"Mistakes are not war crimes" Topic

Interesting essay:

Let's get one thing straight: Accidents are not war crimes. Unintentional or collateral damage does not constitute a war crime, even when there are noncombatant deaths. The advent of precision weapons has fostered an unrealistic expectation regarding the applications of military force, which is substantially at odds with the reality of combat…

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Just one guy's opinion – and given he's USAF hardly an unbiased one.

If he's so convinced why not add his voice to the calls for an independent inquiry??

Have to generally agree with essay … Yes, bad things happen in a combat zone. And the CD occurs. Like the MSF in Kunduz, were Not targeted. They were just at the wrong place at the wrong time during a battle.

Unfortunately in occurs, especially in insurgent/guerilla warfare/COIN. As the insurgent moves and hides among the civilian populous. It's how they do their insurgency. Among other things like not wearing uniforms, etc., … We all know this.

As I always have stated, if the US/West was not concerned about collateral damage … Many places would look like the dark side of the Moon. The West goes out of it's way to limit CD to as close to 0 as possible. But it still will happen. It's the nature of warfare.

Duh. Of course it was unintentional. Still, the "mistake" at Kunduz showed that due care was not exercised in avoiding civilian casualties and displayed a callous disregard for collateral damage.

Not a war crime, but the rules of engagement with regards to acceptable collateral damage may have changed for the worse.

If ROE is less restrictive, than an increase in CD may an unintended consequence. But enemy loses should/will increase as well … No easy answers …

"The advent of precision weapons has fostered an unrealistic expectation regarding the applications of military force, which is substantially at odds with the reality of combat…"

that should be changed to read; "…fosterd an unrealistic expectation regarding the applications of military force BY AMERICANS AND WESTERN FORCES…"

I've yet to see a trial for Taliban, Al Qaeda, ISIL, or anyone else by an international court for intentionally killing civilians, torture, (real torture not what we were accused of), using human shields, not wearing uniforms, or anything else.

Obviously there is a double standard at work here. Western civilized nations have to stay on the moral high ground and not stoop to the same level as the "barbarians." It's why we fight with one hand tied behind our backs.

All this to keep our consciences clear and help us sleep better at night. But with recent events in Paris I'm sure ROE's will be loosened even further.

unfortunatly i must agree also…"mistakes are not war crimes"…the use of civilians as shields is well known…what i still don'nt understand is that if it's true, in practice and during a war action, that modern technology allow to avoid, with a certain margin, to kill non selected targets…for what i imagine that's untrue as it was during past wars…

But the French and Russian bombings in Syria are being conducted with the same care and held to the same standard as the US airstrikes, right?

But the French and Russian bombings in Syria are being conducted with the same care and held to the same standard as the US airstrikes, right?

French, maybe. Before the Paris attacks, almost certainly. After Paris? I doubt it.

Russians? Hell no. "This is how we kill terrorists in Mother Russia! [leveling of city using thermobarics commences] Here, Amerikanski, have some vodka and enjoy the fireworks!"

Sort of depends if you're the disher-outer or the recipient of said accident.

Again … no easy answers … but the terrorist jihadis just keep killing … everybody indiscriminately … So the West does it's best to keep it's humanity and not turn into the monsters we are hunting. But, less restrictive ROE is probably going into effect. If not already …

Has it really has come down to them or us at this point ? Would less restrictive ROE killed more Deash, along with some non-combatants ? Has it … or will come down to if we want to save our people, like those killed in Paris ? We have to kill more of Daesh and anyone near by ? No easy answers.

Not very credible, more like an attempt at legalese to get out of responsibility for a war crime. "MSF claims that the hospital location was provided to U.S. government authorities, but has not revealed specifically to whom that data was allegedly provided, nor if a confirmation was received." MSF (which otherwise known as Doctors without Borders) has been operating hospitals in war zones for decades. They are very experienced at making their presence and mission known to all combatants. Their mission is to treat all combatants, regardless of which side they are fighting for. This nitpicking is based in part on the premise that giving notice to, say, the Department of State but not the USAF is sufficient to absolve the US of culpability for a war crime. Sorry, doesn't work that way. It is not the responsibility of the target to make sure that every organization in the US Government gets notice of its status. Notice to any senior government official should be adequate.

