Gordon Campbell on compensation for Afghan casualties

Published: Wed 20 Nov 2019 11:38 AM
Gordon Campbell on why New Zealand should be compensating the Afghan civilian casualties on its old firing rangeFirst published on Werewolf

Reportedly, there have been nine incidents resulting in 17 civilian deaths and injuries (seven of the dead were children) caused by ordnance left behind on what used to be the firing range of our Provincial Reconstruction Team (PRT) in Bamiyan province.
Given that the NZ Defence Force has needed to be hauled kicking and screaming into belatedly arranging an adequate clean-up of its old firing range… what would it take before New Zealand offers to pay compensation to the families of those who suffered death and injury from what was left behind on our watch?
Before directly discussing compensation, there are a few problem aspects about the belated clean-up process that’s being envisaged:
(a) The clean-up will not get under way until April 2020, after the winter snows have melted i.e. it will have taken seven years since the PRT left Bamiyan in 2013, to arrive at this starting point. It took some brilliant media work for Stuff Circuit by Eugene Bingham and Paula Penfold to create the political pressure that has finally forced NZDF to act.
(b) Our troops will not be doing the clean-up. Ironically, that would create security issues. For them.
(c) Instead, local tenders will be called for the clean-up. Question: what follow-up checks - if any - will be taken to ensure that’s what’s promised on paper in the clean-up contract gets carried out thoroughly?
(d) Presumably, we will be leaving it to the cleaners to keep themselves safe. Remember, this is work we should have done. Because we didn’t, we’re now putting even more Afghans at risk. Because within the past few years, de-miners in provinces like Helmand have been attacked and killed by the Taliban.
Interestingly… in the Bamiyan province in which our PRT operated , the contract for the dangerous work of cleaning up our firing range could quite conceivably be awarded to the 40-strong, all-female de-mining team created last year by the UN Mine Action Service (UNMAS) as a pilot vehicle for women’s employment.
The $450,000 pilot program has two primary aims. The first is to equip women with the skills and training to clear their communities of the deadly remnants of decades of war. Even in the relatively peaceful Bamiyan, a province in Afghanistan’s central highlands, land mines and other explosives remain pervasive.
Second, the program provides women with an opportunity to throw off Afghanistan’s deeply entrenched gender roles and thrive in a new and challenging profession. Demining offers Afghan women increased financial independence and—in many cases—has opened doors for them to study for a diverse range of careers including law and business. Those are options that would have been out of reach without the financial assistance demining provides.
So… one of the few rural jobs available to Afghan women requires them to do the extremely dangerous work of clearing the countryside of the residues of war, and making it safe again for their families and children. Men fight, women clean up the deadly aftermath:
The legacy of four decades of conflict is staggering: Almost 700 square miles of Afghan soil remains contaminated by mines and other explosives, including artillery shells, mortars, and deadly cluster munitions—bombs weighing hundreds of pounds that, prior to impact, eject hundreds of golf-ball-sized bomblets that spread far and wide
On May 17 this year, one such cluster bomb that had lain dormant for decades behind a small school in Bamiyan detonated, killing three young boys. Their bodies were not discovered until nearly 24 hours later. And in 2018 alone, more than1,400 Afghans were killed or injured by land mines and other explosives, a number that has tripled since 2012. Among these victims, around 80 percent are children.
As NZDF claim, it is possible that some of the ordnance on our firing range may not have actually been put there by us. Indeed, some of the mines that the female de-mining team have been uncovering in various parts of Bamiyan have dated back to the Soviet occupation. Even so, that lethal history seems all the more reason why we should have made sure of doing a thorough clean-up before we left, given that the PRT mission has always mightily congratulated itself on being such a successful ‘hearts and minds’ effort.
After all, the wider world has known since 2015 at least, about the dangerous explosives left behind on our Bamiyan firing range:
Last February [ie 2014]in the peaceful highlands of Bamiyan, Sajad Ali, 18, and his brother Abdul Khaleq, 16, walked to a dry riverbed to collect firewood. They were unaware New Zealand’s provincial reconstruction team had previously used this area for target practice. While the boys rummaged through a thicket of branches, their donkey ran around on the hillside above. As it went, it kicked a stone down the slope towards the boys, which hit and detonated an unexploded shell, spraying them with shrapnel.
