Defence`s Feeds

The US Naval Sea Systems Command has awarded a $125.18m-worth engineering services contract modification to Lockheed Martin Rotary and Mission Systems.

CACI International has secured a prime position on a $192m indefinite delivery / indefinite quantity contract to provide training and curriculum development to Naval Education and Training Command (NETC).

Americas

• An agreement has been signed between Airbus and the Chilean government to pursue collaborative business development in the defense and aerospace industry. Both sides will cooperate on manufacturing and maintenance for future projects while exploring further possibilities. The Airbus deal is one of several agreements Chile has made with defense firms which includes a contract with Lockheed Martin to produce spare parts for C-130 aircraft.

Middle East & North Africa

• The Turkish Defence Minister Fikri Isik stated that the first two of a batch of 24 more Lockheed Martin F-35 aircraft will be delivered in 2018. 24 of the Joint Strike Fighter will be ordered over the next three years, of which six, including the two expected in 2018, had already been ordered. Ankara has committed to procuring a total of 115 F-35s.

Europe

• Greece has taken delivery of three second-hand CH-47SD heavy-lift helicopters. The transfer of the ex-National Guard Chinooks was completed on November 11. Seven more are expected by the end of 2017 as part of a $120 million deal with the US.

• European Defense Ministers agreed to raise the budget of the European Defence Agency (EDA) ending a six-year freeze. While small, the increase will see 2016’s $32.7 million increased to $33.1 for 2017’s activities. All 27 EU members gave their resounding support for the measure and will use the extra funds to develop and procure additional aircraft and other defense materials.

• Spain’s Air Force has received its first A400M transporter from Airbus. Aircraft MSN44 carried out its maiden flight from Airbus’s Seville final assembly site in September, and is the first of 27 examples on order for Spain. The delivery came days after Airbus announced that two A400Ms had successfully demonstrated the in-flight transfer of fuel using a fuselage-housed hose-and-drum unit.

Asia Pacific

• South Korean investigators have raided the offices of the Defense Acquisition Program Administration (DAPA). An official from DAPA is suspected of leaking confidential information on military equipment to BAE Systems during a mismanaged project to upgrade the KF-16 fighter jet. The 2011 modernization award with the company has since been dissolved.

• Boeing is eager to sell its KC-46A aerial refueling tanker to India. The Indian Air Force has yet to procure a capability to refuel its C-17 and P-8I aircraft, and New Delhi has eyed up the Pegasus to fill such a role. A laborious search has been underway to fill a six multi-role tanker capability soon to be vacated by their aging IL-76 aircraft. Earlier attempts to procure Airbus A 330 MRTT never came to fruition.

• The first flight of India’s Rustom-II UAV has been successfully completed. Conducted by India’s Defense Research and Development Organization (DRDO), the drone accomplished all main objectives during the test, including takeoff, bank, level flight, and landing. While this marks a good milestone for the program, officials maintain that a lot more evaluation and testing needs to be done before operational evaluation and eventual entry into service with India’s military branches can take place.

Today’s Video

Live demonstration of South Korea’s K30 Biho twin 30 mm self-propelled anti-aircraft gun:

Taiwanese T86 Assault Rifle

Rustom-H mockup
(click to view full)

India has not been left out of the global UAV push. The country operates Israeli Searcher tactical UAVs, and Heron Medium Altitude, Long Endurance (MALE) UAVs, placing an additional Heron order in 2005. It has also undertaken development programs for a smaller UAV, the “Nishant”. With its “Rustom” program, however, India hopes to offer a UAV in the Heron/ Predator/ Watchkeeper class of MALE UAVs.

It had also hoped to begin to change a culture and tradition of wholly state-owned development of military hardware, which has not always performed well, or served India’s needs. A recent award has selected a winner, and moved the project forward. It may also serve as a reminder that bureaucracies are very difficult to change.

