Tragedy In Kunduz: The Myth of International Law

"The conventional army loses if it does not win. The guerrilla wins if he does not lose." -Henry Kissinger

America's military involvement in Afghanistan is now over fourteen years old. What began as a quick and effective strike to overthrow the brutal regime of the Taliban has since then morphed into a protracted insurgency with no foreseeable end in sight. America has largely shifted the role of direct combat operations to the Afghan security forces, but this fight has seen several setbacks in recent years. The Taliban recently gained (and then lost) the town of Kunduz, while reconciliation talks with the Taliban have fallen apart. While retaking the city, the United States launched an airstrike which destroyed part of a hospital being used by the humanitarian group Doctors Without Borders (known as MSF in French) and killed at least twenty-two people. This terrible tragedy has raised numerous questions (and some serious accusations). MSF immediately denounced the attack as a war crime. So is the United States guilty? Well the answer is a little complicated.

If you are wondering why the United States is still involved in Afghanistan and can't understand why the mission continues over 14 years after it began, it is important to remember that Afghanistan isn't really a country. At least not in the traditional "Western" sense. It has (mostly) defined borders and is internationally recognized, but many of the people living within its borders have little concept of the State and certainly don't concern themselves with the politics of a capital city hundreds of miles away. This remains one of the central problems with governing the country. Though great strides have been made since the U.S. occupation to improve education and the quality of life in Afghanistan, building up a country does not happen overnight.

Kabul: More Than Just Dirt Streets And Goat Herders

War is rarely neat and cordial. The bombing of the Kunduz hospital proves that. However, the nations of the world (in response to horrific conflicts like the First World War) have all attempted to create a standard set of rules by which everyone should respect when conducting warfare. The regulation of indiscriminate weapons (poison gas, landmines), prohibition against targeting civilians, and the treatment of surrendered combatants are all the subject of international laws (like the Geneva Convention laws). War crimes are very specific violations to these laws.

The International Court Of Justice In The Netherlands

The problem with international law is that it doesn't really exist. One of the most important factors in determining law is its enforceability. In the United States, the central government enforces laws. But in the international community, there is no such central authority to enforce laws. If a law cannot be enforced, is it really a law? Though institutions such as the United Nations and the International Criminal Court can try to prosecute offenders, they tend to require a nearly unanimous effort by all of the world's major powers. This worked well against the Nazis after the Second World War, but it is tough to prosecute a major world power when they have veto power on the whole process. This is the problem right now in Syria with Bashar al-Assad launching indiscriminate attacks on his own people (Russia won't allow war crimes proceedings to go through). Even if a trial was successfully conducted, then what? Someone like Assad would not willing go to jail, so the problem of removing an offender from power remains.

So what good are laws of war if they can't be prosecuted? Well even if a law is not always enforceable, it can often still be followed out of good conscience. The United States could easily begin a campaign of intentionally bombing all kinds of civilian targets, and wouldn't expect any retaliation (a debate like this is stirring about America's use of drone strikes). However, the stigma against such actions is usually strong. America could expect widespread condemnation from its allies and would be hard pressed to find willing partners in continued military operations. Like the United Nations itself, international law may not be completely effective at fulfilling its main goal, but it is better than having nothing at all.

Can the bombing of the Kunduz hospital truly be considered a war crime? Probably not given the circumstances surrounding the strike. The Taliban had been using several buildings throughout the hospital complex to launch attacks against the Afghan security forces. The security forces called in the airstrike to the U.S. military, which conducted the attack. Everything else is speculation at this point. However, this is central problem with these restrictions: the Taliban (and similar organizations) do not follow the rules. By standing on the moral high ground, these forces are disadvantaged strategically. Insurgent groups know which tactics are off limits and actively try to provoke incidents which violate these rules. This is often done in order to isolate and alienate the invading force (this worked well in Iraq to help drive away the few allies still working with the United States).

Regardless of the circumstances, the incident in Kunduz is an absolute tragedy. The Taliban are guilty for using a hospital complex as a fighting outpost, and the United States is guilty for using explosive weapons so close to a civilian site. The U.S. government has been directed to perform a full investigation of the incident. This would be used to determine if the strike missed its original target or was a miscommunication between the U.S. and Afghan forces. Naturally, MSF has called for an independent investigation to be conducted by the international community. Though an independent third party would be ideal for determining the full truth of the matter, it's unlikely to go forward due to America's dominant standing within the organization. Whether accidental or intentional, it seems hard to believe that the American military would intentionally blow up a hospital for no reason. Regardless, Kunduz reminds us all that civilians often suffer the most in the chaos and confusion of war.

On a final note, President Obama announced this week that almost 10,000 American forces will remain in Afghanistan for the foreseeable future. Though the original plan was to draw down the military presence to around 1,000 by the end of next year, the recent setbacks of the Afghan security forces have shown that the country is not yet ready to maintain its own security. It should be no surprise by now that this blog rarely advocates for a military option when others will do, but in this case it appears to be the appropriate action. If Iraq is any indicator, the premature exit of a stabilizing military force can often cause problems down the road. There will come a time when the American military is no longer needed in the country. Unfortunately, it isn't now.

In all, these are the types of problems armies have to deal with all the time now. Fighters don't meet in a neutral battlefield and shake hands. Instead, they hide out in hospitals and force the stronger power to make these tough decisions. This doesn't excuse the attack on the hospital complex, but it should help provide some important context for this tragedy.

TL;DR: War is hell.