Sajad Ali still has pieces of the shell lodged in his leg and arm, and a long operation scar down his stomach. His brother also survived, albeit with a serious injury in his back. A scrawny boy with jet-black hair, Sajad Ali has lost half the strength in his arm, he said in an interview in the autumn. Now 19, he has developed a stutter from the shock of the explosion, and is afraid to leave the house.
Paying Compensation
Under international law – and under the rules that international forces have operated under in Afghanistan – New Zealand is under no legal obligation to offer compensation to the permanently injured teenagers mentioned above, or to any of the families of the seven Bamiyan children killed in 2014 by an explosive device that one of them had found on a NZ firing range located close to their village. The gathering of firewood – often a job done by children – puts Afghan children directly in harm’s way.
Yet the fact there is no legal requirement does not absolve New Zealand of its moral obligation. Other countries ( eg Germany) have been known to make “ex gratia” payments to Afghan families harmed by the actions (or the carelessness) of their troops – without such payments signifying either liability, or legal obligation. In fact, Germany’s highest court has declared that no legal requirement for compensation to Afghan civilians exists, even with respect to the notorious Kunduz airstrike in 2009. On that occasion, a German colonel called in a US air attack on two hijacked oil tankers, and about 100 Afghan civilians died in the fiery aftermath. However, this high court absolution did not stop Germany from going ahead and reportedly paying $5,000 to each family affected.
Similarly, Denmark has created a system of “ex gratia” payments to Afghan civilians killed or injured as the result of Danish military actions in Afghanistan:
Danish soldiers killed at least 18 civilians during Denmark’s extended military engagement in Afghanistan… Thanks to a freedom of information request, the newspaper [revealed] that Denmark systematically paid compensation to the families of civilians killed or injured by Danish troops… ranging from a 1,500 kroner ($250) pay-out to a man struck in the face by a Danish bullet in 2009 to 267,050 kroner ($40,000) paid to survivors after Danish troops killed five civilians, including two children, and injured four in 2010. In another instance, Denmark paid just 11,500 kroner in compensation for the death of a little girl. The death of a father of eight, meanwhile, resulted in a 55,000 kroner payout… Captain Mads Silberg, who was responsible for Danish troops’ relations with the civilian population during his time in Afghanistan, said that the pay-outs were the right thing to do.
It is indeed the right thing to do…and there is a precedent (from 2010) for New Zealand paying compensation to the firing range casualties:
Defence officials have told Parliament that preventing "revenge-driven retaliation" was partly behind the $10,000 payments to the families of each of the Afghani men slain by our crack SAS unit during a raid in Kabul.
Two civilians, Mohammad Sadiq and Abdul Mobin, were shot dead by SAS troopers in December 2010 during a raid on a factory in the Afghanistan capital. The pair were killed as they carried out their duties as security guards and were not linked to the Taliban or other enemies of the International Security Assistance Force in Afghanistan, of which New Zealand is a part. The payments were discussed during briefings with Parliament's foreign affairs, defence and trade committee late last year.
The committee's post-briefing six-page report - obtained by the Sunday Star-Times - said: "The ex gratia payments were consistent with rules of engagement, and were not considered to be compensation. It is practice in Afghanistan, and in other parts of the world, to make payments to families of those killed, in order to prevent revenge-driven retaliation."
Given that our PRT troops have been withdrawn from Bamiyan, the aggrieved firing range families have no opportunity for ‘‘revenge-driven retaliation.’ Yet the moral imperative remains, despite the attempted hair-splitting above between “payment” and “compensation.” We can be pretty sure that the Afghan recipients regarded it as compensation, and as the discharging of a moral debt. At this point though, the New Zealand Defence Force is still trying to avoid taking any responsibility for the deaths and injuries among Afghan civilians who accidentally triggered the explosive devices left behind on our firing range.
