Guest Post: Brian Cox on “Military Justice Reform, Accountability, and the Legitimacy Imperative: The Kunduz Example”

Today’s post is by previous Lawfire® contributor, my friend Brian Lee Cox, who is an adjunct professor of law at Cornell Law School, a visiting scholar at Queen’s Law, and a retired U.S. Army judge advocate.  His provocative new essay is part of an exciting cross-blog collaboration with Opinio Juris (here and here), Just Security (here), and the Harvard International Law Journal Online (here), to commemorate the five-year anniversary of the heartbreaking U.S. air attack that, through a series of human errors, struck a hospital in Kunduz, Afghanistan – a horrific accident that “left 30 people dead and 37 wounded.”

Brian’s project is exactly the kind of in-depth analysis that can spark the kind of dialogue that helps evolve the productive application of the law of war.  Personally, I find much of interest in Brian’s intriguing essay, and I look forward to reading the contributions found on the other platforms. We all owe him a debt of gratitude.

As part of what I hope will be an ongoing conversation, allow me to offer a few observations.  As long-time Lawfire® readers may recall, I wrote about the Kunduz case back in 2016: Reflecting on the Kunduz Hospital tragedy: isn’t it time for some questions for Doctors Without Borders, as well as for the human rights community?”  In the essay below Brian doesn’t aim to answer the questions I raised then (but perhaps he does in one of the other essays), but instead focuses on supporting his call for several “institutional reforms.”

Brian believes “the findings of the official investigation are legally deficient and that the factors that actually contributed to the tragic mistake have not yet been identified, let alone corrected.”  Thus, he calls for a “Complete Overhaul of Training and Doctrine Involving the Use of Force” for U.S. forces.  It would be helpful to see precisely what Brian considers deficient in the 3000-page investigation and, more importantly, exactly what he believes is dangerously uncorrected in the current procedures. (Again, perhaps this is addressed in one of his other essays.)

I say this because it appears that whatever the current procedures may be, they do seem to be working well.  In the five years since Kunduz, there hasn’t been another tragedy like it.  Moreover, as I discussed in a post a few weeks ago –  “What you need to know about U.S. airstrikes and civilian harm in Afghanistan –  civilian loses in that conflict have generally declined over the past several years to the point where the UN’s most recent report remarked “[t]he overall number of civilian casualties represents a 13 per cent decrease as compared to the same time period last year, and the lowest figure since 2012.” (Emphasis added).  And that decrease in civilian harm has occurred despite a surge in airstrikes.

To my way of thinking, while improvements ought to be continuously considered, we should be wary of initiating a procedural “overhaul” in a situation where, despite increasing airstrikes, civilian casualties are nevertheless declining.

The essay references (but does not take a position on) proposals to take commanders out of the military justice process.  For many reasons this is a terribly bad idea.  I may write on it in the future, but for now I recommend this post by a number of experts: “A Solution in Search of a Problem: The Dangerous Invalidity of Divesting Military Commanders of Disposition Authority for Military Criminal Offenses.”

Brian also recommends the U.S. adopt the German Code of Crimes Against International Law.  This may be worthy of some deeper analysis of the “civil law” construct of German criminal jurisprudence versus the common law origins American criminal law, but suffice it to say at this point it isn’t clear how more criminal law would have or could have made a difference in the Kunduz case.

Brian says military prosecutors struggle to fit what he evidently believes are crimes arising from the use of force into traditional offenses like murder and manslaughter.  Candidly, I find this puzzling as US military law rather uniquely criminalizes unsafe behavior based on simple negligence as few other jurisdictions, civilian or military do (see, e.g., here).

Additionally, the Uniform Code of Military Justice – again, rather uniquely – incorporates virtually all of the U.S.’s federal criminal law (to include, for example, the War Crimes Act). The scope of federal criminal law is amazingly extensive: one study finds that “it is estimated that nearly 5,000 federal statutes and more than 300,000 regulations contain potential criminal penalties.”  There is no shortage of law for informed prosecutors to apply.

