Amnesty International’s Grant Bayldon says the New Zealand Government must act now to swiftly launch an independent inquiry into allegations of civilian deaths in Afghanistan.
Bayldon said today, “The New Zealand Government can’t rely on the veracity of the ISAF report as they’re currently doing. We have documented instances of ISAF reaching incorrect findings in their reports and have also raised concerns about their ability, as military forces, to conduct an impartial investigation into military conduct.”
In just one example from 2013, ISAF reacted in the media to reports of civilian casualties
caused by a drone strike. After initially saying that it killed “10 enemy forces” and that there were “no signs of civilians in the vicinity”, it later acknowledged that three civilians were killed. A United Nations investigation found that 10 civilians were killed.
In a 2014 report Amnesty International noted, “A key requirement of a good investigation is that those responsible for carrying out the investigation are independent of those implicated in the alleged crimes…Other indicators of good investigations include taking witness statements in a timely fashion, protecting witnesses from violence or intimidation, and drafting detailed written reports of findings that are made public within a reasonable time.”
Explanatory Note:
Thousands of Afghan civilians have been killed since 2001 by coalition forces. Tragic as each and every one of these deaths is, under the laws of war, not every civilian death occurring in armed conflict implies a legal breach.
Yet if civilians appear to have been killed deliberately or indiscriminately, or as part of a disproportionate attack, the laws of war require a prompt, thorough and impartial inquiry.
Back in 2009, in a step toward greater engagement with concerns over the mounting number
of civilian deaths, ISAF began deploying ad hoc bodies called Joint Incident Assessment Teams to assess reports of civilian casualties – mainly for incidents that have resulted in a high number of civilian casualties or that have received political attention.
But these ISAF assessment teams do not have an investigative function in a formal sense; they assess cases rather than investigate. Their reports are provided to the “battle space owner”, the military force responsible. The battle space owner is supposed to report back to ISAF regarding any action taken to investigate or prosecute the incident.
However, such reporting back is quite rare: in the vast majority of cases, ISAF is unaware of whether national investigations have taken place.
Besides fact-finding, ISAF has an important role as a first responder with the media when reports of civilian casualties hit the news. Called upon to comment when reports of civilian casualties hit the news, ISAF spokespersons have in some instances been quick to deny them, even—as with the February 2010 killings of five civilians in Gardez district—providing false information to the media. This was especially a problem around the time of the incident described in ‘Hit and Run’; later ISAF press comments became more neutral, often stressing that investigations into allegations of civilian casualties are being conducted.
Under the laws of war, there is an obligation to ensure that a prompt, thorough, and impartial investigation is carried out if there is prima-facie evidence or credible allegations of unlawful killings. Even if done thoroughly, it is doubtful than an ISAF report would meet this standard in terms of impartiality.