The stream of excuses keeps on coming from NZDF: maybe it wasn’t our ordnance, plus the rules on what constitutes adequate clearance changed, plus the 2015 US call on countries to finance more extensive clearances contained ‘ inaccuracies” or didn’t really apply to us….plus at an estimated cost of circa $45 million, the type of clean-up being advocated by the Americans in 2015 would (allegedly) have been too expensive for us to afford. (Yet we managed to spend six times that amount on the PRT alone over a ten year period, plus several SAS missions besides.)
Meaning: New Zealand still seems to be a very long way indeed from taking any moral responsibility for the PRT firing range casualties, let alone for offering any compensation to the survivors, or to those who lost loved family members. Perhaps it is this kind of foot-dragging – and the systematic NZDF untruths and ineptitude now being exposed at the Operation Burnham inquiry – that we should be remembering on Anzac Day, rather than the usual death and glory platitudes. Lest we forget… those seven dead Afghan children.
Footnote One: Obviously, money should be being set aside by the Ardern government for ‘ex gratia’ compensation at the same time as it initiates the tendering process for the de-mining clearance due in April 2020. When the Burnham inquiry also finally wraps up in 2020, a similar moral imperative will exist for compensation payments to the families of civilians killed and injured in the course of that raid.
After all, if Germany accepted responsibility (and pro-actively paid compensation) for its colonel calling in a US air strike that accidentally caused Afghan civilian casualties, surely we should be doing the same with respect to the Burnham raid - in which the SAS called in a misfiring US Apache gunship that accidentally caused civilian deaths, injuries and property damage. The same logic applies.
Footnote Two: This 2010 research document cites the moral and strategic rationale for making ‘ex gratia’ compensation payments when international forces cause Afghan civilian casualties.
The document includes the official US table for calculating the payments (eg $US2,500 for civilian deaths) and provides brief summaries of the policies towards civilian compensation by several of the countries that served with New Zealand under the ISAF umbrella in Afghanistan. Evidently, the US, the UK, Germany, Italy, the Netherlands, Canada, Poland and Norway all operated their own de-centralised systems for making ‘ex gratia’ payments in the event of civilian casualties and/or damage done to civilian homes. As of 2016, Australia had paid out $207,800 to 2,800 Afghan civilians in the previous six years for “collateral damage, property, injury or loss of life” under the “section 123H tactical payment scheme” that’s set out in detail here.
Finally, and well before NZDF troops left Afghanistan the NATO/ISAF had issued this non-binding set of responses to civilian casualties caused by international forces.
The preamble makes these relevant points:
When combat-related civilian casualties or damage to civilian property occur, NATO/ ISAF considers that easing civilian suffering is of tremendous importance. In Afghanistan, the pain of losing a family member can also have financial implications, which could be eased through payments. Afghans have made it clear that payments to the families of civilian casualties is a culturally-appropriate response to combat-related civilian death or damage to private property…
It would seem entirely appropriate to apply those NATO/ISAF guidelines to the PRT firing range casualties. The guidelines urge ISAF member countries to:
3. Proactively offer assistance for civilian casualty cases or damages to civilian property, in order to mitigate human suffering to the extent possible. Examples of assistance could include ex-gratia payments or in-kind assistance….
8.The system by which payments are determined and made should be as simple, prompt and transparent as possible and involve the affected civilians at all points feasible.
9.Payments are made and in-kind assistance is provided without reference to the question of legal liability.
Kate Tempest Returns
My previous column gave a few examples of why the black country multi-instrumentalist and vocalist Rhiannon Giddens should be a top priority for people making their final booking selections for next year’s NZ Festival of Arts. Same goes for Kate Tempest, the prize-winning poet, novelist, playwright and politically engaged hip hop artist who simply laid waste to NZ audiences during her club tour here back in January 2016.
It remains to be seen how Tempest’s high energy involvement with her audience translates to the more distanced Festival concert stage, but you can be sure Tempest won’t be hanging back. Hopefully, she’ll still be doing some of the club bangers she featured on the 2016 tour, like this callout against the forces urging us to give up and fit in:
Even when she’s being quiet though, she doesn’t do aloof:

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