Second, they hit and bombed their intended target (for over an hour). A mistake would be simply bombing the wrong target. This was no mistake.

Third, "We have not seen copies of hospital certificates required by the Geneva Conventions" does not mean that such a certificate is required before characterizing a bombing as a war crime.

It is my understanding that the hospital had been in operation while the city was occupied by friendly forces. Even if you assume that that the USAF was not informed, it is unlikely that other US government agencies were unaware of the existence of the hospital (NSA, State Department, CIA, US ground forces working with the Friendlies).

Colonel Pietrucha argues that there was no intent to bomb a hospital by the aircrew and therefore no crime. However, he does not dispute that the hospital was the target of the attack. This argument strays dangerously close to (but probably doesn't actually cross into) the "I was just following orders" defense so often used in war crime trials in the past.

Finally, he argues that an international investigation is unnecessary because (1) it would be inconvenient, (2) we're the good guys, and (3) the defense department is the most qualified to do this investigation. The defense department is not the most qualified unless you can credibly ignore the blatant conflict of interest. No career officer will find against the US or the Defense department if they still want to have a career. Furthermore, our continued program of drone strike assassinations calls into question any argument that we are the good guys. We have even assassinated a US citizen overseas with a drone strike. At a minimum, one would expect that a US citizen was entitled to the protection of the constitution and the bill of rights, but we have taken a different stand. We cannot claim the moral high ground. I would agree that a criminal investigation is always inconvenient for the target but I am not sure why that would be an argument against an international investigation.

It is all probably moot anyway. The United States is not a member of the International Criminal Court and refuses to recognize its jurisdiction.

GenWinter,

Utter claptrap. Prove that the INTENT was to attack a hospital with the INTENT of murdering innocent civilians within.

If you cannot prove that intent, then it was a tragic mistake and nothing more.

It is NOT a war-crime to be guilty of map-reading.

It is NOT a war-crime to attack a hospital that is being used as a defended position by the enemy. The war crime in that instance is on the part of the defender.

It is NOT a war-crime to make what you believe to be a legal attack an attack in good faith, based on the information you have at hand.

A -up is not a war-crime.

Using the same logic would not MSF be liable for the violation of the same war crimes since they willfully refused to mark their building in a way prescribed in the very same law. Was this willful violation perpetrated by MSF so that the structure, doctors, staff and patients would suffer damage and casualties?

It seems only logical that if a law can be twisted one way, it could most certainly be twisted the other.

Colonel Pietrucha doesn't deny that they hit their intended target. To argue that I intended to hit the target but did not intend to do the harm is an argument commonly offered in US Courts by criminal defendants (I intended to assault him but I didn't intend to kill him…). It is routinely rejected by all US courts. Since our jurisprudence is derived from the British common law, I assume such an argument is rejected by British courts also.

Colonel Pietrucha does not claim it was a map reading error. In fact, he goes out of his way to confirm that someone ordered the mission, that the hospital was the target and the target was hit. He hypothesized that the hospital was not marked on the roof but said we don't know because the roof was burned as a result of the attack. Gee, do you think the DoD has photographs or video showing the roof before, during and after the attack? If it shows no markings, that would go a long way to helping the DoD's case. Yet, no video has been released.

The Colonel was also careful to claim ignorance of other key background facts as if to imply we are rushing to judgment. The missing facts are in the possession of the Defense department who, one would assume, is reluctant to release the information. I assume they will assert national security as a reason not to release the information, thus deliberately preventing a full investigation of events leading up to the authorization of the mission.

What is missing is any "proof" that the hospital was a defended position controlled by the enemy. This was floated as a possible theory in one newspaper article but I am unaware any DoD news release or other information confirming that it was a defended enemy position. The mere fact that the gunship was able to maintain station over the position for an hour, gunning down doctors and patients, suggests that it was not a defended enemy position.

There is no doubt that there were injured enemy soldiers in the hospital. Doctors without Borders have all but admitted it. However, they have always made it clear that they treat anyone who needs treatment, friend or enemy. They are non-partisan.

