Left In The Dark: US/NATO Failures of Accountability for Civilian Deaths in Afghanistan
August 12, 2014
Thousands of Afghan civilians have been killed since 2001 by international forces, and thousands more have been injured. Incidents like the killing of five civilians near Gardez in February 2010, in what appears to have been a war crime, go uninvestigated and unpunished. In the vast majority of cases, even where the available evidence suggests that killings were unlawful, family members of the victims have no means whatsoever of accessing justice.
Left In The Dark:
Failures of Accountability for Civilian Casualties
Caused By International Military Operations In Afghanistan
"Three days after the attack, the commander invited us to the base and said please forgive us …. We said we won't forgive you. We told him we don't need your money; we want the perpetrators to be put on trial. We want to bring you to court."
-- Mohammed Nabi, whose twenty-year-old brother Gul Nabi was killed, together with four other youths, in a helicopter strike near Jalalabad on 4 October 2013.
A group of women from an impoverished village were collecting firewood in a mountainous area in Laghman province, in September 2012, when a US plane dropped at least two bombs on them. Seven women and girls were killed and seven more were injured, four of them seriously. Mitalam Bibi, aged 16, survived but was blinded in one eye, as was her cousin, Aqel Bibi, aged 18.
Ghulam Noor, an elderly farmer, lost his 16-year-old daughter Bibi Halimi in the attack. He and other family members of the dead, hearing that international forces claimed that only insurgents had been killed in the bombing, brought the women's bodies to the district capital, Mihtarlam. "We had to show them that it was women who were killed," he told Amnesty International.
Noor wanted the circumstances of his daughter's death to be investigated, but he felt utterly without recourse. "I have no power to ask the international forces why they did this," he said. "I can't bring them to court."
Although a group of villagers filed complaints about the killings with the district governor and the provincial governor, such complaints have little value, as international forces in Afghanistan are immune from Afghan legal processes. No one ever contacted Noor or other family members to investigate the circumstances and legality of the attack. None of the family members were informed why the attack took place or what justification it might have had.
The Laghman bombing case is one of many. Thousands of Afghan civilians have been killed since 2001 by international forces, and thousands more have been injured. Incidents like the killing of five civilians near Gardez in February 2010, in what appears to have been a war crime, go uninvestigated and unpunished. In the vast majority of cases, even where the available evidence suggests that killings were unlawful, family members of the victims have no means whatsoever of accessing justice.
This report examines the record of accountability for civilian deaths caused by international military operations in the five-year period from 2009 to 2013.
US forces have comprised the large majority of international forces in Afghanistan, and have been implicated in the large majority of incidents involving civilian casualties. Therefore, this report focuses, in particular, on the performance of the US government in investigating possible war crimes and in prosecuting those suspected of criminal responsibility for such crimes. Its overall finding is that the record is poor.
Judging from interviews with 125 Afghan victims, family members, and eyewitnesses to attacks that resulted in civilian casualties, as well as from a thorough review of the documentary record, the US military's investigative and prosecutorial practices fall far short of what is needed to ensure accountability for alleged crimes against civilians. In numerous cases in which there is credible evidence of unlawful killings of civilians, the military has failed to conduct prompt, thorough and impartial investigations.
That said, US spokespersons claim the opposite. "We take all allegations of misconduct by our personnel very seriously," said US General Joseph Dunford, commander of the international coalition, promising a full investigation of reports of abusive behaviour last year.
Yet a close look at a range of cases -- including night raids by Special Operations Forces, air strikes, and missiles shot from drones -- reveals that these promised investigations almost never occur.
Under international humanitarian law (the laws of war), not every civilian death occurring in armed conflict implies a legal breach. Yet if civilians appear to have been killed deliberately or indiscriminately, or as part of a disproportionate attack, the incident requires a prompt, thorough and impartial inquiry. If that inquiry shows that the laws of war were violated, a prosecution should be initiated.
Amnesty International has identified important structural flaws in the US military justice system that hinder the investigation and prosecution of crimes against civilians. Most importantly, the military justice system is "commander-driven" and, to a large extent, relies on soldiers' own accounts of their actions in assessing the legality of a given operation.
