Defence`s Feeds

Russian RS-28 Sarmat (SS-X-30 Satan 2) Intercontinental Ballistic Missile

In October 2017, Afghans experienced another particularly violent period. A series of high-profile insurgent attacks took place almost simultaneously in Kabul and five provinces. Provincial and district centres were targeted, as well as ANSF installations and Sunni and Shia mosques. The overall number of people killed in these attacks is estimated to be over 200, with hundreds more injured. AAN’s Thomas Ruttig (with contributions from Fazal Muzhary and Ehsan Qaane) examines this latest wave of violence, putting it into the context of security trends so far this year. He concludes that there is no ‘stalemate’ in the Afghan conflict, as has been observed elsewhere. On the contrary, the situation remains extremely dynamic and volatile.

Within four days, between 16 and 19 October, the Taleban carried out a number of high-profile attacks on Afghan government forces installations and convoys in three major provinces: Ghazni, Paktia and Kandahar. Furthermore, gunmen attacked congregations in mosques in Kabul city and Ghor province. These attacks caused substantial casualties among both Afghan government forces and civilians, as well as extensive damage.

This latest wave of attacks brought to an end a long,comparatively low-key and not overly successful Taleban offensive this year. (Each spring, after Nowruz, the Afghan New Year, the Taleban announce their annual offensive. This year’s was codenamed Omari, in memory of the movement’s founder Mullah Muhammad Omar (read here; AAN background here).

One specific feature stood out in many of the attacks on the Afghan forces’ installations, which was that the use of US-made armoured Humvee vehicles captured from the Afghan forces, which the Taleban then turned into car bombs in order to breach military fortifications.

The latest wave of attacks: what happened and when?

16 October 2017: Andar (Ghazni)

The first attack took place on Monday 16 October, when the Taleban moved against Andar district centre, just outside the provincial capital of Ghazni. They attacked a police post near the district’s administrative compound and then the compound itself with car bombs. Ghazni’s governor, Abdul Karim Matin, said that during the attack a Humvee rigged with explosives was used as a driving bomb. (The Taleban subsequently sent a statement to the media, saying it was a normal lorry.) The insurgents were not immediately able to capture Andar’s centre, but laid siege to it. Three days of clashes followed, during which the Taleban briefly managed to capture the district centre but were quickly driven out by Afghan forces supported by US airstrikes.

At least 28 security personnel were killed and 18 others wounded during the fighting, according to provincial police chief General Muhammad Zaman Khosti. It is not clear whether this included the seven police killed when a reinforcement convoy headed to Andar was ambushed. At least five civilians were also killed. Khosti further claimed that 69 militants, including their ‘red unit special forces’ commander, had been killed and 17 others injured. Governor Matin spoke of 90 Taleban fighters and 22 security forces having been killed.

17 October 2017: Gardez (Paktia)

The next day, on 17 October, Taleban suicide bombers and gunmen stormed the police-training centre in Paktia’s provincial capital, Gardez, which also housed the police’s and the army’s regional headquarters. According to local sources, the attackers used captured unarmoured police vehicles (of the Ranger type), which they filled with explosives in their first assault, followed by a similarly kitted-out Humvee during a second one. They killed at least 41 people, including provincial police chief Toryalai Abdiani, and completely destroyed the installation. The government have promised to build a new one.

The attack happened in a province that had otherwise appeared to be relatively calm, except for fighting around the district centre of Janikhel in August (AAN analysis here) and an airstrike against insurgents in Ahmad Aba (sometimes called Ahmadabad) district, adjacent to Gardez, during which another Humvee captured by the Taleban was reportedly destroyed.

As a result of the Gardez attack, the total number of casualties, including attackers and civilians, was estimated to be over 80 dead and some 200 wounded. This is not the first time the training centre has been targeted. In mid-June 2017, it was hit by a so-called ‘complex attack’, killing half a dozen security forces. The Afghan interior ministry described the 17 October attack as the “biggest terrorist attack” in 2017 – but there were more to come.

18-19 October 2017, Maiwand (Kandahar)

During the night of 18 and 19 October, the Taleban used two captured Humvees as vehicle-borne bombs to penetrate a major military base, Chashmo, just outside Kandahar city in Maiwand district. The attackers, reportedly dressed in security forces uniforms, overran the base, destroyed it completely and wiped out almost its entire garrison. Of those Afghan soldiers, 43 were killed, nine more wounded and six were unaccounted for, assumed to have either been taken prisoner or to have defected.

Maiwand lies at the heart of the region, where the Taleban movement emerged in the mid-1990s. It is still one of its strongholds and the Taleban recently made further inroads here. (According to the terrorism watch blog, The Long War Journal, as early as in spring 2017, the Taleban controlled five of 18 districts in Kandahar province and heavily contested another four.)

On the same day, although much less widely reported, the Taleban used the same method – detonating a car bomb and then launching an infantry attack – to attack Jaghatu’s district centre in Maidan-Wardak province. They were, however, reportedly repulsed after several hours of fighting. By mid-September, the Taleban had already  killed three consecutive police chiefs of this district, using road-side bombs.

20 October 2017: mosque attack in Kabul – an outlier; Dolaina (Ghor)

On 20 October, 56 people were killed by a gunman who first shot at worshippers at the Imam Zaman mosque in the predominantly Shia/Hazara-populated Dasht-e Barchi area of West Kabul and then detonated a bomb he had been carrying. This attack was an outlier in the series of Taleban attacks in October, insofar as it was claimed by the Islamic State Khorasan Province (ISKP), the Afghan affiliate of the group centred in the Iraqi-Syrian borderlands. (It was not an outlier in he context of this year’s general patterns of terrorist attacks in Kabul and elsewhere, often directed against the Shia minority and claimed by ISKP – see earlier AAN reporting here and here.)

On the same day, armed men stormed a Sunni mosque in Dolaina district in Ghor province, killing up to 30 people and injuring “dozens” more. Among the dead was a pro-government militia commander, reportedly linked to Jamiat-e Islami, who appears to have been the main target of this attack. It is not clear who was behind the attack, but it also fits into a known pattern. Commanders of similar militia groups (and other government dignitaries) have repeatedly been targeted in mosques or during other social gatherings across the country, where they are particularly vulnerable (see for example here or here; attacks on mosques – although frequent – are still considered taboo among mainstream Muslims). Ghor is known for its particularly confusing pattern of conflicts, involving insurgent groups and ‘freelancing’ militias, the dividing line between which is all but hermetic (see earlier AAN analysis here).

21 October 2017: Kabul

On 21 October, another suicide bomber struck in Kabul. He walked up to a minibus transporting trainees from the Daud Khan military hospital on their way home from the Marshal Fahim Military Academy near its entrance at the Qambar junction on Qargha Road in the northwest of the capital. His attack killed 15 cadets and injured many more (see BBC and Tolonews reporting).

Earlier the same day, at least three rockets were fired “at foreign facilities” in Kabul, apparently without causing any damage. While this is not new, it appears to form part of an increasing pattern of attacks, particularly against Kabul airport. An earlier, more prominent example came in late September 2017, when US defence minister James Mattis visited Kabul and, according to Afghan media, up to 50 rockets were fired from a house near the airport, which had apparently been rented by the Taleban. It remains unclear, however, whether this was done with previous knowledge of Mattis’ visit (which is not unlikely, given that the Taleban probably have informants even in western installations).

Earlier incidents

Large-scale Taleban attacks against Afghan government forces installations are not unprecedented at all, however. This year has seen a series of such raids, which began as early as in April. Then, a ten-member Taleban commando reportedly using two Afghan national army vehicles with license plates from another province managed to enter an army base in the northern centre of Mazar-e Sharif, killing around 170 soldiers who were leaving the base’s mosque after Friday prayers (media reports here and here). The death toll could have been even higher. (Government officials reportedly privately admitted that releasing the actual death toll could undermine the morale of the Afghan army (see for example here).

Over subsequent months, similar attacks took place in the south. Each of them was smaller than the one in Mazar, but casualties added up to concerning numbers.

In May 2017, the Taleban raided Camp Achakzai, an Afghan army base in Shahwali Kot district in Kandahar province, reportedly killing 18 soldiers (media reports here, here and here). In late July, during an attack in Khakrez district, also in Kandahar, 40 Afghan soldiers were killed and many others wounded. In mid-August, at least seven people were killed in a suicide attack in Lashkargah and more than 40 others reportedly wounded, including security forces and civilians. On 28 August, at least 13 people were killed and 19 others wounded, once again including civilians and security personnel, in a suicide attack near Nawa district centre, when a suicide bomber targeted a armoured vehicle of the security forces. This followed the ANSF’s retaking of the district centre in mid-July; Nawa’s centre has remained under Taleban pressure ever since (see for example here and here).

In Farah, in the west of the country, there has been a similar series of such attacks (examples reported in the Afghan media here and here).

Analysing the attacks

‘Humvee bombs’ – a new tactic?

The use of ‘Humvee bombs’ in Andar, Gardez and Maiwand (and in other places – see below) has received much attention in both the international and Afghan media (see for example Reuters, the Los Angeles Times and Kabul-based 1TV). But it is in no way unprecedented.

