KABUL, 7 April 2011 (IRIN) - Discrepancies in the number of civilian casualties of war in Afghanistan and the varying levels of blame attributed to warring parties by the UN and human rights organizations could, in part, be due to different interpretations of the legal status of the Afghan National Police (ANP).
There appear to be at least two different takes on which groups constitute civilians, and consequently the number of civilian casualties at any given time.
A 9 March report [ http://unama.unmissions.org/Portals/UNAMA/human%20rights/March%20PoC%20Annual%20Report%20Final.pdf ] by the UN Assistance Mission in Afghanistan (UNAMA) and the Afghanistan Independent Human Rights Commission (AIHRC) said about 2,777 civilians lost their lives in the conflict in 2010, of which 2,080 (75 percent) were killed by armed opposition groups (AOGs). On the other hand, Afghanistan Rights Monitor (ARM), [ http://www.arm.org.af/file.php?id=4 ] a Kabul-based independent rights watchdog, and the Afghanistan NGO Safety Office (ANSO) say about 2,400 civilians were killed in 2010. ARM blamed AOGs for 1,531 of these deaths (63 percent) - 549 fewer than in the UNAMA/AIHRC report.
"The main difference between our and UNAMA/AIHRC figures is that we don't count Afghan police and army soldiers as civilians because both constitute the armed forces of the government and are heavily engaged in combat and counterinsurgency activities," said Ajmal Samadi, director of ARM.
Shafiq Noori, head of AIHRC's civilian casualties unit, said police killed away from combat zones were counted as civilians in the joint UNAMA/AIHRC report.
"We understand that some police forces are involved in combat activities but when police and even army soldiers are killed outside combat lines, for instance while on leave or at their homes, we consider them civilians," said Noori insisting that the position was in line with international humanitarian law (IHL) and the Geneva conventions.
No one at UNAMA was available to comment on the issue but the joint UNAMA/AIHRC report described "civilian police personnel who are not being used as combatants or in counter-insurgency operations and not taking a direct part in hostilities, including when they are off-duty", as civilians/noncombatants.
What IHL says
Under IHL, civilians must be protected from direct attacks by warring parties. Deliberate, widespread and systematic attacks on civilians could be considered war crimes and crimes against humanity, according to the International Committee of the Red Cross (ICRC), which acts as the custodian of the Geneva Conventions. Neither the Geneva Conventions nor Additional Protocols provide a clear definition of precisely what conduct amounts to direct participation in armed hostilities.
"Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-State party to an armed conflict cease to be civilians and lose protection against direct attack, for as long as they assume their continuous combat function," according to the Interpretive Guidance on the Notion of Direct Participation in Hostilities [ http://www.icrc.org/eng/assets/files/other/irrc-872-reports-documents.pdf ] under IHL.
Experts quoted in the same document have defined direct participation in the armed hostilities as: "1) a threshold regarding the harm likely to result from the act; 2) a relationship of direct causation between the act and the expected harm; 3) a belligerent nexus between the act and the hostilities conducted between the parties to an armed conflict."
This means a person can be described as a combatant [ http://www.icrc.org/eng/assets/files/other/overview-of-the-icrcs-expert-process-icrc.pdf ] when he/she supports one warring party by directly causing harm to another "either by directly inflicting death, injury or destruction, or by directly harming the enemy's military operations or capacity".
Individuals who are not members of state armed forces or organized armed groups party to a conflict are civilians, and must be protected from direct attacks.
Meanwhile, the travaux préparatoires for Additional Protocol II [ http://www.icrc.org/eng/assets/files/other/irrc-872-reports-documents.pdf ] say armed forces of a warring party include armed actors "who do not necessarily qualify as armed forces under domestic law, such as members of the National Guard, customs, or police forces, provided that they do, in fact, assume the function of armed forces".
A purported Taliban spokesman, Zabihullah Mujahid, said the insurgents were attacking ANP as "legitimate targets" given the latter's support for the Afghan government and its US-NATO allies. "We have warned people not to work for the government," he said.
Serving under the Interior Ministry and trained and equipped by US/NATO forces, ANP is divided into at least six divisions: anti-crime police, anti-narcotics police, border police, anti-terrorism police, anti-corruption police and public order and security police. The Afghan government has also formed the Afghan Local Police in a bid to stave off a growing insurgency. [ http://www.irinnews.org/Report.aspx?ReportID=91129 ]
At least 1,292 police officers and soldiers were killed and 2,447 wounded in 2010, according to the Ministry of Interior (MoI).
"Most of the police were killed in combat with the enemy and by IEDs [improvised explosive devices] and in suicide attacks," said MoI spokesman Zemarai Bashari, adding that over 5,200 enemy combatants were also killed and about 944 wounded last year.
Taliban insurgents are also accused of attacking civilian government employees such as judges, prosecutors, district administrators, members of parliament, and even teachers and doctors.
At least one prominent human rights organization, Amnesty International, has accused Taliban insurgents [ http://www.irinnews.org/report.aspx?ReportId=90177 ] of war crimes and crimes against humanity.
One senior government official, who preferred anonymity, said AIHRC was also collecting and documenting evidence of war crimes and crimes against humanity allegedly perpetrated by the Taliban.
As US/NATO troops prepare to withdraw from Afghanistan and transfer the country's security responsibilities to local armed forces over the next three years, ANP and the national army are expected to fill the gap with a combined force of up to 400,000.
Given their extensive responsibilities - ranging from enforcing the rule of law to counternarcotics - ANP is liable to come under attack from AOGs. ANP will also be tasked, along with the national army, of fending off the insurgency and protecting people from the Taliban and other insurgent groups.
The European Union Police Mission in Afghanistan (EUPOL), which supports the training and reform of the ANP, said it was not providing combat or counterinsurgency training.
"EUPOL Afghanistan aims to contribute to the establishment of sustainable and effective civilian policing arrangements under Afghan ownership, in accordance with international standards," said Aziz Basam, a EUPOL spokesman.
ANP has been criticized for illiteracy, drug addiction, corruption and abuse of authority - though a February 2011 survey [ http://www.undp.org.af/fnews/fnew4.htm ] by the UN Development Programme said 79 percent of Afghans hold a favourable opinion of the police.