But Brian believes adding something like the German Code provisions “would provide very specific and detailed guidance regarding expectations for a military member using force in the operational and information environment that is unique to the armed conflict targeting context.”  I respectfully disagree as I see it as a formula for unnecessary confusion.

“Specific and detailed” mission-specific guidance is already provided in the rules of engagement, something of ready familiarity to troops, and is typically included in the operations order (OPORD).  Aircrews also receive “special instructions (SPINS) located in the air tasking order (ATO).”  It’s hard to see how adding a foreign criminal code to an already comprehensive scheme would actually accomplish the clarifying end he seeks.

Brian is rightly concerned about institutional legitimacy, to include the appearance of it.  Actually, the legitimacy of U.S. military justice system in general got a pretty good review from Justice Kagan in the 2018 case of Ortiz v. U.S.  Moreover, the U.S. military writ large does enjoy legitimacy with its most important constituency: the American people.  As a 2020 poll demonstrates, the public’s confidence in the U.S.’s armed forces as an institution exceeds that of virtually every other entity.

Frankly, I’m skeptical of the notion that any U.S. investigation or criminal justice process would satisfy some nongovernmental organizations, or even foreign publics, so many of which unfairly apply a double-standard to the U.S.   In the Kunduz case, for example, charges of “war crimes” were made before the investigation could even begin, thus turning the fundamental legal principle of “innocent until proven guilty” on its head.  Better, it seems to me, to follow the law, and do the right thing, even if it unsatisfactory to America’s critics.

Still, I urge you to read Brian’s thoughtful essay carefully and make your own assessment.  Again, this is the kind of effort that adds real value to a vitally important issue.  Lawfire® is pleased to be part of this wonderful cross-blog collaboration, so – again – please be sure to also read the essays on Opinio Juris (here and here), Just Security (here), and the Harvard International Law Journal Online (here).

Military Justice Reform, Accountability, and the Legitimacy Imperative:

The Kunduz Example

by Brian Lee Cox

The fifth anniversary of the attack on the Médecins Sans Frontières trauma center in Kunduz, Afghanistan presents an opportunity to reflect on the horrific outcome of the attack and on the continuing importance of the global discourse that was prompted by the tragedy. Official and public narratives reflect agreement that the airstrike should have never occurred in the first place, but there is a significant degree of divergence regarding central topics such as investigating the circumstances that led to the attack, individual accountability, and institutional reform following the airstrike.

This post explores central aspects of public and official narratives involving the Kunduz airstrike to examine implications pertaining to the topics of accountability and military justice reform. After assessing some prevailing perspectives regarding the administrative measures that were implemented by the U.S. military following the attack, the topics of the conduct of investigations and military justice reform are addressed. The post then concludes with some reflections involving steps the U.S. military should take to achieve more favorable outcomes in relation to what I refer to here as the “legitimacy imperative” in military operations.

Administrative Measures and Institutional Absolution?

One of the topics that generated a significant degree of discourse following the Kunduz airstrike is the administrative measures imposed by the military. As General Joseph Votel, commander of U.S. Central Command when the Kunduz investigation was released to the public, disclosed during the press briefing announcing the release of the investigation, the report “identified 16 U.S. service members, whose conduct warranted consideration for appropriate administrative or disciplinary action, including a general officer.”

Little is known about the precise nature of the administrative measures imposed by the military. In the project I am concluding now that conducts a critical assessment of the Kunduz investigation and the lessons “learned therefrom, I am able to draw from the investigation and official narratives to determine with a fair degree of certainty the duty positions of the personnel against whom administrative measures were imposed and the expected effect of the measures.

Whatever the specific measures imposed, General Votel observes that such administrative actions “can carry severe repercussions on the careers and professional qualification of these individuals.” Even with this observation, the question remains whether administrative measures alone adequate. The answer to that unresolved issue that is drawn from a survey of perspectives in prevailing public discourse is an emphatic “no.”

