"Mistakes are not war crimes" Topic

Suddenly I understand!

Bill our editor in chief has created this board and this thread in particular so he can attract to fight among themselves and so become exhausted.

Thereby leaving the other [including a new shiny board] for gamers to talk about games.

A bit like the man in the beer garden who deliberately spills some beer for the flies then proceeds to enjoy his pint.

Fiendishly cunning.

Legion – under UK law the Coroners' investigation is merely there to establish what happened.

The US refusal to participate is widely seen as evidence of the contempt the US has for allies and its desire not to allow people to uncover the truth about what happened.

As it was, the Coroner found the British servicemen were unlawfully killed.

The USAF investigation agreed broadly with that conclusion and recommended disciplinary action…. which never happened….

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

Lion in the Stars:
I stand corrected. What I described was the process in most of Canada. I guess I just assumed the USA was the same. Silly me! But the US is moving in this direction as New York State is appointing a special (civilian) prosecutor to investigate all fatal police shootings in the future and is the first state to do so apparently.
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Thanks for setting me straight on this.
Rod Robertson

An enlightening article here:
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This reminds me of the "accidental" bombing of the Chinese Embassy in Belgrade during the NATO bombings of Serbia. A very convenient accident after which no impartial investigation was held. No intent was proven so no legal consequences ever followed.
Rod Robertson.

A somewhat slanted but nonetheless detail-rich article here:
link

For an act to be a war crime, there must be a *wilful* or *wanton* violation of international law. This can happen in several ways. A soldier commits a war crime if he intentionally targets (say) a hospital (that is properly marked as such and that is not being used by the enemy as a fighting position or for recon, etc.). Or, a general orders that hospitals are to be attacked regardless of whether they are marked and regardless of whether they are being used by the enemy for combat/recon. The order violates international law and can result in the commission of a war crime.

A simple accident, without the element of *intent* above, is not a war crime.* Remember, the laws of warfare are explicitly designed to NOT give unlawful combatants an advantage.

*As in most sensible legal systems, intent will be inferred if an an act is sufficiently reckless. The general's order above would be an example. He would not get to defend himself by saying "I had no specific intention of destroying an illegitimate target when I issued that order."

Bottom line--accidents are not war crimes.

Legion 4…

I tried saying Sophia Vergara five times…no luck.

tbeard… Certainly I doubt the gunship crew are guilty.

Whether the upper echelons of command are – and negligence must surely count – is another matter entirely.

Thanks for your responses. I will limit my response to Legion 4 since his post is the clearest and gives me something to respond to:

On the use of we vs. they. If I used "they" "them" and other third party pronouns, I would be vulnerable to a charge of setting myself up as better than those responsible. I wanted to avoid that debate so I said "we". I guess I was unsuccessful since I am explaining it again.

On the term "expert" – Legion 4, you are an expert because (1) you were not a witness and (2) you have information that might be useful to the tribunal. Believe it or not, that is all an expert witness is in the United States. You are raising issues regarding the quality or "competence" of your expertise. I cannot judge that but you seem to have everything required to be a competent expert with respect to the military aspects of this matter. I can't imagine any tribunal excluding you from testifying at trial based on the information you have posted.

Remember, this is a two edged sword. I am not a prosecutor, but I could see a prosecutor taking your expertise and turning you into a great witness for the prosecution, simply because you have so much knowledge about the procedures of the United States armed forces in activities like this. The few articles I have read on this matter suggest that this incident is an excellent example of military competence. I don't think anything went wrong with the operation at all. It was planned and executed successfully. It achieved its goals. The problem was what were the goals of the mission?

There are complaints that I am taking a legal position on this and you guys are taking the military position (I may not have phrased that right but you know what I mean).

I am taking the legal position because Colonel Petruchia's is making a series of legal arguments. He is not making factual arguments. In fact, he is trying to use a variation on a rhetorical method that is taught in law schools. He just isn't doing very well. In my law school it was called IRAC (Issue, Rule, Application of Facts, Conclusion). It is an excellent way of talking to other lawyers, tribunals and judges and it can be useful in non-legal contexts. I am told that a similar method is taught in other professions but I have not seen any examples.

