- Some of these incidents may have been Iraqis captured not by US troops but by other Iraqis and US soldiers were making observations. If this was the case I’m not sure the law is that clear as to who was responsible – I think it would depend at what point during the occupation that this occurred and who had effective control of the country.
- These reflect larger problems with handing over prisoners in conflicts like Afghanistan and Iraq which are very much tied up with the problem of trying to hand over sovereignty. Essentially, a military power is trying to force a country to work, and to have an infrastructure (including prisons) as soon as possible. After all, this is what is expected and what the international community was demanding. So taking over prisons is clearly not allowing Iraq to be sovereign, but not acting may have been a violation of the laws of war. Which is it to be? And I’m sure asking the Iraqi insurgents/leaders/prison guards during the insurgency there nicely to stop electrocuting their prisoners was probably not particularly effective.
This issue of large numbers of detainees located in prisons that do not meet even the most basic international standards in conflicts where Western nations are engaged in an armed conflict (particularly where the state on where it takes place has a de jure sovereignty, but de facto quasi-sovereignty) has emerged as a major problem over the last decade and should be taken up by international legal scholars and Western states so as to hopefully avoid this problem in the future.
Despite what is sometimes argued, fighting wars is not a crime. But it is against the law for weapons-bearers to target large areas indiscriminately without regard for potential collateral damage. Instead, they are required to carefully choose only legitimate military targets.
In my view, the same standard could be applied to whistle-blowing advocacy groups: organizations like Wikileaks should engage in precision targeting of legitimate military foul-ups, rather than indiscriminate bombshells aimed at the entire military-industrial complex; and most importantly, they should aim to minimize collateral damage.
At Foreign Policy, I argue if Wikileaks were to follow such standards in disseminating future information, it could go far to regain its credibility as a champion of rather than threat to human security:
Criticisms aside, WikiLeaks adds real value to the international regime governing the behavior of soldiers in wartime by promoting precisely the sort of accountability that the Geneva Conventions require but military culture tends to discourage.
Imagine if WikiLeaks specialized only in receiving and publicizing reports of specific war crimes submitted by troops in the field. Instead of dumping 90,000 documents into the public domain and letting the chips fall where they may, the organization would serve as a conduit through which to reveal specific events that militaries might otherwise be tempted to cover up. Such a mechanism would ensure that specific war crimes allegations were made public and properly investigated without undue risk to whistle-blowers. That access point of information would encourage governments to take a stronger lead in investigating and punishing transgressions in the first place — a requirement under treaty law — potentially deterring future atrocities.
In short, the value of whistle-blowing should not be discounted – as Marc Thiessen has done – simply because it can do harm when done irresponsibly. Indeed a more targeted whistle-blowing architecture of the type Wikileaks has pioneered could be an indispensable element of 21st century security sector reform.
[cross-posted at Current Intelligence]
Last Monday, Julian Assange told reporters in London that the Afghan War Diaries reveal war crimes in Afghanistan, and reiterated this statement on Democracy Now! midweek. The claim has been widely reported and is being reported as fact by some sources. This installment in my series on the Wikileaks story will evaluate this claim and correct a few conceptual inaccuracies circulating in the press coverage.
But first, here’s what this post is not arguing. I am not arguing that no evidence of war crimes exists in the war logs. Actually, it would surprise me if there are not some genuine international humanitarian law violations evidenced in those documents, as some occur in every war, and many are already well known to have occurred in this war. Any new allegations should be investigated immediately by the responsible governments (if indeed they have not done so already).
That said, several of the examples Assange has given in his interviews so far or that have been reported in the press are not actually war crimes, and those that may be have long been known to those following the war.
This brings me to three important points about whether Assange’s “revelations” of “war crimes” can justify the potential risks to which he exposed others in “blowing the whistle.”
1) The Term “War Crimes” Refers to The Means By Which War is Waged, Not the Question of Whether War Itself Is Legal or Ethical. The laws of war are divided into two categories. The first is the law on the use of force governing whether specific wars are justified (grounded in the UN Charter regime). The second, which includes the law of armed conflict (Hague Conventions) /international humanitarian law (Geneva Conventions), governing how war may be conducted whether or not it’s justified, as well as the treatment of non-combatants. The concept of “war crimes” refers to grave violations only of the second set of treaties; a widely accepted list of war crimes appears in the Article 8 of the Rome Statute establishing the International Criminal Court.
Assange’s main point seems to be that war itself is hell, rather than that soldiers have sometimes behaved in hellish ways:
This material shines light on the everyday brutality and squalor of war. The archive will change public opinion and it will change the opinion of people in positions of political and diplomatic influence.
