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Wikileaks and “War Crimes”

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Last Monday, Julian Assange told reporters in London that the Afghan War Diaries reveal war crimes in Afghanistan, and reiterated this statement on Democracy Now! midweek. The claim has been widely reported and is being reported as fact by some sources.

This installment in my series on the Wikileaks story will evaluate this claim and correct a few conceptual inaccuracies circulating in the press coverage. But first, here’s what this post is not arguing. I am not arguing that no evidence of war crimes exists in the war logs. Actually, it would surprise me if there are not some genuine international humanitarian law violations evidenced in those documents, as some occur in every war, and many are already well known to have occurred in this war. Any new allegations should be investigated immediately by the responsible governments (if indeed they have not done so already).

That said, several of the examples Assange has given in his interviews so far or that have been reported in the press are not actually war crimes, and those that may be have long been known to those following the war. This brings me to three important points about whether Assange’s “revelations” of “war crimes” can justify the potential risks to which he exposed others in “blowing the whistle.”

1) The Term “War Crimes” Refers to The Means By Which War is Waged, Not the Question of Whether War Itself Is Legal or Ethical. The laws of war are divided into two categories. The first is the law on the use of force governing whether specific wars are justified (grounded in the UN Charter regime). The second, which includes the law of armed conflict (Hague Conventions) /international humanitarian law (Geneva Conventions), governing how war may be conducted whether or not it’s justified, as well as the treatment of non-combatants. The concept of “war crimes” refers to grave violations only of the second set of treaties; a widely accepted list of war crimes appears in the Article 8 of the Rome Statute establishing the International Criminal Court.

Assange’s main point seems to be that war itself is hell, rather than that soldiers have sometimes behaved in hellish ways:

This material shines light on the everyday brutality and squalor of war. The archive will change public opinion and it will change the opinion of people in positions of political and diplomatic influence.

Well, war is hell. (Though, sometimes, so too is peace.) But the fact that interstate war brings with it “squalor and carnage” doesn’t necessarily imply war crimes. For that we need to look at how soldiers are conducting themselves in a given war, and we need a basic familiarity with relevant treaty law.

2) Not Everything Bad That Happens in War Is A War Crime. Here are some things Assange is talking about that are definitely not war crimes.

Accidentally Killing Civilians. The US does an awful lot of this, and I’ve argued before that that policy is ethically bankrupt. But it’s not a war crime, as the Geneva Conventions drafters accepted that unintentional deaths may occur in wars. Killing civilians on purpose is a crime, but the US does not have a policy of intentionally murdering civilians. Quite the contrary. Although there have been cases where US individual soldiers committed war crimes, official US policy has in fact been, in recent decades, to incur ever greater risks in order to avoid hitting civilians. The best of intentions don’t mean civilian casualties will ever be zero in a conflict zone. But Assange’s claim that civilian casualties have been tragically high doesn’t equate to evidence of war crimes – at least not necessarily.

Starting a War in Which Your Enemy Then Purposely Kills Civilians. The Taliban does appear to have a policy of intentionally murdering civilians. In fact, many of the “war crimes” described in the Afghan War Diaries – such as IED attacks on civilians – are actually Taliban crimes. It’s disingenuous for Assange to claim that the US is itself is responsible for these actions just because Bush started the war, since the Taliban were also intentionally slaughtering well before 2001.

Failing to Keep Accurate Track of the Number of Accidental Civilian Dead. The reports definitely demonstrate this pattern to an enlightening degree: when US troops hit civilians accidentally, the field reports often gloss over evidence of the body counts. I think this is terrible practice, but to my knowledge this isn’t a violation of war law, because (to my knowledge) governments are not actually required to record and disclose civilian casualties. If I’m wrong on this one someone point me to the relevant provision in treaty law; I haven’t researched it closely, though Stephanie Carvin has, drawing the same conclusion.

3) Revelations of Things We Already Knew Aren’t Revelations.A number of practices in Afghanistan evidenced in this report are in fact argued by some including myself to be war law violations. But these practices had already been long documented and condemned prior to the publication of the Afghan War Diaries, so I reject the claim that the leaks were necessary in order to “bring these events to light.”

Assassination of Alleged “High-Value Targets”. The documents “reveal” that ground troops are engaged in missions to kill specific terror suspects, which in some cases (though not all) are arguably war law violations. (I say arguably because while I would have argued that suspected militants should not be considered legitimate targets unless engaged in hostilities, the Obama Administration and some legal experts whom I respect disagree with me.) At any rate, this debate over “targeted killings” is an old one. How are the actions of Task Force 373 any different from those of drone pilots assasinating suspected militants (and their families) from the air? In both cases, US troops hunt suspected insurgents by stealth instead of engaging them in the open, and take them out often along with a multitude of innocents. In either case, the central war law issue is the same: is it right for our armed forces to kill people, even bad people, who are not at that time engaged in hostilities (that is, is any civilian area where a suspected militant might be at the moment a legitimate military target?) (I say no; the Obama Administration has argued yes.) If the public wasn’t already incensed enough about this to force policy changes, I’m not sure how this new evidence of the same practice engaged in by ground troops is going to tip the balance.

Unacceptably High Levels of Collateral Damage. Well yeah. Many of us have been saying this for years. The Administration hasn’t listened, and aside from the fact that researchers like me can now calculate exactly how unacceptably high they are (more on that soon) and maybe capture variation in the unacceptability barometer for various rules of engagement to conduct a precision human security analysis, there’s no there there.

