October 17, 2001
Re: International Humanitarian Law Issues and the Afghan Conflict
The initiation of armed conflict between the United States-led coalition and Afghanistan following the September 11 attacks on the U.S. raises a number of important international humanitarian law (IHL) issues. For more than a decade Human Rights Watch has monitored and reported on violations of IHL in numerous armed conflicts, including Iraq (1991) and Yugoslavia (1999) in which the United States was a participant. Based on that experience, we are writing to encourage the participating armed forces to implement the lessons learned from recent international conflicts. We will be writing separately to the various factions in Afghanistan regarding our international humanitarian law concerns.
I. Weapons Systems
As you know, international humanitarian law prohibits the use of weapons under circumstances in which no discrimination can be made between military targets and civilians. We are specifically concerned with the use of cluster bombs and anti-personnel landmines under conditions that do not meet this standard.
Cluster bombs, employed widely in the Gulf War as well as in the NATO air war in Kosovo, are being used by the U.S.-led coalition in Afghanistan. They present a hazard to civilians similar to landmines. The "bomblets" they release have been consistently shown to have a high initial dud rate. This leaves many highly volatile explosives that, by their nature, cannot distinguish between combatants and civilians. The problem is compounded by the large number of submunitions contained in each cluster bomb. Even if their initial dud rate were reduced, cluster bombs are typically dispersed over wide areas, and thus can be indiscriminate if used near areas populated by civilians.
It is clear that at the present time, the use of even the most sophisticated cluster bombs poses grave and unacceptable dangers to civilian populations. It has been the position of Human Rights Watch that there should be no use of cluster bombs until governments can establish either that a technical solution is possible or that new restrictions and requirements regarding their use can be effective. In the event that cluster bombs are used in Afghanistan, they should not be used near populated areas.
Afghanistan is one of the most heavily mined countries in the world. In 2000 there was an average of 88 casualties due to landmines and unexploded ordinance reported each month (and doubtlessly many more casualties went unreported). Current landmine use by the Taliban and the United Front has been difficult to assess because of lack of access, but remains a serious concern.
The 1997 Mine Ban Treaty, which went into effect in 1999, bans the use, production and stockpiling of anti-personnel landmines. All members of NATO, except the U.S., Turkey and Greece, have ratified the treaty. Human Rights Watch calls on all parties to the Afghanistan conflict -- the U.S. and coalition forces, and Afghan forces -- not to use anti-personnel landmines. Even if a government is not a party to the Mine Ban Treaty, the use of anti-personnel landmines violates the prohibitions on the use of indiscriminate weapons contained in the Geneva Conventions and their Protocols, and under customary international law. Nor should states condone their use by allies or allow them to be stockpiled on their territory.
II. Impact on the Civilian Population
The population of Afghanistan has for years suffered extreme deprivations of food and health care and the absence of a civilian infrastructure, due to civil war and political repression. The onset of hostilities between the U.S.-led coalition and Taliban forces, as well as winter's arrival, are likely to exacerbate the situation, as thousands of civilians seek to move to safer areas and international humanitarian assistance is limited. Attacking forces must remain conscious of the precarious situation faced by the civilian population and take it into account when calculating the effect of attacks on any potential military target.
As you know, "dual-use" objects are those that serve the needs of the civilian population and are also used by military forces. For example, certain roads, bridges and airports may ordinarily be legitimate military targets; in the case of Afghanistan they may also be essential to the delivery of humanitarian relief throughout the winter. In such circumstances, the harm incurred to the civilian population by attacking them would be disproportionate to the military advantage gained, and so would be prohibited under international humanitarian law.
Similarly, electrical facilities, even if not part of a national grid, are needed for the long term functioning of civilian hospitals and other civilian needs. During the Gulf War, the destruction of Iraqi electrical power facilities may have diminished Iraq's military command and control or air defense capabilities, but it also crippled the civilian services, resulting in the shutting down of water distribution, purification and sewage treatment plants and specialized medical equipment, with ill consequences for the civilian population. In Yugoslavia, transformer and distribution facilities were specifically targeted so as to avoid long-term impact on the civilian population.
In determining whether dual-use objects are valid military targets, the impact on civilians must be carefully weighed against the military advantage served; all ways of minimizing the impact on civilians must be considered; and attacks should not be undertaken if the civilian harm outweighs the definite military advantage.
III. Rules of Engagement
International humanitarian law requires precautions and choices where civilians are at risk from attacks. The duty to take all feasible steps to minimize injury to civilians and civilian objects requires commanders to choose the means of attack that will minimize incidental harm to civilians. Human Rights Watch concluded in its study of the air campaign in Kosovo that affirmative measures - greater care in attacking mobile targets, better target selection, restrictions on certain daylight attacks - could have been taken to reduce the level of civilian harm during those military operations.
Identification of Mobile Targets
During the air war in Kosovo, Human Rights Watch found that five of the ten worst incidents involving civilian deaths were air attacks on presumed Yugoslav military convoys or transportation routes that turned out to include large numbers of civilians. For instance, in April 1999 NATO aircraft repeatedly bombed refugee movements along the Djakovica-Decane road, killing more than seventy civilians. When attacking a mobile target, the attacker has a duty to ensure that it is a legitimate military target before attacking; in case of doubt, no attack should be launched. If military vehicles have intermixed with civilian convoys, the attacking force must still take fundamental precautions to focus their effort on the military targets.
Use of "Smart" Weapons
According to the U.S. military, most of the weapons used in the first days of the Afghanistan conflict have been precision-guided weapons (often called "smart" bombs). Gravity ("dumb") bombs (including cluster bombs) have also been in use.
In deciding whether to use precision-guided weapons, states have a duty to take all feasible steps to minimize injury to civilians and civilian objects. This requires commanders to choose the means of attack that will minimize incidental harm to civilians. Where a party to the conflict has precision weapons at its disposal, it is under a duty to use "smart" rather than "dumb" bombs in populated areas.
Attacks on dual-use targets or targets near populated areas should take into account the time of day. During the Gulf War and Yugoslavia, attacks on certain targets during periods of high civilian activity caused high civilian casualties. A mid-afternoon air attack on a bridge at Nasiriyah in southern Iraq in February 1991 resulted in scores of civilian casualties among those on the crowded bridge. A 1 p.m. attack with precision-guided weapons on the Varvarin bridge in central Serbia in May 1999, caused the deaths of nine civilians and the wounding of forty others who were attending the town market. Precautions should be undertaken to determine whether there is a time of day for attack that would minimize potential harm to civilians.
Furthermore, Human Rights Watch calls on the United States and coalition governments to:
- Publicly reaffirm your commitment to abide by international humanitarian law standards, particularly as they concern the protection of the civilian population.
- Publicly provide and evaluate information on civilian casualties and damage to civilian objects.
- Regularly examine targeting emphasis and weapons selection during the armed conflict and take whatever corrective measures are needed to minimize the effects on civilians of the use of military force.
- Establish an independent and impartial body, competent to receive confidential information, that would investigate alleged violations of international humanitarian law, and recommend changes to targeting and bombing doctrine to ensure compliance with international humanitarian law.
Human Rights Watch would be pleased to discuss any of these matters with you in the future.