstrate the abuses described above.With respect to artillery attacks, there was specific evidence in section III (A) above that Hezb-e Islami had the capacity to aim artillery at military targets, but purposefully or recklessly fired artillery at civilian objects instead, in violation of international humanitarian law.In numerous cases documented in this report, Hezb-e Islami forces fired artillery at civilian areas without clear military objectives, suggesting that they were either purposely targeting such areas, or recklessly aiming at Kabul as a whole.

As noted in Section III (A) above, Hekmatyar's forces also often used BM-40, BM-22, BM-12 rocket launchers and Sakr Soviet-made rockets in their attacks on Kabul.Such rocket systems are not designed for accuracy in close combat: they cannot be adequately aimed within urban settings or made to distinguish between military targets and civilian objects.The very use of such rocket systems within Kabul may have been in violation of international humanitarian law prohibitions on the use of inherently indiscriminate weapons.

As noted above, there is testimony in sections III (A) and III (B) that suggests that Hezb-e Islami and Hekmatyar were deliberately targeting the city of Kabul as a whole entity, to terrorize and kill civilians.

In addition, Hezb-e Islami, along with the other factions discussed in this report, are implicated in murders, pillage, and looting in violation of international humanitarian law. Hekmatyar and his commanders' failure to stop or prevent the abuses could make them responsible as a matter of command responsibility.

The head of Hezb-e Islami, Gulbuddin Hekmatyar, is centrally implicated in all of the crimes noted above.Hekmatyar was unambiguously the sole military and political leader of Hezb-e Islami, the Firqa Sama, and the Lashkar-e Isar (Army of Sacrifice), and was in command of Hezb-e Islami forces during its attacks on Kabul.Hekmatyar was the leader of Hezb-e Islami through the 1980s, and met regularly with Pakistani and U.S. intelligence officials, and even with American politicians who visited Pakistan in the 1980s.[303]Several mediators negotiated with Hekmatyar on peace initiatives in 1992 and 1993, as the head of Hezb-e Islami, and journalists repeatedly met with Hekmatyer in his capacity as the leader of Hezb-e Islami forces in the same period.[304]The then head of Pakistani Intelligence, Hamid Gul, negotiated with Hekmatyar in February 1993,[305] and again in March 1993.[306]Prince Turki al-Faisal, chief of Saudi Intelligence, and Asad Durrani, Director-General of Pakistan's Inter-Services Intelligence, negotiated between Hekmatyar and Ahmed Shah Massoud via radio in April 1992.[307]

Further investigation is needed into the sub-commanders of Hezb-e Islami who participated in the attacks on Kabul, to determine culpability for war crimes.As noted in section III (A) above, according to the Afghan Justice Project[308] the following commanders had operational control over the military posts reported to be firing artillery and rockets at Kabul during the period discussed in this report:

  • Commander Toran Khalil, chief artillery officer in Hezb-e Islami who supervised shelling and rocketing operations during late 1992 into 1993, commander of a base at an oil depot at the south of Charasiab, south of Kabul.
  • Toran Amanullah, commander of the Firqa Sama, stationed at the Rishkor military base, south of Kabul (as of mid-2005 in custody of the U.S. military).
  • Commander Zardad, commander of a military post at the Lycee Shorwaki (in mid-2005 on trial in the United Kingdom under universial jurisdication laws, for torture committed in Afghanistan in the 1990s).
  • Engineer Zulmai, of the Lashkar Issar, commander of a post at the Kotal Hindki pass to the south of Chilsatoon, south of Kabul, near the Rishkor base (as of mid-2005 a government official in Nangahar province).
  • Nur Rahman Panshiri, commander of a post in the village of Shahak, to the southeast of Kabul, directly controlled by the Sama division.
  • General Wali Shah, an officer in the Najibullah government who joined Hezb-e Islami in 1992, commander of a base at Sang-e Nevishta, Logar, south of Kabul.