A Polish My Lai? One story Assange describes on Democracy Now! is an alleged massacre of civilians by Polish ISAF troops, and this is the sort of thing that indeed qualifies as a war crime. But this too was already reported at the time. And unlike My Lai, there was no need to “blow the whistle” on this one, because it was never denied or covered up: the Polish government has already exhibited due diligence by investigating and trying those responsible. According to the Warsaw Business Journal:

A Polish investigation linked seven members of the Polish military with the attacks. A trial to determine their guilt began in February 2009 and is ongoing. The defendants face prison sentences of between 12 years and life for the killing of civilians and/or firing on an unarmed target. It is unclear whether the Wikileaks documents will have any affect on the court proceedings.

If so, Assange may have undermined due process in a criminal proceeding – one of many potential knock-on effects of his disclosures whose true extent may never be known. He has also apparently broken Polish law. The same article asserts:

Another revelation contained in the incident reports is the name and rank of the Polish counter-intelligence officer involved in the investigation of Nangar Khel. The publication of this information is a crime in Poland, carrying a sentence of five to eight years in prison. It is also a crime in the United States, as evidenced by the Valerie Plame investigation of 2003.

One Final Thought. Though I remain highly critical of Assange for dumping sensitive data online indiscriminately, I feel compelled to emphasize that I am not an opponent of whistle-blowing per se. In fact, I strongly support whistle-blowing specific cases of actual war crimes – like an actual “My Lai” where the responsible government is covering up the incident rather than prosecuting the offending troops – in a way that calls attention to perpetrators and their bystander governments while protecting the identities of vulnerable populations. (Which is not, however, what Assange has actually done here.) More on all that in a future essay.

[cross-posted at Current Intelligence and Duck of Minerva]

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  • herr doktor bimler

    He has also apparently broken Polish law.
    I can’t see how this makes any sense, unless Poland claims legal jurisdiction across the whole world. Have the Frau Doktorin and I broken Utah sodomy laws? Oh dear.

  • rageahol

    just wanted to let you know that this sort of horseshit is the reason i am talking LGM out of my feed reader.

    toodles!

    • Horseshit in what sense?

      Adios.

      • JJ

        The stinky, don’t step in it kind, I think.

  • DocAmazing

    You might want to avoid bringing up “the Valerie Plame investigation of 2003” when you’re talking about punishing leakers.

  • Emma

    Killing civilians on purpose is a crime, but the US does not have a policy of intentionally murdering civilians.

    Comedy gold! I think you mean “the US says it does not have a policy of intentionally murdering civilians”. But then, it would say that, wouldn’t it?

    I’m sure it doesn’t feel like that to the mothers mourning their lost children when the US sends a missile into a school. Oops!

    • Which school? Was the missile targeted on the school? Did the US military know that it was a school when the missile was fired?

      You see, these are the sorts of questions you have to answer when you assert that US policy is to murder civilians.

      • t jasper parnell

        Two points, the “horseshit” is, I think, overselling the negatives. So, for example, the assumption that innocents are going to die and therefore A has blood on his hands, or that the information violating Polish law will lead to a mistrial. In the first instance, I am not convinced and certainly there is no, so far as I am aware, evidence for this and in the second, an equally likely outcome is that now that more people know of the Polish case it will be harder to cover it up. I mean, after all, nation war crimes trials do not have the best reputations. See, for example, Germany’s post-WWI trials in Leipzig.

        Also, if I understand emma’s point, the mothers of dead children don’t particularly care if a war crime or an error has been committed. And she is right.

        • “Also, if I understand emma’s point, the mothers of dead children don’t particularly care if a war crime or an error has been committed. And she is right.”

          This is not how I understood emma’s point, but if that’s true then it makes Assange’s claims regarding “war crimes” irrelevant; the “war is hell” and “there exists a class of behavior during war called ‘war crimes'” perspectives are in tension with one another.

          • t jasper parnell

            Re Emma, the “they would say that” tag usually implies, or infer from it, humorous intent.

            Sure they war is hell and war crimes stand in tension. But surely it cannot be wrong to publish the material necessary to decide which act or acts fall into which category, can it? I mean are we to trust the press and Pentagon briefings or the day-to-day material on which, at least one, is based.

            I have only read some of the stuff and it is mostly of limited use but I do approve of greater transparency if the end result is greater knowledge that war is hell or if war crimes have been committed.

            • Right; I only want to argue the “is it a war crime” point, because while I don’t think that the Wikileaks material was really very revealing to anyone paying attention, I don’t share Charli’s concerns about it becoming public. As to what is and what is not a war crime, however, I do like specificity; I think that there’s an unfortunate tendency across the political spectrum to claim that anything we don’t like is a war crime, when in fact the term has an actual definition.

              • t jasper parnell

                Sure, people use language in accurately; however, I think for some the war is hell stuff is or ought to be criminalized I read that the military leadership held that 30 civilian deaths were a-okay instead of evidence of depraved indifference to civilian lives. For me, this is evidence of a war crime, which didn’t require wikileaks to be sure.

              • Incontinentia Buttocks

                Agreed. Though I think part of the problem here is that opposition to war as such, i.e. pacifism, is seen as so “unserious” that everyone feels the need to reach for the “war crime” label.

                As is so often the case, the real scandal in war is what’s legal.

              • Incontinentia, I agree. I have argued previously that the rules of war need to be updated to fill some of these gaps.

                This post was not about what the state of war law ought to be, rather what it currently is.

          • Holden Pattern

            What is the line between “indifference” and “targeting”. I mean, I know that the US rules of engagement are supposed to avoid targeting civilians, but damn me if it doesn’t seem like an awful lot of civilians are getting blowed right up for carrying the wrong tool or being at the wrong party.

            Also, I don’t think anyone ever satisfactorily answered (in the last thread on this topic) the question of what US policy is toward “civilians” who help the Taliban. I mean, isn’t it an intelligence coup when we learn who they are, and don’t we target them for kidnapping at least, and from what everyone is saying, for assassination? Didn’t we do that with spooks in Southeast Asia, and aren’t we doing it now?

