Physicians for Human Rights

Physicians for Human Rights (PHR) mobilizes health professionals to advance the health and dignity of all people through actions that promote respect for, protection of, and fulfillment of human rights. PHR has a track record of more than 20 years documenting torture around the world, including in Turkey, Chile, Chechnya, Kosovo, Israel, India, and Chiapas, Mexico. PHR has extensive expertise in evaluating survivors of torture as well as experience with prisoner health issues. PHR was one of the lead initiators and authors of the Istanbul Protocol on the investigation and documentation of torture, adopted as an official document by the United Nations in 1999.

As one of the original steering committee members of the International Campaign to Ban Landmines, PHR shared the 1997 Nobel Prize for Peace.

About PHR’s Campaign Against Torture

PHR has documented the systematic use of torture by the United States during its interrogations of detainees at US detention facilities, including those at Guantánamo Bay, in Iraq and Afghanistan, and elsewhere. It has previously published two groundbreaking reports on the human impact and the legality of abusive interrogation tactics authorized by the Bush Administration: Break Them Down: Systematic Use of Psychological Torture by US Forces and Leave No Marks: “Enhanced” Interrogation Techniques and the Risk of Criminality. PHR has repeatedly called for an end to the use of the “enhanced” tactics by all US personnel, an end to all health professional participation in interrogations, a full Congressional investigation of the use of psychological and physical torture by the US Government, and accountability for perpetrators.

PHR has successfully organized and mobilized thousands of health professionals and helped to secure the leadership of the major health professional associations to develop ethical guidelines related to interrogation that protect against medicine and science being employed to aid the abuse of prisoners. PHR’s work contributed to the adoption of ethical standards by the American Medical Association, the World Medical Association, and the American Psychiatric Association prohibiting direct participation of physicians in interrogations. PHR has helped move the American Psychological Association (APA) to prohibit the involvement of its members in the Central Intelligence Agency’s “enhanced” interrogation techniques and has supported a movement within the APA to end the direct participation of psychologists in interrogations.

Physicians for Human Rights
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Tel. (617) 301.4200

Washington Office
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www.physiciansforhumanrights

Acknowledgments

The lead author for this report was Farnoosh Hashemian, MPH, Research Associate, Physicians for Human Rights (PHR), who was joined in its writing by Sondra Crosby, MD, Boston Center for Refugee Health and Human Rights; Vincent Iacopino, MD, PhD, PHR Senior Medical Advisor; Allen Keller, MD, Bellevue/NYU Program for Survivors of Torture; Leanh Nguyen, PhD, Bellevue/NYU Program for  Survivors of Torture; Onder Ozkalipci, MD, International Rehabilitation Council for Torture Victims; Christian Pross, MD, Berlin Center for the Treatment of Torture Victims; and Juda Strawczynski, LLB, former PHR Research Fellow. Leonard Rubenstein, JD, PHR President, oversaw the report and provided crucial guidance throughout on report’s structure and content; Alicia Yamin, JD, MPH, former PHR Director of Research and Investigations oversaw the planning and implementation of the investigation its initial stages.

Scott Allen, MD, PHR Medicine as a Profession Fellow; Vincent Iacopino, MD, PhD, PHR Senior Medical Advisor; and Brigadier General Stephen Xenakis, MD, USA (Ret.) offered detailed comments on the medical evaluations and, along with Drs. Ozkalipci and Pross, reviewed the medical records of one of the detainees held at Guantánamo. Nathaniel Raymond, PHR Senior Communications Strategist, reviewed, edited, and provided technical expertise for the report. This report was edited and prepared for publication by Tara Gingerich, JD.

This report has benefited from review by Shereef Akeel, JD, Akeel & Valentine, PLC; Barbara Ayotte, former PHR Director of Communications; John Bradshaw, JD, PHR Director of Public Policy; Carolyn Patty Blum, JD, Consultant, Center for Constitutional Rights; Susan Burke, JD, Burke O’Neil, LLC; Colonel Daniel L. Cohen MD, USAF (Ret.); Frank Davidoff, MD, and Vice President PHR Board of Directors; Benjamin Davies, former PHR Chief of Staff; Frank Donaghue, PHR Chief Executive Officer; Sebnem Korur Fincanci, MD, Professor of Forensic Medicine, Istanbul University; Justice Richard J. Goldstone, Justice of the South African Constitutional Court, Retired, and member of PHR Board of Directors; Emi MacLean, JD, Staff Attorney, Center for Constitutional Rights; Paul Rocklin, JD, former PHR Senior Program Associate; Barry Rosenfeld, PhD, Professor and Director of Clinical Training, Fordham University; Susannah Sirkin, PHR Deputy Director; and Ronald Waldman, MD, MPH, Professor of Clinical Population and Family Health, Mailman School of Public Health, Columbia University, and member of PHR Board of Directors.

PHR is grateful for the dedication and extensive research assistance over many months by Klara Bolen. The following individuals contributed to legal and other research: Patrick Childress, Joanne Cossitt, Jesse Hamlin, Louise Place, Brent Savoie, and Daniel Scarvalone. Remy Gerstein and Majid Jumoor assisted with the logistics and played an essential role in ensuring that investigations were carried out successfully.

PHR extends special gratitude to the following organizations for their pivotal support: Akeel & Valentine, PLC, Bellevue/NYU Program for Survivors of Torture, Berlin Center for the Treatment of Torture Victims,  Boston Center for Refugee Health and Human Rights, Burke O’Neil, LLC, Center for Constitutional Rights, Fordham University, and International Rehabilitation Council for Torture Victims. Two centers affiliated with IRCT facilitated the medical evaluations and made this investigation possible; they cannot be named to protect the confidentiality of the participants.

PHR thanks the JEHT Foundation, the  Morton and Jane Blaustein Foundation, The Open Society Institute and the Herbert Block Foundation for financial support that made this investigation and report possible. PHR would like to acknowledge the artist Fernando Botero for granting PHR permission to use one of the paintings from his Abu Ghraib series on the cover of this report.

We are most indebted, however, to the eleven former detainees who were willing to share their painful experiences with us, sometimes at significant risk to themselves and their families.

List of Acronyms

BHS: Behavioral Health Science Teams
CIA: Central Intelligence Agency
CIDT: Cruel, Inhuman, or Degrading Treatment
DoD: Department of Defense
DTA: Detainee Treatment Act of 2005
ECHR: European Court of Human Rights
ERB: Ethics Review Board
FBI: Federal Bureau of Investigation
IACHR: Inter-American Court of Human Rights
ICRC: International Committee of the Red Cross
ICCPR: International Covenant on Civil and Political Rights
ICTR: International Criminal Tribunal for Rwanda
ICTY: International Criminal Tribunal for Yugoslavia
IRF: Immediate Reaction Force
IRCT: International Rehabilitation Council for Torture Victims
MCA: Military Commissions Act of 2006
MDD: Major Depressive Disorder
NOS: Not Otherwise Specified
OLC: Office of Legal Counsel, Department of Justice
PHR: Physicians for Human Rights
POW: Prisoner of War
PTSD: Post-traumatic Stress Disorder
SERE: Survival, Evasion, Resistance, and Escape training
SOP: Standard Operating Procedure
TVPA: Torture Victims Protection Act of 1991
WCA: War Crimes Act

Preface

This report tells the largely untold human story of what happened to detainees in our custody when the Commander-in-Chief and those under him authorized a systematic regime of torture. This story is not only written in words: It is scrawled for the rest of these individual’s lives on their bodies and minds. Our national honor is stained by the indignity and inhumane treatment these men received from their captors.

The profiles of these eleven former detainees, none of whom were ever charged with a crime or told why they were detained, are tragic and brutal rebuttals to those who claim that torture is ever justified. Through the experiences of these men in Iraq, Afghanistan, and Guantanamo Bay, we can see the full-scope of the damage this illegal and unsound policy has inflicted —both on America’s institutions and our nation’s founding values, which the military, intelligence services, and our justice system are duty-bound to defend.

In order for these individuals to suffer the wanton cruelty to which they were subjected, a government policy was promulgated to the field whereby the Geneva Conventions and the Uniform Code of Military Justice were disregarded. The UN Convention Against Torture was indiscriminately ignored. And the healing professions, including physicians and psychologists, became complicit in the willful infliction of harm against those the Hippocratic Oath demands they protect.

After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

The former detainees in this report, each of whom is fighting a lonely and difficult battle to rebuild his life, require reparations for what they endured, comprehensive psycho-social and medical assistance, and even an official apology from our government.

But most of all, these men deserve justice as required under the tenets of international law and the United States Constitution.

And so do the American people.

Major General Antonio Taguba, USA (Ret.)
Maj. General Taguba led the US Army’s official investigation into the Abu Ghraib prisoner abuse scandal and testified before Congress on his findings in May, 2004.

Executive Summary

This report provides first-hand accounts and medical evidence of torture and cruel, inhuman, or degrading treatment or punishment (“illtreatment” ¹) of eleven former detainees who were held in US custody overseas. Using internationally accepted standards, Physicians for Human Rights (PHR) conducted medical evaluations of the former detainees to document the severe, long-term physical and sychological consequences that have resulted from the torture and illtreatment. The evaluations provide evidence of violation of criminal laws prohibiting torture and of the commission of war crimes by US personnel.²

Four of the men evaluated were either arrested in or brought to Afghanistan between late 2001 and early 2003 and later sent to Guantánamo Bay, Cuba, where they were held for an average of three years before release without charge. The other seven were detained in Iraq in 2003 and released without charge later that year or in 2004, with an average period of detention of six months. All of the former detainees evaluated by PHR reported having been subjected to multiple forms of torture or ill-treatment that often occurred in combination over a long period of time.

The medical evaluations were based in each case on intensive two-day clinical interviews that included diagnostic testing and, in two cases, review of medical records. With this evidentiary record, this report provides the most detailed account available thus far of the experience of detainees in US custody who suffered torture — a war crime — at the hands of US personnel. Additionally, this report provides further evidence of the role health professionals played in facilitating detainee abuse by being present during torture and ill-treatment, denying medical care to detainees, providing confidential medical information to interrogators, and failing to stop or document detainee abuse.

Methods of torture experienced by the former detainees evaluated by PHR included interrogation and detention practices such as isolation, sleep deprivation, forced nakedness, severe humiliation and degradation, and sensory deprivation that were officially authorized by military and civilian officials during certain periods when these men were incarcerated.³ Additional practices recounted by the interviewees including beatings and other forms of severe physical and sexual assault that, while not officially authorized by government documents now part of the public record, came to be part of a regime of brutality at the facilities where the detainees were held.

This report demonstrates that the permissive environment created by implicit and explicit authorizations by senior US officials to “take the gloves off”⁴ encouraged forms of torture even beyond the draconian methods approved at various times between 2002 and 2004.5 In an environment of moral disengagement that countenances authorized techniques designed to humiliate and dehumanize detainees, it is not surprising that other forms of human cruelty such as physical and sexual assault were practiced. The fact that these unauthorized torture practices happened over extended periods of time at multiple US detention facilities suggests that a permissive command environment existed across theatres and at Several levels in the chain-of-command. This climate allowed both authorized and unauthorized techniques to be practiced, apparently without consequence.

Given the limited number of detainees evaluated, the findings of this assessment cannot be generalized to the treatment of all detainees in US custody. The patterns of abuse documented in this report, however, are consistent with numerous governmental and independent investigations into allegations of detainee ill-treatment,⁶ making it reasonable to conclude that these detainees were not the only ones abused, but are representative of a much larger number of detainees subjected to torture and ill-treatment while in US custody.

Methods
PHR identified individuals through referring nongovernmental organizations and law firms that provide legal representation to former and current detainees in US custody. The evaluations were conducted between December 2006 and September 2007, after consent was obtained by the individuals. No former detainee PHR located who was eligible and consented to an evaluation was excluded from the study. For each former detainee, a team of two experienced clinicians evaluated the individual and documented allegations of torture and ill-treatment in accordance with the guidelines for assessing physical and psychological evidence of torture set out in the Istanbul Protocol, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter Istanbul Protocol).⁷ Sources of information for the medico-legal reports include the clinical interview, psychological testing, physical examinations and medical diagnostic tests. The Guantánamo Bay detention medical records of one individual and an independent medical record of another former detainee were available for review as well. In each case, the clinicians provided opinions on possible torture and ill-treatment based on correlations between individual allegations of torture and specific physical and psychological evidence. They found no evidence of deliberate exaggeration in any case. The study was approved by PHR’s Ethics Review Board. In order to protect confidentiality, the names of the individuals evaluated were changed and information that could potentially identify the former detainees has been omitted.

Summary of Findings

Synopses of the Cases of Former Detainees Profiled

The following summaries of three evaluations of the eleven cases illustrate the torture and ill—treatment that the detainees experienced and the resulting long-term physical and psychological harm. The torture and ill-treatment described were corroborated by the medical evidence.

Kamal is in his late forties. He served in the Iraqi Army during the 1980s and later became a businessman and Imam of a local mosque. In September 2003 he was arrested by US forces. At the time of his arrest, he was beaten to the point of losing  consciousness. After being brought to Abu Ghraib prison, he was kept naked and isolated in a cold dark room for three weeks, where both during and in between interrogations he was frequently beaten, including being hit on the head and in the jaw with a rifle and stabbed in the cheek with a screwdriver.

He was then placed in isolation in a urine-soaked room for two months. When Kamal was allowed to wear clothes, they were sometimes soaked in water to keep him cold. On approximately ten occasions he was suspended in a stress position, causing numbness that lasted for a month. He was made to believe that his family members were also in prison and that they were being raped and tortured. He recounted, “[T]hey were telling me, making me hear voices of children and women, and told me they were my children and [wife].” He was eventually transferred to a tent area of Abu Ghraib, where he remained for seven months until his release in June 2004.

PHR’s clinicians found physical and psychological evidence consistent with the abuse Kamal reported. He continues to experience chronic pain in his jaw and numbness from the suspensions. He also meets diagnostic criteria for several psychiatric diagnoses, including major depressive episodes, a panic disorder, and posttraumatic stress disorder (PTSD) that are attributable to his experience in detention. Particularly striking is the severity of Kamal’s depressive symptoms, with feelings of hopelessness, worthlessness, and guilt, and difficulty sleeping. His symptoms are indeed so severe that, in the opinion of PHR’s clinicians, they would qualify him for hospitalization in the United States.

Amir is in his late twenties and grew up in a Middle Eastern country. He was a salesman before being arrested by US forces in August 2003 in Iraq. After his arrest, he was forced, while shackled, to stand naked for at least five hours. For the next three days, he and other detainees were deprived of sleep and forced to run for long periods, during which time he injured his foot. After Amir notified a soldier of the injury, the soldier threw him against a wall and Amir lost consciousness. Ultimately, he was taken to another location, where he was kept in a small, dark room for almost a month while being subjected to interrogations that involved shackling, blindfolding, and humiliation. Approximately one month later, he was transferred to Abu Ghraib. At first he was not mistreated, but then was subjected to religious and sexual humiliation, hooding, sleep deprivation, restraint for hours while naked, and dousing with cold water. In the most horrific incident Amir recalled experiencing, he  was placed in a foul-smelling room and forced to lay face down in urine, while he was hit and kicked on his back and side. Amir was then sodomized with a broomstick and forced to howl like a dog while a soldier urinated on him. After a soldier stepped on his genitals, he fainted. In July 2004, he was transferred to the prison at Camp Bucca, where he reported no abuse. He was returned to Abu Ghraib in November 2004 and released two days later.

Amir continues to experience physical symptoms consistent with the abuse he reported. Physical examination revealed features consistent with his account, including tenderness of one of his testicles and rectal tearing. Psychologically, he continues to suffer from debilitating symptoms of severe PTSD, disturbed sleep, moodiness, anxiety, sexual dysfunction, hostility and outbursts of anger, and very frequent suicidal thoughts. He has changed from a stable provider for his family to an unemployed man. Although stressors related to the war in Iraq may exacerbate his symptoms, his most debilitating symptoms are attributable to his experience of torture and sexual violation. “No sorrow can be compared to my torture experience in jail,” he said. “That is the reason for my sadness.”

Youssef is in his early thirties. Unable to find work in his country of origin, he sought employment in Afghanistan. In late 2001 or early 2002, Youssef was detained as he attempted to cross the Afghanistan-Pakistan border without a passport while trying to return home. He was held in a Pakistani prison for two months, where he was often shackled in unsanitary conditions and given little food. During this time, he was interrogated by US personnel and eventually hooded, shackled, and transferred to the US detention facility in Kandahar, Afghanistan.

In Kandahar, Youssef was immediately interrogated and subjected to beatings with sticks and fists as well as kicking, although he did not sustain serious injuries at the time. After that, he was stripped naked. The first night he was not allowed to sleep, as guards hit the detainees and threw sand at them. While in Kandahar, Youssef endured forced nakedness, intimidation by dogs, hooding, and repeated assaults by being thrown against a wall. He was subjected to electric shock from a generator, feeling “as if my veins were being pulled out.”

After about six weeks, he was transferred to the US detention facility at Guantánamo Bay, Cuba. During the transatlantic flight he was dressed in an orange suit, fitted with dark goggles and headphones and shackled to the floor of the plane. The tight cuffs caused his wrists to swell. Upon arrival, he was stripped, sprayed with water and examined by a doctor. Like other detainees, he described the conditions at Camp X-Ray as deplorable, with detainees living in cages that were extremely hot and denied anything but a bucket for a toilet. In Camp X-Ray lengthy interrogations accompanied by sleep deprivation began. Small infractions such as speaking with other detainees led to beatings, and a person whom he perceived to be a doctor checked the injuries of the detainees after the beatings. In order to avoid beatings, Youssef was compliant. Nevertheless, the Immediate Reaction Force (IRF) team forced him into stress positions, including sitting on his knees with his hands pressed together behind his back or head and tied to his feet, forcing his legs up.

After approximately three months, Youssef and others were transferred to Camp Delta, where general cell conditions were better, although detainees were rarely let out of their cells. He was beaten once for hiding food in his cell. An IRF team also sprayed him in the eyes with what may have been pepper spray, so that “my whole body would feel like it was burning — not just my face, but my whole body…I felt like I was losing consciousness from the burning.”

His interrogations, which took place almost every other day during his initial period at Guantánamo and he would be kept in the interrogation room for as long as eighteen to twenty hours. He denied having been beaten during the lengthy interrogations or while being held in the interrogation room. Youssef described these episodes as some of his most painful experiences at Guantánamo. He was chained and forced to assume stressful positions; at times, ice-water was poured on him and, at other times, loud music was played. He was deprived of access to the toilet and time for prayer. While being held in the interrogation room, the temperature in the room would be made extremely cold or hot for extended periods of time. Demands for confessions were constant, accompanied by claims by interrogators that his name was found on documents and that his brother, who has leukemia, had been arrested; soldiers also threatened to shoot him. Humiliation was part of the interrogation regime: he was forced to look at pornography, and soldiers ripped the Koran apart and threw it in the toilet in front of him. He described being horrified by an incident in which a naked woman entered the interrogation room and smeared what he believed to be menstrual blood on him. He reported being given injections of unknown substances against his will, and these injections often caused rashes several hours later. He believes that in some interrogations medical personnel were present and that they examined him  periodically. Although he was not privy to the discussions between the medical personnel and interrogators, it appeared to Youssef that that the medical personnel were being consulted as to whether interrogations should continue. They always did.

At one point while at Camp Delta at Guantánamo, Youssef asked to speak with a psychologist because of the distress and sadness he felt due to the separation from his family. He believes that not only did his interrogators have access to the information he shared with the psychologist, but that they exploited it by threatening that he would spend the rest of his life in Guantánamo. Following this interrogation session, he was moved to what he believed to be the worst section of Camp Delta, where he was not allowed to have a blanket or mattress.

After being transferred out of Camp Delta and signing a form, he was released in the fall of 2003. He was again handcuffed and chained to the floor of the plane during the lengthy flight. Upon returning home, he served over a year of military service, during which he was mostly confined in a psychiatric hospital because he was deemed “too aggressive.”

On physical examination, Youssef was noted to have surgical scars on his wrists consistent with his report of surgery following his release for chronic wrist pain as a result of shackling during his detention. Pain in his right wrist still persists. He also has a scar on the back of his left wrist consistent with the handcuffing he described. While Youssef experienced symptoms of depression before detention, PHR’s evaluators concluded that these symptoms became more pronounced, disabling and chronic as a result of his experience; he also now suffers from moderate PTSD. Many of his physical symptoms, including shortness of breath and “heart problems,” are consistent with a panic disorder. Youssef acknowledged difficulty functioning and has not found steady employment since his detention.

Common Experiences of Torture and Ill-Treatment

Even though the eleven detainees examined by PHR were held at different places, and each person’s experience was unique, certain detention and interrogation practices appear over and over again in the accounts.

Beatings During Arrest, Transport, and Initial Custody

Many of the most severe injuries from beatings that the former detainees reported were sustained shortly after they were arrested. All seven of the men who were detained in Iraq (hereafter referred to as “the Iraqi former detainees”) recounted experiencing violent treatment during their arrests, some of which involved severe physical assault on their family members as well as destruction or looting of their homes.

The beatings inflicted on detainees at US facilities at Bagram and Kandahar in Afghanistan were particularly intense, and included beatings with sticks and fists, kicks to the stomach and genitals and blows to the head. As a result, Haydar, who was held at Kandahar before being transferred to Guantánamo, lost three of his teeth and Rasheed, who was held at both Bagram and Kandahar facilities, lost consciousness and was hospitalized. Similarly, all former detainees held at Guantánamo reported that the most intense and widespread physical beatings they experienced at the facility took place during transfer and shortly after arrival there.

The Iraqi former detainees also reported severe beatings during the first days and weeks of detention at facilities including one at Baghdad International Airport. Hafez, who was held at a US facility at Baghdad International Airport and Abu Ghraib for over seven months, was forced to the ground and beaten severely on his legs and back, causing his lips, forehead, and nose to bleed; he also reported being stripped and having his chest and pubic hair ripped out by hand and being simultaneously beaten, hit, and choked while being doused with cold water.

While physical evidence of beatings often may not be detectable in later medical evaluations, findings from bone scans of six of the former detainees as well as scars and lesions visible during physical examination are consistent with the history of beatings described by the victims.

Deprivation of Basic Necessities and Sanitary  Conditions

All of the former detainees reported frequent denial of basic necessities during periods of their detention; over half of the men evaluated reported being denied food on at least one occasion. Each former detainee also reported being subjected to extreme temperatures during his confinement.

The conditions detainees in Iraq endured were particularly appalling. Among the conditions one or more of the detainees reported were placement in a urine-soaked punishment room, being forced to wear soiled underwear, often for weeks or months at a time, denial of access to food, water and toilets of any kind, and exposure to cold without blankets.

Two of the detainees who were held in Guantánamo during the first year the facility was in operation reported harsh physical conditions and being housed in steel cages. Although as time passed, the physical conditions improved there, deprivation sometimes accompanied by acts of cruelty continued. Haydar reported that in Guantánamo the soldiers would often either spit in or throw out part of their food rations.

Stress Positions: Forced Standing, Handcuffing, and Shackling

All of the former detainees reported having been subjected to painful stress positions that involved having their hands and feet bound for extended periods of times, or suspension from walls or barbed wire. These positions were often coupled with the use of blindfolding, sleep deprivation, isolation, and exposure to temperature extremes, either as components of interrogations or conditions of confinement.

For example, three former detainees evaluated by PHR reported that in Guantánamo they were kept in extremely hot or cold interrogation rooms, chained in a crouching position to a ring on the floor for eighteen to twenty hours. Two of the Iraqi former detainees reported losing consciousness as a result of being subjected to stress positions.