Southern Afghanistan, and particularly Helmand province, saw a series of similar attacks in 2016 and 2017. This included attacks in early 2016 in the provincial capital, Lashkargah, nearby Babaji and Nowzad district (read here and here) and in Sangin district, in mid-2016 in Lashkargah again, in Gereshk district in July 2017)and in Musa Qala district in August 2017.

In neighbouring Kandahar province, a Humvee was also used during a so-called complex attack on an Afghan security forces base in Maruf district, killing at least 12 security personnel in late September 2017.

The exact number of Humvees captured by the Taleban is unknown. But as early as September 2015, Reuters quoted “officials” saying it was in the “dozens,” while the New York Times wrote in February 2016 “it could be more than 150,” including 50 to 100 in Helmand alone, over 40 taken during the Taleban capture of Kunduz in 2015 and 13 in Badakhshan.In October 2017, the Afghan defence ministry admitted it didnot know how many Humvees had been seized.

On 20 August, the deputy police chief of Farah province, Colonel Muhammad Saleh Massud stated, according to an Afghan media report, that security forces had seized two Humvee vehicles from the Taleban after they had tried to storm Khashrud district centre, at the strategic Zaranj-Delaram highway. The insurgents were eventually pushed back after several hours of fighting. The US Army Times reported “strikes” by a US marines unit based in the Afghan south “to destroy stolen Humvees” in July 2017. The same outlet also reported, with US military personnel as its source, that “in areas of Uruzgan province, the Afghan National Army, or ANA, is afraid to conduct night operations” as the local Taleban have better night vision equipment.

Reactions to the new US policy and attempts to start peace talks?

The wave of attacks has been interpreted, for example, by the BBC, as a possible response to the new US strategy in Afghanistan. Indeed, this upsurge of high-profile attacks came after US President Donald Trump announced his new strategy in August 2017 (AAN analysis here). This includes an increase of up to 4,000 of the US’s own troops, the expansion of the CIA’s involvement, Afghan special and paramilitary forces (AAN analysis here, here and here) – and an increase in pressure on the Taleban’s key ally, Pakistan. Furthermore, several high-ranking US officials – including CIA chief Mike Pompeo and foreign minister Rex Tillerson – have recently stated that US troops would stay at least until the Taleban came to the negotiating table and that the insurgents would not be given the chance to win militarily. The gap of almost two months between the Trump address and the upsurge of Taleban activity might reflect the time needed to prepare such attacks.

The wave of attacks also coincided with various recent attempts to start peace talks, such as the meeting in mid-October of the Quadrilateral Coordination Group – involving government representatives from Afghanistan, Pakistan, China and the US (but not of the Taleban) in Oman (see media report here). This initiative, which began in 2015, had faltered following the collapse of the Murree talks in August 2015 and after the Taleban did not react to an ultimatum issued by the group to come to the negotiating table within three months in February 2016.

The Taleban now stated they were “not interested” in this initiative (quoted here) but explained in a statement posted on their website on 29 September 2017 that they were not generally opposed to a peaceful solution: “Finding a peaceful solution to the Afghan problem was and is the policy of Islamic Emirate.” In the same statement they accused the government in Kabul of sabotaging the Taleban’s participation in other dialogue fora and had now “spread rumors about closing the [Qatar] office” which it called the movement’s only “authoritative organ” for conducting talks.

Technically, the meeting in Oman cannot be considered ‘peace talks’ but rather preparations in the hope of such talks.

In a second initiative, an Afghan media report said that a group of Afghan politicians not directly in government had been invited to meet Taleban representatives in Dubai this month (November 2017), with the involvement of the Pugwash Conference, an organisation that had been awarded the Nobel Peace Prize and which had earlier organised similar meetings (see AAN analysis here). (In contrast to earlier meetings, Pugwash denied that it was organising the event – noting instead that it was a mere participant.) Furthermore, the AP’s Kathy Gannon reported in August 2017, that “despite seemingly stalled peace talks” the Afghan intelligence chief and the national security adviser were in regular contact with Taleban representatives, including “about the country’s constitution and political future.” She further stated that she had even seen “documents describing the conversations.” In previous years, such initiatives – as well as US political pressure on Pakistan – have often been accompanied by an intensification in high-profile terrorist attacks.

Ending a stalemate, retaking initiative?

So far in 2017, the Taleban have failed to capture any provincial capital or hold on to most of the district centres they captured temporarily. The Taleban have also lost a number of district centres captured earlier to Afghan forces, for example some in Kunduz and Nawa in Helmand (after holding the latter for nine months).

It also appears that the Taleban have demonstrated a lower degree of military coordination in some parts of the country, as AAN reported from Kunduz province. This is the result of an increase in the number of night raids, drone and other air strikes that have taken out many mid-level commanders and fighters. Therefore, the wave of ‘Humvee attacks’ may simply be the attempt by the Taleban to counter the impression that they have lost momentum.

This has led a number of observers talking about a “stalemate.” This includes the US Special Inspector General for Afghanistan Reconstruction (SIGAR) who used this term in his most recent reports – which are largely based on US and NATO military sources (see here, p12 and here, p4). A classified German assessment of the security situation in Afghanistan issued in July 2017 and seen by the author mentions that this is the official NATO assessment which has become – and remains – the official language of western actors in the country.

Given the Taleban’s territorial gains between late 2015 and 2016, the movement has indeed been less successful in 2017, particularly during the first half of the year. While between November 2015 and November 2016, as the SIGAR reported in his first 2017 report issued in February (p58), the Afghan government lost 15 per cent of its previously held territory to the Taleban, his July 2017 report noted that “The number of districts under the control of the government … appears to have stabilized at 59.7%, the same as last quarter.”

This changed in the subsequent three months because of new Taleban gains, as the new SIGAR report, published on 30 October 2017, reflected:

As of August 2017, there were 54 districts [of 407] under insurgent control (13) or influence (41), an increase of nine districts over the last six months [up from 11 and 34 in May 2017, plus 122 “contested” districts]. (…) The Afghan government’s district and population control deteriorated to its lowest level since SIGAR began analyzing district-control data in December 2015 and population-control data in September 2016. (2)

As a result of this development, the SIGAR stated:

3.7 million Afghans (11.4% of the population) live in districts under insurgent control or influence (…), while another 8.1 million people (24.9%) live in areas that are contested. (…) The majority, 20.7 million (63.7%), still live in areas controlled or influenced by the government…

Even when there were no large-scale attacks, small-scale fighting took place on an almost daily basis throughout the spring and summer and now into autumn, and often in a number of provinces, simultaneously. This fighting only occasionally made it into the media, but it is reflected in the high number of Afghans displaced by conflict. By mid-October, UNOCHA had registered almost 300,000 new IDPs in 30 of the 34 Afghan provinces, while all 34 provinces host IDPs. There was larger-scale displacement only in 2015 (470,000) and 2016 (almost 600,000) (see AAN reporting here).

Sometimes, small-scale fighting turned into larger-scale fighting. Apart from the south and Kunduz, this was the case in Farah, Parwan, Paktia and Paktika – almost all of it underreported.

In Parwan province, which adjoins Kabul province, the Taleban twice attacked Siahgerd district centre, the first time being in August, and there was sporadic fighting in the area throughout that month. During the second attack, which took place in late September, the Taleban mobilised fighters from three provinces and made their way into Fanduqistan valley – a side valley of the Ghorband in Parwan (earlier AAN analysis here) – and marched on Siahgerd again from there. It took three days of fighting and reinforcements sent by the government to push them back. Occasional clashes were reportedly ongoing in late September as well as into October, indicating that the district was still vulnerable to a Taleban takeover. Meanwhile, in nearby Shibar district in Bamyan, there were reports of a Taleban attack, a rare occurrence in this province. It was apparently part of the Taleban’s Siahgerd operation, with the aim of cutting off one route (from Bamyan) for government reinforcements.

Even heavier and more consistent fighting (also underreported) took place in the more remote province of Farah which borders Iran. Its provincial capital, also called Farah, almost fell to the Taleban three times over the course of the past 12 months, according to the Guardian, for the first time as early as in December 2016. The province has a warm climate, so there is no winter lull in fighting. Farah further saw a brief Taleban takeover of Shebkoh (Qala-ye Kah) district centre in mid-October and two earlier attempts on Khashrud in December 2016 as well as in August this year. Heavy fighting was also reported in Bala Boluk district. The Long War Journal recently assessed that of Farah’s 11 districts, five are under Taleban control and three more heavily contested; it reported more recently that “hundreds of Taleban fighters gather[ed] in the open unopposed” in Bakwa district. (1)

Farah – together with Lashkargah (Helmand), Tirinkot (Uruzgan) and Kunduz – belongs to a group of provincial capitals that the UN, in its special representatives’ report to the Security Council, mentioned as being under heavy pressure by the Taleban. Reporting by AAN and others has shown that there is a similar situation in Sarepul, Faryab and Ghazni as well as repeated fighting in the vicinity of Baghlan’s provincial capital, Pul-e Khumri.

In mid-August, there was another large-scale and underreported Taleban attack on the district centre of Gomal in Paktika in the southeast. Fighting went on for four days, after which the attackers were eventually subdued by government forces and suffered heavy casualties. Almost simultaneously, the Taleban were temporarily able to take over Janikhel’s district centre in neighbouring Paktia, leading to a period of protracted fighting in the area (AAN reporting here).

