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A Double Standard of Justice

The War Crimes of a Sergeant, the War Crimes of a Nation

by TOM McNAMARA

“Whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions”

Statement by US Justice Robert Jackson at the International Military Tribunal, Nuremberg, Germany.

Rennes, France. 

It is alleged that on the evening of March 10-11, 2012, US Army Staff Sgt. Robert Bales left his base in Kandahar Province, Afghanistan, fully armed and loaded, and murdered 16 civilians in a nearby village. At a pretrial hearing, the prosecution stated that Sgt. Bales went from house to house, firing his weapon with intent to kill. Children were shot through the thighs or in the head. At one point during the massacre 11 bodies, mostly women and children, were “put in a pile and put on fire.” The prosecutor said that the carnage was so violent that when Sgt. Bales finally returned to base, the blood of his victims had seeped all the way through his uniform and down to his underwear.

Witnesses from the camp reported that Sgt. Bales, a decorated veteran of four combat tours in Afghanistan and Iraq, had been upset over an incident that occurred 2 days earlier, when an improvised explosive device (IED) exploded, resulting in one US soldier losing the lower part of a leg.

The murder of the local Afghans is the worst case of civilian slaughter to be blamed on a single U.S. soldier since the Vietnam War. For this hideous and blatant war crime, the prosecution is asking for the death penalty.

A key component of US strategy in the Afghanistan / Pakistan theatre, or “AfPak” as the area is commonly known, is drones. The Pentagon has about 7,000 at its disposal, with not all of them being for attack purposes. For several years now, a sustained targeted drone campaign has been carried out in an effort to weaken the “insurgents” (i.e. local Afghan resistance). It has been estimated that over the past decade somewhere between 1,800 to 3,100 people have been killed in the region by US drone strikes. And while the US government would argue that the vast majority of these people were militant combatants, some estimates show that for every “insurgent” killed, 10 civilians were also killed.

The US has taken the position that all of this is legal, with Attorney-General Eric Holder arguing that the use of “technologically advanced weapons” (i.e. drones) is based on “adherence to the law.” But Article 2(4) of the UN Charter should give us reason to pause. It expressly prohibits the threat or use of force by one state against another. One argument that proponents for drone attacks use is that since the attacks are being carried out on militants and insurgents, and mostly in regions where the rule of law has broken down, the phrase “state” doesn’t apply and therefore nullifies this section of the Charter. But this argument is dubious at best. If it were Iran, China, or Russia engaging in this type of behavior closer to US shores, say in Central or South America, there is no doubt that the US government would be in an uproar over the legality, and morality, of their use.

Compounding all of this is the controversial policy known as “the double tap.” This involves striking an initial target and then following up, in quick succession, with repeated attacks on the same site as people arrive to give aid to the original victims. There are reports that innocent bystanders and non-combatants have been intentionally killed as a result. There are also reports that funerals have been deliberately hit by targeted drone strikes as well. In almost any other circumstances these events would be recognized for what they are. War crimes of the highest order. But somehow, for the US, they only raise “contentious legal questions” to quote the New York Times.

16 civilians (including 9 children) were murdered in cold blood in Afghanistan. For that, Sgt. Bales is facing the possible loss of his life. America’s drone policy alone has reportedly killed between 474 and 881 civilians in the region, including 176 children. For this, no one is on trial.

But to even talk of war crimes in Afghanistan is a farce. The whole war, in addition to being undeclared and unfunded, can be considered as a war crime. That is, if one chooses to respect the principles put forth at the International Military Tribunal at Nuremberg and the founding charter of the UN. To talk about the individual atrocities committed by one lonely Sergeant (if that, indeed, is the case. 2 US soldiers are testifying for the Government under immunity) while ignoring the war crimes committed by a Nation, screams of hypocrisy and a double standard of justice.

After 11 years of fighting, the US has now been in Afghanistan longer than the Soviet Union. 2,000 soldiers have died in combat, with over 17,000 wounded. The cost of the war is well over $1 trillion, and still counting. While combat operations are scheduled to cease by the end of 2014, NATO has stated that it is committed to maintaining a presence in Afghanistan well after that. The results will inevitably be more innocent deaths and more war crimes. Another inevitability will most likely be that only front line soldiers will be held accountable for their actions, not the senior military commanders and the leaders in Washington who should ultimately be held responsible for this senseless and bloody quagmire.

When it comes to America’s war crimes it would appear that some get punished. Most, however, get ignored.

Tom McNamara is an Assistant Professor at the ESC Rennes School of Business, France, and a Visiting Lecturer at the French National Military Academy at Saint-Cyr Coëtquidan, France. 

Sources.

