Double Standards in International Law: Did the U.S. Get Away with War Crimes in Afghanistan?
Following the withdrawal of U.S. troops from Afghanistan, a substantial portion of media coverage and political debate focused on the glaring economic costs of the war. After nearly 20 years of military involvement, the United States is estimated to have spent over two trillion dollars in the region. [1] However, this economic cost pales in comparison to the human cost of war. Reports estimate that, as of April 2021, more than 71,000 innocent Afghan and Pakistani civilians had been killed as a direct result of the Afghanistan War. [2] In fact, despite the U.S. government’s claim that it was only targeting terrorists and enemy combatants, many of the victims of U.S.-led airstrikes were innocent civilians. Reports show that, in 2017, the U.S. relaxed its regulations on airstrikes, resulting in a nearly 330% increase in the number of civilian casualties. [3] The large number of innocent civilians killed during the U.S. involvement in Afghanistan raises critical questions regarding the authority of international law in relation to acts of war.
The Hague and Geneva Conventions of the late nineteenth and early twentieth centuries provided a shared international understanding of what constitutes an improper act of war. The Hague Conventions of 1899 and 1907 were the first “multilateral” or multi-state treaties created to address the proper conduct of warfare, prohibiting two warring parties from engaging in inhumane means and methods during war. Articles 23 and 25 state that any military or government cannot “employ arms, projectiles, or material calculated to cause unnecessary suffering.” [4] The laws also forbid states from “attacking, destroying, or bombarding” any “towns, villages, dwellings, or buildings” that are undefended. [5] The 1949 Geneva Conventions were created to supplement these laws by legally protecting the dignity and lives of innocent civilians who are not directly taking part in the violence. [6] The fourth 1949 convention, in particular, focuses on how not only the life but “the dignity” of all human beings must be respected, even in the midst of war. [7] Therefore, under these conventions, any unjustified killing of innocent civilians or unnecessary destruction of property is considered a violation of international law, even though not all violations are considered “war crimes.”
While not all states have ratified both the Hague and Geneva conventions, the United Nations (UN) argues that the rules outlined in them have inherently become a part of “customary international law.” [8] Therefore, all states are bound by them, regardless of whether or not they have “ratified the treaties themselves.” [9] This is critical to assessing the legality of U.S. actions in Afghanistan. Despite having ratified both conventions, the United States repeatedly violated them during the War in Afghanistan. For example, in 2021, the United States admitted to a drone strike that mistakenly killed 10 Afghan civilians, including an aid worker and seven children living in a “dense residential block.” [10] When the attack was first reported, however, the United States had denied any claims of wrongdoing, claiming it to be a “righteous strike” targeting a “suspicious” vehicle that they believed was carrying an “ISIS bomb.” [11] The military also alleged that the strike had only killed around three civilians. [12] It was not until the New York Times published declassified footage of the strike that the truth was revealed: the driver of the “suspicious” vehicle was Zemari Ahmadi, an Afghan aid worker who had spent his entire day “transporting colleagues to and from work.” [13] Further investigation of the video also revealed that at least one child had been near the site of the strike only two minutes prior. [14] Despite being in clear violation of both Articles 23 and 25 of the Hague Conventions, which state that it is forbidden to cause “unnecessary suffering” or attack villages and dwellings that are undefended, none of the U.S. military officials involved with the strike were punished for their deadly actions under the stipulations of these Conventions. [15] Only the innocent victims and their families had to pay the price for the U.S. military’s “mistake.”
This, unfortunately, is not an isolated case. Many deadly strikes, in undefended homes and densely populated neighborhoods, occurred throughout the War in Afghanistan. For example, in 2008, an airstrike “against a target of opportunity” killed 47 civilians who were traveling to attend a wedding in the Nangarhar province of Afghanistan. [16] Among those killed were 39 women and children, including the bride. As in the case of Mr. Ahmadi in 2021, the United States had initially denied any wrongdoing, stating that no civilians had been killed. It was not until further investigation of the incident occured that the truth was revealed. Once again, the United States government had acted with impunity and a reckless disregard for the value of innocent lives. [17] Similar to the case with Zemari Ahmadi, U.S. officials were never punished for violating international law.