As a 2013 report of the Defense Legal Policy Board concluded, the functioning of the system depends very much on initial, ground-level reporting from troops at the point of contact. It is, in significant ways, a system of self-policing.
Yet troops have scant incentive to report possible violations up the chain of command, and many reasons not to. Commanders, too, have little reason to push investigations forward, particularly in cases in which the commander's own conduct or judgment might be called into question.
Because the military justice system lacks independent prosecutorial authorities, it is the commander who decides whether a case will be referred to trial, resolved administratively, or dropped altogether. Any prosecution, no matter how clearly in the interests of justice it is, can be vetoed by a defendant's commanding officer. Given these obstacles, it is no wonder that few cases make it to court.
It is only in the rarest of circumstances -- where fellow soldiers are so appalled by another soldier's behaviour that they insist on reporting it up the chain of command, where commanders support a prosecution, and, sometimes, where the media draws unwanted attention to flagrant abuses -- that criminal cases involving civilian casualties go forward.
Amnesty International is aware of only six cases over the last five years in which members of the military have been criminally prosecuted for unlawfully killing Afghan civilians, including one case that involved 12 defendants. Out of those prosecutions, a total of 10 defendants were convicted of serious crimes, of whom seven remain behind bars.
The most notorious case is probably that of Army Sgt. Robert Bales, who admitted to gunning down 16 Afghan civilians in March 2012, pleaded guilty to murder and other crimes, and was sentenced in 2013 to life in prison without parole.
But other serious cases have not even been meaningfully investigated. Family members in nine of the 10 incidents that Amnesty International documented in this report said that they and other eyewitnesses had never been interviewed by US military investigators. Without an effort to document the facts by speaking to those who could describe them directly, it is hard to see how an investigation could be considered serious or thorough.
Many family members and eyewitnesses were interviewed by local human rights organizations, UN investigators, Afghan police, and members of the media, but not by anyone with power to bring a criminal prosecution against the alleged perpetrators.
"No military investigators ever came to see us," said Rafiuddin Kashkaki, the father of a 16- year-old boy who was killed in a US Special Operations Forces raid on a family compound in May 2010 -- a raid in which eight others were killed. "We did everything we could to fight for justice, but we don't even know if was there was an investigation. We were left in the dark and we're still in the dark."
Kashkaki's account was typical of the cases that Amnesty International documented. As he suggests, a major defect of the US military justice system is its near-complete lack of transparency. The US military fails to keep the public -- and, more importantly, the victims of abuses -- informed of the initiation, progress, and results of investigations. There is generally no public indication of whether a formal criminal investigation has been brought, or, if the investigation has been terminated, whether and why it was discontinued.
It is possible that in some cases involving unlawful civilian casualties the military has relied on administrative sanctions -- so-called non-judicial punishments -- to punish the alleged perpetrator, for example, by docking the defendant's pay, issuing a formal reprimand, or imposing a reduction in rank. Yet where this is the case the fact of the punishment is not made public; nor are the victim's family members informed.
It is only when a case reaches the pre-trial hearing stage (known as the Article 32 hearing) that the existence of the investigation necessarily becomes public. While court-martial proceedings are public, only a small number of cases involving civilian casualties in Afghanistan have ever led to a court- martial.
In addition to the secrecy surrounding individual cases, the US military also withholds overall data on accountability for civilian casualties. Responding to a request from Amnesty International for quantitative and other information about investigations and prosecutions, Pentagon officials gave no substantive information whatsoever.
While the Pentagon now issues an annual report on sexual assault in the military, another sensitive and controversial issue, it fails to provide similar reporting on its efforts to prevent and investigate civilian casualties. This is a glaring gap that needs to be filled.
The annual sexual assault report, with its comprehensive data on complaints, investigations, and the disposition of cases, could be a good model for future Department of Defense reports on civilian casualties.
Existing mechanisms for transparency are clearly insufficient. The US Government's freedom of information system, meant to ensure transparency when government bodies fail to provide information, does not function effectively when civilian casualties are at issue.
