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

Afghan Police: Civilians or Combatants?

Police normally have the status of civilians.150 However, police units that take part in military operations or otherwise engage in military functions may be targeted as combatants. Individual police may only be targeted during such time that they take a direct part in the hostilities.151

Although insurgent groups have carried out numerous attacks on police officers or police convoys in 2006, Human Rights Watch has not counted police deaths in the approximately 650 civilians killed in insurgent attacks, noted above. Human Rights Watch has taken this admittedly conservative approach because of difficulties in conducting research about attacks on police to determine whether the attacks were lawful under international standards. It is likely, however, that many attacks on police in 2006 were not legal, as many police officers working in Afghanistan are not directly taking part in hostilities, but instead engage in basic police activities: investigating ordinary crimes, directing traffic, and guarding civilian government offices.

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.

132 However, with respect to non-government actors, the domestic law of Afghanistan is applicable with respect to many insurgent activities described in this report. Afghan law, like the laws of most nations, proscribes basic domestic crimes including murder, assault, arson, rebellion, and crimes relating to attacks on government forces or installations. See 1976 Penal Code of Afghanistan, art. 394 (murder); art. 407 (assault); arts. 491-493 (destruction of property); art. 173 (impairing the territorial integrity of Afghanistan or separating territory from the government’s administration); art. 175 (taking up arms against Afghanistan); art. 177 (joining enemy forces); and art. 192 (destruction of military infrastructure). Individuals can be prosecuted for these domestic crimes in addition to any international violations.

133 See 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. See also Convention (IV) Respecting the Laws and Customs of War on Land and the Annexed Regulations Concerning the Laws and Customs of War on Land of 18 October 1907 (Hague Regulations), 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force January 26, 1910. Afghanistan became a party to the Geneva Conventions in 1956.

134 See Art. 3 common to the four 1949 Geneva Conventions. The customary rules of armed conflict have been set out in International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005).

135 See Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 609, entered into force December 7, 1978 (hereinafter “Protocol I”). Protocol I applies as treaty law only to international armed conflict, and Afghanistan has not ratified it, but many of its provisions, including those in articles 48-54, are widely considered reflective of customary international law applicable to international and non-international conflict. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978, art. 13(2). Afghanistan has not ratified this protocol, but as with Protocol I, many of its articles are widely considered to be reflective of customary international law.

136 Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002.

137 Human Rights Watch made a public statement on the date Afghanistan ratified the statute, warning armed forces that any violations they might commit after May 1, 2003, could be punished as offenses under ICC jurisdiction. See “Afghanistan: Warlords Face International Criminal Court: Future War Crimes Can Be Prosecuted,” Human Rights Watch News Release, February 10, 2003,

138 Human rights law can be found, for instance, in the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, both of which have been ratified by Afghanistan. See International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Afghanistan on January 24, 1983; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Afghanistan on April 1, 1987.

139 “The Leaders of Afghanistan’s Resistance Groups Called on the U.N. to order Withdrawal of Soviet Troops,” PR Newswire, October 24, 1985.

140 See, for example, “2,000 Afghans killed in US bombing: Taliban,” Xinhua, November 11, 2001 (quoting Taliban official Suhail Shahen condemning “indiscriminate” bombing attacks); “Taliban deny US air supremacy, claim high civilian toll ,” Agence France-Presse, October 10, 2001 (citing Taliban official Abdul Salam Zaeef: "It is our message to the Muslims of America and all human rights organizations that they should show their opposition to such atrocities being made by America against the people of Afghanistan.” See also “Taliban execute key rebel leader as US jets hit civilians, aid depot,” Agence France-Presse, October 27, 2001 (citing Taliban Education Minister Amir Khan Muttaqi: "The international human rights organizations should put pressure on the Americans not to use cluster bombs.”)

141 For more information on human rights abuses and violations of international humanitarian law during the Soviet occupation of Afghanistan, see Helsinki Watch and Asia Watch (now Human Rights Watch), Tears, Blood, and Cries: Human Rights in Afghanistan Since the Invasion, 1979 to 1984 (New York: Human Rights Watch, 1984); Helsinki Watch and Asia Watch (now Human Rights Watch), To Die in Afghanistan (New York: Human Rights Watch, 1985); Helsinki Watch and Asia Watch (now Human Rights Watch), To Win the Children (New York: Human Rights Watch, 1986); Helsinki Watch and Asia Watch (now Human Rights Watch), By All Parties to the Conflict (New York: Human Rights Watch, 1988). See also, Jeri Laber and Barnett R. Rubin, A Nation is Dying (Illinois: Northwestern University Press, 1988); Amnesty International, Afghanistan: Torture of Political Prisoners (London: Amnesty International Publications, 1986).