            From the point of view of “people who aren’t assuming that US has the natural right to be occupying Afghanistan”, it must look an lot like the vitriol aimed at Assange isn’t really about “civilians” so much as it’s about “the US has the right to do things that the local forces the US is fighting are criminals if they do.”

            I am reminded that we’re currently holding a kid in Gitmo for murder because he’s alleged to have thrown a grenade at a US soldier who was attacking the Taliban position in Afghanistan where the kid was located. Assuming the kid actually did that, why is it murder for him, but just “bad things happen in war” when it’s the US?

            If we want to just drop down into naked nationalism to the level of whatever rationalizations we can stomach, that’s fine, but we should probably admit as much.

            • Holden Pattern

              I realized that I wrote “kidnapping” above w/r/t possible US actions addressed to pro-Taliban Afghans. I think the correct term would be “arrest and extraction” when we do it? Or is there another sanitized term I’m not clear on?

              • I think for some the war is hell stuff is or ought to be criminalized I read that the military leadership held that 30 civilian deaths were a-okay instead of evidence of depraved indifference to civilian lives. For me, this is evidence of a war crime, which didn’t require wikileaks to be sure.

                Entirely fair, but of course this gets us back to the “war crime” vs. “should be a war crime” question. The distinction isn’t at all trivial; indeed, I’d say that it’s of great consequence in how we view military action.

            • What is the line between “indifference” and “targeting”.

              Excellent question. It’s very fuzzy and this is one of the key problems with the existing rules of war.

              isn’t it an intelligence coup when we learn who they are, and don’t we target them for kidnapping at least, and from what everyone is saying, for assassination?

              You make an interesting point, and I think it may be fair to say is a double standard that characterizes some of the counter-arguments to my position on targeted killings. It is certainly not one to which I subscribe, as my post makes clear.

              From the point of view of “people who aren’t assuming that US has the natural right to be occupying Afghanistan”, it must look an lot like the vitriol aimed at Assange isn’t really about “civilians” so much as it’s about “the US has the right to do things that the local forces the US is fighting are criminals if they do.”

              That’s an interesting explanation for this comment thread. But I think the fact that I don’t assume the US has such a right, or that the US is blameless, disproves your point.

              Assuming the kid actually did that, why is it murder for him, but just “bad things happen in war” when it’s the US?

              Are these just rhetorical questions? Where in my post did I defend the detention of Omar al-Khadr?

              If we want to just drop down into naked nationalism to the level of whatever rationalizations we can stomach, that’s fine, but we should probably admit as
              much.

              Who is this ‘we’?

  • What is the line between “indifference” and “targeting”. I mean, I know that the US rules of engagement are supposed to avoid targeting civilians, but damn me if it doesn’t seem like an awful lot of civilians are getting blowed right up for carrying the wrong tool or being at the wrong party.

    In military attacks likely to have a double effect (killing civilians and achieving a military goal) likely civilian deaths have to be proportional to the military goal sought. As you’d expect, the words “likely” and “proportional” are debatable, which makes assessing war crimes difficult, although it’s usually not that hard to determine when civilians have been directly targeted for attack.

    The other issue would be negligence; if the military officers (or organization) in question simply didn’t take time to do due diligence regarding likely civilian deaths, or didn’t bother that hard to process intel over potential targets.

    • This was supposed to be in reply to HP, above. I should also note that I think that the US military does take considerable effort to avoid civilian casualties, if only because of the bad press that they produce, and that while you might find individuals culpable of either negligence or a poor cost-benefit analysis regarding double effect, by and large those are not organizational traits.

      • Holden Pattern

        I guess the lesson is that the use of high explosives in pursuit of a non-traditional enemy who looks just like everyone else in the foreign country you’re occupying is guaranteed to kill a lot of civilians.

        • Ja ja; the difficulty of doing this kind of thing is one reason to beware undertaking operations that have a COIN component.

        • Absolutely. I have written previously in support of a growing movement to stigmatize the use of explosive warfare entirely in civilian areas.

          • Emma

            Well not exactly in support, Charli. You said:

            What do readers think? Should explosive weapons go the way of landmines in global “civil” society

            Of course the most powerful and aggressive power in the world today hasn’t signed the agreement on land mines and doesn’t give a shit about global civil society. As a commenter points out in the upstairs thread. This is really all in the head for you, isn’t it?
            Some of us seem to be experiencing this debate in a more visceral way.

      • Emma

        the US military does take considerable effort to avoid civilian casualties, if only because of the bad press that they produce

        They only produce bad press if the press knows about them. Journalists had been trying to get the film and documents that Wikileaks has released for *years* through Freedom of Information without success. If any war crimes or even war mistakes are to be assessed or prosecuted, they need to be known about. Are you honestly saying that the US government and military is the best source for this?

        • No; I’m saying that the US military tries to avoid civilian casualties, in part because covering up those casualties can be both difficult and unpredictable.

          • Mark

            In which case, the wikileaks info dump should be precisely the sort of thing we should be cheering, right? After all, showing that there have been unreported civilian deaths is surely a necessary condition for such bad press. The fact that the wikileaks reveal showed that, at least, can’t be in doubt.

            • I don’t agree, because as I demonstrate in my post, there has already been significant bad press over collateral damage.

              • Emma

                That’s all right then. Free press and all that. Western freedoms R us. Not that they actually *stop* the slaughter, but, oh well, you can’t have everything. Carry on!

              • Not that they actually *stop* the slaughter,

                Emma,

                If I may once again be pardoned for using my head to respond to your visceral reaction, I will counter your cynicism with reference to a few facts.

                1) The rules of engagement in Afghanistan were in fact changed significantly under McChrystal, precisely to ensure a reduction in collateral damage.

