Why US Wants BSA With Criminal Immunity: Amnesty Reports US War Crimes in Afghanistan Not Prosecuted

Barack Obama faces a huge amount of pressure during the current meltdown of Iraq because he withdrew all US military forces from the country. As I have pointed out in countless posts, the single controlling factor for that withdrawal was that Iraq refused to provide criminal immunity to US troops who remained in Iraq past December 31, 2011.

A very similar scenario is playing out now in Afghanistan. Hamid Karzai has refused to sign the Bilateral Security Agreement that will provide criminal immunity to US troops remaining beyond the end of this year. Both Abdullah Abdullah and Ashraf Ghani have stated that they will sign the BSA immediately upon taking office, but the recount of their runoff election remains mired in dysfunction over how to eliminate fraudulent votes. John Kerry has visited twice to get the candidates to cease sparring, but dysfunction has quickly ensued after both visits. Meanwhile, the clock ticks ever closer to expiration of the current agreement providing immunity.

All along, the US framing for insisting on criminal immunity for troops is based on avoiding the chaos of soldiers facing false charges that might be brought through a court system that lacks the safeguards of the US court system or even the US military courts. But a report (pdf) released Friday by Amnesty International provides solid evidence that the US has failed, on multiple verified occasions, to take any action to pursue those responsible for clear war crimes in Afghanistan. That stands out to me as the real reason the US insists on criminal immunity.

Amnesty sums up their findings in the press release accompanying the report:

Focusing primarily on air strikes and night raids carried out by US forces, including Special Operations Forces, Left in the Dark finds that even apparent war crimes have gone uninvestigated and unpunished.

“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress. The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses,” said Richard Bennett, Amnesty International’s Asia Pacific Director.

“None of the cases that we looked into – involving more than 140 civilian deaths – were prosecuted by the US military. Evidence of possible war crimes and unlawful killings has seemingly been ignored.”

The description continues:

Two of the case studies — involving a Special Operations Forces raid on a house in Paktia province in 2010, and enforced disappearances, torture, and killings in Nerkh and Maidan Shahr districts, Wardak province, in November 2012 to February 2013 — involve abundant and compelling evidence of war crimes. No one has been criminally prosecuted for either of the incidents.

Qandi Agha, a former detainee held by US Special Forces in Nerkh in late 2012, spoke of the daily torture sessions he endured. “Four people beat me with cables. They tied my legs together and beat the soles of my feet with a wooden stick. They punched me in the face and kicked me. They hit my head on the floor.” He also said he was dunked in a barrel of water and given electrical shocks.

Agha said that both US and Afghan forces participated in the torture sessions. He also said that four of the eight prisoners held with him were killed while he was in US custody, including one person, Sayed Muhammed, whose killing he witnessed.

Of course, the US claims that while it wants troops immune from prosecution in Afghanistan under trumped up charges, crimes will be investigated by US authorities. The Amnesty report puts that lie to rest. Again, from the press release:

Of the scores of witnesses, victims and family members Amnesty International spoke to when researching this report, only two people said that they had been interviewed by US military investigators. In many of the cases covered in the report, US military or NATO spokespeople would announce that an investigation was being carried out, but would not release any further information about the progress of the investigation or its findings – leaving victims and family members in the dark.

“We urge the US military to immediately investigate all the cases documented in our report, and all other cases where civilians have been killed. The victims and their family members deserve justice,” said Richard Bennett.

Yeah, I’m sure the military will get right on that. Sometime in the next century or two.

The report provides three recommendations to the government of Afghanistan:

 Create a credible, independent mechanism to monitor, investigate and report  publicly on civilian deaths and injuries caused by the ANSF, and to ensure timely and effective remedies. This mechanism should include detailed procedures for recording casualties, receiving claims, conducting investigations, carrying out disciplinary measures including prosecutions where warranted, and ensuring reparation, including restitution, compensation, and rehabilitation.

 Ensure that accountability for civilian casualties is guaranteed in any future bilateral security agreements signed with NATO and the United States, including by requiring that international forces provide a regular accounting of any incidents of civilian casualties, the results of investigations into such incidents, and the progress of any related prosecutions. Such agreements should exclude any provision that might infringe upon Afghanistan’s obligations under the Rome Statute of the International Criminal Court.

 Continue to press the US and NATO authorities to take meaningful steps to enhance civilian protection, investigate reports of civilian casualties, and prosecute violations of international humanitarian law that result in civilian casualties.