142 See, for example, Human Rights Watch, Enduring Freedom: Abuses by US Forces in Afghanistan , vol. 16, no. 3(C), March 2004,

143 See, for example, Resolution No. 1/EOS, “The Soviet Military Intervention in Afghanistan and on Its Ensuing Effects,” First Session of the Islamic Conference of Foreign Ministers, Islamabad, Pakistan, January 27-29, 1980 (noting that “the military operations of [Soviet] troops against the Afghan people flout international covenants and norms and blatantly violate human rights,” and that the OIC “condemns the Soviet military aggression against the Afghan people, denounces and deplores it as a flagrant violation of international laws, covenants, and norms.”). See also Islamic Conference of Foreign Ministers (Bangladesh), December 6-11, 1983 (invoking the 1949 Geneva Conventions in connection to the Iran-Iraq war and Israeli military activities in Palestinian territories and Lebanon); and OIC resolutions on Kosovo and Israel adopted during the Islamic Summit Conference (Doha), November 11-12, 2000 (also invoking the 1949 Geneva Conventions).

144 See Common Article 3 of the four Geneva Conventions (applicable in non-international armed conflict, and prohibiting acts against “persons taking no active part in the hostilities,” including “violence to life and person, in particular murder of all kinds,” as well as “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.”). See also International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), Volume 1: Rules 1 and 7, pp. 3 and 25: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed at civilians. . . . The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.” See also Protocol I, articles 48-54; Protocol II art. 13(2).

145 Rome Statute, art. 8(2)(e)(i).

146 ICRC, Commentary on the Additional Protocols, p. 619.

147 Bothe, New Rules for Victims of Armed Conflicts, p. 303.

148 ICRC, Commentary on the Additional Protocols, p. 618-19. This is a broader definition than “attacks” and includes at a minimum preparation for combat and return from combat. Bothe, New Rules for Victims of Armed Conflicts, p. 303.

149 Protocol I, Article 50(1). Some states have expressed reservations about the military implications of a strict interpretation of this rule. According to the ICRC, “when there is a situation of doubt, a careful assessment has to be made as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious.” See ICRC, Customary International Humanitarian Law, pp. 23-24. There are a number of gray areas in the phrase “direct participation in the hostilities.” These relate not only to the civilian’s activity and whether it is direct participation or not, but also to its geographic or temporal beginning and end. That is, there is little clarity as to when a civilian with a weapon actually begins participating in the hostilities, and at what point the participation ends.

150 See Bothe, New Rules for Victims of Armed Conflicts, p. 240; Report of Working Group B, Committee I, 18 March 1975 (CDDH/I/238/Rev.1; X, 93), in Howard S. Levie, ed., The Law of Non International Armed Conflict, (Dordrecht, Netherlands: Martinus Nijhoff, 1987), p. 67.

151 ICRC, Customary International Humanitarian Law, rule 4, citing Protocol I, article 43(1). The commentary to rule 4 states: “Incorporation of paramilitary or armed law enforcement agencies into armed forces is usually carried out through a formal act, for example, an act of parliament. In the absence of formal incorporation, the status of such groups will be judged on the facts and in the light of the criteria for defining armed forces. When these units take part in hostilities and fulfill the criteria of armed forces, they are considered combatants.” Ibid. p. 17.

152 ICRC, Customary International Humanitarian Law, rule 12, citing Protocol I, art. 51, which states: “Among others, the following types of attacks are to be considered as indiscriminate: 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. . . .”