                2) These changes did in fact reduce “the slaughter.” Please look at some data on casualty trends – Afghan Conflict Monitor is the most useful pre-Afghan-War-Diary source. Not only did collateral damage decrease after Fall 2009, recorded ISAF-caused deaths had already been declining since 2008 (these are not military numbers, the estimates come from the Afghan Independent Human Rights Commission as well as the Afghan NGO Safety Office). It also might interest you to note that in the past 6 months, the majority of civilian deaths in Afghanistan (according to these numbers at least) were caused by Taliban, not by ISAF forces (that’s the big pie chart as you scroll down).

                3) Correlation doesn’t necessarily mean causation, but in my judgment these changes were brought about in part because of public and NGO pressure, coupled with the conviction by our generals that we could not move the Afghan public closer to the government without a reduction in collateral damage (how sensible of them).

  • herr doktor bimler

    It is unclear whether the Wikileaks documents will have any affect on the court proceedings.

    My long-standing respect for the Warsaw Business Journal as a reputable source was demolished when they committed the “affect / effect” error.

    More seriously, Charli suggests that “If so, Assange may have undermined due process in a criminal proceeding.”
    If you are concerned that Assange’s activities might contaminate the Polish legal proceedings in some way (though not via “due process” as I understand the concept), is this a general rule? Should one suppress any knowledge one has learned about possible war crimes, for fear of affecting (or effecting) a current or possible criminal proceeding on the other side of the world?

    To me, the phrase “due diligence” to describe the Polish government’s investigation and prosecution carries the connotation that they have done what is required to cover their arses, and their hearts may not be in it. But YMMV. I have just been breaking the Polish anti-blasphemy laws so I may be prejudiced against them.

    • hv

      “affecting (or effecting)”

      Brilliant!

  • jeer9

    Glad to see that CC has put a bit more thought into her argument this time and dialed back the prosecution of whistle-blowers rhetoric several notches. Still think that Assange was correct, even if his own view of the information is hyperbolic. Now, can we get out of that damn place?

  • Well, I do think that the release of these documents seems to make the argument over whether or not we commit war crimes rather pointless. One can read the documents and can decide for themselves, if they want.

    So the kind of arguments being made here are kind of a red herring, that is someone says they are war crimes, but by golly I can show that they are not. Let’s look at the records. Or not and attack someone personally instead.

    It is nice to see that LG&M are standing shoulder to shoulder with Liz Chaney in this fight though.

    • One thing I meant to add, there will be no war crimes prosecutions at all ever out of this. And I suspect that everyone who reads this blog knows that (unless I guess we are able to catch the elusive Aussie).

      • Emma

        Of course there won’t, regardless of what is revealed. It’s far more likely that the whistleblower will be prosecuted, harassed and punished, regardless of what is revealed. War crimes trials are what happens to the losers of wars, and whatever the US does, it won’t be submitting to Afghan assessment of its actions in this war.

        The potential benefit of this series of leaks is to demonstrate exactly what kind of hell the Coalition governments are responsible for making in Afghanistan –not new to people who have been paying attention of course — but possibly new to some others. The hope is that it might begin to turn public opinion, as the Pentagon papers did.

        That’s why it is depressing to find people like Charli and Robert making the argument that in the absence of a provable ‘war crime’ the whole enterprise is wrongheaded.

        Anything that has any possibility of ending these senseless wasteful destructive and counterproductive wars is worth trying in my view. Nothing else has worked so far.

        • t jasper parnell

          First, I agree no one on the US side is likely to be convicted of a war crime, Poland’s trial to one side.Second, also agree re the benefits of the leaked documents. Third, not sure that Farley is making that argument but rather insisting on the point regarding when acts of war rise to war crimes. Fourth, agree that if Liz Cheney or any of her ilk make an assertion that sounds like your argument one ought to rethink the argument. Fifth, agree that at this point any action, short of blowing something up, is legitimate if it can change the conversation.

        • Emma and T,

          This sweeping statement is baseless, as the US has a long history of prosecuting its own service-personnel for war crimes. When I’m able, I’ll try to elaborate on this in a follow-up post.

          • t jasper parnell

            Two final points, the US also has a long history of not prosecuting it service personnel and, in terms of the deliberative side of deliberative civility, how on earth can you or anyone know that the Wikileak documents add nothing new? You cannot possible have read them all, can you?

        • “That’s why it is depressing to find people like Charli and Robert making the argument that in the absence of a provable ‘war crime’ the whole enterprise is wrongheaded.”

          I don’t believe that I’ve made any argument of the sort. I have asked that when people use the phrase “war crimes” they actually try to have some sense of what that term means.

    • “Or not and attack someone personally instead. It is nice to see that LG&M are standing shoulder to shoulder with Liz Chaney in this fight though.”

      I love this.

      And part of the point of the post is that it’s rather more complicated than just reading the documents and deciding whether war crimes were committed; you actually have to have a grasp on the relevant law in order to make a meaningful determination of what is, and what is not, a war crime.

      • wengler

        I agree. It is much easier to figure out right from wrong.

        The law understandably differs because it was written by the rich and powerful who may need to kill people from time to time.

        • Your cynicism is understandable, but actually most accounts of the origins of codified war law would suggest otherwise.

          The original Geneva Conventions came about not because powerful and rich states wanted rules for protecting sick and wounded soldiers, but as the result of the persuasive activism of individual citizens, particularly Henri Dunant who founded the International Committee of the Red Cross. Powerful governments of the time did not initially see such rules as in their interests whatsoever. But once they were persuaded by moral arguments and public pressure, they actually did comply with the new rules to a great (if never perfect) extent.

          An excellent source on this is the ICRC chapter in Martha Finnemore’s book National Interests in International Society. Happy reading.