“2,000 Dead: Cost of War in Afghanistan” By Amy Bingham, October 1, 2012, ABC News. Accessed at:

http://abcnews.go.com/Politics/OTUS/2000-dead-cost-war-afghanistan/story?id=17367728#.UIguv4bnNGI

 

“Afghanistan: Green-on-blue attacks show there’s no easy way out” By Sajjan Gohel, September 18, 2012, CNN. Accessed at:

http://edition.cnn.com/2012/09/18/opinion/opinion-afghanistan-green-on-blue/index.html

 

“Afghanistan forces prepared for NATO withdrawal, Karzai says” by Ned Parker, October 18, 2012, Los Angeles Times. Accessed at:

http://articles.latimes.com/2012/oct/18/world/la-fg-afghan-karzai-20121019

 

“Army Seeks Death Penalty in Afghan Massacre” by Kirk Johnson, November 13, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/11/14/us/army-seeks-death-penalty-for-robert-bales-in-massacre.html

 

“CIA ‘revives attacks on rescuers’ in Pakistan” by Chris Woods, June 4th, 2012, The Bureau of Investigative Journalism. Accessed at:

http://www.thebureauinvestigates.com/2012/06/04/cia-revives-attacks-on-rescuers-in-pakistan/

 

“Death from afar” The Economist, November 3rd-9th, 2012. Accessed at:

http://www.economist.com/news/international/21565614-america-uses-drones-lot-secret-and-largely-unencumbered-declared-rules-worries

 

“Do Targeted Killings Work?” By Daniel L. Byman, Senior Fellow Foreign Policy, Saban Center for Middle East Policy, July 14, 2009, The Brookings Institute. Accessed at:

http://www.brookings.edu/research/opinions/2009/07/14-targeted-killings-byman

 

“Dodging the drones: How militants have responded to the covert US campaign” By Aaron Y. Zelin, August 31, 2012, Foreign Policy. Accessed at:

http://afpak.foreignpolicy.com/posts/2012/08/31/dodging_the_drones_how_militants_have_responded_to_the_covert_us_campaign

“Get the Data: Obama’s terror drones” by Chris Woods, February 4, 2012, The Bureau of Investigative Journalism. Accessed at:

http://www.thebureauinvestigates.com/2012/02/04/get-the-data-obamas-terror-drones/

 

“Living Under Drones: Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan” the International Human Rights and Conflict Resolution Clinic (Stanford Law School) and the Global Justice Clinic (NYU School of Law), September 2012. Accessed at:

http://livingunderdrones.org/wp-content/uploads/2012/09/Stanford_NYU_LIVING_UNDER_DRONES.pdf

 

“Second Day, Wednesday, 11/21/1945, Part 04″, in Trial of the Major War Criminals before the International Military Tribunal. Volume II. Proceedings: 11/14/1945-11/30/1945. [Official text in the English language.] Nuremberg: IMT, 1947. pp. 98-102. Accessed at:

http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/jackson.html

 

“Predator Drones and Unmanned Aerial Vehicles (UAVs)” September  26, 2012, The New York Times. Accessed at: http://topics.nytimes.com/top/reference/timestopics/subjects/u/unmanned_aerial_vehicles/index.html

 

“Pretrial Hearing Starts for Soldier Accused of Murdering 16 Afghan Civilians” by Kirk Johnson, November 5, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/11/06/us/hearing-begins-for-robert-bales-accused-in-afghan-murders.html?_r=0

 

“Prosecutors seek death for U.S. soldier charged in Afghan rampage” by Bill Rigby, November  5, 2012, Reuters. Accessed at:

http://www.reuters.com/article/2012/11/06/us-usa-afghanistan-trial-idUSBRE8A407T20121106

 

“Prosecution Cites Revenge as Motive for Afghan Massacre” by Neal Karlinsky and Luis Martinez, November 5, 2012, ABC News. Accessed at:

http://abcnews.go.com/US/prosecution-cites-revenge-motive-afghan-massacre/story?id=17646561#.UKY5j4aoEsc

 

“Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950” Report of the International Law Commission covering its Second Session, 5 june – 29 July 1950, Document A/1316. Accessed at:

http://www.icrc.org/ihl.nsf/full/390

 

“The Moral Case for Drones” by Scott Shane, July 14, 2012, The New York Times. Accessed at:

http://www.nytimes.com/2012/07/15/sunday-review/the-moral-case-for-drones.html?ref=opinion

 

“The Charter of the United Nations” June 26, 1945. Accessed at:

http://www.un.org/en/documents/charter/intro.shtml

 

“U.S. hearing on Kandahar massacre to include video testimony from Afghans” by Laura L. Myers, October 12, 2012, Reuters. Accessed at:

http://www.reuters.com/article/2012/10/13/us-usa-afghanistan-trial-idUSBRE89C01720121013