Findings on medical examination were consistent with these accounts. All of the former detainees reported that they continue to suffer from a wide range of musculoskeletal pains. For example, Laith, an Iraqi former detainee who was held in Abu Ghraib for nine months, reported arm numbness and weakness following being suspended by his arms, which is highly consistent with a brachial plexus (nerve group supplying the upper  extremity) injury that often results from suspension.

Isolation, Sensory Deprivation, or Bombardment

A) Prolonged Isolation
All of the former detainees reported being subjected repeatedly to lengthy periods of isolation that ranged from ten days to as long as two months in duration. The interviewees reported that, while being kept in isolation, they were subjected to shackling, blindfolding, physical abuse, humiliation, sexual humiliation, and stress positions, as well as temperature extremes and light control.

During periods of isolation, the Iraqi former detainees consistently reported being kept hooded and naked in small, dark holding cells that made Rahman, who was held at Abu Ghraib for nine months, feel “claustrophobic.” Similarly, former Guantánamo detainees reported that they were repeatedly held in isolation. The psychological impact of isolation and other forms of abuse was enormous. Rasheed engaged in hunger strikes, exhibited psychotic behavior, and even became suicidal after prolonged isolation.

B) Hooding/Blindfolding
Sensory deprivation by means of hooding or other types of blindfolding was frequently used in combination with other techniques in the places the former detainees were held (Afghanistan, Iraq, and Guantánamo Bay, Cuba). According to the detainees, blindfolding and hooding instilled in them a sense of fear, disorientation, and dependency on their captors.

According to the detainees evaluated, sensory deprivation was employed in Afghanistan during arrest and transportation between facilities as well as during interrogations. At Guantánamo, however, the four detainees evaluated experienced hooding only when being transferred. In Iraq, hooding was routinely used during interrogations and general detention and was combined with forced nakedness and isolation, among other techniques.

C) Sensory Bombardment
Eight former detainees reported that sensory bombardment with loud noise or music was utilized frequently in what appeared to be a strategy to disorient them or disrupt detainees’ sleep.

The detainees who were held in Afghanistan reported that they were subjected to loud music over long periods of time, and in one case exposed to powerful flood lights twenty-four hours a day. At Guantánamo, Rasheed reported that during a period of isolation and frequent lengthy interrogations, his cell was bombarded with loud unpleasant noise.

The former detainees reported that in Iraq this technique was combined with forced running, isolation, and sleep deprivation. Similar to three  other Iraqi former detainees, Morad, who was held in various facilities for a total duration of ten months, was subjected to “deafening, loud music” while being held in Saddam Hussein’s former ranch (used as a US detention facility).

Threats of Harm to Detainees and Their Families
Almost all of the detainees reported being threatened with severe harm, most commonly through verbal threats during interrogations. Eight of the eleven men reported that the US military utilized dogs to instill fear in the detainees. Two of the Iraqi former detainees were threatened with execution, and two others were threatened with forced disappearance since they did not have prisoner identification numbers, were unregistered, and therefore considered “ghost” detainees. Youssef recalled being threatened with being shot by a guard during an interrogation in Guantánamo.

Interrogators also told detainees that their families would be killed or severely harmed. Laith told PHR that the interrogators “were threatening me…they were saying ‘Then you will hear your mothers and sisters when we are raping them.’” Interrogators also threatened detainees with harm or torture following their release. Strikingly, transfer to Guantánamo was a threat used on half of the former detainees held in Iraq. Yasser recalled being told he would be sent to Guantánamo “where even dogs won’t live.”

Use of Extreme Temperatures
All of the former detainees reported being exposed to extremes of temperature in their cells. For some of the Iraqi former detainees, this practice was coupled with weeks of isolation and sexual humiliation; for others, this practice was used as a form of group punishment. Four detainees, of whom three were held in Guantánamo, reported that cold water was poured on them during interrogation. In the cases of three individuals who were held in facilities in Iraq, cold water was used in combination with lengthy interrogations, sensory bombardment, beatings, and sexual humiliation.

Electric Shocks, Sexual Assault, and Physical Assault
In addition to the beatings upon arrest, initial detention and transfer described earlier, some of the detainees were physically assaulted again later during their detention. Two former detainees were sodomized with a broomstick or a rifle at Abu Ghraib and three were subjected to electric shock (two in Iraq and one while at Kandahar, Afghanistan).

Physical assaults during detention included being kicked, stepped on, dragged, slapped, and forcefully thrown against a wall. Adeel, who was later transferred to Guantánamo Bay, reported receiving daily beatings while he was held at the Bagram facility. The Iraqi former detainees described being struck with a rifle, stabbed in the cheek with a screwdriver, burned on the chest with a cigarette, and other episodes of severe physical abuse during interrogations that in some cases resulted in loss of consciousness. Five former detainees reported soldiers exploiting detainees’ injuries. For example, Yasser, who was held at Abu Ghraib for four months, stated that his injured hand was deliberately stepped on and squeezed by  soldiers at Abu Ghraib.

Of the Guantánamo detainees, only one reported routine physical abuse: Rasheed reported frequent beatings and one episode of harsh beatings during an interrogation. Youssef and Haydar stated that multiple times the IRF teams (referred to by the former detainees as the “riot police”) subjected them to chemical spray and pressurized water, which left Haydar “writhing on the ground in pain.”

Many of the physical assaults reported would likely have resulted in bruises and soft tissue injuries that would not leave lasting physical marks. However, the bone scan findings of six individuals, and scars and healed lesions observed on physical examination of all detainees corroborated their specific allegations of physical assault. Scarring on Yasser’s thumbs was highly consistent with the scarring caused by electric shock. Further, reports of rape and sexual assault were corroborated in two cases by medical examination.

Sleep Deprivation
Nine of the eleven former detainees evaluated reported that they were often subjected to sleep deprivation, in combination with other techniques, through loud noise or banging, use of cold water, or stress positions. Laith explained: “If you ask me about being chained to the window [standing], it was every day. They were especially doing that at night, to prevent me from me sleeping.”

Sexual, Religious, Cultural, and Other Forms of Degrading Treatment
According to detainee accounts, humiliation was pervasive in detention facilities in both Iraq and Afghanistan. Guards taunted, shamed, insulted, spat and urinated upon, and embarrassed detainees, forced most to be naked, observed some on the toilet, wrote degrading phrases in indelible marker on the body of one, and forcibly cut the beards and shaved the heads of others. In one incident, Amir reported having been pulled by a leather dog leash in Abu Ghraib and was ordered to “howl like dogs do.” He was repeatedly kicked when he refused to do so.

Cultural and religious humiliation was reported by more than half of the individuals evaluated, and took many forms, including taunting men at prayer and desecrating the Koran. Rasheed stated that in protest of such practices, detainees in all five blocks of Guantánamo held a simultaneous uprising by banging their heads against the walls and demanding “an end to the mocking of their religion.”

One of the worst forms of humiliation detainees reported, though, was sexual, and it was reported by virtually all of the individuals evaluated by PHR, at facilitiesin Afghanistan, at Guantánamo, and in Iraq. The forms of sexual humiliation were as varied as they were cruel:parading men naked in front of female soldiers, forcing them to disrobe before female interrogators, touching or provoking them in a humiliating way, and forcing them towatch pornography or real or feigned sexual activities. Furthermore, nakedness became the normal mode of operation in the Iraqi detention facilities, especially in Abu Ghraib, where the detainees were forced to be naked for long periods of time. Kamal stated that his genitals were touched multiple times during interrogations in Abu Ghraib. Further, he reported that when the American soldiers “got me naked, they used to bring all female soldiers to look at me and say, ‘Hello, Imam’.”

Witnessing Torture and Cruel Treatment
More than half of the former detainees evaluated by PHR recounted witnessing torture and other cruel, inhuman or degrading treatment towards other detainees by US personnel. Two detainees witnessed other detainees being bitten by dogs; others witnessed detainees being subjected to various forms of sexual humiliation. In Abu Ghraib, Rahman recounted that he was forced to watch other detainees being forced to simulate anal intercourse and recalled that the detainees “were begging, ‘This is a sin against our religion, please show mercy.’ The soldiers were pushing them into each other, and these guys were trying to push away, and this was more than half an hour and this was in front of our eyes.”

Health Professional Complicity and Denial of Medical Care
Health professionals in detention settings are required by domestic and international standards not only to provide medical care to detainees but to protect their health and well-being. A few of the former detainees reported that they received appropriate care from health professionals while in US custody.

⁸ Adeel was diagnosed and treated for tuberculosis while detained in Guantánamo, and Morad received “humane treatment” from a doctor for his diabetic foot ulcer.

At the same time, former detainees reported that medical personnel played a role in facilitating torture and ill-treatment in all three theatres of operations through the monitoring of abuse during interrogations, providing medical information to interrogators, denying medical care, and failing to take action to stop and/or document detainee abuse. Three of the Iraqi former detainees and one former Guantánamo detainee reported that individuals acting in a health professional capacity examined their condition during an episode of torture or physical abuse but made no effort to stop it. Two former Guantánamo detainees suspected that the psychologist shared information about them with interrogators.

Several men reported facing difficulties accessing care while in detention. At Guantánamo, Youssef recounted that he never received treatment despite his “many, many” requests for medical attention to his persistent stomach pain, as well as for swelling in his wrists. Two men detained at Abu Ghraib reported being denied medical treatment, including for injuries inflicted by soldiers. In response to PHR’s query whether or not any doctors treated Amir’s injuries in Abu Ghraib; he responded: “Did I need to ask for help? I was there naked and bleeding… .These were not real doctors.”

In addition, all the former detainees from Guantánamo reported that they were given injections or medication without their consent and medical procedures were performed on them against their will.

The medical records of one of the former detainees, Rasheed, illuminate the role of medical personnel at Guantánamo, and PHR’s evaluators were able to compare his account with entries in his medical file. The records are largely consistent with his own account: shortly after arriving at Guantánamo in 2002, Rasheed’s mental health began to deteriorate; he attempted suicide and other acts of self-harm, including self-mutilation. Mental health staff at Guantánamo responded with heavy doses of medication, which made him feel unbearably hot and made his skin and joints ache. When his acts of self-harm continued, medical staff placed him in restraints and treated his access to bottled water and blankets as privileges. In response to his repeated requested to be removed from isolation, the medical files note that the psychiatric personnel “informed him that [they] had no control over that and told him to ask his interrogator to have him moved.”

It is not clear exactly how long Rasheed was kept in isolation or how long Rasheed’s interrogations continued after his severe signs and symptoms appeared —although it appears to have been at least one year. What is clear, though, is that during the critical periods in 2002 and 2003 when his health severely deteriorated, his health condition did not result in halting interrogations, nor in relieving a regime of isolation and sleep deprivation; nor do the records indicate that the medical staff connected his ill-treatment — including use of isolation, sleep deprivation, physical assault, violation of his religious and moral codes, and the use of sexual humiliation — to the obvious decline in his mental condition. Nor is there evidence from the records that the medical staff intervened to end his torture, except for one note with a recommendation that resulted in a brief move out of isolation. Instead, the thinking of the medical staff appears reflected in a medical note that mentions him being subject to “routine stressors of confinement.” Further, one of the most likely diagnoses for Rasheed’s psychological symptoms, PTSD, is never mentioned in the medical record. The medical staff thus not only failed to document that Rasheed was being tortured through the use of isolation and other methods (and presumably did not report it), but also became complicit themselves in his abuse. Indeed their mental health interventions may have worsened Rasheed’s suffering by patching him up so that further interrogation and torture could be inflicted.

Short-Term and Lasting Harm from Torture and Ill-Treatment
All the detainees experienced severe, even excruciating physical pain from being kicked, punched, choked, shocked or sodomized, and many were terrorized by both the experience of the assaults on them and threats of more to come. Most of the detainees lost consciousness at least once as a result of beatings or other physical assaults. Some experienced bruising and trauma to their genitals. Some of the men were not only severely injured as a result of torture, but they then had to endure additional pain from the exploitation of those injuries by their tormenters. Almost all of the men PHR interviewed continue to experience physical after-effects from the torture they experienced, including chronic headaches as well as persistent pain in their limbs, joints, back, muscles, and ligaments from being beaten or kept suspended or in other stress positions for long periods of time.

The experience of torture was horrifying to the men as it was taking place. Men experienced shame, humiliation, and terror that they or their loved ones would suffer even more; others were terrified by the claustrophobic conditions of isolation. These in turn brought about symptoms ranging from chest pain to severe anxiety to sleeplessness. One reported: “I was having really bad nightmares… I felt like I couldn’t breathe.” According to medical files, during an interrogation session in Guantánamo one detainee had a seizure and “was unresponsive and fell… [while] his feet [were] buckled.”

Lasting Psychological Consequences of Ill-Treatment
With one exception, the former detainees have experienced and continue to experience severe psychological effects of torture and ill-treatment as a result of their detention in US custody. All but one feel utterly hopeless and isolated, and lack the ability to sleep well, work, or engage in normal social relationships with their families. Seven individuals disclosed having contemplated suicide either while in detention or after being released.

Most of the released detainees, to this day, live with severe anxiety, depression, and post-traumatic stress disorder, including intrusive recollections of trauma suffered in detention, hyperarousal (persistent symptoms of increased arousal, e.g., difficulty falling or staying asleep, anger, and hypervigilance), avoidance and emotional numbing behavior. PHR’s clinicians determined that these symptoms were directly related to the torture and ill-treatment reported having taken place while in US custody, even after taking into account the fact that the released Iraqi former detainees are living in a war-torn environment. Amir explained, “These are the memories that I can never forget. I want to forget, but it is impossible.”

For the four detainees who had experienced symptoms of depression or other mental disorders prior to detention, torture and ill-treatment by the US Personell severely exacerbated these conditions, and in one case it ignited such deep despair and dysfunction as to lead the detainee to repeated suicide attempts while at Guantánamo.

Diminution of Social and work Life After Detention
Many former detainees reported encountering social stigma and fear in their communities as a result of their status as former US detainees. Some relocated, and others attempted to do so unsuccessfully. All except one have lost their livelihood and are facing financial hardships, and many were concerned about their physical safety and security. These fears are not unfounded as three Iraqi former detainees were rearrested and detained by both American forces and the Iraqi government, though subsequently released. Since the interviews were completed, PHR has authoritatively learned that one of the former Guantánamo interviewees has been arrested in his home country and is still being detained.

Legal Prohibitions Against Torture and Ill-Treatment
All of the abusive interrogation techniques and patterns of ill-treatment endured by these eleven men — including beatings and other forms of severe physical and sexual assault, isolation, sleep deprivation, forced nakedness, severe humiliation and degradation, and sensory deprivation, many of which were experienced over long periods of time and often in combination with other prohibited acts — constituted
acts of torture as well as cruel, inhuman or degrading treatment under domestic criminal statutes and international human rights and humanitarian treaties, including the Convention Against Torture and the Geneva Conventions, that were in effect at the time the acts were committed.

According to courts and entities responsible for interpreting the Convention Against Torture, including the UN Special Rapporteur on Torture and the UN Committee Against Torture, each of the interrogation techniques and conditions of incarceration and treatment identified in this report, when considered on its own, constitutes prohibited conduct in the form of torture or cruel, inhuman or degrading treatment or punishment. In fulfilling its obligation to assess and report upon the human rights conditions in other countries, the US State Department relies upon international human rights treaties including the Convention Against Torture; in innumerable instances, it has identified the very practices evidenced by this study, when committed in foreign countries, as torture or cruel, inhuman or degrading treatment or punishment. In addition, based on the severityof physical and psychological pain and suffering caused by these practices, the Istanbul Protocol has determined that they constitute torture and/or ill-treatment.9 Likewise, the medico-legal evidence leaves little doubt that the interrogation methods used by US personnel constitute torture under the US Torture Act,¹⁰ the Uniform Code of Military Justice (UCMJ),¹¹ and other laws.

Recommendations
Based on the findings of this investigation, the United States should take the following actions:

1. The executive branch must repudiate all forms of torture and cruel, inhuman or degrading treatment. It should explicitly and in writing establish a uniform standard of conduct for all agencies that prohibits any of its military, intelligence or other officials, including all forms of contract personnel, from engaging in torture and cruel, inhuman or degrading treatment, including but not limited to any of the following interrogation or conditions of confinement methods, either alone or in combination:

• Stress positions
• Beatings and other forms of physical assault
• Use of extremes of temperature
• Waterboarding or any other form of simulated drowning¹²
• Threats of harm to the detainee, his family, or friends
• Sleep deprivation
• Sensory bombardment through the use of extreme noise and/or light
• Violent shaking
• Religious, cultural, and sexual humiliation including, but not limited to, forced nakedness
• Prolonged isolation
• Sensory deprivation, including, but not limited to, hooding and blindfolding
• Use of psychotropic, mind-altering, or other drugs for the purpose of decreasing resistance or gaining information
• Mock execution
• Exploitation of phobias, psychopathology, or physical vulnerability
• Rape and sexual assault
• Electric shocks
• Deprivation of basic necessities and sanitary conditions

Congress should enact into law the prohibitions listedabove and establish criminal liability for their violation.

2. The executive branch and Congress should establish an independent commission to fully investigate and publicly report on the circumstances of detention and interrogation in Bagram, Kandahar, and elsewhere in Afghanistan, Iraq, Guantánamo Bay, and other locations since 2001. This independent commission should have subpoena power to compel witnesses and have full access to all classified materials concerning interrogation techniques and conditions of detention, including medical records and documentation by behavioral health science consultant personnel, in order to establish a full public record. The investigation should extend to individuals in the position of making policy as well as those who carried those policies out, including all healthcare professionals who were in the position of providing care or supporting the interrogation of detainees.

3. All individuals who played any role in the torture or ill-treatment of detainees, including those who authorized the use of methods amounting to torture or exercised command authority over them, should be held to account through criminal and civil processes (such as disciplinary action). Officials at every level should be held accountable for crimes they committed or for the acts of officials subordinate to them. Health professionals, both civilian and uniformed, who engaged in or facilitated the abuse of detainees and/or failed to report torture and ill-treatment should be investigated, appropriately sanctioned, and disciplined via the Department of Defense, other executive branch agencies, and state licensing boards.

4. The government should issue a formal apology to detainees who were subjected to torture and/or illtreatment as part of US military and intelligence operations since fall 2001 in Afghanistan, Iraq, Guantánamo Bay, Cuba, and elsewhere.

5. The government should establish a fair process for compensation and victim assistance, including access to rehabilitation and re-integration services, for individuals subjected to torture or ill-treatment in US custody.

6. All places of detention operated by the United States should be subject to monitoring by international bodies that investigate detainee treatment and are capable of reporting findings to the public and government, including the UN Special Rapporteur on Torture, the UN Committee Against Torture, and the International Committee of the Red Cross. These organizations tasked by treaties to which the United States is a party must be granted full access to detainees, their medical records, and all other pertinent files documenting past and current treatment of detainees during their incarceration. Furthermore, Congressional and executive branch oversight of US military and intelligence activities relevant to detainee treatment and interrogation should be immediately strengthened and improved.

7. The US Department of Justice should publicly
release all legal opinions and other memoranda
concerning standards regarding interrogation and
detention policy and practices.

1 Ill-treatment refers to “cruel, inhuman or degrading treatment or
punishment” as is defined in the UN Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR. 39th Sess.
Supp. No. 51, entered into force June 26, 1987, U.N. Doc. A/Res/39/46,
available at http://www.unhchr.ch/html/menu3/b/h_cat39.htm [hereinafter
UN Convention Against Torture].

2 The definition of US personnel for the purpose of this report encompasses:
service members with the US Armed Forces, US civilian
personnel of other government agencies outside the Department of
Defense, and US government private contractors. This definition is
intentionally broad due to the fact that the detainees evaluated often
knew little specific information about the affiliation of the personnel
at the facilities where they were held, other than that they were
Americans in most cases and often wore US military uniforms.

3 Relevant documents containing these authorizations are included
in two published books: Jameel Jaffer & Amrit Singh, Administration of
Torture (2007); The Torture Papers: The Road to Abu Ghraib (Karen J.
Greenberg & Joshua L. Dratel eds., 2005).

4 Cofer Black, head of the CIA’s counterterrorist center, famously told
a September 26, 2002 Congressional hearing, “After 9/11, the gloves
came off.” Joint Investigation Into September 11th: Hearing Before the
Joint House-Senate Intelligence Comm., 109th Cong. (2002) (statement
of Cofer Black, Former Chief of the Counterterrorist Center, Central
Intelligence Agency). According to a July 2007 Vanity Fair article,
William Haynes, General Counsel of the Department of Defense, told
the “admiral in charge of detainees in Afghanistan “to ‘take the gloves
off’ and ask whatever he wanted” in the questioning of John Walker
Lindh.” Katherine Eban, Rorschach and Awe, Vanity Fair Online, July 17,
2007. available at http://www.vanityfair.com/politics/features/2007/07/
torture200707?printable=true&currentPage=all.

5 See supra note 3.

6 Hina Shamsi, Human Rights First, Command’s Resp onsibility: Detainee
Deaths in U.S. Custody in Iraq and Afghanistan (2006), available at http://
www.humanrightsfirst.info/pdf/06221-etn-hrf-dic-rep-web.pdf;
Amnesty International, Cruel. Inhuman. Degrades us All. Stop Torture
and Ill-Treatment in the “War on Terror” (2005), available at http://web.
amnesty.org/library/index/engACT400102005; Human Rights Watch,
“No Blood, No Foul”: Soldiers’ Acc ounts Of Detainee Abuse In Iraq (2006),
available at http://www.hrw.org/reports/2006/us0706/ [hereinafter
HR W No Blood]; Gen. Randall Schmidt & Brig. Gen. John Furlow, U.S.
Army, Investigation into Fbi Allegations of Detainee Abuse at Guantanamo
Bay, Cuba Detention Facility (2005), available at http://www.defenselink.
mil/news/Jul2005/d20050714report.pdf [hereinafter Schmidt Report];
Major General Antonio Taguba, Article 15-6: Investigation of the 800th
Military Police Brigade (2004), available at http://www.globalsecurity.
org/intell/library/reports/2004/800-mp-bde.htm [hereinafter
Taguba Report]; Situation of Detainees at Guantánamo Bay, U.N. ESCOR
Comm’n on Human Rights, 62nd Sess., Agenda Items 10-11, U.N.
Doc E/CN.4/2006/120 (2006), available at http://www.ohchr.org/
english/bodies/chr/docs/62chr/E.CN.4.2006.120_.pdf [hereinafter
UN Guantánamo report]; Allen S. Keller, Torture in Abu Ghraib, 49
Persp ectives in Biology and Medicine 553 (2006), available at http://muse.
jhu.edu/login?uri=/journals/perspectives_in_biology_and_medicine/
v049/49.4fabrega.pdf; Office of the Insp ector Gen., U.S. Dep’t of Justice, A
review of the FBI ’s Involvement in and Observation of Detainee Interrogations
in Guantánamo Bay, Afghanistan, and Iraq (2008), available at http://www.
usdoj.gov/oig/special/s0805/final.pdf (relating interagency dissent
over the use of interrogation techniques considered to be illegal and
referrals of complaints about the tactics to the highest level of the
US government) [hereinafter OIG Report].

7 Office of the U.N. High Comm’r for Human Rights, Istanbul Protocol:
Manual on the Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,
U.N. Doc HR/P/PT/8/Rev.1 (1999), available at http://www.unhchr.
ch/pdf/8istprot.pdf [hereinafter Istanbul Protocol].

8 The detainees often did not know what kind of health personnel interacted
with them (e.g., doctor, nurse, medic, or psychologist).

9 Istanbul Protocol, supra note 7, ¶ 144, at 28.

10 Torture Convention Implementation Act of 1994, 18 U.S.C.A. § 2340
(2004).

11 Uniform Code of Military Justice, 10 U.S.C. §§ 801—946 (2007).

12 None of the detainees evaluated experienced waterboarding.

(Download pdf)

As with other armed conflicts including those of the former Yugoslavia, Dafar, the Democratic Republic of Congo, and now Libya, rape is used as a weapon against civilians—especially women and children– by armed groups.  Margot Wallstrom, U.N. Special Representative on Sexual Violence in Conflict, in addressing the U.N. Human Rights Council on 10 June 2011 stated, “Sexual violence has become a tactic choice for armed groups, being cheaper, more destructive and easier to get away with than other methods of warfare.”