  • toast

    what happened to you guys? you started off as humamn beings, now you’re lawyers. and as such, i hope you realize there isn’t much overlap. you’ll gladly pursue a line thyat either makes you money for lying, or supports the archaic infijnity of laws that are there to ensure that everyone is a criminal.
    if i were you, i’d start to compare the neverending (leagal) justifications for murding brown babies etc., vs. the upstanding j=home-made lwas of an exceotional country.
    fuck’s sake, grow up.

    • Nice.

      “fuck’s sake, grow up.”

      and

      “robert farley defending charli? where is the withering violet?”

      Charli had a lot more comments than I in the previous thread. And frankly, if you find that suggesting that the term “war crimes” should be used only in appropriate situations problematic, then perhaps you need to grow up. I have an allergy to people using that term to describe whatever they don’t like.

    • The Wrath of Oliver Khan

      I don’t tend to agree with the position Charli has been arguing, but still: Lighten up, Francis.

  • toast

    sorry for the typos. robert farley defending charli? where is the withering violet?

    • After hitting “post,” the withering violet shut down her computer for an entire four hours to prepare food for her children, read bedtime stories and pack for a road-trip with her eight-year old. Next two days, she’ll be driving to South Carolina. She will post more on Wikileaks when able, and until then is charmed to be missed.

      P.S. Robert Farley is defending deliberative civility, something he and I both share a respect for even though we disagree on a whole lot else. This is a trait I am frankly starting to wish I saw more often in LGM comment threads.

      • Ed

        This is a trait I am frankly starting to wish I saw more often in LGM comment threads.

        It is true you got your head handed to you in the comments section to the last thread, Charli, and a few posters were over the line. But truly I don’t know what on earth you expected from your readership after these appalling posts, and complaining about your commenters for delivering the bad news isn’t very sporting.

        I note you have drawn down the prosecutorial fervor in this latest effort, which is progress of a small kind. Regards.

        • I don’t know what on earth you expected from your readership

          Deliberative civility.

          I note you have drawn down the prosecutorial fervor in this latest effort

          That’s because this post is on a different topic.

          • t jasper parnell

            Charli:
            If you are in favor of deliberation how do you justify keeping the basic information necessary for deliberation secret? Surely deliberators need primary documentation in order to properly deliberate.

            • My response to Ed was not about “deliberation” but about “deliberative civility” – the ability to respectfully disagree with others with facts and logic rather than name-calling and hyperbole.

              To answer your question, my post clearly rejects its basic premise: in my view, all the basic information needed for deliberation was already available.

          • hv

            I don’t know what on earth you expected from your readership

            Deliberative civility.

            Let us know when SEK is on board.

            (Didn’t we go around this once when you were excoriating Olbermann for incivility and I suggested it was hypocritical… you said it wasn’t because SEK never signed up to deliberative civility? Do I need to dig up the thread?)

            PS: I didn’t care to read that other thread, so this is in no way suggesting that any or all of those posts were appropriate.

  • t jasper parnell

    Entirely fair, but of course this gets us back to the “war crime” vs. “should be a war crime” question. The distinction isn’t at all trivial; indeed, I’d say that it’s of great consequence in how we view military action.

    I also think that we should be clear that, like all crimes, people are going to disagree about whether this or that act is a war crime. I’ll just say again that permitting 30 civilian deaths is depraved indifference to civilians’ lives and, imo, a war crime.

    • t jasper parnell

      I think it is a war crime not merely in terms of my opinion but in terms of the Rome Statute article B section (iv)

      Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

      I suspect but don’t know that the Wikileaks documents provide evidence of as yet unknown incidents that fit, or can plausibly argued to fit, this definition.

      • T,

        Thanks for this comment.

        You may well be right, but what will happen in a judicial context is that lawyers and judges will finesse the question of military necessity.

        Note that the language of this clause is all about whether the deaths were outweighed by the military importance of the target. One of the great weaknesses of existing treaty law is that it gives no guidance on how the military is supposed to make that assessment. So most war crimes trials I’ve read about (again, not being a lawyer familiar with the wide breadth of case law on this) would hinge on whether there was evidence that the military officials in question failed to adequately weigh the two values and act to minimize casualties. (For example, in the 1999 air war over Kosovo NATO planes hit a bridge with a civilian train, and in the investigation a key question was whether or not the train was running on time. Since it was, it could be assumed that adequate precautions had not been taken to minimize collateral damage.)

        It could be that the case you’re referring to would indeed qualify as a war crime, depending on these factors. It could also be (and I have made this argument before) that war law simply needs to be updated to better resolve the question of how to weigh civilian protection against military necessity.

        • t jasper parnell

          Charli:
          Yes, that was my point. Given that any war crime subject to prosecution will be argued to be not a war crime based on the nailing jello to the wall aspect of war crimes and so on, it strikes me as a bit odd to insist that people be clearer in their use of war crimes when , as you point out, lots of stuff that looks like a war crime can be proven to not be a war crime.

          I agree as well that updating the laws of war makes sense; however, I don’t think that this will make the nailing jello to the wall aspect of war crimes go away.

      • t j,

        There are two ways to approach this. The first is to argue that existing war crimes law was written by rich white people, and as such doesn’t capture what it should. There is considerable truth to this regarding jus in bello restrictions, as there is for all international law. However, taking this position effectively dismisses the “criminal” element of “war crime”; you can say that an airstrike is “criminal” in the same sense that you can say that Dusty Baker’s practice managing young pitchers is “criminal”, but in neither case are you talking about something that is generally legally recognized to rise to the level of criminal sanction.

        The other way is to pay attention to what war crimes actually are, and apply the term based on those general legal understandings. I prefer the second, because I think that having a specific legal understanding of what constitutes a “war crime” actually helps change the behavior of military organizations.

        • t jasper parnell

          There are only two ways to think about this?

