The US Army is today in flagrant violation of the Geneva Conventions in Afghanistan. This was first pointed out to me by a very smart, highly experienced senior military person. Though he has never steered me wrong, this seemed a bit much. And so over the past month I looked into it.
He was right. We are in violation of the Geneva Conventions in Afghanistan. The explanation is straightforward.
Our forces take casualties every day. US Army “Dustoff” helicopters evacuate wounded troopers seven days per week. The Dustoff crews courageously fly over enemy territory to rescue our wounded. Our Dustoff helicopters fly straight over enemy heads. The Dustoff helicopters are clearly marked by the Red Cross and are unarmed.
The various enemies in Afghanistan are not signatory to the Geneva Conventions. We have no expectation that they know or will follow the Conventions, and in any case the Taliban and others have not obligated themselves by agreeing to uphold the Conventions.
But our Army says that we are following the Geneva Conventions by sending unarmed helicopters marked with Red Crosses into enemy territory, flying straight over the heads of the enemy. We say the enemy is in violation when they fire upon the clearly marked helicopters.
In fact, the enemy is within the law to shoot down the Dustoffs. Importantly, the enemy is not signatory to the Conventions. Most importantly, Dustoff helicopters violate Geneva Conventions in Afghanistan and behave as combatants.
Dustoff helicopters behave as combatants by flying over routes not agreed up between all the parties to the conflict. Dustoff further violates the Conventions by flying over the enemy and over enemy terrain, and thus behave as combatants. Dustoff will never obey a summons to land to be inspected by the Taliban, and thus are behaving as combatants.
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
Art.22. Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm and maternity cases or for the transport of medical personnel and equipment, shall not be attacked, but shall be respected while flying at heights, times and on routes specifically agreed upon between all the Parties to the conflict concerned.
They may be marked with the distinctive emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. Unless agreed otherwise, flights over enemy or enemy occupied territory are prohibited.
Such aircraft shall obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after examination, if any.
And so there it is. We are in violation of the Geneva Conventions in Afghanistan and are deceptively using the Red Cross. Is this prosecutable as a war crime? I do not know. Is it a violation of the Conventions? Yes.
The Marines, Air Force, British, and US Army Special Operations Forces do not sport the Red Crosses.
The US Army is forcing Dustoff crews to violate the Geneva Conventions. American troops are trained not to violate the Geneva Conventions. Our troops are trained to disobey orders that violate the law.
The Army has publicly communicated in writing that the Dustoffs wear Red Crosses in Afghanistan to abide by Geneva Conventions. This could obligate Dustoff crews to disobey unlawful orders, or put themselves at risk of violating the Conventions.
It could happen tomorrow. A Soldier might say, “Sir, I want to go to Afghanistan, but I am afraid that by violating the Geneva Conventions, I could be accused of a war crime. I am caught in a bad place. I cannot violate the Geneva Conventions and so there is no need to send me to Afghanistan to fly. I must refuse that unlawful order. If ordered, I will go to Afghanistan but I cannot fly in violation.”
A Soldier is obligated to obey the law. A Soldier is obligated not to obey unlawful orders.
What would you do?
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