The Rustom family of UAVs Rustom-1 scale model
(click to view full)

“Rustom” translates as “warrior,” and may remind some readers of the great hero in Persia’s classic The Shah-nameh. Reports indicate that India’s UAV is named after a more contemporary personality, however: Rustom Damania, a former professor of IISc, Bangalore, who led the National Aeronautical Laboratories’ light canard research aircraft (LCRA) project in the 1980s.

The LCRA is reportedly the initial basis for the DRDO ADE’s 1,100-1,800 kg UAV design, which aims for a maximum altitude of 35,000 feet and a range of 300 km/ 240 miles, with endurance around 24 hours. This will be the Rustom-C/H, with the “C” variant expected to carry weapons as well as surveillance gear.

A lighter “Rustom-1” looks more like Burt Rutan’s Long-EZ design, with canards up front, winglets on a squared delta wing, and a pusher propeller in back. It will act as a test platform, and could fill a tactical UAV slot, with endurance of only 12-14 hours, maximum altitude of 22,000 feet, and a range of around 250 km.

Procurement & the Private Sector: India’s Struggles

In some ways, Rustom’s naming is also a fine encapsulation of India’s defense industry struggles. Given the sensitive nature of defence projects, private firms have generally been limited to step-and-fetch roles as component suppliers or sub-contractors on projects designed and managed by state-owned agencies or firms such as DRDO, NAL, HAL, BEL, et. al. Many of those projects have fared poorly, leaving India with gaps in critical defense capabilities that then had to be filled by buying foreign equipment as a “temporary” measure. Which would frequently become permanent mainstays for India’s forces.

In 2002, India took the first steps toward changing its procurement model. It opened up defence equipment production to private sector companies, and even allowed up to 26% foreign direct investment in such ventures. In 2006, “India’s DRDO Rethinking the Way it Does Business” covered changes in government statements, and even grudging DRDO admissions that more private sector involvement was necessary, if India’s industry was to develop and deliver the equipment a rising power needs. Subsequent moves by the government on a number of fronts, from aircraft to tanks, are opening up a far larger role for global defense firms in supplying India’s needs.

The problem is that bureaucracies are entirely uninterested in changing their long-standing and comfortable models, especially if those changes promise reduced future roles for those bureaucracies. Domestic development remains largely the bailiwick of existing agencies and bureaucracies. In those competitions so far, Indian firms partnered with experienced foreign suppliers like Thales, IAI, et. al. continue to lose to state-owned Indian firms whose overall record in the sectors under competition is shallower, and arguably adds development risks to these projects.

That appears to have been the case with Rustom.

IAI Heron UAV
(click to view larger)

DRDO intended to move away from its traditional model of developing and finalizing the system itself, then handing the designs and technology over to a production agency. Instead, they would introduce concurrent engineering that involves the producing firm, and initial design efforts also take into consideration production issues. This production agency development partner (PADP) was whittled down from 23 firms to 4 finalists: Larsen and Toubro Ltd. (L&T), Godrej and Boyce Manufacturing Co. Ltd., Tata Advanced Systems Ltd. – and a joint bid from state-owned firms Hindustan Aeronautics Limited and Bharat Electronics.

The accompanying maritime patrol radars and electro-optical systems were expected to come from Israel, whose systems equip current UAVs and aircraft. The engine is also expected to come from a selection process, rather than being a product of new R&D.

So far, that’s an improvement. Unfortunately, Rustom’s reported contract structure is a fine illustration of the time and performance blindness that has crippled so many indigenous Indian efforts. LiveMint describes an agreement that involved INR 4 billion investment in prototypes and trials, over a decade or more. All in a field where major new designs are being fielded, now, in 2 year cycles – and where the capabilities India seeks already exist in several fielded platforms. One hopes that is a reporting error.