Understanding why rape is used by armed groups in conflict situations is key to preventing it in the future.  Rape causes physical, emotional and mental damage to its victims; some of which is long-lasting.  Rape will also affect the circle of ties and connections each person who has been raped has.  The effect of rape will be felt by women, children, men, wives, husbands, family structures and communities.  Under the Rome Statute, rape is an international crime, identified as both a crime against humanity and a war crime.

In the following statement, Physicians for Human Rights explains why rape is such an awful but effective tool in breaking down communities and why all soldiers and fighters should be prosecuted and punished for the crime of rape . This statement was issued for the record of the U.S. Senate Committee on the Judiciary, Human Rights and the Law Subcommittee (Senator Richard Durbin, Illinois presiding):

“Rape as a Weapon of War:
Accountability for Sexual Violence in Conflict”

1 April 2008

Physicians for Human Rights (PHR) commends Chairman Durbin, Ranking Member Tom Coburn, and the Human Rights and Law Subcommittee for their initiative in holding this hearing to address a violation of the most basic right to the integrity of the person, and one which has finally and rightly been documented and prosecuted during the last 15 years as a war crime, and in some cases as a crime against humanity and an element of genocide.

This hearing comes at a crucial and agonizing time in history when tens of thousands of women and girls continue to suffer rape, forced pregnancy, mutilation and death at the hands of brutal and ruthless militias as well as government forces in the conflicts in Sudan, Central African Republic, Chad, and the Democratic Republic of Congo. It comes at a time when humanitarian organizations are under unprecedented pressures and threats to keep silent about atrocities they witness and about the victims of rape whom they treat. And it comes at a crucial moment when advocates for international justice and local human rights and health organizations are struggling to protect women, document incidents, treat victims, and end impunity for this most “silent” crime.

Physicians for Human Rights (PHR), founded in 1986, is an American organization that mobilizes health professionals to advance health, dignity, and justice while promoting the right to health for all. PHR has investigated, reported on, and advocated to stop sexual violence in the conflicts in former Yugoslavia, Liberia, Sierra Leone and Sudan. We have trained health professionals from many countries in methods for documenting these crimes and supporting survivors. PHR has published pioneering reports along with articles in leading medical journals on the use of rape as a weapon of war, on the importance of holding perpetrators accountable, and on the prevalence as well as the medical and psychological consequences of sexual violence in armed conflicts.

In 1993, PHR researchers submitted “Rape as a crime of war,” a landmark article published in the Journal of the American Medical Association, and more recently, the Harvard Humanitarian Initiative with the support of PHR produced “Rape as a Weapon of War: Accountability for Sexual Violence in Conflict,” which focused on the crisis of mass rape taking place in Darfur.

Sexual violence has long been inflicted on civilians during armed conflict, although it is only within the last sixty years that it became expressly punishable under codified international law, including the Fourth Geneva Convention of 1949 and the Additional Protocols of 1977. In the I990’s, the International Criminal Tribunals for Rwanda and the former Yugoslavia successfully prosecuted individuals for mass rape. The 1998 Rome Statute of the International Criminal Court (ICC), which entered into force in 2002, further codified rape and other forms of gender violence, such as sexual slavery and forced pregnancy, as both a crime against humanity and a war crime. In PHR’s analysis, rape and other forms of sexual violence are perpetrated against target populations to:

• Instill terror in the civilian population
• Humiliate and degrade individuals, their families, and their communities
• Further an agenda of cultural and ethnic destruction, exploiting the stigma that falls upon rape victims and their children to weaken marital and communal relations
• Displace populations, and hamper the ability of communities to reconstitute and organize a sustained return.
• Destroy group bonds, causing pervasive, and even deadly effects for women in particular

Although much progress has been made in bringing the perpetrators of sexual violence to justice in international courts, enormous hurdles remain. These include failures of the international community to support vigorous prosecution of rape cases, underreporting by survivors due to fear of public knowledge or reprisals, predominance of male interviewers and prosecutors, excusive focus on the ‘big fish’ perpetrators, challenges of witness protection in insecure environments, exploitation of victims in the media, and re-traumatization of victims. Although justice and accountability efforts are critical, they should not obscure or replace the importance of comprehensive support to survivors and prevention of such atrocities in the first place.

The Physical and Psychological Consequences of Rape as a Weapon of War
The physical and psychological effects of rape perpetrated as a weapon of war are compounded by myriad accompanying traumas. Women subjected to sexual violence in war usually are also suffering the traumas of the death (often violent) of family and friends, exile and dislocation, and the loss of everything familiar to them, from homes and possessions to traditions and routines.

Rape survivors bear numerous physical and psychological scars. Rape is a violent act, and victims may incur broken bones, concussions, and wounds. Women who resist the act may bear signs of self-defense, such as hair torn from the back of their heads and bruising of the arms and chest.

Rape victims also suffer from bruising or tearing of the genitalia, tearing of the perineum and damage to the bladder and rectum. If the perpetrators use foreign objects to penetrate a woman, or if the rape is extremely violent, the woman may experience traumatic fistula. This leads to chronic incontinence of urine and feces, which causes chronic health problems and possibly ostracism from the community.

Rape victims are at risk of contracting HIV/AIDs and other sexually transmitted infections (STIs) and developing pelvic inflammatory disease, which carries a risk of long-term infertility. A woman who contracts an STI while pregnant is at high risk of miscarriage, spontaneous abortion and death.

Many women who become pregnant as a consequence of rape may attempt to induce abortion of the fetus, often at great risk to their own health. Women who conceive as a result of rape may not seek pre- or ante-natal care, and children they deliver are often neglected, abused, stigmatized, ostracized or even killed.

There are both immediate and long-term psychological consequences of rape in war for a woman, her family and the community. In the immediate aftermath, a victim may suffer from shock, denial, fear and a sense of loss of control over her own life. A woman may manifest the psychological distress in physical symptoms including headaches, chest and pelvic pain. In the longer-term, a woman might suffer from depression, suicidal ideation and post traumatic stress disorder (PTSD). In addition to affecting her relationships with her husband and children, these conditions may render a woman unable to fulfill familial duties including taking care of the household and children or working.

Rape in war frequently entails more than one traumatic occurrence. In many conflicts, women have been captured and held captive for weeks, months or even years as sex slaves, and raped repeatedly. The psychological burdens for these women, including post-traumatic stress disorder (PTSD), depression, and suicidal ideation and attempts are extreme. The husbands and partners of women raped in war may experience profound shame feeling that the act has brought dishonor to them and the family. He may divorce the woman or begin to act verbally or physically abusive.

Widespread rape has profound consequences at the community level as well, as the violation ruptures social cohesion and entire communities feel vulnerable and traumatized collectively by the sexual violence.

Lessons Learned about Accountability for Sexual Violence in War from PHR’s
Research — Former Yugoslavia

The former Yugoslavia marked a turning point in terms of international justice for sexual violence in conflict: for the first time, rape was assessed separately as a war crime in international law and was eventually prosecuted as such in the International Criminal Tribunal for the former Yugoslavia. In 1993, PHR sent a representative on a UN medical team to investigate allegations of widespread rape in the former Yugoslavia, where tens of thousands of women are reported to have been raped by soldiers.

PHR reported on the barriers to accurate assessment and treatment of victims of sexual violence, including:

• Fear, stigma and pain experienced by victims of rape that often prevented them from reporting their experiences
• Lack of support systems to facilitate disclosure
• The additional trauma of forced pregnancy and the resulting neglect or rejection of the unwanted child
• Lack of research on the psychological effects of rape in armed conflict
• The importance of understanding and responding to victims in a culturally appropriate manner and in the context of associated traumas including forced displacement, loss of loved ones and community, untreated illness and other war-related injury

PHR’s researcher, Dr. Shana Swiss, also recommended a variety of methods to improve the approach to victims of sexual violence in armed conflicts, including the ways in which medical personnel who are likely to have first contact with survivors could preserve physical evidence of rape for subsequent accountability procedures. PHR cautioned about over-interviewing survivors who came forward, and the risks of retraumatization. PHR strongly recommended the development of guidelines to ensure voluntary consent, confidentiality, and psycho-social supports, including community-based interventions, for those seeking redress and healing.

Liberia
Work launched by Dr. Swiss, and which she continued in a unique collaboration with local health workers in Liberia in the early 1990s, demonstrated alarming prevalence of rape, attempted rape, strip searching and sexual coercion by soldiers and fighters in wartime. A startling 49% of women and girls randomly sampled in the capital city of Monrovia had experienced at least one act of physical or sexual violence during five years of civil conflict in Liberia between 1989 and 1994. Women who belonged to an “enemy” ethnic group were more likely to experience violence in a given encounter. The research teams that developed these important data took great precautions to protect the privacy and safety of the women interviewed, and found that in safe environments, women are able and willing to testify to sexual violence, especially when it is documented by health workers as a health and safety issue. Most interesting, the process of training local health workers to interview and document sexual violence empowered them to advocate against rape and sexual assault as a matter both of human rights and health. The process also spurred the development of role-playing and story telling–used in the research– for local community organizing to stop violence against women.

The pioneering work in Liberia by Dr. Swiss and her colleagues highlights the transformative power of collaborative health and human rights documentation for the purposes of acknowledgment, public education, community organizing and advocacy, as well as accountability efforts.

Sexual Violence as a war crime in Sierra Leone
In 2002, Physicians for Human Rights published the most comprehensive population based assessment to date of war-related sexual violence and other human rights abuses in Sierra Leone. PHR found that combatants had committed widespread crimes against an estimated 50,000 to 64,000 Sierra Leonean women including: abductions, beatings, killings, rape and other forms of sexual violence, torture, forced labor, gunshot wounds, serious injuries, and amputations.

• 94% of the 991 households randomly surveyed by PHR reported that at least one of the abuses listed above had taken place during the previous ten years of conflict
• 13% of respondents reported one or more incidents of war-related sexual violence.
• A striking 53% of respondents who reported having “face-to-face” contact with Revolutionary United Front forces reported experiencing sexual violence; one third of the women who reported sexual violence reported being gang raped. The main concern expressed by women in the study related to the personal and financial insecurity that they faced as a result of the war, such as the fear of how they would provide for themselves and their children, including offspring from the assaults.
In the words of one respondent:

“There will be no better future for me because I am broke. No man will marry
me or take me seriously. I don’t want to become sick, to get what they call
AIDS. People will begin to say a lot about me if they know what happened to
me.”

PHR’s study also included an assessment of women’s beliefs about justice for the perpetrators. 42% of respondents thought their attackers should be punished, and the most common reasons cited for not punishing a perpetrator included “in the spirit of reconciliation”, fear of reprisal, no confidence in the system for such punishments, or that they wanted to forget about the incident.

In spite of the barriers and threats they perceived, 23% of the women reporting sexual violence to PHR stated that they were willing to give their names to the proposed Special Court and/or the Truth and Reconciliation Commission.

Many Sierra Leonean women’s associations advocated for increased attention to sexual violence and its aftereffects by the Special Court for Sierra Leone and the Truth and Reconciliation Commission (TRC). Victims of sexual violence were prioritized by the TRC as a vulnerable category, and the Report of the Truth and Reconciliation Commission recommended that they receive free medical assistance and financial support, in recognition of the physical, psychological, economic, and social repercussions that these victims faced. In a positive contrast to the South African Truth and Reconciliation Commission, the Sierra Leonean TRC did not require that potential beneficiaries cooperate with the commission in order to receive reparations.

The Commission argued that the State had a legal obligation to provide reparations for crimes committed not just by state actors, but also by non-state actors. Such a provision is extremely important in reparations processes, since women are often not able to identify their perpetrators and since most of the abuses were committed by rebel forces.

Sexual Violence in the Conflict in Darfur, Sudan
Physicians for Human Rights has documented the violence and devastation in Sudan’s Darfur region since 2004. The organization has:

1. Sent teams of investigators to document the violence and destruction in Darfur and to interview genocide survivors in camps in Chad
2. Trained Sudanese nationals in international standards of documentation of rape and torture
3. Conducted advocacy campaigns to protect civilians and to ensure that victims – particularly victims of rape and other vulnerable groups – receive compensation and reparations for their losses.

During three trips to the region—in May 2004, and January and July 2005, investigators for PHR collected first-hand testimony from dozens of survivors of the attacks on three Darfurian villages and surrounding areas with a total population of 30,000 to 40,000 inhabitants. Investigators heard repeated stories of women being raped, often in front of their families and often by multiple perpetrators, from respondents from different villages whose villages were attacked at different points in time. Because rape is a deeply shameful topic in Darfur, PHR investigators did not ask respondents directly if they had suffered sexual violence. Of the 35 people asked the question “Have you been subjected to or observed rape or sexual assault”, 13 responded in the affirmative. In open-ended questions, some of the respondents noted that they themselves were raped, or witnessed others being raped, by the Janjaweed militias in front of family members, or out in the open where people fleeing from the violence could see. This tactic may have been an attempt to publicly humiliate the husbands and shame the women, thus weakening familial and societal bonds. Some women who were sexually assaulted were also beaten by their attackers, leaving them with broken bones and internal and external bleeding. In addition to physical injuries, many rape victims are left with profound emotional scars and trauma.

A 20 year old woman from Jartagat village explained how she was raped by two Janjaweed soldiers.

“They saw me and it was too late to run. They took me inside my house and
raped me several times. They beat me up, then they left me to die.”

She explained that it took her months to recover from her injuries and that she has not been able to conceive since the attack. She had not told anyone about what had happened to her.

Physicians for Human Rights, in conjunction with REDRESS, a London-based group that advocates for compensation for victims of torture, led a series of three training workshops in 2005 and 2006 for the a Sudanese Non-Governmental Organization (NGO) that provides medical, psychological and legal services to victims of torture and sexual violence. This organization sent staff from its offices in Khartoum and Nyala (in Darfur) to the training, which was also attended by police officers, judges, state doctors and local officials with the federal Ministry of Health. The training was based on the guidelines of the Istanbul Protocol, a UN-adopted manual which provides international standards for medical and legal evaluations of allegations of torture and ill treatment, including sexual assault. PHR and REDRESS trained local health workers and lawyers on effective methods for documenting physical and psychological evidence in cases of torture, rape and sexual violence.

Our Sudanese colleagues at the NGO reported the many difficulties they face in treating the victims of rape, and seeking legal redress for them in court. Widespread rape continues in Darfur – women living in camps for the internally displaced report being sexually assaulted both by government forces and Janjaweed militias when they leave the relative security of the camps to gather firewood they need to cook food for their families. Members of rebel groups are also reported to have raped women as factional fighting increases in an environment of continued insecurity and violence. Until August 2004, rape victims in Darfur had to fill out a form at the police station before they were able to seek medical attention. While this law has changed, our colleagues state that many women are still reluctant to seek treatment because they think that they will have to report the incident to the very authorities linked to a policy of inflicting mass rape on the non-Arab civilian population of Darfur.

The high evidentiary requirements of proving rape in Sudan (the law requires that the woman produce four male or eight female witnesses to the crime) mean that few cases are successfully prosecuted. And, because the legal definition of rape is “intercourse between a man and a woman who are not married to one another, that is, performed without consent”, a woman who cannot prove the lack of consent may be charged with adultery, the punishment for which is stoning to death. The obvious unwillingness and inability of the Government of Sudan to prosecute rape and hold perpetrators accountable argues for aggressive efforts to prosecute rape as a war crime at the International Criminal Court in The Hague.

Finally, several of PHR’s Sudanese colleagues – lawyers, doctors and social workers – have reported that they themselves have been subjected to harassment and intimidation. Some have been arrested, and others have received summons to appear at local security service offices for days at a time. Their offices have been shut down for months at a time. Despite this attempt to intimidate them, they continue to struggle to provide vital services to survivors of the atrocities in Darfur.

Challenges to Accountability
Various factors prevent accountability for perpetration of rape as a weapon of war. These include a failure to prevent attacks in the first place; the underreporting of the actual problem and its relative invisibility, including in the media; the failure to adequately protect women as well as civilians in general in the midst of conflicts, difficulties of documenting the crime for evidentiary purposes, and the inadequate support for effective prosecution efforts, at both domestic and international levels.

Prevention
A paramount challenge is preventing the widespread use of rape as a weapon of war in the first place. Though the Geneva Conventions state that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault,” rape was widely perpetrated in wars throughout the 20th century where civilians increasingly became targets of war. In civil conflicts during the past 20 years, governments have sponsored the use of rape as a weapon of war either by overtly sanctioning or failing to prohibit its use by their armed forces or proxy militias (as is the case in Darfur, where the Sudanese government knows that the Janjaweed militias are employing rape as a technique), or failing to protect women and children from mass rape by an armed rebel group (i.e., the RUF in Sierra Leone).

Underreporting of the Crime
While the rates of sexual violence found by PHR and others in studies in former Yugoslavia, Liberia, Sierra Leone, Darfur, and the DRC are high, these rates are likely lower than the actual prevalence levels. There are a number of reasons why rape and sexual assault are not reported. First is the stigma and shame associated with rape; rape is seen as bringing shame upon a woman’s family and her community. In the case of Darfur, a woman who has been raped may be divorced by her husband if she is married, or considered unmarriageable if she is single. In some cases, she may even be forced to leave the community altogether. In PHR’s Sierra Leone study, 64% of the respondents reported not telling anyone about the incident because of ‘feelings of shame or social stigma.’ Second, a woman may not report the crime as there is often little ambient security and a she may risk further violence in the process of seeking medical attention or reporting an incident. In some countries, women may be forced to report the crimes to officials before they are able to receive medical treatment. In such circumstances rape victims may be unlikely to take the risks inherent in filing a claim of sexual assault: harassment by authorities, being charged with adultery, ostracism or rejection by husband, family or community. These hurdles are formidable especially when the chance of successful prosecution of the perpetrator is slim.

Weakness in Documentation of Rape
In conditions of armed conflict, it is often extremely dangerous, if not impossible, for women to seek and receive treatment for their injuries, let alone provide information about the attacks or evidence for accountability efforts. In the case of Darfur, for example, many women and girls were attacked in the course of devastating assaults on their villages in which nearly all of the residents fled into the surrounding desert to escape. They wandered for weeks and even months in some cases with no access to medical treatment. By the time these women reached safety, little physical evidence of sexual violence remained, although physical and mental effects persisted. From 2004 until the present, dozens of humanitarian organizations have been working under extraordinarily difficult circumstances in refugee camps in Chad and in camps for the internally displaced in Darfur. During this time, several groups that published reports documenting widespread rape were harassed by the government; in one case two aid workers who spoke publicly about rape in Darfur were arrested and interrogated. The Government of Sudan accused one NGO of falsifying a rape report, then subjected the rape victim to multiple gynecological exams and published her name, age, occupation and location of residence in the newspaper.

A woman reporting rape in Sudan must fill out the Form 8 at the police station. Few, if any, police in Sudan are trained to deal with victims of sexual violence, and many women report that the police lack tact and compassion and may themselves be verbally or even physically abusive. Many women see the police as tied to the powers that are inflicting violence upon their communities. Thus, the requirement of the Form 8 serves as a deterrent for women to report rape. In addition, Form 8 is incomplete as a method of documenting rape; it records only the most basic information, not all of it either relevant or appropriate (recent loss of virginity, bleeding or the presence of sperm), and does not require more complete or relevant physical documentation or the collection of the aforementioned evidence.

Weakness of Local Judicial Systems
In many cases, national judicial systems are either incapable of or unwilling to prosecute rape on an individual scale, let alone a massive scale. Furthermore, rape laws usually have such a high burden of evidence that prosecution is nearly impossible. In Sudan, for example, a woman must present four male witnesses to the act of penetration, a nearly insurmountable burden of proof. And, as mentioned before, because the crime of rape is defined as ‘zinna’, which is translated as ‘adultery’, a woman who comes forward to report that she has been raped risks in turn being charged with adultery. Finally, because the Form 8, the aforementioned document in Sudan for reporting rape, does not require a more complete physical exam or collection of relevant evidence (photographs of bruises, a woman’s testimony of the incident), it is relatively ineffective in a court of law where high burdens of eyewitness, physical and documentary evidence are currently demanded.

Justified Reluctance of Humanitarian Actors to Become Involved in Accountability
There is a legitimate fear amongst humanitarian actors that they may risk access to the populations they are there to serve, or endanger their own personnel if they speak publicly about human rights violations that they are aware of. In the recent past, relief workers have been the targets of harassments such as administrative refusal to renew visas or work permits; physical searches or beatings, and even sexual assault or killings for speaking publicly. There is also an understandable prioritization by most international relief organizations of their role in meeting the immediate health needs of the communities they serve, and a concomitant reluctance to collect or provide evidence of rape and other atrocities, which also requires special training, expertise and security measures. Such activities may also engage politically “neutral” NGOs in roles where they may appear to or be accused of taking sides in a conflict. In the case of Darfur, the Sudanese Government’s arrest of NGO workers who have reported on or spoken publicly about mass rape in that conflict has sent a chilling message to the entire humanitarian community.

Failure to Prioritize Prevention of Sexual Assault in Peacekeeping Situations
When the situation in a given country becomes so fraught that the United Nations intervenes with a peacekeeping or protection force, not enough attention is paid to the problem of sexual violence against women in the course of the conflict. Except for those specifically hired to deal with gender-based violence, few peacekeepers, UN or NGO workers have training in how to deal with victims of sexual assault.

There are measures that NGO workers or peacekeepers can take to protect women from violent sexual assault. African Union peacekeepers implemented firewood patrols in Darfur to accompany women when left internally displaced persons camps to gathered firewood. While there is little data on the reduction of rape, many news reports indicated that the incidence had decreased. However, these patrols were never implemented across all of the camps, and even in the camps where they formed they are reported to have been uneven, irregular and unpredictable.

The Importance of Accountability
There are several reasons why accountability is important. First, a lack of accountability breeds a culture of impunity, and leads to further breakdown of the rule of law. Second, it is vital to promote a culture of respect for international norms and to destroy the cynicism that accepts rape as an inevitable component of war. Finally, accountability measures offer victims acknowledgement of the wrongs and harms done to them, and provide other essential forms of redress such as arrest, prosecution and punishment of the perpetrators, as well as compensation and repair.

Breaking the Culture of Impunity
Perpetrators of mass rape in war have little reason to believe that they will be held accountable for their actions. Bosnian Serb leaders Radovan Karadzic and Ratko Mladic, indicted in 1995 by the International Criminal Tribunal for the former Yugoslavia for crimes against humanity and genocide, including charges of sexual assault and rape, remain at large in the former Yugoslavia more than a decade later. In April 2007, the International Criminal Court issued indictments against two Sudanese men, Ahmed Haroun, former Minister of State for the Interior, and Ali Kushayb, a Janjaweed leader, on a total of 51 counts of war crimes and crimes against humanity (among those counts, Haroun is charged with four counts of rape, Kushayb with two). Mr. Haroun has actually been promoted to acting Minister of Humanitarian Affairs, and is responsible for overseeing the coordination and delivery of aid to the very people against whom he is accused of committing attacks. Very few governments have come forward to assist in pressing the Sudanese Government to turn these men over to the Court, even though the UN Security made the referral to the ICC. This sends a very real message to perpetrators and victims alike that perpetrators of war crimes, including mass rape, are beyond the reach of the law.

PHR has witnessed and documented a strong desire for justice among numerous victims their families, and their communities. In some cases, it is only the knowledge that the perpetrators will be punished for what they have done that will allow thevictims and communities to heal and for cycles of violence and revenge to cease. InDarfur, for example, local NGOs prosecuting rape say that they have seen dozens of courageous women, aware of the near impossibility of winning a rape conviction, who would like to bring forward cases in spite of the obstacles. Many seek a comprehensive form of justice which enables them to rebuild their broken lives and communities and live without fear.

