Have US forces in Afghanistan engaged in war crimes?

That's a provocative question, the sort of query that few, if any, reporters at the Pentagon briefing room are going to toss at Rummy. Nevertheless, it's a question that may bear consideration as new details emerge about the latest US mis-strikes.

Over the past week, two US military operations originally touted as successes have turned into PR nightmares for the Defense Department and the CIA First, the Pentagon had to acknowledge (sort of) that a January 24 commando raid that attacked two small compounds in Hazar Qadam–resulting in the deaths of 21 or so Afghans and the capture of 27 others–had been a mistake. Those people killed or grabbed were not, as the Pentagon first announced, Taliban or Al Qaeda fighters, but troops and local officials loyal to the current government. (See the post below.) Then "The Washington Post" reported on Monday that the three men killed on February 4 in the remote village of Zhawar by a Hellfire missile fired from a Predator drone were not Al Qaeda leaders, as the Pentagon had suggested. They were Afghan peasants foraging for scrap metal, and the group did not include Osama bin Laden. Media reports following the attack raised the possibility the Al Qaeda chief had been one of the dead.

The Pentagon was slow to accept the idea that the Central Command and the CIA–which controls the Predator missiles–had goofed. Rear Admiral John Stufflebeem told journalists that US troops at the scene of the attack had found weapons, credit card applications, and airline schedules and asserted that this "would seem to say that these are not peasant people up there farming." But as a subsequent "Post" story noted, the area, once used by al Qaeda as a training camp, had been virtually destroyed during the earlier US bombing campaign. In recent weeks, some local families had returned to the village. Consequently, finding signs of a past Al Qaeda presence at the site would have little bearing on the political loyalties of the three men killed. Several local villagers told Doug Struck of the "Post" that the three men were poor scavengers looking to recover remains of missiles they could sell in Pakistan. (The going rate: four bucks and change for 132 pounds of scrap metal.)

As the success of this Hellfire attack was being questioned, the Pentagon also had to contend with media accounts reporting that several of the men captured at Hazar Qadam and held for two weeks were saying they had been severely beaten and kicked by their American captors. According to the Afghans, US troops hit their prisoners with fists and gunstocks; they bound them and then walked on their backs. As one detainee noted, "They said, 'You are terrorist! You are Al Qaeda! You are Taliban!" And villagers claimed that after the commando attack at Hazar Qadam they found the bodies of men who had been handcuffed. One local says the white plastic handcuffs bore the words "Made in USA."

The US criminal code defines a "war crime" as conduct prohibited by Articles 23, 25, 27 and 28 of the Hague Convention of 1907. There are several aspects of these operations–and perhaps other US actions in Afghanistan–that are not in keeping with these provisions. Article 23 forbids a warring party "to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered." The discovery of handcuffed bodies in Hazar Qadam raises the question of whether US troops executed people who were bound. If US troops shot individuals after handcuffing them that would seem to violate this provision. And some Afghan witnesses have told American reporters that the Afghan men attacked by the US Special Forces at Hazar Qadam did try to surrender.

The Hague Convention's Article 25 prohibits "the attack or bombardment, by whatever mean, of towns, villages, dwellings, or buildings which are undefended." Might the Hellfire attack fall into this category, since there apparently were no active defenses at Zhawar? (Certainly, this category is rather wide and would place several US airstrikes and bombardments of the past decade–for instance, President Clinton's missile strike against a pharmaceutical factory in the Sudan–on the wrong side of the law.) Or is an attack aimed at individuals–rather than buildings–okay? But consider Article 25 in regard to a US missile attack that happened on October 21. As described recently by "Washington Post" reporter Molly Moore, on that night in the hamlet of Thoral, first a US missile cut through a trailer containing 27 frightened villagers–mostly children–who were fleeing a bombing raid on a nearby town. Many of the children were ripped apart by the bomb. Then, half-an-hour later, after the injured and dead had been taken to a house, two missiles struck that home. Local witnesses told Moore that 21 members of two farming families–all but four were infants or children–were killed in the attacks. (The Pentagon, of course, insists that its target was a Taliban command center and that all its bombs struck the intended target.) As the Pentagon has tried to hit on-the-run Taliban and Al Qaeda forces, it has obviously bombed undefended targets. Is that merely a technical violation of a rule no one truly heeds?

Federal law also defines war crime as a "grave breach" of the international Geneva conventions, which were signed in 1949. Those treaties–which cover the wartime treatment of prisoners of war and civilians–note that POWs and civilians must "at all times be humanely treated." The agreement covering POWs says that "causing death or seriously endangering the health of a prisoner of war…is prohibited and will be regarded as a serious breach." According to this treaty, prisoners "must at all times be protected, particularly against acts of violence or intimidation," and "measures of reprisal…are prohibited."

If US forces physically abused the Afghans captured during the Hazar Qadam raid, is that a violation of these provisions? What if US troops did shoot prisoners who had been handcuffed? That would make the January 24 action more than an accident–a massacre.

This is not to say that lawyers in the Hague or the US Justice Department should quickly prepare a prosecution. The criminal code provision concerning war crimes is clearly written, but that does not mean there is not wiggle room. For instance, what constitutes a "grave" breach as opposed to a non-grave breach?

The Pentagon has said it is investigating the Hazar Qadam raid to find out what went wrong. But there may be an institutional bias that prevents a no-holds-bar inquiry. On Tuesday, Gen. Richard Myers, chairman of the Joint Chiefs of Staff, said, "The fact that [some of these men] were detained and not killed, I think, is an indication of just how professional and disciplined and dedicated our folks are." Despite Myer's assurances, this probe should go beyond determining why the United States struck the wrong target and killed almost two dozen innocent people. (One guess now is that US forces were duped by local warlords.) The inquiry ought to examine whether US troops also engaged in unnecessarily brutal–and perhaps illegal–conduct during the attack and afterward.

Some Americans, no doubt, would scream in protest at the suggestion that the actions of US soldiers, who are fighting in a faraway land for their country against an unconventional and ruthless enemy that has already killed thousands of American civilians, should receive such scrutiny. Why nitpick about the treatment of prisoners or the deaths of a relatively small number civilians, when everyone realizes that unfortunate acts like these happen during war? But it was George W. Bush who said, in his recent State of the Union address, that "America will always stand firm for the non-negotiable demands of human dignity," including "the rule of law, limits on the power of the state," and "equal justice." He did not announce that America will fight terror with terror to protect itself. Rather, he declared that America is fighting, not just for its own security, but for the values of freedom, liberty and human rights throughout the world.

That should compel US forces to prosecute the war in accordance with international and US laws and in a manner that fully reflects these values. (Yet in the Philippines, as "New York Times" columnist Nicholas Kristof has reported, the American military is making common cause with Philippine security forces operating death squads that summarily execute suspects in their pursuit of the Abu Sayyaf terrorist group.) Blasting civilians, mistreating captives, executing prisoners who are bound–whether these actions (if proven) qualify as war crimes or not, they are out of sync with the President's lofty rhetoric and they undermine the United States' claim to moral leadership in the war on terror.

As the United States presses ahead in its global campaign against terrorism, it is important that it demonstrate it can police itself and hold itself to a high standard of accountability. If Afghans were wrongly killed, mistreated or massacred, punishment should follow for those responsible. When civilians are killed or injured in error, the Pentagon should acknowledge the mistake, and the United States should offer financial compensation to relatives and survivors–as the CIA has done concerning the men killed at Hazar Qadam. If the United States is fighting for justice, its military must be called upon to fight in a just manner.