RE: MSF is liable for war crimes because it didn't mark the building…zoneofcontrol – I am sure you are a nice guy who did not think through your comment so please don't take this as a personal attack. First, you have made a "blame the victim" argument. It is a variation of the "she was asking for it" defense to a charge of rape. Generally, this is considered a morally reprehensible legal argument in Western countries. Second, no doctor would set up a hospital to be a deliberate target. This violates every principle and moral code that doctors are bound by and live by. Third, one does not commit a war crime by being attacked, one commits a war crime by attacking. Fourth, it was not as if the US was giving warnings about its airstrikes, thus giving MSF the opportunity to come forward and identify itself.

Finally, even if you assume that there was no marking on the roof, I would argue that since the hospital was in operation for 4 years before the strike, it was known to US forces, local friendly forces, the US State Department and every US and Coalition intelligence agency. I don't think that is an incredible or unbelievable inference.

Here we go again. GenWinter, stop getting excited about things that don't affect you. When you've bombed stuff, been bombed or know someone who has then your opinion is worth listening to. I spent over a year training to bomb stuff, don't know why I bothered, I should have just read a few threads on here.

Amen foxweasel … Amen !

There are many facts in dispute regarding the Kunduz Hospital strike, so it seems premature to claim either a war crime or a tragic accident. What is needed is an inquest into the attack by an impartial body which can discover what happened and what decisions led to the attack. The fact that the US Government is not allowing a transparent and impartial investigating to happen is a great concern. When police discharge their weapon in the line of duty and wound or kill someone, there is an enquiry. That enquiry is not done by the police force itself as that would constitute a a conflict of interest. It is done by a civilian review board or a different police force. The DoD is refusing to let an enquiry happen unless it is a DoD enquiry. That raises more question about what really happened.
A second question which should be raised is to question the use of such extremely destructive weapons in a built up urban area. This kind of weapon system though highly accurate is so destructive that it will likely magnify the severity of any mistake which could be made.
The article posted by the OP is very slanted and quite dismissive of the MSF report without having facts to refute the accusations made by MSF. Here is another article with a different POV. The truth probably lies somewhere in between.
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Rod Robertson.

Well in today's world killing the enemy before he can kill you is considered a War Crime by many individuals.

No problem, GenWinter, I did not take your personal attack as a personal attack.

"First, you have made a "blame the victim" argument.."
Is that "victim" the one that violated the expressed, written, signed and accepted term of the law?

"Second, no doctor would set up a hospital to be a deliberate target…"
Except when they refuse to follow the laws regarding marking for a hospital they operated in a war zone.

"Third, one does not commit a war crime by being attacked…"
Actually, they violated several terms and conditions of the law in hopes getting doctors, staff and patients killed & injured.

"Finally, even if you assume that there was no marking on the roof, I would argue that since the hospital was in operation for 4 years before the strike…"
I appreciate the fact that you admit and agree that they were willfully in violation of the law for at least 4 years.

To that I will add that I stand by the last sentence in my post above:
"It seems only logical that if a law can be twisted one way, it could most certainly be twisted the other."

I'm not so sure that either of us are speaking on a factual basis.

It is all a bit of a moot point. The US won't under any circumstances allow any foreign body, ICC or otherwise, to do anything as regards a serving member of the US Armed Forces and no foreign body possesses the means to force the US to do anything it doesn't wish to. There is zero chance of any sort of international 'war crimes' trial regardless of facts and circumstances.

That said, if after investigation it is determined orders or the ROE were blatantly violated, it is possible the Army or Airforce could institute administrative or, less likely, criminal procedures.

Bottom line … Why would the USAF intentionally kill doctors from MSF ? They wouldn't … There is no tactical, strategic, geo-political, etc. reasons to. It clearly was an accident … If anyone does Not it get that you live in a world of unreality. Blinded by some very rose colored glasses. As I have stated many, many times. If the US/West was not concerned about collateral damage … there would be places on the planet that would look like the dark side of the Moon …

Thanks everyone for your responses. I was away from the computer last night but I will try to address them in order.