All of these commanders should be investigated for their role in the abuses described above.Further investigation is also needed into the roles played by Generals Faiz Mohammad, Kashmir Khan, and Commander Sabawon, all Kabul-based Hezb-e Islami commanders.

Jamiat, Shura-e Nazar, and the Afghan Government of 1992-1993

Jamiat and Shura-e Nazar forces, at the time discussed in this report, were under the overall command of Ahmed Shah Massoud (killed on September 9, 2001).Second tier military commanders included Mohammad Qasim Fahim (Afghanistan's defense minister 2001-2004; as of mid-2005 holding a symbolic position as "Marshall for Life"); Baba Jalander (director of the Afghan Red Crescent Society from late 2001-2004); Bismullah Khan (as of mid-2005 the chief of staff of the Afghan Army); Gul Haider (as of mid-2005 a general serving in the defense ministry); and Younis Qanooni (former minister of education and national security advisor in President Karzai's 2002-2004 cabinet; as of mid-2005 the chief of Nehzat-e Melli, a political party, also known as Afghanistan Naveen).

Middle level Jamiat commanders in Kabul included Baba Jan (as of mid-2005 the chief of police in Herat), General Abdul Momin (deceased), and Basir Salangi (chief of police in Kabul in 2003; as of mid-2005 chief of police in Wardak province), as well as other commanders Kabir Andarabi (until mid-2005 a senior ministry of defense commander, stationed in Bagrami; as of mid-2005 a police official in the ministry of interior), Haji Almas (parliamentary candidate and businessman; as of mid-2005 a senior commander in the ministry of defense, stationed in Parwan), Baz Mohammad Ahmadi (as of mid-2005 an official in the ministry of defense), Mullah Ezat (parliamentary candidate; as of 2005 a senior ministry of defense commander), Panah (reportedly deceased), and Anwar Dangar (joined the Taliban in 1996 and was killed in Peshawar in 2004).

Jamiat forces are culpable for many of the abuses documented in this report.There is compelling evidence that Jamiat forces in 1992 and 1993 intentionally targeted civilians and civilian areas in western Kabul for attack, or indiscriminately attacked such areas without distinguishing between civilian areas and military targets.

In some cases, Jamiat forces used imprecise weapons systems, including Sakr rockets and UB-16 and UB-32 S-5 airborne rocket launchers clumsily refitted onto tank turrets, the use of which was inherently indiscriminate in the dense urban setting.The use of the jury-rigged S-5 system in particular, within Kabul city, demonstrates an utter disregard of the duty to use methods and means of attack that distinguish between civilian objects and military targets.

There is also evidence that some Jamiat forces engaged in killing and abduction of Hazara civilians in 1992.There is also evidence that Jamiat forces targeted civilian areas for attack at the beginning of the February 1993 Afshar campaign.In addition, Jamiat commanders may in some cases be liable for the abuses committed during the Afshar campaign by allied Ittihad troops, if it is shown in any cases that they had de facto command over such troops. All of these alleged abuses amount to war crimes.

In addition, Jamiat, along with the other factions discussed in this report, are implicated in numerous robberies, general criminality, and killings of civilians in non-combat situations.Many of these abuses also amount to serious violations of international humanitarian law and human rights law, and the failures by commanders to stop or prevent the abuses could make them complicit in the violations.

Ahmad Shah Massoud is implicated in many of the abuses documented in this report, both those committed by Jamiat forces, and those committed by other militia forces under his command.He was assassinated on September 9, 2001.It is nonetheless important that his role and that of his commanders be fully investigated.

Further investigation is needed into the responsibility of Massoud's sub-commanders.Most of Massoud's commanders and advisors in 1992-1993 are still alive as of mid-2005, including Mohammad Qasim Fahim, Baba Jalander, Bismullah Khan, Gul Haider, Younis Qanooni, Dr. Abdullah, Baba Jan, Basir Salangi, Haji Almas, and Mullah Ezat (or Ezatullah).All of them hold or have held military or police posts in the post-Taliban Afghan government.(The official positions of Kabir Andarabi, Baz Mohammad Ahmadi, Ahmadi Takhari, and Panah are unknown.)

