This longstanding U.S. military doctrinal understanding, that war crime is a technical expression for a violation of the law of war, can be compared to the Charter for the Nuremberg Tribunal, which says that war crimes are “violations of the laws or customs of war”.
In numerous specific findings of the Kunduz investigative report, actions by U.S. military personnel violated the law of war. The actions amount to war crime.
In another Law of War Manual definition, “war crime” refers to particularly serious violations of the law of war.
An example of minor violations of the law of war, not amounting to war crime, is wearing a medical emblem on the wrong arm.
126.96.36.199 War Crimes – Serious Violations of the Law of War. Sometimes the term “war crime” is used to refer to particularly serious violations of the law of war. For example, this is generally the usage when the term “war crime” is defined for the purposes of a particular criminal statute.106
This usage of “war crime” is understood to exclude minor violations of the law of war. For example, if during an international armed conflict, military medical personnel perform their duties while wearing an armlet displaying the distinctive emblem affixed to their right arm – rather than to their left arm, as specified by Article 40 of the GWS, these personnel may be said to be violating the law of war. However, under this usage of “war crime,” such violations generally would not be regarded as a “war crime.”
This understanding of war crime, that it refers to particularly serious violations of the law of war, can be compared to the International Criminal Court definition, which refers to “serious violations of the laws and customs applicable.”
The violations of the law of war in the Kunduz attack, failing to observe the principles of distinction, proportionality and necessity, and attacking a protected facility, resulting in the deaths of 42 non-combatants, are not like wearing an emblem on the wrong arm. The attack involved multiple serious violations of the law of war, and amounts to war crime.
The United States Code definition of war crime includes conduct prohibited under the Hague Convention of 1907, annex Article 27. This article says that all necessary steps must be taken to spare, as far as possible, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
All necessary steps to spare the Kunduz trauma center were not taken. By specific finding, the failure to spare the trauma center involved violations of the law of war. The attack amounts to war crime.
The United States Code definition of war crime exempts “death, damage, or injury incident to a lawful attack.” But by general finding of the U.S. investigation, military personnel failed to comply with the law of armed conflict. By specific finding, “The MSF Trauma Center was not a lawful military objective.”
Furthermore, by specific finding, the National Directorate of Security compound, the intended object of the attack, was not a lawful military objective under the circumstances either. “It was unreasonable for either the GFC or Aircraft Commander to believe either the NDS Compound or the Trauma Center was a Lawful Military Objective”
A distinction is often made between international armed conflict, and armed conflict not of an international character.
Nearly universally, the conflict in Afghanistan now, although it has the involvement of international forces and although it sometimes crosses international borders, is considered armed conflict not of an international character. It is, casually speaking, a civil war, and not a war between nations.
But since the judgement at Nuremburg, at the very least, attempts to say that the 1907 Hague regulations do not apply except in war between contracting powers, amount to little. The regulations were by that time recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.
All necessary steps must be taken to spare hospitals. This would be true in any war of any character anywhere.
Intentional military attacks targeting civilians are prohibited. This is just the most straightforward case.
Requirements that belligerents must distinguish between combatants and civilians, that attacks must be proportionate, and that attacks must be necessary, always apply. The prohibition against intentional attacks against civilians falls under these more general principles.
The United Nations Mission Assistance Afghanistan, in condemning a Taliban attack on a military target, recognized that the attack may amount to war crime.
The use of high explosives in civilian populated areas, in circumstances almost certain to cause immense suffering to civilians, may amount to war crimes.
UNAMA did not speak of a strict requirement that the harm to civilians be intentional or deliberate.
But in discussing the United States attack on the MSF trauma center in Kunduz, UNAMA shifted the standard.
Should an attack against a hospital be found to have been deliberate, it may amount to a war crime.
Another meaning of “war crime” is a politicized one. We know that meaning when we see the words used at a political blog. I am trying to get away from the politicized meaning here.
But when General John Campbell concluded, and when General Joseph Votel restated, that U.S. military action in the attack on the trauma center failed to comply with the law of armed conflict, but did not amount to war crime, it was the politicized meaning driving the conclusions.
War crime, in U.S. military action in Afghanistan, has high political import. There is no way to get around that.
The U.S. military, in investigating itself for the attack in Kunduz, has applied to itself a standard counter to U.S. military doctrine. It has not even used the standard considering war crime to be serious violations of the law of armed conflict. The harm to civilians and protected facilities in the Kunduz attack, and the violations of law in the attack, was clearly serious, and in fact grave.
There has been a very large, continuous, and grave failure to protect civilians, by all parties to the conflict in Afghanistan.
All parties to the conflict, including the United States, have a very large and continuous failure to properly investigate and prosecute violations of the law.
The attack on the MSF trauma center, in Kunduz in 2015, is somewhat an exception. But public attention to the large-scale harm to civilians in the conflict in Afghanistan is generally very low. This is a failure too.
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