Erica Gaston's blog

By Erica Gaston

In his recent 60-day assessment of the war in Afghanistan, Gen. Stanley McChrystal described detention operations, and the enmity they generate among the Afghan population, as a "strategic liability" for success in Afghanistan. Justifiably so. As Jonathan Horowitz recently pointed out on the Huffington Post, "The growing anger of Afghans comes largely from people being detained and then trapped in an arbitrary, unfair system that fails to accurately distinguish between ordinary people and dangerous enemies." 

The solution? Empower the Afghans to carry out detention operations. Both Gen. McChrystal's assessment and a recent review of detention issues in Afghanistan by Maj. Gen. Douglas Stone (the "Stone Review") highlight the importance of developing Afghan capacity for detention operations. But as Sahr MuhammedAlly recently noted on the AfPak Channel, "the devil will be in the details."

Allowing Afghan institutions and civil society to take a bigger part in the current and future review processes might be a start. I sat down with a commissioner at the Afghanistan Independent Human Rights Commission, the chief human rights watchdog in Afghanistan. Though he wasn't consulted for either the Stone Review or Gen. McChrystal's assessment, Mohammad Farid Hamidi, the Commission's representative at the Working Group on Conflict-Related Detentions in Afghanistan, had some additional insights that U.S. reviews should have included. An edited version of the interview follows.

The United States is in the middle of reforming its detention policies in Afghanistan. What should those reforms include?

The problem with detentions starts at the beginning, from when a person is captured through his detention. The way a person is captured should be humane and in accordance with international and national human rights standards. Capture operations should not be done at night. It increases danger to children, women, and surrounding civilians. Every night children and women feel terrorized, especially in the southern region of Afghanistan.

Also, when the U.S. captures an individual they categorize how dangerous the person is. But there is no good procedure to assess whether an individual is truly a dangerous person to U.S. or national security interests.

Has your Commission documented abuses by international military forces when they capture and detain people?

The Commission does not have access to people detained at Bagram and Guantanamo Bay. However, we have interviewed those who have been released, and found in some cases that during the capture, interrogation, and detention period, they have been tortured and abused. In one case [at Bagram] international forces forced a man to engage in a fight with a dog. International forces have threatened detainees, including threatening to kill a man at gunpoint. Detainees have also been forced to stand in cold temperatures without any clothes. That has happened often.

Have the detention practices of the U.S. and its allies changed the ways local Afghans view the presence of foreign troops in their country?

Two things create bad perceptions for international military forces -- one is civilian casualties and the other is detentions. The policy of the U.S. detention system is at odds with the policy that the international community has come with to Afghanistan. It's like a double standard. First they have come to bring human rights, democracy, transparency, but then their actions act against these standards.

When we go to our government to [raise concerns about] detainee issues, the Afghan government will say, "Why are you bothering us? Why don't you ask the Americans about Bagram?" Actually, for any human rights issue, they point to U.S. actions [like detention policies] and say: "They are breaching human rights values in Afghanistan, why don't you go talk to them?"

Do lawyers have access to Bagram detainees? Is your commission permitted to visit detention facilities in Afghanistan?

Only the U.S. government itself might have appointed lawyers -- we couldn't know. As far as we know, no legal advisor or advocates have access to the Bagram detention facility.

At Pul-e Charki [Afghanistan's central prison] we don't have any problems making visits. But we don't have access to Bagram. For two years we have struggled to get access to the Bagram detention facility with high-level government officials and US authorities. But so far we have not had any success.

Do all people detained by international forces go to Bagram?

Some governments have signed agreements with the government of Afghanistan such that after they capture a detainee they transfer him to the Afghan government or other national detention sources within 96 hours. The treaties, signed by Netherlands, UK, Denmark, Canada, and Norway, also try hard to ensure the detainee's humanity is respected. However, during the investigation and monitoring of Pul-e Charki and national security detention facilities, AIHRC has found that the standards were not at the level we were expecting. When we see something that is not right, we engage with higher authorities to make improvements. Then there is the United States. There are no treaties with the government and they are directly capturing and detaining Afghans.

Have any U.S. detainees at Bagram been exposed to Afghan law?

To my knowledge, there has been no case where Bagram detainees have been prosecuted under Afghan law. Some detainees from Guantanamo and Bagram were transferred to the Afghan government, and a commission was formed to investigate their cases, and some of those individuals have been prosecuted.

Erica Gaston is a human rights lawyer based in Kabul, Afghanistan, consulting on civilian casualties issues for the Open Society Institute.  

Spencer Platt/Getty Images

By Erica Gaston

In the two months since Gen. Stanley McChrystal assumed ISAF command, we have seen a serious shift in thinking about civilian casualties and Afghan community concerns. This is most clearly embodied in the July Tactical Directive's much stricter guidelines on airstrikes and other uses of force that could risk civilian losses. The latest NATO airstrike in Kunduz -- now believed to have killed as many as 125 people, at least two dozen of them civilians -- raises questions of whether that thinking has gone far enough.

The first concern is whether enough was done to ensure that the new restrictions would be meaningfully implemented. The Tactical Directive, and accompanying guidance and statements by McChrystal, makes clear that all precautions should be taken to ensure an absolute minimum risk to nearby civilians before an airstrike can be ordered. Yet, the Washington Post reports that a single local intelligence source gave the OK that there were no civilians present at the site of the recent airstrike -- information that now appears to be off the mark.

