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Massacres Part 2: The Consequences

If you missed Part 1 yesterday, click here.

The current unpleasantness in Afghanistan is said to be “the longest war in U.S. history.” I beg to differ, while still admitting that 2001 to 2015 is a long time to fight a country living in the 16th century.

Counting only the shooting part, the U.S. war on the indigenous peoples of North America began when the states united as a nation in 1788 and ended with the Wounded Knee Massacre in 1890.

What they called massacres in the Indian wars we call war crimes today. There have been customary rules of war since Biblical times. Treaties started working on it with the first Geneva Convention in 1864 and continued all the way to the 2008 Convention on Cluster Munitions.

It’s not hard for those of us in the Chairborne Corps to make up rules from the cheap seats. It’s harder to get any regard for rules in the exigencies of combat and it’s not even a sure thing to get enforcement against the losers after it’s over.

One of those shining moments of history when the U.S. lived up to American exceptionalism was the aftermath of WWII, when FDR, over the objections of both Stalin and Churchill, engineered the Nuremburg Tribunals, actually putting people on trial for, among other things, war crimes

As a result of Nuremburg, the duty to disobey unlawful orders is part of U.S. military training. As a result of Nuremburg, some if not all of the perpetrators of the My Lai Massacre were put on trial for war crimes in Vietnam.

As a result of Nuremberg, there is now an international tribunal devoted to prosecution of genocide, crimes against humanity, and war crimes. The fourth crime named in the Rome Statute of the International Criminal Court is “aggression,” and prosecution for that crime will become possible when the signers of the treaty can agree on defining it.

The United States, briefly a world leader in war crimes prosecution, is not a signer of the Rome Statute. Bill Clinton signed it, but before it could be ratified, George W. Bush withdrew the U.S. signature. There have been a number of war crimes allegations from the U.S. invasions of Iraq and Afghanistan, but the one in the news right now is in a class by itself.

The U.S. bombed a hospital in Kunduz, Afghanistan run by Medecins Sans Frontieres (MSF or Doctors Without Borders). The strike on the hospital went on for over and hour and killed 13 known staff and 10 known patients, three of them children. One staff member and two patients are missing and considered probably among the seven bodies burned beyond recognition. Thirty-seven others were injured. Nationalities were not specified, but hospital staff were from France, Australia, Cuba, Malaysia, Hungary, South Africa, and The Philippines.

The attack took place on October 3. All parties had acknowledged receipt of the GPS coordinates of the hospital. On October 2—one day before the attack---two MSF flags were placed on the hospital roof, adding to the one at the front gate.

During the latest round of fighting, the hospital had treated 137 patients, including 26 children. Normally, most Afghan patients were working for the government. Recently, more Taliban were being treated. Military insignia are destroyed when patients come in so these are the impressions of the staff. The origins of the patients are not recorded and since the opening of the hospital all the belligerents have been notified that no weapons are allowed in the hospital compound and have agreed to that condition.

In spite of the hour of the attack, about 2 am, two of the three operating theatres were in use. At least one aircraft was loitering over the burning hospital and spraying would-be escapees with automatic weapons fire. The very next day, October 4, Military.com carried a story that claimed the attacking aircraft was an AC-130 gunship flown by the U.S. Air Force.

The first reaction of the U.S. military referred to the medical facility as “collateral damage.”

The next day, military spokesmen agreed that the MSF facility was not collateral damage. It was the target, because U.S. troops were said to be taking fire from the hospital.

The day after that, it was Afghan troops taking fire from the hospital.

Another day later, Gen. John Campbell testified before Congress that the decision to launch warplanes was a mistake made within the U.S. chain of command.

President Obama called Dr. Joanne Liu, president of Doctors Without Borders, to apologize for the bombing and assure her that the U.S. military would investigate itself right away, so we would know which of their four stories is the truth.

The Washington Post’s David Ignatius was discussing the U.S. attack on Morning Joe. MSF was and is demanding an investigation of war crimes by a neutral third party rather than relying on the Defense Department, and Joe Scarborough asked if there was “any evidence” of a war crime? Ignatius answered, “None.”

That’s not exactly so.

MSF said the attack continued after they notified both U.S. and Afghan forces that it was happening and their subsequent report documented the contents of 17 communications going both ways between MSF and allied command centers.

Some of the messages to MSF in Kabul by the command center of Operation Resolute Support:

“I’m sorry to hear that. I still do not know what happened.”

