Foreign Policy Articles

Dying for Revenge: Controlling Allies In Wartime

Published in: The Journal of International Security Affairs, Number 3, Summer, 2002.

By

Rand H. Fishbein, Ph.D.

On November 25, 2001, a prison uprising outside the Northern Afghan city of Mazar-i-Sharif left approximately 400 Taliban and al-Qaeda fighters dead, under what some have termed questionable circumstances.

Human rights observers called for an investigation, claiming that a large number of those killed may have been summarily executed by members of the U.S.-backed opposition Northern Alliance. Many of the dead reportedly were found with their hands tied behind their backs.

For a number of observers, this raises a disturbing question: does the U.S. bear responsibility for these extra-judicial killings, since they were carried out by local partisans under the nominal control of American forces? The answer is unquestionably “No.”

This issue is of more than academic interest. A Belgian criminal appeals court is now deliberating whether there are sufficient grounds to prosecute Israeli Prime Minister Ariel Sharon for the 1982 massacre of Palestinians in the Sabra and Shatila refugee camps. The charge against Sharon: crimes against humanity.

A law suit brought by 23 survivors of the massacre asserts that Sharon is responsible for the killings because, at the time, he was Minister of Defense and architect of Israel’s invasion of Lebanon. In that capacity, he maintained a close working relationship with the Lebanese Christian militia, the “Phalange,” who committed the actual killings. The plaintiffs further claim that Israel gave logistical support to the militia and provided security around the camps while the Palestinians were being attacked.

Belgium’s judicial juggernaut is not limited to Israeli officials. Currently, thirty cases are pending against world leaders and their agents, including President Fidel Castro of Cuba, former President Hashemi Rafsanjani of Iran, and President Paul Kagame of Rwanda.

The authority under which the Belgian courts are acting is a 1993 law which grants them the right to try accused war criminals, regardless of nationality, for acts in violation of the Geneva Convention. The law gives the courts a global reach, empowering them to accept complaints even when there is no Belgian connection. The first successful prosecution under this statute came in 2001, when two nuns were convicted for their role in the 1994 Rwandan genocide.

Implications For The U.S.

The drama now being played out in the Belgian courts has major implications for the United States in its war on terrorism. If successful, the suits against the current Israeli Prime Minister and others could pave the way for the indictment of President Bush, Secretary of Defense Donald Rumsfeld, and other Administration officials for failing to stop execution-style killings occurring on their watch.

There may be times when Americans should be held accountable for atrocities over which they have complete or even nominal control, but this does not appear to be one of them. Unlike the massacres at Mai Lai or Wounded Knee, the prison killings at Mazar-i-Sharif were the work of individuals acting outside the U.S. military chain of command.

U.S. forces deployed on the ground in Afghanistan have none of the administrative trappings of an occupying power. They constitute a small contingent of elite combat units whose mission it is to rout out and destroy a fanatical and brutal enemy. The American military is not configured to exercise a police function. Nor should it be. In such a vast and lawless land, this is a practical impossibility.

But this is the Twenty-First Century, when the twin evils of moral equivalence and moral entrapment are all the rage. In a world now filled with international tribunals and truth commissions, no one, not even the leader of a democratic state, is safe from the long arm of judicial tyranny. The Belgian cases against Sharon may be only a prelude of things to come.

Alive to this possibility, the Bush Administration announced on May 6th that it would formally withdraw from a treaty establishing the world’s first international criminal court in The Hague. The purpose of the court is to prosecute individuals accused of genocide, crimes against humanity or other war crimes.

Conservative legal scholars have long opposed such a court, arguing that it would unreasonably infringe upon U.S. sovereignty and would place American leaders at risk of foreign prosecution. This is unacceptable for the world’s last remaining superpower and the nation regarded by many as the principal guardian of peace and security around the world.

The U.S. has made it clear that it will not recognize any ruling issued by the new court, nor will it countenance international indictments issued against Americans acting for or on behalf of the U.S. Government. Understandably, the Administration is reluctant to have U.S. citizens or U.S. allies judged by foreign nationals whose own countries have yet to evolve democratic institutions and whose motives may be suspect.