Well, war is hell. (Though, sometimes, so too is peace.) But the fact that interstate war brings with it “squalor and carnage” doesn’t necessarily imply war crimes. For that we need to look at how soldiers are conducting themselves in a given war, and we need a basic familiarity with relevant treaty law.
2) Not Everything Bad That Happens in War Is A War Crime. Here are some things Assange is talking about that are definitely not war crimes.
Accidentally Killing Civilians. The US does an awful lot of this, and I’ve argued before that that policy is ethically bankrupt. But it’s not a war crime, as the Geneva Conventions drafters accepted that unintentional deaths may occur in wars. Killing civilians on purpose is a crime, but the US does not have a policy of intentionally murdering civilians. Quite the contrary. Although there have been cases where US individual soldiers committed war crimes, official US policy has in fact been, in recent decades, to incur ever greater risks in order to avoid hitting civilians. The best of intentions don’t mean civilian casualties will ever be zero in a conflict zone. But Assange’s claim that civilian casualties have been tragically high doesn’t equate to evidence of war crimes – at least not necessarily.
Starting a War in Which Your Enemy Then Purposely Kills Civilians. The Taliban does appear to have a policy of intentionally murdering civilians. In fact, many of the “war crimes” described in the Afghan War Diaries – such as IED attacks on civilians – are actually Taliban crimes. It’s disingenuous for Assange to claim that the US war itself is responsible for these actions just because we started the war, since the Taliban were also intentionally slaughtering well before the 2001 air war.
Failing to Keep Accurate Track of the Number of Accidental Civilian Dead. The reports definitely demonstrate this pattern to an enlightening degree: when US troops hit civilians accidentally, the field reports often gloss over evidence of the body counts. I think this is terrible practice, but to my knowledge this isn’t a violation of war law, because (to my knowledge) governments are not actually required to record and disclose civilian casualties. If I’m wrong on this one someone point me to the relevant provision in treaty law; I haven’t researched it closely, though Stephanie Carvin has, drawing the same conclusion.
3) Revelations of Things We Already Knew Aren’t Revelations.A number of practices in Afghanistan evidenced in this report are in fact argued by some including myself to be war law violations. But these practices had already been long documented and condemned prior to the Afghan War Diaries.
Assassination of Alleged “High-Value Targets”. The documents “reveal” that ground troops are engaged in missions to kill specific terror suspects, which in some cases (though not all) are arguably war law violations. (I say arguably because while I would have argued that suspected militants should not be considered legitimate targets unless engaged in hostilities, the Obama Administration and some legal experts whom I respect disagree with me.) At any rate, this debate over “targeted killings” is an old one. How are the actions of Task Force 373 any different from those of drone pilots assasinating suspected militants (and their families) from the air? In both cases, US troops hunt suspected insurgents by stealth instead of engaging them in the open, and take them out often along with a multitude of innocents. In either case, the central war law issue is the same: is it right for our armed forces to kill people, even bad people, who are not at that time engaged in hostilities (that is, is any civilian area where a suspected militant might be at the moment a legitimate military target?) (I say no; the Obama Administration has argued yes.) If the public wasn’t already incensed enough about this to force policy changes, I’m not sure how this new evidence of the same practice engaged in by ground troops is going to tip the balance.
Unacceptably High Levels of Collateral Damage. Well yeah. Many of us have been saying this for years. The Administration hasn’t listened, and aside from the fact that researchers like me can now calculate exactly how unacceptably high they are (more on that soon) and maybe capture variation in the unacceptability barometer for various rules of engagement to conduct a precision human security analysis, there’s no there there.
A Polish My Lai? One story Assange describes on Democracy Now! is an alleged massacre of civilians by Polish ISAF troops, and this is the sort of thing that indeed qualifies as a war crime. But this too was already reported at the time. And unlike My Lai, there was no need to “blow the whistle” on this one, because it was never denied or covered up: the Polish government has already exhibited due diligence by investigating and trying those responsible. According to the Warsaw Business Journal:
A Polish investigation linked seven members of the Polish military with the attacks. A trial to determine their guilt began in February 2009 and is ongoing. The defendants face prison sentences of between 12 years and life for the killing of civilians and/or firing on an unarmed target. It is unclear whether the Wikileaks documents will have any affect on the court proceedings.
If so, Assange may have undermined due process in a criminal proceeding – one of many potential knock-on effects of his disclosures whose true extent may never be known. He has also apparently broken Polish law. The same article asserts:
Another revelation contained in the incident reports is the name and rank of the Polish counter-intelligence officer involved in the investigation of Nangar Khel. The publication of this information is a crime in Poland, carrying a sentence of five to eight years in prison. It is also a crime in the United States, as evidenced by the Valerie Plame investigation of 2003.