Those recommendations are terrific, but they are completely meaningless when applied to what is really happening in Afghanistan. None of the good things in that list have any chance of even making it into the language of the already negotiated BSA, and even if they did, no enforcement of it would ever be allowed. After all, the US is the country that even has passed a law allowing use of military force to “rescue” any citizen facing charges in the ICC. It doesn’t matter whether George W. Bush or Barack Obama is the Commander in Chief, the US military will go wherever it wants, kill whoever it wants, and allow the vast majority of its crimes to go without consequence.

That is the particular freedom they hate us for.

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.
12 replies
  1. Scared Almost Straight says:

    The Hague Invasion Act is entertaining as a laughingstock but it’s not binding. DoD hates it so it’s shot through with waivers. The grownup law of the outside world still applies, that is:
    Afghanistan accepted the jurisdiction of the International Criminal Court in 2003. The ICC, as a court of last resort, will take cases that fall through the cracks of state jurisdictions – when a jurisdiction is unwilling to prosecute apparent crime, for example. From the court’s statute, the admissibility criterion of unwillingness from Article 17, clause 2 are:
    In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
    (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
    (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
    (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
    Serious crimes ignored by the US or Afghanistan put US government officials in legal jeopardy from UNSC referrals, Uniting for Peace resolutions in the event of a US veto, or proprio motu investigations of the court.
    A BSA cannot override Afghanistan’s ICC membership to grant impunity. Under article 53 of the 1969 Vienna Convention, a treaty which conflicts with a peremptory norm of general international law is void.
    So. Even if a BSA were signed for appearances sake, US interference there will be strictly covert, that is, illegal. Individual knuckle-draggers dragooned to sneak around there risk ending as fugitives like Robert Lady or convicts like Keith Idema. Any new prosecution has potential to set precedents that further undercut US impunity. It’s not a deterrent effect but an inhibition that gets more powerful over time.

  2. Jeff Kaye says:

    The military atrocities are not an aberration. It is part of the “counter-terror” program of the U.S., which is in fact involves terror against perceived rural allies of the Taliban. This kind of criminal counterinsurgent terror was practiced by the U.S. against the Huk in the Philippines, against the Vietnamese, and elsewhere. It is also the kind of terror practiced by other NATO allies, such as the French in Algeria, and the UK in Malaysia.

    Torture in a totally different fashion — “touchless” torture — continues as well under the auspices of the Army Field Manual.

    Everywhere one looks one sees the fingerprints of what has become a torture state.

  3. liberalrob says:

    Signing any agreement that confers immunity from prosecution on foreign soldiers is tantamount to declaring yourself a colony of that foreign power. Iraq refused to sign it, and Afghanistan should do the same. It’s a despicable act to even try to force a nation to grant immunity to foreign soldiers; wasn’t that one of the charges against George III enumerated in our own Declaration of Independence? How embarrassing. And shameful. Shame on us. This is a dark period in our history and the sooner it’s brought to an end the better.

  4. wallace says:

    Within days of 9/11, Senator Helms tried to introduce the American Servicemembers’ Protection Act. In reality, the current legal imperialism on the planet, tried to insulate their fighters from any and all repercussions from war crime prosecutions by any means possible. In fact, this is the EXACT definition of legal imperialism. When a power recognizes they are the preeminent power on the face of the planet, all so called “laws” legislated by the legal imperialism are meant to “legalize” their actions, regardless of lesser powers who would spit in their face. Hence our current predicament. Welcome to the abyss. I suggest you stop thinking about how to stop it and concentrate on how to find a place on the planet where your family can survive in the aftermath of the United States Government failure to protect you.

  5. Garrett says:

    On the ICC, they have a preliminary investigation open for Afghanistan, which I think is the longest running open investigation ever: Crimes within the court’s jurisdiction have been committed, including by international forces, but there is a failure of will.

    But the ICC is at least pressuring the U.S. administration on the matter.

      • Garrett says:

        Especially with the new details in the Amnesty report on the Wardak torture: I don’t think I’ve ever seen a story like this completely failing to get any traction.

        • Jim White says:

          Yeah, on the Wardak stuff, Karzai told us immediately about the crimes. Matthiew Aikins then dug out lots more detail and confirmed the US role in crimes. Remember that it was over a year ago that Afghanistan claimed to have Zakaria Kandahari in custody, so he would make for a very important witness in whatever proceeding ever comes about.

          And from the US on Wardak? Crickets.

        • Jeff Kaye says:

          Never seen such a crime ignored? Why I’ve seen massive crimes glorified! (Think of bombing of Baghdad, bombing of Belgrade, etc.)

          Also, everyday, ongoing torture used in AFM for years is also ignored.

          Torture at Bagram was ignored.

          US imperialism has killed millions of people, and that is ignored by media, too. So really, Wardak is no anomaly.

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