Headlines such as “The Pentagon Shouldn’t Get to Absolve Itself for Bombing a Hospital” and “U.S. Military Investigates And Finds Itself Not Guilty Of War Crimes In Afghan Hospital Bombing” summarize the prevailing public perspective well. As the author of the former piece observes, “16 military personnel involved all will face some kind of administrative consequence, but none of them will be court-martialed.” Did the U.S. military truly “absolve itself” by, as the author contends, conducting a military investigation and then declining to initiate even one court-martial proceeding? To provide structure to this question, exploring some central perspectives expressed by the advocacy group Human Rights Watch is useful.

Kunduz as Another “Poor Job” of Accountability?

The narrative involving a lack of court-martial proceedings following incidents of civilian casualties picks up with a CNN opinion piece written by John Sifton, who was then and remains now the Asia Advocacy Director for Human Rights Watch. In this piece, which was published soon after the official Kunduz report was released to the public, Sifton denounces the decision not to initiate court-martial proceedings.

Sifton’s opinion is that the decisions to forgo criminal prosecution “don’t come as a surprise.” As he points out, “In more than 14 years of armed conflict in Afghanistan, the U.S. military has conducted numerous inquiries into airstrikes that caused scores of civilian casualties, but has rarely referred personnel for criminal charges.” Regarding the Kunduz attack, Sifton finds that the official response reveals the “inadequacy of U.S. military justice” because the personnel involved “received administrative punishment – and not a single criminal charge was pursued.”

This narrative is strikingly similar to the perspectives regarding accountability and military justice offered by Sifton following the guilty plea of Sergeant Robert Bales in 2013. While applauding the guilty plea as a “good outcome” in the pursuit of accountability, Sifton then asserts that the crimes committed by Bales “are not the only heinous incidents involving US personnel to have occurred in Afghanistan since the US-led invasion in 2001, and unfortunately, serious punishments like his are all too uncommon.

While acknowledging that incidents of civilian casualties “frequently reflect the cruel uncertainties and errors of war rather than intent to kill civilians,” Sifton asserts that, in general, the U.S. military “has done a poor job of holding its forces accountable for civilian deaths in violation of the laws of war.” The design that emerges from collating these perspectives regarding accountability for civilian casualties is that the incidents are treated the same based on the outcome. The deliberate murder of civilians committed by Robert Bales is treated as equivalent to the death of a detainee in custody, which are each considered as equivalent to incidents of civilian casualties caused by mistakes during targeting.

It is, of course, understandable to emphasize the unwanted result when evaluating the effectiveness of accountability measures. For the victims of incidents of civilian casualties, and for surviving families and the communities affected, it is of little consequence whether the responsible military personnel attacked civilians deliberately or accidentally.

While this approach of emphasizing the outcome and blending narratives involving the incidents based on the result of the attack is problematic from a conceptual perspective, a much more pressing practical effect must be addressed. Failing to differentiate between accidents and deliberate events contributes to the legitimization of calculated attacks against civilians. The Kunduz airstrike is a textbook example of this phenomenon.

Blending Kunduz and Aleppo: Legitimizing a Campaign of War Crimes

Blending narratives regarding incidents of civilian casualties in armed conflict based on the outcome of such attacks is a regular practice in scholarship and humanitarian advocacy. As Phyllis Bennis asserts while applauding adoption of UN Security Council Resolution 2286 involving protections for medical activities in armed conflict, “Given recent years’ escalation of attacks on hospitals and clinics — from Israel’s 2014 assault on Gaza, to last year’s Kunduz bombing, and last week’s attack on a Doctors Without Borders hospital in Aleppo, which killed at least 50 people — such a resolution is urgently needed.”

The Kunduz airstrike featured prominently in the discourse at the Security Council meeting at which UNSCR 2286 was adopted. Dr. Joanne Liu, then the International President of MSF, was invited to present remarks at the meeting. She, along with the representatives of several States, described the Kunduz airstrike as an example of the need for enhanced protections for medical and other humanitarian workers during armed conflict.

