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.  

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