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VI. Legal Analysis

All parties to the military conflict in Afghanistan—Afghan government forces, US and other coalition forces, and insurgent groups—are bound by international humanitarian law (the laws of war).

International humanitarian law (IHL) imposes upon warring parties legal obligations to reduce unnecessary suffering and to protect civilians and other non-combatants. It is applicable to all situations of armed conflict, without regard to the legal basis for the conflict. That is, it applies whether the conflict itself is legal or illegal under international or domestic law, and whether those fighting are regular armies or non-state armed groups. All armed groups involved in a conflict must abide by IHL, and any individuals who violate IHL rules can be tried and convicted in domestic or international courts for their violations. The fact that insurgent forces are not the official government or military of Afghanistan is legally irrelevant to the applicability of international standards.

Insurgency itself is not a violation of international humanitarian law. The laws of war do not prohibit the existence of insurgent groups or their attacks on legitimate military targets. Rather, they restrict the means and method of insurgent attacks and impose upon them a duty to protect civilians and other non-combatants and minimize harm to civilians during military operations. International humanitarian law does not regulate whether states and armed groups can engage in hostilities, but rather how states and armed groups engage in hostilities.¹³²

Human Rights Watch, consistent with our position of neutrality in armed conflicts, takes no position on the legality under international law of military operations by US, NATO, and other coalition partners in Afghanistan, or of the insurgency against the Afghan government and its international allies.

Applicable Treaties and Customary Law

Specific international humanitarian law provisions applicable in Afghanistan have changed as the nature of conflict in Afghanistan has evolved over the past five years. The initial US-led military operation against the Taliban government that began in October 2001 was considered to be an international armed conflict—a conflict between opposing states. The law applicable to international conflicts includes the four Geneva Conventions of 1949, to which Afghanistan and the United States are party, and the Hague Regulations of 1907, which are considered reflective of customary international law.¹³³

After the fall of the Taliban government in November 2001 and with the creation of a government under President Hamid Karzai, the international armed conflict ended. Since then, hostilities have comprised a non-international armed conflict in which Afghan government forces and US, NATO, and other coalition partners are fighting against anti-government forces. (The conflict is not an international armed conflict under the conventions, since it is not a conflict between two or more states.)

Parties to a non-international armed conflict are obligated to observe applicable standards of the four 1949 Geneva Conventions, specifically, article 3 common to the conventions (“common article 3”), which provides standards for non-international armed conflict. All parties must also abide by the rules and obligations of customary law of armed conflict.¹³⁴ Much of the customary rules concerning the means and methods of warfare can be found in the two Additional Protocols of 1977 to the Geneva Conventions, which are largely considered reflective of customary international humanitarian law.¹³⁵

In 2003, Afghanistan ratified the Rome statute of the International Criminal Court (ICC).¹³⁶ Accordingly, all persons in Afghanistan responsible for war crimes and other violations of the Rome statute committed after May 2003, when the statute went into effect in Afghanistan, are subject to the ICC’s jurisdiction.¹³⁷

International human rights law is also applicable in the current conflict. In the context of hostilities occurring as part of armed conflict, 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.¹³⁸)

The rules above are not arbitrary standards, foreign to Afghanistan, or un-Islamic. On the contrary, these standards are considered throughout the world to be customary international law, and are solidly supported by statements and practice of combatants in every continent. These standards have been regularly invoked or cited by state and non-state actors in Afghanistan, and in Africa, Asia, South America, and the Middle East. The Geneva Conventions have been ratified by every nation in the world, and common article 3 and numerous other provisions are considered customary international law.

Afghanistan has long accepted the Geneva Conventions and international humanitarian law. The government of Afghanistan ratified the Geneva Conventions over fifty years ago, in September 1956. The International Committee of the Red Cross (ICRC), the international agency that promotes adherence to the Geneva Conventions, has been active in and around Afghanistan since the late 1970s, and ICRC representatives at various times met with Afghan mujahidin commanders, including Taliban commanders now fighting against the coalition and government, to provide instruction on applicable IHL standards, among other humanitarian activities. The Taliban and other insurgents have accepted medical and other assistance from the ICRC in years past, assistance provided as part of the ICRC’s mandate under the Geneva Conventions.