One of the States that drew on the Kunduz airstrike in support of its strategic messaging was Russia. As the delegate from Russia noted, “we occasionally witness brutal disregard for the norms of international law, which stipulate that hospitals that provide assistance to those who are suffering can under no circumstances be the targets of attacks.” During these remarks, the delegate pointed explicitly to the Kunduz airstrike and noted that “similar attacks have occurred in other countries.”

These observations at the Security Council are consistent with Russia’s strategic messaging involving the Kunduz airstrike. In the days after the attack, a representative of Russia’s Foreign Ministry noted that she “would find it hard to argue with” the assertion by MSF that the airstrike constitutes “a gross violation of international law.” Several months later, the Kunduz airstrike was invoked by a representative of the Foreign Ministry as a reason for NATO to “review its combat goals to prevent attacks on civilian infrastructure, including medical facilities.”

In a briefing acknowledging the announcement of the intention of the International Criminal Court to launch an initial investigation involving Afghanistan, the Foreign Ministry representative specifically cited the Kunduz airstrike in support of the assertion that “[t]here is much evidence of crime in the 15-year-long US and NATO counterterrorism operation in Afghanistan.” The representative goes on to dismiss as duplicitous narratives of the U.S. government condemning Russian combat practices when she notes that she has “seen comments by my colleagues from the US Department of State to the effect that they always admit to their mistakes, unlike Russia. What can I say on this?”

Russia’s Strategic Interests and “International Human Rights Organisations”

This strategic messaging is, of course, developed against the backdrop of widespread allegations that Russia and Syria have engaged in a systemic campaign of deliberately targeting medical facilities in the conflict in Syria. Such is the extent of the campaign of apparently deliberately targeting medical facilities that MSF reportedly stopped sharing grid coordinates for its own facilities with parties to the conflict long ago.

Russia has seized upon prevailing narratives involving attacks that result in civilian casualties in armed conflict to legitimize its own conduct in Syria and to deflect criticism directed against its practices. The strategic messaging has been honed and taken a step further by beseeching the assistance of the very organizations that have so vociferously denounced Russia’s actions. Following yet another apparent accidental attack that resulted in civilian casualties in Kunduz, the Russian Foreign Ministry called for “international human rights organisations to conduct a thorough and impartial investigation of the incident…to bring the perpetrators to justice.”

This statement was released one week after the attack in question, well before there was any indication that there would be “perpetrators” to bring to “justice.” If there is no reason to differentiate between accidents and deliberate attacks, there is, of course, no reason to wait for detailed information from which to draw conclusions: an incident of civilian casualties is prima facie evidence that there will be “perpetrators” to bring to “justice.” Russia has incorporated this blended approach into its strategic messaging, and it has taken the messaging a step further by coopting the advocacy of “international human rights organisations” as an ally in its strategic information campaign.

Along with diverting attention away from widely reported campaign deliberately targeting medical activities, Russia’s statement at the Security Council was accompanied by a thinly veiled threat to humanitarian activities. The delegate from Russia asserted, “An important precondition for the effective protection of humanitarian organizations and medical staff is compliance with the guiding principles of international humanitarian cooperation” – or, at least Russia’s and Syria’s interpretation of these. The statement goes on to assert that “[a]biding by these rules will help ensure that medical workers are able to carry out their tasks in a well-defined, effective and safe manner.” These observations are meant to work in tandem with the blending narrative to deflect criticism of Russia’s conduct in Syria.

While the outcome of a single attack that accidentally strikes a medical facility may be no different for that one facility than the outcome of a deliberate attack, there is a danger that blending narratives involving such attacks based on the outcome can be used to legitimize a campaign of seemingly deliberate attacks. By characterizing the mistaken attack against the MSF trauma center as a “gross violation of international law,” Russia has coopted prevailing narratives involving the airstrike as a tool of strategic messaging to deflect criticism of its own apparently deliberate campaign against medical facilities.

Accountability and Demands for External Investigations

Like prevailing public narratives involving accountability for incidents of civilian casualties in armed conflict, Russia has integrated calls for “thorough and impartial investigation” by an entity that is independent from the apparent transgressor party into its strategic information campaign. For Russia, the motivation is clear: to defuse such calls for external investigation involving its own reported transgressions.

