Wondering What Constitutes a War Crime? Depends on Who You Ask.

An explosion in Afghanistan’s capital of Kabul on Saturday killed at least 100 people and wounded an estimated 158 others. The Taliban brazenly claimed credit for the massacre. This attack, and the way the Taliban did not try to hide their responsibility, constitute further proof that they feel they will never be held to account for this attack, the attack last week on Kabul’s Intercontinental Hotel, or just about anything else.

Because Saturday’s attack was nothing short of a war crime.

Ambulances are protected. Period.

The Taliban used an ambulance, or a vehicle painted to look like an ambulance, as the carrier for the improvised explosive device that caused the carnage. It was funny when Lee Marvin, Charles Bronson and crew used an ambulance to sneak past German guards in The Dirty Dozen, but in real life, it constitutes an explicit violation of article 38 of the Additional Protocols to the Geneva Conventions.

Perfidy is a war crime that involves some form of bad faith. It differs from military deception, which is legal and, frankly, an expected wartime activity. One example is using a flag of truce to draw the enemy out from cover with the intention of attacking them once they do. War may be an all too human form of inhumanity, but we have rules for going about it.

The special status of ambulances is a principle that dates back at least as far as the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.  An American soldier using an ambulance to carry out an attack would get himself court-martialed.

Terrorist attack on civilians & hospital in #Kabul is insane, inhuman, heinous and a warcrime. We will bring its perpetrators to justice & take necessary measures to avoid such barbarism in the future. Int Community must take further action against state sponsored terrorism.

— Dr. Abdullah (@afgexecutive) January 27, 2018

Afghanistan’s chief executive, Abdullah Abdullah, took to Twitter to condemn the attack as “insane, inhuman, heinous and a warcrime.” The chief of the U.N. Assistance Mission in Afghanistan, Tadamichi Yamamoto, came closest of all the international and non-governmental organizations. According to the New York Times, Yamamoto said, “I am particularly disturbed by credible reports that the attackers used a vehicle painted to look like an ambulance, including bearing the distinctive medical emblem, in clear violation of international humanitarian law.”

International hesitation to condemn the Taliban

When it comes to criticizing the Taliban, Yamamoto seems to be alone, or at least in the distinct minority. Following the Taliban’s brutal and swift assault on Kunduz in late September of 2015, Amnesty International wrote of “Mass murder, gang rapes and house-to-house searches by Taliban death squads.” But it conspicuously did not use the phrase “war crime,” which all of those things are.

Instead Amnesty’s Afghan researcher took the opportunity to warn the Afghan National Army that, “Breaking the cycle of violence and returning to the rule of law means ensuring that Afghan troops and authorities do not mete out revenge on any prisoners, which would amount to a war crime.”

Got that? Revenge is a war crime, but mass murder, gang rapes, and death squads are not.

It was during the battle to rescue Kunduz from what Amnesty International called a “reign of terror,” that U.S. forces mistakenly bombarded a hospital run by Médecins Sans Frontières, know in the United States by its English name, Doctors without Borders. An Air Force AC-130 gunship, disoriented from missile attacks, misidentified the hospital as the compound holding Taliban forces. This was mistakenly confirmed by a Special Forces air controller.

The mistaken attack killed 42 people. In this case, even before the Department of Defense was finished with its investigation, MSF did not hesitate to throw out the phrase “war crime.” A mere three days following the incident, MSF’s president said “Until proven otherwise, the events of last Saturday amount to an inexcusable violation of [humanitarian] law. We are working on the presumption of a war crime.”

If they were that certain that the attack on their hospital, in the middle of the night, amidst pitched urban battle, constituted a war crime, surely they can reach the same conclusion when it comes to the admitted use of ambulance as a bomb in the broad daylight in the middle of a crowded city, right?

Wrong.

The most MSF could muster was “Using [ambulances] as a weapon increases the risk for patients and ambulance crews in the future.” Seriously.

@MSF appalled and saddened by loss of almost a hundred lives yesterday in #KabulAttack. Ambulances are meant to save lives, not take them. Using them as a weapon increases the risk for patients and ambulance crews in the future #Afghanistan

— MSF International (@MSF) January 28, 2018

Doctors Without Borders sent the same tweet, and retweeted its executive director, who said the attack was a “Disgusting abuse of medical care to murder & maim.” But not a war crime.

Perhaps in the days to come, MSF and other NGOs will come to their senses and realize that the U.S. is not the bad guy in the Afghan war. U.S. forces are not angels, and we have made mistakes. There are penalties for those mistakes, too. MSF was upset that no one faced criminal charges over the Kunduz incident, but 19 people received “administrative actions” that certainly ensured their military careers were over.

It is encouraging that Human Rights Watch did use the war crime label in reference to the Intercontinental Hotel attack. But far too many of these NGOs, and their U.N. counterparts, are so clearly blinded by their anti-American bias that they simply cannot bring themselves to use their harshest language on the Taliban. It’s about time they did.