One would hope that the new seriousness about civilian casualties would lead commanders to double-check sources regarding potential civilian harm. In this case, though, the only other evidence the ISAF commander relied on was aerial footage showing thermal images of those at the scene: "numerous black dots... but without enough detail to confirm whether they were carrying weapons."

Despite this minimal scrutiny of whether civilians were at the scene or not, the Post notes that this latest strike may not have technically violated the Tactical Directive because it only requires more than one source civilians for airstrikes in residential areas and this strike happened in an open area.

Black dots on a screen and one source claiming those dots are Taliban could describe many of the worst bombing mistakes that have happened in the last eight years. Afghan officials and investigators have repeatedly argued that many civilian casualty incidents have been based on poor information or faulty tips. Given this history, not setting a higher bar for due diligence before commanders can call in an airstrike seems a gaping hole in implementing the new tactical strategy.

The second concern is not so much about how to implement what's in the Tactical Directive, but how to deal with the concerns left out of it. While the July Tactical Directive made leaps forward in addressing Afghan complaints about limiting airstrikes and offensive night raids (notwithstanding implementation concerns), it was curiously silent on equally loud cries for greater accountability. 

For most of the last 8 years, incidents of civilian loss have been met with denials. Afghan families have been unable to get basic questions answered about what happened to their loved ones and why. To my knowledge, no serious disciplinary action has been taken with regard to any of the major incidents of civilian casualties; for example, not after 47 civilians were killed in a July 2008 strike on a wedding party in Nangarhar, nor following the death of approximately 80 civilians in Azizabad, Herat, in August 2008. U.N. Special Rapporteur Philip Alston noted that ISAF has no means of tracking the results of disparate national investigation and disciplinary procedures, much less for communicating any results to the affected communities.

This lack of transparency or accountability to those directly harmed by ISAF actions has created a commonly held Afghan perception that international forces kill Afghans with impunity, a view that only exacerbates local anger and resentment at international forces. In a particularly striking exchange, one tribal leader told me "We Afghans are like clay pigeons to U.S. forces. They shoot us for fun and then congratulate themselves. Nothing happens to them."

Afghan community leaders and aid workers repeatedly ask me why ISAF didn't check with local sources if they wanted to find out if a target was a Talib or not. They also ask why those who are misleading ISAF with false information are allowed to continue doing so without any seeming punishment or dismissal.

Following this week's incident, General McChrystal has apologized publicly (including through translated statements via Afghan media), and made notable efforts to treat the reports of civilian deaths seriously and investigate them personally. The mood has clearly changed within ISAF regarding civilian casualties, but for that to have an impact on the ground more will clearly have to be done to implement the letter and the spirit of the Tactical Directive.

The investigation on the latest incident is still ongoing. The findings may indeed show that this latest strike did not violate international humanitarian law, nor even the latest Tactical Directive. But for the many Afghans who have seen the deaths of their loved ones and the destruction of their communities swept under the rug over the last eight years, much more has to be done to demonstrate accountability to Afghan concerns. 

Erica Gaston is a human rights lawyer based in Kabul, Afghanistan, consulting on civilian casualties issues for the Open Society Institute.  

MASSOUD HOSSAINI/AFP/Getty Images

By Erica Gaston

Election officials and politicians have been describing the Afghan elections as a qualified success. Yet with widespread reports of heightened violence and low voter turnout across the country I have to ask: What election were you watching? Because the one I followed yesterday is shaping up to be a qualified mess. 

In terms of security, rocket attacks, armed clashes, IEDs, and other violence were reported in Kabul, Kandahar, and Lashkarga. More serious armed clashes took place in Logar, Wardak, and Baghlan provinces. A journalist returning from Wardak told me it was the scariest thing he's seen since arriving in Afghanistan.  Other sporadic incidents, particularly attacks on polling stations, occurred in provinces countrywide.

That this level of violence killed nine civilians, and not more, seems less due to effective security precautions than to pure luck, Afghan caution in avoiding polling stations in the morning, or (possibly) the Taliban's own restraint in its attacks (is this an example of Mullah Omar's pledge to reduce civilian casualties under the new Taliban "Code of Conduct"?).

In terms of Afghan "buy-in" or participation in the election, the evidence is even more troubling. Many Afghans did not go to the polls because of security fears, particularly in the south, but an equal number seem to have opted out because they weren't convinced their vote mattered. While voter turnout was lowest in insecure areas, according to election-day observers, voter turnout also plummeted in secure areas, like Mazar-i Sharif. 

Many Afghans I spoke to in the last few weeks said they would not vote because they assumed the election would be rigged for incumbent President Hamid Karzai (The Times of London makes a great case for that theory here). Others said they would not vote because they did not think any of the candidates would be able to reverse rampant corruption, criminal activity, and insecurity in Afghanistan.

While the nightmare scenario many election officials feared did not happen yesterday, packaging this election as a success story is going to be a hard sell, especially with fraud charges and vote challenges already on the horizon.

Erica Gaston is a human rights lawyer based in Kabul, Afghanistan, consulting on civilian casualties issues for the Open Society Institute.  

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