For advocacy groups, the central motivating factor can be distilled to a prevailing sense of skepticism that the military enterprise involved in an incident has an interest in investigating its own actions. As Naureen Shah, who was then the director of the Security With Human Rights program of Amnesty International, reportedly observed following the release of the official Kunduz report, “We can’t trust an investigation by the U.S. military because you should never ask an entity to just merely police itself.”

A letter submitted by Human Rights Watch to then-Secretary of Defense Ash Carter involving the Kunduz airstrike provides some useful context for the prevailing sentiment of mistrust. In the letter, HRW expresses the belief that “it is very likely that a criminal investigation into the Kunduz attack will lack credibility both in the United States and abroad if it is carried out by personnel within the chain-of-command that directs military operations in Afghanistan.”

The sentiment that military agencies should not be trusted to conduct internal investigations because of a perceived conflict of interest is prevalent in contemporary discourse. It has even been suggested that frameworks for investigations that exist in the law of armed conflict should be replaced by human rights law constructs because the former are “highly deferential to States” and that this “creates an accountability problem.”

Internal Investigations and the Legitimacy Imperative in Military Operations

While the sentiment that an inherent conflict of interest may adversely affect the willingness to thoroughly investigate incidents or to impose effective accountability measures is reasonable and quite understandable, this prevailing perspective overlooks what I will refer to here as the “legitimacy imperative” in military operations. To borrow from the U.S. doctrinal definition for legitimacy, this concept can be described as the imperative “to maintain legal and moral authority in the conduct of operations.”

This doctrinal publication (JP 3-0, Joint Operations) describes legitimacy as a “decisive factor in operations” and asserts that it “is based on the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences.” The audiences for which legitimacy, as a principle of joint operations, is relevant “include [U.S.] national leadership and domestic population, governments, and civilian populations in the OA [operational area], and nations and organizations around the world.”

Incorporation of the concept of legitimacy as one of 12 principles of joint operations is a recognition that maintaining public support – at home and abroad – is imperative in the endeavor to create and sustain operational capacity. When horrific tragedies such as the Kunduz airstrike occur, it is in the strategic interest of the U.S. military (and similar militaries operating on behalf of rule of law focused countries) to achieve a thorough understanding of what went wrong and what needs to be done to correct the causal factors.

The legitimacy imperative in military operations, then, creates a meaningful and palpable incentive for the institution to fully and accurately account for what happened. It is not the case that the military is expected “to just merely police itself.” Public perception does the policing, and this establishes an inherent incentive for the military to understand what went wrong and to implement measures to make sure similar contributing factors will not lead to a similar result in the future.

Scarcity of Prosecutions Does Not Equate to Lack of Accountability

Public narratives involving accountability for serious incidents in armed conflict are heavily biased in favor of criminal prosecution. As John Sifton of HRW notes in the CNN opinion piece while assessing the official response to the Kunduz airstrike, for example, “the U.S. military has conducted numerous inquiries into airstrikes that caused scores of civilian casualties, but has rarely referred personnel for criminal charges.” This phenomenon is characterized as a failure of accountability. The solution? “Appropriate criminal prosecutions are necessary” to create an adequate deterrent.

A similar sentiment is expressed in the letter submitted by HRW to then-Secretary Carter after the Kunduz airstrike. In the letter, HRW asserts that the “US military justice system does not have a good record of providing meaningful accountability for alleged war crimes committed in Afghanistan and Iraq.”

Pursuant to this prevailing narrative, initiating criminal prosecution has become synonymous with “meaningful accountability.” However, closer scrutiny reveals that the accountability narrative that is prevalent in public discourse is typically not focused on the same aspect of an attack as are military commanders and advisers. This divergence in perspectives contributes to the perception that the military justice system “does not have a good record of providing meaningful accountability” because more courts-martial are not initiated following tragedies such as the Kunduz airstrike.