A formal mode of punishing perpetrators of international war crimes is through the International Criminal Court (ICC). Following the ratification of the Rome Statute, the Court was officially established in 2002 to investigate, try, and charge individuals responsible for war crimes, genocide, crimes against humanity, or the crime of aggression. [18] Those initially in support of creating the ICC hoped that it would “deter-would be war criminals, bolster the rule of law, and offer justice to victims of atrocities.” [19] However, this has clearly not been the case. Since its ratification, the Court has received criticism for its failure to adjudicate claims made against major powers like the United States, China, and Russia [20]. Moreover, the Court is accused of having unfairly “singled” out Africa, prosecuting a number of African leaders while failing to take into account the atrocities committed by major world powers. [21]
These criticisms are especially relevant when comparing the atrocities committed by the United States in Afghanistan to those committed by states that are currently under investigation by the ICC as violations of international law. For example, in 2011, the ICC opened an investigation against the Libyan government for alleged “war crimes” and “crimes against humanity” committed by the “highest level” of Libyan authority. [22] The United Nations Security Council referred the situation to the ICC, condemning the Libyan government for using “violence and force” against innocent civilians and violating human rights. [23] The same accusations could be leveraged against the United States for the crimes they have committed against innocent civilians in Afghanistan. However, the ICC continues to turn a blind eye to crimes committed by the American government - deliberately excluding the United States from any investigations into alleged war crimes.
Similarly, in 2005, the ICC opened an investigation in Darfur, Sudan regarding alleged war crimes, crimes against humanity, and genocide. [24] Like the United States, Sudan is not a state party to the Rome Statute, yet it is still being investigated for crimes such as “outrage upon personal dignity” and “torture.” [25] The same accusations, however, can be leveraged against the United States for the alleged killing and torture that took place at Bagram, a former U.S. detention site in Afghanistan. In 2005, a New York Times report revealed the atrocities that occurred against unarmed Afghan civilian prisoners by U.S. armed forces at the detention center. [26] The report claimed that the prisoners were “chained to the ceiling” and “beaten to death.” [27] Despite these atrocities, however, unlike the Sudanese government, the U.S. was never prosecuted or formally condemned by the ICC.
In 2021, the ICC decided to “deprioritize” an investigation of the crimes committed by the United States in Afghanistan, choosing to focus instead on the crimes committed by the Taliban and Afghan leaders. [28] This decision by the ICC highlights a double standard in its enforcement of the rule of law. By “deprioritizing” crimes committed by the United States, the ICC is encouraging major powers to continue disrespecting international law without any fear of the consequences. Even if the ICC is unable to convict powerful leaders from countries like the United States, Russia, or China, it should at least investigate and condemn their actions. By failing to even acknowledge the crimes committed by the United States, the ICC is communicating to the world that the dignity and lives of innocent civilians do not matter if major world powers are responsible. As long as international legal organizations such as the ICC continue to allow the U.S. and other major powers to undermine international law, innocent civilians will continue to be the ones who suffer as a consequence of crimes that go unpunished.
Upholding equal enforcement of international law is especially pertinent given the unfolding tension in Ukraine. Many in the United States and Europe have accused Russia of committing war crimes due to the Russian military’s alleged use of “cluster munitions,” deadly weapons that can “scatter hundreds of submunitions over large” urban areas, killing many at a time. [29] Cluster munitions have been banned by most countries and strongly condemned by international organizations such as the UN. [30] However, during the War in Afghanistan, the United States repeatedly used cluster munitions, dropping nearly 1,228 cluster bombs between 2001-2002. [31] Despite this fact, the United States has never been held legally accountable for doing so.
By allowing powerful countries such as the United States to undermine international law, guardians of human rights such as the United Nations and the International Criminal Court not only condone the suffering of innocent people, but erode the very power and authority of their claims. This is, once again, exemplified by Russia’s recent invasion of Ukraine. Failing to hold all states equally accountable for violations of international law enables powerful leaders such as Russian President Vladimir Putin to ignore the policies and laws established by the international community. Until all powers, including the United States, are uniformly held accountable for their crimes, international law will remain ineffective. Why should powerful leaders abide by the laws when others are excused? Justice can never be achieved when a double standard exists. While powerful leaders roam free, innocent civilians will continue to pay the price.
Edited by Muna Ali
Sources:
[1] “Human and Budgetary Costs to Date of the U.S. War in Afghanistan, 2001-2022: Figures: Costs of War.” The Costs of War, August 2021. https://watson.brown.edu/costsofwar/figures/2021/human-and-budgetary-costs-date-us-war-afghanistan-2001-2022.