As stated in section III (A) and III (C), Fahim, Baba Jalander, Bismullah Khan, Baba Jan, Ahmadi Takhari, Kabir Andarabi, and Mullah Ezat were directly implicated in abuses described in this report, including the 1993 Afshar campaign.General Fahim was chief of the Afghan intelligence service and controlled several military posts in Kabul, and was one of the chief commanders under Massoud.As noted in section III (C), Fahim controlled at least one of the military posts on TelevisionMountain throughout the period covered in this report, was involved in the planning of the Afshar campaign and took part in negotiations with Harakat commanders to gain their cooperation before the attack, and was directly involved in the Afshar attack.Yunis Qanooni was stationed at the ministry of defense compound in Kabul, often served as a spokesman for Jamiat, and was involved in Jamiat decision-making processes.As noted in section III (C), Mullah Ezat and Anwar Dangar were also deeply involved in the Afshar attack.

According to the Afghan Justice Project, which researched the command structure of Jamiat during the Afshar assault, Fahim was responsible for "special operations in support of the offensive and participating in planning of the operation."Anwar Dangar and Mullah Ezat were named by numerous witnesses as "leading troops in Afshar that carried out abuses on the first two days of the operation."Baba Jalander also was reported to have "participated in the assault," along with Mohammad Ishaq Panshiri, Haji Bahlol Panshiri, Khanjar Akhund, Mushdoq Lalai, and Baz Mohammad Ahmadi Badakhshani.[309]

Several individuals who were Afghan government officials during the period covered in this report are also potentially implicated in the abuses.The sovereignty of Afghanistan during 1992-1993 was vested formally in "The Islamic State of Afghanistan."This government was headed from April to June 1992 by Sibghatullah Mujaddidi, and then held by Burhanuddin Rabbani, the political leader of Jamiat.Both men were involved in military decision-making processes during the period of this report, and should be further investigated to determine their potential culpability for abuses.As noted in section III (C) above, Rabbani was present at some decision-making meetings before the Afshar attack.His role relating to the commission of abuses during that attack should be investigated.

Junbish

Abdul Rashid Dostum, a former General in Soviet-backed Afghan army in the 1980's, was and is the overall leader of the Junbish party.(As of mid-2005 Dostum was serving as a senior general in the ministry of defense and was exercising significant political and military influence over several provinces in the north of Afghanistan.He also ran for president in the 2004 election.)Secondary Junbish commanders in 1992-1993 included Abdul Cherik (deceased), Majid Rouzi (a senior military official in the Junbish faction), Mohsin Homayun Fouzi (reportedly a senior official in the ministry of defense), Jura Beig (reportedly deceased), Rasul Pahlavan, Zeini Pahlavan, and Rahim Pahlavan.

Junbish, along with the other factions discussed in this report, are implicated in numerous murders, pillage, and looting.Many of these abuses amount to serious violations of international humanitarian law, and the failure by Junbish commanders to stop or prevent the abuses could make them responsible as a matter of command responsibility.(Junbish was also involved in numerous serious abuses in Kabul in 1994-1995, but this period is not the subject of this report.)

All of Junbish's main commanders should be investigated to determine their involvement in 1992-1993 abuses.

Harakat

The Harakat party, at the time of these abuses, was officially under the overall control of Mohammad Asef Mohseni, but its main military commanders were Hossein Anwari and Mohammad Ali Javeed (both members of President Karzai's interim cabinet, 2002-2004; Anwari was appointed governor of Kabul in 2005; Javeed is now the political leader of Harakat).

Harakat leaders, though not a primary force in the abuses documented in this report, are implicated in several cases where violations of international humanitarian law occurred.Investigation is needed into the role and specific legal responsibility of Harakat's commanders.