Foxweasal: This is a legal problem, not a physics problem. However, I would not argue that only lawyers are qualified to determine war crimes anymore than I would argue that only those who commit homicide are qualified to sit on a jury in a homicide case. I am unaware of any particular insight into war crimes that would be gained by being trained as a bomb dropper that would qualify one as the only authority on the issue. As to whether this concerns me, the editor posted the article and sought comment on it. I commented.

zoneofcontrol: Thanks for responding, though I had hoped you had a more substantive point to make. I had some trouble understanding your response but it appears you have decided to continue with the "blame the victim" approach. Really, that only works if you believed that the US armed forces are some sort of unthinking, violent rabid dog that cannot be controlled and around whom everyone must tread very carefully. Failure to tread carefully and the penalty is death. That is the only way to call the MSF responsible for war crimes for being on the wrong end of an AC130 gunship.

The US armed forces are violent, but they are not unthinking. They may very well be the best military force in the world and even in history. We put bombs and munitions whereever we want to with a precision unmatched by any other country. We have access to unprecedented intelligence. We can listen in to our enemies' (and friends) phone calls in real time, access their computers remotely, even reading their email while they are typing. We can watch our enemies from space and tell when they go outside to take a piss. If we want, we can deliver a missile to them at the same time, anywhere in the world. Given these facts, it is virtually impossible to claim that destroying a non-profit charitable hospital over the course of an hour is an accident.

The MSF did not provoke the strike on one of its hospitals, whether it had a flag on its roof or not. It operated a hospital for 4 years, during the US/Afghan occupation and during the occupation by rebels. It was not a secret. The fourth point that I tried to make was that whether there was a flag or not is irrelevant as to whether a war crime was committed. As a careful reading of my post shows, I did not "admit" anything.

Furthermore, arguing that, in this case, a victim has committed a war crime if they don't follow the rules of the Geneva Conventions is a little disingenuous. Remember, President Bush's administration (through the encouragement of White House Counsel Alberto Gonzales, a lawyer of questionable integrity) has declared it is not bound by the Geneva conventions where their application would be inconvenient to the war on Terror, especially in the treatment of prisoners. As far as I can tell, President Obama has continued this policy. Therefore, arguing that we have the right to bomb hospitals when they don't comply with all of the rules of the Geneva Conventions is not a very credible stance. We have declined to follow the Geneva Conventions and we, unlike MSF, are an actual signatory to the 1949 Geneva Conventions. This means the conventions are part of US law.

Guys, you can still be a patriot and admit that our armed forces (and possibly others) may have committed a war crime. We are people, not saints. We need to punish those responsible to show the world that we are the greatest country in the world. We are a nation of laws, not brute force and thuggery.

I firmly believe the US is the greatest country in the world today because we are a nation of laws, unlike Russia, China, and numerous others. Our military is answerable to civilians and must be held accountable because that is where the strength of our country rests. We have a bill of rights, a constitution, the freedom of information act, and a host of other laws that try to make sure that no one is above the law, not soldiers, not civilians, not rich, and not poor. I recognize that the rule of law has been applied unevenly, especially recently ("too big to fail…") but it is our strength that we keep trying to do right.

Is it hard to be a nation of laws? You bet. Other countries take the easy way out. But that we are willing to be such a nation and show the rest of the world how it should be done.

Who's this 'we'? I'm not American and patriotism doesn't enter into it.

You haven't given any indication, evidence or reasoning for the alleged intent.

Did the USAF knowingly attack a hospital with the intent of killing/wounding civilians? Yes or no?

If the answer is 'No' then there is no war crime. That does not mean that there wasn't incompetence and even criminal negligence and it does not mean that there shouldn't consequences for those involved, but those things do not necesarily equal a 'war crime' as defined under the Hague Conventions.

If you're saying 'Yes', then what was the point? Why would the USAF arbitrarily decide to attack a hospital for no apparent reason? Are you really that deluded?

"Given these facts, it is virtually impossible to claim that destroying a non-profit charitable hospital over the course of an hour is an accident. "

That Sir, is palbable nonsense.

You have the internet, with access to all the world's media. By your logic, you must therefore infallibly know everything that is happening in the world…

Agree Jemina with all you say …

The US armed forces are violent, but they are not unthinking. They may very well be the best military force in the world and even in history. We put bombs and munitions whereever we want to with a precision unmatched by any other country. We have access to unprecedented intelligence. We can listen in to our enemies' (and friends) phone calls in real time, access their computers remotely, even reading their email while they are typing. We can watch our enemies from space and tell when they go outside to take a piss. If we want, we can deliver a missile to them at the same time, anywhere in the world.