Administration officials have long feared that U.S. soldiers and the nation’s political leadership might one day be subjected to indiscriminate and politically-inspired harassment from a less than impartial world court. The court, they argue, is unlikely to have all of the guarantees and safeguards that the U.S. Constitution and the American system of due process afford the accused.

The Rome treaty creating the new criminal court was signed by President Bill Clinton on December 31, 2000. It was never ratified by the U.S. Senate. On April 11, 2002, with sixty countries having signed the treaty, the court came into being.

As the Belgian case against Sharon case makes clear, a criminal court with global reach can be easily manipulated for political purposes.

With America’s war against terrorism heating up, other incidents, some even more graphic and bloody than those at Mazar-i-Sharif, are possible. When that time comes, and it surely will, Americans may yet again be witness to local savagery on an unimaginable scale. One need only look to the killing fields of Rwanda, Cambodia, Burundi, the Congo, Kosovo and Bosnia to see that unchecked barbarism remains a glaring feature of the modern world. It will remain a challenge of U.S. warfighting doctrine to maximize American awareness of local conflicts before embarking on a military expedition that makes use of local insurgent forces.

Still, the U.S. must remain resolute in carrying out its military objectives. It must serve as an example of appropriate behavior on the battlefield while making clear it will not be held accountable for every act of cruelty perpetrated by those with whom it is allied. To do otherwise would throw the American military into a state of paralysis.

As the events of September 11th showed, the U.S. can not retreat from its internationalist role. To do otherwise, would be to capitulate in the face of intimidation, a result that would surely lead to human rights abuses far greater than any now recorded in the war on terrorism.

Mazar-i-Sharif Uprising

According to first-hand reports out of Afghanistan, fighting erupted at the Nineteenth Century Qala-i-Jhangi fortress after prisoners unexpectedly seized control of the compound. Gunfire raged for several days as U.S.-backed opposition forces battled to regain control.

At the time, American operatives from both the CIA and the U.S. Special Forces were in the area advising the Northern Alliance on its military strategy. At least one CIA agent, Michael Spann, killed during the uprising, was there to help interrogate Taliban prisoners. He and a colleague had a front row seat as the mayhem unfolded.

Spotters ordered U.S. air strikes on the compound, hoping to kill or frighten the rebellious prisoners into submission. Ultimately, they succeeded, but not before Northern Alliance fighters made good on their desire for retribution. Many of the dead were foreign mercenaries, Arabs, Chechens and Pakistanis, who had flocked to Afghanistan at the behest of al-Qaeda leader, Osama bin Laden and his Taliban hosts.

The American campaign had unleashed a new wave of reprisals. It was understandable that the opposition forces one day would move to restore tribal honor. However, no one expected that the reckoning would come so quickly. Yet, before the dust had settled, a prison outside of Mazar-i-Sharif became the site where a portion of that blood-for-blood debt was paid. It was an example of “rough justice,” Afghan style.

Sabra and Shatila Massacre

Nearly twenty years ago the Israelis found themselves in a similar situation. The Lebanon war was in its fourth month. Israeli forces had surrounded the Palestinian refugee camps of Sabra and Shatila on the outskirts of Beirut. A group of 250-350 Christian Phalangist militiamen belonging to the Lebanese Forces and allied to Israel, entered the camps in an effort to ‘smoke out’ PLO fighters. And, as it turned out, to exact revenge for the assassination of Bashir Jemayel, Lebanon’s Christian leader – an assassination they blamed on the PLO.

What resulted was a massacre in which approximately 700-800 Palestinian men, women and children were killed. Though no Israeli forces participated in the action, the international community condemned Israel for not having prevented its occurrence.

Like the recent killings at Mazar-i-Sharif, those at Sabra and Shatila were carried out by local paramilitary forces. They were well-practiced in their work, having conducted numerous other operations against Palestinian targets. Revenge was its own motivation. Seven years of bloody civil war in Lebanon had left animosities running high on both sides.

In Lebanon, the PLO operated a state within a state, employing the same tactics of intimidation used until recently by al-Qaeda in Afghanistan. PLO fighters terrorized the Christian community and committed acts of unspeakable cruelty during their years of occupation. So total was the terrorist hold over the country that residents called the area under PLO control, “Fatah-land.” It was rapine and malevolence on a national scale.