Some of you have challenged me to claim to be a legal expert in war crimes merely because I am a lawyer. I have repeatedly said that I am not an expert in ICC or the legal standards for ascertaining a war crime. I have also said that we (you and I) do not have to be legal experts to comment on whether this appears to be a war crime. The law should not be arcane and inaccessible to the people. It should be understandable for all.

Furthermore, most lawyers are not really experts. That is why they hire experts. Lawyers are experts in taking a body of law, whether case law, statutes, regulations or codes, and applying it to a set of facts. I am not an expert in signage yet I have represented a business charged by the city with having a non-conforming sign on his building. I am not a expert in evictions, but I have represented a landlord in an FED. I am not an expert in injuries but I have represented a client in a personal injury case. You get the idea.

For those of you who still take the position this is an accident, I respect that position. However, it appears to be a more and more difficult position to maintain, especially if some or all of the facts alleged in articles Rod Robertson linked to are true. Yes, I am well aware of the bias of Democracy Now! so I don't really want to debate the credibility of the source. If those facts are confirmed – two 9 ft flags on the roof the day before the assault for example – then the accident argument gets significantly weaker.

Legion – under UK law the Coroners' investigation is merely there to establish what happened.

The US refusal to participate is widely seen as evidence of the contempt the US has for allies and its desire not to allow people to uncover the truth about what happened.

As it was, the Coroner found the British servicemen were unlawfully killed.

The USAF investigation agreed broadly with that conclusion and recommended disciplinary action…. which never happened….

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

No matte what I say stu you will reply the opposite. And to many no matter what the US does it will not be respected. Not only by Daesh, AQ, etc., but those who have a similar out look to yours. And with all the US has done in the + column no matter we do we will be held in contempt by many …

This reminds me of the "accidental" bombing of the Chinese Embassy in Belgrade during the NATO bombings of Serbia. A very convenient accident after which no impartial investigation was held. No intent was proven so no legal consequences ever followed.

Again, what would the intent and motive for the US to bomb the Chinese in Serbia ? During that conflict …

Genwinter-- I'm a lawyer too and, like you, I'm not an expert in international law. I did take the course in law school, but that wa a depressingly long time ago.

As you say, it *appears* to you that the facts suggest that this was not an accident. You note the bias of a fact witness, yet for some reason you "don't want to debate the credibility of the [witness]". Sorry, but the credibility of a fact witness is of supreme importance, isn't it?

Nor do I find much merit in your bald statement that Col Petrucia "isn't doing [IRAC] very well." I found his arguments reasonable and persuasive. I also note that, contra your argument, he makes numerous factual allegations in his article --

"Overhead imagery provided by Terraserver, dated April 2015, reveals that at that time the hospital building was not marked with internationally recognized symbols as a medical facility. The involvement, if any, by the International Committee of the Red Cross in facilitating recognition of the hospital is undetermined. Similarly, there is no widely disseminated video evidence in the public domain that shows any indications that the hospital was marked as such, from any viewpoint, such that its nature might be determined by any combatants."

This paragraph is filled with factual assertions. The problem here is that many of those arguing your (apparent) side appear to want a "directed verdict" in the case of *any* attack that harms anything that they assert is not a valid target.

Of course, international law and the laws of warfare have no such provisions. Civilian sites being used by combatants are legitimate targets. Civilian sites in areas where combatants are operating must be clearly marked as such. And if they are being used by enemy combatants, they are not protected.

Finally, as I noted before, war crimes must be "wilful" or "wanton". A mistake, by itself, fails that requirement.

No one is arguing that an intentional strike on a hospital that is (a) clearly marked; and (b) that the attacker has no reasonable basis to believe is being used by attackers is not a violation of international law.

The argument is whether the strike was:

(a) made against a legitimate target (likely in my opinion given the propensity of unlawful combatants to commit war crimes by hiding among civilians);

(b) a mistake (maybe/very likely in my opinion); and

And then, (c) whether mistakes are war crimes (no).

Everyone should bear in mind that international law is *not* particularly similar to American/UK civil law. And it is *not* at all friendly to unlawful combatants. Note, for instance, that unlawful combatants may be summarily executed if determined to be unlawful combatants by a competent tribunal. On the battlefield, 3 soldiers can constitute a competent tribunal. So it's not at all like US civil or criminal law.