          On a serious note, my citing of the Rome Statute’s article B section iv was an attempt to pay attention to what war crimes actually are.

          • Right; and this is where we get to the “clearly excessive” bit. Most of us can agree that killing 30 civilians in the process of killing on low level insurgent is impermissible, just as most of us can agree that killing 30 civilians in the process of killing 3000 enemy soldiers (say, torpedoing a troop ship) is permissible.

            What we can’t say, unless we adopt a full pacifist position (which is fine, if that’s your thing) is that undertaking military action that will kill 30 civilians is always impermissible.

            • t jasper parnell

              Robert,
              A quick point here. I am arguing neither a pacifist position nor a hypothetical one. In addition, I am not an idiot, I am aware that bad things happen in war. It is also the case that war crimes happen during war.

              In this instance, the Afghan authorized use of military force — let’s call it, my position is that a policy that authorized operations that planners know in advance will kill 30 civilians amounts to a war crime under b iv. Because of the close proximity of civilians to nearly any operation. Plus, I find it odd that the number of civilians is very often 30 or just under.

              I am also aware that should these policy makers come up on charges proving the policy a war crime would be complicate and a trial might exonerate them. Really I know that. Consider the IMTFE, just as one example.

              Sure, we can use all manner of hypothetical (troop ships!) and potential defense arguments (wasn’t excessive because . ..) to “prove” that some act wasn’t a war crime but really just a war is hell moment.

              In addition, although I don’t see it happening, I can imagine a set of laws of war that do, in fact, set some ridiculous, for our current understanding, low number of civilian dead. It might mean that the everyone has to agree to fight over there in that field between 8 and 4:30. But there having been odder laws of war.

              • So, if I am to understand you correctly, there is no imaginable military objective in Afghanistan that could possibly justify risking the killing of 30 civilians? There might hypothetically be such objectives in other wars (troop ships, etc.) but in Afghanistan, presumably because of relatively small insurgent troop concentrations, risking the death of 30 is automatically a war crime?

                I’m not trying to be hostile, just trying to clarify. If this is your position, then I can’t agree; I can certainly imagine military objectives in the Afghanistan that would justify risking the deaths of 30 civilians. The largest Taliban troop concentrations are said to number in the low hundreds; if the location of such a concentration was fixed, and if the concentration also included some major Taliban figure (say, Mullah Omar or someone else), then I’d say risking 30 civilian lives would be proportionate to the military objective.

                Moreover, I’d say that hypotheticals can often be very helpful in illuminating questions just like this one.

              • Sebastian Dangerfield

                TJ makes a very good point that demanding a high degree of precision in the use of the term “war crime” is rather in tension with the obvious point that the definition is elastic as hell. This pricniple could easily devolve into a game of X saying that Y is being sloppy with the use of the term “war crimes” simply because X is using a standard that is more stringent than Y’s standard, where the text fo the relevant rules — and the practice of chargingg authorities and tribunals — could support a range of outcomes that include those favored by both X and Y. This appears to be Carpenter’s game, as she seems to be suggesting that if a defense lawyer could muddy the issue up, then presto, one can’t use the term “war crime.” Cf. Carpenter’s suggestion that bombing a bridge that took out a civilian passnger train might be justified if the bombers looked at the timetable and saw that no train was due to be on the bridge at that moment — I must have misssed that day of class, but I suppose it’s possible that in the world of Humanitarian Law, decisions affecting the lives of civilians can be made on the assumptions that trains in Eastern Europe never run early or late! Of course that’s what the defense counsel argued (hint: it’s what they’re paid to do!) but that doen’t make it a particularly cogent argument. (And, unless you want to define Humanitarian Law down to laughable levels, I wouldn’t go citing to examples drawn from NATO’s bombing of Yugoslavia — which was illegal from its inception and was carried out with rather depraved indifference to the consequences for civilians.)

                That said, Farley has a point that the term “war crime” gets thrown around quite a lot and that perhaps using it without any reference to the things that Humantarian Law declares to be war crimes (however imprecisely) somewhat cheapens the term’s currency.

                However, in the case(s) in which the military acknowledges approximately thirty civilian deaths in the course fo an action targeting what the military says are three or four “militants” (the actual cases are legion) I think you can pretty safely argue that the Rome statute is being violated on sheer proportionality grounds (i.e., without examining the legitimacy of the military objective). So, Farley’s point that one can imagine a hypothetical world in which the death of thirty civilians in a U.S. military action in Afghanistan would be justified rings more than a little hollow in the face of a rather dismal consistency in the actual existing facts, again if we just think about proportionality on the assumption that the military objective is legitimate. But where — as in Afghanistan — you have a war in which the military objectives are anything but clear I find it very hard to get my head around the idea that in that actually existing conflict, an attack that is expected to kill 30 civilians could ever be justified by “the concrete and direct overall military advantage anticipated.”

    • Anderson

      I’ll just say again that permitting 30 civilian deaths is depraved indifference to civilians’ lives and, imo, a war crime.

      Then you’re a pacifist. No one fights a modern war without killing civilians. The Allies killed thousands of French civilians in the runup to D-Day, bombing bridges and train lines to isolate the landing zone from German reinforcements.

      There are all kinds of reasons why killing civilians is particularly noxious in a guerrilla war like Afghanistan, and plenty of criticism to be made, but crying “war crime!” whenever some civilians are killed is just stupid.

      LGM readers have a chance to engage with a couple of smart professors who actually know some shit about war crimes, etc., and maybe learn something, including learning how better to frame your own criticisms of the war. I suggest trying to do so, and not behaving like dimwitted rectal orifices. (How’s *that* for civility?)

      • t jasper parnell

        Anderson:
        This is a very silly post; it also misrepresents my position and makes a series of assumptions about me that are just wrong.