As an example, Sifton notes in the CNN opinion piece that “finding a measure of justice for the victims of the attacks” is “something administrative actions will never provide.” Focusing on justice for victims is understandable and indeed laudable, but this is not the focus of military commanders with the responsibility to decide what measures to implement for personnel involved in attacks that result in unintended consequences such as civilian casualties or fratricide.

As tragic as the outcome of any attack that results in civilian casualties is, commanders are focused on the process that led to the attack. This creates a disconnect between public perceptions of “accountability” and official outcomes. The discord is predictable and understandable based on the divergence in perspectives, but the space between accidents and war crimes in competing narratives is created by these differences in perspective.

If the point of departure for evaluating the adequacy of “accountability” measures is the pursuit of “finding a measure of justice for the victims” based on the outcome of the attack, the process that led to the tragedy is of little consequence. In comparison, “accountability” in the military context is focused almost exclusively on the process that led to the unintended consequences. Neither is inherently more correct or more important than the other, but the perspectives do not occupy the same conceptual space and they are not particularly complementary in practice.

The conspicuous lack of court-martial proceedings following incidents of accidental civilian casualties, then, is not necessarily evidence of a systemic lack of accountability, as the prevailing narrative seems to suggest. There is an alternative explanation that is much more plausible. Simply put, a scarcity of court-martial proceedings is evidence that such accidental attacks are not crimes.

Characterizing ostensibly reckless attacks that result in civilian casualties as war crimes is a pervasive component of the accountability narrative in public discourse, and the depiction can be traced at least as far back as the 1981 ICRC Commentary to Additional Protocol I (para. 3474, available here). I address the topic of recklessness and war crimes briefly in the Opinio Juris post of this cross-platform collaboration and in greater detail in a law review article scheduled to be published in the next issue of the Georgetown Journal of International Law.

For present purposes, I will simply note that the characterization as war crimes of purportedly “reckless” attacks that result in civilian casualties is not nearly as sustainable as a survey of prevailing public discourse might suggest. While the supposed inclusion of recklessness on the spectrum of mens rea for war crimes pursuant to international law has been cited in public discourse to criticize the decision not to initiate criminal proceedings after the Kunduz airstrike, the more sustainable conclusion is that the persistent practice of not pursuing court-martial proceedings following targeting errors such as the Kunduz attack indicates that such accidents are, quite simply, not unlawful.

Rather than concluding that a scarcity of court-martial proceedings indicates that accidents resulting in civilian casualties are not crimes, the prevailing perspective seems to be that the military justice system responsible for achieving meaningful accountability is fundamentally flawed. This sentiment seems sensible. If a process repeatedly yields “undesirable” results, what better solution than to change the rules in hopes of engineering more palatable outcomes? As an assessment of the narrative involving the Kunduz airstrike demonstrates, the leading contender for achieving “better” results is ill-advised.

Military Justice Reform, Command Authority, and the Kunduz Airstrike

This leading contender, at least in the context of U.S. military justice reform, is a suggested modification that would remove the decision from a military commander whether to initiate court-martial proceedings and place the decision authority instead with a military lawyer. John Sifton, for example, in the CNN opinion piece points to the fact that “[d]ecisions to prosecute are left with the field commanders, rather than with military prosecutors acting outside the regular chain of command” as the main “flaw” in the U.S. military justice system that leads to the perceived accountability failures.

Sifton is not alone in invoking the tragedy of Kunduz to support a call to divest disposition authority from military commanders. Eugene Fidell, Senior Research Scholar in Law at Yale Law School and editor of the international military justice blog Global Military Justice Reform, takes a similar approach.  

In a New York Times opinion piece involving the Kunduz airstrike, Fidell describes the arrangement of allowing commanders to “decide who is charged with what offenses, and how those offenses will be disposed of” as a “procedural problem [that] is hard-wired into the Uniform Code of Military Justice.” In support of this assertion, Fidell contends that “the issue of whether commanders have a built-in conflict of interest might have applied” to the disposition decisions made following the attack.