Notably, insurgent commanders themselves have invoked international standards in the past. In the late 1970s and 1980s, mujahidin commanders regularly invoked international standards publicly to condemn Soviet and Afghan government attacks in violation of international law and other illegal practices. For instance, in October 1985, at the height of the Soviet occupation of Afghanistan, several mujahidin representatives traveled to the United Nations in New York and condemned war crimes and human rights abuses committed by Soviet forces. They submitted a statement, signed by Gulbudin Hekmatyar, stating that “Soviet conduct in Afghanistan makes a mockery of the U.N. charter, the Declaration of Human Rights, international law and the norms of civilized behavior.”¹³⁹ During US-led military operations against the Taliban in late 2001, Taliban officials repeatedly invoked human rights and law of war norms in condemning US actions.¹⁴⁰

Human rights groups working in Afghanistan over the last 25 years—including Human Rights Watch—have also repeatedly invoked international humanitarian law and human rights law to criticize foreign governments operating on Afghan territory. Human Rights Watch repeatedly invoked IHL and human rights standards to criticize Soviet forces in the 1980s,¹⁴¹ and more recently have invoked these norms to criticize US and coalition forces.¹⁴² The Organization of Islamic Conferences has also invoked Geneva Conventions norms and human rights standards in its resolutions on armed conflict, including in connection with the Soviet occupation of Afghanistan and civil conflict in the 1990s.¹⁴³

Applying Legal Standards to Insurgent Activities

Many of the attacks detailed in this report violated international humanitarian law and involved illegal methods of warfare which forces were obligated not to use.

Obligation to Distinguish Combatants from Civilians

Numerous cases are detailed in this report of insurgent forces carrying out attacks that were intentionally directed at civilians or civilian buildings or areas. Such attacks included bombings in civilian areas, and bombings or ambushes on civilian officials or humanitarian aid workers. Human Rights Watch gathered reports of as many as 177 separate attacks in 2006 that appear to have been intentionally directed at civilians or civilian objects, several of which were detailed in Chapter 3 of this report.

Intentional attacks on civilians are flatly prohibited under international humanitarian law, which makes the intentional targeting of civilians a war crime. One of the most basic rules of armed conflict is that parties to a conflict must distinguish between combatants and civilians and should not intentionally target civilians or other persons not taking direct part in hostilities. The principle exists in both international treaty law and customary international law.¹⁴⁴ The ICC statute also makes the intentional targeting of civilians a war crime.¹⁴⁵

Civilians cannot be attacked unless and for only such time as they take a direct part in hostilities. According to the ICRC commentary to Protocol I, “direct participation [in hostilities] means acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces.”¹⁴⁶ Direct participation in hostilities “implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.”¹⁴⁷ Typically, civilians who fire weapons, directly assist combatants on the battlefield, such as by loading weapons or acting as artillery spotters, are considered to be directly participating in the hostilities.

“Hostilities” not only covers the time when the civilian actually makes use of a weapon but also the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon.¹⁴⁸ Persons planning military operations or directing attacks would also be considered directly participating in hostilities. In case of doubt whether a person is a civilian, all forces should assume such a person is a civilian.¹⁴⁹

Politicians and civilian government employees, civilian officials and staff of foreign governments, humanitarian aid workers, journalists, and contractors without a military function are all protected civilians under the laws of war, and cannot be targeted for attack. Any attacks directed at such persons are prohibited.

Indiscriminate and Disproportionate Attacks

International humanitarian law prohibits, as war crimes, attacks that use means or methods of attack that do not distinguish between civilians and combatants, and attacks in which the expected civilian loss is disproportionate to the anticipated military gain. Many of the attacks described in Chapter 3 above appear to have violated these requirements, as well as prohibitions against attacks that do not seek to minimize civilian casualties or are perfidious.