One Final Thought. Though I remain highly critical of Assange for dumping sensitive data online indiscriminately, I feel compelled to emphasize that I am not an opponent of whistle-blowing per se. In fact, I strongly support whistle-blowing specific cases of actual war crimes – like an actual “My Lai” where the responsible government is covering up the incident rather than prosecuting the offending troops – in a way that calls attention to perpetrators and their bystander governments while protecting the identities of vulnerable populations. (Which is not, however, what Assange has actually done here.) More on all that in a future essay.
Quoting an anonymous former military intelligence officer, that is how Adam Swerer described the Wikileaks’ archive published Sunday in an op-ed earlier this week. Joshua Foust concurred in a PBS essay:
If I were a Taliban operative with access to a computer — and lots of them have access to computers — I’d start searching the WikiLeaks data for incident reports near my area of operation to see if I recognized anyone. And then I’d kill whomever I could identify. Those deaths would be directly attributable to WikiLeaks.
Even with the names removed from these reports, you know where they happened (many still have place names). You know when they happened. And you know an Afghan was speaking to a U.S. soldier or intelligence agent. If you have times, locations and half the participants, you don’t need names to identify who was involved in a conversation — with some very basic detective work, you can find out (and it’s much easier to do in Afghanistan, which loves gossip).
This morning, the New York Times confirmed that the presumably heavily redacted leaked reports contain numerous data-points, including specific names, that will identify Afghan informants who have provided intelligence to US forces. The Afghan government is rightly appalled:
“Whether those individuals acted legitimately or illegitimately in providing information to the NATO forces, their lives will be in danger now,” said Mr. Karzai, who spoke at a press conference just after he said he discussed the issue with his advisors. “Therefore we consider that extremely irresponsible and an act that one cannot overlook.”
While the government mulls options for prosecuting Assange (more thoughts on that shortly), consideration should probably be given to the legal or ethical culpability of the mainstream press as well. There are professional standards in most industries about the protection of sources. (As a political scientist, if I published my human subjects data in such a way as to put their lives at risk, I would face serious professional consequences.) Yet the paper is blithely oblivious to its own role in publicizing and legitimizing Wikileaks’ actions:
A search by The New York Times through a sampling of the documents released by the organization WikiLeaks found reports that gave the names or other identifying features of dozens of Afghan informants, potential defectors and others who were cooperating with American and NATO troops.
The Times and two other publications given access to the documents — the British newspaper The Guardian and the German magazine Der Spiegel — posted online only selected examples from documents that had been redacted to eliminate names and other information that could be used to identify people at risk. The news organizations did this to avoid jeopardizing the lives of informants.
They may have redacted names in their print versions, but they publicized the archive and linked to it, ensuring its contents maximum exposure. Does this fall within the bounds of appropriate conduct for professional journalists? Based on a reading of the “minimize harm” rules in the Society of Professional Journalists Code of Ethics, I have my doubts.
Even if there’s no legal requirement, it seems to me that the mainstream news media could and should play a significant role in cases like this in disseminating rights-based norms for reporting and sourcing to online journalists. There is no professional association for bloggers, no oversight for users who generate content on YouTube, Facebook or other social networking sites, no codes of conduct for one-URL entities who make it their business to raise awareness of specific issues. However, when mainstream news organizations cover the actions of those organizations or individuals in a way that raises their influence and profile, they have an ethical responsibility to consider the fall out to vulnerable individuals of that coverage.
I would argue this extends to negotiating terms with people like Assange that make cooperation contingent on guarantees of certain ethical standards in their own work. Most likely such a socialization process would have helped an amateur like Assange avoid what he himself admits were mistakes, and resulted in a set of wikileaks that minimized the “collateral damage” to Afghan citizens.
In the absence of such guarantees, the mainstream news media could have published a different story, as soon as they understood the contents of the archive: a story about the evolving relationship between new media and human security, perhaps headlined “Wikileaks Founder Poised to Endanger Civilian Lives in Afghanistan.”
Instead, they treated him as a fellow journalist without holding him to any journalistic standards. Whatever the merits of the rest of the archive, The Times, the Guardian and Der Spiegel dropped the ball by cooperating fully with Assange instead of reining him in.
I wonder if an outcome of this fiasco might be the establishment of offices within mainstream news outlets specifically designed to review the ethics of complicity in publishing stories like this, staffed by individuals with human rights and ethics training whose job is to liase in a responsible manner with new media information sources upon which mainstream news reporting has increasingly come to rely.