On October 3, a US AC-130 gunship turned a hospital in Kunduz, Afghanistan, into a crater, killing at least 30 civilians, including personnel from Doctors Without Borders.
From a war crimes perspective, one can hardly imagine a more serious targeting incident, and the shocking story behind the incident might suggest that the US blunder will suddenly make Israel look less bad comparatively in dealing with some of its alleged war crimes.
But war crimes are a legal category, not a general public feeling after viewing horrifying pictures of the attack, and the devil is in the details.
There are a myriad of unanswered questions, and the details may still change and get worse in the twists and turns of military investigations into clouded alleged war crimes.
But another perspective is that the impressive speed and detail of the US response may pressure Israel to do the same in the future.
On Wednesday, the US came out with its long-awaited command investigation report – less than two months after the incident.
The speed of producing the report is impressive, as the incident involved a triad of special forces players on the ground, an airborne strike force and commanders back at Bagram Airfield.
Also, the US admissions this early in the game, before the file has even been handed to US military lawyers to make determinations about whether crimes were committed, is highly unusual.
What was the tragedy of errors? So far, the US has said that the AC-130 took off without a normal mission brief or a list of no-strike targets; key electronic systems failed on the plane, preventing the sending of a video feed to higher-level commanders; the aircraft’s targeting system was misaligned and told the team to target what they could see was an empty field; the team picked the hospital based on a less accurate visual description; senior Bagram commanders approved the target, even though they did have the no-strike list, which included the hospital; and the strike continued even after the hospital notified the US military.
First, it is incredible that there were so many errors, and that could make Israel look less bad, relatively.
Second, and along a different line of thinking, it is very impressive that the US is admitting in this much detail to the errors before a full criminal investigation stage.
Regarding the errors, not everyone involved was special forces, but many were. That means parts of the US’s “A team” were involved, and yet an unthinkable number of mistakes were still made.
Why? They left on their mission improperly prepared, their computers broke, they made an awful judgment call in real time about how to adjust in light of the circumstances, and headquarters failed to catch the error.
Why? Apparently, the AC-130 took off hastily, in reaction to a different emergency, but was then also rerouted to hit a building taken over by the Taliban in order to support Afghan government forces.
In short, a bunch of real-time war situations were moving too fast, and someone tossed proper procedures out the window.
Why Bagram headquarters did not veto the attack is one of the issues least explained by the report, and will remain a hot issue until it is addressed.
Many officers may get disciplined or discharged for poor conduct or violating the rules of engagement, but if at the end of the day we are talking at most about cumulative gross negligence, then any criminal charges would be minor.
For serious war crimes like murder or manslaughter, there needs to be some level of intent to kill civilians, and nothing that has come out so far indicates such intent.
Two interesting issues are whether going ahead with the attack without the no-strike list has evolved into something more serious than a disciplinary violation, and whether the repeated attacks on the hospital were criminal.
The systemization of “no-strike lists” is a fairly new development by Western forces to be more careful about their law of armed conflict obligations not to harm civilians, since they are fighting more and more in urban environments filled with civilians.
But there is not much about these lists as a formal legal requirement.
Is leaving the base without the list (when such a list exists) and going forward with an attack a legal problem? Also, the US repeatedly hit the hospital, despite no return fire and not observing any hostiles. Even if the initial strike was a clear mistake, did the continued strikes rise to the level of something beyond a mere mistake? Whether US personnel are indicted or not, Israel can point to these US failures where it has made mistakes in war to show it is far from the only one that can make mistakes.
But I return to what was impressive about this report and how it could lead to more pressure on Israel.
The IDF made some very initial disclosures about its investigations into alleged war crimes only two weeks after the summer 2014 Gaza war ended, but the first time it started to reveal serious operational detail was December 2014, about 14 weeks after the war ended – about twice as long as the US took.
This gets worse when one considers that the December 2014 first real revelations of details was only a first batch of detail, with several additional batches, some as late as June and some that still have not come out 15 months after the war.
In September, the Ciechanover Commission, named for former foreign ministry director-general Joseph Ciechanover, issued guidelines stating that the latest a decision could be made on whether to bring an indictment against an IDF soldier for war crimes would be 21 months from the incident being reported.
Israel could say much of the above is apples and oranges, and that the potential criticisms are off base.
The US report was a command investigation, not the results of a more definitive criminal investigation like Israel’s later announcements, and the US got to focus on one incident, while Israel was trying to examine up to 500 from the war at once.
Also, the IDF earned some credit with the amount of detail it provided about its investigations, with even the mostly critical UNHRC report on the 2014 Gaza war issuing more nuanced criticism of the IDF’s conduct in large part because of the detail. And the IDF’s initial revelations in September and December 2014 were a vast improvement over its slower investigations from past wars.
But there is no question that the US just leapfrogged Israel both in the speed of its initial report in an extremely complex incident and the unusual detail provided.
This complex incident is exactly the kind that Israel argues it needs far more time to dissect because of the many moving pieces.
Some of the details are also exactly the kinds of details that Israel has still refused to provide and critics have demanded – particularly regarding explaining what aspects of intelligence failed and led to mistakes.
Whether the US’s push for quicker announcements and disclosing greater operational details will put pressure on Israel to do the same, or whether the US’s tragedy of errors will get the US and others to cut Israel some slack, remains to be seen.