Responses to requests under the federal Freedom of Information Act (FOIA) for information about civilian casualties are often extremely slow and/or non-existent. For example, journalist Robert Dreyfuss of The Nation magazine filed a broad FOIA request with the US Department of Defense in September 2011 for information on civilian casualties in Afghanistan; as of July 2014, more than two-and-a-half years later, he had not received a single document in response.
This report describes 10 case studies in which a total of at least 140 civilians were killed, including at least 50 children. In Amnesty International's view, all of these incidents raise concerns about the unlawful use of force, and merit a thorough and impartial investigation.
Two of them -- involving a special operations forces raid on a house in Khataba village, Paktia province, in 2010, and enforced disappearances, torture, and killings in Nerkh and Maidan Shahr districts, Wardak province, in November 2012 to February 2013 -- involve abundant and compelling evidence of war crimes. Not a single person has been criminally prosecuted for any of these incidents.
Reform of US laws and policies on military justice is urgently needed. On a positive note, because the flaws of the system have come to light in another context -- involving sexual assault and harassment within the ranks -- efforts at achieving reform are ongoing.
Several members of Congress have co-sponsored draft legislation that would, in cases involving serious crimes, transfer prosecutorial decision-making power away from commanders and give it to more independent military prosecutors. While this change would not, in itself, bring US practice into line with international legal standards, it would help the country catch up with
developments elsewhere. Notably, over the last two decades, several countries have improved their systems of military justice, establishing external investigatory mechanisms that are independent of the command system of control. Indeed, several European countries have carried out even more ambitious reforms, mandating that war crimes and serious human rights abuses carried out by members of the military are tried by civilian judges.
Yet, while forward-looking structural reform is crucial, efforts to provide justice to the Afghan families who have lost relatives in past attacks are also needed. In an encouraging precedent, the US military recently reopened an inquiry in a case involving the killing of two unarmed teenagers in Iraq in 2007, even though several years had passed since the alleged crime took place. Amnesty International urges US military officials to consider doing the same with the Afghan cases outlined in this report.
The planned withdrawal of international forces from Afghanistan at the end of 2014 should make these questions all the more relevant. At least in recent years, international military forces have made significant efforts to prevent civilian harm, and are now responsible for far fewer civilian casualties than either the Taliban or Afghan national forces. The legacy of international military operations is seriously tainted, however, when military forces leave behind families whose efforts to seek justice have been ignored.
Amnesty International delegates conducted research in Afghanistan in July 2013 and March 2014, interviewing civilian survivors of military operations by international forces, family members of civilians who had been killed in such operations, and eyewitnesses to such operations. In all, the delegates spoke to 125 Afghans who had first-hand information about 16 attacks that resulted in civilian casualties. In many of the cases only civilians were killed.2
Besides reviewing these cases in detail, the delegates also compiled and assessed a database of 97 reported incidents between 2007 and 2013 in which international military operations allegedly resulted in the deaths of two or more civilians.
The delegation also spoke to a range of other interlocutors in Afghanistan, including human rights defenders, journalists, civil society representatives, government and police officials, and members of ISAF's Civilian Casualties Mitigation Team. The Afghan Independent Human Rights Commission (AIHRC) -- including their civilian casualties investigations unit and their staff in Kabul, Jalalabad and Herat -- provided particularly helpful information and assistance.
In addition, in the UK, Belgium, and the USA, Amnesty International researchers spoke to journalists, lawyers, military prosecutors, NATO officials, and civil society representatives familiar with these issues.
International military forces, in particular the United States, must take urgent action to ensure that the family members of civilians killed in international military operations have meaningful access to justice. Steps must also be taken to improve transparency, both regarding cases of civilian casualties and regarding their investigation and prosecution.
The public -- and in particular the family members of victims -- should be given accurate information about the numbers of civilians killed and injured in air strikes, raids, and other international military operations, as well as about the relevant government's response to those incidents.
Below are Amnesty International's key recommendations for reform. A full set of recommendations is included at the end of the report. The organization notes that some of these recommendations have been made before, but have not been acted upon.