[244] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 U.N.T.S. 31, entered into force Oct. 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 U.N.T.S. 85, entered into force Oct. 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 U.N.T.S. 135, entered into force Oct. 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 U.N.T.S. 287, entered into force Oct. 21, 1950.

[247] See International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (1996), art. 20, e-g.See also, Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict (Oxford: Oxford University Press, 1995), p. 120. For an authoritative analysis of customary international humanitarian law, based on an extensive study coordinated by the International Committee of the Red Cross, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), hereinafter "ICRC, Customary International Humanitarian Law."

[248] For more on legal definitions of crimes against humanity, see M. Cherif Bassiouni, Crimes Against Humanity in International Humanitarian Law (The Hague: Kluwer Law International, 1999).See also, "Article 18: Crimes against Humanity" in chapter II, "Draft Code of Crimes Against the Peace and Security of Mankind" in the International Law Commission Report, 1996 at www.un.org/law/ilc/reports/1996/chap02.htm#doc3 (accessed July 2004).

[249] International Covenant on Civil and Political Rights (ICCPR), opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and acceded to by Afghanistan on January 24, 1983).

[250] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39, U.N. Doc. A/39/51 (entered into force June 26, 1987; ratified by Afghanistan on April 1, 1987).

[251] See ICRC, Customary International Humanitarian Law, rules 1-8.Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict, p. 120: "The general prohibition against indiscriminate warfare applies independently of Arts. 48 and 51 [of Protocol I].The relevant provisions of the Additional Protocols merely codify pre-existing customary law, because the principle of distinction belongs to the oldest fundamental maxims of established customary rules of humanitarian law."

[252] Protocol I, art. 51(2).Similar language is found in Protocol II, art. 13(2).

[253] See Protocol I, art. 51(3); Protocol II, art. 13(3).

[254] See ICRC, Customary International Humanitarian Law, rules 6.

[255] See Protocol I, article 52(1), which reflects customary law for international armed conflicts.See ICRC, Customary International Humanitarian Law, rules 9-10.

[256] Protocol I, art. 48."Military objectives" are defined as "those objects, which by their nature, location, purpose or use make an effective contribution to military action."Protocol I, art. 52(2).

[257] Protocol I, art. 51.See ICRC, Customary International Humanitarian Law, rules 11-13.

[258] Protocol I, art. 51(5).

[259] See e.g., Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), art. 3.See also Protocol II, art. 4.

[260] See generally ICRC, Customary International Humanitarian Law, chapter 32.

[261] See ICRC, Customary International Humanitarian Law, rule 98; see also Declaration on the Protection of All Persons from Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992).

[262] ICRC, Customary International Humanitarian Law, rule 123.

[263] See Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order no. 100 by U.S. President Abraham Lincoln, April 24, 1863 (Lieber Code), art. 44.

[264] See common article 3 to the Geneva Conventions.Additional Protocol I, article 75, likewise prohibits "outrages upon personal dignity" and "humiliating and degrading treatment, enforced prostitution and any form of indecent assault."

[265] Fourth Geneva Convention, art. 27; Protocol II, art. 4.

[266] Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and article 3 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) both include widespread and systematic rape as a set of acts which can amount to a crime against humanity.See ICTY Statute, adopted May 5, 1993, at http://www.un.org/icty/legaldoc/index.htm and ICTR statute, at http://ictr.org/ENGLISH/basicdocs/statute/2004.pdf.Article 7 of the Statute for the International Criminal Court states that widespread and systematic rape, sexual slavery, enforced prostitution, and other forms of sexual violence can amount to a crime against humanity.See Rome Statute of the International Criminal Court, 37 I.L.M. 999 (1998), article 7.

[267] ICRC, Customary International Humanitarian Law, rule 99.

[268] See ICRC, Customary International Humanitarian Law, rule 95.

