Wrong way to handle Kunduz tragedy
LAST October, an American gunship mistakenly launched a devastating attack on a Doctors Without Borders trauma centre in Kunduz, Afghanistan, killing 42 innocent people. An investigation released last week detailed a cascade of human and technical errors that led to the bombardment. Now the Pentagon is compounding the tragedy by treating the case as less grave than it is.
As matters currently stand, there will be no Kunduz trial. Instead, 16 members of the American military, including a general, have received disciplinary action or adverse administrative action, including letters of reprimand, removal from command, transfer out of Afghanistan and requiring recertification in a job specialty. Given the loss of life and damage to a hospital which, by definition, is a protected site under the law of armed conflict, it is hardly surprising that many view these actions are inadequate. United States Central Command has justified the absence of courts- martial based on the report’s conclusion that, in its words, the errors that led to the attack were unintentional and that “other mitigating factors, such as equipment failures,” affected the mission. Certainly, mitigating factors should be taken into account when deciding on the disposition of charges. But both the process and outcome are open to serious question.
For example, the process that the Pentagon used to investigate the bombing was closed. Doctors Without Borders had asked for an international body to investigate. There were domestic alternatives as well: Instead of using the routine Army investigative process, the government could have convened a court of inquiry, as provided for in the Uniform Code of Military Justice. These are more formal, and have been used for major incidents. The Navy convened one in 2001 after the submarine Greeneville, on a VIP cruise, surfaced abruptly off Honolulu, sinking a Japanese fishing vessel in the process and killing several of its crew. It is unclear why a court of inquiry was not used in the Kunduz case, given the Greenville precedent. Such a court would have been closed to the public when classified evidence was being examined, but much of it could have been open. That alone would have fostered greater confidence in the results. The Army could also have convened a preliminary hearing to determine if there was probable cause to court- martial anyone. Another procedural problem is hard- wired into the Uniform Code of Military Justice: Commanders decide who is charged with what offences, and how those offences will be disposed of.
The military code includes several offences that seemingly apply to the Kunduz attack, including reckless destruction of property and reckless or wanton operation of an aircraft. Murder includes acts that “evince a wanton disregard of human life,” and manslaughter includes unlawfully killing someone “by culpable negligence.” These are major offences, while the actions ordered in the wake of the attack are of a kind typically reserved for minor offences. Dereliction of duty, another military crime that may apply here, covers wilful and negligent failure to perform duties, and performing them in “a culpably inefficient manner.” The test is merely whether the individual “exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances.”
Among the challenges a case like Kunduz presents is how to achieve accountability in an era in which an attack on a protected site is not the act of an isolated unit or individual. In today’s high- tech warfare, an attack really involves a weapons system, with only some of the actors in the aircraft, and others — with real power to affect operations — on the ground, in other aircraft, or perhaps even at sea. No one should be content if matters are left where they currently stand. That would be an injustice for the victims not just of this tragic mistake, but of future ones as well.
The writer teaches military justice at Yale Law School and has advised Doctors Without Borders on the Kunduz attack.