153 ICRC, Customary International Humanitarian Law, rule 14, citing Protocol I, art. 51(5). See also ICRC, rule 8, citing Protocol I, art. 52(2).: “[M]ilitary objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

154 ICRC Customary International Humanitarian Law, rule 8, citing Protocol I, art. 52(2).

155 Bothe, New Rules for Victims of Armed Conflicts, pp. 306-07.

156 ICRC, Commentary on the Additional Protocols, p. 684.

157 Ibid, p. 626.

158 ICRC, Customary International Humanitarian Law, rule 15, citing Protocol I, art. 57(1); Protocol II, art. 13(1).

159 ICRC, Customary International Humanitarian Law, rule 16, citing Protocol I, art. 57(2)(a).

160 ICRC, Customary International Humanitarian Law, rule 17, citing Protocol I, art. 57(2)(a).

161 ICRC, Customary International Humanitarian Law , rule 18, citing Protocol I, art. 57(2)(a).

162 Ibid, Rule 19, citing Protocol I, art. 57(2)(b).

163 Attacks of this type are detailed in Chapter 3 of this report, for instance, the August 3, 2006 suicide car bomb attack in a crowded market in Panjwai Markaz, near Kandahar, which killed at least 22 civilians, including children, and wounded dozens more. The intended target, a Canadian patrol 200 meters from the blast, was unharmed. To take a more recent example, on December 14, 2006, a suicide bomber attacked an Afghan police vehicle in Qalat, in the southern province of Zabul. Only two police officers were wounded, but four civilians were killed and approximately 20 more injured, including four children. See Abdul Waheed Wafa, “4 Are Killed And 22 Hurt In Bomb Attack In Afghanistan,” New York Times, December 15, 2006. As noted in Appendix A, many other attacks of this kind occurred through 2006.

164 ICRC, Customary International Humanitarian Law, rule 2, citing Protocol I, art. 51(2) and Protocol II, art. 13(2). While applying this rule in 2003, the international criminal tribunal for the Former Yugoslavia stated that terror could be understood also as “extreme fear.” See Prosecutor v. Galic, Case No. IT-98-29-T (Trial Chamber), December 5, 2003, para. 137.

165 See ICRC, Customary International Humanitarian Law, rule 65, citing Protocol I, art. 37.

166 See ibid.

167 Rome Statute, art. 8(2)(e)(ix). The phrase “killing or wounding treacherously,” from the 1907 Hague Regulations, art. 23(b) is equivalent to perfidy.

168 In addition to cases cited in this report, other examples include a December 2006 ANSO report: “15th December, 1500hrs, Barmal District [Paktia]. A male suicide bomber in burka (veil) detonated his IED at the entrance of Shkin ANA base in the above-mentioned district.” An Associated Press dispatch: “Kandahar—A suicide car bomber attacked a NATO convoy Thursday in southern Afghanistan, leaving 15 civilians killed or wounded, police said. No NATO troops were hurt in the blast. . . .” See “15 civilians killed or badly wounded in Afghan blast,” Associated Press, December 7, 2006.

169 See ICRC Commentary to Protocol I, p. 430.

170 See ibid.

171 See various press releases from the International Security Assistance Force (ISAF), November 16, 2006; November 23, 2006; November 27, 2006; November 28, 2006; November 30, 2006; December 13, 2006; and December 27, 2006, available at

172 Press Release, International Security Assistance Force (ISAF), November 23, 2006, available at

173 Press Release, International Security Assistance Force (ISAF), December 27, 2006, available at

174 See generally ICRC, Customary International Humanitarian Law, “Precautions in Attack,” chapter 5.

175 The United Nations Assistance Mission prepared a report on the incident in December 2006 indicating that the Herat city hospital reported seven victims with gunshot wounds, and that the local office of the Afghan human rights commission reported three fatalities. See UNAMA memorandum, “Taliban suicide attack and UK ISAF firing upon Afghan civilians, 03 December 2006, Kandahar,” December 2006, on file with Human Rights Watch. See also Noor Khan, “3 die, 19 hurt in Afghan blast, gunfire,” Associated Press, December 3, 2006.

176 See Tom Coghlan, “Three Marines hurt in Afghan suicide attack,” The Telegraph (UK), December 5, 2006.

177 See Human Rights Watch, “Afghanistan: US Should Investigate Civilian Deaths,” March 6, 2007, US military commanders ordered an investigation into the incident and ordered the US Marines unit involved to leave Afghanistan. See Robert Burns, “Marine unit ordered out of Afghanistan,” Associated Press, March 23, 2007.

178 UNAMA, “Taliban suicide attack and UK ISAF firing upon Afghan civilians, 03 December 2006, Kandahar,” December 2006, on file with Human Rights Watch. The report also states: “Scores of innocent Afghan men, women and children have been displaced, terrorized, injured and killed as the Taliban target the Afghan government and NATO/ISAF with scant regard for civilian lives. Military operations by the Afghan government and NATO/ISAF have also taken lives and contributed to an atmosphere of fear.”