Promoting Adherence to International Norms
It is important that a country act within the bounds of international norms, including protecting women from mass rape in war. “Rogue states” not only present dangers to their own people, but also, oftentimes, threaten to weaken their neighbors and regions. The crisis in Darfur has had destabilizing consequences for neighboring Chad and the Central African Republic.

Compensation and Reparation
In the past several years, courts have begun to recognize the rights of victims to compensation and reparations (including access to medical and psychological services). Therefore, accountability measures are critical so that women may have access to financial, medical and psychological support, which is also tied into acknowledgement of the guilt of the perpetrator.

Conclusions/Recommendations
The failure to document, expose, and punish the perpetrators of systematic rape is tantamount to giving license to those who orchestrate such atrocities and those who participate in them.

U.S. government aid efforts funded by the Congress have played an important role in increasing the capacity of the humanitarian community to assess and respond to systematic sexual violence in conflict, and progress has definitely been made in international prosecution efforts. However, mechanisms for promoting the rule of law with regards to sexual violence before and after conflicts, reporting and documentation of sexual violence during armed conflicts, treatment, advocacy, and restitution receive insufficient attention or resources.

The U.S. government should work to ensure that the U.N. and other international actors always incorporate an assessment of sexual violence when monitoring threats to civilians in a conflict or post-conflict situation. Staff should be trained on awareness of rape as a war crime, and given clear protocols to follow in recognition that documentation is a crucial element to advocating for the victims. Physicians for Human Rights recommends that those involved in protection efforts, such as peacekeeping forces, humanitarian aid organizations, local and international NGOs, and other relevant actors incorporate best practices for responding to rape as a weapon of war into their work. These include:

1. Prevention
Rape as a weapon of war must be stopped in its course, rather than assuming that it will be an inevitable byproduct of conflict. The US Government should support mechanisms that help prevent sexual violence, such as supporting interventions by international peacekeeping and protection forces where appropriate, identifying the perpetrators and those supporting campaigns of systematic rape, and publicly sanctioning governments that fail to protect victims of rape and/or refuse to investigate, disarm and prosecute perpetrators.

2. Protection
All too often, the systems that have been developed to protect civilians are simply not being deployed or are not being deployed effectively. The US must provide more support for diplomacy, intervention, and enforcement as laid out in the tenets of the Responsibility to Protect by the International Commission on Intervention and State Sovereignty. For example, for the past six years the international community has failed to protect vulnerable women and girls in Sudan despite credible accounts of widespread and systematic rape. As a matter of urgency, the US must ensure that
international protection forces in Darfur and elsewhere have the necessary means to fulfill their mission.

3. Documentation
The US should support efforts to:
• Build the capacity of local and international responders to safely document and publicly report on sexual violence in a manner that does not endanger individual victims or humanitarian workers and their agencies.
• Encourage and support more collaboration between humanitarian groups and human rights organizations to address challenges in documenting and reporting these crimes.

4. Justice and Accountability
• Support justice and reparations for the victims
o Where possible, strengthen local justice systems by improving rape laws, enhancing protection for victims who come forward, and supporting local efforts to hold perpetrators accountable (including truth and reconciliation commissions, special courts for the prosecution of rape as a war crime, and restitution efforts).
o Support the international system of legal accountability, which will be necessary when local justice systems are incapable of prosecuting crimes that fall under the Rome Statute of the ICC. The arrest warrants issued by the ICC for Haroun and Kushayb for war crimes and crimes against humanity including mass rape in Darfur, for example, should be given top priority.

• The United States Government should facilitate the ability of victims of systematic rape during war to seek asylum in the US via the following:
o Enact legislation stating that in cases in which sexual violence is being perpetrated by any party to an armed conflict, there be a presumption that rape took place on one of the five protected grounds for asylum (in which the asylum applicant has a well-founded fear of persecution based on race, nationality, religion, political opinion, or membership in a social group).
o Repeal the one-year bar on asylum applications in recognition of the undue burden that it places on survivors of severe trauma such as rape during war, and more generally to all asylum seekers.

5. Treatment and Remedy
Given the magnitude of this crisis and the enormous needs of survivors for medical care and trauma recover, the US should assess and commit to support international and local responses. PHR urges the US Government to:

• Increase funding for addressing the immediate long-term needs of victims, including providing them with medical care, culturally appropriate mental health care, skills training, and compensation. In particular support the capacity of indigenous women and organizations to work and lead in these areas.
• Increase funding and support for programs to rebuild communities in the aftermath of systematic rape, recognizing that there are specific needs for both the community and for the victims of sexual violence. Programs should incorporate community education and advocacy programs to help combat the stigma associated with rape survivors and their children.
• Compel governments responsible for rape in war to provide reparation to the victims, and provide financial support to the Victims Trust Fund established by the International Criminal Court.
• Disarmament, Demobilization, and Reintegration programs for ex-combatants must include re-socialization and sexual violence education. Women should be involved in all DDR efforts.
• Develop a better understanding of perpetrators’ motivations and the patterns that are associated with systematic rape as a weapon of war.

Please visit Physicians for Human Rights’ website at:  http://physiciansforhumanrights.org
They are involved in many important issues including torture, mass atrocities, rape in war, and persecution of health workers.

Physicians for Human Rights shared the Nobel Peace Prize in 1997 for the International Campaign to Ban Landmines.  PHR, with five other NGOs, set-up the International Campaign to Ban Landmines.

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On March 17, 2011, the United Nations Security Council adopted Resolution 1973, which imposed “a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians.” Excluded from the scope of the ban are humanitarian flights, those evacuating foreign nationals from the country, and any other flights authorized by states enforcing the no-fly zone. Going beyond simply banning aerial activity, the Security Council further authorized “Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance.” The reference to “all necessary means” is the standard phrase the Security Council uses to authorize states to act militarily. Pursuant to the Resolution, states can operate alone, in an ad hoc coalition, through a regional organization such as NATO, or a combination thereof.

In addition to imposing a no-fly zone, Resolution 1973 demands a cease-fire and a “complete end to violence and all attacks against, and abuses of, civilians.” Among the various measures sanctioned to achieve this latter aim, the Security Council granted member states permission to “take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack.” The Resolution thus authorizes direct military action against Libyan armed and security forces in response to any operations that are placing, or might place, the civilian population at risk. Such permission is indispensable to protecting civilians, for the greatest threat to civilians comes not from air attacks, but rather ground attacks directed against them or in which they might become collateral damage.

Two days after adoption of Resolution 1973, an ad hoc coalition of forces launched combat operations to enforce the zone and to obstruct the Libyan ground attacks that were endangering the civilian population. This Essay focuses on the no-fly zone facet of the Resolution’s enforcement regime, while also situating the no-fly zone in the context of the overall operations in Libya. Part II provides a description of the legal basis for no-fly zones in general, together with a discussion of historical examples of such operations. As no-fly zones represent a unique form of international coercion, Part III assesses the legal parameters governing their maintenance, particularly those deriving from the law of armed conflict. Part IV concludes with an analysis of the Libyan no-fly zone in order to pull these two normative strands together and to identify Resolution 1973’s unique features.

As will become apparent, the Libyan no-fly zone is unprecedentedly robust. In terms of geographical coverage, scope of the ban, and enforcement authorization, it is much broader than any previous no-fly zone. Moreover, maintaining the zone while conducting other combat operations to protect civilians creates a synergy that renders the military enforcement effort highly potent. But at the same time, it is essential to understand that, notwithstanding its aggressiveness, operations to police the zone are still governed by the law of armed conflict, albeit as applied in light of the Security Council’s authorization. These factors make for an especially complex normative regime. But before turning to the Libyan no-fly zone, it is first necessary to examine the law governing such operations in general.

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]]> http://the-beacon.info/countries/middle-east/wings-over-libya-the-no-fly-zone-in-legal-perspective/feed/ 0 http://the-beacon.info/topics/international-law-united-nations/the-comprehensive-nuclear-test-ban-treaty-why-it-has-not-yet-come-into-legal-force-2/ http://the-beacon.info/topics/international-law-united-nations/the-comprehensive-nuclear-test-ban-treaty-why-it-has-not-yet-come-into-legal-force-2/#comments Wed, 25 May 2011 21:43:48 +0000 admin http://the-beacon.info/blog/?p=273 by Janet Munro-Nelson

Posted: 28 February 2011

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The Comprehensive Nuclear-Test-Ban Treaty is considered one of the cornerstones in the effort for global arms control. This treaty’s inception began in 1994. After two years of discussions and negotiations between governmental representatives, a final document was opened for signature in 1996. This was already twenty-six years after the most important treaty for the international disarmament and non-proliferation of nuclear weapons–the Treaty on the Non-Proliferation of Nuclear Weapons–came into legal force. The Comprehensive Nuclear-Test-Ban Treaty (“CTBT”) seeks to control the development of nuclear weapons by specifically prohibiting all explosions of nuclear devices anywhere on the planet. By providing a total ban on nuclear testing, the CTBT seeks to prevent the new development of nuclear weapons and to deter any substantial improvements or changes to existing nuclear weapons.

The two objectives of the CTBT are set-out in Article 1. All countries that are legal parties to the CTBT must adhere to these objectives which are stated as follows:
1. To undertake not to carry out any nuclear weapon test explosion or any other nuclear explosion and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control; and
2. To undertake to refrain from causing, encouraging or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion.

A Short, Shallow Summary on the Development of Nuclear Weapons
The road to nuclear weapons began in earnest as the Nineteenth Century ended and the Twentieth Century began. In 1897, physicist J.J. Thomson working at the Cavendish Laboratory at Cambridge University, England, discovered the electron of the atom by measuring its response to both electric and magnetic fields. His hypothesis of how these electrons were positioned in relation to the nucleus was later proved to be incorrect by one of his former students, Ernest Rutherford, a New Zealander. Rutherford’s most famous discovery took place while he was Professor at Manchester. In March 1911, he announced that each atom contained a positively charged nucleus. Investigations of these nuclei became known as ‘nuclear physics’. Rutherford’s discovery ultimately led to the ‘splitting of the atom’. In 1919 when Rutherford was back at Cavendish Laboratory following in J.J. Thomson’s footsteps, he managed to change several atoms of nitrogen into oxygen. He was able to identify particles orbiting around the nucleus of an atom which resembled the planets orbiting a sun. He realised these particles were electrons. At that time, it was believed the nucleus of an atom consisted of only one positively-charged particle called a proton. It was not until 1932 that James Chadwick, also at Cambridge, was able to distinguish that a second particle was present within the nucleus of the atom. Because this particle had no charge, it was called a neutron. During the 1930’s, scientists began trying to split different types of atoms by bombarding them with positively-charged electrons. This proved generally unsuccessful as the positive-charged nucleus repelled the bombarding electrons. It was not until 1934 when the Italian physicist, Enrico Fermi managed to bombard atoms with non-charged neutrons that nuclear physics made a leap forward. These  same scientists paid little attention to an even greater discovery: matter disappears during bombardment, resulting in the release of huge amounts of energy. It was not until 1938 that scientists working for the Nazi regime in Berlin, Germany, recognised that in splitting the nucleus of an atom in half, an event of fission, large amounts of energy were released. This had enormous potential for a country soon to be at war.

At the end of 1939, the United States and Great Britain began coordinating their research efforts in a race to develop a useable nuclear (or, atomic) bomb before Adolf Hitler’s Nazi scientists in Germany did. In 1942, this earlier nuclear physics research evolved into what became known as the Manhattan Project. In December 1942–slightly more than a year after the Japanese bombing of Pearl Harbor– the United States government approved what ultimately became an investment in excess of $2 billion into the Manhattan Project. The Manhattan Project was authorized to build fullscale gaseous diffusion and plutonium plants, the compromise electromagnetic plant, as well as heavy water production facilities in a quest to develop the first nuclear bomb. While the project began as a small research programme it expanded in the next three years to over thirty sites across the U.S., Canada and Britain before it technically achieved its goal in the Summer of 1945.

In August 1943, the governments of the United States, Great Britain and Canada signed the ‘Quebec Agreement’ by which they agreed to work together in the development of a nuclear bomb. Decisions were made by the Combined Policy Committee represented by each of these countries. The United States was chosen as the main site of research as well as for production of the nuclear bomb for several reasons. Although the scientists in Britain made significant theoretical contributions early on, Britain did not have the resources that the United States had. Also, with Great Britain at war with Germany and struggling for its survival, there was a strong likelihood that any structure in Britain housing the nuclear research and experimentation could be bombed.

The First Nuclear Explosions
In July 1945, the first successful nuclear bomb was tested in the desert by the Los Alamos research laboratory located in New Mexico, USA. Japan was warned within a few days of the nuclear test that they had one last chance to surrender to avoid utter destruction. It refused to surrender. On 6 August 1945, an American plane dropped the first nuclear bomb on the Japanese city of Hiroshima as it was the chief supply depot for the Japanese army. Again, the Allied Forces demanded that Japan surrender. Again, Japan refused. Seventy-two hours after the first bomb was dropped, a second nuclear bomb was released above Nagasaki on 9 August 1945.

The decision to use nuclear weapons against Japan was made by the Combined Policy Committee. At that time, no one had any real idea of what actually happened to people and buildings when or after a nuclear explosion occurred. The damage and devastation each bomb wrought on Hiroshima and on Nagasaki were staggering. The casualties immediately resulting from each bomb explosion were estimated as some 66,000 deaths and 69,000 injured in Hiroshima and some 39,000 deaths and 25,000 injured in Nagasaki. In Hiroshima, everything was destroyed within a one-mile radius. In Nagasaki, total destruction occurred in a half-mile radius, with major businesses and residential districts being shielded from the bomb. While the bomb dropped on Nagasaki was more powerful than the Hiroshima bomb (20 kiloton force compared to 15 kiloton force), the damage to Nagasaki was less than Hiroshima’s due to geographical differences.

At the impact of a nuclear explosion, a huge amount of radiation is released as light; the intensity of which is comparable to the sun with temperatures and pressure comparable to the sun’s interior. Radiation is the major cause of deaths and injuries of any person within an appreciable distance from the explosion. Nuclear explosions also release a wave of high pressure that is the major cause of damage to buildings and other structures.

For all the immediate damage and death, it was the aftermath of the Japanese nuclear explosions that revealed the full effect of nuclear weapons: widespread radiation poisoning, continued fallout of radioactive particles, a multitude of different cancers and birth defects of future generations which became prevalent in these two cities. Unlike other conventional bombs, nuclear weapons cause uncontrollable damage, immediate massive number of deaths and injuries with later-occurring radiation deaths. Radioactive particles remain in the soil and food sources for many, many decades.

In the aftermath of these history-making nuclear explosions, it was realised by the United Nations, governments and individuals including many of the same physicists who had developed the bomb that there was no going back to a time without the threat of nuclear weapons and nuclear war. By the early 1950’s it became clear that several countries were working on developing their own nuclear bombs. In these years following the nuclear bombings of Hiroshima and Nagasaki, there were many governments and individuals in the world who realised that any future conflicts between one or more countries with nuclear weapons could lead to the partial or even complete annihilation of the world. With the advent of the Cold War between the Union of Soviet Socialist Republics (“USSR”) and the West, particularly, the United States, the massive stockpiling and the further development of nuclear devices by these countries became major concerns.

Nuclear Arms Control Leading to the CTBT
Between 1946 and 1958, the U.S. government tested 23 atmospheric nuclear bombs in the Bikini Atoll, part of the Marshall Islands in the Pacific. On 1 March 1954, the United States exploded its second (and most powerful) hydrogen bomb in the Bikini Atoll. Due to a miscalculation, the damage and effect of the bomb greatly excelled the U. S. government’s predictions. The Bravo H-bomb vaporized three islands and threw radioactive debris over nearly 50,000 square miles. On a Japanese fishing vessel located 80 miles from the intense blast, its 23 fishermen became violently ill from radioactive sickness with one dying soon after.

In response to this incident, the Japanese Parliament demanded a suspension of nuclear testing. In April 1954, the Indian prime minister, Jawaharlal Nehru, called for an immediate “standstill agreement” on nuclear testing. By 1957 U.S. President, Dwight Eisenhower was also advocating for a nuclear test ban treaty. A speech made by Eisenhower added support for the establishment in 1957 of the International Atomic Energy Agency (“IAEA”) which was charged with the dual responsibility of promotion and control of nuclear technology. The IAEA was conceived as an intergovernmental agency, independent from the United Nations but with direct access to the UN Security Council. The IAEA is headquartered in Vienna, Austria.

On 10 October 1963, three permanent members of the UN Security Council: the United States, the United Kingdom and the USSR, broke new ground when they agreed to the ‘Treaty Banning Nuclear Weapon Tests In The Atmosphere, In Outer Space and Underwater’ (also referred to as ‘The Partial Test Ban Treaty’ and ‘The Limited Test Ban Treaty’). The motivation for these three large nuclear powers was the common goal of “an end to the contamination of man’s environment by radioactive substances”. As indicated by its title, this treaty neglected to specifically prohibit the testing of nuclear devices underground. There was a limited reference to underground testing as far as to prohibit such testing if it caused “radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control” the explosions were conducted. This treaty was never signed by the other two permanent members of the Security Council: France and the People’s Republic of China despite both countries possessing nuclear know-how. France conducted its first nuclear test in 1960 and China did the same in 1964. With hindsight, the treaty did not hinder the development of nuclear weapons. Instead, nuclear testing moved underground with greatly increasing numbers of tests being conducted.

In 1968, the ‘Treaty on the Non-Proliferation of Nuclear Weapons’ (“NPT”), one of the most important international agreements concerning nuclear weapons, was opened for signature. The NPT came into legal force on 1 July, 1970 when in accordance with the treaty the United Kingdom, the USSR, and the United States along with forty additional countries all became legal parties to the NPT. This treaty’s three objectives were to prevent the spread of nuclear weapons and weapons technology; to promote co-operation in the peaceful uses of nuclear energy; and to further the goal of achieving nuclear disarmament.

The NPT also established a safeguards system for compliance purposes with each of the member countries. The safeguards system requires that inspections be conducted by the IAEA verifying that no member country to the NPT is using nuclear material or facilities to develop nuclear weapons or other nuclear explosive devices. In addition, the NPT also requires conferences to be held every five years (counting from 1970) to review the operation of the treaty.

The NPT is the only binding, multilateral treaty currently in force which addresses the disarmament of nuclear weapons by the nuclear-weapon countries. As of the date of this article,189 countries have become legal parties to the NPT. Only 4 countries remain outside the legal force of the NPT: India, Israel, Pakistan and the Democratic People’s Republic of Korea (“DPRK” (i.e., North Korea) officially withdrew from the NPT in 2003).

Negotiating The Comprehensive Nuclear-Test-Ban Treaty 1994-1996
Between 1945 and 1996, over 2,000 nuclear tests were conducted globally. While the two main countries testing nuclear devices were the United States (1,000+) and the USSR (700+), China, France and the United Kingdom also conducted significant numbers of nuclear tests. In 1994, the United Nations disarmament body, the Conference on Disarmament, began formal negotiations in Geneva for a new treaty which would prohibit and prevent the testing of nuclear weapons and other nuclear devices. In 1996, the Comprehensive Nuclear-Test-Ban Treaty (“CTBT”) opened officially for signature. Now some fifteen years later, despite being one of the best supported treaties in history (153 countries are now party to this treaty with an additional 29 countries signing but not yet ratifying it), the CTBT has still not come into legal force. The reason behind this lack of legitimacy is because the treaty stipulates and names forty-four countries which must become legal parties to it before it can come into force. Dr. Rebecca Johnson who attended and wrote about the CTBT negotiations in “Unfinished Business”, said several years ago, “Assessing the CTBT twelve years after it was opened for signature, it is hard to escape the judgment that the negotiators handicapped the treaty with a provision that denied it operational viability (for a long time) and gave political reassurance only to its opponents.” (See, “Unfinished Business” reference following article.)

According to various sources including the UN Office for Disarmament Affairs, negotiations broke down over the ‘entry into force’ paragraph of the treaty. The entry into force paragraph is a triggering mechanism for each treaty as it defines how many countries must become legal parties to the treaty before it can be legally effective and in force. Discussions on this paragraph of the CTBT were complicated by the importance of the matter and a lack of time. Should the number of countries include all those countries already possessing exploding nuclear devices? Should it only include those countries who openly acknowledged they held nuclear weapons? Although unspoken, there were many country delegates who thought that any requisite list of countries should include the five declared nuclear powers–China, France, Russia, the United Kingdom and the United States (all defined as “nuclear weapon states” in the NPT)–and those countries possessing nuclear weapons but outside the NPT: India, Israel, Pakistan and the Democratic People’s Republic of Korea (India and Pakistan tested nuclear weapons in 1998 while (North) Korea held nuclear tests in 2006 and 2009).

Many of the issues concerning the entry into force paragraph and other parts of the CTBT were political ones. Pakistan, India and China all had interlinking political concerns as did the Middle Eastern countries with Israel. While the progression of the entry into force paragraph was extremely convoluted, the proposal that was finally accepted stipulated that all forty-four countries listed in Annex 2 of the treaty had to become legal parties before the treaty could come into legal effect and force. These forty-four countries who became known as the ‘Annex 2’ countries were all of the participating members of the Conference on Disarmament as of 18 June 1995 and who also appeared in the 1995 and 1996 IAEA lists of countries with nuclear research or nuclear power reactors, respectively. The reference to “participating members” excluded Yugoslavia (a member of the Conference on Disarmament by name but barred from participation during its civil war) and Iraq (to meet US concerns that Saddam Hussein should be denied an opportunity to exercise leverage by threatening not to ratify).

As of the end of February 2011, nine of the original forty-four Annex 2 countries have not yet become legal parties to the CTBT. These nine countries are: China, the DRPK (North Korea), Egypt, India, Indonesia[1], Islamic Republic of Iran, Israel, Pakistan, and the United States of America. Of these nine countries, six signed the CTBT in the Autumn of 1996 but have never ratified it. The DPRK, India and Pakistan have not even signed the CTBT. The most important fact is that the CTBT cannot and will not apply until these last nine Annex 2 countries finally legally agree to it.

Ensuring Compliance with the CTBT
As discussed above, the CTBT legally prohibits any country from carrying out any nuclear weapon test explosion or any other nuclear explosion anywhere on the planet. Thus, the CTBT imposes a comprehensive worldwide ban on all nuclear explosions of any size and in any location. The CTBT sets out specific and comprehensive means and procedures for verifying whether member countries are complying with the treaty. The CTBT verification regime is composed of three main elements:
1. An International Monitoring System;
2. An International Data Centre; and
3. On-Site Inspections.

At the heart of the verification regime is the International Monitoring System. By the time the CTBT comes into effect there will be 337 facilities located around the world collecting data which will enable it to monitor whether a nuclear explosion has occurred, the magnitude of any such explosion and the location. Of the total 337 facilities, 321 will be monitoring stations and 16 will be radionuclide laboratories. As of February 2011, approximately 83% of the total 337 monitoring stations have been constructed. Of the present total of 281, 264 of these constructed stations are already certified and sending data on to the International Data Centre in Vienna, Austria, while the remaining 17 are having tests conducted on their viability before being certified.

Although nuclear testing can occur in any environment, the majority of the nuclear testing during the testing era took place underground, underwater or in the atmosphere. The International Monitoring System uses state-of-the-art, monitoring technologies to detect the energy released from an explosion or a naturally occurring event in each of these three environments. The monitoring technologies under the CTBT are:

Seismic monitoring is used to detect and locate underground nuclear explosions. Any type of seismic event generates two types of seismic waves: body waves and surface waves. The magnitude of a seismic event is measured using the Richter scale. In the last ten years, approximately 275,094 earthquakes and two nuclear test explosions were
detected and measured using the CTBT seismic equipment. One nuclear test explosion was detected in 2006 with the second in 2009; both detonated by the DPRK. Seismic measurement makes up the majority of the international monitoring system with 50 primary and 120 auxiliary seismic stations located in 76 countries around the world. The
primary seismic stations are online continuously twenty-four hours a day, seven days a week with the data being relayed in real time to the International Data Centre. The auxiliary stations only provide information on request.