In a 2009 report, for example, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions urged international forces to show greater transparency regarding incidents in which civilians are killed or injured, and take meaningful steps to improve accountability.1
TO THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
• After any incident in which civilians have been killed by US forces, ensure that a prompt, thorough and impartial investigation is conducted, and, wherever there is sufficient admissible evidence, suspects are prosecuted in fair trials in line with admissible standards and without recourse to the death penalty.
• When investigations into killings of civilians have concluded, make their findings public, and share them, in particular, with family members of the victims.
• Review any existing investigative materials relating to the cases outlined in this report, and consider reopening the investigations by interviewing the family members of those who were killed, and others with first-hand information about the killings.
TO THE NORTH ATLANTIC TREATY ORGANIZATION (NATO):
• Carry out prompt, thorough and impartial fact-finding inquiries whenever there are plausible reports of civilian casualties caused by ISAF military operations, and release the results of these inquiries publicly.
TO THE GOVERNMENT OF AFGHANISTAN:
• Ensure that accountability for civilian casualties is guaranteed in any future bilateral security agreements signed with NATO and the United States.
• Continue to press the US and NATO authorities to take meaningful steps to enhance civilian protection, investigate reports of civilian casualties, and prosecute violations of international humanitarian law that result in civilian casualties.
4.2 . US SPECIAL OPERATIONS FORCES RAID ON A HOUSE IN KHATABA VILLAGE, PAKTIA PROVINCE, 12 FEBRUARY 2010
Two pregnant women, two criminal justice officials, and a teenage girl were killed by US Special Operations Forces during a late-night raid on a civilian home in Khataba village, near Gardez. The raid took place on the night of a family celebration.
It was a traditional party, held by family patriarch Haji Sharabuddin to celebrate the birth of a grandson. On the night of 12 February 2010, Sharabuddin's house was full of family and friends, some 20 to 30 people, including his sons Mohammed Dawood, a police investigator, and Mohammed Zahir Saranwal, a government prosecutor, and his granddaughter's fiancé Mansur Mal, a local official. Other prominent guests included Sayed Mohammed Mal, the vice-chancellor of Gardez University, and staff from the Ministry of Rural Development.
The attack took place sometime after 3 am, after Haji Sharabuddin, aged 70, had gone to bed, as had some of the older guests. Younger family members were still enjoying themselves; video from the event shows a happy crowd, singing, dancing and clapping their hands. One of the musicians who had been hired for the event went outside to relieve himself; when he returned, he was frightened. He told the guests that someone had shone a torch at him.
Mansur Mal told Amnesty International what happened next:
Someone outside yelled, in Pashto, "Raise your hands!" We were afraid it was the Taliban because so many high-profile officials were at the house, and their cars were parked outside. Commander Dawood told everyone not to go outside, saying he would go to see what was happening. People outside were yelling, in Pashto, "Open up!"
When Dawood went outside into the courtyard he was shot, and he collapsed, screaming in pain. Mansur Mal told Amnesty International that Dawood's son Siddiqula, age 16, who had run out into the yard to help his father, was also shot. A group of women tried to stop Zahir, Dawood's brother, from leaving the house, but Zahir pushed his way to the doorway. Not only was he shot, but the women were also shot.
Sayed Mohammed Mal, aged 53, was in another room sleeping; he woke up when the shooting started. He told Amnesty International:
I heard screams and shots, women screaming, and another shot, and more screams. People were shouting that Dawood was shot. "Dawood, Dawood!", they yelled. Zahir ran out and shouted his brother's name, then another shot -- one, two, three of them -- and the women screaming! It was shot, scream, shot, scream, and only after the fifth person fell did the Americans announce on a loud speaker, "This is Special Forces, don't move! No one move!" Screams and screams and the moaning of the injured.
Three members of the family had been shot and killed: one of the brothers, Mohammed Saranwal Zahir, his sister, Bibi Saleha, and his sister-in-law Bibi Shirin. Both of the dead women were pregnant; one was a mother of 10 children and the other was a mother of six.
Other family members were badly injured. Mohammed Dawood, the first person to have been shot, was moaning in pain, but, according to family members, he was still alive, and the same was true of one of his nieces, Gulalai, aged 17. Siddiqullah, Dawood's son, had been shot in the shoulder, but the wound was not deadly.