The Rustom development contract also contains no guarantee of an order from the armed forces once it is complete. That’s normal in India, and not unusual in many countries that used staged-gate approval processes for weapons. What’s unusual is the combination of no commitment plus partnership financing requirements, which is a poor fit for the private sector. The HAL official who confirmed these arrangements for LiveMint asked the logical question: “If there is no assurance of an order [and such a high investment target], why should the private industry come forward and invest?” Yet some firms did make that offer, in conjunction with experienced foreign partners. They lost to HAL, whose history of aviation production does not extend to UAVs of this size and complexity.

What is clear, is that India’s efforts to build up its private sector defense industry beyond a mere conduit for foreign firms’ industrial offset programs is off to a slow start. N.S. Sisodia, director general of the Institute for Defence Studies and Analyses, is typically diplomatic in his survey of the broader situation. He is also correct:

“The process does take a little time. There are efforts made in DPP (the defence procurement procedure) to involve private industry. But I think much more can be done.”

Contracts & Key Events

November 18/16: The first flight of India’s Rustom-II UAV has been successfully completed. Conducted by India’s Defense Research and Development Organization (DRDO), the drone accomplished all main objectives during the test, including takeoff, bank, level flight, and landing. While this marks a good milestone for the program, officials maintain that a lot more evaluation and testing needs to be done before operational evaluation and eventual entry into service with India’s military branches can take place.

November 23/15: The long awaited death of India’s indigenous Nishat UAV program has come to pass. The final of four UAVs in use by the Army has crashed less than a week after the program was officially cancelled. The final nail in the program’s coffin occurred earlier this month after a third UAV crashed amid technical problems cited by the Indian Army. However, these claims have been refuted by the Defence Research & Development Organization (DRDO), who claim army incompetence and poor handling by the army. While the blame game continues, we do know that we won’t be seeing any more Nishats in the Indian sky.

November 18/15: The Indian Army has decided to cancel a two decade long indigenous Nishant UAV program after the third of four in use by the army crashed near the city of Jaisalmer on November 4. The Defence Research & Development Organisation (DRDO) had been developing the Nishant UAV since 1995 with the aim of developing India’s own reconnaissance and intelligence gathering abilities. Phase 1 had seen four of the UAVs introduced in 2011 and continuation would have seen 8 more orders of the UAV by the army. The announcement comes shortly after Prime Minister Modi’s recent push to increase development within India’s private defense industry and the sharing of indigenously designed Rustom UAVs by the government. In the wake of the Nishant duds, these companies may be best served looking elsewhere for design ideas.

September 25/15: In a bid to spur development in the country’s private defense industry, the Modi government has decided to share designs of indigenously-developed unmanned aerial vehicles with private firms. Developed by the Indian state-owned Defence Research and Development Organisation, details of the Rustom family of UAVs were until now kept secret from the private sector. As the Indian government looks to develop its defense industrial base domestically, it has also recently relaxed joint venture restrictions on foreign companies in a bid to build expertise through collaborative working. However, foreign companies still face stringent offset policies and investment restrictions, despite slow progress.

November 2013: Rustom-II. India Strategic quotes Honeywell Aerospace India President Pritam Bhavnani as saying that:

“As well as propulsion, our technology portfolio across these [American UAV] platforms spans electrical power systems, Auxiliary Power Units, navigation, air thermal systems, fuel controls, pneumatics, wheels and brakes and high integrity controls…. Rustom II is an exciting development in the evolution of India’s defence capabilities. I cannot give any specific details today regarding our involvement with the program…”

Sources: India Strategic, “Rustom II: An exciting opportunity for Honeywell”.

May 8/12: Test flight 14. India’s MoD:

“Indigenously designed and developed RUSTOM-1 made 14th successful flight this morning at Kolar with attainment of about 11,500 ft AGL (above ground level) and speed of above 140 Kmph during 2 hrs 10 minutes of cruise. It may be noted that this unmanned aerial vehicle (UAV), developed by Aeronautical Development Establishment (ADE), a DRDO lab at Bangalore, had its maiden flight in Nov 2009. Mr. PS Krishnan, Director ADE stated that the flight was successful. All the parameters were achieved by the UAV which weigh around 690 Kg and the total performance was satisfactory.”