Yes all true … but in reality on the battlefield things can still go wrong. Hell … even it training things can go to .

Given these facts, it is virtually impossible to claim that destroying a non-profit charitable hospital over the course of an hour is an accident.

No you are incorrect as many have said. And just to add some credibility here. Foxweasel was in A'stan and was trained to and did call-in CAS. I was an Air Ops Officer in the 101 in the early '80s. I don't mean to pull this card, but what is your expertise on this sort of operation ?

And don't be too blinded what you see in the media about hi-tech. As long as humans are involved happens.

And in any criminal investigation you have to look at motive. Again as many have said here, why would the USAF bomb an MSF hospital ? Or any hospital ?

The USAF killed a number of my countrymen in operations over the least few decades through mistaken attacks on Warrior IFVs, CVR(T) recce vehicles and a US Army Blackhawk. The US Army also joined in the fun by shooting down a Tornado.

By your logic, these incidents were war crimes as they 'clearly should have known' that they were friendlies, not enemies.

Absolute horse-feathers.

Crap happens in war. Mistakes must be investigated, the lessons learned, training and procedures improved and incompetence punished, but intent is everything. The USAF did not intend to kill British servicemen and as angry as we were about those incidents at the time, never for a second did we class them as 'war crimes', because that would be cretinously stupid.

GenWinter,
"zoneofcontrol: …I had some trouble understanding your response…"

un-der-state-ment
[uhn-der-steyt-muh nt, uhn-der-steyt-] noun

1. the act or an instance of understating, or representing in a weak or restrained way that is not borne out by the facts:
The journalist wrote that the earthquake had caused some damage. This turned out to be a massive understatement of the devastation.

link

And, again…
To that I will add that I stand by the last sentence in my post above:
"It seems only logical that if a law can be twisted one way, it could most certainly be twisted the other."

I'm not so sure that either of us are speaking on a factual basis.

Jemima – I think the problem is that the USAF seems to do this kind of thing a LOT.

Mistakes happen, but the USAF seems to make a lot of them – and then makes blatent attempts to cover up their mistakes – like 'losing' evidence and refusing to allow aircrew to testify at a British investigation.

Mistakes will always happen, this much is obvious. However there is a duty for an organisation to work to minimise errors.

The USAF admitted, for example, A10 pilots were not trained to identify allied vehicles – leaidng directly to one spectacular and tragic FUBAR.

In this instance pilots were not told the location of the only hospital in a large city – and incidentally the only one with working electricity.

I doubt the aircrew are to blame, but someone is. The incident reeks of incompetence.

The thing that annoys me isn't so much the mistake, it's the apparent inability of the US military to take it on the chin and man up.

I think the problem is that the USAF seems to do this kind of thing a LOT.

The USAF/USN/USMC/US ARMY generally has more aircraft in it's inventory and more aircraft in the air than anyone else on any given day … And they are trained to be aggressive. As all combat troops are. And as most of us know in war or even in training accidents happen.

it's the apparent inability of the US military to take it on the chin and man up.

The US military has had to take it on the chin and man up since the AWI …

Then why can't they admit they screwed the pooch without blaming the victims?

As happened with Kunduz hospital. As happens whenever they bomb a wedding…….

As I said, man up and apologise. People will respect you more.

If an enemy locates a base next to a school/hospital who is responsible if while attacking the target the school/hospital is hit. The enemy located the base next to the school/hospital because they knew that America would be reluctant to attack. If a bomb did released late or early is the US responsible or the enemy who located the base where they did for it's protection.

Then why can't they admit they screwed the pooch without blaming the victims?

As happened with Kunduz hospital. As happens whenever they bomb a wedding…….

As I said, man up and apologise. People will respect you more.

The POTUS and others have apologized. I saw the report on CNN, etc. … Also the MSF's families are getting solation payments. Which does not bring back the dead, but it is customary, etc. … There is nothing more to do.

I had that as an additional duty when I was in the ROK. Paying the locals for damage caused by our Mech Bn on ops. No one died, save for a few goats the Charlie Co. Mascot killed.