Hydroacoustic monitoring stations “listen” for sound waves under the oceans’ water. Of the 321 monitoring stations, 11 stations will monitor sound waves hydroacoustically. Because sound waves travel far through water, 11 stations are sufficient to monitor the major oceans in the world. The hydroacoustic stations relay data twenty-four hours a day, seven days a week.

Laying cable for hydroacoustic stations (CTBTO)

Infrasound monitoring will detect and measure ultra-low frequency sound waves (inaudible to the human ear) emitted by large explosions in the atmosphere. There will be a total of 60 infrasound monitoring stations in 35 countries around the world measuring these sound waves. Similar to the other two monitoring stations, the infrasound data is relayed to the International Data Centre continuously every minute of the day, seven days a week.

Also, there is radionuclide monitoring technology which is complementary to the three waveform technologies described above. The radionuclide stations will measure the atmosphere for radionuclide particles (these are radioactive nuclide particles). The radionuclide measurements provide the smoking gun element of the system as it is only this technology that is able to confirm whether an explosion detected and located by one or more of the other technologies is indicative of a nuclear test. There will be 80 radionuclide stations with 40 of these having the added capacity to detect radioactive forms of noble gases such as xenon and argon. Monitoring at these stations will be twenty-four hours a day, seven days a week. Additionally, there will be 16 radionuclide laboratories to support this technology.

Radionuclide station (CTBTO)

All the data collected by these monitoring stations are sent in near real time to the International Data Centre located at the headquarters of the Preparatory Commission for the ComprehensiveNuclear-Test-Ban Treaty Organization in Vienna, Austria. The data are processed immediately when they reach the International Data Centre. The first automated data product will be released within one hour after the data have been recorded at the monitoring station. The International Data Centre will distribute information in both raw and analyzed forms to every member country of the CTBT. All countries are treated the same with each country receiving the same information at the same time. When the DPRK (North Korea) carried out its nuclear tests in 2006 and in 2009, the member countries to the CTBT received information about the location, magnitude, time and depth of each of the nuclear tests within two hours.

The On-Site Inspections form the last part of the verification regime of the CTBT. If the data from the global monitoring stations indicate that a nuclear test has taken place, a member country can request an on-site inspection be carried out to collect evidence to determine whether a nuclear explosion – a violation of the CTBT – has occurred. While several on-site exercises have been held during the past fifteen years, no actual on-site inspection is allowed until the CTBT comes into effect.

Setting-Up the Work of the CTBT
The CTBT provides that a Comprehensive Nuclear-Test-Ban Organization will be established “to achieve the object and purpose of the treaty”. Under a resolution passed in November 1996, the member countries agreed to set-up an interim organization which would be called, The Preparatory Commission for the Comprehensive Nuclear-Test-Ban Organization (“Preparatory Commission”), to carry out the necessary and extensive preparation for the effective implementation of the CTBT. As described above, the CTBT has a strong technological foundation requiring much preparatory work to be completed in advance of the treaty coming into force.

The Preparatory Commission’s specific obligations have included:
-Carrying out necessary preparations for effective implementation of the CTBT and preparing for the 1st session of the Conference of States Parties which will take place after the treaty comes into force;
-Focusing on the promotion of the signing and ratification of the treaty so that it can enter into force as quickly as possible; and
-Establishing a global verification regime to measure compliance by member countries which must be fully operational when the CTBT comes into force.

The Preparatory Commission is not part of the United Nations nor will the future permanent organisation, the Comprehensive Nuclear-Test-Ban Organization, be when it is established. Instead, each one is or will be an independent, international organization with a relationship agreement with the United Nations.

Other uses for the data from the International Monitoring System

As discussed above, huge amounts of data are collected daily by the different monitoring stations. These data can be used for purposes other than detecting nuclear explosions. For example, all the data are shared with tsunami warning centres with almost real-time information about the occurrence of any underwater earthquake with the effect of helping to warn people earlier and possibly saving lives. The data can also be used to better understand the oceans, volcanoes, climate change, the movement of whales, and many other natural occurrences.

Conclusion
To date, the Comprehensive Nuclear-Test-Ban Treaty has been significant in obstructing and even halting almost all nuclear testing despite not yet having any legal effect. This result has been achieved by both peer pressure and by the compliance to the CTBT by those countries who have already signed and ratified it. By banning all nuclear explosions, the CTBT discourages countries without nuclear weapons from developing functional and deployable weapons and also seeks to prevent those countries already possessing nuclear weapons from developing new and more sophisticated ones. The CTBT is an impressive, well-thought-out international treaty which includes a comprehensive verification regime capable of detecting nuclear explosions occurring anywhere in the world. At this time, the work by the Preparatory Commission to establish a fully-functioning International Monitoring System is almost complete. The huge support for and belief in the CTBT is reflected by the number of countries who are already parties to the treaty.

What remains to be done is to have those remaining nine Annex 2 countries now ratify or sign and ratify the CTBT.
Once again, these remaining Annex 2 countries are: China, the DRPK (North Korea), Egypt, India, Indonesia [1], Islamic Republic of Iran, Israel, Pakistan, and the United States of America. If you are a citizen or resident of any of these nine countries, please contact your government directly and voice your position on the CTBT treaty.

[1]Indonesia indicated it has initiated the ratification process for the CTBT in May 2010.  No further news had been received on this.

For further information, please see the following resources:
1. The current website for the CTBT and the Preparatory Commission (referred to as the “CTBTO”) found at:  http://www.ctbto.org
2. The UN Office for Disarmament Affairs found at:  http://www.un.org/disarmament
3. The UN publication: “Unfinished Business – The negotiation of the CTBT and the end of Nuclear Testing” by Dr. Rebecca Johnson, published by UN Publications 2009. The text can be found at:  http://www.unidir.org/pdf/ouvrages/pdf-1-978-92-9045-194-5-en.pdf
4. Atomic Archive at:  www.atomicarchive.com
5. Cambridge Physics at:  http://www.cambridgephysics.org

Posted July 26, 2010

Crimes of War Project

(Download pdf)

Eighteen months after the end of the 2008-2009 Gaza War that claimed the lives of 1,300 Palestinians, the Israeli Defence Force has announced that it has instituted disciplinary and legal proceedings against Israeli soldiers in relation to four incidents, three of which had already been examined in detail in the Goldstone Report of September 2009.

The Goldstone Report pointed to evidence of the commission of war crimes and called upon both Israel and Hamas to conduct their own investigations. The announcement marks the first time that Israel has charged its soldiers with anything other than minor offences committed during the 22-day conflict, however the scope of the investigations remains strictly within the military framework, contrary to the advice of human rights organisations.

1. Majdi Rabbo, Human Shield
Gazan civilian Majdi Abed Rabbo claimed that he was used as a human shield in an account first described in The Independent. He spoke of how he was taken at gunpoint by Israeli soldiers and forced to search the neighbouring house for Hamas militants. In a 24 hour period, Rabbo made four perilous trips across dangerous terrain between the Israeli forces and three besieged but defiant fighters. After Rabbo went into the house four times and failed to persuade the militants to evacuate and surrender, the house was destroyed with rockets and bulldozers, and the militants were killed.

According to the Military Police, Rabbo had volunteered to persuade the Hamas unit holed up inside a house to surrender before the house was demolished, a conclusion that is not supported by Rabbo nor the Goldstone report. Despite accepting this version of events, the Military Advocate-General (MAG) Major General Mendelblit ordered a disciplinary hearing because the incident was in a violation of an Israeli Supreme Court ruling on the “neighbour procedure” by which Palestinian civilians are used to make first contact with militants barricaded in homes. The battalion commander was tried and received a warning.

The outcome appears to be based on the fact that the commander had violated a Supreme Court ruling, without any reference to the norms of international law. According to the Goldstone Report, this incident constituted a violation of the prohibition against the use of human shields, which is a war crime. According to Article 51 of the 1977 Additional Protocol I of the 1949 Geneva Conventions: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objects from attacks or to shield, favour or impede military operations”.

2. ‘White Flag’ Deaths
Israel will also investigate the January 4 2009 killing of two Palestinian women, Majda Abu Hajaj and her mother, Rieyh, who were shot while trying to evacuate the area along with 28 other civilians after their homes were shelled. Eyewitnesses said that Majda and other members of the group were carrying white flags at the time.

Palestinian witnesses and dozens of soldiers and commanders were questioned as part of the comprehensive investigation which found inconsistencies between the testimonies given by the accused, other soldiers and Palestinian civilians. The soldiers testified that it was a man that was shot and killed in the same location described by Palestinian witnesses, and not two women.

When interrogated by the Criminal Investigations Division of the Military Police, Staff Sergeant “S” said he fired in the direction of one Palestinian woman and saw her fall after the shot. The soldier said that he had shot at the legs of the women to protect other troops. After reviewing the evidence, Mendelblit ordered that the Staff Sergeant be charged with manslaughter by a military court. This decision is based on evidence that the soldier deliberately targeted an individual walking with a group of people waving a white flag without being ordered or authorised to do so.

While the accused faces a charge of manslaughter under Israeli military law, the criminal act could also be classified as a breach of the laws of armed conflict in that it constituted the direct targeting of civilians. “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited,” states Additional Protocol I of 1977. Israel has not ratified Protocol I, but this provision is generally recognized as customary law and therefore universally applicable. Under the Geneva Conventions, combatants are obliged to distinguish between soldiers and civilians and also have a legal obligation to protect civilians.

Israeli soldiers shot dead a total of 11 unarmed Palestinian civilians carrying white flags during the Gaza offensive, according to a report by Human Rights Watch, White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead. In each case, the victims were standing, walking, or in a slowly moving vehicle with other unarmed civilians who were trying to convey their non–combatant status by waving a white flag. The incident involving Majda Abu Hajaj and her mother Rieyh are mentioned in this HRW Report, but no mention is made of it in the Goldstone Report. Rieyh’s son Majid Abu Hajaj, a teacher at a UN school, said that he had returned to the family home on January 20 to find the bodies of his mother and sister, who had been shot while walking with a white flag, in the street. “The bodies were still lying there. Majda had been run over by a tank,” he told the New York Times. “The next day our neighbours came and brought us her [severed] foot. My mother’s body was in the yard too, partially buried under some sand.” Their bodies remained where they fell, he said, because ambulances had been prevented from accessing the area.

3. Zeitoun Massacre On 5 January 2009, 100 members of the extended al-Samouni family had taken shelter in their home in the Zeitoun neighbourhood of Gaza as gunfire and shelling erupted around them. After hours of fighting, the house was hit with rockets, bringing the building crashing down on the family inside. Up to 30 members of the family were killed.

After examining the findings of the investigation, Mendelblit ordered a Military Police criminal investigation into the circumstances of the incident. The investigation will examine the decision-making on all levels that led to the concentration of 100 family members in one home as well as the aerial attacks on nearby buildings and the house itself. This investigation could potentially result in the gravest charges yet to result from Operation Cast Lead, and may touch upon soldiers and officers of different ranks from both the ground forces and the Air Force.

The Goldstone Report alleged that the house was deliberately targeted, thereby constituting a direct attack on civilians in violation of IHL, while the IDF has maintained that the rockets were the result of attacks on nearby buildings. This incident provoked outrage around the world, as Palestinian paramedics only discovered the corpses after being prevented by the IDF from visiting Zeitoun for four days.

Israel had an obligation to facilitate the medical care of the wounded. This stems from Common Article 3 of the Geneva Conventions, reflecting customary law, which provides that “the wounded and sick shall be collected and cared for”. This entails an obligation on the warring parties to ensure the unhindered movement of medical personnel and ambulances to carry out their duties and of wounded persons to access medical care.

4. Mosque in Jabalya Refugee Camp
In the case of the Air Force attack on the Ibrahim al-Maqadma mosque in the Jabalya refugee camp, in which over a dozen Palestinians were killed, including children, the IDF found that a captain in a command outpost made a professional mistake in authorising the strike.

The IDF was not aware at the time that the building was a mosque with people inside, and the captain received permission from the combat director, a colonel, to order an air strike. Minutes later, he was informed that the building was a mosque, but did not change the order or update his superiors.

The captain was removed from his post and reprimanded for not seeing fit to inform the combat director that the building was a mosque. However, the investigation found no evidence of the Goldstone Report’s claim that this was a deliberate attack on civilians in violation of IHL. The Report had said that an Israeli projectile struck near the doorway of the building during evening prayers, killing at least 15 civilians who were inside.

Apparently the targets of the airstrike were two nearby militants, but at the time of the incidents, the BBC reported that IDF spokesman Captain Rutland had said the army had no record of a target in that specific area at that time. In any case, the attack on a building with dozens of civilians inside in order to achieve the objective of killing two militants appears to violate the principle of proportionality. In addition, the targeting of a mosque – provided that it is not being used for military purposes – is along with other places of religious worship and other protected property a violation of the Fourth Geneva Convention.

Chief Military Advocate-General Mandelblit
General Mandelblit is independent of the IDF command structure but wears a uniform, offered legal advice on targets before the operation and, according to the New York Times, is widely seen as an insider. In December 2007, he declared that the IDF’s use of cluster bombs during the Second Lebanon War complied with international humanitarian law, while the UN drew the opposite conclusion. Two investigations by the UN found that the use of cluster munitions during that war represented a violation of IHL. A group of four UN Special Rapporteurs travelled to Israel and Lebanon and submitted a report in October 2006 to the UN Human Rights Council, which criticised Israel’s use of cluster bombs as “inconsistent with principles of distinction and proportionality.” The Special Rapporteurs reported that although Israel said it acted in accordance with IHL, “actual practice fell short” in various respects, including the “reckless, perhaps even deliberately reckless, use of cluster munitions”.

He joined a chorus of criticisms of the Goldstone Report upon its release stating: “We ourselves set up investigations into 140 complaints. It is when you read these other reports and complaints that you realise how truly vicious the Goldstone Report is. He made it look like we set out to go after the economic infrastructure and civilians, that it was intentional. It’s a vicious lie”. Mendelblit has closed the case against the commander of a tank company who fired at rocket-launching militants and accidentally killed civilians in a nearby mourning tent and rejected all of the Goldstone Report’s claims that the IDF targeted civilian infrastructure, including food factories, wells and a flour mill. In all these cases, Mendelblit said, the evidence showed that the forces had targeted Hamas fighters.

Israeli human rights organisation B’Tselem has cautiously welcomed the developments. It said that even if the investigations lead to the filing of indictments against soldiers, only lowranking soldiers will be prosecuted, while the officials responsible for formulating the policy will not be held accountable for their acts. B’Tselem also expressed doubts about the impartiality and independence of the investigations, since they are carried out by an entity that is an integral part of the IDF.

* This article originally appeared on the Crimes of War Project’s website on 26 July 2010 (www.crimesofwar.org).

A summary of the Chatham House International Law discussion group meeting held
on 1 November 2007.

The meeting was chaired by Elizabeth Wilmshurst. Participants included legal
practitioners, academics, NGOs, and government representatives.

Speaker: Michael N. Schmitt, Stockton Professor of International Law, United
States Naval War College

The event was sponsored by Cambridge University Press and marked the publication
of Perspectives on the ICRC Study on Customary International Humanitarian Law.

Background
International humanitarian law (IHL) has long differentiated between the treatment of
combatants and civilians, affording certain protections to the latter. Customary and
treaty international law prohibit attacks against civilians, require that attacks which
might cause incidental loss of civilian life be proportional, and mandate the taking of
all feasible precautions to minimize such loss. Indeed, under the Rome Statue of the
International Criminal Court, it is a war crime to attack civilians.

Such special protection, however, is suspended if a civilian directly participates in the
hostilities. Professor Schmitt focused on three issues bearing on interpretation of this
customary rule. Codified in Article 51.3 of Additional Protocol I and Article 13.3 of
Additional Protocol II to the 1949 Geneva Conventions, the law allows, in particular,
civilians to be attacked “for such time as they take a direct part in hostilities.” [1]
Professor Schmitt is a member of an expert working group on the ‘direct participation
of civilians in hostilities’ (DPH). Convened in 2003 by the International Committee of
the Red Cross (ICRC) and the Asser Institute, the groups work will result, after a final
meeting in Geneva, in the publication of interpretative guidelines. However,
Professor Schmitt presented his own views on the subject, many of which have been
influenced by the working group process.

Legal clarification on civilian participation in hostilities has become necessary in light
of recent shifts in the nature of armed conflict. Traditional State-on-State conflicts
are increasingly characterized by asymmetrical warfare. In such hostilities, a
common tactic of the weaker party’s forces is withdrawal into populated areas so as
to deprive their stronger adversaries of the full advantage of superior firepower and
technology. This urbanisation of warfare expands the opportunities and incentives
for involvement of the civilian population. The shift of theatre has been accompanied
by the civilianization of many functions previously performed by military personnel.

Catering, logistics and security, for example, are commonly contracted out to private
companies such as Blackwater USA. Additionally, conflict is often characterized by
combat with non-traditional armed forces. For instance, in Iraq and Afghanistan,
American and British forces face a diverse and non-uniformed enemy which includes
remnants of the Iraqi military, insurgents, sectarian militia and transnational terrorists.

Question 1: Who is a civilian?
As only civilians enjoy the protections cited above, a preliminary issue is the
definition of the term “civilian”. For combatants (i.e. non-civilian), there is no need to
question the nature and currency of participation in the hostilities. They constitute
legitimate targets in respect of whom the obligation to take precautions to minimise
harm to the civilian population and the principle of proportionality are inapplicable.

Thus, the question of direct participation only arises once it is determined that an
individual involved in the conflict qualifies as a civilian. Professor Schmitt
emphasised that the civilian/combatant dichotomy in this context did not employ the
same test as the definition of combatants for the purposes of prisoner of war status
under Article 4 of Geneva Convention III.

With regard to international armed conflict (conflict between States), members of the
armed forces obviously qualify as combatants. For direct participation purposes, so
too do militia, volunteer corps and organized resistance groups that belong to a party
to the conflict (i.e. that are commanded and organized). Similarly, participants in a
levée en masse lose their civilian status and become legitimate targets. On the other
hand, autonomous groups, criminals, private contractors and government employees
(unless tasked by a party with combat functions) are civilians, and only lose civilian
protection for so long as they directly participate in the hostilities.

Categorization differs in non-international armed conflict (conflict within a State). The
State’s armed forces and rebel military forces (i.e. military forces that have gone into
rebellion) are combatants. This category includes non-military government forces
directly involved in the conflict (e.g. the police, intelligence services and the interior
ministry). On the other hand, whilst there is agreement that autonomous or
spontaneous fighters are civilians (who may be attacked if they directly participate),
disagreement exists as to the classification of other organised and commanded
groups.

Professor Schmitt advocated an approach which classes members of such forces as
combatants (in the DPH context) if the group in question was formed for the express
purpose of fighting (Option A). This test logically places rebel forces on a par with
government forces, who are automatically combatants by virtue of membership.
Under Option A, a member of an organised group which has both political and
fighting wings, such as Hamas or Hezbollah, is a combatant only if enlisted in the
latter. Professor Schmitt emphasised that, contrary to common misperceptions,
identification as a “fighter” is often possible; some wear uniforms, and intelligence
(e.g., phone intercepts) can reliably indicate membership in the fighting wing, etc.
Should doubt arise, the IHL presumption of civilian status would apply, such that the
individual could only be attacked if directly participating.

The alternative approach focuses on the function performed by individuals in
organised and commanded groups (Option B). By this approach, those who have
the specific task of fighting (or related functions such as military planning) qualify as
combatants (for DPH purposes); there is no need to perform a DPH analysis before
targeting them. On the other hand, if a function does not qualify because it merely
supports the group (e.g., cooking), it would be unlawful to target individuals
performing them unless they are directly participating. Indicia for this test might
include carrying weaponry, wearing a uniform and location.

Question 2: What is direct participation?
Because civilian protections under international humanitarian law are suspended
when a civilian directly participates in hostilities, the enquiry into the nature of direct
participation lies at the heart of the DPH analysis. Certain specified acts unarguably
do or do not constitute direct participation. Attacking the enemy, capturing
equipment, laying mines, sabotage and tactical intelligence collection on the
battlefield fall into the former category. Protection under international humanitarian
law, however, is not lost by civilians who care for troops or work in a factory (even
munitions factories). In a residual limbo lie many examples on which agreement is
more elusive. Examples include the civilian driver of an ammunition truck (a
quandary posed by Major General APV Rogers in Law of the Battlefield), political
leaders, aircraft maintainers, intelligence personnel, drone operators and computer
maintenance personnel.

In order to resolve consistently the status of disputed functions, it is necessary to
adopt a test of general application. Various criteria have been proposed: proximity to
the battlefront, contribution to the fight, hostile intent, and extent of military command
and control. The ICRC official Commentary to Additional Protocol I states that direct
participation requires a direct causal relationship between activity and harm done and
that it includes acts, the nature and purpose of which are intended to cause actual
harm to the enemy.

In a Chicago Journal of International Law article, Professor Schmitt had earlier
proposed a test that looked at the criticality of the act to the direct application of
violence against the enemy. An act is direct participation if the civilian can foresee
that his action will harm or disadvantage the enemy in a relatively direct and
immediate way, although it is not necessary to foresee the actual harm inflicted.

Professor Schmitt demonstrated the application of his proposal to civilians involved in
intelligence and aircraft maintenance. He considered that those involved in the
development of strategic intelligence retain civilian protection, while individuals
performing operational or tactical level intelligence functions are direct participants.
Similarly, whilst flightline aircraft maintenance personnel are legitimate targets,
depot-level workers are properly classed as non-participating civilians.

Elements of this approach appear in the emerging consensus regarding the nature of
direct participation, although some critics have expressed concern about the difficulty
of ascertaining the intentions of civilian actors. That consensus centres on three
cumulative criteria. The first requires that the actions in question harm (or be likely to
harm) the enemy. Either enemy military operations must be affected (e.g. disrupting
logistics, gathering intelligence, clearing enemy mines and computer network
attacks) or civilians and civilian objects not under control of the attacker have to be
harmed. An unsettled issue in this regard is whether voluntarily shielding lawful
military objectives would qualify. Professor Schmitt’s own view is that although they
neither pose a risk to the attacker nor physically impede military operations, voluntary
human shields do inflict harm in the sense that they can absolutely prevent an attack
as a matter of law (through operation of the proportionality principle).

The second criterion is a direct link between the act and the harm to the enemy (or
civilian objects/civilians). In other words, is the act in question an integral part of a
concrete military operation, rather than one which merely supports or sustain the war
effort (such as revenue collection)?

Finally, an act of direct participation has to be designed to affect negatively the
enemy such that there is a belligerent nexus. As an example, even if harm inflicted
in a criminal bank robbery meets the first two tests, it does not equate to direct
participation.

Professor Schmitt applied these criteria to the case of defensive actions by civilians.
Civilians defending themselves against unlawful (even military) actions are not direct
participants. On the other hand, those who intentionally guard military objectives
against enemy action qualify (although individuals involved in such activities might
constitute combatants, thereby negating the need to do a DPH analysis). More
problematic is the case of civilians taking defensive actions when simply present at
military objective under lawful attack. Professor Schmitt opined that such actions
would be direct participation.

