Why NATO/US’s “Collateral Damage” and “Errors” are not a War Crime?

Many innocent civilians were killed in American military interventions around the world – from Vietnam and Serbia to Iran and Afghanistan, because of the alleged “errors” or “collateral damage” – without consequences for civil and military leadership. In addition to political, military and every other power, Americans secured itself with legal mechanisms.

Twenty-two civilians, wounded and doctors, among them three children, were killed in the American bombing of a hospital in the Afghan city of Kunduz. Americans acknowledged the error and apologized. The President of the United States expressed his condolences, the military leadership announced three independent investigations. “Doctors without borders” (MSF) do not believe them, they seek an independent arbitration by the international commission.

Not even the fact that Afghans demanded the action does not justify what Americans did, allegedly because there were wounded Taliban in the hospital. Even the commander of US forces in Afghanistan acknowledged that before the attack, they had to check who was the target.

“This is a medical facility which has special protection in the international law, much larger and more comprehensive than other civilian objects. One cannot speak about collateral damage here,” said Vesna Knezevic Predic of the Faculty of Political Sciences for RTS.

“Collateral damage” – Orwellian term, as it is referred to by CNN, can be used only when the objective is primarily military. Even then, under one condition.

 

“Collateral victims must not be disproportionately higher in comparison to what is military advantage,” said Ivan Jovanovic, an expert in the international criminal law.

This is not a war crime “but an incident in the fog of war.” This is an explanation of US Senator John McCain for the bombing of the hospital. Unconvincingly. When the goal is a medical facility, the number of those killed is added to the number of those who could have been provided with help if doctors survived.

This is why MSF seek international arbitration. Before the International Criminal Court in The Hague? Hardly. The United States have not signed the Rome Statute which established it. American Heritage Foundation researcher Steven Groves believes that this is the way it should remain.

“The Rome Statute created a seriously flawed institution that lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states in some circumstances. These concerns led President Bill Clinton to urge President George W. Bush not to submit the treaty to the Senate for advice and consent necessary for ratification.

 

After extensive efforts to change the statute to address key U.S. concerns failed, President Bush felt it necessary to “un-sign” the Rome Statute by formally notifying the U.N. Secretary-General that the U.S. did not intend to ratify the treaty and was no longer bound under international law to avoid actions that would run counter to the intent and purpose of the treaty. (…) The U.S. has taken legislative and diplomatic steps to protect U.S. citizens, officials, and military personnel from the ICC’s jurisdiction, which the U.S. considers illegitimate. (…) ” said Groves.

However, they could still find themselves before the court in The Hague, if it is established that they are unable or unwilling to punish those responsible for violations of international law, experts say.

“How likely is it that in some of these cases where the violation is obvious, the International Criminal Court or any other international institution could come to a conclusion that the United States are unable or unwilling to sanction violation? It is a matter of which we do not have think much, as the answer is quite clear,” said Vesna Knezevic Predic.

Americans have protected themselves with another instrument from the international responsibility. They guarantee the exemption of US citizens from the jurisdiction of the ICC with bilateral agreements.

However, at least formally, there are mechanisms. America signed the Geneva Convention and Additional Protocol which provides establishment of a commission competent to establish facts, at the initiative of the signatory states.

“Unfortunately, so far the Commission has not had a lot of work,” says Vesna Knezevic Predic.

Experts are convinced that there would be a lot of work if the Commission dealt with, either alleged collateral damage, or the mistakes made during American interventions from Vietnam, Iraq, Sudan, to the bombing of Yugoslavia. Bill Clinton apologized for the destruction of the Chinese embassy and called it an accident.

Nobody apologized for the killing of three-year-old Milica Rakic, at least 14 killed in train in Grdelica Gorge, or for 16 reporters killed in the bombing of RTS. Nobody was responsible for them or any other victim of NATO bombing.

There is a belief among lawyers that Croatian General Ante Gotovina was not convicted for indiscriminate bombing, because otherwise it would be a precedent for future judicial practice.

“By which American generals, or officers but also generals and senior officers of other armies that also participate in the wars in the world could easily be found responsible or to answer for incidents similar to the one in Kunduz,” said Ivan Jovanovic.

In the case of bombing of the hospital in Afghanistan, lawyers believe that the responsibility of the United States should be considered separately from the responsibility of individuals who ordered and executed it. It is difficult to belive that America will be tried, but as far as its citizens are considered, everything is, obviously, in the hands of the US courts.


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