Israel insists the Christian militia acted on its own volition when it attacked Sabra and Shatila, rampaging through the Palestinian camps in an operation motivated as much by vengeance as by military necessity. In the end, there was little Israel could do to prevent the settling of scores by the Christians.

Two days later, the full extent of the killing was revealed. Israel condemned the militia’s actions. Nonetheless, the reputation of the Begin Government, and that of the Defense Minister in command of the overall Lebanon operation, the current Prime Minister, Ariel Sharon, was forever sullied by the event.

The official Israeli investigation into the cause of the Sabra and Shatila massacre, the Kahan Commission, absolved the government of direct responsibility for the actions of the Christian militia. The Commission found that while Israel may have given materiel and tactical support to its Christian allies, it neither directed, nor caused to be directed, the killing of innocent Palestinian civilians.

Still, the Commission’s findings remain controversial and a source of continuing anger within the Palestinian community. As the current Belgian case demonstrates, after twenty years, the tragedy of Sabra and Shatila provides a useful weapon in the struggle not only to discredit Israel’s counter-terrorism policy, but to undermine the moral authority of the Jewish State as well.

This was made clear on January 24, 2002, when Elie Hobeika, the former head of the Lebanese Christian militia, was assassinated when a car bomb detonated outside his Beirut home. Hobeika was the individual reputed to have been directly responsible for ordering the Sabra and Shatila massacres.

Angered at accusations made against him in the Belgian court, Hobeika was eager to clear his name. According to press reports, he met with Belgian Senator Vincent Van Quickenborne in Lebanon just two days before the assassination to discuss his role in the affair. The former commander told Quickenborne he was prepared to testify on his own behalf but would “not give evidence against Ariel Sharon.” Hobeika was murdered before ever having the opportunity to testify.

Israeli officials have challenged the authority of the Belgian court to adjudicate matters outside of its national jurisdiction, but to no avail, noting that its actions are without legal foundation and declaring them to be a direct assault on the nation’s sovereignty.

Other observers have castigated the Belgian government for its temerity in prosecuting human rights cases against the leaders of democratic nations alongside those of dictators and tyrants. Some have speculated it will cost the country dearly the next time it seeks to play a larger diplomatic role on the world stage.

Still, few in Belgium appear ready to scrap the law that has brought the country so much notoriety. The country’s reputation as a latter-day human rights crusader and its location in the center of Europe makes that difficult. After being victimized itself in two world wars, the little kingdom by the sea finally gets its revenge.

However, Belgium’s day in the sun may be short-lived. Should an inquiry commission elsewhere in the world decide to shine a spotlight on the country’s own dismal record as a colonial power, national bravado may quickly dissolve into embarrassment. Peering into the Congo of 1885-1960 is to expose a heart of darkness. It is a history few Belgians are willing to confront openly. By many accounts, Belgium’s colonial rule surpassed that of the other European powers for its sheer brutality and malevolence toward the local population.

Even after the Congo achieved its independence in 1960, Belgian companies, working in collaboration with the country’s new leadership, persisted in the economic rape of the country. Human rights violations by the new regime quickly followed. Old habits die hard. A similar story played out in the Belgian territories of what are now called Rwanda and Burundi.

In the end, it may be that more practical considerations will be responsible for ending judicial abuse in Belgium. Once the court bills come due, many taxpayers may just conclude that the enormous cost of so many prosecutions is hardly worth the effort.

Limits Of Control

Whether in Lebanon or Afghanistan, the issue of wartime accountability is never clear cut.

In a press interview on November 19th, just days before the Mazar-i-Sharif uprising, Secretary of Defense Rumsfeld spoke openly of his hope that other Taliban and al-Qaeda fighters holed up in the northern Afghanistan city of Kunduz would not be repatriated or released to a third country. “The idea of their getting out of the country and going off to make their mischief somewhere else is not a happy prospect,” he declared.

Rumsfeld added that he would rather the fighters be killed or taken prisoner. The Secretary, it seems, may have gotten more than he bargained for.

