As tragic as the strike on the Médecins Sans Frontières (MSF) hospital was, it is extremely unlikely to constitute a war crime -- at least under the definitions found in the Rome Statute of the ICC -- regardless of whether the conflict is characterized as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC). It is important to note upfront that in the "real world" (and by that I mean everywhere in the world except the Guantanamo military commissions) it is recognized that the law, and more specifically the conduct which falls within the scope of recognized war crimes, differs, by conflict type and thus conflict classification is a required element of proof. The Rome Statute, for example, defines 34 war crimes recognized in IAC (Art 8, sections 2(a) and (b)), but only 19 for NIAC (Art 8, sections 2(c) and (e)).
Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.
In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.
U.S. spokesmen continue to refer to the strike as unfortunate "collateral damage." This refers to the principles of distinction and proportionality which are clearly recognized in IAC (and most commentators would agree apply in NIAC as well). These rules essentially say that while an attack must be specifically directed at a valid military objective, which can include normal civilian objects which are put to use for military purposes (that's the "distinction" part), it is lawful to cause predictable harm to civilian objects or persons so long as the "collateral damage" is not disproportionate to the military advantage to realized by the attack (that's the proportionality part).
According to the Rome Statute, it is a war crime to conduct a disproportionate attack in an IAC (but not in an NIAC), however the way the statute is worded, the bar is set so high that prosecution is all but impossible. The relevant offense, defined in Art 8, para. 2 (b) (iv) requires "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 . . . which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."
This is a little more lenient than the NIAC standard in that you don't have to establish the deliberate attack on a protected person(s)/facility -- it does extend to "collateral damage" but it still requires a high degree of knowledge of the collateral consequences and the deliberate decision to go ahead with the attack anyway.
I thus have serious reason to believe that under the circumstances as I at least surmise them to be from the news accounts to date, it is not very credible to be tossing "war crimes" accusations about, even if there might be some degree of culpability for the attack.
Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.
In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.
U.S. spokesmen continue to refer to the strike as unfortunate "collateral damage." This refers to the principles of distinction and proportionality which are clearly recognized in IAC (and most commentators would agree apply in NIAC as well). These rules essentially say that while an attack must be specifically directed at a valid military objective, which can include normal civilian objects which are put to use for military purposes (that's the "distinction" part), it is lawful to cause predictable harm to civilian objects or persons so long as the "collateral damage" is not disproportionate to the military advantage to realized by the attack (that's the proportionality part).
According to the Rome Statute, it is a war crime to conduct a disproportionate attack in an IAC (but not in an NIAC), however the way the statute is worded, the bar is set so high that prosecution is all but impossible. The relevant offense, defined in Art 8, para. 2 (b) (iv) requires "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 . . . which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."
This is a little more lenient than the NIAC standard in that you don't have to establish the deliberate attack on a protected person(s)/facility -- it does extend to "collateral damage" but it still requires a high degree of knowledge of the collateral consequences and the deliberate decision to go ahead with the attack anyway.
I thus have serious reason to believe that under the circumstances as I at least surmise them to be from the news accounts to date, it is not very credible to be tossing "war crimes" accusations about, even if there might be some degree of culpability for the attack.
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