And they never will respect us, the infidel, the Crusader, etc. …

As I said on another thread. stu thinks we are all "real Buck-a-roos" ! He believes the US is full of nothing but gun toting cowboys. From the way stu talks about us Yanks, he actually knows more about America than we do !

The USA is full Root'n Toot'n Cowboys pack'n heat ! Yippee-Ki-Yay Mutha'

[Can you find my quotes from Red October and a couple of Bruce Willis movies !?!? ]

Collateral damage is not a war crime in and of itself. And when combatants hide behind civilians, it's well settled that they may be engaged. Civilian deaths are the fault of the war criminals who hid behind them. Hospitals and the like must be (a) clearly marked; and (b) not be used by enemy combatants. And no, I don't think that apologizing does anything except encourage terrorists to continue to commit war crimes by using civilians as shields.

Also, the laws of war are not a suicide pact. They are designed to protect citizens WHERE PRACTICABLE. These laws are not designed to enable unlawful combatants (like the terrorists) to engage the enemy with impunity because they're hiding behind civilians. Nor do they purport to make warfare, in itself, illegal.

And they are quite harsh. Unlawful combatants may be summarily executed, for instance, after a brief hearing by a battlefield tribunal.

There are many facts in dispute regarding the Kunduz Hospital strike, so it seems premature to claim either a war crime or a tragic accident. What is needed is an inquest into the attack by an impartial body which can discover what happened and what decisions led to the attack. The fact that the US Government is not allowing a transparent and impartial investigating to happen is a great concern. When police discharge their weapon in the line of duty and wound or kill someone, there is an enquiry. That enquiry is not done by the police force itself as that would constitute a a conflict of interest. It is done by a civilian review board or a different police force.

Not in the US.

There is both an internal department review and usually an external investigation by an outside police force. These days, there seems to be an automatic FBI review whenever the person shot was black and the officer shooting was white (but never when that's reversed).

The internal investigation is usually along the lines of "did Officer X follow department guidelines on use of force?"

Again, if the US/West did not care about CD … some places on the planet would look like the dark side of the moon …

If an enemy locates a base next to a school/hospital who is responsible if while attacking the target the school/hospital is hit.

Leaving aside there's no evidence this was actually the case….

… simply put it is the responsibility of the attacking force to notify a hospital (or similar) if it's protection has been deemed to have been compromised by enemy activity. No such warning was given.

And this wasn't a near miss, it was a direct attack.

I agree with Jemima.

It is relatively easy to make a targeting mistake, and then to keep hitting that same target over and over, thinking your hitting the enemy, especially when "allies" are informing you that is the case.

Bangorstu-- the laws of warfare impose no such duty on attackers. Hospitals must be clearly marked and must not be used by enemy combatants. A legitimate military target is not somehow rendered illegitimate because its owners choose to place it next to a hospital. Under the laws of warfare, collateral damage to a hospital located adjacent to a legitimate target is the fault of those who located the legitimate target next to a hospital.

Again, the laws of warfare do not exist to enable unlawful combatants to be immune from attack.

Bangorstu,

You clearly know far more about the subject than me and I must have been imagining it when I sat in a room with at least three A10 pilots doing AFV rec…

Tbeard – the Geneva Conventions make exactly that obligation on attacking forces around hospitals.

So far as I understand it, the USA is a signatory?

Jemima, I seem to recall that snippet being leaked around the time of the Blues and Royals friendly fire inquest – which ruled the pilots were criminally negligent btw.

The fact the USAF did not co-operate in any way with that inquest proves my main point – the USAF is far too unwilling to man up.

Stu,

Yes, that's what happens when you have civilians judging on matters they know the sum total of sod-all about…

The USAF cooperated completely fully with RAF and British Army investigations. No, the US does not subject its military personnel to foreign civilian courts. Nor should the UK.

If you think that identifying types of vehicles from the air is easy, you clearly have never tried doing it.

Agree Jamima … stu you are clearly on the wrong side of this discussion it appears.
And the USAF works for the Commander in Chief, the POTUS. He and many other high level US officials like the Sec Def, have made their sincere apologies as well as solation payments. You won't get a higher level apology than the POTUS in this case … Well next to God, I guess.