Reports coming out of Northern Afghanistan in recent months hint at an ever greater massacre by Alliance fighters than the one that allegedly took place at Mazar-i-Sharif. The Boston-based group, Physicians for Human Rights, has identified the site of Dasht-i-Laili, just outside of Shibarghan, as the location of a mass grave. Here, possibly hundreds of Taliban and al-Qaeda fighters were slaughtered after the surrender at Kunduz. A fact-finding team belonging to the United Nations High Commissioner for Human Rights surveyed the site in March.

According to survivors, the captives were transported 180 miles west from Kunduz to Shibarghan. Many died of suffocation in sealed shipping containers or were killed when Northern Alliance fighters reportedly fired on the containers. Stories emanating from the region suggest that other captives may have been summarily executed by soldiers loyal to General Dostum.

At the time the massacres at Mazar-i-Sharif and Dasht-i-Laili took place, both American and allied Special Operations forces were active in the area. And while there is no suggestion that any U.S. personnel were involved in the killings, U.S. intelligence assets were keeping close watch on Kunduz and points west where some of the most intense resistance of the war was being encountered.

Did the U.S. know of these apparent atrocities and fail to act? Could the U.S. have stopped them if they did? Does the responsibility for these acts lie solely with the Northern Alliance or should the U.S. and its allies at least share part of the blame? These are questions that could come back to haunt the Administration as it considers how it might once again use local insurgent forces in an expanded war on terrorism.

Yet, as Secretary Rumsfeld made clear on November 19th, the U.S. had little choice at the time but to rely on the opposition forces to handle a large scale of captives. “We have only handfuls of people there,” he observed “We don’t have jails; we don’t have guards.”

Reassessing The Past

In light of America’s new appreciation for the exigencies of war, perhaps it is time to reassess the tragic experience of Sabra and Shatila, not to excuse the incidents, but rather to examine them in a broader context.

Much like Afghanistan, the Lebanese massacres demonstrate the limits of what a democratic power can do, even in wartime, to control the actions of its local, non-democratic, allies. And so it has been throughout history. Tribal leaders frequently have found it possible to elude the discipline demanded by a stronger regional power, finding in a larger conflict the pretext to eliminate lesser enemies. They often have proved adept at finding opportunity, and an alibi, in the shadow of greater states. In the chaos of war, all things are possible.

Today Israel and the U.S. stand shoulder-to-shoulder in the fight against terrorism. The problems they face in confronting an elusive and often brutal enemy are one and the same. As the battle lines extend into tribal societies, old animosities are sure to claim additional unwanted victims. This is no time for double standards.

In regions of the world where honor and revenge are a way of life, the impulse to exact an eye for an eye is not easily suppressed. It is a lesson that the United States and its European partners hopefully have learned after nearly a decade mediating the civil war in the former Yugoslavia.

For all of the civilizing influences of the modern age, the ancient rite of retribution remains stubbornly resistant to change for most of the world’s cultures. In Islam, the practice has taken on the weight of a religious obligation, with the declaration in the Koran, sura xi, line 173: “Believers, retaliation is decreed for you in bloodshed.”

With this as their spiritual frame of reference, it is no wonder that for Islamic terrorists violence, not diplomacy, is the preferred means of dispute resolution. In their world view, compromise is the last redoubt of the weak and the cowardly.

Settling Old Scores

By all accounts, the uprising at Mazar-i-Sharif was a bloody, no-holds-barred, affair. The U.S. was well aware that opposition forces came to this northern Afghan city eager to settle some old scores with al-Qaeda’s foreign mercenaries. Wisely, the U.S. used this hostility to build support among the Afghan tribes for its own strategic purposes. Yet, once the genie was out of the bottle, the U.S. could do little to contain the rampage.

The Administration understands that military operations are never clean. In part, this is why President Bush has held back from asking Congress for an official declaration of war. To do so would have required that captured terrorists be accorded the same rights under the Geneva Convention as those that apply to regular military combatants. With approximately three thousand innocents from nearly 70 countries dead as a result of the September 11th terrorist attacks in New York, Pennsylvania and Washington, this is politically unacceptable.