The ICRC articulates the rule against indiscriminate attacks as follows:

Indiscriminate attacks are those:

—which are not directed against a specific military objective;

—which employ a method or means of combat which cannot be directed at a specific military objective;

—which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law;

—and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.¹⁵²

Indiscriminate attacks include attacks in the vicinity of civilians or civilian areas that use bombs or other explosive materials so powerful that explosions cannot be limited to military targets. For instance, if an attacker uses a bomb to target a military convoy passing though a populated area that can be expected to cause destruction to combatants and civilians alike, without any distinction, the attack may be indiscriminate.

The ICRC explains the rule against disproportionate attacks as follows:

Launching 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, is prohibited.¹⁵³

Under international humanitarian law, a “military objective” is an object or a target, selected by its nature, location, purpose, or use, that contributes effectively to the enemy’s military capability, and whose destruction or neutralization offers a definite military advantage in the circumstances.¹⁵⁴ The anticipated military advantage must be concrete and direct, and not merely potential or theoretical.

Legitimate military objectives include the enemy’s forces, weapons, convoys, installations, and supplies. In addition, objects generally used for civilian purposes, such as houses, buses, taxicabs, or a civilian airfield, can become military objectives if their location or use—such as being used by enemy troops—meets the criteria for a military objective.¹⁵⁵ However, the laws of war characterize all objects as civilian unless they satisfy the test mentioned above. Objects normally dedicated to civilian use, such as houses, mosques, churches, and schools, are presumed not to be military objectives.

There is no specific formula for what constitutes a disproportionate attack. Excessive damage is a relative concept. The presence of a single soldier cannot serve as a justification to destroy an entire village. If the destruction of a bridge is of paramount importance for the occupation of a strategic zone, “it is understood that some houses may be hit, but not that a whole urban area be leveled.”¹⁵⁶ By contrast, if an attack is directed at a high-value military target, it is conceivable that a higher number of civilian casualties might be legally justifiable under the laws of war. However, the fact that an attack is directed at a military objective does not absolve the attacking party of responsibility for civilian deaths. Indiscriminate methods of attack are still impermissible, and there is never a justification for excessive civilian casualties, no matter how valuable the intended military target.¹⁵⁷

Taking Precautions to Minimize Harm to Civilians

International humanitarian law makes the above rules into positive obligations.

As the ICRC articulates these obligations:

• In the conduct of military operations, constant care must be taken to spare the civilian population, civilians, and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians, and damage to civilian objects.¹⁵⁸
• Each party to the conflict must do everything feasible to verify that targets are military objectives.¹⁵⁹
• Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.¹⁶⁰
• Each party to the conflict must do everything feasible to assess whether the attack 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.¹⁶¹
• Each party to the conflict must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack 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.¹⁶²

These rules place obligations on parties to a conflict to take affirmative steps to minimize civilian casualties.

In the incidents documented in this report, Human Rights Watch found little evidence to suggest that insurgent forces were in any way seeking to minimize civilian losses. Many insurgent attacks in 2006 have unfolded in a typical way: an Afghan government vehicle or ISAF or coalition convoy is traveling through a city or village. As it passes by a set of shops or houses, a civilian car pulls into traffic alongside the convoy, and then explodes. Possibly a small number of troops or government personnel are injured and their vehicle is damaged. At the same time, a significant number of surrounding civilian buildings are destroyed, and numerous civilians are killed or injured.¹⁶³ Indeed, in many attacks, insurgents appeared to have purposefully conducted attacks in the midst of crowds to conceal their attack, itself a violation of international law.

In order to avoid violating international law, insurgent forces must take better measures to protect civilians. Minimizing civilian losses could mean attacking military targets outside of crowded populated areas, or conducting attacks during a time of day when there would be fewer civilians out on the streets. Attacks that cannot be lawfully carried out must be cancelled or suspended.