He then discussed the issue of how to resolve doubt as to whether an act amounts to
direct participation. Doubt regarding civilian or combatant status must, pursuant to
an accepted IHL principle, be resolved in favour of finding civilian status. In contrast,
the benefit of the doubt falls the other way when it is unclear whether there is direct
participation. He justified this approach on the bases that it provides clearer lines for
combatants (whose lives would be at risk if ambiguous conduct was interpreted in
favour of civilian status) and discourages the involvement of civilians in armed
conflict. Thus, it is an appropriate balance between military necessity and
humanitarian considerations (a balance that underlies most IHL norms).

The standard of proof for the test of direct participation is that of the reasonable
combatant in the circumstances. Professor Schmitt emphasised that it would not be
appropriate to transpose court room standards of proof, such as the criminal
standard of proof beyond reasonable doubt, to the decisions of combatants in the life
and death environment of the battlefield.

Question 3: What does “for such time” mean?
The final legal issue is the duration of participation, specifically, the meaning of “for
such time”. The approach espoused by many, and reflected in the ICRC
Commentary to Additional Protocol I, views immediate preparations for and return
from combat as participation; prior and later periods do not qualify. The
unsatisfactory consequence of this stance is that it creates a “revolving door,” by
which a civilian might, for instance, farm by day (and be protected from attack) but be
a guerrilla by night (i.e. a legitimate target). Professor Schmitt favoured an
alternative approach that regards participation as continuous until the civilian opts
out, either for an extended period or by an affirmative act. In addition to jamming the
revolving door, this approach places the risk of mistake in classification on the direct
participant (who after all chose to participate), rather than the attacker.

Professor Schmitt emphasized that the opting out requirement did not violate the IHL
presumption of civilian status. Opting out relates to the temporal component of
participation, not to the status of the individual. Indeed, the individual must be a
civilian before the issue of DPH even arises (see above).
Liability of Directly Participating Civilians

Professor Schmitt concluded by noting that direct participation is in and of itself not a
violation of IHL. However, the underlying conduct which constitutes the direct
participation (such as attacking civilians) might amount to either a war crime or a
violation of the domestic law of States with subject matter and personal jurisdiction.
US Legislation

The potential criminal liability of Blackwater security personnel involved in the
September 2007 killing of Iraqi civilians serves as an interesting case study of
domestic criminal jurisdiction.

With regard to prosecution in the Iraqi judicial system, Coalition Provisional Authority
(CPA) Order 17 gave US contractors immunity from the Iraqi legal process for “acts
performed by them pursuant to the terms and conditions of a contract or sub-contract
thereto”. When the CPA was dissolved in June 2004, Order 17 remained part of the
law of Iraq. Although the Iraqi government is moving towards rescission of the Order,
that had (at the time of his presentation) not yet been done.

Numerous US statutes extend US jurisdiction abroad for actions during hostilities.
The US War Crimes Act of 1996 provides for the domestic prosecution of grave
breaches of Geneva Conventions I-IV or certain specified violations of Common
Article 3 when committed by or against US nationals or service members. The
Federal Anti-Torture Statute of 1994 allows prosecution of US nationals or anyone
present in US who commits or attempts torture. No prosecutions of contractors have
taken place under either Act.

US Special Maritime and Territorial Jurisdiction (SMTJ) legislation specifies thirty
crimes, including murder, that are prosecutable if committed by or against US
citizens on overseas military bases or facilities. In 2007 David Passaro, a CIA
contractor, was sentenced to over eight years in prison for assaulting a detainee in
Afghanistan. However, because the September killings occurred outside US bases,
the SMTJ cannot be used to prosecute Blackwater staff.

The Military Extraterritorial Jurisdiction Act (MEJA) provides for the prosecution of
“persons employed by or accompanying the armed forces” who have committed
felonies. To date the only successful conviction under MEJA has been of a
contractor for possession of child pornography. Professor Schmitt noted that
prosecutions of Blackwater staff are unlikely, as MEJA covers contractors of the
Department of Defense (DoD) and other federal agencies so long as the contract
“relates to supporting the mission of the Department of Defense overseas”. The
relevant Blackwater security personnel were providing support to the State
Department, not the DoD.

In October 2007 the US House of Representative passed the MEJA Expansion and
Enforcement Act of 2007. Although too late for Blackwater prosecutions, this Act
extends the reach of MEJA to all government contractors overseas where armed
forces were conducting “contingency operations”. The Act has now been sent to the
Senate, which must approve it before it becomes law.

The Uniform Code of Military Justice (UCMJ) provides for the administration of
military justice. With regard to civilians, UCMJ jurisdiction was originally limited to
those “serving with or accompanying an armed force in the field” in time of war that
had been declared by Congress. As wars are no longer formally declared, the UCMJ
was amended on 1 January 2007 to further encompass those serving in “a
contingency operation”. Whilst no Executive Order implementing the legislation has
been issued to date, the Deputy Secretary of Defense, in a 25 September 2007
Memorandum, emphasised that “DoD contractor personnel (regardless of nationality)
accompanying U.S. armed forces in contingency operations are currently subject to
UCMJ action. Commanders have UCMJ authority to disarm apprehend and detain
DoD contractors suspected of having committed a felony offense in violation of the
[Rules for Use of Force], or outside the scope of their authorized mission, and to
conduct the basic UCMJ pretrial process and trial procedures currently applicable to
the courts-martial of military service members. Commanders also have available to
them contract and administrative remedies, and other remedies, including discipline
and other possible criminal prosecution.” Professor Schmitt noted that the
constitutionality of the extension of UCMJ jurisdiction over civilians (or at least some
of the civilians encompassed in the 2007 amendment) has been questioned. For
instance, some commentators argue that under the 1957 case of Ried v. Covert
civilians are entitled to due process standards which US military proceedings may not
meet. He noted that it will be interesting to see how the federal courts address this
matter.

Prevention
Professor Schmitt concluded by noting that the United States has taken numerous
steps to monitor and control the use of force by contractors. For instance, US
Central Command (CENTCOM), which controls operations in Iraq and Afghanistan,
requires that civilians acknowledge its Rules on the Use of Force (RUF) in writing.

These rules provide that:
“Civilians Armed for Personal Protection: Are noncombatants. You may not engage
in combat actions with Coalition Forces, or defend Coalition military supplies or
facilities. You are armed for personal protection only.”
“You may use NECESSARY FORCE, up to and including deadly force, against
persons in SELF-DEFENSE, against a hostile act or demonstrated hostile intent
(threat of imminent use of force).”

Before being armed, civilians must undergo training in the Rules on the Use of Force,
Rules of Engagement (ROE) and the Law of Armed Conflict (IHL).
On 23 October 2007, the State Department issued a new State Department Policy
regarding security services. It requires a State Department representative to
accompany all contractors who are performing “Personal Protective Service”
movements. The policy further: requires additional cultural awareness training, as
well as training on the tactics and procedures of the Multi-national Force in Iraq
(MNF-I); restates the US Mission firearms policy, which limits the use of deadly force
to “aimed shots”, requires consideration of the presence of bystanders and mandates
the avoidance of civilian casualties; imposes technical requirements to monitor
operations; and develops procedures that will enhance State Department security
cooperation with MNF-I.

[1] Similar legal provisions are found in Common Article 3 of Geneva Conventions I-IV, Rule 6 of the
ICRC Study on Customary International Humanitarian Law and Article 8 of the Rome Statute.

Posted November 2009

(Download pdf)

Why has Africa had so much civil war? In all other regions of the world the incidence of civil war has been on a broadly declining trend over the past thirty years: but in Africa the long term trend has been upwards. Of course, every civil war has its ‘story’ – the personalities, the social cleavages, the triggering events, the inflammatory discourse, the atrocities. But is there anything more? Are there structural conditions – social, political or economic – which make a country prone to civil war? Might it be that the same inflammatory politician, playing on the same social cleavages, and with the same triggering events, might ‘cause’ war under one set of conditions and merely be an ugly irritant in another?

Although I am an Africanist, I like to set Africa in comparative perspective. If Africa is different – as it clearly seems to be in respect of civil war – there are two possible types of explanation. Africans could simply behave differently from others when faced with the same situation. Alternatively, for a given situation their behaviour could be much like anyone else’s, but the situations they face could be systematically different. To sort this out we need to look globally, not just regionally. Together with Anke Hoeffler, I have analyzed global data covering the last forty years, trying to see why most countries at most times have avoided civil war, while others have not. Our approach has been statistical – trying to see whether any characteristics of a society could account for a subsequent eruption into war. Within the limits of data availability, we have tried to include social factors (such as inequality, and the ethnic and religious composition of a society), history (such as the time since decolonization), and politics (such as the extent of democratic political rights) as well as economic characteristics. We find a pattern and we find that Africa fits that pattern.

Economic Roots of Civil War
Surprisingly, the dominant factors are economic. Three factors matter a lot for the risk of civil war: the level of income, its rate of growth, and its structure. If a country is poor, in economic decline, and is dependent upon natural resource exports, then it faces a substantial risk that sooner or later it will experience a civil war. Typically, such a country runs a risk of around one-in-seven every five years. Like Russian roulette, things might go well for a while, but then some conjunction of circumstances – the personalities, the triggering events – ignite violent conflict. Of course, when this happens, the media focus on the personalities and the triggering events. These are indeed the proximate ‘cause’ of the conflict. But the big brute fact is that civil war is heavily concentrated in countries with low income, in economic decline, and dependent upon natural resources.

Africa is the one region where such economic characteristics are the norm and this fully explains Africa’s distinctive incidence of civil war. Yes, Africa is riven by ethnic differences, so that where civil wars flare up they will invariably be fought along ethnic lines. But this does not mean that the ethnic differences are ‘causing’ the conflict. Globally, ethnically diverse societies are no more at risk of civil war than other societies. The only exception to this pattern is where the largest ethnic group is in a majority – that does indeed increase risks and we can think of examples in Africa. But Africa is so ethnically diverse that in most societies no group is in a majority. Fewer African societies have ethnic majorities than other regions.

In respect of the three economic characteristics, Africa is most distinctive in terms of natural resource dependence. Africa as a region still has a much higher ratio of land to population than other regions, and natural resources are basically randomly distributed under the land. Further, for various reasons, Africa has not managed to break into the global market for manufactures. Whereas twenty years ago the typical developing country was dependent upon natural resource exports, now 80% of developing countries’ exports are manufactures. Africa has thus got stuck in resource dependence while other developing regions have moved on. Why does this matter?

Why Natural Resources Fuel Conflict
Natural resources generate what economists term ‘rents’ – meaning profits that are much higher than the minimum level needed to keep the activity going. The trouble from natural resources stems from these rents. There are six routes by which natural resource rents increase the risk of violent conflict; four relate to political economy and two are straight economics. Let’s start with the political economy. The most obvious route is that natural resource rents are a ‘honey pot’. Politics comes to be about the contest for control of these revenues. This produces a politics of corruption – aided and abetted by foreign corporate behavior – and sometimes directly a politics of violence. The stakes are highest in low-income countries because the control of the state implies massive revenues relative to other income-earning opportunities. Further,this politics of rent-seeking diverts the public arena from its normal function of achieving the collective action that is necessary to supply public goods – the social and economic infrastructure that all societies need. The society thus loses out twice over: in the struggle for resource rents other resources are dissipated, and the supply of public goods declines. Nigeria provides a striking example of such a politics of contest for oil rents.

The second route by which natural resource rents increase the risk of war is through the detachment of government. Because resource-rich governments do not need significant other tax revenues they become detached from their electorates. In most societies, because electors have to pay high taxes, they scrutinize the government to see how it uses their money. This was indeed how democracy developed in the West. The campaigning slogan ‘no taxation without representation’ can be inverted to the depressing reality of ‘no representation without taxation’. In many resource-rich societies the resource rents are not seen as belonging to ordinary people in the same way as income taken from them in taxes – hence the detachment. The government is able to ignore the concerns of the population. Mobuto’s Zaire was a classic example of such detachment.

Even when neither of these first two effects directly leads to a civil war, they produce between them a dangerous cocktail of a dysfunctional politics of self-interest and a governing elite that is detached from the concerns of ordinary people. These two characteristics then combine with a third dangerous factor:  natural resources are usually found in only part of the country, often in a peripheral area. The people who live in this area are ready prey for secessionist political movements. To the usual romantic propaganda of identity politics, secessionist leaders can add the powerful language of economic self-interest:  ‘our’ resources are being squandered by a corrupt and alien elite. Large natural resource rents not only make civil war more likely, they make it more likely that a civil war will be secessionist. Biafra, Katanga, Cabinda: Africa’s secessionist wars have usually been related to natural resources.

The final political economy route by which natural resources increase the risk of civil war is that they provide an obvious source of finance for rebel groups. Even if the rebellion is not motivated by these rents it is greatly facilitated by them: from the proceeds leaders can purchase arms and pay recruits. Warfare is a costly business: whereas thirty years ago rebel groups largely had to depend upon a friendly government for finance and armaments, now rebellion has been privatized’ – markets in natural resources and armaments have developed to the extent that rebel groups can be self-sufficient. Rebel groups gain access to natural resource rents in several ways. One is to run protection rackets against the companies or people who are the exporters. Another is directly to operate extractive businesses. Yet another is to sell concessions to mineral rights in anticipation of subsequent control of the territory. The prolonged viability of UNITA in Angola and the RUF in Sierra Leone; the violent gangs of the Nigerian Delta; and the successful rebellions of Laurent Kabila in Zaire and of Denis Sassou-Nguesso in Congo Brazaville, were all assisted by one or the other of these methods of natural resource financing.

In addition to these political economy effects there are two economic effects that increase the risk of civil war. Resource rents appreciate the real exchange rate causing ‘Dutch disease’, whereby the rest of the export economy contracts. Usually in Africa the non-resource export economy is based on agriculture, so that small farmers in some areas face sharply declining income despite the influx of wealth into the economy. Finally, the prices of natural resources are usually highly volatile, so that the economy becomes subject to booms and busts. This pattern typically depresses the long term growth rate, and it also implies periods of severe contraction. Recall that economic decline is itself a risk factor for civil war.

Does It Have to be Like This?
Through these six routes, to date natural resources have largely been bad news for Africa. But it doesn’t have to be like that. Revenues from natural resources are an enormous opportunity for low-income African economies. Especially for landlocked countries with hostile climatic conditions, such as Chad, natural resources probably offer the only option for significant poverty reduction. This is the dilemma: resource rents have the potential for good as well as for bad. The strategy of saying ‘just leave the resources in the ground’ sacrifices the potential for good as the price of avoiding the bad. Historically, such a strategy would usually have been an improvement on what actually happened. But, as well as being a counsel of despair, it is unrealistic. As a result of the geo-politics of oil, there is a rush of new discoveries in small, poor African countries – Equatorial Guinea, Mauritania, Sao Tome and Principe, Gambia. These resources are not going to be left in the ground. The challenge for both Africa and the international community is to change the political and economic governance of such resources so that the future is not a repetition of the past.

Two contrasting examples help to bring the issues into focus. Thirty years ago Botswana and Sierra Leone had the same level of per capita income. Then they both received enormous diamond income. The government of Botswana succeeded brilliantly in harnessing these revenues for economic growth:  for many years Botswana was not just the fastest growing economy in Africa, it was the fastest growing economy in the world. As a landlocked desert, it is easy to imagine Botswana’s fate in the absence of diamonds. Sierra Leone had a dramatically different experience. The diamond revenues fomented violent political contests which destroyed the society. The economy collapsed, and now the country is at the bottom of the Human Development Index. The differential between the two countries in terms of per capita income is now an astonishing ten-to-one. The economic and political governance of natural resource revenues was evidently absolutely vital in producing this massive divergence in outcome. In short, although policies and governance always matter, they matter much more where there are large natural resource rents. Africa needs more Botswanas and fewer Sierra Leones: which of them will Equatorial Guinea, Sao Tome and Principe, Mauritania, and Gambia resemble two decades hence?

How African Societies Can Help Themselves?
If I was a citizen of an African natural resource economy I would want to know how to become Botswana and to avoid the fate of Sierra Leone. I think that the magic ingredient that makes the difference is scrutiny of government by the country’s citizens. Unfortunately, scrutiny is a ‘public good’ – that is, if it is provided, the whole society benefits. The incentives for individual action are thus all wrong – basically, the smart thing to do is to sit back and hope that someone else goes to the trouble of providing public goods such as scrutiny. Societies need ‘collective action’ to overcome the public goods problem and because Africa’s societies are so highly diverse –more ethnically diverse than anywhere else in the world – they find it unusually difficult to supply public goods at the national level.

Of course, people and groups lobby the government, but overwhelmingly this lobbying is not for the national interest but for individual or group advantage. But there are ways around this problem. In an ethnically diverse society it is probably much easier to organize scrutiny at the local or regional level than at the national level – at the local level ethnicity is likely to unite people in collective action, just as at the national level it is likely to divide them and frustrate collective action. If the rents from natural resources could be transparently and fairly distributed to sub-national levels of government there is some hope that such governments would come to face serious citizen scrutiny. The challenge is to get to this stage where rents accruing at the national level are seen to be fairly distributed to the regions.

The Right Agenda for Outsiders
This is where the rest of us come in – those of us who are not African citizens and so have little basis to tell African governments what they should and shouldn’t be doing. What we can legitimately do is to make it easier for African citizens to get to the stage at which they can overcome their collective action problem and scrutinize how resource rents are used at the local level. Specifically, we can help to make natural resource rents transparent at the national level. This has been the agenda of NGOs such as Global Witness – now picked up by the British government’s Extractive Industries Transparency Initiative – and I think that it is the right agenda. At least, it is the right agenda for us. Transparency in reporting revenues is itself only an input into scrutiny – it makes domestic scrutiny easier. It doesn’t make it happen automatically, but without transparency in revenues there can be no scrutiny of how they are used.

Another key area for international action is that banks should be required to cooperate in tracking down misappropriated natural resource rents. For example, the Nigerian government has recently abandoned the attempt to repatriate the vast Abacha wealth from London banks because the process was proving to be an unending legal nightmare. What is the incentive for African societies to scrutinize their leaders if corrupt wealth is so well-defended by Western legal systems?

A further area for international action is the acquisition of natural resource contracts. Too often Western corporations have connived with African political leaders to reach deals that were mutually profitable at the expense of the country. Transparent competitive tendering must become the norm. When NorthSea oil concessions were awarded we would not have tolerated an oil company concluding a secret private deal with a minister; we should not tolerate such a practice in Africa.

This, to my mind, is the agenda for corporate social responsibility in Africa:  transparency in bidding for resource concessions; transparency in revenue payments to governments; and cooperation by banks in tracking misappropriation of rents. Sadly, it is far from the currently dominant agenda. International resource extraction companies live in terror of two powerful forces – Western consumers who may boycott their products; and the local people living around their installations, who may kidnap employees and damage equipment. They have responded to Western consumer pressure – itself based on a lazy, teenage misdiagnosis of Africa’s ills – by trying to look like good employers and good environmentalists. They have responded to local extortion rackets by providing health and education facilities in the neighborhood of their installations. Frankly, both of these are at best irrelevant. High wages mess up the labour market and so cost jobs; it is governments, not companies, that should be supplying basic social services. What has got lost is the legitimate, indeed essential role that companies can play in helping African societies to scrutinize their governments. Corporate social responsibility in Africa must be radically redefined.

* This article originally appeared on the Crimes of War Project’s website on
October 2004 (www.crimesofwar.org)

Compiled & written by Ken Guest, RAM Seeger, and Lucy Morgan Edwards

Posted 20 May 2010

ABOUT THE AUTHORS

Ken Guest is a former Royal Marine and photo-journalist. He has recently been working in Kabul and has now been closely involved with Afghanistan for 29 years.  During their struggle against the Soviets he probably spent more time inside Afghanistan, living and working with the Mujahedin, than any other Western witness to that conflict.  A sizable part of this time was with Jalalludin Haqanni, who now runs the Taliban campaign on the Eastern border.  He has also drunk tea and discussed religion with Osama bin Laden.  As a result of that past, he has a first hand knowledge of not just how the ordinary Afghan thinks, but how the Taliban and Al Qaeda think and act.  Ken has written, contributed to and illustrated several books eg “Flashpoint!” and “British Battles”.

‘RAM’ Seeger is a former Royal Marine who left the corps in 1976 after commanding the Special Boat Service.  He won a Military Cross with 40 Commando during the Borneo confrontation, was an instructor at the Royal Military Academy Sandhurst, and attended the Army staff college at Camberley.  After leaving the Corps he set up a Special Force for the Sultan of Oman and then became a security consultant. During the early 1980s he made a number of trips into occupied Afghanistan to give training and help to the Mujahedin.  Most of these were to the Panshir valley for Ahmed Shah Massoud. After this he did an MA degree in War Studies at King’s College London.  In 2001 he lobbied for Western support of Abdul Haq (sometimes written, ‘Abdul Hak’), along with Ken Guest and another friend and colleague – Sir John Gunston

Lucy Morgan Edwards first worked in Afghanistan running urban development projects in Kandahar and Herat during the Taliban period. The ‘community forum’ aspect of these programmes later became known as the National Solidarity Programme (NSP). After spending five years in Afghanistan as an election monitor, researcher for the
International Crisis Group and journalist, she was Political Advisor to both Francesc Vendrell, the EU Special Representative, and Emma Bonino, Chief Election Observer on the 2005 Parliamentary elections. Her new book about Abdul Haq and the tribalbased peace plan he advocated for Afghanistan in the run up to and just after
September 11 will be published in the Summer of 2010 and found on Amazon. She is married to the Director of Law for the International Committee of the Red Cross.

 SUMMARY OF PAPER

• The current internationally agreed strategy for Afghanistan is unlikely to work as it has been based on flawed assumptions or hopes.

• Negotiating with the Taliban is unlikely to produce a satisfactory answer either.

• More likely to succeed is a bottom up system of community based governance in which tribal leaders would be empowered with the responsibility for local governance by traditional jirgas (councils), and once this was fully acknowledged and functional – the security of their tribal lands.  They would achieve this through the use of tribally raised, and tribally controlled, tribal forces.

• There would still be a need for effective central government but it would have a lighter footprint to the one currently envisaged.  The tribes instead of being excluded and viewed as a problem would be used as active allies.

• Such an arrangement would be quite different from the misunderstood use of tribal forces that has been tried to date and has consistently failed.

• Unlike the paid retainers of warlords, or auxiliary forces raised and controlled by the central government, these tribal forces would be controlled by their own tribes-people and tribal leaders, operate in their own areas and work for the readily perceived benefit of the tribe providing them.

• A policy of co-operating with and using the tribes could be considered for all of Afghanistan, but is likely to have most resonance and effect in the Pushtun belt.

• The Pushtun belt is the prime battle space in the war against the Taliban.  If the Taliban lose the support of the tribes in this, they will ultimately fail.  If they retain the support, it will be almost impossible to defeat them.

• Although central government should resist the direct control of tribal forces, they must of course support them and provide follow up forces for situations they cannot control or deal with.

• The first layer of support could be a formally recognised tribal police force, not dissimilar to the tribal police on Native American reservations.  Subsequent support could be from provincial Police units and regional Army regiments.

• An alternative or addition to the soft edge of state control provided by tribal police, could be one based on an old North West Frontier organisation known variously as the Frontier Corps, the Levy or the Scouts.  It would be controlled by a Political agent and as well as providing back up would keep quarrelling tribes apart and punish misdemeanours of tribe against tribe.

• A criticism of the tribal structure is that it has been mortally weakened by the pre-9/11 Communist, Mujahedin and Taliban regimes, and the assassination of uncooperative leaders since by Taliban and Al Qaeda insurgents.  These have certainly damaged the structure, but not fatally.

• Another criticism is that the use of tribal forces would lead to a loss of control by the Government, but in fact tribal empowerment and tribal forces could be a means of establishing control – they would secure the land and could become a foundation on which effective national institutions were built.A new, independent and authoritative study is urgently needed to establish the current viability of the tribal path, and more importantly perhaps, how to get on it and follow it successfully.The first step, in both assessing the option and starting along the path, should be to find out more about Afghan tribes than is currently the case – how they socially and economically inter-relate, what they want and how this could be effected.

