If foreign troops invaded America, rounded up people seemingly at at random and used war planes to bomb and kill civilians, including children we might consider those actions vile and cruel war crimes. Indeed, I seem to recall a right wing fantasy film from the days of the Cold War that depicted foreign occupiers in just this manner. You might have heard of it: Red Dawn. I even hear they plan to remake it with the Chinese reprising the role of the villainous Russians and Cubans from the first film. I imagine the 20-30% of the people who still support Bush and get their daily dose of propaganda from the “Fair and Balanced” news network will no doubt ensure the profitability of the new, improved version.

Still, Red Dawn was in many ways, aside from the right wing slant, merely a typical Hollywood horror/thriller movie. What’s happening in Afghanistan is very real, and the “bad guys” dropping bombs from the air and murdering innocent people are the military forces of the United States of America:

The Red Cross says air strikes by US forces in Afghanistan on Tuesday are now thought to have killed dozens of civilians including women and children.

It says civilians were sheltering from fighting in the western province of Farah when their houses were struck.

Obviously, if this was an isolated incident of “collateral damage” it would be bad enough. Unfortunately, it is only the latest in a series of deaths caused by the use of “air power” as a “force multiplier” in Afghanistan. As this report by Human Rights Watch last September makes clear, hundreds of Afghan citizens have been killed because the US and NATO forces in the country have employed air strikes as the dominant war fighting doctrine against the Taliban.

As a result of OEF and ISAF airstrikes in 2006, 116 Afghan civilians were killed in 13 bombings. In 2007, Afghan civilian deaths were nearly three times higher: 321 Afghan civilians were killed in 22 bombings, while hundreds more were injured. In 2007, more Afghan civilians were killed by airstrikes than by US and NATO ground fire. In the first seven months of 2008, the latest period for which data is available, at least 119 Afghan civilians were killed in 12 airstrikes. […]

These figures do not include the airstrike on August 22, 2008 in the village of Azizabad, where many civilians were killed in airstrikes in support of an OEF operation. Although the total number of dead was disputed at the time of writing, the political fallout was significant. The Afghan government ordered its ministries of foreign affairs and defense to review the presence of foreign troops and regulate their presence with a status of forces agreement, negotiate a possible end to airstrikes on civilian targets, uncoordinated house searches, and illegal detention of Afghan civilians.

This followed a July 20 airstrike in which US forces killed nine Afghan National Police officers in Farah province. The US, in particular US Special Operations Forces operating under OEF, have been heavily criticized for lack of coordination and communication with Afghan forces, and the deaths of the police officers highlights continuing problems in this area. Also on July 6, 2008, an airstrike against a “target of opportunity” (thought to be an insurgent force) in Nangahar province killed 47 Afghan civilians taking part in a wedding. Burhanullah Shinwari, who headed an Afghan investigation into the incident, said, “The Afghan people cannot afford more civilian casualties. Therefore, we will demand that President Karzai talk with foreign forces to bring an end to such attacks.”

The harm caused by airstrikes is not limited to the immediate civilian casualties. Airstrikes have caused significant destruction of civilian property, and have also forced civilians to flee and vacate villages, adding to the internally displaced population of Afghanistan. In every case investigated by Human Rights Watch where airstrikes hit villages, many civilians left the village because of damage to their homes but also because of fear of further strikes. People from neighboring villages also sometimes fled in fear of future strikes on their villages. They have also had significant political impact, outraging public opinion in Afghanistan and undermining public confidence in both the Afghan government and its international backers.

Most of these deaths are the direct result of unplanned air strikes which have been ordered in situations in which the military simply doesn’t know whether civilians are in the area to be bombed, or simply doesn’t care. And that is where the line is crossed from legitimate pursuit of enemy fighters to illegal acts which endanger civilians. US military lawyers are not unaware of the issue. Far from it.

A senior US military lawyer told Human Rights Watch, “We will never engage [with airstrikes] when we know civilians are in a compound. Problems happen when we don’t know.” According to Colonel David Diner, a US Judge Advocate General, US planes have dropped bombs when they did not know for certain who was in a compound. So long as a valid military target is identified, such attacks are not unlawful on their face, but they raise concerns about whether “all feasible precautions” have been taken to minimize civilian loss, as required by the laws of war. […]

Another problem may be the differing missions and Rules Of Engagement (ROE) between US and NATO forces. When on offensive operations, both NATO and US forces use the same ROE. However, when on the defensive they use different ROEs, the US rules allowing for use of force-including airstrikes-in a broader range of situations. Offensive operations are defined here as planned engagements while defensive operations range from TICs to responding to perceived threats.

