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The WikiLeaks War Logs Don't Show Rare War Crimes--They Show The (Legal) Reality of War

The real problem with the laws of war is not what they fail to restrain but what they authorize.
 
 
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Anyone who would like to witness a vivid example of modern warfare that adheres to the laws of war -- that corpus of regulations developed painstakingly over centuries by jurists, humanitarians, and soldiers, a body of rules that is now an essential, institutionalized part of the U.S. armed forces and indeed all modern militaries -- should simply click here and watch the video.

Wait a minute: that’s the WikiLeaks “Collateral Murder” video!  The gunsight view of an Apache helicopter opening fire from half a mile high on a crowd of Iraqis -- a few armed men, but mostly unarmed civilians, including a couple of Reuters employees -- as they unsuspectingly walked the streets of a Baghdad suburb one July day in 2007. 

Watch, if you can bear it, as the helicopter crew blows people away, killing at least a dozen of them, and taking good care to wipe out the wounded as they try to crawl to safety.  (You can also hear the helicopter crew making wisecracks throughout.) When a van comes on the scene to tend to the survivors, the Apache gunship opens fire on it too, killing a few more and wounding two small children.

The slaughter captured in this short film, the most virally sensational of WikiLeaks’ disclosures, was widely condemned as an atrocity worldwide, and many pundits quickly labeled it a “war crime” for good measure.

But was this massacre really a “war crime” -- or just plain-old regular war?  The question is anything but a word-game. It is, in fact, far from clear that this act, though plainly atrocious and horrific, was a violation of the laws of war.  Some have argued that the slaughter, if legal, was therefore justified and, though certainly unfortunate, no big deal. But it is possible to draw a starkly different conclusion: that the “legality” of this act is an indictment of the laws of war as we know them.

The reaction of professional humanitarians to the gun-sight video was muted, to say the least.  The big three human rights organizations -- Human Rights Watch (HRW), Amnesty International, and Human Rights First -- responded not with position papers and furious press releases but with silence.  HRW omitted any mention of it in its report on human rights and war crimes in Iraq, published nearly a year after the video’s release.  Amnesty also kept mum.  Gabor Rona, legal director of Human Rights First, told me there wasn’t enough evidence to ascertain whether the laws of war had been violated, and that his organization had no Freedom of Information Act requests underway to uncover new evidence on the matter.

This collective non-response, it should be stressed, is not because these humanitarian groups, which do much valuable work, are cowardly or “sell-outs.”  The reason is: all three human rights groups, like human rights doctrine itself, are primarily concerned with questions of legality.  And quite simply, as atrocious as the event was, there was no clear violation of the laws of war to provide a toehold for the professional humanitarians.

The human rights industry is hardly alone in finding the event disturbing but in conformance with the laws of war.  As Professor Gary Solis, a leading expert and author of a standard text on those laws, told Scott Horton of Harper’s Magazine, “I believe it unlikely that a neutral and detached investigator would conclude that the helicopter personnel violated the laws of armed conflict.  Legal guilt does not always accompany innocent death.”  It bears noting that Gary Solis is no neocon ultra.  A scholar who has taught at the London School of Economics and Georgetown, he is the author of a standard textbook on the subject, and was an unflinching critic of the Bush-Cheney administration.

 
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