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Koran burnt, war crime… the US army weighs down the ISAF mission (Maj)

(credit: US Army)

(BRUXELLES2) There was the affair of the burnt Koran, an "unintentional" event. Today there is the tragedy of the death of several civilians (women, children included*) killed by an American soldier on a mission in Kandahar province. What looks on the one hand to a small error of subordinates (it is what we leave to think) and to a "loss of lead" of a soldier on mission can also lead to wondering about the well- founded today of the presence in Afghanistan.

There is a problem... if coalition soldiers come to commit what can be considered a war crime and a violation of the Geneva conventions. One can also only be flabbergasted in front of a certain levity of the American command and NATO which, certainly, merge in apologies but... that is all. But this international mission has been in Afghanistan for 10 years to stabilize the country, restore the rule of law and enforce certain humanist values. We are there contrary to all these principles.

Incorrigible lightness

One can thus wonder about a certain lightness with which the incident of the Koran was taken on the American and NATO side. The "unintentional" side is just as revealing as if it had been intentional. How, after ten years of service, US soldiers have not been clearly informed that there are certain symbols that cannot be touched? They know it for the flag of the nation they revere (rightly), why not the other symbols of the countries where they are? We border there on profound imbecility (there is no other word!), on an outdated feeling of superiority but also and above all on the absence of rigor and discipline.

This casts more than doubt on the instructions given to the soldiers, the chain of command and the state of mind that reigns in the US bases in Afghanistan. As for the soldier's criminal act, it was taken seriously in Washington. “"I was shocked and saddened to hear of the shooting incident today in Kandahar Province. I offer my profound regret and deepest condolences to the victims and their families. I pledge to all the noble people of Afghanistan my commitment to a rapid and thorough investigation . " thus quickly specifies General Allen, commander of the ISAF (the NATO operation in Afghanistan). " We will conduct a thorough investigation, this person will be held accountable. “, he explains on CNN. But he can't help but add. " And we'll move on. Our relationship (with the Afghans) is too deep, too long, we have all already sacrificed too much to allow this single incident to bring it down”…

A bit tight for my taste. We can indeed always take refuge in "isolated" cases. But precisely what has just happened twice suggests that this is not an isolated case. But a recurring problem. In this, these events are not just a "small" news item but have a greater resonance.

A strategic mistake

Do we change anything?

During his monthly briefing, the NATO Secretary General, AF Rasmussen said " not wanting to change the strategy of the Alliance in the country... The way things are going, if the Allies do not change their behavior and tactics, the infallibility of the strategy risks being reduced to a trickle, and early withdrawals 'accelerate. It will become intolerable in some countries, which have always claimed that Afghanistan was a "peace mission" to continue to display this fiction; it will be difficult in others, subject to parliamentary control, not to lead to a deep questioning: What are we doing in Afghanistan? What objective, what means, what output?

An ally who does as he pleases

By their actions, the US military undermines the mission of the ISAF. But this is not a new fact. We fall back here, in one of the ruts of this Afghan operation which sees one of the allies doing as it pleases, without any consultation with either its allies or the United Nations, in particular by carrying out air raids (drones) as it pleases either in Afghanistan or in Pakistan (neighbouring State, which is not normally concerned by the ISAF operation). There is a flagrant lack of cooperation here, contradictory with the demand for solidarity demanded of all NATO allies and regularly recalled by the Americans, in particular to enjoin them to "share the burden" and maintain their commitment.

The calculation of the falcons

Admittedly, some "hawks" can count on an additional radicalization of Afghan society, a multiplication of terrorist attacks making it possible to justify maintaining troops beyond the terms indicated. I don't believe in theory, not that some haven't thought of it, but its outcome seems illusory to me. The period of budgetary restrictions which runs everywhere, including in the United States, is a factor too significant for the chiefs of defense of the member countries of NATO to allow a reversal of the device today.

A soldier who escapes Afghan jurisdiction, why?

The privilege of jurisdiction: current

The soldier will be tried in the United States in accordance with the agreements signed by the Americans. It should be carefully considered that these agreements are not specific to the United States. In almost all international missions, countries are careful to sign an agreement with the host country specifying that any incident involving one of their members will fall under their national jurisdictions. This is the case for the French, Belgians, Germans ... engaged in Afghanistan. This is also the case in all European missions - where prior to any operation being launched, a SOFA agreement (if it is a military mission, the agreement bears the status of the Forces) or SOMA (if it is a civilian mission, the agreement relates to the status of the Mission) is approved on behalf of the European Union for all participating States.

... astonishing in the event of a war crime

However, one can wonder about this privilege of jurisdiction in the event of a war crime. It seems in the state of international law incompatible with the spirit of the Geneva Conventions to leave the act unpunished. And the Convention must take precedence over other international acts, unless its impact is reduced to nothing. This is a question as much of principle as of fact. There can therefore be no exception to this international law which has general value. With an additional complication on the American side.

... but not illegal

What is prohibited by the Geneva Conventions are the facts and their impunity. The Geneva Conventions leave it to the belligerent authorities both to set the penalties and to examine which court will be responsible for convicting the perpetrator. In fact, the judgment by an American court of a soldier who committed the acts is therefore not illegal. It remains to be seen that all the perpetrators - including his accomplices - are tried. In this case, one can wonder because certain reports from the field, relayed by the press agencies, show that the soldier in question was not alone.

... complicated by American specificity

The United States has not signed Protocol II to the Geneva Convention on the Protection of Civilians in Non-International Conflict, while Afghanistan has. A very intentional non-signature. The Americans have always feared seeing one of their soldiers tried for an act similar to the one that just happened in Afghanistan. In this case, one could thus discuss the application of this protocol to these facts: what counts then - for the application of the protocol - is " the nationality of the perpetrator “, explained to me a jurist expert in international humanitarian law. In any case, Article 3 of the Geneva Convention (repeated in all the conventions) prescribes the protection of persons " not taking part in combat ". (**)

(*) The soldier - who was part of the special forces support forces (Navy SEAL) - entered three houses, killed the occupants, a total of 9 children and 3 women, before burning their bodies, according to the testimonies collected on the spot by the agencies.

(**) Article 3 Geneva Convention - In the event of an armed conflict not of an international character and arising in the territory of one of the High Contracting Parties, each of the Parties to the conflict shall be bound to apply at least the following provisions :
  (1) Persons taking no direct part in hostilities, including members of the armed forces who have laid down their arms and persons who have been rendered hors de combat by illness, wound, detention, or for any other cause, shall, in all circumstances, treated with humanity, without any adverse distinction based on race, color, religion or belief, sex, birth or fortune, or any other similar criteria.
  To this end, are and remain prohibited, at all times and in all places, with regard to the persons mentioned above:
  (a) attacks on life and bodily integrity, in particular murder in all its forms, mutilation, cruel treatment, torture and torture;
  (b) hostage-taking;
  (c) outrages upon personal dignity, in particular humiliating and degrading treatment;
  (d) Sentences pronounced and executions carried out without a prior judgment rendered by a regularly constituted tribunal, accompanied by the judicial guarantees recognized as indispensable by civilized peoples. To see the complete text of the 1st Geneva Convention

(Maj) clarifications on the notion of war crime and impunity

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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