Nov 11/11: Test flight 5. India’s government announces that the 661 kg Rustom-1 UAV had made its 5th test flight, at 100 knots and 2,300 feet above ground level near Hosur. The release adds that: “This UAV can attain a maximum speed of 150 Knots, 22,000 ft of altitude and endurance of 12-15 Hours with an operating range of 250 Kms when fully developed.”

May 24/11: DRDO’s Aeronautical Development Establishment (ADE) has flown an upgraded version of “Rustom-1” from TAAL’s airfield near Hosur. It’s reported to be a converted manned aircraft, and the goal is an endurance of 14 hours and altitude ceiling of 8 km/ 26,000 feet. ADE reports it was happy with the flight, conducted as a precursor to flights with payloads. DNA India.

Prahlada, chief controller of research and development (aeronautics programme), said “with the successful accurate flying of Rustom 1, ADE is geared up for integration of payloads with the Aircraft within next three months, to demonstrate performance of payloads and necessary secure data-link to the users.”

Rustom 1st flight
(click for video)

Oct 26/10: Rustom-1’s first flight.

April 25/10: State-run Hindustan Aeronautics Ltd (HAL) and Bharat Electronics Ltd (BEL) win the bid to design and build Rustom. The award marks the 3rd large Indian defence project in which private firms have lost out to public sector rivals, after the Saras light passenger plane and the Army’s tactical communication system project. That trend is causing some questioning of the government’s sincerity regarding its pledges to advance private Indian defense firms. Larsen & Tourbo aerospace and defence VP M.V. Kotwal, whose firm bid on all 3 contracts, is quoted by LiveMint:

“This is a disappointment for us since we had been told that the projects would be open for participation by the private sector on a competitive basis… Otherwise we would not have spent the time and efforts in preparing for the bids. Detailed plans for execution had also been presented as required…”

That last statement alludes to DRDO chief controller of R&D Prahlada’s statement that “HAL-BEL gave us a clear road map for manufacture” as the reason for their victory. LiveMint.

Nov 16/09: DRDO’s Rustom technology demonstrator crashes at the Taneja Aerospace Air Field near Hosur, during its 1st flight. The taxiing and takeoff went as planned, but “due to misjudgment of altitude of the flight, the on-board engine was switched off through ground command…”

That’s not generally a good thing. On the flip side, DRDO says the shortened flight was useful for establishing more confidence in the UAV’s aerodynamics, redundant flight control, engine and datalink. Defense News.

Aug 6/09: India’s Tata Group signs a wide-ranging joint venture agreement with Israel Aerospace Industries, the builders of India’s Searcher and Heron UAVs. The agreement finalizes a commitment made in February 2009 by IAI CEO Itzhak Nissan and Tata Sons Chairman Ratan N. Tata.

Under the terms of the MoU, the new Company will develop, manufacture and support a wide range of defence and aerospace products, including missiles, UAVs, radars, electronic warfare (EW) systems and home land security (HLS) systems. The new company will also perform offset work for IAI and other defence and aerospace programs in India. domain-b.

May 15/09: Larsen and Toubro Ltd. (L&T), Godrej and Boyce Manufacturing Co. Ltd., and Tata Advanced Systems Ltd. bid to develop India’s Rostam MALE UAV. The 4th bidder is a joint effort by state-owned defence equipment makers Hindustan Aeronautics Ltd (HAL) and Bharat Electronics Ltd. (BEL).

The Defence Research and Development Organisation’s (DRDO) Aeronautical Development Establishment (ADE) is testing a technology demonstrator. Once a vendor is selected, ADE and that vendor will design an enhanced version; a selection is expected later in 2009.

ADE’s tender expects that the cost of producing one set of 5 Rustom vehicles with 5 sets of spares, plus payload and ground handling/control equipment, would be around INR 2.5 billion (just under $50 million). India Defence.

Sept 22/08: The first low-speed taxi tests of ADE’s Rustom technology demonstrator take place.