  The study should consider the needs of other areas of Afghanistan as well as of those in the Pushtun belt, although it is likely that a tribal strategy will have universal relevance.

• Having decided that the tribal path is worth following, the next step is to understand that even after finding the right people to deal with, it will not be easy to build up bonds of trust.
• Having won the trust and cooperation of the tribes, the third step is to realise that in order to keep this and use it productively, the tribes must lead the way.
• Tribal forces will work if they are raised and controlled by the tribes and seen by the tribes as working on their behalf.  They will not work if they are merely an extension of central government power in tribal disguise.Embarking on the tribal path will note be easy.  It is not something that can be done quickly or cleanly. As well as assessing the tribal path’s viability, and obtaining the information, knowledge and trust to effect it, the study would also have to draw up an outline plan for implementation.

• Greater tribal cooperation and understanding would further allow the Government to appeal to those Afghan Taliban whose only real concern and cause is a free and peaceful Afghanistan, without the presence of foreign troops.Working with the tribes, as closely and co-operatively as you can, should become a principle applicable to nearly all aspects of government – law and order, justice, the organisation and use of the police and military, defence strategy, reconstruction and aid.  The failure to do so has been the main cause of our troubles and why the Taliban – who do understand this principle and have followed it with unscrupulous vigour – have been able to expand so effectively.
  

• Having decided on the tribal path it is essential to publicise and propagate it.  This is not because of any uncertainty or weakness, but to acknowledge the fact that the current war against the Taliban, is a war of perceptions, as much as of kinetic measures.

THE TRIBAL PATH

A more hopeful strategy for Afghanistan

FLAWED ASSUMPTIONS AND HOPES
The current internationally agreed strategy for Afghanistan is unlikely to produce a
satisfactory outcome. This is because, like most of the other options previously
considered, it has been based on three flawed assumptions or hopes:
- Afghanistan needs, and could acquire, a strong western style centralised
government in order to prosper, and keep out Al Qaeda.
- The Taliban and Al Qaeda can be defeated, or kept at bay, with large numbers of
troops from a centrally controlled army.
- These troops can eventually be provided by an expanded and Western trained
Afghan army and police force.

None of the above are true, likely or desirable.
- Centralised government has always been resisted or viewed with suspicion. To
succeed it must reach an acceptable accommodation with the basic building
blocks in Afghan society – the kinship group, clan and tribe. (Of the 29 central
rulers since 1747, 19 have been killed, deposed or forced out of office ¡V these
include 12 out of the 13 rulers immediately preceding Karzai.)
- In contrast, Tribal authority has invariably been accepted, and because it is
based on open debate and consensus, and serves a feudal and illiterate society,
is much fairer and more democratic than a western style electoral system which
is misunderstood, difficult for rural Afghans to participate in, and easily
manipulated.

- It is highly unlikely that the current Afghan Government could be reformed and
established on a proper footing. This has less to do with will and principle and as
much, if not more, to do with the sheer size of the problem, early mistakes by the
West in their choice of people to back and the uncoordinated nature of the
international support.
- The Government and the West are interdependent on each other. Without the
support of the West (or a similar sponsor), the Government is likely to fall, and if
it does, the West will be seen to have failed. In the meantime the West is judged
by the quality of the individuals and institutions it supports and sponsors, and is
losing support and goodwill as a consequence.
- Western sponsors and the Government therefore have opposing interests. While
the sponsors want a strong and stable government so they can withdraw, the
Government needs the sponsors and their armed forces to stay in place.
- More foreign troops = more targets = more engagements = an enhanced
perception that the US and NATO are an anti-Islamic army of occupation and a
threat to tribal lands and culture.
- A large centrally controlled Afghan army is seen as an extension of the central
government, so is usually viewed with the same suspicion and dislike.
- A rapidly and over expanded Afghan army is unlikely to be well trained, efficient
or ethnically representative. This will add to the suspicion and dislike.
- It is unlikely too, that the Afghan Government will be able to sustain it without
outside financial assistance. It will therefore also be regarded as a mercenary
army.
- For all of the above reasons, the ANA will have great difficulty filling the vacuum
left by departing Western forces– especially in Pushtun dominated areas.

NEGOTIATING WITH THE TALIBAN IS ALSO NOT THE ANSWER
Negotiating with the Taliban is unlikely to produce a satisfactory answer either. The
Taliban perceive themselves to be winning and will see this as a discussion of
surrender terms. Also, those likely to be conducting the negotiations will be the Jihadist
element – a violent political minority, that has only been able to coerce or draw support
from the tribes, because Western strategy has failed to make full use of the tribal
resource. This failure has been further aggravated by the support the West has given to
warlords and to a government, deemed by many Afghans to be corrupt and illegitimate.

BOTTOM UP COMMUNITY BASED GOVERNANCE MORE LIKELY TO SUCCEED
Much more likely to succeed is the one option that does not appear to have been
properly considered or tried and that goes with the grain of Afghanistan¡¦s tribal traditions
- to borrow a phrase from Lord Ashdown [1] – i.e., that works from bottom up rather than
top downwards, is based on tribal communities and that empowers and relies on tribal
leaders, rather than a distant and disconnected central government.

There would still be a need for effective central government but it would have a lighter
footprint than the one currently envisaged for it. Instead of trying to establish strong
institutionalised central authority, it would act more as an administrative and
coordinating hub for servicing autonomous regions. The tribes, instead of being
excluded and viewed as a problem, would be used as active allies. Tribal leaders
would be empowered with the responsibility for local governance by traditional jirgas
(councils), and once this was fully acknowledged and functional ¡V the security of their
tribal lands. They would achieve this through the use of tribally raised, and tribally
controlled, tribal forces.

WHERE THINGS HAVE GONE WRONG IN THE PAST
Such an arrangement would be quite different from the misunderstood use of tribal
forces that has been tried to date and has consistently failed.

The first of these was the use of warlords and their paid retainers. These were
charismatic local strongmen, but were rarely, if ever, tribal leaders. They were (and
are) essentially gangsters, who were able to impose their will by force and whose prime
motive was power and money. Tribal leaders, in contrast, are often hereditary, always
agreed to by the tribes-people and have as their prime concern, those they represent.
The forces used by these two types of leader were also very different. The warlord
forces [2] were recruited by the warlord and paid by him. Traditional tribal forces were
usually unpaid, and were voted into the task by the tribal community they were working
for.

The second attempt at using tribal forces has been the raising of tribal militias, under
central government and/or ISAF control, for use in the country-wide struggle against Al
Qaeda and the Taliban. This again misses the point. The essence of tribal forces has
always been that they were controlled by their own tribes-people and tribal leaders,
operated in their own areas, and worked for the readily perceived benefit of the tribe
providing them i.e., the maintenance of local law and order, and the protection of their
people from outside interference and aggression.

Finally, it should be noted that following the path does not mean the enrichment and
empowering of tribal relatives and cronies by a favoured leader. Nor does it follow that
because a government minister is a member of a tribe, that the tribes are involved in
government!

THE PUSHTUN BELT – THE MAIN JUSTIFICATION FOR THE TRIBAL PATH
A state policy that involved co-operating with and using the tribes, could be applicable
to all of Afghanistan, but it is in the Pushtun belt (the South and the East) that it would
have the most resonance and effect.

The tribal influence is much stronger there and the majority of the Taliban are drawn
from the Pushtun tribes. The Pushtun belt is also the prime battle space in the war
against the Taliban. Shifting attention and investment to the north will only aggravate
the situation in the south as the Taliban will be able to depict this as Western opposition
to the Pushtuns and drive the war closer to an ethnic confrontation. Conversely if you
can improve stability in the south and east, you will also improve it in the north and
lessen the dangers of a civil war.

To this end, control of the Pushtun dominated gateway provinces could have a
significant effect on Taliban strategy, as it would disrupt their ability to service their
forces inside Afghanistan. Paktia, Logar and Zabul form a Taliban resupply rat-run.
Control of this would reduce pressure on the northern and eastern flanks of Helmand
and Kandahar.

THE PUSHTUN MAJORITY
Besides the above, the Pushtuns are the dominant majority in Afghanistan. They
number over nine million, are 42% of the population and comprise some 350 tribes.
They are also a hardy and fiercely independent people. After his 1809 visit, Monstuart
Elphinstone quoted a Pushtun he had met as saying, “We are content with discord, we
are content with alarms, we are content with blood . . . we will never be content with a
master.¨ Not to understand and work effectively with a people like this is a terrible
waste, and has repercussions beyond the border as 25.6 million Pushtuns live in
Pakistan. It must be remembered too that it was the alienation of the Pushtuns by a
predominantly Northern Alliance government that led to the re-emergence of the
Taliban after their post 9/11 overthrow.

TALIBAN USE OF THE TRIBAL PATH
But perhaps the strongest argument for the following of the tribal path, is the use made
of it by the Taliban. Unlike the West or the Afghan Government, the Taliban have taken
active (and successful) steps to utilise the tribal dynamic — at first using its support and
then replacing it with its own direct influence and control. A policy of tribal
empowerment and co-operation would therefore not only give the Government a very
effective asset, it would deny the same to the Taliban. This is important because if the
Taliban lose the support of the tribes, they will ultimately fail, while if they retain
the support, it will be almost impossible to defeat them.

TRADITIONAL TRIBAL FORCES
What is being proposed is not an unfounded ideal–it is a proposal based on history
and the nature of the country we are trying to help. In case there are doubts that tribal forces could work, one should look at how they were once organised and deployed in the most critical part of Afghanistan–the southeast. In
doing so, one should take note again, not only of the huge differences between central government and/or warlord tribal forces and those that are elected by, and directly answerable to, the people, but also the democratic nature of the tribal jirgas controlling them (see an excellent paper on this subject by Mohammed Osman Tariq [3].

Traditionally there were three types of tribal security force–the Kishakee who gathered intelligence, the Lashkar who were a large grouping called together for defence against a common enemy (usually also an enemy of the country), and best known and most used, the Arbakai. The Arbakai were volunteers and respected members of the community. They were embedded in the community, engaged on community tasks, and were answerable to the community. Their main duties were to implement their Jirga¡¦s decisions, maintain law and order, and protect the borders and boundaries of the tribe or the community. Unlike militias they were unpaid and not used for the political or financial interests of individuals. Moreover, whilst being an Arbakai member was considered an honour, belonging to a militia was considered shameful. The system was trustworthy and sustainable because of the nature of the Jirga. This was a collective and transparent mechanism, well suited to the people it managed. There were Jirgas at different levels of society, with every member of the tribe and community being allowed to attend their meetings. Tribesmen received information through their representatives in the Jirga, and everyone was fully aware of decisions made, and allowed to ask their leaders and representatives to justify these. Jirga members were voted in on grounds of capability and included women, often from nonprominent households.

STILL APPLICABLE TODAY
Mohammed Osman Tariq gives two interesting examples of recent Arbakai usage. The
first was in the refugee camps during the 1980s, and the second was when the Mangal
tribe decreed that anyone involved in insurgency related activities would be banished
and have his house burnt. In early 2007 one of the tribesmen was killed when an IED
he was attempting to install, accidentally exploded. The Jirga still implemented its
decision. The dead man’s house was burnt and his family asked to leave the tribal
area.

Another example of a recent tribal forces initiative is a small 80 man police unit created
in Paktia. This was motivated by dissatisfaction with the current situation and a belief in
Afghanistan’s tribal roots, and was preceded by a tribal alliance of 11 tribes (previously,
not always the best of friends). There were 2000 volunteers for this unit, which also
says something about the yearning for improvement amongst ordinary people.
Even more recent is the example of the Shinwari tribal elder, who when told by the
Taliban to hand over his son, turned not the Government or the Coalition forces for help
but to the tribe, who after due deliberation, agreed to forbid further cooperation with the
Taliban [4].

GOVERNMENT SUPPORT
Although central government should resist the direct control of tribal forces, they must of
course support them, and provide the follow up forces for situations they cannot control
or deal with. Properly supported the tribes will secure their own areas for themselves but if they are
left unsupported they will become vulnerable to Taliban pressure and the effects of
Coalition counter action. Pressed in this vice, they will opt for the Taliban rather than
the Government and the Coalition.

TRIBAL POLICE
As trust between tribes and Government built up, the first layer of support could be a
formally recognised tribal police force. This could function in a way not dissimilar to
how tribal police are used in the USA on Native American reservations, and in addition,
provide ‘tribal rangers’ to act as listening posts and forward scouts, with follow-up units
capable of limited combat.

SCOUTS
An alternative or addition to the soft edge of state control provided by the tribal police,
might be an organisation based on one used in the early 1900s on the old North West
Frontier and known variously as the Frontier Corps, the Levy or the Scouts. These
were regionally recruited from the tribes, but were neither part of the police or the
military nor tribally owned. Instead they came under the Political agent, and were used
by him as his enforcers to back up the tribal forces, keep quarrelling tribes apart, or
punish misdemeanours of tribe against tribe. Although their loyalty was to the Scouts
rather than their tribe, a strong sense of local identity was always maintained.

ESCALATING SPECTRUM OF SUPPORT
Behind the tribal police and scouts, could be an escalating spectrum of support from
provincial Police units and regional Army regiments from a smaller and more
sustainable army. Provincial Police and regional Army regiments would gain better
acceptance by the tribes, capitalise on local knowledge and affiliations and ensure a
better understanding of the people and the land they were trying to defend. This
integrated escalation of tribal and government forces would more than compensate for
the initial ceding of control to tribal forces.

SUMMARY OF REQUIREMENT
What Afghanistan really needs therefore, is a central government with a light but
effective footprint, empowered tribal leaders, and a small, professional, welltrained
army and police force in support of tribal security forces, provided by and
controlled by the tribes. If these could be established and put into effect, they
could revolutionise the situation in Afghanistan.

THE ARGUMENTS AGAINST
In an article detailing the Shinwari agreement, the New York Times [5] lists the
arguments against the wholesale following of the tribal path. The most valid of these is
that the tribal structure has been mortally weakened by the pre-9/11 Communist,
Mujahedin and Taliban regimes, and the assassination of uncooperative leaders since
by Taliban and Al Qaeda insurgents. These have certainly damaged the structure but
not fatally–see below– Getting Started on the Tribal Path–The First Step.

Less valid arguments are those cited as the opinions of  “some Afghans¨ who “see the
tribes as inherently anachronistic, sexist and corrupt”–a system that further undermines
the already extraordinarily difficult task of creating multiethnic, merit-based national
institutions. They warn that the country would be thrown into the hands of myriad tribal
militias that the central government could never control. While these arguments may have some merit (and there will always be differences between nation state modernists and rural area conservatives), one has to wonder
whether things could, in fact, be much worse than they already are. The ANA, the
major national institution, is suffering a 25 % desertion rate amongst combat deployed
forces and does not proportionally represent the ethnic divides (some 60% of the ANA
is now believed to be Tajik with the Pushtun proportion hovering below 20% and in
danger of being overtaken by the Uzbecks). The widely perceived central government
corruption is likely to have a greater undermining effect than tribal governance, while as
for control, this is the one thing the Government (and the Western forces) have not got,
as more and more of the country falls into Taliban hands. Moreover, as this paper argues, tribal empowerment and tribal forces could be a means of establishing control ¡V they would secure the land and could become a foundation on
which effective national institutions were built. As for the anachronistic and sexist criticisms, before any reform on women¡¦s rights can be attempted, there has to be nation wide stability. (The same goes for the drug
problem too). And the best and quickest way to achieve stability is by following the tribal path.

AN INDEPENDENT AND AUTHORITATIVE STUDY
Apart from the principle of whether the tribal path would be a step forward or a step
backwards, there are likely to be huge practical difficulties in implementing it. A new,
independent and authoritative study is therefore needed to establish the current viability
of the tribal path, and more importantly perhaps, how to get on it and follow it
successfully. The study would incorporate other studies, such as the one by Susanne
Schmeidl and Masood Karokhail, which recognizes the importance of working with
traditional tribal structures to bolster state building (6).
It is essential too, that the study is independent and authoritative. It must be conducted
by Western consultants with outside-the-compound experience and understanding of
the tribes, and open-minded Afghans without vested interests.

GETTING STARTED ON THE TRIBAL PATH – THE FIRST STEP
The first step in both assessing the option and starting along the path would be to find
out more about Afghan tribes than is currently the case. This would involve not just
tribal mapping (which to a large extent has already been done), but establishing the
social, economic and historical inter-relationships between the tribes. It will also involve
much talking with and listening to tribal leaders to establish what they want, and how it
could be best effected.

Afghanistan is much more complicated than Iraq with many more tribes to study and
understand. Many have long standing rivalries and complex histories. As critics have
pointed out, recent Afghan history has also done much to confuse the tribal system, so
straightening it out will not be an easy task. Key personalities and centres of influence
are likely to be well hidden under multiple layers of disruptive experience. These will
have to be carefully worked through before reaching the deep and unadulterated roots
of the tribal matrix that we need to understand and tap into now.

Also as has been intimated earlier, what may be good for one part of Afghanistan may
not work or be a satisfactory answer in another part, so important as the Pushtun belt is,
the study should compare its needs with those in other areas and consider these also.
The likelihood however is that a tribal strategy would have universal relevance. Except
for large urban areas like Kabul, Afghanistan is a traditional, kinship-based and mainly
rural society and if other parts of country are not as tribal as the Pushtun belt, they will
at least be clannish in nature, and the West ignores or under-utilises that dynamic at its
cost. Despite regional and ethnic differences, on the ground, the shura/jirga system,
whether tribal or not, is essentially the same in the South and the North and the East
and the West.

THE SECOND STEP
Having decided that the tribal path is worth following, the next step is to understand that
even after finding the right people to deal with, it will not be easy to build up bonds of
trust. The tribes have never welcomed central government control, and instinctively
resist efforts to exercise this. This situation is made much worse, when as is the case
now, the central government has failed to deliver any benefits, and is widely perceived
to be corrupt and incompetent. The tribes also have no reason to trust or love the US
and ISAF. As foreigners operating in large numbers on tribal lands, they are easily
portrayed by the Taliban, as an anti-Islamic occupying force. Especially when they drop
bombs and cause collateral damage.

THE THIRD STEP
Having won the trust and cooperation of the tribes, the third step is to realise that in
order to keep this and use it productively, the tribes must lead the way. For example, a
promising way of stopping unfriendly elements infiltrating across the border, is to use
the traditional Arbakai measure of employing a network of tribal lookouts or rangers that
could spot and contain any such attempt. However, as has been explained, these
forces cannot be recruited and controlled by the central government (as has been the
case with recent experiments along these lines), as this defeats the whole point of the
exercise. Tribal forces will work if they are raised and controlled by the tribes and
seen by the tribes as working on their behalf. They will not work if they are
merely an extension of central government power in tribal disguise. This has been
the case with all attempts so far (7), and it is quite wrong to say therefore, that tribal
forces have been tried and found wanting. Government militias have been found
wanting. Tribal defence, for the tribe by the tribe, has never (recently) been
systematically attempted.

IMPLEMENTATION
Embarking on the tribal path will not be easy. It will be opposed by the Taliban, nation
state modernists, and those ministers or government personnel, whose position and
power base would be threatened by tribal empowerment. Also as indicated in the
preceding paragraphs, it is not something that can be done quickly and cleanly. It will
be anything but a ¡¥quick fix¡¦. As well as assessing its viability, and obtaining the
information, knowledge and trust to effect it, the study would also have to draw up an
outline plan for implementation.

A basic requirement here would be to ensure that it was the central pillar of an overall
strategy. This is the only way it could have credibility and gain legitimacy where it most
counts, among the tribes. Tribal Lashkar and Arbakai can then belong to the tribe yet
be fully and rigorously supported by the West as part of a network of alliances that gain
strength by their mutually supporting nature. If the tribal path is approached as a
localised, penny packet enterprise disconnected to the grand strategy, it cannot
possibly thrive.

WIDER APPEAL AND APPLICATION
Greater tribal cooperation and understanding would further allow the Government to
appeal to those Afghan Taliban whose only real concern and cause is a free and
peaceful Afghanistan, without the presence of foreign troops. It would also allow the
Government to rid the nation of the foreign elements within the Taliban. This is the only
form of interaction with the Taliban that should be considered.

Working with the tribes, as closely and co-operatively as you can, should become a
principle applicable to nearly all aspects of government, law and order, justice, the
organisation and use of the police and military, defence strategy, reconstruction and
aid. The failure to do this has been the main cause of our troubles and why the Taliban
¡V who do understand this principle and have followed it with unscrupulous vigour – have
been able to expand so effectively.

PERCEPTIONS
Having decided on the tribal path, it is essential to publicise and propagate it. This is
not because of any uncertainty or weakness but to acknowledge the fact, that the
current war against the Taliban, is a war of perceptions, as much as of kinetic
measures. We have been very slow to realise this, and have been consistently outmanoeuvred
by the Taliban as a result. The Taliban must be fought in the psychological arena as well as on the hills and plains.

INCREASING INTEREST
There are now signs that the tribal path is being given a wider consideration than
hitherto. Apart from continuing government controlled tribal initiatives, which miss the
point, and Tariq’s paper which is very much to the point, there have been two recent
papers on tribal engagement written by serving US officers [8][9]. Another excellent
paper by the British MP Adam Holloway, advocates, amongst other things, the use and
support of tribal structures and the value of bottom up governance [10].

CONCLUSION
Strategic options that have recently been considered appear to be four only and can be
summed up as:-
- Continuation
- Expansion
- Negotiation
- Reduction and focus on Al Qaeda
For reasons already explained, none of these are, or were, likely to produce the answer
we want. Following the tribal path as outlined above however, might. This should be a
fifth option, and the one for serious and optimistic investigation now. We are getting
very close to the edge, and time is becoming extremely short. Radical change under
these circumstances is always unnerving and can be criticised as grasping at straws.
But unless we choose a very different path, we are likely to fail.

NOTES
[1]Times article 5 November 2009.
[2]A recent example of what the Tribal path is not about is the Warlord force allegedly recruited by
Ahmed Wali Karzai and his associates and known as the Kandahar Strike Force. Such militias have
been accused of murder, rape and extortion, while this particular one is currently under investigation for
shooting dead Matiullah Qateh, the Kandahar chief of Police (see Guardian article by Stephen Grey
http://www.guardian.co.uk/world/2010/may/16/afghan-prosecutor-arrest-warrant-us-officer). As mercenary
forces, Warlord militias are notoriously unreliable, with loyalty, at best, questionable (as shown by the
number of times people like Abdul Rashid Dostum have swapped sides) and their performance, as part of
legitimate government, extremely counter-productive.
[3]Tribal Security System (Arbakai) in Southeast Afghanistan ¡V Occasional Paper no 7 ¡V dated
December 2008 by Mohammed Osman Tariq from the Crisis States Research Centre.

http://www.crisisstates.com/download/op/OP7.pdf

[4]When the Americans then tried to reward this action with cash and aid, the hostile reaction of the
Nangarhar governor, Gul Agha Shirzai was inevitable and predictable. For many in the government, the
tribal path will be seen as a threat to their position and they will either oppose it or do their best to
sabotage it. Subsequent arguments amongst the Shinwaris on the distribution of cash, also show the
dangers of trying to ‘buy’ tribes or tribal leaders.
[5]New York Times 31 January 2010. http://www.nytimes.com/2010/01/31/weekinreview/13rohde.html
[6]‘Integration of Traditional Structures into the State-building Process: Lessons from the Tribal Liaison
Office in Loya Paktia’ by Masood Karokhail and Susanne Schmeidl. http://www.tloafghanistan.
org/fileadmin/pdf/SchAfgahnEn.pdf
[7]Eg. National Tribal Solidarity (NTS), Afghan Public Protection Forces (APPF), Local National
Defenders (LND), Community Defence Initiative (CDI), Local Defence Initiative (LDI) etc etc Although
these appear to be tribal, none of them are true tribal initiatives as they are central government controlled
as opposed to tribal controlled.
[8]‘The Way Ahead: Reclaiming the Pashtun Tribes through Joint Tribal Engagement’ by USMC Major
Randall Hoffman. http/::smallwarsjournal.com:documents:HoffmanTribes.pdf
[9]‘One Tribe at a Time ¡V a Strategy for Success in Afghanistan’ by US Special Forces Major Jim Gant.

http://blog.stevenpressfield.com/wp-content/themes/stevenpressfield/one_tribe_at_a_time_ed2.pdf

[10]‘In blood stepp’d in too far’? Towards a realistic policy for Afghanistan. By Adam Holloway MP.
http/::www.adamholloway.co.uk:PDF:in-blood-stepped-in-so-far.pdf

by Janet Munro-Nelson

Posted: August 2008

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In recent years, the use of the term “rule of law” has become more prevalent.  As a lawyer, I first heard the term about ten years ago during a lecture on international law.  I remember thinking, “What does that mean?” and “Where did that come from?”.  Many times someone comes up with a new phrase which somehow spreads around the globe.  We have all heard phrases such as “24-7” or “tipping point” which have become commonplace in everyday conversation.  When I heard this term “rule of law” a second time about a month later, I stopped to check my temperature and memory to confirm my body and mind were still functioning.  I actually thought I might have either fallen asleep for a period of time like Rip van Winkle while the rest of the world was awake, or suffered some major blackout of memory or thought.  I couldn’t think of any incident or book, such as Watergate or “The Tipping Point” which could account for the use of “rule of law” around me.  “Rule of law” seemed to me to have appeared fully clothed on the stage of life without any gestation period.