Although most district centres captured by the Taleban in 2017 have been quickly recaptured by Afghan forces (the SIGAR report notes that recaptures have been quicker on average than last year, p.83), the fact that they were taken at all, and then had to be retaken with considerable effort, indicates that the Taleban still have the military initiative in many parts of the country. Furthermore, while the Taleban may have lost control of certain district centres, they often still control large parts of those districts. For example, as reported by the SIGAR (and based on US military information), this is the case in five of seven of Kunduz’s districts where the Taleban currently do not hold any district centre.

Conclusion: the stalemate is only statistical

The latest wave of Taleban attacks in October 2017 was an attempt to regain momentum and compensate for the fact that their permanent territorial gains remained scarce throughout 2017. But, as the trend between May and August 2017 showed, it is too early to speak of a stalemate. A number of facts speak for this.

First, as shown above, several provincial and districts centres continue to be on the brink of collapse. The 2017 trend in terms of territorial control represents a consolidation of the Taleban’s 2015/16 gains on a higher level then ever before since 2001.

Secondly, fighting is still highly intense. The latest UN report on Afghanistan to the Security Council (published in September 2017) stated that, “The conflict continued unabated throughout the country.” The UN further registered a “record level of armed clashes” during 2017. Subsequently, levels of civilian casualties and IDPs remain high. The same goes for the number of casualties within the Afghan National Security Forces (ANSF), ie the army and the police.

After ANSF losses of 8,146 dead and 14,278 injured in 2016 according to unpublicised NATO figures seen by AAN, the SIGAR July 2017 report noted 2,531 more ANSF dead and 4,238 injured between 1 January and 8 May 2017 alone. The 2016 figures amounted to 61 casualties a day, double that of UN-registered civilian casualties. The SIGAR called this casualty rate “shockingly high,” “unprecedented” and “unsustainable,” adding that figures provided to the US military by the Afghan authorities might still be “inaccurate,” but this most likely meant “underreported.”

In the introduction to his latest report, the SIGAR reveals that US forces in Afghanistan have, at the Afghan government’s request, “classified or otherwise restricted” information about the ANSF’s performance “such as casualties, personnel strength, attrition, capability assessments, and operational readiness of equipment.” Afghan media and individual Afghan journalists reported about 800 ANSF dead in September and 1,800 in October, which would amount to another rise in casualty figures.

Third, the wave of attacks has demonstrated that the Taleban are still capable of mobilising large numbers of forces across provincial borders and carrying out simultaneous attacks in various provinces. The substantial increase in both US and Afghan airstrikes has not deterred them. (According to US sources, the number of US airstrikes in Afghanistan was 50 per cent higher in September 2017 compared to those in August 2017, and, in absolute numbers, the highest since the battle of Sangin in 2010; media report here.) These attacks, most of which have been carried out by the Taleban, have also showed that they are, militarily, still far more significant than ISKP.

Fourth, the October wave of attacks was not the first this year. It was preceded by an earlier wave in the south and west of the country and by the ‘black week’ in Kabul in late May/early June, which included the 31 May suicide blast that destroyed the German Embassy and killed scores of Afghan civilians. (For this incident, no group has yet claimed responsibility (see the AAN discussion of this issue here).

If this situation represents a stalemate, it is a highly volatile and dynamic one. In any case, as one of the observers who used the term “stalemate,” Anthony Cordesman of the Washington-based Center for Strategic and International Studies (quoted here) added, this is “a stalemate that favors the insurgents.” In his latest report, the SIGAR also borrowed the UN’s expression of an “eroding stalemate.” Given all sides’ readiness and ability to increase fighting even further, there is no guarantee that this ‘relative’ stalemate will hold.

Edited by Sari Kouvo

AAN will look at some of the Taleban operations mentioned in this text in more detail over the coming weeks.

 

(1) The Long War Journal uses the following criteria:

A “Contested” district means that the government may be in control of the district center, but little else, and the Taliban controls large areas or all of the areas outside of the district center. A “Control” district means the Taliban is openly administering a district, providing services and security, and also running the local courts.

(2) In the SIGAR terminology, ‘insurgency influenced’ stands for ‘predominantly controlled’. There are also ‘contested districts’, ie with both sides in a kind of balance. It was not clear, the SIGAR explained, “whether these districts are at risk or if neither the insurgency nor the Afghan government exercises any significant control over these areas.” Their number, according to SIGAR’s latest report, has remained “mostly unchanged” over the past months.

About the methodology, the SIGAR reported in its April 2016 quarterly report (p95, with a table on p96 with further detail):

According to USFOR-A [US Forces in Afghanistan], the RS mission determines district status by assessing five indicators of stability: governance, security, infrastructure, economy, and communications.

 

South Korean Hyunmoo 2 Short-Range Ballistic Missile

International Criminal Court (ICC) Prosecutor Fatou Bensouda has requested judicial authorisation to open an investigation into crimes allegedly committed in connection to the Afghan armed conflict. If the judges of the court’s Pre-Trial Chamber agree, there could now be investigations of the Taleban for many types of war crimes and crimes against humanity, and Afghan and United States forces, both for the war crime of torture. Bensouda said the requested investigation would also look into “crimes closely linked to the situation in Afghanistan allegedly committed… on the territory of other States Parties to the Rome Statute,” a reference to the CIA’s use of black sites for torture and interrogation in Poland, Lithuania and Romania. Bensouda’s move has come despite concerted lobbying by Kabul to drop or delay the investigation. Ehsan Qaane and Kate Clark have been looking into what the announcement means and what happens next.

Almost a year since the ICC’s Office of the Prosecutor (OTP) announced, on 14 November 2016, that a decision would be made “imminently” on whether it would request an investigation into crimes allegedly committed on Afghan soil, ICC Prosecutor Bensouda announced her decision:

For decades, the people of Afghanistan have endured the scourge of armed conflict. Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met. In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan. (1)

What has the ICC done so far?

Afghanistan is a state party to the ICC. This means that the court can prosecute individuals of any nationality who are alleged to have committed war crimes, crimes against humanity or genocide on Afghan soil. The crimes need to meet ICC’s gravity threshold and the Afghan government needs to be unwilling or unable to prosecute the crimes nationally. The preliminary examination into crimes committed in Afghanistan was initiated in 2007 by the ICC Prosecutor. It was not requested by Afghanistan or the United Nations Security Council which means under the court’s rules that, once the Prosecutor has determines that there is a case or cases to answer, there has to be an additional, preliminary judgement by a panel of judges from the Pre-Trial Chamber. The judges will review the Prosecutor’s request, as well as all the supporting evidence, to ensure that an investigation is merited.

Bensouda has yet to file her request, but the ‘Afghanistan situation’ has been under what is called ‘preliminary examination’ for ten years and the likely direction of the OTP’s case can be seen from earlier reports, particularly the last, the November 2016 Preliminary Examination Report. (For AAN’s analysis of that report, see here, earlier preliminary examination reports here and background information on the ICC and Afghanistan’s situation see AAN’s previous dispatches here and here.) Human Rights Watch has said the move to request an investigation is long overdue.

More than 10 years ago, the court began its preliminary analysis in Afghanistan – the phase to determine whether there are possible ICC crimes and if the court should act. In the meantime, there have been countless summary executions, forced disappearances, acts of torture, and suicide attacks on civilians in the country. These abuses have largely gone unchecked.

What might the ICC investigation cover?

The ICC was established in 2002 and Afghanistan ratified the Rome Statute on 1 May 2003, so the vast majority of war crimes and crimes against humanity committed during almost four decades of war in Afghanistan – by the PDPA, mujahedin, Taleban government and Soviet forces – do not fall under ICC jurisdiction. Instead, three parties have been named in the Preliminary Examination: the Taleban, various Afghan government forces and the US military and CIA. If an investigation does go ahead and charges are made, these would be against individuals, not against states or armed groups.

The party to the conflict facing the most serious and multifarious allegations are the Taleban. In the OTP’s November 2016 Preliminary Examination Report, it said there was a reasonable basis to believe that the Taleban and Haqqani network have committed war crimes (murder; intentionally directing attacks against the civilian population, humanitarian personnel and protected objects; conscripting children; and killing or wounding treacherously a combatant adversary – all of which, it said, “were committed on a large scale and as part of a plan or policy”) and crimes against humanity (murder; imprisonment or other severe deprivation of physical liberty and persecution against any identifiable group or collectivity on political grounds and on gender grounds, all “allegedly committed as part of a widespread and/or systematic attack…” (For the full quote, see paragraphs 206 and 207 of the report.)

The Afghan government also faces an investigation for the war crimes of torture and cruel treatment; outrages upon personal dignity pursuant to article; and sexual violence. In the 2016 Preliminary Examination Report, the OTP named the Afghan intelligence agency, the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan National Border Police and the Afghan Local Police as alleged perpetrators and said it estimated that 35 to 50 per cent of all conflict-related detainees “may be subjected to torture,” carried out in a “state of total impunity.”

However, the most attention, if an investigation does go ahead, would be on allegations against the US, specifically that members of its intelligence agency, the CIA, and its military, during interrogations of security detainees and in conduct supporting those interrogations, as the 2016 Preliminary Examination Report put it:

… resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape… Specifically:

Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.

Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

Crucially, the OTP said these “alleged crimes were not the abuses of a few isolated individuals,” but rather were part of a policy:

The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan.

The OTP has decided that thresholds of admissibility have been reached, ie the alleged crimes are under ICC jurisdiction, are sufficiently grave and are not being addressed by domestic or other legal bodies.

What is the Afghan government’s position?

It was only after the dissemination of the 2016 preliminary examination report that the Afghan government finally and belatedly began to communicate directly with the ICC. The government’s main aim was to convince the ICC that it was willing and able to prosecute war crimes nationally. The Afghan government sent two delegations to The Hague discuss cooperation (one in December 2016 and one in January 2017) and also informed the court of examples of national prosecutions and new laws. For example, it sent 15 cases including the cases of Anas Haqqani and Hafiz ul-Rashid, two senior members of the Haqqani network who are in Afghan government custody (for more details, see AAN’s previous dispatch).

The government also took several anti-torture measures. Torture was already illegal in multiple ways, including under the Afghan constitution, but nonetheless, in March 2017, the government also adopted some new measures. A new Torture Law and added the crimes listed in the Rome Statute, word for word, into its newly approved Penal Code. The Penal Code was approved by presidential decree on 4 March 2017 and is due to come into force on 14 February 2018. It makes the perpetrators of war crimes, crimes against humanity and genocide punishable by prison terms of up to 30 years, execution and/or compensating victims. More details of these new measures can be read about in AAN’s analysis of Afghanistan’s submission to the expert committee monitoring compliance with the UN Torture Convention, which met in April 2017.

However, the government’s new measures have had, as yet, no impact on what actually happens to conflict-related detainees. This was made clear in UNAMA’s most recent report on the subject, also published in April 2017 (read AAN analysis here which found the prevalence of torture had increased since its previous report in 2015 (39 per cent of detainees interviewed had been tortured, compared to 31 per cent) and a “pervasive culture of impunity” with torturers facing little risk even of disciplinary action, let alone being prosecuted.

Moreover, it is difficult for the Afghan government to claim it is ready and able to prosecute (not just government torturers, but alleged Taleban war criminals), as long as the Amnesty Law is in force. The law gives an amnesty to anyone who perpetrated war crimes before 2001 and any perpetrator since who reconciles with the government. The Amnesty Law was used in the OTP’s preliminary examination reports as evidence that Kabul is not willing or able to prosecute.

Afghanistan could have prosecuted perpetrators of war crimes and crimes against humanity during the period of the preliminary examination, making an ICC intervention unnecessary. The Afghanistan situation was under OTP scrutiny for ten years, making it the second longest preliminary examination after Colombia’s, which began in 2004. If the Afghan government had taken the ICC seriously and prosecuted some of the major perpetrators of the crimes under the court’s jurisdiction, Kabul might at least have won itself the same chance Colombia has. Bogota proved to the ICC that it was investigating and prosecuting the perpetrators in national courts and a full investigation was postponed.

Since November 2016, efforts have been made to get the investigation dropped or delayed. Nader Nadery, Afghanistan’s focal point for the ICC, told AAN in October 2017 that a meeting between President Ashraf Ghani and Prosecutor Fatou Bensouda on 22 September 2017 on the sidelines of the United Nations General Assembly in New York had gone well. In the meeting, Ghani reportedly told Bensouda that “morally he is on the side of the ICC [to provide justice for war victims], but legally he is not.” He added that Bensouda’s arguments about the “admissibility of cases” were not convincing. AAN was also told by a government source that Kabul tried to argue that the court’s intervention would harm the Afghan ‘peace process’ (what that might be was not clear) and would have a negative, although unspecified impact on the presence of international troops in its county. The result, the source said, would be instability and greater violence in the country. In other words, Kabul tried to argue that an ICC intervention would not be in in the ‘interest of justice’, ie the interests of the victims (a reason for an investigation not to go ahead, according to the Rome Statute).

The government’s attempts since November 2016 to present itself as both willing and able to prosecute will have had to have been considered by the OTP before it could take any further step, according to the provision of the Rules of Procedures and Evidence of the ICC. This might have been why the OTP spent a year considering whether to request authorisation from the Pre-Trial Chamber for an investigation. Nevertheless, those efforts have failed.

There has not been any official comment from the Afghan government as yet. However, the Afghanistan Independent Human Rights Commission (AIHRC) has welcomed the OTP’s decision, saying on 4 November 2017 that it “believes that supporting and providing justice by using any domestic and international mechanism is crucial to end impunity, prosecute perpetrators and bring justice for victims.” It called on the government to fulfil its obligations according to the Rome Statute and fully assist the ICC. An Afghan pressure group, the Transitional Justice Coordination Group (TJCG), a network of 26 individuals and civil society organisations, called on the Pre-Trial Chamber to authorise the investigation and urged the government to help ICC investigators and protect victims and witnesses. It said justice could help build a sustainable peace in the country (press statement released on 5 November 2017 which AAN has a soft copy of).

What is the US position?

Former President Bill Clinton signed the Rome Statute in 2000, but did not submit it for Senate ratification. His successor, George Bush, American president when the ICC was founded in 2002, said the US would not join it. He also established what opponents have called the ‘Hague Invasion Act’, the 2002 American Service Members Protection Act which prohibits cooperation with the ICC and allows the president to authorise military force to free any American military personnel held by it. President Obama re-established a working relationship with the ICC, with the US as an observer. However, the Rome Statue remains unratified by Washington.

Even so, because Afghanistan is a member of the ICC, the ICC has jurisdiction over American personnel in Afghanistan. This is despite the 2014 US-Afghan Status of Forces Agreement (SOFA) (see analysis here which stipulates that members of US forces “may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the United States.” Rather the US has the “exclusive right to exercise jurisdiction” over them. Under the Rome Statute, there is a provision for an agreement like the SOFA to excuse the Afghan government from arresting US citizens or surrendering them to the court. However, they do not protect US nationals who may have committed war crimes or crimes against humanity on Afghan soil from being investigated, charged and put on trial. (2)

The US cannot argue that it is able and willing to prosecute the war crime of torture, nationally. The use of torture by US personnel was authorised by the Bush administration in 2002 and although President Obama banned its use when he took office in 2009, his administration decided not to prosecute anyone. “We tortured some folks,” said Obama. “You know, it is important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.” President Trump has praised the use of torture saying he liked waterboarding “…a lot. I don’t think it’s tough enough.” Even if it did not work, he said, he would authorise it because “they deserve it anyway for what they do to us.”

At the individual level, the US record on prosecuting those accused of war crimes and crimes against humanity has been poor, as AAN commented in a major report on transitional justice and reconciliation in Afghanistan:

The US military seldom publicizes the results of investigations into specific abuses, including torture, deaths in detention and indiscriminate or disproportionate use of force during ground operations. In the majority of cases, there is little indication that anyone has been held accountable for these abuses.

As the OTP pointed out, the scope of the Department of Justice’s preliminary review (August 2009 to June 2011) of allegations of CIA abuse of detainees, “appears to have been limited to investigating whether any unauthorised interrogation techniques were used by CIA interrogators, and if so, whether such conduct could constitute violations of any applicable criminal statutes.” (emphasis added) In other words, there has been no criminal investigation into the use of authorised torture techniques, a point highlighted by the OTP which quoted the US Attorney General:

“…the Department of Justice (DOJ) will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

So far, there has been no official comment from Washington on Bensouda’s announcement of her request to seek authorisation to investigate. (For more detail about the poor record of the US military and CIA on dealing with crimes committed by its members, see these two AAN dispatches here and here.

Looking ahead

The Rome Statue does give some ways for either the US or Afghan government to stop an ICC investigation: prosecutions in national courts (Afghan and/or American); showing that the intervention of the ICC would not be in the interest of justice (Kabul has already argued and failed to convince the OTP on this); or an order from the United Nations Security Council to halt the investigation. Nevertheless, Alex Whiting, former prosecutor at the International Criminal Tribunal for the former Yugoslavia and ICC, writing on the Just Security website thinks the investigation “undoubtedly will” get authorised by the Pre-Trial Chamber and go ahead. He warns, however, that it will be “difficult, if not nearly impossible” to enact:

The ICC has extremely limited investigative powers and is almost entirely dependent on cooperation by states to gather information. In this case, there will be no cooperation from the Afghan government, the Taliban, or the U.S. As a non-State Party, the U.S. is not obligated to cooperate with the ICC, and the American Service-members’ Protection Act largely prohibits the U.S. from voluntarily cooperating. While some alleged victims will be available to be interviewed in other locations, and some evidence of the alleged crimes in Afghanistan and the black sites has been developed and made available by other inquiries, there is no question that it will be extremely difficult for the ICC to develop evidence to prove culpability beyond a reasonable doubt.

Whiting is wrong in saying there will be no cooperation from the Afghan government. It is obliged by the Rome Statute, like all other State Parties, to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court” (article 86, Rome Statue). However, he did leave out one very major problem – the ongoing war and the danger that creates for investigators working on the ground and for victims and witnesses.

Afghans and others have suffered terribly from war crimes and crimes against humanity and deserve justice. After the failures of national courts to take their suffering seriously, the launch of an ICC investigation would be immensely significant, putting the most senior, responsible leaders of the Taleban, Afghan security officials and US forces and officials under scrutiny. It would show that even the most powerful people in a country and the most powerful country in the world are not above the law. Yet, any ICC investigation will be difficult and lengthy. If an investigation is authorised, it will be the start of a new chapter for victims to find justice, not the end.