Additional Readings

• Air Force Technology – Rustom Unmanned Aerial Vehicle, Chitradurga

• DID – India’s DRDO Rethinking the Way it Does Business.

• iHLS (July 5/13) – Indian desire for UAS results in home production

• DID (June 10/10) – Private Shipbuilding Firm Wins Indian OPV Contract. It’s a slow opening in an important military sector.

• India Defence (March 12/09) – DRDO’s Rustom UAV To Roll Out Soon

Russian SKS Semi-Automatic Rifle

Following the agreement between EUROCONTROL and the European Defence Agency (EDA) signed in 2013, both organisations have started a close cooperation on the SESAR programme. In compliance with the initial agreement, the cooperative work has been updated by the two organisations for the years 2017-2018 in order to accommodate the tasks as defined in the SESAR 2020 programme.

The work programme makes EUROCONTROL’s expertise in civil-military ATM coordination available to EDA to facilitate EDA’s role regarding the coordination of military views in the context of the Single European Sky (SES) and its interface towards the EU institutions.

During the implementation of the previous joint work programme, the EDA-EUROCONTROL cooperation successfully contributed to the provision of harmonised military inputs to the 2015 ATM Master Plan update campaign, supported Member States bidding for EU co-financing in INEA calls and provided technical impact analysis on the SESAR deployment programme and EASA regulatory material under development.

“The needs of military aviation often go beyond the scope of civil aviation,” said Frank Brenner, Director General of EUROCONTROL. “To work effectively, European airspace management must address both military and civil airspace user needs with coordinated processes and consultation between civilian and military stakeholders. EUROCONTROL and EDA are working together to contribute to this process”.

“To preserve military access to all airspace, it remains essential that we develop harmonised low-cost interoperable SESAR solutions, including standardisation and certification processes, and that we provide common mitigation actions”, said Jorge Domecq, Chief Executive of the European Defence Agency. “Moreover the deployment phase of SESAR offers an opportunity for the military, to avail itself of funding to enhance their ATM technology, when appropriate. This has already been the case for INEA Call 2015, whereby 14 military projects submitted through EDA have been awarded funds adding up to a total of €53.5 million, which is roughly 10.5% of total funds awarded.”

EUROCONTROL and EDA have been working closely together since 2008 to ensure improved coordination and cooperation between civil and military air traffic, moving towards a Single European Sky for both military and civil air transport.

 

For further information, please contact:

Kyla Evans
Head of Corporate Communications
EUROCONTROL
Tel: +32 2 729 51 51
press@eurocontrol.int
www.eurocontrol.int

Eric Platteau
Head of Media & Communications
European Defence Agency
Tel: +32 2 504 28 23
eric.platteau@eda.europa.eu
www.eda.europa.eu

The International Criminal Court’s Office of the Prosecutor has said it will “imminently” be taking a decision on whether to request authorisation from judges to commence an investigation into war crimes in Afghanistan. The Taleban could be investigated, among other offences, for murder and intentionally attacking civilians, while Afghan government forces, and the US military and CIA could be investigated for torturing security detainees. As Kate Clark and Ehsan Qaane report, this next step towards US citizens possibly being called to trial in The Hague has arisen just as Donald Trump, a man who believes in torture, has been voted into the White House.

The ICC’s Office of the Prosecutor (OTP) released its 2016 Preliminary Examination Report on Afghanistan (released annually) on 14 November 2016. The report says that the OTP had determined there was a reasonable basis to believe that, at a minimum, the following crimes within the Court’s jurisdiction had occurred:

• Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
• War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security) and the Afghan National Police;
• War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.

The Preliminary Examination also said that thresholds of admissibility had been reached, ie the alleged crimes are under ICC jurisdiction, are sufficiently grave, are not being addressed by domestic or other legal bodies (although this is “subject to further information that could be provided by the relevant national authorities in the course of the preliminary examination or any subsequent investigation”) and there are “no substantial reasons to believe that the opening of an investigation would not be in the interests of justice.”