I will reserve for another occasion a more extensive assessment of the points Fidell and others typically offer in support of this suggested reform. For present purposes, however, I will address just two points related to Fidell’s assertions. (The present discussion is focused on Fidell’s perspectives not only because he is a widely respected MJ scholar, but also because, as the NYT opinion piece notes, Fidell “advised” MSF “on the Kunduz attack.”)

Why the Kunduz Example Does Not Support the Suggested MJ Reform

The first point addressed here is that there is no evidence to suggest that the three senior commanders involved in making disposition decisions had a “built-in conflict of interest” following the Kunduz airstrike. (For reference, disposition decisions are described in General Joseph Votel’s press briefing here.) To the contrary, the influence of the legitimacy imperative creates a significant interest in imposing adequate accountability measures – and this is a consistent theme in the operational and strategic messaging involving the Kunduz airstrike.

The second point involving this suggested MJ reform is that there is no indication that the disposition decisions would have been any different if judge advocates had the authority instead. In fact, my discussions with friends and former colleagues who were directly involved with advising at various echelons of command after the Kunduz airstrike indicate, without exception, that these military lawyers would not have initiated court-martial proceedings if the decision had been theirs.

Again, I will defer a more extensive discussion of the prudence of this suggested MJ reform for another occasion. For now, though, I suggest that the two points examined above support the characterization that this suggested reform constitutes a “solution in search of a problem.”

What, then, should be done? Surely the U.S. military could do better in preventing such horrifying tragedies from occurring in the first place and in accounting for the contributing factors in the wake of such a calamity. If effective measures are available and sustainable, implementing them would be a moral imperative and would create more favorable outcomes in connection with the legitimacy imperative in military operations.

The next two sections suggest institutional reforms the U.S. military should consider in order to address the factors that contributed to the Kunduz tragedy and to achieve more favorable outcomes in relation to the legitimacy imperative in military operations. These suggestions are followed by some concluding reflections.

Institutional Reform #1: Complete Overhaul of Training and Doctrine Involving the Use of Force

The most significant reform that should be considered is a complete and competent reassessment and potential restructuring of the manner in which troops are trained in use of force law and policy. In the project I am completing now that conducts a critical assessment of the Kunduz investigation and the lessons “learned” therefrom, I demonstrate that the findings of the official investigation are legally deficient and that the factors that actually contributed to the tragic mistake have not yet been identified, let alone corrected.

The tactical failures that led to the targeting mistake and the deficiencies of the investigation and the official response after the airstrike can be attributed to one factor alone: systemically inadequate training and practice involving use of force law and policy.

The pervasive deficiencies in existing training and doctrine are not attributable to a lack of interest or effort. The commitment to developing and implementing adequate use of force training is undoubtedly apparent and quite commendable. While the commitment is there, the performance at present is simply not good enough.

Correcting the systemic deficiencies will not be quick or easy. Widespread and extensive doctrinal improvements are in order, and the manner in which troops at all levels – including and especially judge advocates – are trained must be reimagined.  

In short, nothing less than a complete change in culture is needed. The first step is achieving an appreciation for just how pervasive the problem is. My project involving the Kunduz investigation will give shape to the existing systemic inadequacies in training and practice that persist across the U.S. military as an enterprise.

After that, I have no doubt that the commitment is present and the resources are available to achieve the necessary reforms. Correcting existing deficiencies in training and practice in relation to use of force law and policy is the single most imperative institutional reform that must be implemented in the wake of the Kunduz tragedy.

Institutional Reform #2: Develop and Incorporate a Specialized Code for LOAC Offenses

Returning to the topic of military justice reform, one suggestion I am currently exploring is to revise the UCMJ to incorporate offenses with a specialized focus on violations of the law of armed conflict. Longstanding U.S. practice is to charge military members “with a specific violation of the UCMJ rather than a violation of the law of war.”

This practice has a long and venerable lineage, but the nature of warfare and the composition of the law of armed conflict have changed considerably since this tradition was established. By 1907, for example, the “Hague stream” of the law of war was fairly robust for the time, yet the punitive provisions of the 1920 Articles of War do not contain provisions directly related to violations of the law of war.

The LOAC distinction rule, as but one example, is now much more detailed than the prohibition against attacking “towns, villages, dwellings, or buildings which are undefended” that is reflected in the Annex to the 1907 Hague Convention (Article 25). Similarly, armies in the field no longer face off against each other on battlefields far removed from civilian populations as was the prevailing practice during warfare in the early 20th Century and before. Relying on general offenses contained in the Articles of War may have been adequate in 1920, but the changing nature of warfare and the evolution of the law of armed conflict make that practice rather inadequate today.

I know from personal experience, as do many of my friends and former judge advocate colleagues, that attempting to contort the elements for existing UCMJ offenses such as murder and involuntary manslaughter to apply to a targeting context is the prosecutorial equivalent of forcing a square peg through a round hole. An account of the reasons for this mismatch could stand alone as a work of scholarship. In short, however, the incongruence is primarily attributable to differences in the function of necessity and of the prevailing information environment in a targeting context as compared to the context in which the general criminal code is designed to function.

This is a topic of ongoing study for me, and I would encourage Congress and senior military leadership to do the same. A specific code of crimes for law of armed conflict offenses similar to the German Code of Crimes Against International Law (particularly Chapter 2, War Crimes, and especially Sections 11 to 14) would be an excellent option to explore.

Something of this nature would provide very specific and detailed guidance regarding expectations for a military member using force in the operational and information environment that is unique to the armed conflict targeting context. Doing so could substantially improve training practices (thereby preventing operational mishaps in the first instance) and disposition outcomes (thereby improving the credibility of disposition decisions). As such, this potential reform could be one effective solution to the very real and pervasive problem of inadequate understanding and practice related to use of force law and policy – rather than merely being a solution in search of a problem.

Concluding Reflections

The call for change following attacks with unintended outcomes such as civilian casualties and fratricide in armed conflict is understandable and quite justifiable. The inherent mistrust of military organizations “policing” themselves is also understandable and rather predictable.

Achieving positive outcomes in relation to the legitimacy imperative in military operations is not just a good idea – it is a vital strategic interest. The attack on the MSF trauma center in Kunduz, Afghanistan was a preventable tragedy. Despite commendable and genuine efforts to account for what went wrong and to develop measures to mitigate the risk of a similar tragedy occurring in the future, the factors that caused this preventable mistake have thus far been neither identified nor corrected.

The disconnect between the seemingly damning findings of the legally deficient investigation and the administrative measures imposed following the attack also constitutes a correctable error. By eviscerating public trust in the disposition decisions and accountability process, this correctable error is nearly as detrimental to the legitimacy imperative as the attack itself.

There is plenty of room for improvement, but the commitment by the U.S. military to identifying and them implementing necessary institutional reforms following tragic accidents such as the attack on the MSF trauma center is commendable. The will to change is a threshold requirement for improved outcomes in the future, and this is unquestionably existent.

Any institutional changes that are implemented must not be employed simply for the sake of reform. Perception is as important as reality when it comes to the legitimacy imperative, but meaningful improvements will follow only from effective reform. Improved outcomes in reality are the best way to enhance public perceptions.

There is no way for the U.S. military to make right the horrific tragedy that was inflicted upon the victims and surviving family members of the attack on the MSF trauma center in Kunduz, Afghanistan five years ago today. That is a harm that can never be undone.

With the irreversible damage done, the best way to demonstrate respect for the people who were affected and to honor the memories of those who were killed in the attack is to generate a complete and accurate account of what went wrong. Only then can the U.S. military develop effective measures to mitigate the risk of the factors that caused the tragedy from contributing to another in the future. Despite admirable efforts, this has not yet been accomplished.

The reforms suggested in this post can constitute an effective first step in the long journey of institutional change that must follow. The scale of necessary reform is formidable, but positive and effective change can be accomplished. Doing so is not only a moral obligation, it is a strategic imperative as well.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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