And by the way, will those who *insist* on punishing purported US war crimes also be as supportive of executing unlawful combatants? After all that is perfectly legal under international law…

On the term "expert" – Legion 4, you are an expert because (1) you were not a witness and (2) you have information that might be useful to the tribunal. Believe it or not, that is all an expert witness is in the United States. You are raising issues regarding the quality or "competence" of your expertise. I cannot judge that but you seem to have everything required to be a competent expert with respect to the military aspects of this matter. I can't imagine any tribunal excluding you from testifying at trial based on the information you have posted.

I understand your points here. However, IMO, since I was not there, I do not think I am an "expert".

Remember, this is a two edged sword. I am not a prosecutor, but I could see a prosecutor taking your expertise and turning you into a great witness for the prosecution, simply because you have so much knowledge about the procedures of the United States armed forces in activities like this. The few articles I have read on this matter suggest that this incident is an excellent example of military competence. I don't think anything went wrong with the operation at all. It was planned and executed successfully. It achieved its goals. The problem was what were the goals of the mission?

Again, I was not there, but from my past experience and I'm no expert. However, the AC-130 was there to provide support for the forces on the ground as needed. That is SOP for this type op.

For those of you who still take the position this is an accident, I respect that position. However, it appears to be a more and more difficult position to maintain, especially if some or all of the facts alleged in articles Rod Robertson linked to are true. Yes, I am well aware of the bias of Democracy Now! so I don't really want to debate the credibility of the source. If those facts are confirmed – two 9 ft flags on the roof the day before the assault for example – then the accident argument gets significantly weaker.

Regardless, in both situations, in Serbia or Kunduz, what is the real proof of any motive and intent ?

Finally, as I noted before, war crimes must be "wilful" or "wanton". A mistake, by itself, fails that requirement.

I think that says it all …

tbeard1999

Genwinter-- I'm a lawyer too and, like you,

tbeard is much more capable then I to debate this. As it appears, it comes down to lawyer vs. lawyer. Just like on TV's Law & Order, etc. …

Legion 4…

I tried saying Sophia Vergara five times…no luck.

Tell me about it ! If she showed up at my door, I wouldn't be wasting my time with all this !

I'd add that there are a great many misconceptions about international law. I recall when the US captured unlawful combatants, various commentators stridently demanded that the US treat them according to US law. Had I been representing these unlawful combatants I'd have been yelling "please stop helping me now".

Because, as I noted, the US would have been perfectly within its rights to summarily execute them. I guess word got around, because those demands died down pretty dramatically.

(This principal was confirmed at the Nuremburg Trials. In one case, SS officers who summarily executed Yugoslav partisans were acquitted because the partisans were unlawful combatants.)

The general rule is that those who obey the laws of warfare get the protections of the laws of warfare. Those who disobey the laws of warfare lose those protections.

<shrug> Seems reasonable to me…

I would also add that the laws of warfare have a requirement that attacks causing collateral damage must be "proportionate". This is a very low bar as the Allied strategic bombing campaigns in WW2 and the use of atomic weapons on Japan were legal.

Legion 4:
That is the key question isn't it and that could be explored and possibly answered by an impartial enquiry. I have no concrete information to make a judgement or even an educated guess as to the decision making process which led to the attack at Kunduz. We are all operating in a vacuum of information here and should wait until more reliable information emerges.

My comment about the Chinese embassy was more to do with the stonewalling of the USAF in the aftermath of the Belgrade bombing than the actual bombing. The combination of changing explanations and refusal to properly investigate rings alarm bells but is not proof of anything except ineptitude and an arrogant perception of unaccountablity to the international community and the American citizenry.
Rod Robertson.

Rod--

Or, such conduct is the typical and predictable reaction of government bureaucrats everywhere. And the larger the bureaucracy, the greater the tendency to act this way.

Tbeard1999 and Legion4:
Read this and tell me if you see parallels emerging from the Kunduz attack over the next few months.
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Rod Robertson.