And as Jamima pointed out it's not always easy to ID vehicles from the air or even the ground for that matter. In many cases we see US vehicles place brightly colored orange and red VS-17 Panels on top of vehicle or positions, etc. … So aircraft can ID friend from foe. But no system is 100%.

Again as Jamima pointed out, have you ever looked out the door or window of a C-130 or helicopter, etc., in the air ? And try to discern terrain features on the ground, let alone a specific vehicle or building. I'm guessing not …

Bangorstu: I wasn't going to jump back into this thread but I don't feel you need to carry on the discussion on your own.

So, here it is:

Jemima Fawr – my reference to "we" was directed to the majority of the readers of this blog, it was not to slight you. I knew you were a Brit and my comment about British common law was supposed to be a polite recognition of the significant contribution Britain has made to world civilization. But I am not qualified to comment on what the government and citizens of the UK may believe or think. Sorry if my comment missed its mark.

I also wanted to make it clear that I am not setting myself apart from other Americans responsible for this action which is why I did not say "they." It was an American plane, American spotter(s), American aircrew. I am an American, no better or worse than those who carried out this act and, to the extent all Americans may have responsibility for this action, I carry my share of the blame.

Jemima Fawr, Legion 4 and others attacking the credentials of anyone who disagrees with them. It doesn't matter whether you sat in the same room as a pilot or not. Nor does it matter whether you have actually called in a strike. That would be like saying you are an attorney because you watched Perry Mason on TV. What matters are the facts surrounding the actual incident and whether they give rise to a war crime.

As I said before, this is a legal question, not a physics problem. You may be experts in how it is done and that may be helpful to a tribunal. At best, since you are not eye witnesses, you can only offer "expert opinion" on the mechanics of how a strike is done. But don't read too much into the word "expert." There are two kinds of witnesses in a case – eyewitnesses and experts. If you didn't see it, then you are an expert witness. It doesn't mean you necessarily have superior knowledge about guilt or innocence. That is for the tribunal to decide.

If it was an accident, then one should have no fear of the tribunal. Please spare us the "can't get a fair trial" argument. Every defendant says that and there are processes for determining whether that is true or not. Are they perfect? No. But as an argument to avoid charges entirely, it is nonsense.

There are many damning facts in this case for which a reasonable inference can be made that a war crime has occurred. US and Afghan forces occupied the town for years while the hospital was in operation. The US has access to extensive intelligence services (as set forth in one of my previous posts). This means that knowledge of the existence of the hospital can be credibly attributed to both US forces and Afghan forces. I am sure that the MSF does not encode its communications. They are an NGO and a charity. Publicity is their thing. They don't hide. Also, if the link posted by Rod Robertson is correct (and I have no idea if it is) then we had at least one man on the ground, close enough to paint the hospital with a laser targeting device. If we can put people on the ground close to the target, we can certainly ascertain whether it is a hospital or whether it is marked or whether there are enemies nearby.

Regarding intent. At least one of you argued that there has to be a showing of intent to bomb a hospital and intent to kill patients, doctors, and medical staff. I do not know the legal standard applied by the ICC. However, as a matter of law here in the US, it can probably be inferred that if you bomb a hospital, you intent to kill patients and medical staff. There is no way to use a AC130 gunship on a hospital any other way, especially when you send it over the target four times. Compared to some of our other munitions, it is a crude and clumsy weapon that dates back to the Vietnam era (Remember "puff the magic dragon" – the first gunship?) It is not a precision weapon in the sense that a Hellfire missile is. Messy mass death naturally follows an assault by an American gunship.

I know something about intent. I successfully argued to the Colorado Court of Appeals that a bar that served numerous B-52s and beer to an underage woman over 3 hours was not liable for the injuries sustained by her passenger when she drove off the road on the way home. The case revolved around whether the statutory language "willful and knowingly" required actual knowledge that the woman was drunk and/or whether she was a minor. I won the case and the bar did not have to compensate the injured party. See Dickman v. Jackalope, 870 P2d 1261 (Colo. App. 1994) (you can find it in Google Scholar) (I was a very young man at the time and have since mended my ways – no more defending corporations for me).