The shots were fired by snipers positioned on a nearby rooftop. According to all the Afghan witnesses, there was no exchange of fire, just a one-sided barrage. When the shooting ended, Special Forces troops blasted open the gate to the house's yard. Most of the guests were hiding in the salon, terrified, but Haji Sharabuddin, who had also been jolted awake by the gunfire, had run outside.
He told Amnesty International: "I went to help my son Dawood, but an American soldier hit me with his gun and pushed me aside. I cried that Dawood is injured but alive; let me take my son to the hospital, but they beat me again and tied my hands."
Mansur Mal, who was hiding with his brother in a small room in the house, feared they were all going to be killed. "The first thing I saw was the gun," he said. "It entered the room first. Next the troops entered with their translator, a big strong guy. He insulted us in Dari, calling us faggots, and told us to raise our hands and face the wall."
The soldiers went through the house methodically, bringing all of the guests to the main salon. "They kicked and punched the men," said Mansur Mal. "Then they told us to leave the house one by one."
It was a very cold night, but the male guests were not allowed to put on their jackets, or even their shoes. They were forced to stand in the snow, with black sacks on their heads, wearing only socks on their feet.
"We had to wait outside for hours," said Mansur Mal. "They made us hold our hands on our head. If we put our hands down they would kick us. My hands and feet went totally numb, and then my legs; I couldn't feel them anymore."
Haji Sharabuddin claims that he continued to beg the soldiers to let him take his injured family members to the hospital. "I could hear my son Dawood and my granddaughter," he said, "they were still alive." He believes that they died sometime near morning.
Syed Mohammed Mal told Amnesty International that the soldiers ignored Sharabuddin's pleas. "They shouted at him to shut up. They shouted at the women and children too; they told them to stop crying."
The soldiers brought the bodies into the house. Haji Sharabuddin, who was nearby, said that he saw them doing something strange to the bodies, using a knife or a piece of metal to remove the bullets. "I begged them not to touch the bodies of the women," he said, "but they didn't listen."
At about 10 am, Mansur Mal said, the soldiers brought the men back inside the compound, taking fingerprints and retinal scans of each of them. "There were 10 soldiers in a room," he said, "and they asked me, ‘who killed these people?' I said, ‘you.' They got angry; they wanted me to say that they had been killed by someone else. ‘They were already dead,' they told me."
Several dozen US troops took part in the operation, family members said, aided by Afghan translators. They used several armoured vehicles and two helicopters. At around 11 am, after the troops had spent hours searching the house, they left.
They took eight people from the house with them -- including Haji Sharabuddin's youngest son, Mohammed Sabir, aged 26 -- flying them to a nearby air base for questioning, but leaving the dead bodies and injured family members behind. Several days later the detained men were all released.
Haji Sharabuddin said that after the troops left he found that his house had been ransacked. He said that documents had been taken; valuables were missing, and substantial sums of money belonging to his son Dawood were gone. He also found that the bullets used in the sniper attack had been dug out of the walls of the house.
He and his remaining family members found medical care for the injured, and obtained coffins for the bodies of their five dead relatives. Distraught and angry, they staged a protest in front of the governor's office, which thousands of local people joined. They buried their relatives at the end of the day.
ISAF issued a press release on the incident that same day, which has since been taken down from ISAF's website. Entitled "Joint force operating in Gardez makes gruesome discovery," it gave a lurid and inaccurate account of events. Rather than acknowledging that three women were killed in the operation, it said that the joint Afghan-international security force that carried out the raid "found" the "bound and gagged bodies" of three women in the house. It also portrayed the slain men as armed "insurgents" who were killed after a fire fight.
In interviews with journalists, unnamed US military officials elaborated further on this theme. On 12 February, a senior US official told the press that bodies found at the house appeared to be victims of a "traditional honor killing." The men and women had been shot "execution-style," he said, and had been discovered during the Afghan/US raid.
According to CNN, "the US official said it isn't clear whether the dishonor in this case stemmed from accusations of acts such as adultery or even cooperating with NATO forces." The official also reportedly suggested that the victims might have been killed by the Taliban.