Rod, I think tbeard's reply is what I would have to agree with. And he said it much better than I

USAF in the aftermath of the Belgrade bombing than the actual bombing. The combination of changing explanations and refusal to properly investigate rings alarm bells but is not proof of anything except ineptitude and an arrogant perception of unaccountablity to the international community and the American citizenry.

Those perceptions will continue regardless what the US "bureaucracy" says or does. To go on a "witch hunt" will be only adding fuel to the fire of worldwide distain for the US. Which regardless of what some may say, there are many on the planet that dislike the US. For a variety of reasons. Regardless of what we do. I get that, I understand that. It is what it is …

I find it difficult to imagine how any rational person would think that intentionally bombing the Chinese embassy FOR NO GOOD REASON would be a Good Thing.

Seriously? "Let's bomb their embassy in *Belgrade*; that will back 'em down…"

Such accusations tell us far more about the accuser's politics than anything else, I think.

Now…if we had strong evidence showing that the Chinese embassy was being used to help the Yugoslavs, then I think became a legitimate target and destroying it was a valid response.

Rod, though the article IMO has some of speculation. If in fact the Chinese were giving information to the enemy ADA units ? Which in turn may have caused a shoot down of a US F-117. Or threaten any other NATO aircraft.

As we know the PRC is always trying to obtain US tech from any sources. They paid local Afghanis for debris from some of the US "smart" bombs, etc.. That was dropped on AQ, etc.. As they hoped would yield some intel which they could copy, etc. … The same could be likely said about the PRC obtaining F-117 debris.

So if the US did play "dirty" because of the PRC's known predilection for stealing US high tech, etc. Then IMO, the strike could have been in response to this. It shows the "Realpolitik" of the situation. And could be said, the strike was called for. As tbeard mentioned. We all know what goes on behind the curtain is always not for public consumption. Plus Always remember OPSEC.

But why would the USAF knowingly bomb a MSF hospital ? I can't come up with any logical reasons ? Anyone else ?

The US government and the USAF claimed the Chinese embassy was an accidental bombing despite George Tenet (then the director of the CIA) admitting to an in camera Congressional inquiry that the mission was a CIA directed mission, that five missiles had been used and that all had hit their target. The US Government may have had good reasons to attack the Chinese embassy but the attack was intentional and not accidental. So the USAF and the US Government lied about the embassy bombing which was NOT accidental. If they lied in 1999 it is not inconceivable that they would lie in 2015. This is why there needs to be a full and impartial enquiry into the Kunduz bombing. That is the only way the command structure and the AC-130 crew can be exonerated for war crimes or negligence or whatever charges are leveled against them.

It's common in wartime for governments to make statements and pronouncements that are at odds with the truth. It seems self-evident to me that there are any number of valid reasons to do this.

Therefore, I don't see what use this fact is to us. Is it possible that a government may lie (or withhold evidence) to the public? Yes. Uh, so what?

And I wonder if those on the other side of this debate are as skeptical of government pronouncements in other areas, such as economics, healthcare, the environment, etc.?

tbeard1999:
Well, your dismissal of the need for truth in times of war seems to indicate that you are not that interested in whether the Kunduz strike was accidental or intentional. However others are interested and will continue to demand that an impartial and effective enquiry be held to determine as best as possible what really happened. The slaughter of 44 people and the injury of over 100 others in a wedding in July of 2002 and the Kunduz raid of 2015 may have been unintentional accidents or intentional acts. That is what enquiries are for, to determine the facts based on the best evidence and to let light shine on the shadows of modern military methods. If the US electorate is to be an informed electorate which can hold its leadership responsible and accountable for the decisions and acts their representative make, then such enquiries are not only vital to public confidence but also to democracy itself.
Rod Robertson.

Motives for an alleged intentional attack discussed here:
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and here:
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Rod Robertson.

Rod -- I just don't care about speculation from questionable sources (that have profound anti-US biases). At BEST, this amounts to a "swearing contest" and I'm quite content to give the benefit of the doubt to the US military.

As for my purported dismissal of "the truth" during wartime, well, I,thought that it was self-evident that there are any number of perfectly reasonable reasons why militaries, during wartime, might not tell the truth publicly. If you cannot understand why, well since I do not have the patience to walk you through it, I guess there's nothing for us to talk about.

