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Syed Wali ran one of the only two shops in Sarkot, once a lush and peaceful village in the Sherzad district of Eastern Afghanistan’s Nangarhar Province. Most of his neighbors are farmers, growing crops from corn to cannabis amid ongoing fighting over territorial control. Wali sold sugar, soap, and cigarettes to everyone in town, including the region’s local Taliban members. Ad Policy

“It’s not like he had a choice,” said Sarwar, a friend of Wali’s who was born and raised in the village. “It’s the Taliban. Of course you have to say ‘yes’ to their request.”

Afghanistan’s state intelligence agency, the US-built National Directorate of Security (NDS), didn’t see it that way. On June 9, it performed one of many night raids on Sarkot, and, after witnessing an earlier transaction between Wali and the Taliban, NDS forces stormed the shopkeeper’s house. They shot him in his bed, killing him before he could get up.

While locals retrieved and buried Wali’s body, Afghan officials denied that any civilians were killed in the raid. The government has since admitted otherwise, but, according to Nangarhar Governor Shahmahmood Miakhel, the state cannot investigate Wali’s killing because Sarkot is under contested Taliban control, making an investigation too dangerous to pursue. Nor will the same civilian death, as it currently stands, be examined by the International Criminal Court, a body established in 2002 to investigate, prosecute, and try individuals for war crimes. A preliminary appeal filed in June seeks to change that, potentially bringing Wali, Sarwar, and millions more in Afghanistan a sliver of justice.

In April, a pretrial chamber of judges at the ICC at The Hague, Netherlands, rejected chief prosecutor Fatou Bensouda’s investigation request into alleged war crimes committed by the US military, the CIA, the Afghan National Army, the NDS, and the Taliban as part of the war in Afghanistan. The ICC acknowledged that “there is a reasonable basis to believe that the contextual elements of both crimes against humanity and war crimes are satisfied in respect of the alleged events,” and that the prosecution had met the necessary grounds of jurisdiction, admissibility, and gravity. But the chamber expressed concern over the feasibility of a probe, noting that the proposed inquiry “is very wide in scope and encompasses a high number of alleged incidents having occurred over a long time period,” and that the political climate “make[s] it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future.” As such, the court determined, a probe would require too large an expenditure of resources, with too uncertain an outcome, and “would not serve the interests of justice.” Killed With Impunity America’s Afghan Victims

In response, International Justice Monitor observed that “Rather than addressing the legal merits of the request, the chamber instead addressed decisions…that are inevitably political. In so doing, it confused determinations about feasibility that are better entrusted to the [office of the prosecutor] with a narrow reading of what the ‘interests of justice’ should mean, one stripped of any consideration about victims’ actual interests.” Bensouda, meanwhile, filed a request to appeal the rejection on June 7, but the ICC, currently on summer break (July 19–August 12), has not yet handed down its response. Amid the court’s recess comes a new report from the United Nations Assistance Mission in Afghanistan (UNAMA), released on July 31, that documents 3,812 civilian casualties—1,366 dead and 2,446 injured—in the first six months of 2019.

“The UN notes with concern disturbing patterns such as the 27 per cent increase in civilian deaths in the second quarter of 2019 compared with the first,” the report states. Total civilian casualties—meaning deaths and injuries combined—decreased when comparing the first half of 2019 and the same period in 2018, but this is mostly because of a reduction in casualties inflicted by the Taliban and the Islamic State of Khorasan Province (ISKP), not by US and Afghan forces. While “Anti-Government Elements” (AGEs) like the Taliban and ISKP accounted for 52 percent of all civilian casualties in the first half of 2019, those “attributed to AGEs decreased by 43 per cent during the first half of 2019 as compared to 2018.” Meanwhile, “during the first six months of 2019, UNAMA attributed 1,397 civilian casualties (717 deaths and 680 injured) to Pro-Government Forces, a 31 per cent increase from the corresponding period in 2018.” If an ICC probe were to proceed, civilian killings by both sides could be investigated and tried as war crimes. Current Issue View our current issue

While the ICC has the authority to investigate crimes by the United States, the country is notably absent from the list of the court’s state parties, which includes Canada, Mexico, and the entire European Union. Then-President Bill Clinton was an original signatory to the 1998 Rome Statute, which gives the ICC its jurisdiction, but the statute wasn’t ratified until 2002, by which time George W. Bush was president. According to the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), which advocates for the US government to comply with the ICC, Bush renounced Clinton’s signature and “announced a policy of outright noncompliance” with the Rome Statute. The administration “completely disengaged from the Court, and it began a campaign to secure Bilateral Immunity Agreements from over 100 countries to shield Americans from the jurisdiction of the Court, punishing countries that refused.”

To justify his noncompliance, Bush cited fears that “Americans would be unfairly prosecuted” for their actions overseas. He likely wanted to shield members of his own administration, many of whom could now be held accountable by an ICC probe. Bensouda’s proposed inquiry in Afghanistan would reach back to 2003, meaning that officials from the Bush administration—including the former president himself, former vice president Dick Cheney, and current CIA director Gina Haspel—could end up on trial.