At the same time as US officials were relaying this false information to journalists, a local representative of the Afghan Independent Human Rights Commission (AIHRC) was investigating the attack. Visiting the village the day after the raid took place, he interviewed nearly 20 people, including family members, local police officials, medical staff, and numerous eyewitnesses to the events. He did not see the bodies, which had already been buried, but he saw the five fresh graves laid out in a line.
His findings, he emphasized to Amnesty International, entirely confirmed the villagers' account of an unprovoked assault. He also found indications of evidence tampering -- that bullets had been dug out of the walls near where the women were killed. An investigation carried out by the Criminal Investigations Department of the Afghan Ministry of the Interior reportedly reached the same conclusions.70
Intrigued by accounts of the incident, freelance reporter Jerome Starkey visited the village nearly a month after the killings took place. On 13 March 2010, The Times of London published his story about the incident, titled "NATO ‘covered up' botched night raid in Afghanistan that killed five." The article described the attack in detail and cast serious doubt on the veracity of the official ISAF narrative. It suggested that ISAF's account of events was "either wilfully false or, at best, misleading."
ISAF's response was quick and aggressive. Calling the cover-up allegation "categorically false," ISAF issued a press release accusing Starkey of misquoting one of his official sources. It was a clear attempt to the discredit Starkey and impugn the integrity of his findings. The press release also provided yet another false account of the raid.
Trying to explain why their original 12 February press release had wrongly described the dead women as being bound and gagged, the 13 March press release blamed the troops' unfamiliarity with Afghan cultural practices. It explained: "The women's feet had been tied, and they had cloth straps that immobilized their jaws, evidently in preparation for burial."
This explanation again, however, was fictional: the women were alive when the raid occurred, and were killed during the raid; their bodies were not in the house awaiting burial.
It was not until 4 April that NATO finally admitted responsibility for all five deaths. In an interview with journalists that day, a NATO official also reportedly said that an Afghan-led team of investigators had found signs of evidence tampering in the house, including indications that bullets had been extracted from the house's walls. The following day, a senior NATO official denied that any evidence tampering had taken place.
The 4 April release had said that ISAF planned to provide compensation "in accordance with local customs." In a dramatic move, a few days later Vice Admiral William McRaven -- the commander of Joint Special Operations Command -- visited Khataba village with two sheep, some money, and an Afghan military entourage, making a contrite apology for the killings. (The sheep were said to be part of a Pashtun formula for asking forgiveness.) Haji Sharabuddin accepted the apology and the compensation, but said that what he really wanted was to see the killers in court.
He later told Amnesty International: "I want justice. I want the US government to prosecute those responsible for what was done to me. They have taken away our happiness." Sharabuddin said that he believed that an informer gave the US military false information about militant activity at his house; he wants to see the informer prosecuted, as well as the soldiers who carried out the attack.
According to Sharabuddin and others who were present at the house during the attack, the US military never interviewed them to investigate the circumstances of the attack. There was an official investigation by the Criminal Investigation Department of the Afghan Ministry of the Interior, but it could not lead to full accountability for the incident, given that the Afghan authorities have no power to prosecute US soldiers.
Since that time, Sharabuddin has received no indication that anyone involved in the attack was ever punished, or even subject to non-criminal sanctions.
4.3 . SPECIAL OPERATIONS FORCE RAID ON THE KASHKAKI FAMILY COMPOUND, SURKH ROD DISTRICT, NANGARHAR PROVINCE, 14 MAY 2010
"I want to know, why did they do this? Whom should I ask? That's the only thing I want. I want to know why this happened: why did I lose my brother and my son?"
-- Rafiuddin Kashkaki, reflecting on a night raid on his family compound by US Special Operations Forces on 14 May 2010
A late night US Special Operations Forces raid on a large walled civilian compound in Nangarhar province in May 2010 resulted in nine deaths. The compound was home to 13 families, or over 100 people, including small children and a six-month-old baby.
The compound, which lies in the midst of farmland not far from the city of Jalalabad, belongs to the Kashkaki family. Three Kashkaki brothers were living there at the time of the raid, together with a large number of family members, including sisters, cousins, and distant cousins -- from very old men to very young children -- as well as some farmers and a couple of guards.