And as a member of the US electorate, I assume that as long as unlawful combatants hide behind civilians, then civlians will die. I place the blame for their deaths on the unlawful combatants. Which is where international law places it.

I wonder -- what do you think should be done to unlawful combatants who hide behind civilians during combat? Does your answer change if civilians die as a result of the unlawful combatants' war crimes?

Yes, governments lying about certain classified combat missions is SOP. Sorry Rod, it's not always a nice world out there.

The first link is from World Socialist Website Rod !?!? They are not really a reliable source, IMO. Seems like more conspiracy theories ? Why would SF and USAF kill all those MSF just to kill a handful of Taliban ? Does not sound logical to me ?

The second link … sounds like more conspiracy theory, Rod. Yes, I'd think if you got the chance to kill a high value target or targets. The US may be willing to take the risk of CD.

And as Genwinter said on another thread, about US causing CD, "those people didn't ask to die". And my reply will be similar, nor did those at the World Trade Center, Nairobi, Paris , etc. … This war stuff can be pretty nasty. We can only limit the damage of certain aspects of offensive actions during an asymmetrical conflict.

Legion 4:
Yes, the first link was a Socialist website. The story explained and integrated well disparate items reported only superficially in other News reports. I am not asking anyone to buy into any one source or even a group of sources. I am saying we do not know what has happened and given the track record of deception displayed by the US Government on many military matters in the past 20 years, it might be a very good idea to have an impartial and effective enquiry to get to the roots of what happened in Kunduz. The American citizenry has a right to know what their military and intelligence agencies are doing on their behalf.
tbeard1999:
The problem with Kunduz seems to be there were no unlawful combatants (except those incapacitated by wounds and in the hospital as patients) so the civilians were not shields for any identifiable group. The hospital was marked on US and coalition/NATO maps as a forbidden target, it was located by GPS and by a three meter "flag" on the roof. The MSF and local staff said there were no combatants in or around the buildings in the complex. A US Army Green Beret FAC painted the target for identification. So on the basis of these few facts there is plenty of grounds for questioning the various versions of events claimed by the US Government. There are clear grounds for an inquest and that inquest should be conducted by an impartial body.
In the event that combatants (lawful or unlawful) use civilians as shields the combatants should be killed or captured and then if they survive should be held accountable in trials after the fact. However, this does not release the attacking force from its responsibility to minimize civilian losses so if the attackers use wanton violence or are negligent then they should be accountable too.
Rod Robertson.

Several grocery stores in my area are running Thanksgiving specials this week on tin foil. I hoping and hoping that there is still some left on the shelves for me to get and use on Thursday's dinner.

youtu.be/7RbVj1qLl7I

Legion 4:
Yes, the first link was a Socialist website. The story explained and integrated well disparate items reported only superficially in other News reports. I am not asking anyone to buy into any one source or even a group of sources. I am saying we do not know what has happened and given the track record of deception displayed by the US Government on many military matters in the past 20 years, it might be a very good idea to have an impartial and effective enquiry to get to the roots of what happened in Kunduz. The American citizenry has a right to know what their military and intelligence agencies are doing on their behalf.

As long as it does not violate OPSEC or puts our forces at a bigger risk, etc., then the man on the street really does not need to know. Not only would some release of operational secrets be a risk, but methods also. Bottom line … Don't make things harder for the intel and military to do their jobs. It's hard enough.

The first duty of any Republic is to protect it's populous. The populous does not always need to know how, where, why, etc. the troops in at front are running ops. Because that release of information could make their job and survival more difficult than it already is. To quote G. Orwell : "People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf."

An impartial inquiry may revel these operational techniques, etc., we do not want the enemy(s) to know. Again, as we all know, to paraphrase Sun Tzu, "All war is a matter of deception".

Besides, if you asked the average American what they think about Red China. They'd say it goes well on a red table cloth …

As far as Kunduz, I can't imagine what MSF docs would be doing to make them the intended target of the USAF/SF ? Again, Motive and Intent …

ZOC … you didn't use this icon :

But what about the lizard people?

Legion 4 -- I tried saying "Sophia Vergara" five times again. <sigh> Doesn't work on weekdays either.

I know brother … I know …

Legion 4:
Grenier, not Orwell.
link
Rod Robertson.