179 Statement of Taliban spokesperson Qari Mohammad Yousuf to a Reuters correspondent. “Afghans launch hunt for kidnapped Albanians,” Reuters, March 12, 2006. This statement concerned four kidnapped Macedonian citizens (initially and erroneously reported to be Albanian) who were executed by the Taliban a few days later. After the four were killed, Yousef told the BBC: “We will kill anyone who is helping the Americans.” “Afghans killed on hostage mission,” BBC, March 17, 2006.

180 Rulebook for the Mujahidin From the Supreme Leader of the Islamic Emirate of Afghanistan, unspecified date, faxed to media outlets in Pakistan in November 2006. (On file with Human Rights Watch.)

181 See Tahir Luddin and Tim Albone, “‘Do not send your children here. We will kill them,’” The Times (London), May 24, 2006.

182 Gulbuddin Hekmatyar, Congratulatory Message on the Occasion of Eid-ul Fitr (translated by Human Rights Watch), October 22, 2006. (Original Dari and Pashto versions on file with Human Rights Watch.)

183 Statement provided to Associated Press, purportedly signed by “Mullah Omar Mujahid, the Amir-ul-Momineen,” on file with Human Rights Watch. See also Amir Shah, “Gunmen kill 8 civilians working for US military in eastern Afghanistan,” Associated Press, October 20, 2006.

184 See Kim Barker, “Attack on US convoy deadliest suicide bomb assault in almost 5 years in Kabul; kills 2 soldiers and at least 14 Afghan civilians,” Chicago Tribune, September 9, 2006.

185 “Afghanistan reeling after suicide attacks kill 26 people,” Agence France-Presse, January 17, 2006.

186 ICRC, Customary International Humanitarian Law, rule 22, citing Protocol I, art. 58(c); Protocol II, art. 13(1).

187 ICRC, Customary International Humanitarian Law, rule 23, citing Protocol I, art. 58(b); Protocol II, art. 13(1).

188 See, for example, Kathy Gannon, “Taliban Comeback Traced to Corruption,” Associated Press, November 24, 2006 (quoting Afghan civilians and officials about the issue of corruption). See also Barney Rubin, “Saving Afghanistan,” Foreign Affairs, January 2007 (describing sanctuary in Pakistan as the other main source of strength for anti-government groups). A statement purportedly made by Mullah Omar in October 2006, cited above, also states: “The Kabul puppet regime has failed to establish peace and stability as well as to control narcotics. The regime has also not succeeded in maintaining unity. The government cannot maintain peace as Hamid Karzai has recruited thieves and looters in his armed militias.”

189 Pamela Constable, “In Afghanistan's South, Mixed Signals for Help; Residents Differ on Strategy Toward Taliban,” Washington Post, November 20, 2006 (quoting Afghan civilians and officials about the issue of civilian deaths).

190 See Human Rights Watch, Enduring Freedom: Abuses by US Forces in Afghanistan, vol. 16, no. 3(C), March 2004, (discussing civilian casualties and detention-related abuses by US forces); and “Killing You is a Very Easy Thing For Us”: Human Rights Abuses in Southeast Afghanistan, vol. 15, no. 5, July 2003, (discussing abuses by Afghan police and military).

191 On October 18,2006, in separate operations in Kandahar and Helmand provinces, NATO forces killed at least 22 civilians, and possibly as many as 26, including women and children. NATO later blamed the deaths on faulty intelligence. A week later, around October 25, NATO operations in Panjwai district in Kandahar led to the deaths of at least 31 civilians. See Human Rights Watch, Letter to NATO Secretary-General Regarding Summit in Latvia, November 28, 2006, See also Kathy Gannon, “NATO Strikes Kill Villagers,” Associated Press, October 19, 2006; Globe and Mail (Canada), “NATO admits killing more civilians,” October 26, 2006; and Globe and Mail, “Women and children killed, NATO admits,” October 27, 2006.

192 As noted above, on March 4, 2007, in Nangarhar province, apparent indiscriminate fire by US forces following a suicide bomb attack caused at least ten civilian deaths. See Human Rights Watch, “Afghanistan: US Should Investigate Civilian Deaths,” March 6, 2007,

193 Human Rights Watch interviews with various humanitarian officials, Kabul, September 2006.