Instead, the government has announced that it intends to use military tribunals, rather that civilian courts, to prosecute captured the al-Qaeda prisoners now held at U.S. base at Guantanamo Bay, Cuba. The Bush Administration is adamant that foreign terrorists who have worked so assiduously to destroy American democracy can not now avail themselves of its protections as a way of avoiding a more severe punishment.

It is likely that any U.S. investigation into the massacre at Mazar-i-Sharif will conclude that American forces had no direct part in the action. Eyewitness accounts suggest that American involvement in the fighting was limited principally to attacks by strike aircraft and helicopter gunships against heavily armed combatants on the ground. There is no evidence to suggest that U.S. forces engaged in any of the alleged extra-judicial killings. These, it would appear, were carried out solely by opposition members of the Northern Alliance.

To those familiar with Afghan tribal culture, this comes as little surprise. For years, fighters loyal to the Uzbek commander, General Abdul Rashid Dostum, leader of the Northern Alliance forces, roamed the countryside brutalizing the civilian population and growing rich off the drug trade. Like the PLO and Christian militias in Lebanon, Dostum’s army terrorized rural villages, robbed and raped their inhabitants, and stirred the resentment of Afghans outside their ethnic community. They were, and continue to be, a fearsome lot.

Even so, it is reasonable to suppose that, one day, members of the U.S. Administration could be called upon to answer for the executions at Mazar-i-Sharif and the behavior of their Northern Alliance allies. With the extraordinary intelligence assets now available to American forces, it will be almost impossible for U.S. officials to claim that they were unaware of extra-judicial killings occurring within their field of operation.

For the Bush Administration this would be a most unwelcome development. Not only might it impede the ability of the U.S. to work with surrogates in future campaigns, but it would signal to prospective allies that the U.S. is no longer capable of acting independently in support of its interests.

As the U.S. war on terrorism fans out across the globe, the use of local surrogates will prove integral to the Administration’s plans. In places like the Philippines, Georgia, Uzbekistan, Columbia, and Peru, paramilitary groups armed, trained, and guided by U.S. Special Forces are hard at work tracking down terrorist insurgents. Washington needs their cooperation and is unlikely to have much influence over how the fighting is conducted when outside the immediate view of U.S. advisors.

According to Secretary Rumsfeld, there are some 60 to 70 countries that may need to be cleansed of terrorist cells. With this much at stake, it would be unreasonable to expect every operation to be carried out free of controversy.

Nevertheless, just as a Belgian court is being used today to rein in the policies of Ariel Sharon toward the latest Palestinian uprising, so, too, it is possible that one day a court in some country could be used to interfere with America’s war on terrorism.

The only answer may be for the U.S. to begin now to lay the legal and policy groundwork for a code of operation that would protect commanders in the field and government officials from the charge of guilt by association. At the same time, the Administration may wish to consider articulating a new policy that would clearly repudiate the authority of foreign courts in such matters.

As conflicts from the Indian Wars of the 18th Century to Vietnam have shown, it is not always possible to control the dark side of human nature, particularly among partisans who have suffered the indignities of a savage and persistent enemy. It is a lesson we are likely to relearn as our war on terrorism continues.

There are many demons lurking throughout the Middle East, each awaiting its time for revenge.

Rand H. Fishbein, Ph.D., is President of Fishbein Associates, Inc., a public policy consulting firm based in Potomac, Maryland (www.fishbeinassociates.com). He is a former Professional Staff Member (Majority) of both the U.S. Senate Defense Appropriations and Foreign Operations Appropriations subcommittees. Dr. Fishbein also served as a Special Assistant for National Security Affairs to Senator Daniel Inouye.

Rand Fishbein, Ph.D. is President of Fishbein Associates, Inc., a public-policy consulting firm based in Potomac, Maryland (www.fishbeinassociates.com). He is a former Professional Staff Member (Majority) of both the U.S. Senate Defense Appropriations and Foreign Operations Appropriations subcommittees. Dr. Fishbein also served as a Special Assistant for National Security Affairs to Senator Daniel K. Inouye (D-HI). Dr. Fishbein received his Ph.D. from the Paul H. Nitze School of Advanced International Studies of The Johns Hopkins University.