  • hv

    Questions worth considering:
    1) What makes our informants the “good guys”? Perhaps we and our informants are the bad guys and exposing them is in itself worthwhile, regardless of whistle-blowing. The links you provide document merely that many informants will certainly be harmed — so what, war is hell. (You left out the nationalism part of your argument.) So when you say in your point #1 that the merits of the war are irrelevant to war crimes, you are technically correct. But they are certainly relevant to what you are portraying as the price tag for these leaks. To what extent should the citizen of another country be aware of how much we’re the good guys?
    1a) What if he disapproves of our war, but is wrong in that judgement?

    2) Why must whistle-blowing be revelatory? Although Assange has undoubtedly been over-hyping this angle, I think that whistle-blowing is legitimate even if we already have some evidence pertaining to misconduct — a little more would always help, right? (If there is any line where we measure “sufficient” evidence, it would be right around when the guilty party gets convicted, wouldn’t it!?) For example, I believe that any further leaks documenting torture in the secret prisons, where we know the good guys are doing a little torture, I would protect those leaks, until the torturers stand accused. (Kudos to Poland — I am willing to believe they are good guys.)
    2a) Where does one go to find out if war crimes are revelatory? You are quite fond of the text of the international conventions, but that has to be in Assange’s favor to some extent… he looks over the proceedings of recent international tribunals, doesn’t see our names, so concludes the leak will be revelatory. An honest mistake… Who knew that we had a “backlog” of unprosecuted war crimes… and more!

    3) What happens if the leaker just has bad judgement? You have a lot of valid arguments about distinctions with respect to war crimes, but to what extent is Assange responsible for parsing them? Perhaps there is a reasonable person standard that reporting atrocities or really bad misconduct might still be protected even if we can provide legal justifications.
    3a) What if the leaker has a good track record of nice, valid leaks before a lapse that doesn’t really establish revelatory war crimes?
    3b) What if the leaker is ONLY wrong about whether the leak is revelatory?

    4) Why can’t Assange whistle-blow about the Taliban, too? I don’t get why the identity of WHO committed the war crimes matters at all in whether they should be revealed. Please don’t tell me it’s because we already know they’re the bad guys.

    5) Did the administration offer to stipulate that all of this (non-revelatory!) stuff had occurred? If our informants were at risk and the dump had nothing new, why didn’t we just offer to stipulate whatever Assange wanted? I blame the risk on the (un)diplomatic approach of the feds. Assange had to cancel appearances to avoid being hassled, and his colleagues have already been hassled. Maybe if so much is at risk, a different approach is called for? It wasn’t Assange’s job to come up with the appropriate approach, but it certainly was SOMEONE’s… it amazes me how little effort people put into analyzing that end, compared with how super-concerned they are over inventing duties to assign to a foreigner, Assange. What duties do the people running our COIN stuff have to be on top of this?!

    • wengler

      We’re the good guys because we have better weapons. Didn’t you see that Time cover? They can only chop off noses. We would’ve totally incinerated that girl with a missile. And felt really bad about it. For a second.

      But we aren’t into torture like that anyways. Well anything that causes organ failure or death. Is the nose an organ?

  • wengler

    I for one can’t wait until Mr. Assange is rotting in a jail cell and all of our information on the Afghanistan war is safely vetted by the embedded corporate media. I mean as Murdoch’s newspapers remind us it OUR guys over there doing the fighting for US and therefore ignorant acceptance and cheerleading are much more important than the leaks of foreign devils.

    It’s just a shame that Daniel Ellsburg wasn’t executed as a traitor. Though as everyone over the age of 35 has assured me the Wikileaks case isn’t nearly as important because it only provides the raw reports that the military may or may not have lied about rather than the opinions of leaders that the war was a lie. It’s an important distinction and it adds up to one Aussie getting assraped at Club Fed.

    Let’s get on our horses and win this war, boys. Kabul is looking more like Peoria every day.

  • Stag Party Palin

    What Wengler said. Well done Mr. Swift. Personally, I think the legal niceties are irrelevant. As lawguy said, nobody will be prosecuted (unless we catch them eating the evidence, of course).

    The concept behind this posting is legal pinhead dancing. The only way to stop any war is to get people to understand what war really is like. Anyone criticizing Wikileaks or any other war whistleblower is, to the extent of the criticism, pissing on the graves of past and future victims of war.

    • The concept behind this posting is legal pinhead dancing. The only way to stop any war is to get people to understand what war really is like. Anyone criticizing Wikileaks or any other war whistleblower is, to the extent of the criticism, pissing on the graves of past and future victims of war.

      Again, I’d prefer that we either use the term “war crime” with an understanding of what it means (and this requires legal pinhead dancing), or not use it at all; the term is useful because it has a relatively determinate meaning, and it’s not that difficult to figure out what that meaning is.

    • Anyone criticizing Wikileaks or any other war whistleblower is, to the extent of the criticism, pissing on the graves of past and future victims of war.

      And…. really? We can’t even criticize him to the extent that he failed to redact names of people who might plausibly suffer violent retribution? There’s a very wide gulf between “Assange shouldn’t be prosecuted” and “Assange should be exempt from criticism.”

      • Stag Party Palin

        Well as long as you’re going with the false dichotomy ploy, here’s a quote for you (from C&L):

        Following the release of 92,000 war log files, Liz Cheney is calling for WikiLeaks to be shut down and says that the founder has “blood on his hands.”

        “I would point out that although you’ve got the news about the WikiLeaks documents that that came out this week and clearly Julian Assange’s effort was to change course for the US policy in Afghanistan,” Cheney told Fox News’ Chris Wallace Sunday.

        “He was unsuccessful in that. He does clearly have blood on his hands potentially for the people whose names were in those documents who helped the US and I think that’s something he will have to live with now,” she continued.