In a blatant and widely publicized attempt to deter an investigation, the current US State Department revoked Bensouda’s visa in April, weeks after Secretary of State Mike Pompeo had threatened to do the same to any ICC staff members who participated in the probe. Now, Bensouda is preparing to battle the Trump administration once again. As she awaits the ICC’s ruling on her appeal process, she’s not the only one anticipating a decision. From Nangarhar’s provincial capital in Jalalabad—where he fled when Sarkot became too dangerous—Sarwar checks the news daily, seeking at least one of two changes: a lull in the fighting, so he can visit home, or an ICC investigation, which he hopes might bring justice and accountability.

All sides engaged in the fighting are present in Nangarhar, which has been the deadliest place in the world for US troops since 2017 and represents a flashpoint of conflict in the US’s longest-running war, now in its 18th year. The US military, mostly confined to its base in Jalalabad, conducts aerial strikes; the US-backed Afghan security forces fight opposition groups; the Taliban controls large swaths of land; and ISKP operates in several districts, although at a much weakened capacity. Nangarhar, located on the border with Pakistan, also makes an easy access point for militants to cross between the two countries.

But most consequential for Sarwar, Wali, and many others is the presence of the NDS spy agency, the intelligence force that murdered Wali for selling goods to Taliban fighters. The notorious CIA-backed NDS strike unit 02, commonly known as the 02 Unit, has a base in Nangarhar and has recently been blamed for a series of botched night raids and civilian casualties.

The 02 Unit and the Taliban together put Sarwar in an especially difficult position, as the former suspects him of working for the latter, and vice versa. Because of this predicament, he’s using “Sarwar” as an alias and is speaking with The Nation on condition of anonymity.

Civilian killings, from the strike that killed Wali to the aerial bombings that regard families as collateral, can constitute war crimes according to the ICC. The proposed investigation would have looked into crimes committed by many sides fighting in Afghanistan, meaning that the refusal to investigate protects not only the US and Afghan government forces, but also the Taliban, with a shield of impunity.

The rejection was a slap in the face to the Afghans who risked their lives to file 1.7 million statements that allege abuses including sexual assault, torture, and outright murder by all three parties. The ICC gathered the astounding collection of statements in just over three months, between November 20, 2017, and January 31, 2018.

“Because one statement might include multiple victims and one organization might represent thousands of victim statements, the number of Afghans seeking justice from the ICC could be several million,” the Associated Press reported in February 2018.

“When the US came here they said they would bring peace, justice, and law to Afghanistan—where is it?” said Sarwar. “On June 9, at about nine at night, a massive battle broke out in our village. The NDS and Taliban were firing on each other. The government claimed they killed 18 Taliban members that night, but I lost two friends who had nothing to do with the fighting.”

One of those friends was Wali, and the other was a man named Lal Muhammad.

“Allah have mercy on him, [Muhammad] was just visiting from Jalalabad, where he works,” Sarwar reflected. “He was no older than 40.”

“Lal used to work here and was a groundskeeper at Jalalabad city’s [main] cricket field. He was a diehard fan of Afghanistan’s team,” said Muhammad’s former colleagues in Jalalabad. “He was here early every day because he loved contributing to the team.”

During the June 9 raid, Muhammad was outside his home when an NDS pickup truck shone its lights on him and ordered him to put his hands up. As Muhammad complied, his 8-year-old son came out to see what was going on. With his hands in the air, he ordered his son back into the house, and the boy retreated. Even though his father had followed orders, NDS agents shot Muhammad’s raised hands, then his stomach and head—killing him on the spot.

“We are trying our best to address civilian casualties and bring [the] number to zero,” Governor Miakhel later acknowledged. “Mistakes have been made.”

But Afghan and US media had already breathlessly reported news of the raid with no mention of civilian casualties, accepting the government’s original claim that none had occurred. In The New York Times Afghan War Casualty Report, there are no civilian deaths recorded in Nangarhar Province on June 9. This is the first public report of Wali and Muhammad’s deaths.

In Sherzad, frequent night raids like the one that killed Wali and Muhammad are a somewhat new phenomenon compared to the long-running war in Afghanistan. Although there have always been Taliban members in the district, it remained relatively calm until the summer of 2015, when local “uprising groups” and coalition military forces commenced a series of attempts to dislodge ISKP from several districts in Nangarhar.

“We always had local Taliban here in the area. They didn’t really bother anyone, but then Daesh came after fighting pushed them this way. The Taliban have been fighting them here ever since,” said Sarwar. “Hundreds of Taliban members have come from Kandahar as reinforcements to fight Daesh from this area, and it’s disrupted our entire lives.”