Edited by Sari Kouvo

 

(1) According to articles 15 and 53 of the Rome Statute, these legal criteria are: 1) at least one of the crimes, which comes under the subject-matter of the ICC, has been committed in the state territory and met the threshold of the ICC in relation to the gravity, 2) the alleged crime has not been proceeded nationally by the state, and 3) there has not be information to believe that the intervention of the ICC will jeopardise “the interests of justice.”

(2) According to article 98 (2) of the Rome Statute, “The Court [ICC] may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving consent for the surrender.”

 

 

 

Americas

• Canada has been cleared by the US State Department’s Defense Security Cooperation Agency (DSCA) to proceed with the purchase of 32 AIM-120D air-to-air missiles. Costing an estimated $140 million, the package also includes 18 Captive Air Training Missiles, four AMRAAM Non-Development Item-Airborne Instrumentation Units, two AMRAAM Instrumented Test Vehicles, seven spare AMRAAM guidance units and four spare AMRAAM control sections for use on their F/A-18 aircrafts. The DSCA said the missiles will be used on Royal Canadian Air Force fighter aircraft and are said to contribute to the foreign policy and national security objectives of the US by helping to improve the security of a NATO ally.

• BAE Systems has commenced production of its sensor technology for the Long Range Anti-Ship Missile (LRASM) produced by Lockheed Martin. Valued at $40 million, the order will be carried out at BAE Systems’ facilities in Nashua, New Hampshire and Wayne, New Jersey. BAE says the sensor will allow the LRASM to semi-autonomously detect and identify targeted enemy ships without relying exclusively on intelligence, surveillance, and reconnaissance systems, networking links, or GPS navigation.

• MBDA Missile Systems will produce up to 21,000 Diamond Back Wing Assemblies for use on the US Air Force’s (USAF) precision-guided GBU-39 Small Diameter Bomb Increment I (GBU-39 SDB-I). The contract, awarded by the munition’s manufacturer Boeing, comes as the US Air Force orders additional SDB-I production under a two-year deal worth $261 million, which will run through to December 2018. MBDA’s component is an integral part of the munition as its tandem wing design improves the maneuverability and extends its range to over 60 nautical miles, increasing pilot safety and expanding operational reach.

Middle East & Africa

• The Canadian government, under pressure to make good on peacekeeping commitments made in 2015, looks set to offer six helicopters to the UN’s Mali mission, which could be followed by a troop deployment to act as trainers. While Prime Minister Justin Trudeau had promised to send 600 troops to Mali back in 2015, fears over high causalities have prevented any firm action being taken, a decision critics say could damage Canada’s hopes of joining the UN Security Council. A 10,000 UN peacekeeping force is already in present in the country—which is experiencing a growing militant threat from jihadists—and 80 peacekeepers have been killed since 2013, making it the world’s most dangerous peacekeeping operation. Sources say the Mali mission will be discussed on the sidelines next month at an international peacekeeping conference that Canada is hosting.

• Qatar has been cleared by the DSCA for the possible $1.1 billion foreign military sale in support of its F-15QA multi-role fighter aircraft program. Once cleared by US Congress, work to be undertaken includes design and construction services, new parking/loading ramps, hot cargo pads, taxiways, hangars, back shops, alert facilities, weapons storage areas, hardened shelters, squadron operations facilities, maintenance facilities, training facilities, information technology support and cyber facilities, force protection support facilities, squadron operations facilities, other F-15QA related support structures, construction/facilities/design services, cybersecurity services, mission critical computer resources, support services, force protection services, and other related elements of logistics and program support. Contractors for the sale will be determined through an open competition, and it is expected that Doha will request offsets before negotiations are concluded. The support deal follows Qatar’s June’s $12 billion order for 36 F-15QA aircraft from Boeing, and less than two months after it announced intentions to buy 24 Eurofighter Typhoons from the UK.

• The purchase price of Turkey’s new S-400 Trumf air defense missile system is in excess of $2 billion. CEO of Russia’s state conglomerate Rostec, Sergei Chemezovhe, made the announcement to the TASS news agency on Thursday. The sale has been controversial, especially in the US, as Turkey is a NATO member yet shunned an air defense system that was interoperable with allied systems and networks. Ankara also announced this week a new $1 billion competition to design, develop, and eventually produce an engine and transmission system, or power group, for Turkey’s indigenous Altay tank program. A previous contract awarded to local engine-maker Tumosan, in conjunction with Austrian firm AVL List GmbH, was cancelled as part of Austria’s arms embargo on Turkey. Now chasing the money is the British-based European division of US firm Caterpillar, who have expressed interest in the power pack for the Altay program.

Europe

• Russia is toying with the idea of developing a new single-seat attack jet based on the twin-seat Su-34 fighter-bomber. Development of the new fighter, according to an anonymous source, could start as early 2018, with an aim to replacing the Su-25 with an aircraft that holds twice the payload (eight tonnes compared to four). But the Su-25 isn’t going anywhere any time soon. Its most recent variant, the Su-25SM3, is expected to keep flying for the next 10-15 years.

Asia Pacific

• The second indigenous aircraft carrier being developed by China will come with an Electromagnetic Aircraft Launch System (EMALS), the South China Morning Post reports. Military officials are said to have given the green light to the project after breakthroughs in developing a medium-voltage, direct-current transmission network that does not require the use of nuclear power to operate—a feature found on US aircraft carriers that use EMALS to launch its carrier aircraft—and while the US have already developed such an integrated propulsion system (IPS) on its first USS Zumwalt-class destroyer, China’s second-generation IPS technology is believed to be more advanced. China’s first two carriers, the Liaoning and its sister ship, the Type 001A, are conventionally powered vessels equipped with Soviet-designed ski-jump launch systems.

Today’s Video

• Kratos’ UTAP-22 Mako Unmanned Aerial System (UAS) completed a multi-UAS demonstration mission:

Americas

• The US Army has awarded a production contract to L3 Technologies for its Manned/Unmanned Teaming-eXpanded Capabilities (MUMT-X) program for AH-64 Apache attack helicopters. Valued at $97 million, L3 2ill provide Apache MUMT-X above-rotor Unmanned Aerial System Receive technology solutions to support MUMT operations and air-to-air-to-ground line-of-sight data links—a more robust, lighter and less expensive system than the original Unmanned Aircraft System control system currently used. Work will be under taken by L3’s division, L3 CS-West, specialists in high-performance networks.

• Northrop Grumman announced the successful first refueling of its E-2D Hawkeye early warning aircraft. The milestone was reached during a four hour flight on July 14 of this year, where the crew performed 10 dry plugs and two wet plugs with the help of a US Navy KC-130 tanker. Awarded in 2013, the aerial refueling contract was granted to give the US Navy the capability and flexibility to conduct missions over four hours. The aerial refueling system modification contains several sub-system upgrades to accommodate the refueling capability including adding the fuel probe plumbing, formation lighting, long-endurance seats, as well as flight control software and hardware changes.

• Lockheed Martin has been tapped by the US Navy to develop the service’s largest unmanned undersea vehicle. Dubbed the Orca, the Extra Large Unmanned Undersea Vehicle (XLUUV) is a multi-mission autonomous vehicle with a reconfigurable payload bay. It will be capable of transiting to an area of operation, loiter, periodically establish communications, deploy payloads and then transit home. Valued at $43.2 million, the award falls under the program’s design-phase, ahead of a second competitive production phase contract that will commission up to nine vehicles.

Middle East & Africa

• Lebanon has received two A-29 Super Tucano light attack aircraft from the United States. The aircraft will be used for armed observational operations, according to a Lebanese military official. Four more Super Tucanos are expected to be delivered as Washington continues its support and financing of the Lebanese military despite claims by Israel that the military has been supplanted by Hezbollah—a Lebanese Shi‘ite Muslim paramilitary organisation backed by Iran and an ally of Syrian President Bashar Al-Assad during his country’s six year civil war. Despite these claims, US ambassador to Beirut Elizabeth Richard said the delivery marked a “significant increase in Lebanese Air Force combat capability that this aircraft represents will ensure that the LAF will remain a national unifying force, a bulwark against extremism and terrorism.”

• Israel Aerospace Industries (IAI) announced the first order of subsidiary Elta’s ELK-1882T satellite communication terminal for fighter jets. The unnamed customer will receive deliveries of the Ku-band phased array SATCOM network starting in 2021. The firm will display the system at the MilSatCom Show in London, UK from November 7-9. They bill it as easy to install and integrate, with minimal impact on aircraft performance due to the conformal installation.

Europe

• Airbus has admitted to “certain inaccuracies” in US arms export filings, drawing the United States for the first time into a scandal over alleged misconduct at the European aerospace giant. The export controls apply to certain aircraft, such as the UH-72 Lakotas, which are sold to foreign customers from the US, as well as some US-made equipment installed on Airbus products, such engines and avionics. While the firm offered few details on the matter, they confirmed the inaccuracies during an internal review completed in late July after initially coming to their attention in November 2016, however, was unable to estimate how long it could take to resolve the matter or the range of potential consequences.