NATO and the US both require “hostile intent” for aerial munitions to be employed to defend their forces. NATO defines “hostile intent” as “manifest and overwhelming force.” The US ROE defines hostile intent as “the threat of the imminent use of force,” a much lower threshold than NATO for employing airstrikes, permitting anticipatory self-defense. According to a senior US general in Afghanistan: “For the United States, ‘hostile intent’ is the use of imminent force. One difference is the US says imminent does not have to mean instantaneous. US troops have a different standard [than NATO].”

(emphasis added; end note numbers removed)

In short, the US military has been much more willing to employ air strikes in situations where the threat to its own troops is not immediate, and where the danger to civilians from such strikes is either unknown or ignored. US forces have used air strikes indiscriminately to gain a short term tactical advantage which undermines the United States own long term strategic objectives.

NATO lawyers involved in airstrikes told Human Rights Watch that in some TIC situations in which airstrikes have been called in, US and NATO forces did not know who was in the area they were bombing. Civilian casualties increase when forces on the ground do not have a clear picture of the location and number of combatants and civilians in an area. Such gaps in knowledge, when combined with fear and the “fog of war” at times mean that forces resort to airstrikes when options less likely to cause civilian loss are available. In winning the tactical battle quickly on the ground with bombs, US and NATO forces risk losing the strategic battle for the support of the population, essential in counter-insurgency operations.

So are these air strikes, a tactical doctrine which the Obama administration has not halted, as this latest massacre from the air indicates, violations of international conventions regarding warfare? Are they, to be blunt, war crimes? A case can be made that they are.

International humanitarian law imposes upon warring parties legal obligations to reduce unnecessary suffering and to protect civilians and other non-combatants. It is applicable to all situations of armed conflict, without regard to whether the conflict itself is legal or illegal under international law, and whether those fighting are regular armies or non-state armed groups. Individuals who commit serious violations of international humanitarian law with criminal intent can be prosecuted for war crimes before national or international courts.

The fighting in Afghanistan, because it involves combat with non-state actors, is not strictly covered by the protocols of the Geneva Conventions, specifically “The First Additional Protocol of 1977” (a/k/a Protocol I) which requires protection for civilians. However, those protocols have been recognized by many nations, including the United States, as codifications of customary international law relating to armed conflicts. Thus, while the Geneva Conventions do not apply as a treaty obligation, that does not mean that US forces can ignore the humanitarian and legal requirements specified in Protocol I to protect civilians from harm.

The principle of distinction is the keystone of the law regulating conduct of hostilities. It requires parties to a conflict to distinguish at all times between combatants and civilians. Operations may only be directed against military objectives, and civilians and civilian objects may not be deliberately attacked. […]

International humanitarian law also prohibits indiscriminate attacks. These are attacks of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use means that cannot be directed at a specific military objective. […]

Also prohibited are attacks that violate the principle of proportionality because they are expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive compared to the concrete and direct military advantage anticipated from the attack.

Clearly, the use of air power to replace boots on the ground encourages the use of bombs, missiles and other attacks by war planes that directly increase the risk to civilians. In counterinsurgency operations, from a strictly military standpoint the excessive killing of civilians is counterproductive. It increases opposition to the forces who employ the weaponry that unnecessarily places civilian lives at risk.

From a legal standpoint, however, the distinction is even more stark. It’s a crime, pure and simple. Whenever US forces use air power without clear knowledge of the extent of civilians located within the targeted area, they are violating international law. By all accounts, the rules of engagement the American forces operate under have increased the number of civilians who die or whose lives have been placed at risk in violation of the laws of war. Those rules should not only be reviewed by the Obama administration, but they must be changed immediately so that everything feasible is done to limit civilian casualties. Until that is accomplished, the US military is acting in a criminal manner outside the customary laws which govern military conflicts. In short, our forces are committing war crimes. It’s long past time for them to stop. The slaughter from the skies for which we are ultimately responsible must end. The blood of these people is on our hands, and blaming the Taliban for using civilians as “human shields” is no excuse.

Rohul Amin, the governor of Farah province in western Afghanistan, where the bombing took place during a battle on Monday and Tuesday, said he feared 100 civilians had been killed.

The provincial police chief, Abdul Ghafar Watandar, who accused the Taliban of using the civilians as human shields, said the death toll could be even higher. If confirmed, those figures could make the strike the single most deadliest for Afghan civilians since the opening of the campaign to topple the Taliban in 2001.

One crime does not justify another. Time for Obama to step up to the plate and do the right thing. Air strikes in Vietnam didn’t win the war, nor did the use of air power in Iraq. And it won’t in Afghanistan, either. So, isn’t it time to stop committing atrocities merely because we have the military toys to do so?