According to Sarwar, very few locals remain in the area, and the Taliban have put punitive restrictions on daily life, including a ban on cell-phone use. Sarwar estimates that about 9000 people have left Sherzad because of the ongoing fighting. This number is disputed by Attaullah Khogyani, a spokesperson for the Nangarhar governor’s office, who put the recent displacement rate at “more than 1500 people” from Sherzad and Khogyani districts combined. Displaced families, many of which have lost members in the fighting, are unlikely to see justice without an international investigation.

In the leadup to a potential ICC probe, the Trump administration established a slate of anti-transparency measures to limit the flow of information out of Afghanistan. In March, the administration rolled back an Obama-era executive order to account for civilian casualties in US military & CIA airstrikes, including those carried out by drones, in countries like Afghanistan, Pakistan, Somalia, and Yemen.

The announcement followed two startling publications: First, UNAMA’s October 2018 quarterly report demonstrated a 39 percent rise in the number of civilians killed by airstrikes in Afghanistan compared to the previous year. Then, the US watchdog agency Special Inspector General for Afghanistan Reconstruction (SIGAR) released a quarterly report in January 2019 showing that the Taliban control or contest over 43 percent of territory in Afghanistan. The latter statistic indicates that the grip of the US-backed Afghan government forces is stagnant at best, and in some cases, actively eroding. While the Trump administration stopped accounting for airstrike casualties, the US military command in Kabul ceased sharing “district control data” with SIGAR. By May, the command would no longer disclose assessments of Taliban territorial control to the public.

These weren’t the first anti-transparency measures to restrict information from Afghanistan in recent years. In October 2017, as casualty numbers among Afghan security forces were approaching “unsustainable levels” according to the Pentagon, the US military stopped reporting those figures. An estimated 45,000-60,000 members of the Afghan Security Forces have died since 2014, but an exact number is currently impossible to pin down.

According to the latest UMANA report, “civilian deaths attributed to Pro-Government Forces (PGFs) exceeded those caused by AGEs for the second quarter (through June 2019) in succession,” with 717 civilians killed by US and Afghan coalition outnumbering the 531 killed by the Taliban and ISKP. Aerial strikes were the leading cause of civilian casualties by pro-government forces, accounting for 363 killed and 156 injured—of whom 89 and 61, respectively, were children—and 83 percent of all air-strike casualties were attributed to international military forces, which primarily come from the United States. On the ground, many of the coalition’s killings are attributed to the NDS 02 Unit, which is allegedly funded, trained, and advised by the CIA.

When asked by The Nation about the recent NDS 02 Unit attacks in the Khogyani and Sherzad districts, Khogyani maintained that the unit operates with integrity and discipline. “The 02 Unit operates [on] their own, and there are no Americans or CIA involved,” he said. “We are sure that they take care of civilians during operations.” Most Nangarhar residents, however, seem to resent the office’s assertions.

Protests broke out in Nangarhar on May 25, when villagers from the Sherzad district took to the streets carrying civilian corpses. Two nights prior, Afghan government forces had seemingly mistaken a family car for a Taliban vehicle and killed the six people inside, including a woman and two children.

In response, demonstrators hoisted the family members’ bodies in the air, chanting “Death to America” and “Death to Ashraf Ghani.” They blocked the Kabul-Jalalabad highway for hours, a common tactic for Nangarhar residents enraged over the government forces’ deadly night raids.

One of the only prominent Afghan figures to condemn the killings was the former president, Hamid Karzai. “Deeply saddened to learn of civilian casualties mainly women and children caused by night raids and airstrikes in Sherzad district of Nangarhar,” he wrote on Twitter. “I vehemently condemn the attack & reiterate my strong opposition to the continuation of Military operations against the Afghan people.”

After the protests brought the public eye to Sherzad, the governor’s office notified NDS spy chief Masoum Stanikzai about the awareness of civilian killings. “We just shared this issue,” Khogyani commented. “[NDS will] investigate and maybe take action.”

“Some parts of Sherzad [are] not in control of the government and we cannot investigate there,” noted Miakhel, the governor of Nangarhar Province. “The Taliban and Daesh are warring. Many civilians are being killed in this fighting.”

Regarding the people displaced by fighting on both sides, Miakhel added that “[the government does] provide support to IDPs (internally displaced persons) through a proper process supported by the UN and other organizations.”

While the government struggles to keep up, many displaced people in and around Khogyani deny told receiving any aid from the local government or NGOs. On July 25, The Nation spoke to IDPs from Khogyani and Sherzad, all of whom blamed the local government for their precarious conditions.

“We received nothing, to us or the families of the dead. No doctors or ambulance. Not even media came to ask us anything. We are on our own here, but [the government] still won’t leave us alone,” said Haji Mumtaz, a civilian who fled Sherzad one month ago, at age 65.

“[The] people of Sarkot need support and they need justice. They are humans, not animals,” Sarwar said. “I hope the ICC is successful in their investigation so we can stop the government from all these raids—so we can finally live in peace.”