Asia Pacific

• Following the recent sale to Lithuania, Indonesia has become the latest buyer of the Norwegian Advanced Surface to Air Missile System (NASAMS), the platform’s manufacturer Kongsberg announced Tuesday. The $77 million deal includes one NASAMS system, command posts, radars, launchers, radios, as well as system integration, training and logistics support. Jakarta will purchase the AMRAAM missiles for the system under a separate foreign military sale with the United States. Once delivered, Indonesia will join Norway, Finland, the Netherlands, the US, Spain and Oman as operators of the system.

• The Indian Navy has been allocated $3.3 billion to proceed with the procurement of 111 naval helicopters. Once New Delhi selects a winner, sixteen units will be purchased off the shelf, while the rest will be assembled in India with local private partners under the ‘Make in India’ initiative. Capabilities requested include search and rescue (SAR), humanitarian assistance and disaster relief (HADR), and must be able to carry light-weight torpedoes for anti-submarine warfare (ASW) missions. Potential suppliers mentioned include Airbus with its S565 MBe Panther, Bell Helicopters’ Bell 429, and unnamed offerings from Lockheed Martin subsidiary Sikorsky, and Russian firm Rosoboronexport.

Today’s Video

• E-2D receives fuel for the first time:

As an art exhibition featuring the works of eight current and former Guantanamo detainees, Yemeni, Algerian, Pakistani and Kuwaiti, is now showing in New York, we thought we would look at the paintings and sculptures of an Afghan who is still in the prison camp, who is not featured in the exhibition. Assad (known in Guantanamo as Harun Gul) was captured in Afghanistan in 2007 and accused of being a Hezb-e Islami commander and courier for al-Qaeda. An earlier investigation into his case by AAN found the United States had presented no credible evidence to back up its claims. AAN’s Kate Clark has been looking at Assad’s artwork and speaking to his lawyer about the role of art for the detainees.

In 2016, AAN published an exhaustive investigation into the Afghan experience in Guantanamo “Kafka in Cuba” . The section on Assad’s case is re-published here as an appendix.

“He produces more art work than any of our clients,” Assad’s (1) lawyer, Shelby Sullivan-Bennis, told AAN. “I’m always impressed. A lot of the pieces come with some sort of meaning. He traces his daughter’s face, for example, again and again.” (2) Assad’s one and only child, a girl, was just an infant when he was detained ten years ago.

Assad is someone I know only indirectly, through documents produced at Guantanamo and by the American justice system. I spent much of 2016 pouring over these papers and those of the other seven Afghans still left in Guantanamo at the start of that year. Just two of the eight are still incarcerated in Cuba, Assad and Muhammad Rahim. They are among the 41 detainees left in the prison camp, remnants of the 730 men ever held there, 220 of whom were Afghan. Assad is one of the 26 men classed as ‘ordinary detainees’ and Rahim one of the 15 ‘High Value’ detainees.

Assad was captured in Afghanistan in 2007 probably by the Afghan intelligence agency, the NDS, (3) and handed over to the US who accused him of being a Hezb-e Islami commander and al-Qaeda courier. Like almost all the other eight Afghans still in Guantanamo in 2016, he has described being tortured (there is confirmatory evidence in two of the cases, although not Assad’s). Like all the others, the US has yet to put forward compelling evidence to support any of its claims against him.

AAN’s investigation into these eight cases found the US based its accusations on hearsay, ‘confessions’ and accusations secured through torture. We found files rife with gross mistakes and misunderstandings and some accusations which were simply fantastical. As can be seen in the appendix to this dispatch, all the allegations against Assad were sourced to his own testimony or that of other detainees which, given the use of torture, makes them unsafe. Even if the US allegations against him are true, the documents available indicate he was only a very junior Hezb commander; at his level, Afghan couriers working with al-Qaeda have been many. The rationale for holding him in Guantanamo has never been apparent.

Out of all of the eight Afghan detainees, the publicly available documents about Assad give the least information about him. Unlike some of his compatriots, Assad’s ‘voice’ is barely heard through the written word. Looking through his paintings, however, a little more of the man comes through.

Flowers painted in Guantanamo

Assad’s artwork

Assad paints seascapes and mountainscapes, rivers and flowers and, on what look like paperweights fashioned out of clay, geometric shapes and, again, flowers. Apart from his daughter, there are few figures. The recurring images of the sea are curious for a man born in a landlocked country (he is from Nangrahar province), but the ocean appears in many detainees’ paintings. One of his former fellow inmates in Guantanamo, Mansoor al-Dayfi, a Yemeni who was released to Serbia last year and is one of the artists with work in the current exhibition, “Ode to the Sea: Art from Guantánamo”, in New York, (4) gives some more context. He has described how the sea was a constant presence at the camp, but only its sound. Barriers blocked the prisoners’ view of the ocean. For the Afghans who arrived at the prison camp who had never seen the sea, it was simply unimaginable, said al-Dayfi in an essay for the exhibition’s catalogue:

All that the Afghans knew was that it was a lot of water that kills and eats people. They started asking about the sea. People who knew what the sea was, mostly people like me, from Arab countries, tried to explain it to the Afghans, but that made them even more afraid.

An Afghan pointed to a cargo plane, and said, “The sea is big like this?”

Bigger, he was told. “Ships can carry many planes that size,” another detainee said.

The Afghans told other detainees that the American interrogators threatened them, saying, “When we finish with you here, you will be taken to the sea, and you all will be thrown there.” It wasn’t a good beginning with the sea. (5)

Assad’s lawyer, Shelby Sullivan-Bennis, who works for the legal rights organisation, Reprieve, said she has not asked him why he paints the sea so often or how he came to know about it. However, al-Dayfi said that, for four days in 2014, a hurricane enabled some of the detainees to finally see the ocean. Guards pulled down the green tarpaulins that blocked their view, ahead of the storm.

We all faced one direction: toward the sea. It felt like a little freedom, to look at it. I heard an Afghan guy shout, “Allahu akbar!” at the sight, thanking God for the wonder of the sea, repeating that many times, calling out to his friends.

The tarps remained down for a few days, and the detainees started making art about the sea. Some wrote poems about it. And everyone who could draw drew the sea. I could see different meanings in each drawing, color and shape. I could see the detainees put their dreams, feelings, hopes and lives in them. I could see some of these drawings were mixtures of hope and pain. That the sea means freedom no one can control or own, freedom for everyone

 Each of us found a way to escape to the sea.

Those who could see the sea spent most of their time watching, listening and looking at that big blue color, which cools our souls. The sea was a little rough, because of the windy weather. Huge waves that rose high and hit the land. Looking at a sea like that was scary, but it was what we got, and it felt good. Afghans started calling out to one another and expressing their feelings about what they saw, and turned to us with many questions about that beast.

Those days without the tarps were like a vacation. On the last day the sea looked refreshed, calm and lovely. A huge ship sailed close by. Detainees called out to one another to look at the ship. We kept looking at it like something magic would happen and all of us would be freed. But the ship just disappeared. The next day the workers returned and blocked our sight.

Sullivan-Bennis said her clients vary in their attitude to their artwork. In Assad’s case, he does not take his art too seriously.

He openly mocks his ability to paint and depict anything recognizable, but he continues to incorporate his daughter’s name into almost every piece. He has drawn more copies than I can count of a photo that he has of his daughter; in its final iterations, his sketch is the spitting image of the photo. He also uses art as a way to gift me something, as he often says that he feels he has nothing with which he can thank me… He uses art to show love.

“He openly mocks his ability to paint and depict anything recognisable,” said Assad’s lawyer, but also “uses art to show love.” He repeatedly paints and draws his daughter.

Art classes in Guantanamo

There has always been some art produced by inmates in Guantanamo, even if it was just etching flowers on styrofoam cups. One of the other lawyers with clients there, Aliya Hana Hussain, from the Centre for Constitutional Rights said they heard about this from the very early Bush years, and that “the guards confiscated those [cups] and took them to be analyzed by intelligence to see if they had coded messages.” Sullivan-Bennis, who represents eight inmates at Guantanamo apart from Assad, also said they were told by the “secure facility people that the prisoners might put squiggles into their art as messages to al-Qaeda.” The lawyers assume that this early work was destroyed.

It was much later, after President Barack Obama came to power in 2009, that inmates began to have access to art classes. These, in the words of the US military, were aimed at “providing intellectual stimulation for the detainees and allow[ing] them to express their creativity.”

Even later, Sullivan-Bennis said artwork began to be actively encouraged by detainees’ ‘Personal Representatives’, the military officers who represent them at the Periodic Review Board. This body, set up by Obama, assesses each detainee to determine if they pose a threat to the US. It can chose to send a detainee to military trial, to keep them detained without trial or recommend their transfer out of the camp (meaning release to a third country, with conditions ensuring they will not be tortured or disappear). The Board first met on 11 November 2013. The Personal Representatives, said Sullivan-Bennis, wanted to demonstrate that ‘their’ detainees were participating in courses offered and “had developed skills.” It was a way of trying to convince the Board that they were suitable for transfer out of the camp. She was able to take some artwork – after it was censored – off the island from 2015. As with all things in Guantanamo, said Sullivan-Bennis, “the rules around art-making change frequently and seemingly arbitrarily: the number of canvases that they’re allowed to work on at any given time, the number of pieces they’ve made that they’re allowed to keep in their cell.”