Although I was not aware of how the term “rule of law” originated or why, I defined it to mean there were laws existing which applied to the situation being discussed.  Further, these laws were supreme; they ruled!  My definition of “rule of law” seemed to make sense when I applied it to world situations.  For example, when Russian troops invaded Georgia in August 2008, several countries voiced their opposition, saying the invasion was wrong and that Russia must follow the rule of law by withdrawing from Georgia.  Since there are specific laws governing the situation, including the right by Georgia as a sovereign nation not to be invaded by another country, these laws must be followed.  This is in contrast to someone in a position of power in Russia ordering the Russian troops to invade Georgia.  There is no law to invade but rather a power to invade.   Here, the correct and acceptable position was that the law actually ruled, not the person in power.

A short time ago, I attended a lecture entitled, “Rule of Law” given by H.E. Judge Rosalyn Higgins, president of the International Court of Justice.   She reminded her audience that “rule of law” has a specific meaning in law which differs from its common usage.  In his1885 treatise on England’s unwritten constitution, “Introduction to the Study of the Law of the Constitution”, A.V. Dicey, the English jurist, discussed the supremacy or rule of law and what it meant in relation to England’s unwritten constitution.   Although the term “rule of law” can be found as far back as mid-300 B.C. in the writings of two Greek philosophers, Plato and Aristotle, contrasting the rule of law with the rule of man, it was Dicey who revived and discussed the term in such a way that everyone could understand it.

Dicey understood the supremacy or rule of law consisted of three concepts or principles.  These concepts as they related to England were:

1.  No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land.

This means in England, no one can be arbitrarily thrown in jail if no law has been broken.   Neither a person nor his or her goods can be interfered with unless a law is broken.  Society is ruled by law.  The correlative of this is that the government can only do things that are authorised by or within the law.

Dicey contrasts England, being ruled by law, with every other system of government where the ruling power (the executive) exercises wide, arbitrary or discretionary powers of constrain over its citizens as demonstrated in matters of arrest, of temporary imprisonment, expulsion from its territory and the like.  As Dicey said, “with discretion comes arbitrariness”.

2.  No man is above the law, but here [England] whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

This means not only that everyone is accountable if they break the law but also that everyone, regardless of rank or condition, will be subjected equally to the same law and be subject to the same law courts.  This position is contrasted with the exemption of officials or others from obeying the same law which governs other citizens or from the jurisdiction of the ordinary tribunals or courts.

3.  It is because England has an unwritten constitution that the personal rights and liberties of individuals are always secure.  This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.

This concept addresses the importance of not only having the rights and liberties of individuals given in law (even unwritten law) but also having workable remedies for the breach of these rights in a separate government body or branch.  It is the separation of power here which is important.

Dicey contrasted England with its unwritten constitution with other countries with written constitutions.  He looked at the United States with its constitution containing the Bill of Rights and at France’s written constitution in place at that time.  He concluded that the French Constitution provided rights for individuals but no secure remedies.  In contrast, the U.S. Constitution set out individual rights and liberties but also provided a remedy through the courts for any breach of these rights and liberties.  The U.S. constitution sets out the governing of the country in three separate and equal branches, thus ensuring a separation of power, like England.  An example would be if the executive branch denies an individual some right he or she is entitled to under the constitution such as the right of habeas corpus, then the courts, being the judiciary and a separate branch of government, have the right and duty to condemn the executive branch’s action as being illegal.

These three concepts of “rule of law” as set out by Dicey demonstrate a much deeper and broader definition than my definition of the term does.  “Rule of law” seems to describe the parameters of the law and how the legal system upholds the law.

I was pleased to finally discover what “rule of law” means and where it comes from.  When I hear the term in the future, I will think of the following principles to judge whether a country has good governance by the rule of law:

– No individual is interfered with or punished unless a law is broken.  There are no discretionary or arbitrary arrests, rulings or actions by the ruling power (the executive).

– The law applies to every individual and in the same way.  This means, too, all officials are under the same responsibility as any other citizen for every act they do without legal justification.  No one is given any concession under the law or in  the courts for their rank, position or condition.

– Individuals have personal rights and liberties given by one branch of government which are defendable by a separate and equal branch.  There is a separation of power.

Now I will have to hope that whenever I hear someone else using the term “rule of law”, they are thinking along the same lines!

THE END

April 2009

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Last month, Prince Ali Seraj announced his intention to run as President of Afghanistan. The third set of Presidential elections since the fall of the Taliban are scheduled for August this year. Seraj is a large man with hooded eyes and a dark beard; the image of his forebear, Abdur Rahman who inherited a broken Afghanistan in 1880, at the end of the Second Anglo Afghan War. Back then the British, having failed to stabilise the country, were desperate to leave. They installed Rahman and the ‘Iron Amir’ used a combination of force and guile to cement things back together. Today, the West should take the candidacy of his great, great, grandson Prince Ali Seraj, seriously.

After seven years and billions of wasted dollars we risk failure in Afghanistan. The population is disaffected with the corruption of the Karzai regime and angered by mounting civilian casualties. With many returning to the fold of the Taliban, the outlook for both Afghanistan and Pakistan is meltdown. In response to this alarming scenario the Obama administration has released a ‘Plan’ for dealing with the alarming situation in the region. Among other things, this involves a surge of 17,000 troops and the provision of more ‘civilian advisors’ to mentor and train Afghan security forces and at provincial and regional level to foster ‘governance’ (a concept that, after eight years, has achieved little except multiple layers of legislation and contradiction, while in reality power remains vested with strongmen).

The problem is that Afghan history shows that more troops will encourage more resistance. The effect is likely to be a further degeneration of security, and a fanning of the conflict deeper into Pakistan. At the current rate of decline, support for Coalition forces will have evaporated by 2010, leaving us with the prospect of nationwide jihad; a situation similar to that faced by the Russians and far more serious than the political movement masquerading as a religious movement that we are now facing.

The key to solving Afghanistan is internal. Lord Roberts of Kandahar recognised this when, at the end of the second Afghan war in 1880 he said, ‘the less they are able to see us, the less likely they are to hate us……we will have much greater chance of getting the Afghans on our side if we abstain from any interference in their internal affairs whatsoever.’

In Afghanistan ‘internal’ means ‘tribal’. But since 2001 the tribal option is one we have utterly failed to grasp. Instead, we have stuck with what we know; installing ‘western friendly’ technocrats to run things, and equating ‘success’ with ‘western metrics’: i.e., swiftly punctuated elections (despite a lack of concurrent reform needed to support the democratic process), an ill-conceived military campaign and ‘reconstruction’ that has too often been more about buying ‘force protection’ for Coalition troops than the longer term needs of Afghans. There has been virtually no meaningful dialogue with the tribes.

The Taliban has been successful because it has been able to exploit the gap between Hamid Karzai’s government and the tribes, who make up roughly 90% of Afghanistan’s population (there is no up to date census). People consider the government corrupt, inadequate and ambivalent to their needs. This, coupled with pitiful progress since 2001 on reform of the Afghan justice sector and the fact the Afghan National Police are seen as endemically corrupt has given the Taliban the possibility to present themselves as a better alternative. As with their spectacular rise to power during the early 1990′s, the Taliban have been able to represent themselves as providers of law and order and their politicised version of Sharia as Islamic law. This has enabled them to penetrate vast areas of the country.

Neither has it helped that the Pashtuns, despite making up the bulk of the population, have pretty much been sidelined politically since 2001. This and a lack of meaningful efforts at serious reconciliation with the Taliban have also made fertile recruiting ground for the religious zealots.

Another problem has been terminology. For since 2001 the word ‘tribal,’ has too often been (wrongly) equated with ‘Taliban.’ This fudging of reality reflects the unwillingness of those interest groups who since 2001 have taken power (largely ‘ceded’ to them by the West during the bombing campaign to displace the Taliban) to accommodate the Pashtun majority. Dominated as they have been by Northern Alliance ‘Tajik’ warlords, this group tends to brand anything ‘tribal’ as ‘Taliban’ since they realise that much of the tribal constituency is in the South, where their historic ‘enemy’ Pashtun tribes are concentrated.

There have been many definitions of what ‘tribal’ actually means. Louis Dupree, in comparing a ‘nation state’ and an essentially ‘tribal’ society, says the former is

‘in the western sense’, …more a set of attitudes, a reciprocal, functioning set of rights and obligations between the government and the governed – with emphasis on the individual rather than the group’.

Tribalism tends to come in, Dupree adds,

‘In non literate societies…when kinship replaces government and guarantees men and women born into a specific unit a functioning set of social, economic, and political rights and obligations’.

Even when his tome ‘Afghanistan’ was published back in 1973, Dupree pointed out the tensions developing in Afghanistan between the concept of ‘nation state’ and a traditional society based on ‘kinship’. Back in 1973, as arguably since 2001, Dupree says Afghanistan was attempting to create a nation state out of what he called, ‘a hodge podge of ethnic and linguistic groups’.

We now know that this state of affairs set in motion the series of coups which turned Afghanistan from a Monarchy into a Republic and ended in the chaos of the Jihad.

Since then almost thirty years of war has destroyed much of Afghanistan’s former social fabric. The Soviets targeted many of the elders and intellectuals who provided the ‘glue’ for jirgas and, since 2001, Afghans complain that relationships of trust between tribes have further fragmented as the Coalition has fostered hostility between groups. This has been done, among other ways, by the Coalition favouring strongmen over tribal leaders with more historic legitimacy and by pumping them up with weapons and cash. Overnight, such actions have changed patterns of power and kinship, causing instability.

But today there is hope on the horizon, if only western policymakers are prepared to see it. The National Coalition for Dialogue with the Tribes (NCDT) was founded in Spring 2004 as a national, non-political movement aiming to rekindle the cohesiveness that existed between tribes prior to the Soviet invasion.

It is this vehicle which could yet enable a stabilisation of Afghanistan. The NCDT has offices in every Province. Its Council members represent each tribe in the country. It was founded – with the financial support of its members – in response to the dis-affection many felt towards the so-called ‘political parties’ created during the jihad (in reality most are simply politico military factions led by warlords), who they blame for many of Afghanistan’s woes.

The NCDT has selected Prince Ali Seraj to be their leader and want him to run for President. Seraj says this is to do with his lineage, for as well as Rahman, Seraj is descended from eight other Afghan Kings. His Grandfather was King Habibullah, who married thirty-two times, meaning Seraj can claim a ‘Grandmother in every tribe.’ Seraj is also a nephew of the immensely popular King Amanullah. It is to this family, rather than the line of Zahir Shah, whose father took the monarchy in a coup, to which the tribes have pledged allegiance.

Such bloodlines are invaluable in these days of disunity. Afghans, being generally conservative, tend to gather around ‘personalities’ rather than political parties and many look back to the monarchy, particularly the reigns of Kings Amanullah and Habibullah, as a time of peace, since when there has been un-ending conflict and poverty. Hence the former monarchy is seen as a banner beneath which the tribes can unite.

Seraj’s major accomplishment since his return to Afghanistan has been cultivating a relationship with the tribes, spending time listening to their concerns via the NCDT. I have attended some of his jirgas and seen that the relationship takes time, patience and enough compassion to be interested in their problems. When I was working on the Parliamentary elections in 2005 many of NCDT’s members, encouraged indirectly by Seraj, came to voice their concerns about electoral intimidation, fraud and lack of security in their regions. I was amazed by the number of them and the distance they had travelled, from as far away as Badghis, Daikundi, Zabol, Farrah.

I have known Seraj since 2002. He is a colourful character, larger than life and a bit of a rough diamond. Although born and raised in Afghanistan he has connections with the U.S.A., where he lived for eighteen years, because he was educated at the University of Connecticut and married an Irish American catholic. They returned to Afghanistan during the 1960′s and 70′s when he set up several businesses in Kabul. But Seraj was forced to flee when the Khalk/Parcham coup occurred in 1978 and his cousin President Daoud was assassinated, ushering in an era of terror that ultimately led to the Soviet invasion. Seraj escaped in the back of a bus, hiding behind the hashish smoke of some hippies bound for Pakistan.

He then set up fibre optics businesses in the U.S.A. and Brazil, where he lived for five years. He returned to Afghanistan in 2001, since when he has undertaken mostly privately funded reconstruction projects, such as schools and clinics, avoiding politics.

The ‘Tribal vote’ Seraj says ‘is nothing more than the vote of the people. We cannot separate the tribes from the rest of the people. They are the one and the same. We are not a political party. We are a social national movement of the people, by the people for the people.’ As to his manifesto Seraj says, ‘the golden principle of working with the tribes, whenever one can, applies to nearly all aspects of government – law and order, justice, the organisation and use of the police and military, defence strategy, reconstruction and aid. The failure to do so has been the main cause of our troubles and is why the Taliban, who do understand this principle and have followed it with unscrupulous vigour, have been able to expand so effectively’.

There are no figures at present breaking down how various tribes intend to vote. I realised when I was living with a family of tribal leaders in Jalalabad that the tribal people look to personalities or ‘leaders’ to represent them in Kabul. The family I was with had influence with tribes between the Khyber Pass and Kabul in the four Provinces which make up the ‘Eastern Shura’. Hence I have heard the tribal people say to these leaders at jirgas ‘We do not know Karzai, (as he is in Kabul) but we know you (as you are here), so tell us (for example) why the Americans did not take your permission before deciding to destroy our poppy crop?’

The relationship between such a ‘leader’ and the tribes is a reciprocal one and based on trust. Hence, with respect to voting in the Presidential election, the tribesmen will discuss the candidates with their representative or leader and then vote in the way he decides or they decide on jointly.

To illustrate this I refer to a meeting a colleague had with a Kuchi leader upon the leader’s release from the U.S. prison at Guantanamo Bay, Cuba, in 2005. My colleague asked him his feelings about the forthcoming Parliamentary elections. ‘Ah, elections is for young people’ said the leader, while around him groups of elders sat grinning. ‘So’ asked my colleague, ‘how do you think they’ll vote?’. The old man looked him directly in the eye as though he were dumb, ‘Of course they’ll vote the way I tell them to!’

So, there may be a secret ballot but tribal voting is still ‘block’ voting. In this way kinship ties persist over and above the individualism of the ‘nation state’ which Dupree refers to.

Prince Ali Seraj should be taken seriously because he has a capacity to engage with the tribes and has already built up tribal support right across the country. Ken Guest, an Afghan analyst who first began covering Afghanistan in 1980 says, ‘Because building trust takes time, it is preferable to find a leader who is already commanding tribal support. This would allow tribally supported defence planning to start at once and go into effect as soon as a new government takes office’.

Another Afghan watcher is Fayyaz Shah, a Pakistani Pashtun and member of the ‘Tribal broadcasting network’. He says, ‘Sardar Ali Seraj is probably the only hope for resolving the Pakistan Afghanistan political disparity and has the ability to re-unify all the tribes in Afghanistan. He is bold enough to see eyeball to eyeball with the strongest commanders. Besides his Royal background he has already proved to be a remarkable networker among the Pashtuns as well as the Uzbecks, Tajiks and Hazaras. If the international community wants a settlement in Afghanistan Prince Ali Seraj is the key, the Obama Administration can turn this key for a Change’.

To understand why a leader with legitimacy among the tribes is significant one only has to look at the main problems currently facing Afghanistan. They were defined for me recently by Nasrullah Arsala, brother of the great resistance commanders Abdul Haq and Haji Abdul Qadir (the latter was Vice President of Afghanistan during 2002, until his assassination in July 2002). Arsala has also spent several years fostering cohesiveness with a tribal shura in the East of the country, close to the Pakistani border. He has also recently declared his intent to run for the Presidential elections.

According to Arsala, Afghanistan’s problems are fourfold. Firstly the gap between government and the people where the people no longer take responsibility for society because they feel dishonoured by the present government, secondly the challenge from the Taliban and other armed resistance, thirdly the lack of national unity (meaning certain politicians or strongmen can profit from distrust betweeen various groups). And lastly the ‘threat’ from the former Mujahideen, men such as Abdur Rashid Sayyaf and Rabbani, who have been able to threaten destabilisation if they do not get what they feel is their due in terms of power. Nasrullah Arsala argued that the current, western-supported, Presidential contenders cannot solve these problems because they have no relationship with the tribes, nor background in Jihad, ‘which still has its influcence in society,’ he said.

As regards dealing with the Taliban, Arsala says there can be no peace until there has been a meaningful reconciliation process and it is only those with a ‘tribal’ background who will be trusted by the Taliban to do this ‘because we fought with many of their commanders against the Soviets.’

Seraj’s view is not dis-similar.‘The Afghan Talibs’ he says, ‘are our own people and we can bring them into the fold without much problem.’ He adds that the Government can stop the encroachment of the Taliban only by working with the tribes, instead of against them because greater tribal cooperation will make the Government appeal to those Taliban nationalists (the Afghans) whose only real cause is a free and peaceful Afghanistan without the presence of foreign troops. It would also, Seraj belives, allow the government to be rid of foreign elements within the Taliban.

To counter the failure since 2001 to work with the tribes, Seraj proposes that to re-integrate the tribes back into a modern, democratic constitution there should be dual heads of state, with a President responsible for the tribes and a Prime Minister responsible for centralised government issues. This would enable a working relationship to be established with the tribes that could also be applied horizontally to solve problems such as defence, justice and the need to ‘seal’ the border from insurgents, with methods that have worked for centuries. For example Seraj believes that tribal leaders should retain control of justice issues in their areas while referring capital issues to a national civil court.

In terms of defence he says, ‘Obama’s ‘surge’ may be necessary, but only for a short time. Anything too long and we will attract undesirables from all over the world and extend the fight for a long time’.

He also believes the idea that tribal members assume responsibility for security in their own local areas to be a good one, in fitting with past tradition. Hence, the tribes should be asked to help with security using the traditional ‘Arbakai’ system (tribal security force). The coalition should utilise the border tribal security forces saying, ‘leave the fighting to those who have defended Afghanistan against its enemies for centuries’. He says, ‘Only a member of our family can unite the nation. Once united, we will call upon the tribes to form a security belt around the borders, especially the gateway to Afghanistan that is the loya Paktia. Once that is done, then no one can cross’.

Nasrullah Arsala reiterates this when he says, ‘…in Afghanistan direction comes ultimately from the rural areas, from the people (i.e., the tribes) of Hezarac and Khoghiani (which are tribes in Nangarhar in the East of Afghanistan), not the cities’. They are the ones whose support we can count on. We can mobilise their support as we have spent time with them’.

Both Seraj and Arsala believe the West is already favouring the Afghan-American technocrats, Ahmad Jalali, former Minister of Interior under the Karzai government and Ashraf Ghani, the former Finance Minister under Karzai as its preferred candidates. The criticism is that they have spent rather too much time in Washington, D.C., U.S.A., and rather less with the tribes and mujahideen in fighting the anti-Soviet jihad. Certainly Ghani has not spent much time in Afghanistan, particularly since leaving his position as Finance Minister in 2004. And Jalali in 2004 was involved in a public spat about his unwillingness to give up his U.S. passport to conform with the new Afghan Constitution. Such incidents have left ordinary Afghans with the feeling that very few of their public figures are particularly committed to Afghanistan.

A criticism of Seraj may be his failure to have participated in the anti-Soviet jihad. But he says he worked behind the scenes to push for the U.S. to send Stinger missiles (the weapon that apparently turned the war towards the mujahiddeen’). In his favour though is the disaffection of many Afghans with so called ‘Mujahideen’, who many blame for rights abuses in the years following the Soviet pull-out.

Although the United States or the United Kingdom would never declare official backing for a candidate, Arsala is sceptical of the international community’s involvement in the elections. ‘To win the elections there are three parts of support a candidate needs, only one third comes from support of Afghans, the other two are the neighbours (.i.e, Pakistan) and the international community.’

So far Washington is reticent about whom it hopes will win the forthcoming Presidential elections. Karzai is not willing to go quietly. But a leading Afghan political figure told me recently, ‘If Karzai stands, no-one else has a hope.’ The reasons are that over the past eight years he has built up such an elaborate network of patronage (which includes those profiting from illicit activities) that his re-election will be virtually assured. Seraj echoes Arsala’s concerns when he says angrily, ‘We don’t know how these people have the nerve to run for President when they are sitting in the U.S.A. still. They’re spending so much money! Where does it come from?’

Arsala feels the West must re-visit its support for those candidates who are tainted by association with Karzai’s regime for they will not, he believes, be able to garner the support needed from the tribes to face down Afghanistan’s problems. Like Dupree, who in 1973 wrote,

‘Unfortunately, many of the national leaders in the non western world have been educated in the West and have the individualistic conceptions of nation-state. These leaders look on attempts to perpetuate tribal prerogatives as anarchistic, arcaic and anti-unity’.

Arsala feels the West must re-think its strategy of supporting the ‘western educated’ technocrats.

Seraj says, ‘We must understand the flaws in the present approach and acknowledge that the most effective way of achieving peaceful stability is not through fighting a war and supporting a weak government, but by talking and listening to the tribes and empowering tribal leaders.’

I am sure that Lord Roberts, who concluded, We must not be afraid of Afghanistan and would profit from it by letting it be the master of its own fate…, would see the value in a man such as Prince Ali Seraj becoming its President.

The End

“ Postscript: Since this piece was published, Prince Ali Seraj has resigned his intention to run for the Presidency citing the failure of a level playing field in the electoral process. Baryalai Arsalai, however, is still a Presidential Election Contender.

Lucy Morgan Edwards, June 2009

* Lucy Morgan Edwards spent much time in Afghanistan from 2000 to 2005. She was the Political Advisor to the EU Special Representative to Afghanistan, Francesc Vendrell from 2004 to 2005, and the Political Advisor to the EU Election Observation Mission in 2005. In 2000, she lived in Kandahar running an ECHO funded project at a time the Taliban ruled the country. Other work during this period included researching Transitional Justice issues for the International Crisis Group, as an election monitor for the Emergency Loya Jirga held in June 2002 and as a freelance journalist, writing for the Economist, the Daily Telegraph and the Scotsman. She has recently lectured on Afghanistan at the Imperial College, London and worked as a consultant to the Geneva Centre for Security Policy. Ms Morgan Edwards is now completing a book on Afghanistan which will be published soon.