Collateral damage on the 21st century battlefield: enemy exploitation of the law of armed conflict, and the struggle for a moral high ground

Air Force Law Review, Wntr, 2005 by Jefferson D. Reynolds

Although Taliban and al-Qaeda were unable to organize any significant challenge, numerous collateral damage incidents suggest there was difficulty in distinguishing civilians and civilian objects from combatants. This problem would seem predictable since the al-Qaeda terrorist network was composed of unlawful combatants who were difficult to distinguish from civilians. (196) Many Taliban and al-Qaeda forces were well integrated into the civilian community, (197) and did not fall under a responsible command that conducted operations in accordance with LOAC. Further, they did not have a fixed distinctive sign recognizable from a distance, nor did they carry their arms openly pursuant to article 4(a) of Geneva Convention III. (198)

Concealment tactics used by the adversary in Afghanistan resulted in a number of collateral damage incidents. As many as thirty-five Afghan civilians were killed on October 22, 2001 when a U.S. coalition aircraft attacked the village of Chowkar-Karez. (199) Witnesses interviewed by HRW were unaware of any Taliban or al-Qaeda positions in the area of the attack. (200) The incident in Chowkar-Karez occurred one day after twenty-three civilians were killed when bombs hit the village of Thori, located near a Taliban military base in Oruzgan province. (201) According to witness accounts, U.S. coalition aircraft bombed the area three times on the evening of October 21. (202) The target of the attack was a large Taliban military base known as Gar Mao, located approximately one kilometer from the village. The base was an ammunition depot, defunct military prison, and barracks for Taliban military personnel. (203) Near Hutala, Afghanistan, U.S. A-10 attack aircraft targeting a terrorist suspect, Mullah Wazir, mistakenly killed nine children playing marbles in a field. (204) In another highly publicized event, a U.S. AC-130 gunship attacked a wedding party in the village of Deh Rawud, Uruzgan Province, killing "dozens" of civilians. Reports suggest that a large group of guests at the wedding party were firing weapons into the air in celebration while standing near an artillery site. The aircraft observed directed, sustained gunfire, suggesting an attempt to engage, then returned fire in self-defense. (205) In the Summer of 2002, reporters made a total accounting of eleven locations where civilian casualties were reported: Gardez (Nov. 14, 2001, 23 dead), Khost (Nov. 16, 2001, at least 65 dead), Zani Khel (Nov. 16, 2001, 20 dead), Madoo (Dec. 1, 2001, 55 dead), Khan-i-Merjahuddin (Dec. 1, 2001, 48 dead), Asmani and Pokharai (Dec. 20, 2001, approximately 50 dead), Niazi Qala (late Dec. 2001, 52 dead) Zhawara (Feb. 4, 2002, 3 dead), Char Chine (May 12, 2002, 5 dead) and Kakrak (Jul. 1, 2002, 54 dead). (206)

If the Taliban or al-Qaeda had any plan to mount a campaign of deception or misinformation based on collateral damage, it was not readily identifiable from western media and did not achieve any significant public support. (207) This is probably a result of the popular political and public support of OEF altogether with at least seventy countries participating in the coalition. (208) In some cases, the Afghan population was relatively tolerant of collateral damage. For example, an Afghan group protesting the deaths of forty civilians from a U.S.--led raid on a village near Kandahar were upset with the incident, but expressed an objective view: "We are not against the Americans, but it doesn't mean they should drop bombs on residents, happy ceremonies and sanctuaries instead of military targets .... The United States should get through to its officers that this kind of incident could destroy relations and the trust between the two nations." (209)