[269] See generally, ICRC, Customary International Humanitarian Law, chapter 16; Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), pp. 46-47.

[270] ICCPR, art. 6 (right to life), art. 7 (prohibition against torture and cruel, inhumane and degrading treatment) art. 8 (prohibition against slavery and forced labor), art. 9 (right to liberty and security of person), art. 10 (rights of due process).See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 1 and 2.

[271] See ICCPR, art. 2(1).

[272] ICRC, Press Release no. 1712, May 5, 1992, cited in ICRC, Customary International Humanitarian Law, vol. 2, ch. 43, sec. 138.

[273] U.N. Security Council Statement, March 23, 1994) S/PRST/1994/12.

[274] ICRC, Customary International Humanitarian Law, rule 151.

[275] See footnote 278 below, on the Celebici case.

[276] ICRC, Customary International Humanitarian Law, rule 152.

[277] ICRC, Customary International Humanitarian Law, rules 154-55.

[278] The International Criminal Tribunal for the former Yugoslavia (ICTY) has defined "effective control" under existing international law as the superior "having the material ability to prevent and punish the commission" of violations of international humanitarian law:

The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates.A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by subordinates. . . .It follows that there is a threshold at which persons cease to possess the necessary powers of control over the actual perpetrators of offense and, accordingly, cannot properly be considered their "superiors."

Prosecutor v. Delali, Judgment no. IT-96-21-T, Nov. 16,1998 (Celebici case), para. 377-378.See also Prosecutor v. Karanac, Kunac and Vokovic. Judgment no. IT-96-23-T & IT-96-23/1-T, Nov. 22, 2001, para. 396.

[279] See Appendix A for more information on these groups.

[280] Information on the command structure of Wahdat is based on numerous interviews with Wahdat officials and other sources familiar with events in 1992-1993.Human Rights Watch interview with S.K., Afghan medical worker in Karte Seh (West Kabul) during early 1990's, Kabul, July 9, 2003; Human Rights Watch interview with S.A.R., former Shura-e Nazar official in 1992, Kabul, July 11, 2003; Human Rights Watch interview with Q.E.K., former Wahdat official, Kabul, July 15, 2003; Human Rights Watch interview with R.D., former official in the interim government 1992-1995, Kabul, July 16, 2003; Human Rights Watch interview with C.S.A., former government security official, July 18, 2003.The command structure of Wahdat is also discussed by the Afghan Justice Project, see AJP report, January 2005, pp. 34-36.

[281] Andrew Roche, "Kabul fighting erupts again despite ceasefire," Reuters, June 4, 1992; Sharon Herbaugh, "Civilians tell of captivity, torture by rebels," Associated Press, June 6, 1992.

[282] Information on the command structure of Ittihad is based on numerous interviews with sources familiar with events in 1992-1993.Human Rights Watch interview with S.A.R., former Shura-e Nazar official in 1992, Kabul, July 11, 2003; Human Rights Watch interview with Q.E.K., former Wahdat official, Kabul, July 15, 2003; Human Rights Watch interview with R.D., former official in the interim government 1992-1995, Kabul, July 16, 2003; Human Rights Watch interview with C.S.A., former government security official, July 18, 2003.The command structure of Ittihad is also discussed by the Afghan Justice Project, see AJP report, January 2005, pp. 28-29.

[283] Human Rights Watch telephone interviews with numerous Afghan journalists and observers in Kabul, May 2005; AJP report, January 2005, pp. 28-29.

[284] Abdullah Shah was convicted after a hasty murder trial criticized by the Afghan Independent Human Rights Commission.Regardless of his past crimes, his testimony on other crimes and events would have been useful in other future trials.For more on the Abdullah Shah case, see AJP report, January 2005, footnote 30.

[285] Human Rights Watch interview with S.A.R., former Shura-e Nazar official in 1992, Kabul, July 11, 2003; Human Rights Watch interview with R.D., former official in the interim government 1992-1995, Kabul, July 16, 2003; Human Rights Watch interview with C.S.A., former government security official, July 18, 2003.