According to Asomeddin Kashkaki, one of the two surviving brothers, he and one of his brothers made a living as drivers and car dealers. Because their cars were parked outside of the compound, they had a guard armed with a pistol assigned to watch them. The family also openly acknowledged keeping automatic weapons in the compound for protection, something that the local police confirmed is a normal practice in the region.
The layout of the compound is complicated: within a large, roughly rectangular area, enclosed by a set of tall, mud-covered walls, are several small one-, two- and three-story buildings, and several connected courtyards. The compound has also two large wooden gates, one at each end.
The raid took place at approximately at 12:45 am, when everyone was asleep. Zarmina Kashkaki, Asomeddin's sister, described what happened when she woke up:
Suddenly I heard shouting from the farmers' quarters. The farmers were shouting my brother's name -- "Hafiz Khana, Hafiz Khana" -- and then I heard gunfire ... I heard my brother shouting that armed robbers were breaking in ... I believe he took his gun and went up to check, but I don't know if he managed to shoot or not, because I was inside, and there was too much shooting going on ...
When my brother Hafizuddin rushed outside we heard shooting -- probably a single shot -- but I don't know -- and then a big thud. His wife rushed outside and started crying and calling his name -- "Hafizuddin, Hafizuddin, can you hear me? Hafizuddin, please answer, can you hear me?" -- then she screamed and said that Hafizuddin had been shot.
I rushed to him as well; he was making a noise like massive snoring. Then my nephew Habibuddin shouted to his dad to call the police. He said that he'd bring the car inside the compound to take his uncle to the hospital. I was crying and my children were crying and Hafizuddin's wife was holding his head. When Habibuddin went outside we heard another big bang ... [and then we heard] Habibuddin crying, saying, "Dad, I've been hit."
Rafiuddin Kashkaki, the brother of Zarmina, Asomeddin and Hafizuddin, was also asleep when the shooting started. He did not know who was attacking the compound, but he immediately called the local police commander to try to get help, as well as a friend who knew people in the police.
The police later confirmed to Amnesty International that they had received the calls, and that the family seemed not to know who the attackers were. The police themselves did not know either, as they were not informed in advance of the planned raid.
After calling the police, Rafiuddin said that he shot his Kalashnikov in the air a few times to show that people in the compound were armed. "I didn't know that they were US forces," he said, "I just knew we were under attack."
Rafiuddin Kashkaki surmises that the shooting may have begun as a confrontation between US troops and the guards outside, who may have thought that the soldiers were thieves. Nobody in the compound actually saw the killings occur; they just heard the shooting.
Rafiuddin did not see his 16-year-old son Habibuddin get shot, but he and the other family members believe that Habibuddin had run outside to try to get one of the cars so that he could drive his dying uncle Hafizuddin to the hospital.
Right after Habibuddin was shot he crawled to the door of his father's room. "He said to his mother, ‘I'm going to die,'" Rafiuddin recalled. "My wife and my other son brought Habibuddin into the room. Then I heard an announcement saying if you want to live, come out with your hands up." Habibuddin died shortly after.
The timing of the US forces' announcement is one of the major points of disagreement between the Kashkaki family and US forces. Amnesty International interviewed several family members, all of whom claimed that the US forces did not announce who they were until the shooting was over.
US military representatives have said just the opposite: that US troops used bullhorns to announce their presence and to call out the people they were seeking to arrest. An ISAF press release issued on the day of the raid said: "As the joint force approached the compound they received automatic gunfire. During the firefight the security force attempted several callouts without success."
Another major point of contention is whether there were militants in the compound. The ISAF press release asserted that no civilians were harmed in the operation, and that the dead consisted of a "Taliban subcommander and other insurgents." The family admits being armed and shooting in the air, but claims that no one in the compound -- including those killed -- belonged to the Taliban or other anti-government groups.
"We have no Taliban sympathies," Rafiuddin told Amnesty International. "My brother was a car dealer, not a militant. My son was in the tenth grade -- he was studying English and listening to music -- how could anyone even imagine he could be a Talib?"