[2] “Costs of War: Afghan Civilians.” The Costs of War, April 2021. https://watson.brown.edu/costsofwar/costs/human/civilians/afghan.
[3] Id.
[5] Id.
[6] “United Nations Office on Genocide Prevention and the Responsibility to Protect: War Crimes.” United Nations. United Nations, n.d. https://www.un.org/en/genocideprevention/war-crimes.shtml.
[7] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949. https://www.refworld.org/docid/3ae6b36d2.html
[8] “United Nations Office on Genocide Prevention and the Responsibility to Protect: War Crimes.” United Nations. United Nations, n.d. https://www.un.org/en/genocideprevention/war-crimes.shtml.
[9] Id.
[10] Aikins, Matthieu, Christoph Koettl, Evan Hill, Eric Schmitt, Ainara Tiefenthäler, and Drew Jordan. “Times Investigation: In U.S. Drone Strike, Evidence Suggests No Isis Bomb.” The New York Times. The New York Times, September 10, 2021.
https://www.nytimes.com/2021/09/10/world/asia/us-air-strike-drone-kabul-afghanistan-isis.html.
[11] Id.
[12] Id.
[13] Id.
[14] Cooper, Helene, and Eric Schmitt. “Video Footage Showed at Least 1 Child near Site Minutes before Drone Strike in Kabul.” The New York Times. The New York Times, November 3, 2021. https://www.nytimes.com/2021/11/03/us/politics/drone-strike-kabul-child.html.
[15] Schmitt, Eric. “No U.S. Troops Will Be Punished for Deadly Kabul Strike, Pentagon Chief Decides.” The New York Times. The New York Times, December 13, 2021. https://www.nytimes.com/2021/12/13/us/politics/afghanistan-drone-strike.html.
[16] “‘Troops in Contact’ - Airstrikes and Civilian Deaths in Afghanistan.” Human Rights Watch, September 8, 2008. https://www.hrw.org/report/2008/09/08/troops-contact/airstrikes-and-civilian-deaths-afghanistan#.
[17] Id.
[18] “How the Court Works.” International Criminal Court. Accessed April 12, 2022. https://www.icc-cpi.int/about/how-the-court-works.
[19] Felter , Claire. “The Role of the International Criminal Court.” Council on Foreign Relations. Council on Foreign Relations, March 28, 2022. https://www.cfr.org/backgrounder/role-international-criminal-court.
[20] Id.
[21] Park, Joanne, Animesh Joshi, Simon Collerton, and Emma Barbarette. “Roundtable #6: The Promises and Problems of the International Criminal Court.” Columbia Undergraduate Law Review, July 25, 2021. https://www.culawreview.org/roundtable-1/roundtable-discussion-the-promises-and-problems-of-the-international-criminal-court.
[22] “Libya.” International Criminal Court. Accessed April 12, 2022. https://www.icc-cpi.int/libya.
[23] “Libya.” International Criminal Court. Accessed April 12, 2022. https://www.icc-cpi.int/libya.
[24] “Darfur, Sudan.” International Criminal Court. Accessed April 12, 2022. https://www.icc-cpi.int/darfur.
[25] “Darfur, Sudan.” International Criminal Court. Accessed April 12, 2022. https://www.icc-cpi.int/darfur.
[26] Golden, Tim. “In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths.” The New York Times. The New York Times, May 20, 2005. https://www.nytimes.com/2005/05/20/world/asia/in-us-report-brutal-details-of-2-afghan-inmates-deaths.html.
[27] Id.
[28] Speri, Alice. “How the U.S. Derailed an Effort to Prosecute Its Crimes in Afghanistan.” The Intercept. The Intercept, October 5, 2021. https://theintercept.com/2021/10/05/afghanistan-icc-war-crimes/.
[29] Hagos, Sara, and Jack Detsch. “Bogged-down Russian Troops Resort to Deadly Cluster Munitions.” Foreign Policy. Foreign Policy, March 16, 2022. https://foreignpolicy.com/2022/03/16/russia-military-ukraine-cluster-munitions-civilian-casualties/.
[30] UNODA . “Convention on Cluster Munitions – UNODA .” United Nations. United Nations. Accessed April 12, 2022. https://www.un.org/disarmament/convention-on-cluster-munitions/.
[31] Feickert, Andrew, and Paul K. Kerr, Cluster munitions: Background and issues for Congress § (2022). https://sgp.fas.org/crs/weapons/RS22907.pdf.