Sorry Rod, I found this on line …

People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

George Orwell

Read more at link

I've heard it attributed to Orwell from other sources as well.

And just saw on CNN, USAF just released a 3000 page document about MSF and Kunduz. And it backs up what most of us are saying here. It was a tragic error and outlined the reasons … including commo problems with the AC-130. And at the news conference the USAF repeatedly said how sorry they were for this tragedy. And as I said, the POTUS, SEC DEF and other members of the US government and military have apologized as well previously. Plus the solation payments … But of course neither will bring back the dead … unfortunately … War can be a very messy business.

Of course some here will not believe the report. But I still can't find any motive or intent for the USAF to purposely kill the MSF personnel.

Unless you are wearing a or blatantly anti-US … IMO …

So, has anyone lost thier job over this?

Or will the USA follow SOP and promote/ decorate the idiot concerned?

Legion 4:

There is no substantive evidence that George Orwell who died in 1950 made this remark. The earliest known matching statement appeared in a column in the Washington Times newspaper written by the film critic and essayist Richard Grenier in 1993: 1 2

As George Orwell pointed out, people sleep peacefully in their beds at night only because rough men stand ready to do violence on their behalf.

It is important to note that Grenier did not use quotation marks around the statement of the view that he ascribed to Orwell. QI believes that Grenier was using his own words to present a summary of Orwell's viewpoint. Later commentators placed the statement between quotation marks and introduced various modifications to the passage.

This is a known mechanism for the generation of mis-attributions. Person A summarizes, condenses, or restates the opinion of person B. At a later time the restatement is directly ascribed to person B.

From the following site:
link
Rod Robertson

To be fair, the US have suspended the officers concerned.

I'd like to think this is a career ending incident.

Manouverschaden!!!

Yeah, it was a pain in the butt. But APCs, etc. can do a lot of damage … accidently …

There is no substantive evidence that George Orwell who died in 1950 made this remark.

Well Rod, just goes to show ya … you can't always believe everything you read, see or hear.

Didn't Mark Twain say, "If you don't read the newspaper you are uninformed. And if you read the newspaper you are misinformed …" Of course if I'm wrong in that quote, I'm sure you'll tell me !

So, has anyone lost thier job over this?

Or will the USA follow SOP and promote/ decorate the idiot concerned?

Once again, you were not there. And if you read the highlights of the report. It was an accident. The ground element called it in. The target was mis-ID'd. And it was believed that a building near by was occupied the Taliban. The there was commo problems. Which anybody who was in the military knows commo goes out at the worse possibly time. And it just got worse until everything got sorted out.

There was no "idiot" involved, just Murphy. Don't think you could polish the overall commanders' boots. But they don't polish boots anymore … So in either case, that is a valid comment.

To be fair, the US have suspended the officers concerned.

I'd like to think this is a career ending incident.

Yes, those officers suspended probably will not get promoted or awarded any medals. happens. You now have your pound of US flesh …

In Jean Larteguy's novel, "The Centurions" link … There was a saying, "In battle death sanctions all faults." That applies to many situations in a combat zone … I'd think …

Accident?

It was negligence – the crew took off incorrectly briefed, failed to correctly identify the target and opened fire anyhow.

This was an "accident" waiting to happen due to people not bothering to follow protocols which are there for a reason.

Legion 4--

Wouldn't it be great if the folks demanding the sacrifice of these US soldiers had as much enthusiasm for punishing the unlawful combatants?

"This was an "accident" waiting to happen due to people not bothering to follow protocols which are there for a reason."

You mean that thing about MSF adamantly refusing to mark their facility as a hospital?

Initial reports were of confusion by control, air and ground assets about those responsible for the calling in of fire on the facility.

On the other hand MSF publicly admitted to attempting to contact military officials. Further, undeniable proof of their guilt of war crimes for calling "broken arrow" on their position.

Who was it that said? –
"It seems only logical that if a law can be twisted one way, it could most certainly be twisted the other."

You mean that thing about MSF adamantly refusing to mark their facility as a hospital?

They told what is allegedly an advanced military where it was, told them they were under attack, lit the place up like a Christmas tree and, for good measure, flew a MSF flag.

What more could they have done?