The Taleban

There is a reasonable basis, the OTP said, to believe that the Taleban and the 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 full quote, see paragraphs 206 and 207 of the report.)

In terms of admissibility, the Taleban and Haqqani network’s crimes passed the gravity threshold. As to whether domestic courts are dealing with suspected war criminals, the OTP pointed to the almost complete lack of any investigation or trial of alleged war criminals in Afghanistan (1) and to the 2009 Amnesty Law which provides amnesty to everyone who committed war crimes, including those who, in the future, reconcile with the Afghan government (see also this AAN report). It was noticeable, in this respect, that the government recently also granted immunity to Gulbuddin Hekmatyar and his armed men in the context of the peace agreement signed with Hezb-e Islami on 29 September 2016. (2) Amnesty for war crimes in domestic legislation can be interpreted as unwillingness by the state to prosecute.

The NDS and Afghan police

Multiple sources, the OTP said, including the Afghanistan Independent Human Rights Commission (AIHRC), UNAMA and a presidential fact-finding commission in 2013 have reported on the prevalence of torture in Afghan government detention facilities. The OTP estimates 35 to 50 per cent of conflict-related detainees “may be subjected to torture” and says there is a “state of total impunity.”

There is a reasonable basis to believe, the OTP said, that Afghan authorities have committed the war crimes of torture and cruel treatment; outrages upon personal dignity pursuant to article; and (this is new in the OTP’s reports) sexual violence. Naming the Afghan intelligence agency the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan Border Police and the Afghan Local Police (ALP), it says available information suggests the alleged crimes were committed on a “large scale.” Although there is no indication that they were committed “as part of any plans or policies at the national level,” in some cases, it said, there were plans or policies at the level of facility, district or province.

The US military and CIA

The information available, says the OTP, provides a reasonable basis to believe that during interrogations of security detainees and in conduct supporting those interrogations, members of the US armed forces and the CIA:

… 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 says 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.

It notes their use ended when the authorities decided to stop using them, indicating the alleged crimes were ordered, rather than being the work of random individuals.

Unlike the 2015 Preliminary Examination report, for both US and Afghan forces, rape is mentioned in the sections on the use of torture in the interrogation of security detainees.

As to civilian casualties caused by the international military, something which many survivors and the families of those killed hoped would be taken up by the ICC, this now looks unlikely. Civilians can be lawfully killed during conflict. (3) As the OTP said, “[A]lthough these operations resulted in incidental loss of civilian life and harm to civilians, in most incidents the information available does not provide a reasonable basis to believe that the military forces intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.”

There were a few incidents where lack of information meant the OTP could not determine whether harm done to civilians amounted to war crimes. If the judges (the ICC’s Pre-Trial Chamber) authorised an investigation, it said, and depending on whether this matter passed selection and prioritisation criteria, they could be looked into further. However, it is unclear if even these incidents of civilian casualties, if investigated, would be considered potential war crimes or whether they would meet the gravity threshold of admissibility.

The evidence 

The OTP does not go into the evidence, so the following is very much the authors’ initial take on possible investigations.

The Taleban regularly and publically claim to have committed what are, in effect, war crimes, as in a recent example, the deliberate attack on the German Consulate (a civilian target) in Mazar-e Sharif last week. (The attack killed four and injured more than one hundred civilians living nearby.) UNAMA routinely reports such incidents in its Protection of Civilians reports. In the first six months of this year, for example, it found the Taleban had claimed 51 attacks which deliberately targeted civilians or civilian locations. AAN has itself investigated such incidents claimed by the Taleban (see for example, here and here). Both in their codes of conduct (layhas) and public declarations, the Taleban allow or have ordered the commission of war crimes; these include the targeting of Afghan civilians working with the government and foreign organisations, justice sector workers and journalists with certain media organisations (see here and here) and in the early days of the insurgency also schools, teachers and NGO workers.(4)