[286] Human Rights Watch interview with H.K., aid worker, Kabul, July 5, 2003; Human Rights Watch interview with S.K., Afghan medical worker in Karte Seh (West Kabul) during early 1990's, Kabul, July 9, 2003.

[287] Human Rights Watch interview with L.R.G., Kabul, July 3, 2003.

[288] See Roche, "Kabul fighting erupts again despite ceasefire," Reuters, June 4, 1992

[289] Human Rights Watch interview with K.M.B., former combatant who served under Ittihad forces, Kabul, July 4, 2003; See AJP report, January 2005, p. 30.

[290] See AJP report, January 2005, p. 29.

[291] See AJP report, January 2005, p. 30.

[292] Human Rights Watch interview with H.A.W., former official in the interim government 1992-1993, Kabul, July 23, 2003; Human Rights Watch interview with S.A.R., July 11, 2003; Human Rights Watch interview with R.D., July 16, 2003; Human Rights Watch interview with C.S.A., July 18, 2003.

[293] Human Rights Watch interview with K.S., former government security official, Kabul, July 24, 2003 ("Khanjar and Patang were direct operational commanders."); Human Rights Watch interview with C.S.A., July 18, 2003.

[294] Human Rights Watch interview with A.Q.L., Afshar resident, July 21, 2003.

[295] Human Rights Watch interview with A.S.F., Tajik Afshar resident who traveled in and out of Afshar during February 11-16, 1993, Kabul, July 2, 2003; Human Rights Watch interview with Q.E.K., former Wahdat political official who witnessed the attack, Kabul, July 15, 2003.See AJP report, January 2005, p. 28.

[296] AJP report, January 2005, p. 28.

[297] Ibid., p. 29.

[298] For more information about the composition of Hekmatyar's force in 1990-1992 and the role of Pakistan in its creation, see Coll, Ghost Wars, pp. 218 and 235-239; Rubin, Fragmentation of Afghanistan, pp. 252-253; AJP report, January 2005, p. 24.

[299] See AJP report, January 2005, p. 24.

[300] Ibid.

[301] Ibid.

[302] Ibid.

[303] Hekmatyar met with Representative Charlie Wilson of Texas in 1984 and traveled to the United States the same year.See generally, George Crile, Charlie Wilson's War: The Extraordinary Story of the Largest Covert Operation in History (New York: Atlantic Monthly Press, 2003).

[304] Several journalists told Human Rights Watch about meeting with Hekmatyar in 1992 and 1993.Human Rights Watch interview with O.U., Afghan journalist, Kabul, July 13, 2003; Human Rights Watch interview with Suzy Price, correspondent for the British Broadcasting Corporation and Reuters, New York, April 3, 2004; Human Rights Watch telephone interviews with John Jennings, correspondent for Associated Press in 1992-1993, April 8 and 10, 2004; Human Right Watch telephone interview with Mark Urban, correspondent with the British Broadcasting Corporation in Kabul in 1992, April 29, 2004; Human Rights Watch telephone interview with Anthony Davis, correspondent for Jane's Defense Weekly in Kabul in 1992-1993, July 9, 2004.

[305] See John Jennings, "Afghanistan's Warring Rebel Factions Promise Temporary Truce," Associated Press, February 14, 1993.

[306]Kakar, Afghanistan: The Soviet Invasion and Afghan Response (Epilogue), p. 284.

[307] See Coll, Ghost Wars, p. 236 and accompanying footnotes 19-20 and cites.Osama Bin Laden, who was heavily involved in funding Arab mujahedin in the 1980s and knew Hekmatyar, also attempted to mediate by radio between Massoud and Hekmatyar.

[308] See AJP report, January 2005, pp. 23-24.

[309] AJP report, January 2005, p. 28.