In all, nine men and boys were killed that night: Hafizuddin Kashkaki, aged 28; Habibuddin Kashkaki, aged 16; Gulalai (the guard), aged about 40; Mohammed Yunus, aged 28, a friend of Hafizuddin; Sayed Rahim, an older farmer, and Rahim's four sons -- Shafi, aged 40; Shams ul Rahman, aged 24; Zukruddin, aged 20, and Rasul Khan, aged 16.
According to the Kashkaki family and local police, the suspicions of the US military mostly seemed to centre around Shams ul Rahman, one of the farmer's sons. Shams ul Rahman was an imam who, according to family members, spent most of his time reading the Qur'an and other Islamic books.
A couple of family members who were detained and questioned by US forces after the raid said that their questions focused on two topics: weapons and Shams ul Rahman. Many believed that it was a case of mistaken identity. In a press account of the raid, two US officials who briefed National Public Radio about its details said that the target of the raid, named Shamsuddin, was positively identified at the site.
The local police commander told Amnesty International that he had no information to confirm or contradict any US intelligence about Shams ul Rahman, but that he knew of a Taliban commander named Shamsuddin operating in the area, and that the man was still alive and active.
He did say, however, that when he and other police were able to enter the compound on the night of the attack, a couple of hours after the shooting had stopped, they found that Shams ul Rahman and his brother were both armed, as was Hafizuddin.
In assessing ISAF's claims of militant activity, it is worth noting that the ISAF press release claimed that "two insurgents" were captured in the raid. The two people who were detained, though, were Asomeddin, one of the two surviving brothers, and Sayed Jaffar, age 17, the farmer's surviving son.
Both were released very quickly. Jaffar had been injured -- he had been shot in the foot -- and Asomeddin said that Jaffer was released that same day. Asomeddin said that he himself was held for four days and then released.
The final set of contradictory claims involves military hardware that US forces claim that they found at the compound. ISAF's original press release states that US troops found automatic rifles and other firearms, a claim that family does not dispute. But in later interviews with journalists, US officials said that they also found mortar sighting equipment.
Rafiuddin Kashkaki said that this claim was disingenuous. He said that a destroyed room on the third floor of one of the buildings had some old hardware dating from the mujahedin era, but that no one could honestly believe it was functional; it had not been touched in decades.
In addition to the killings, some of the male family members claim that the US forces mistreated them while conducting a search of the house. Asomeddin Kashkaki told Amnesty International that after taking full control of the compound, the soldiers took him and his brother Rafiuddin back inside. "They asked us to show them the rockets and weapons that they believed were hidden there," he said. "Our hands were tied behind our backs but we were beaten and pushed all the time with gun butts."
In the morning, after the US forces had left the compound via two helicopters, the remaining male family members decided to stage a protest. Bringing the bodies of their dead relatives to the local district administration offices, they were joined by hundreds of other villagers.
The group chanted anti-Karzai and anti-US slogans, and wanted to continue on to the provincial capital, Jalalabad, but were blocked by government troops. In the violence that ensued, another person was reportedly killed: a nephew of the farmer who had been killed in the previous night's raid.
Over the next few months, the Kashkakis tried to bring their case to several different fora. The two surviving brothers met with officials from the Afghan Ministry of the Interior and Ministry of Justice, who reportedly told them that nothing could be done.
Asomeddin Kashkaki said that some people suggested that he visit the local Provincial Reconstruction Team (PRT) of the US forces, but he did not feel that it was safe to go on his own, and he did not know any Afghan government officials who could take him there. No US or ISAF investigators ever came to interview them, members of the family insisted, only journalists, human rights groups, and the International Committee of the Red Cross (ICRC).
"Before this raid occurred, I was afraid of the Taliban, not the US," Rafiuddin Kashkaki told Amnesty International. "Now the US has labeled us as Taliban." When asked what he was seeking in going to the authorities for help, the first thing that Asomeddin Kashkaki said was that he wanted a full investigation to clear his family's name and prove that they were not linked to the Taliban.
The brothers said that they had not received any compensation for the loss of their family members or the other damages that they incurred. An organization based in Jalalabad, whose name they could not remember, had provided them with rickshaws and stationery. Both brothers said that they wanted real compensation, and, most of all, they wanted answers.
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