        • False dichotomy ploy? Pointing out that there’s a wide space between “prosecute” and “don’t criticize” is rather the opposite of establishing a false dichotomy…

      • hv

        We can’t even criticize him to the extent that he failed to redact names of people who might plausibly suffer violent retribution?

        You can, but then you have to show that those people are the good guys, and not the bad guys. Ms. Carpenter is attempting to dodge this whole question, unless I misunderstand her first argument on this item. (And her silence in response to my first question to her.)

        So that criticism requires some heavy lifting, instead of cutely parsing legal definitions of war crimes.

        • hv,

          Since no one, including Assange, is arguing that the assassination of US informants in Afghanistan would be a positive good, I’m just going to treat this as a comment that I can safely ignore.

          • hv

            Don’t be silly. It doesn’t have to be a positive good (strawperson much?)… it can merely be a non-negative one, an incidental part of “war is hell” that some informants get shot – presumably informants are receiving some benefits for assuming this risk. They are certainly a lot less innocent than the 30 civilians you are willing to sacrifice (most especially if the ethical and moral basis for the war poses grave questions that Mr. Assange’s critics seek to dodge in the criticism of him). Why can’t Assange be as cavalier with casualties as anyone else? His are still hypothetical!

            At the very least, leakers get their own cute little numbers about how many casualties are acceptable, right?

            Also, you are factually incorrect. The people doing the assassination are arguing that it is a positive good in actions that speak louder than words. Every time an informant is killed, they are arguing that person is a quisling. They just aren’t blogging about it.

  • I want to thank commenters who raised interesting conceptual or legal questions, and apologize to those whose substantive remarks I have been unable to answer fully. This is not due to disinterest but simply to time constraints.

    • hv

      Read the whole thread first next time, and you can hit more high notes and fewer dittos to Farley.

  • Either the information in the releases is important and can be harmful or it is old news and everybody knew it, one or the other.

    To be honest (and perhaps this is just because I wasn’t paying attention) but I really didn’t know that we had a special military group whose job was assassination and kidnapping. So that is new news to me at least.

    • David Nieporent

      Either the information in the releases is important and can be harmful or it is old news and everybody knew it, one or the other.

      Now that’s an obvious false dichotomy. Information may be useful for one purpose but not another. This is so obvious that I can’t believe it needs to be said. The fact that we spy on Iran is old news and everyone knows it; the specific names of the American agents actually on the ground in Tehran is harmful. Defending a release of a list of the latter on the basis of “informing the public of the scope of our espionage activities” would not be justified, even though knowledge of said scope would certainly be important.

    • hv

      Either the information in the releases is important and can be harmful or it is old news and everybody knew it, one or the other.

      I agree with David Nieporent that this is a false dichotomy.

      But further, the test or measure of whether or not the information is new and valuable might lie in whether or not any convictions have been obtained for misconduct. If there are no convictions, the case that we have “sufficient” evidence is laughable.

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  • Jon H

    Whenever I see a picture of Assange, I can’t help but think he looks like the perfect person to play a UFO cult leader on a TV show.

    I dunno why. Probably the white hair.

  • t jasper parnell

    Robert:
    So, if I am to understand you correctly, there is no imaginable military objective in Afghanistan that could possibly justify risking the killing of 30 civilians? There might hypothetically be such objectives in other wars (troop ships, etc.) but in Afghanistan, presumably because of relatively small insurgent troop concentrations, risking the death of 30 is automatically a war crime?

    No, that is not what I think; I think the number of circumstance in Af is quite smaller than, say, WWI or WWII or other “conventional” war and making 30 the number in that concrete situation shows depraved indifference to civilians’lives and, consequently, is a war crime.

    In the same spirit, are you arguing that there no cases where killing 30 civilians is a war crime?

    The problem with hypotheticals is that we get to construct the facts of the matter in a way that leans toward one conclusion or another. I am, by training and inclination, much more interested in the concrete historical event which may or may not be a war crime or what have you (it is not the fact of the matter that war crimes are uniquely difficult to categorize) rather than a hypothetical situation which may or may not be a war crime or what have you.

  • In the same spirit, are you arguing that there no cases where killing 30 civilians is a war crime?

    Not at all. I do think that we’re coming closer to understanding one another, though. Regarding whether 30 is too high of a ceiling (and to be clear, the number 30 exists because of an organizational need for standard operating procedures; every organization starts with a set of base assumptions and then moves from there), I would concur that the number is too high for both moral and practical reasons, which is in part why General McChrystal placed additional restrictions on air strikes. I’m not sure that I’d agree, though, that starting with 30 automatically constitutes a war crime.

    • t jasper parnell

      I think you’re correct understanding and I think we disagree based on reasonable but irreconcilable notions of this particular policy status as a war crime.

  • Abelard

    I want to make this suggestion in the most neutral possible way – feedrinse.com is an excellent (now free) filter for RSS feeds. I’ve used it on e.g. Jim Henley’s blog and it’s worked great – for the situations where group blogs include authors whom one very much does and very much does not want to read, which is something I think people earlier in these threads have suggested may now be the case for them with LGM. It seems like it’s a good personalised solution. (And, to be clear, the problem may just be one of prioritising rather than disagreement.) No doubt there are other products too – I’ve only played with feedrinse.

    I hope noone finds this suggestion offensive – I really do make it only to encourage the avoidance of unproductive conflict.

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  • Anon

    Also not a crime, as defined by that joke called the ICC: revealing the (nominal) allegiance of individuals in a war zone. Sorry bitch, you don’t get to shrug about a stray bomb that directly killed someone then call bloody murder because some informants were named, but otherwise left unharmed. Especially when doing so helped shed light on how much damage those stray bombs were doing.

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