Wrong way to han­dle Kun­duz tragedy

Pakistan Observer - - OPINION - Eu­gene R Fidell

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.

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