There have been multiple reports on the use of torture by NDS, in particular, but also by the Afghan police and ALP (see here and here). The Afghan government has acknowledged the use of torture in government facilities, but as UNAMA has reported, has failed to take criminal or even administrative action against torturers, creating effective impunity. AAN has also reported regularly on this issue (dispatches also contain links to the major investigations by UNAMA and AIHRC: see for instance here, here and here). (5)

In 2001/2002, the US administration of George Bush decided, in its handling of ‘war on terror’ detainees, to forgo the Geneva Conventions, including common article 3 which, among other things, bans torture and “degrading and humiliating treatment.” The president claimed the ‘enhanced interrogation techniques’ he authorised did not amount to torture, although the OTP clearly believes otherwise.

The US’s use of torture against security detainees was systemic (although not every detainee was tortured) and there is a wealth of documentation about how decisions were taken and the misgivings of many in the military and the CIA about its use. The torture has been detailed by human rights organisations; the US government (see a list of investigations up to 2008 put together by the International Center for Transitional Justice); Congress, looking at both the military and the
 CIA; journalists (for example, here and here) and former detainees. Methods used included being deprived of sleep for days, waterboarding, food deprivation, being continuously shackled, being forced to kneel or stand in painful ‘stress positions’ for extended periods, being beaten, kicked, soaked in cold water, being stripped and sexually humiliated, and being forced to listen to music loud enough to deafen for hours at a time.

Media headlines (for example, here and here) about the ICC report have mainly focussed on the possibility of Americans being in the dock for war crimes. The US is not a member of the ICC. Bill Clinton signed the Rome treaty that established the court in December 2000, but George W Bush renounced the signature in May 2002 saying he feared Americans would be unfairly prosecuted for political reasons. However, Americans could still be prosecuted for alleged crimes committed in Afghanistan because it is a member. The Rome Treaty came into force in Afghanistan in May 2003 and only crimes committed after then are admissible (some of the most egregious and best-documented US torture cases, including three deaths in custody took place before then). However, there could be investigations into earlier alleged of torture by the CIA of detainees in Poland, Romania and Lithuania, given, the OTP said, there was a nexus to the Afghanistan conflict. The Rome Statue entered into force in Poland and Romania on 1 July 2002 and Lithuania on 1 August 2003.

Trump-era practices?

The interrogation practices which could now be investigated by the ICC as incidents of torture were eventually outlawed in the US. In 2005, Congress banned the techniques which Bush had authorised and, in 2009, Obama passed an executive order restricting interrogators to using only techniques authorised in the Army Field Manual; that order was codified into law by the Senate in 2015. Obama called waterboarding torture and his attorney general, Eric H Holder, said the country was owed “a reckoning” for torture carried out after the September 11th attacks. However, in the end, Obama decided not to conduct a broad criminal investigation into Bush-era officials saying, “We need to look forward, as opposed to looking backward.”

However, the new US president-elect is again officially championing those techniques. Like Bush, Trump believes torture ‘works’. As AAN has reported, he has praised waterboarding, saying, “I like it 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.”

There may be other supporters of torture in the new Trump administration. Two men being suggested as possible secretaries of state are Newt Gingrich, former Senate speaker, who said of waterboarding, “under the normal rules internationally it’s not torture” and John Bolton, former Bush-era ambassador to the United Nations, who criticised Obama for saying the US state had used torture as it would be “aiding an effort to establish liability for the top political leaders up to and including President Bush and [former] Secretary [of Defense Donald] Rumsfeld.”

The name of Jose Rodrigues has also come up as a future director of the CIA. Just after the 9/11 attacks, he was appointed chief of staff of the CIA’s Counterterrorism Centre and was later promoted to director of the CIA’s National Clandestine Service. He was a key player in creating the CIA’s torture and rendition programme and in trying to cover up it up; in November 2010, after photographs showing detainees being abused at the Abu Ghraib prison in Iraq were published, he ordered the destruction of video tapes showing detainees being water-boarded. Rodrigues could have been charged with misleading investigators or obstructing justice, but in 2010, the Department of Justice decided not to put him on trial.