The bar denied knowledge of her age or the amount she drank (despite serving at least 6 B-52s and numerous beers over a three hour period). All defendants deny actual knowledge. Even the injured plaintiff in the case denied that he knew she was drunk or that she was under age. He was trying to pick her up and he was not about to go on the record stating that he was trying to get a minor drunk and sleep with her.

Actual knowledge is hard to prove. I don't know the ICC standard for intent to commit a war crime but there is virtually no defendant on earth that will admit that he or she intended to commit a war crime any more that a bar will admit it knowingly served a minor. Circumstantial evidence is the only evidence that will be available and it would have to be reviewed by a tribunal in light of whatever statutes or case law the tribunal applies. But you don't have to prove intent before charging someone with a war crime. You probably have to prove intent in order to convict.

Some of you have argued that there is no motive for the US to kill hospital staff and therefore, it is not a war crime. That is very speculative. So far, the DoD has not offered any official reason why it attacked the hospital. Ultimately, however, who cares. Lack of a motive does not mean that a war crime did not occur. We don't care why Timothy McVey set off a bomb in front of the Federal Building in Oklahoma city. We just care that he did it. (I know it is not a war crime as such but it is the civilian equivalent, although applying a different legal standard).

Guys, I know this is upsetting, especially to present and former members of the armed forces. It is too easy to see a charge of war crimes against a member of the armed forces as a showing of weakness. I would argue, however, that proper investigation of this incident and trying to do the right thing are what make this country (and other Western countries) civilized leaders of the world. It is our strength, not our weakness.

I am an American, no better or worse than those who carried out this act and, to the extent all Americans may have responsibility for this action

What are you talking about ? If there is guilt, you're judging and passing sentence on all Americans. It's like passing judgement on all molsems because today most terrorists molsem.

Jemima Fawr, Legion 4 and others attacking the credentials of anyone who disagrees with them. It doesn't matter whether you sat in the same room as a pilot or not. Nor does it matter whether you have actually called in a strike. That would be like saying you are an attorney because you watched Perry Mason on TV. What matters are the facts surrounding the actual incident and whether they give rise to a war crime.

Not attacking other's credentials but credibility … I have not just watched how ops like this works. I was trained as an ARMY Air Ops Officer and graduated for USAF JFCC/AGOS. Which included the AC-130 as a topic with hands-on training. And I ran air ops. Not to mention my time as a Rifle PL in the 101. A lot of experience was gained in those duty assignments. Am I an "expert" ? No … but very experienced … But you have to admit, more of an "expert" than you or stu, yes ? And yes, none of us were there … but some us have a pretty good working knowledge of how this type of ops works, yes ?

Compared to some of our other munitions, it is a crude and clumsy weapon that dates back to the Vietnam era (Remember "puff the magic dragon" – the first gunship?)

Yes, but today's AC-130 is much more accurate and high-tech than the Vietnam era AC-47.

Guys, I know this is upsetting, especially to present and former members of the armed forces. It is too easy to see a charge of war crimes against a member of the armed forces as a showing of weakness. I would argue, however, that proper investigation of this incident and trying to do the right thing are what make this country (and other Western countries) civilized leaders of the world. It is our strength, not our weakness.

What is upsetting is that you are seeing this as a lawyer and many of us are seeing this as a soldier/pilot. We know those two perspectives don't always mix. And the current terrorist enemy uses our strengths, our humanity, etc., against us. We can't always do anything about it.

Some of you have argued that there is no motive for the US to kill hospital staff

IIRC, if a crime is allegedly committed, you need Motive, Intent, and Opportunity. As a former Private Investigator I have been to court and have a minor working knowledge of such things. But I'm no where near an expert. As you being a lawyer supposedly are, yes ? What is the Motive and Intent of the USAF to kill MSF personnel, Counsellor ?

It's like you telling me and those like me how we are to do are jobs. Having never been in our boots. We all know the ROE, etc. … We don't even attempt to think to tell you how to be lawyer, Yes ?

I want this to be considered a war crime.

I really want this to be considered a war crime.

I really, really want this to be considered a war crime.

I really, really, REALLY want this to be considered a war crime.

There's your proof. This was definitely a war crime!

If just saying something 5 times makes it come true ?

Sophia Vergara … Sophia …