There are other classes apart from art offered and these have varied over time, both as to subject and who is eligible to attend. Currently, one instructor, not an art teacher, is teaching everything in a class called ‘life skills’. These include computer skills and something Sullivan-Bennis found very distressing – teaching ‘forever prisoners’, ie those slated for continuing detention without trial, to write resumes. One man, Sullivan-Bennis said, who had been detained soon after 2001 when he was very young, had only had a single job before being incarcerated. On his resume, she found he had listed the ‘jobs’ he had done in detention.

Unlike many of her clients, Sullivan-Bennis said Assad does not depict suffering. Others paint pictures showing torture, or other forms of misery – one client, for example, painted an older man with a very long beard in a very dark room without dimensions, looking high up to a slit in the wall from which light was coming. The lawyers can see such paintings, but they are not allowed to take them away from Guantanamo. What we can see of the Guantanamo artwork, then, is a skewed, censored selection, tending to show the positive.

Taking artwork off-site may also be forbidden for reasons that are inexplicable. Assad, for example, wanted to send a gift to Sullivan-Bennis’ mother (who is an artist). Told that she lives next to the sea and any depiction of the sea would please her, he managed to find some sea shells, said Sullivan-Bennis and attach them to a fairly large piece of wood, about 8 by 11 inches (20 by 13 centimetres). He shaved the wood, indented it and painted her mother’s name on it. “They didn’t let it out. We don’t know why. It was an enormous personal frustration of mine.”

One other thing to note: art classes are only offered to ordinary inmates at Guantanamo, not the ‘high-value detainees’. The latter category includes the only other Afghan in Guantanamo still, Muhammad Rahim. His outlook is even worse than Assad’s. He was the last person who was subjected to the CIA’s torture and rendition programme and also the last Afghan to have been brought to Cuba. He is the only Afghan who is classed as a ‘High Value Detainee’. That means his case is ultra-secret, with the substance and much of the detail of the allegations against him classified. His lawyer, Carlos Warner, has said he is not even allowed to say why he believes his client is innocent – although the government is free to say what it likes about him. High Value Detainees do not have access to art classes. Some make ‘found art’, said Sullivan-Bennis, using as material whatever they can find – like the styrofoam cups, for example. Where we see glimpses of Rahim is not in artwork, but letters to Warner which have been published: these appear to show him as a witty, wryly political man. (6)

Flowers in prison

A forever prisoner

Assad should probably have been released by now. He only got a lawyer late in the day, nine years into his detention, which meant he did not have time to prepare a strong case for his Periodic Review Board. He was assessed, for the first time, in the last months of the Obama administration, on 16 June 2016. The Board said he should stay in detention, but also indicated that, if he argued his case better, it might find that he no longer posed a threat to the United States. In the last months, days and hours of the Obama administration, there was a push to release as many detainees who had been recommended for transfer as possible before he left office: the last Afghan to leave Cuba, Wali Muhammed, did so just hours before Donald Trump became president. However, even though Assad now has a lawyer and can make a strong case, said Sullivan-Bennis, it looks extremely unlikely that the Board will recommend him transfer: “The Periodic Review Board, brutally flawed as it is, did operate with a modicum of honesty [under Obama]. It operated at least with a view to clearing some of the men. Now, what’s happening is essentially a farce, carrying on the process without there being a process.”

Assad paints flowers and geometric patterns on what look like clay paperweights.

As to other routes out of Guantanamo, as AAN has shown in great detail, the US courts have kow-towed to the executive, presuming that all state evidence is correct. In various detainees’ habeas corpus hearings (when the state has to justify a person’s detention in court or release him or her), judges have accepted evidence that is incoherent, factually mistaken, contradictory and sometimes fantastical (for examples, see the AAN paper, “Kafka in Cuba” . This has meant that recourse to the courts is not a promising course of action for Assad either. “He finally got an attorney after ten years,” said Sullivan-Bennis, “and started all of his cases, only to realise that the routes to freedom are all blocked.”

The most hopeful aspect of Assad’s case is that he is accused of being a member of Hezb-e Islami and that he was a courier between it and al-Qaeda. Hezb-e Islami is now at peace with the Afghan government. That peace deal (read about it here and here) means that, if Assad ever did pose a threat to the US or its allies, that threat should now be considered as vastly diminished. Yet, without a mechanism, either the Periodic Review Board or the courts that hears and genuinely assesses cases, even the peace deal may not help him.

Still human

Providing art classes to those denied their most basic human rights may seem a strange act. Given the dim prospects for release of the 41 men now left in Guantanamo, at least while President Trump is in office, such largesse may be the best they can hope for from the prison authorities. (Their job is to conduct “safe, humane, legal and transparent care and custody of detainees” and “intelligence collection, analysis and dissemination for the protection of detainees and personnel working in [the] Guantanamo facilities and in support of the War on Terror.”) Giving inmates the opportunity to paint, draw and sculpt could be a kindness, part of what the authorities see as their ‘duty of care’, or a means of reducing the potentially dangerous pressures of boredom and despair. Sullivan-Bennis says she is not sure about the authorities’ motivation, but for her clients, “… the common purpose – that is also the preeminent purpose – is because they want people to know that they are human, still in Guantanamo, and still suffering.” It is very useful to some of them, she said, as an outlet, a way to express themselves. “They show you who they are in their art.”

A mountainscape.

 

(1) In AAN’s earlier report, we used the name Harun Gul: the US either uses this or ‘Harun al-Afghani’ or ‘Harun, the Afghan’ in Arabic. The Arabic takhalus, ‘al-Afghani’, implies he belongs to al-Qaeda because an Afghan would not refer to themselves as Afghan unless to foreigners or use a word that refers to the currency in Dari and Pashto. Assad is what he himself and his family and friends call him.

(2) Quotes from Sullivan-Bennis are either from an interview with AAN or an interview she gave to the curator of the exhibition, excerpts of which appear in the exhibition catalogue.

(3) Amrullah Saleh, who was then director of the NDS told AAN the agency had not handed Assad over to the Americans. The US record says the agency did.

(4) The exhibition “Ode to the Sea: Art from Guantánamo” is on until 26 January 2018 at the President’s Gallery, John Jay College of Criminal Justice, New York, Monday-Friday 1-4pm or by appointment: contact curator@artfromguantanamo[dot]com. Featured are the artworks of eight detainees, five from Yemen, and one each from Algeria, Pakistan and Kuwait. More details can be found here.

(5) The author had a similar experience after the 9/11 attacks, trying to explain the ‘Twin Towers’ to people who had only seen, at most eight-storey buildings (television was then banned in Afghanistan).

(6) This is what we wrote about the letters in “Kafka in Cuba” (full sourcing in original).

Having seen the way habeas petitions have been dealt with by judges, [Rahim’s lawyer] Warner came to the conclusion that they were pointless: they currently provide, he has said, no “meaningful judicial review.” In a context where the Bush administration’s description of those at Guantánamo as ‘the worst of the worst’ has stuck, Warner decided to “adapt his strategy” and publish some of Rahim’s letters. It was an attempt to humanise his client for the American public.

Rahim’s letters

Bearing in mind that the sentiments expressed in these letters have also not been subject to the rigour of a courtroom, they appear to show a man with a quirky sense of humour who sounds human, despite his torture and long, indefinite incarceration in the maximum security facility at Guantánamo (Camp 7). He jokes about the local wildlife and discusses pop culture and American TV stations, for example, expressing his support for the transgender reality TV star, Caitlyn Jenner: “I am happy for her because people are born how they are.” He calls John McCain a “war hero,” Donald Trump an idiot and a “war zero” and thinks Hilary (Clinton) “has a chance.” Rahim talks about having registered with the online dating site, Match.com, and comments on the online infidelity promotion site, Ashley Maddison, being hacked into. In the letters, he also reflects on his time in detention:

In 9 months the CIA treated me like an animal – only animals were treated better, they did not let me shower or use the toilet for months, they fed me animal food. They would not let me pray unless I confessed to untruths – and I was praying for my life. Doctors and psychiatrists got rich off my blood. Are they still harming people? I have dignity. Those who humiliated and hurt me do not. I pray for them now.

Rahim says he wants his day in court:

I am innocent. I was hung from the ceiling until I was dead… How can we undo this injustice? Give me a trial. Let me be free. I am not your enemy and never have been.

Flowers

 

Appendix

In November 2016, AAN published a major investigation into the experiences of Afghans in Guantanamo. This is what we published about Assad. It uses the name the American military has used for him, Harun Gul. ISN refers to his Internment Serial Number. Assad has now been detained for ten years. Full sourcing can be found in the original paper, “Kafka in Cuba”.