Like Trump, Rodrigues has spoken of the need to go beyond the methods of torture signed off by Bush. “Enhanced interrogation techniques are well known to the enemy and we would have to come up with something else,” he told The Daily Beast, although he declined to tell the paper what that might entail. As anti-torture laws were passed during the Obama years, practicing torture again may not be as easy as it looks, although see here and here for legal analysis of what the new president’s options might be.

Trump has also said he wants to expand the ‘war on terror’ detention camp at Guantánamo Bay (with five remaining Afghan inmates, along with 55 others). Such a move would increase the potential for abuses to take place as inmates do not enjoy the same legal protections as those on mainland America and it is far more difficult for lawyers and journalists to scrutinise.

Conclusion

The ICC has been under fire for ‘only investigating Africans’ (that was the reason, said three countries, South Africa, Burundi and Gambia, why they were withdrawing from the ICC earlier this month. (6) In January of this year, Georgia became the first non-African country that the OTP received Pre-trial Chamber authorisation for to investigate – in this case, alleged war crimes committed during the 2008 Russian-Georgian conflict over South Ossetia. Afghanistan could be the second. Even if it does, however, building cases against specific individuals, especially in a war zone, will be difficult. With its new report, the ICC may be one step closer, but it is still many steps away, from bringing Americans or Afghans accused of committing war crimes in Afghanistan to trial.

 

(1) The OTP mentions two possible exceptions: the pre-Amnesty Law conviction of Abdullah Shah, an Ettehad-e Islami commander for murders committed during the civil war in Kabul and “reportedly two senior members of the Haqqani Network… prosecuted and convicted by a national primary court in August 2016 for an unknown alleged conduct.”

(2) The OTP mentions Hezb-e Islami only in the context of the list of groups fighting the Afghan government.

(3) Civilians can lawfully be killed as ‘collateral damage’ during conflict. However, they cannot be targeted, combatants must take precautions to avoid causing civilian harm and if civilian harm is expected from an attack on a military objective, this must be proportional to the military gain.

(4) In the Taleban’s 2006 code of conduct, teaching in government schools was deemed illegal and punishments were harsh. Teachers were to be warned and if necessary beaten: “…if a teacher or mullah continues to instruct contrary to the principles of Islam, the district commander or group leader must kill him.” Education was allowed, but only in a mosque or similar institution, using jihad or Emirate-era textbooks and by someone with religious training. Schools were to be closed and if necessary burned. Any contract with an NGO, in exchange for money or materials, had to be authorised at the highest level, by the leadership shura. The 2006 code of conduct described NGOs as “tools of the infidels.” These instructions and descriptions were dropped in the subsequent codes of conduct of 2009 and 2010 (more on this here).

(5) A day after the OTP released its 2016 Preliminary Examination Report on Afghanistan, the Afghan National Security Council, led by President Ghani, finally publically announced its commitment to the Rome Statute and other related matters, including prohibiting the recruitment of child soldiers into the Afghan National Security Forces, prohibiting civilian casualties, eliminating torture and bringing reform to the judiciary so that it can adjudicate international crimes. Additionally, the National Security Council stressed its commitment to cooperate with the ICC. Prior to this, in in January 2016, Afghanistan had established an inter-ministerial committee to look into how the country could interact with the ICC. The committee was tasked with developing a regulation to manage Afghanistan’s interaction with the ICC. That regulation is now in operation with the AIHRC in charge. A year ago, the OTP complained about the lack of Afghan government cooperation. In this month’s report, it said Afghanistan was preparing to share the “required information” with it.

(6) South Africa, Burundi and Gambia were joined on 16 November 2016 by Russia which said it was formally withdrawing its signature from the Rome Treaty, a day after the ICC published a report classifying the Russian annexation of Crimea in March 2014 as an occupation.

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