Acts Intended to Spread Terror

This report has described several attacks in which the apparent aim of the insurgents was not merely to harm specific individuals, but to generate broader fear among the civilian population. This aim violates international legal norms.

Parties to a conflict cannot engage in acts or threats of violence primarily intended to cause terror or “extreme fear” among civilians.¹⁶⁴ For instance, this would include the abduction or shooting of humanitarian aid workers in which the insurgents claim that such persons can be targeted because they are working with the government, as part of an apparent effort to drive out the larger humanitarian aid community. Insurgent groups have also regularly left “night-letters” warning civilians not to cooperate with government or international military forces or NGOs, or else face violence. And insurgents have bombed or set fire to schools in dozens of districts across Afghanistan with the apparent broader goal of disrupting the educational system. Depending on the attacker’s intent, bombings directed at crowded civilian areas might also violate this rule, in addition to being an unlawful attack on civilians.

Perfidy and its Effects on the Civilian Population

In many of the attacks detailed in this report, anti-government forces have feigned civilian status—pretended to be civilians—in order to carry out attacks.

Under international law, this tactic violates the laws of war prohibitions against perfidy. Perfidious attacks are acts “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”¹⁶⁵ Examples of perfidy include “the feigning of civilian, non-combatant status.”¹⁶⁶ The ICC statute makes perfidy a war crime during a non-international armed conflict, listing it as “killing or wounding treacherously a combatant adversary.”¹⁶⁷

This has especially been the case during suicide bomb attacks (discussed below) where suicide bombers almost always feign protected status as civilians to safely approach military targets, such as convoys and checkpoints, on foot or in a vehicle before detonating their weapon.¹⁶⁸

The rule against perfidy is meant not only to promote “honorable” war-fighting on the battlefield, but also to protect civilians and other persons and objects protected by international law.¹⁶⁹ It is linked to other rules that are meant to protect civilians, such as the rule against using civilians as “shields.”

Specifically, prohibiting combatants from feigning civilian status is meant in part to ensure the principle of distinction between combatants and civilians.¹⁷⁰

The prohibition is intended to minimize cases in which combatants mistakenly target civilians believing them to be combatants. Perfidious attacks have a damaging psychological impact on Afghan civilians and on Afghan government, coalition, and NATO forces, whose personnel fear that at any moment they may be killed by another “civilian” nearby. As a result, it increases the likelihood that actual civilians will be mistaken for suicide attackers by government, coalition, and NATO forces, and mistakenly attacked.

Such effects can be readily seen in incidents in which Afghan or international forces fire on civilian motorists who they mistakenly believe are suicide bombers—a regular occurrence in southern provinces and even around Kabul.

In November and December 2006 alone, Human Rights Watch collected reports of at least 17 Afghan civilian motorists shot by NATO or coalition troops in circumstances suggesting that NATO forces erroneously suspected the motorists of being suicide attackers.¹⁷¹ (Nine of the seventeen died.) These numbers are just from the last few months of 2006, when NATO began keeping more accurate records.

NATO press statements about these attacks, which could not be verified, provide some information about how these shootings can unfold. For example:

(23 November) – Early yesterday morning, an incident involving an ISAF convoy traveling on the Bagram Road resulted in the death of one Afghan and the injury of 4 others. A civilian van was observed driving suspiciously in the vicinity of the convoy; ISAF troops signaled for the vehicle to stop and fired a number of shots. The driver subsequently lost control of the van and unfortunately crashed. Regrettably, one of the civilians was killed and 4 were injured. The casualties were taken to Kabul ANA hospital for medical treatment.¹⁷²

Another report reads:

(27 December) – This morning, an ISAF security patrol was involved in a tragic incident resulting in the death of a young Afghan civilian. A vehicle approaching the patrol failed to head warnings to stop. The patrol fired upon the vehicle, unfortunately killing one Afghan civilian. . . . ISAF deeply regrets this loss of life.¹⁷³

The use of perfidious attacks by one party to an armed conflict does not excuse unlawful attacks in response. Afghan government and international forces still have an obligation to ensure that attacks are directed at military targets and not civilians, and to call off an attack when the civilian nature of a target becomes known.¹⁷⁴

Yet there have been several instances where international forces have responded to suicide attacks by firing indiscriminately on civilians.

In Kandahar city in late November 2006, ISAF personnel, fleeing from the scene of a vehicle suicide attack in which three soldiers in their convoy were injured, fired on several civilian motorists. Three civilians were reported killed by the gunfire, and approximately seven others were wounded.¹⁷⁵ An ISAF spokesperson confirmed that ISAF personnel discharged their weapons in the wake of the attack, and said they were responding to what they perceived were potential suicide car bombs: “This is not to say that they were fired in a cavalier fashion, but the convoy had just been attacked by a suicide bomb. They had the right to self defence.”¹⁷⁶ (A similar incident occurred with US military forces in Nangahar in March 2007, during which at least 10 civilians were shot and killed.¹⁷⁷)

The UN Assistance Mission in Afghanistan (UNAMA) in December 2006 raised concerns about anti-government forces’ use of perfidy and feigning civilian status, and about NATO forces’ rules of engagement for situations in which they have come under attack by suicide bombers using perfidious disguise. The report specifically raised the following “key issues”:

—Increased risk to civilians due to frequent insurgent attacks with disregard for the civilian population.

—Increasing number of incidents in which NATO/ISAF has fired at civilians who have strayed too close to traveling convoys.¹⁷⁸

Suicide Bombing Attacks

Many of the insurgent attacks discussed in this report were carried out by suicide bombers wearing explosive-laden vests or driving vehicles filled with explosives.

Suicide attacks are not an unlawful means of attack under international humanitarian law, and the suicidal methodology is irrelevant to its legality. For example, Japanese kamikaze attacks against US military forces during World War II were lawful attacks on military targets. And as noted above, over 80 percent of suicide attacks in Afghanistan in 2006 (112 attacks) appear to have been directed at military convoys or installations. Yet most insurgent suicide attacks in 2006 appear to have violated the laws of war.

First, suicide bombers have at times targeted civilians or civilian objects during their attacks, not military targets. Many of these attacks on civilians have been devastating. As noted above, over 200 civilians have been killed or injured in the 18 suicide bombings in 2006 that appear to have been directed at civilians or civilian objects (91 killed, 119 injured).

Second, in virtually all of the cases from 2006 investigated by Human Rights Watch in which suicide bombers attacked military objectives, the attacker feigned civilian status, violating the prohibition against perfidy. Attackers did not carry their weapons openly or wear insignia or uniforms identifying themselves as combatants. Rather, they dressed as civilians and with their explosives hidden, and then used their civilian status to get close to targets. Not only was this unlawful, but, as detailed above, it makes it more likely that belligerent forces may erroneously target civilians during military operations, mistakenly believing they are combatants.

Third, insurgent commanders have continued to carry out suicide bomb attacks after it became apparent that, in practice, the method of attack was indiscriminate, killing combatants and civilians without distinction, and perhaps disproportionate to any expected military gain. In theory, suicide bomb attacks are very precise, with the attacker able to determine specifically where and when to detonate the explosives. However, Human Rights Watch found that in practice bombers frequently panic or make misjudgments, setting off explosives at the wrong time or place—and without regard to civilians nearby. This has occurred time and again through 2006 and into 2007, with great loss of civilian life. Commanders who knowingly deploy such an indiscriminate weapon are committing war crimes.

Justifications by Insurgent Forces

Insurgent forces in Afghanistan often claim that their military operations are generally lawful, or that the targeting of civilians is legally permissible.

Media statements by various Taliban commanders and spokesmen, and documents attributed to the Taliban shura (council), indicate that Taliban leaders consider it permissible to attack Afghan government workers and teachers, employees of non-governmental organizations, or anyone who supports the government of President Hamid Karzai. Taliban spokesmen have at various times claimed responsibility for various kidnappings and killings of foreign humanitarian aid workers, claiming that they are killed because they are “spying for the Americans” or for NATO or coalition forces.¹⁷⁹ Such statements not only implicate Taliban leaders in war crimes, but they facilitate and encourage lower level commanders in violations of the laws of war.

A “rulebook” issued by the Taliban leadership in December 2006 explains why the Taliban believes civilians and civilian infrastructure can be targeted for attack:

Working for the current puppet regime is not permitted, either in a madrassa [religious school] or as a schoolteacher, because that provides strength to the infidel system. In order to strengthen the new Islamic regime, Muslims should hire a religious teacher and study in mosque or another suitable place and the textbooks used should be from the mujahid [anti-Soviet war] time or the Taliban time.

Those who are working in the current puppet regime as a madrassa teacher or school teacher should be warned. If he doesn’t stop he should be beaten. But if a teacher is teaching against true Islam he should be killed by the district commander or a group leader.

The NGOs that came into the country under the infidel’s government are just like the government. They came here under the slogan of helping the people, but in fact they are part of this regime. That’s why their every activity will be banned, whether it is building a road, bridge, clinic, school or madrassa, or anything else. If a school matches these conditions, it should be burned. If it is told to close but doesn’t, it should be burned. But before burning it all religious books should be taken out.¹⁸⁰

In mid 2006, a Taliban commander in Helmand province under the command of Mullah Mohammad Kaseem Farouqi, told the London Times: “The Americans, the British, Canadians and others have destroyed Afghanistan. We are hunting every individual who supports this imposed democracy. . . . We will also hunt the puppet Afghans who are the rented bicycle for the infidels.”¹⁸¹

Gulbuddin Hekmatyar, who leads Hezb-e Islami, in an October 2006 statement denied his forces’ involvement in attacks on civilians and criticized such attacks. He explained:

We condemn the acts of those who instead of targeting the enemy, blow up mosques, kill mullahs, and burn schools. These are not acts that the mujahidin are involved in; rather, they are acts of the Americans or agents acting on the CIA’s instructions. [The statement then provides an example of a mosque bombing, suggesting the attack was carried out by foreign forces.] Explosions of that type, that the victims have been innocent, have been carried out by the Americans and the British. . . along with local agents. The real mujahidin understand that burning and destroying schools does not hurt the enemy, and they understand that terrorizing lowly and mercenary propagandists, who are bought for a meager wage, has no significance to the enemy. Rather, these acts offer them propaganda material and a pretext to terrorize honorable Islamic scholars.¹⁸²

Hekmatyar’s denial, however, contains ambiguities suggesting that civilians and civilian objects can be targeted if they are aiding in the “occupation” of Afghanistan:

The mujahidin understand that their aim is not to destroy schools, but to eliminate all those people who use schools as a front line against Islam and our people; our real enemies are those who use schools, hospitals and mosques as tools meant for the long-term occupation of our country.

Insurgent spokespersons and commanders have at times expressed concern for the security of civilians, at least those who do not work for the government or non-governmental organizations. For instance, in October 2006, Taliban spokesman Mohammad Hanif provided a statement to the Associated Press said to be from Mullah Omar, the former leader of the Taliban government, which stated: “I would again ask mujahidin to intensify their attacks, but they should avoid any harm to innocent people and children.”¹⁸³

Just a month earlier, in September 2006, after the Taliban carried out an attack in Kabul aimed a convoy of ISAF troops in which approximately 15 civilians died, Ahmadi told a journalist by telephone: “We are sorry about the loss. We are trying our best to avoid civilian casualty [sic]. This is war.”¹⁸⁴

The Taliban have spoken of “innocent” civilians on other occasions. For instance, after a January 2006 attack in the border town of Spin Boldak, near Kandahar, that reportedly killed 26 civilians attending a wrestling match, Ahmadi initially claimed responsibility for the attack, but later told Agence France-Presse: “We strongly condemn this attack on innocent people. The Taliban leadership convey their condolences to the relatives of the victims.”¹⁸⁵

Rather than demonstrating their concern for certain civilians, such statements are unconvincing, given the record of insurgents detailed in this report, and ultimately highlight the Taliban’s disregard for the security of those persons—protected under international humanitarian law—whom they do not consider to be “innocent.” Expressing concerns for some in no way justifies unlawful acts against the others.

Precautions Against the Effects of Attacks

International humanitarian law places obligations on parties to a conflict to take steps to protect civilians from needless harm. Thus they must take “all feasible precautions” to protect the civilian population from the effects of attacks,¹⁸⁶ and “must, to the extent feasible, avoid locating military objectives within or near densely populated areas.”¹⁸⁷

Afghan government and international forces are responsible for providing security for the civilian population—operations which frequently entail operating within and near civilian areas. Thus, taking all “feasible” precautions is still likely to mean that these forces will conduct operations in highly populated areas. Nonetheless, certain steps, like keeping bases out of such areas and avoiding crowded roads, should be adopted where feasible to minimize the potential harm to civilians in the event of an insurgent attack.

International Forces, Security Concerns, and Laws of War Violations

Many Afghans who spoke to Human Rights Watch raised various concerns about the armed conflict, some relating to the specific conduct of the fighting by both sides, others relating to broader issues of the legitimacy of the insurgency and the role of international forces in supporting the government. While the former issue is within the purview of international humanitarian law, the latter is not, and yet for many Afghans the two types of concerns were invariably related. How each side engages in war was seen as affecting its legitimacy. Unmet expectations for security factored in heavily on individual opinions.

Many Afghans blamed Afghanistan’s worsening security situation on failures by the government, coalition, and NATO forces since the fall of the Taliban. Some suggested that insurgent forces have had renewed successes in 2006-2007, especially in the south, because of support from local populations angry at general lack of security (from crime and insurgent attacks), government corruption, government alliances with warlords, and government failures to deliver promised development aid and governmental services.¹⁸⁸ Others argued that Taliban popularity has been aided by the repeated cases in which coalition or US forces have killed civilians during military operations.¹⁸⁹ Human Rights Watch has reported previously on a number of these security and governance issues.¹⁹⁰

Of particular concern to Human Rights Watch are violations of international humanitarian law by international forces. Afghan government, NATO, and coalition forces have carried out numerous military operations in 2006 against anti-government forces using ground operations, aerial bombardment, and missile strikes, some of which have killed significant numbers of civilians. Afghans are understandably outraged by cases in which international forces have killed civilians. At least 230 civilians were killed during coalition or NATO operations in 2006, some of which appear to have violated international humanitarian law. While there is no evidence suggesting that coalition or NATO forces have intentionally directed attacks against civilians, in a number of cases international forces have conducted indiscriminate attacks or otherwise failed to take adequate precautions to prevent harm to civilians. For instance, Human Rights Watch criticized several military operations by NATO forces in southern provinces in October 2006 which killed over 50 civilians,¹⁹¹ and, more recently, criticized operations in March 2007 that resulted in other civilian deaths.¹⁹²

International forces at times may also be placing civilians at unnecessary risk by entering in or operating too closely to civilian areas, and should consider refiguring some bases and patrol routes to minimize the possibility of attacks which cause incidental harm to civilians.¹⁹³

None of the criticisms above—whether failings in governance by the Afghan government or violations of international law by international forces—offer a legal or moral excuse for the illegal attacks described in this report. Responsibility for these attacks and their consequences lies squarely with the forces carrying them out, and the commanders who order them. Insurgent forces cannot credibly claim that the government is to blame for the hundreds of deaths and injuries resulting from attacks that they themselves carried out.