Why no courts-martial over Kunduz? Column

A soldier directs an attack on what he thinks is an enemy position but is actually a hospital. A police officer shoots someone he thinks has a gun but it turns out to be something else. Both are results of mistakes. And in both cases there are legal standards that must be obeyed and enforced to ensure that lethal force is wielded appropriately.

Sometimes authorities decided to criminally prosecute the police officer for his error, or the soldier for his battlefield mistakes. Judgments like these are difficult and often fraught with emotion, and they must be explained to the public. Transparency is essential when force is wielded in the public’s name, whether on Main Street or on exploding battlefields continents away.

Particularly in war, with its inherently chaotic nature (the ubiquitous “fog”), tragic mistakes often result from understandable human error and not criminal misconduct. Yet at times the facts and circumstances surrounding a wartime tragedy point towards an inexcusable breach of the laws of war. The complexity involved in deciding how to categorize a particular chain of events, and hence whether or not criminal prosecution is appropriate, is highlighted by the U.S. military’s investigation into the attack on the Doctors Without Borders hospital last October in Kunduz, Afghanistan.

To be sure, no one intended to attack a hospital or harm civilians. However, the investigation concluded that the death and destruction inflicted that night by a U.S. Air Force AC-130 gunship resulted from a perfect storm of errors and mishaps, including the failure to load a restricted target list into the gunship’s onboard computer in the haste to get airborne to assist U.S. ground forces and the unexpected failure of the gunship’s communication systems.

The investigation also concluded that violations of the rules of engagement — standards intended to lower the risk of such errors — were a major contributing factor to the terrible outcome. Yet such violations, including failure to sufficiently identify hostile intent or hostile acts before authorizing the strike, were not used to initiate court-martial proceedings. This question remains: How can the administrative measures taken in lieu of criminal prosecution be justified for mistakes that the military’s own investigation concluded crossed the line from understandable to unacceptable, and led to the deaths of 42 innocent victims?

While it would be naïve to expect trial by court-martial (that is, criminal prosecution) for every mistake in battle, if what has been disclosed in this investigation is true — if an experienced U.S. ground forces commander failed to make reasonable efforts to ensure the target he was calling fire down on was in fact the enemy stronghold he sought to destroy; and if that failure was one that any other reasonably competent commander would not have made, the resulting loss of 42 lives makes the non-criminal disciplinary response difficult to understand.

Army Gen. Joseph Votel, the four-star commander of Central Command, relying on the investigation’s summary report, emphasized last month that the “no-prosecution” decision was based in part on the conclusion that war crimes only involve “intentional” crimes. This interpretation of international law is highly debatable, but it is also largely irrelevant.

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Why? Because the Uniform Code of Military Justice, the military’s criminal code, sets a higher standard of conduct for the U.S. armed forces. It includes homicide crimes based on both reckless as well as negligent judgments; that is, the failure to exercise the level of care a reasonable person would in those or similar circumstances. The reason the military’s criminal code criminalizes such “mistakes” stems directly from the military’s business: It regularly wields weapons of death. Failure to exercise reasonable care cannot be tolerated, because a mistake means people may die.

The military owes the U.S. public and its own service members a more credible explanation of why criminal prosecution is inappropriate. Convincing a military jury that criminal responsibility for the tragic outcome should fall on any one person would undoubtedly be a difficult burden to satisfy, and may explain the decision to forego prosecution. But this decision remains difficult to understand when failures to comply with rules of engagement resulted in an attack on a hospital that should have been loaded into the no-strike list on the airship’s computer.

Until such transparency is provided, this perceived failure to appropriately apportion responsibility through the military’s criminal justice system creates a risk that perception will become reality; that going forward, there will be doubts about the U.S. commitment to both international law and individual accountability.

Rachel E. VanLandingham, a retired Air Force lieutenant colonel and judge advocate, is an associate law professor at Southwestern Law School and vice president of the National Institute of Military Justice. Geoffrey S. Corn, a retired Army lieutenant colonel and formerly the Army’s top law of war adviser, is a law professor at South Texas College of Law.

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