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“I’ll do my best. Praying for you all.” 

MSF claims the main hospital building—where the patients were---was targeted, leaving the rest of the compound largely unscathed. The updated AC-130s carry “smart bombs.”

At the time Ignatius claimed “no evidence,” U.S. commanders had responded that the hospital may have been “collateral damage” but Afghan commanders had claimed coalition forces targeted the hospital because they were taking fire from it. MSF denied that any fighters were present and MSF, winner of the 1999 Nobel Peace Prize, has more credibility than any government.

Think what you will about whether there was a war crime; “no evidence” is simply not true.

President Obama, who has been raked over the coals during his entire time in office for admitting that the U.S. is not perfect, something his enemies morphed into an “apology tour,” really did have something to apologize about this time, but MSF still wants an investigation by a neutral party.

After Dr. Liu of MSF was aggressively cross-examined by several media outlets about who would satisfy her idea of neutral, she nominated the International Humanitarian Fact-Finding Commission, a body set up in 1991 under a protocol of the Geneva Conventions that neither the U.S. nor Afghanistan has signed. The protocol requires that none of the investigators be from a country involved in the conflict and that all belligerents give consent to the investigation. Not surprisingly, the Commission has never been used.

In response to this contretemps, I went looking for the source of the aphorism that seemed appropriate: “In war, truth is the first casualty.”

Samuel Johnson was the source for the general idea, but the words he used lack the idiomatic quality of the shorter version:

Among the calamities of war may be justly numbered the diminution of the love of truth, by the falsehoods which interest dictates and credulity encourages.

This would be why MSF demands investigation by a disinterested organization. Soldiers have a lot more slack in the use of deadly force than law enforcement officers, but even law enforcement officers have a terrible record of investigating their own officer-involved shootings.

From 1993 to date, FBI agents have been the source of over 150 officer-involved shootings. In every case, the FBI investigated itself. In every case, the use of force was found to be, as we say in the criminal justice trade, “a good shoot.” Over 150 persons killed or wounded and every single shot was, according to the FBI, legally correct.

In spite of the fact that deadly force is the primary tool of the soldiering trade and the rules of engagement are less restrictive, there are things soldiers can’t do. The prisoner abuse at Abu Ghraib Prison in Iraq is an example. The commander was relieved and the soldiers were prosecuted.

It’s a general rule that you may not target a medical facility. There is an exception when one of the belligerents is using the medical facility as a human shield. This is why the claim that allied forces were taking fire from the hospital and the prompt denial.

Some unjustified actions against non-combatants get found out in every war and the U.S. has a track record of punishing war crimes lightly and rarely. Every time a war crime is punished, a part of the public lionizes the criminals. This blindness to evil is one more demonstration of, as Samuel Johnson put it, “falsehoods which interest dictates.”

Some war crimes get found out too late, such as the corruption that made the Bosque Redondo concentration camp so deadly to Navajos and Apaches. Corruption killed because stealing caused the ration money to run out and Indians to starve.

Then there was that final massacre that marked the end of the shooting phase of the Indian wars. Twenty bogus medals of honor came out of an encounter where most of the U.S. casualties were caused by friendly fire and even the general to whom the Wounded Knee detail had to report described the action as a “criminal military blunder and a horrible massacre of women and children.”

Have things changed so much since the Indian wars that the military can police itself? The U.S. military has much to be proud of but also a serious ration of shame. The disappearing money in Afghanistan says corruption is still a problem.

World Affairs reported on what the Inspector General found back in 2013. $100 billion spent “building” a nation where over half of the population is under 25 because life expectancy is 49. That’s civilian aid. Doesn’t the military do better?

It does. The Fiscal Times reported this year that “only” $45 billion in “defense” dollars has gone missing. The good news is that the IG attributes the disappearance to poor accounting rather than corruption. The bad news is the report covers just 2002-2010.

With that much money floating around a war zone somebody is bound to get sticky fingers and the troops have more urgent priorities than counting beans. There’s a history of corruption that goes back to the Indian wars and a history of war crimes likewise.

Through all of this, the bad actors have hidden themselves among genuine heroes and waved the flag to stave off accountability. It works too often, and that is why Medecins Sans Frontieres is right to demand an impartial investigation and those who believe the U.S. is never wrong should be the first to agree.

Watch the repercussions of blowing up a hospital, if any, and keep in mind another aphorism correctly attributed to Samuel Johnson:

Patriotism is the last refuge of a scoundrel.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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