Harun Gul (ISN 3148), Nine Years in Detention

• Place of Birth: Sherzad, Nangarhar Province
• Date of Birth: 1981
• Detained: US says NDS detained Harun, 4 February 2007 and handed him over (denied by then director of NDS); transferred to Guantánamo, 22 June 2007
• 2010 Task Force decided to refer him for prosecution (no legal movement on case since). Periodic Review Board ordered his indefinite detention, 14 July 2016
• Guantánamo Documents: Guantanamo Joint Task Force Assessment only

Summary

Harun was detained in Nangarhar in 2007 and accused of being a senior commander with Hezb-e Islami, of associating with “high level militants,” and as having “admitted to acting as a courier for al Qaeda Senior Leadership.” Among the eight cases studied in this report, information about Harun is the scarcest, but from his WikiLeaked Assessment, it can be seen that all the allegations against him are sourced to his own testimony or that of other detainees. In his habeas petition, Harun has alleged he was tortured in Afghanistan and Guantánamo. The methods he described are consistent with those used by US forces at this time. The information available suggests that, even if the allegations against Harun are true, he would have been only a very junior commander and, at his level, Afghan couriers working with al Qaeda are many. The rationale for holding him in Guantánamo is not apparent. The Periodic Review Board decided in August 2016 to keep him in detention.

Capture

Harun’s Assessment says he was detained by the Afghan intelligence agency, NDS, in the Hadda Farms area, Chaparhar District, Nangarhar Province, on 4 February 2007, along with six other men also allegedly suspected of being Hezb-e Islami, none of whom (judging by the absence of ISN numbers) were held at either Bagram or Guantánamo. The then director of the NDS, Amrullah Saleh, told AAN that his agency did not hand over Harun or any other Afghan national to the US authorities. Harun was transferred to Guantánamo on 22 June 2007.

Torture

Harun has alleged that he was tortured in Afghanistan and Cuba:

During his captivity in a military facility in Afghanistan, Mr. Gul’s captors blindfolded, shackled, and hung him by the arms while they were still cuffed behind his back, stripped and tortured him. He was kept alone and naked in a cell without even a bucket as a toilet… During interrogations [in Guantánamo] prison authorities shackled Mr. Gul for up to twelve hours without water or food in a position that allowed him to neither fully stand nor sit, preventing any sleep. That sleep deprivation torture still plagues his nights nine years later.

The allegations are consistent with methods known to have been practiced.

Allegations and evidence

Harun’s capture was announced in a US Department of Defence press release as the detention of a “senior commander of Hezb-e-Islami/Gulbuddin”:

Harun al-Afghani, who was captured as a result of our ongoing efforts in the Global War on Terror, is known to be associated with high-level militants in Afghanistan, and has admitted to serving as a courier for al-Qaeda Senior Leadership (AQSL). [He] commanded multiple HIG terrorist cells that conducted improvised explosive device (IED) attacks in Nangarhar Province. He is assessed to have had regular contact with senior AQ and HIG leadership.

Documents supplied to his Periodic Review Board hearing, held on 16 June 2016, give a little more detail to the allegations: he had worked, the US military said, as a courier for Abd al-Hadi al-Iraqi (ISN 10026) until 2004 or 2005 and “provided logistics support to fighters aligned with al-Qa’ida and HIG, and probably collaborated on operational matters with leaders of other anti-Coalition groups.” Harun’s Assessment has strings of allegations sourced almost entirely to Harun himself or other detainees. However, until we have heard his side of the story, it is impossible to judge how plausible they might be.

One indication that the US may have played up its captive comes in the only other publicly available document about Harun, a 90-page ‘terrorist interrogation report’ (TIR) which was presented as part of the government’s rebuttal of a habeas petition by another Afghan detainee, Muhammed Rahim (case 8). After 2001, it said, Rahim was in charge of six armed groups in Nangarhar province, each with just three to five men, and a total operational budget for each one for three months of just 20,000 to 40,000 Pakistani rupees (roughly 200-400 US dollars). This is the description not of a senior commander, but someone at the lowest level of command in Afghanistan. The TIR also says Harun was a senior student leader before the 9/11 attacks, who, just before his detention, had been allegedly tasked with overseeing the creation of a militant Hezb-e Islami student organisation. It also alleged he had a couriering role, passing on letters from the provincial Hezbi commander to Arab members of al Qaeda – actually low-level work.

One is left wondering why Harun was taken to Cuba and why he is still there. Detaining such junior players can be of practical importance for disrupting operations or getting intelligence. However, the US authorities have not only still to back up their case that the allegations against Harun are true, but also, if they are true, that he is so dangerous he needs to be held in indefinite military detention without trial.

US plans for Harun

The 2010 Task Force recommended that Harun be considered for trial. The charges were not specified and there has been no known movement on this. Harun had a Periodic Review Board hearing on 16 June 2016. The board decided to keep him in custody, citing his “lack of credibility and truthfulness, as well as his evasiveness and vague answers.” However, it also encouraged him to “continue to work with his family and representatives on his future plans and to be forthcoming with the Board in future reviews,” a hint possibly that at a future hearing, the Board might decide to transfer him.

 

Americas

• The Armored Group (TAG), a Michigan-based armored vehicle supplier, has acquired two German-based armoring companies—JPA Armoring and Fahrzeugbau Stadthage. The merger includes both of the firms’ manufacturing facilities, tools, fixtures, intellectual property, designs, certifications and testing results, and will now operate as TAG Germany GmbH. TAG assured that key employees will be retained at TAG Germany with staff number to increase along with orders. The firm said that the acquisition will strengthen TAG’s market share in the European market and improve its service capability to global customers.

• Early test data gathered by the US Air Force (USAF) has led the service to be confident that a software solution could fix some deficiencies found in the Boeing KC-46 tanker aircraft. Speaking on the testing, Gen Carlton Everhart, commander of the USAF Air Mobility Command, said the reprograming could fix a high-frequency (HF) transmit as well as an “uncommanded boom extension”, although further testing will be required. The HF radio, which must be turned off to avoid electrical sparking between the boom and receiver, is now tolerable according to vendors, while the boom extension issue does not damage the aircraft.

Middle East & Africa

• General Dynamics Ordnance and Tactical Systems will provide the government of Iraq with 120mm insensitive munition high explosive with tracer tank (IM HE-T) ammunition cartridges. Valued at $93 million, the agreement falls under a firm-fixed-price foreign military sales contract, with GD responsible for any additional costs outside of that figure. Work will run through to October 26, 2022, with work locations to be determined with each other. 120mm IM HE-T is the primary ammunition used on M1 Abrams tanks.

• Rheimetall’s CEO has blasted the ongoing diplomatic spat between the Germany government and Turkey which has damaged relations and put a freeze on planned defense projects. Relations have been strained since the failed coup of 2016 against Turkish President Recep Tayyip Erdogan and the subsequent crackdown of opponents. Berlin has also refused to extradite people Turkey claim were involved in the plot. Armin Papperger, the German manufacturer’s CEO, said several defense projects had subsequently been put on hold, including the production of ammunition for fighter jets in Turkey and upgrades to Turkey’s Leopard tanks, and were still awaiting decisions by the two governments. Rheinmetall’s potential involvement in Turkey’s Altay tank program could also be in doubt—the firm has formed a joint venture with Turkey’s BMC to bid for the first tranche contract which would see 100-200 Altay units built.

• Having formed a joint entity with private Turkish company Kale Group in May, British engine maker Rolls-Royce intends to use the ‘Open General Export License’ issued by the UK government to secure its participation in Turkey’s next-generation TF-X fighter program. The license frees all British companies involved in the program to export the requisite technology necessary for the program to Turkey and is intended to support the British defense industry in Turkey. Rolls-Royce has already provided its CTS800 turboshaft engine for use on Turkish Aerospace Industries (TAI) T129 ATAK attack helicopter, through its partnership in the Light Helicopter Turbine Engine Company (LHTEC).

Europe

• Swedish defense contractor Saab announced two contracts for the delivery of next-generation light anti-tank (NLAW) and man-portable air defense systems (MANPADS) to Finland and Brazil respectively. The Finnish order is the exercising of a 2015 contract option for the shoulder-fired NLAW and will be delivered to Helsinki next year. Meanwhile, Brazil ordered additional RBS 70 Very Short Range Air Defense, which includes launchers, training simulators, camouflage systems and associated equipment for operators and system maintainers. Systems will be delivered in 2018 and 2019. Saab did not disclose the value of both contracts.

Asia Pacific

• Relations between China and South Korea are set to normalise following a year-long dispute over the US deployment of the Terminal High Altitude Area Defense (THAAD) system on the Korean peninsula. Korean firms operating in China, Chinese tourism to South Korea, and even K-Pop and television stars have all suffered from a boycott led by Beijing, which the Bank of Korea claim knocked about 0.4 percentage points off this year’s expected economic growth. Lotte Group, the sprawling chaebol whose land was chosen as the site for THAAD’s deployment was hardest hit, after its hypermarket and hotels in China faced severe sanctions. An agreement reached between the two will see both country’s leaders meet on the sidelines of the summit of Asia-Pacific Economic Cooperation (APEC) countries in Vietnam, scheduled for November 10-11. The detente comes just days before US President Donald Trump’s visit to Asia—a visit that has seen three US carrier strike groups assemble in the Pacific.

• As many as 200 North Korean construction workers are feared dead after the collapse of a tunnel being built at the regime’s Punggye-ri test site. The collapse, which is believed to have taken place on September 10, comes as prolonged underground nuclear testing shepherded by the god-king leader Kim Jong-un caused tremors and seismic shocks across the region. Pyongyang’s most recent nuclear test on September 3, one week before the tunnel collapse, led experts to claim that the test site was now more than likely unusable due to the activity.

Today’s Video

• Russian MoD video of the Su-30SM: