Can Human Rights Win the War?

When Marine Reserve Gen. Douglas Stone addressed New America's Counterterrorism Conference last week, he almost sounded like a human-rights activist. Calling the Constitution a "Human Rights Document," Stone declared that the fight against terrorism wasn't just a physical one but "a historic debate about the rule of law and human rights," taking place on "the battlefield of the mind."

Stone's battlefield was once the detention centers of Iraq, where he worked to reform the system after the Abu Ghraib scandal, reducing recidivism and therefore the flow of fighters to the insurgents. The same thing, he said, needs to happen in Afghanistan, where prison conditions and lack of due process are creating favorable conditions for the Taliban and al-Qaeda to radicalize the imprisoned.

"What if exactly what we're doing in detention is exactly what the enemy wants?" Stone asked. "Is that not aiding and abetting the enemy?"

Stone's view isn't actually that unusual -- counterinsurgency doctrine, now the guiding principle of U.S. military operations in Afghanistan, holds that excessive civilian casualties and a lack of due-process and human-rights standards in detention undermine the larger strategic goal of setting up a legitimate government. The COIN manual holds that "efforts to build a legitimate government through illegitimate actions," such as "unlawful detention, torture, and punishment without trial" are "self-defeating." As a result of counterinsurgency doctrine being adopted in Afghanistan, the strategic goals of the U.S. military are increasingly in line with the concerns of human-rights groups.

Sarah Sewall, a human-rights expert at the Carr Center for Human Rights at Harvard and a former deputy assistant secretary of defense, says that the idea that human-rights groups and the military would share a set of interests isn't strange. She faced criticism in 2007 for having worked with Gen. David Petraeus to craft an earlier edition of the Counterinsurgency Manual. "One of the most interesting misconceptions that people have is that there is not a confluence of interests between human-rights groups and the military," Sewall says. "Some people who don't think of themselves as human-rights actors actually have a confluence of interests with human-rights groups."

Human-rights groups have seized on a strategic assessment released in September by Gen. Stanley McChrystal, the commander of the International Security Assistance Force in Afghanistan, to argue for reforms to the detention system. Sahr MuhammedAlly, a senior associate at Human Rights First, points out the success of counterinsurgency depends on cooperation of the local population: "A key determinant of that cooperation is that the Afghan people view detention practices as fair and beneficial to their security." MuhammedAlly says that reform would mean legal representatives for detainees in the confidential review board proceedings used to determine a detainee's threat, and some kind of public agreement clearly defining the legal relationship between the Afghan civilian justice system and the U.S. military.

Jonathan Horowitz, a human-rights advocate and consultant at the Open Society Institute, has been warning for months that detention practices in Afghanistan were undermining the U.S. mission there. "I think the U.S. government has come to a realization that its detention policies are counterproductive in its mission to stabilize Afghanistan and win the hearts and minds of the Afghan people," Horowitz says. In a piece for the Huffington Post, Horowitz called on the U.S. military to open Bagram to the Afghan-based human-rights group AIHRC, transfer authority over the prison to the Afghan government, implement higher due-process standards for detainees, and ban the use of coerced evidence at detainee review proceedings.

In the strategic assessment, McChrystal wrote that the situation in Afghan prisons was becoming dire. "Currently, Taliban and Al Qaeda insurgents represent more than 2,500 of the 14,500 inmates in the increasingly overcrowded Afghan Corrections System. These detainees are currently radicalizing non-insurgent inmates and worsening an already over-crowded prison system. Hardened, committed Islamists are indiscriminately mixed with petty criminals and sex offenders, and they are using the opportunity to radicalize and indoctrinate them."

McChrystal called for the management of detention to be shifted on to the Afghan government and for reforms to the Afghan criminal-justice system so it is viewed by Afghans as legitimate. "Afghanistan must develop detention capabilities and operations that respect the Afghan people," McChrystal wrote. "A failure to address [Afghan government] incapacity in this area presents a serious risk to the mission."

Still, the strategic realities of war mean that changes to counterinsurgency doctrine can't be applied with the kind of perfection one imagines in the abstract. Although Stone was reportedly successful in de-radicalizing detainees in Iraq, Afghanistan brings a different set of challenges. A 2007 Human Rights First report described the Afghan justice system as marred by "poor infrastructure, inadequate training and education, lack of access to laws and textbooks, lack of public defenders, and institutionalized corruption."

The U.S.-supported government of Hamid Karzai contains numerous former warlords and strongmen with poor human-rights records. Wali Ahmed Karzai, the president's brother, who is reputed to be involved with heroin trafficking, was revealed by The New York Times on Tuesday as a CIA asset -- even as the Taliban draws significant revenue from the drug trade. Andrew Exum, a fellow at the Center for New American Security who advised McChrystal's strategy review, wrote that military officials in southern Afghanistan he had spoken to described Wali Karzai's activities as "the biggest problem they face -- bigger than the lack of government services or even the Taliban."

These conditions, combined with Hamid Karzai's attempt to rig the Afghan election, seriously undermine U.S. attempts to secure a legitimate governing partner in Afghanistan. Brian Katulis, a national-security expert at the Center for American Progress, says that working with unsavory characters is often part of the reality of operating in countries like Iraq or Afghanistan with histories of sectarian or ethnic violence.

"It's one of the weak points of the implementation of the COIN ideals. … It's not necessarily our own actions or what our own troops do; it's also what our partners are capable of and willing to do." This, he says, makes consistent adherence to human-rights standards "spotty." The Center for American Progress has published a list of "powerbrokers" in the U.S.-backed Afghan government with dubious human-rights records. McChrystal's own record is somewhat "spotty" on this point. A 2006 report from Human Rights Watch suggested that the Joint Special Operations Command in Iraq, which was headed by McChrystal and which was credited with eliminating a number of dangerous insurgents including Abu Musab al-Zarqawi, may have participated in the abuse of detainees at Camp Nama.

Moreover, applying COIN in Afghanistan doesn't necessarily mean a uniform respect for human rights everywhere in the region. The U.S. has been relying on drone strikes to kill high-value al-Qaeda and Taliban targets in neighboring Pakistan, and a recent study by the New America Foundation estimated that one-third of those killed were civilians. On Tuesday, a U.N. official suggested that the strikes may violate international humanitarian law.

Jonathan Horwitz says that McChrystal's call for reforms to detention policy is welcome, but it has to be followed by decisive action.

"The question is, will enough be done to change the course of the past eight years?" Horwitz asked.

One could ask the same thing about the war itself.

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