JURIST Guest Columnist Milena Sterio of Cleveland-Marshall College of Law discusses the recent acquittal of Polish soldiers connected to the incident at Nangar Khel …

In a recent ruling, a Warsaw military court acquitted four Polish soldiers of war crimes over the killing of six civilians in Afghanistan in 2007. The soldiers were nonetheless found guilty of the lesser offense of failing to carry out a military order. This group of soldiers was part of 28,000 Polish military personnel who took part in the international mission in Afghanistan between 2002 and 2014. This article will explore the soldiers’ original charges of war crimes and will analyze whether their alleged actions constituted war crimes under international humanitarian law. It should be noted that the soldiers were originally charged with violations of various provisions of the Polish Criminal Code, including crimes against peace, crimes against humanity and war crimes. Because these provisions of Polish law reference international law, the below analysis of the soldiers’ liability under international humanitarian law is both relevant and appropriate.

On August 16, 2007, a Polish squad, including the four above-mentioned soldiers, fired mortar shells into a wedding party in the Nangar Khel village in eastern Afghanistan, killing eight civilians. Among the victims were the groom, as well as several children and women. The attack on the Nangar Khel village was likely in response to the injuries suffered by two other Polish soldiers earlier that same day when their vehicle hit a Taliban mine located near the village. According to some witnesses, the Polish captain and commander of the relevant unit told his men to “f— over a couple of villages.” It is possible that Polish officers who ordered the attack believed that the Taliban forces involved in the prior attack on Polish soldiers earlier on the same day were present at Nangar Khel. Two soldiers—a commander and a lieutenant both of whom later served as witnesses for the prosecution—refused to follow the order and requested the base to stop the attack on the wedding party. The Polish attack on Nangar Khel took place nonetheless.

In 2009, the Warsaw Military District Court charged four officers and three privates with war crimes over this incident. The defendants all pleaded innocent, blaming the attack on faulty weaponry as well as portraying the attack as a response to enemy fire. All seven defendants were acquitted in 2011 for lack of evidence of deliberate killing. A military supreme court trial was reopened for the four officers in 2012, resulting in the present-day acquittal of all four officers on war crime charges. The five-judge Military District Court in Warsaw declared that “there was a lack of convincing proof that the war crime was committed.” Court spokesman Tomasz Krajewski also stated, “The court did not establish that the soldiers’ actions were deliberate. The shooting of the village was not on purpose; neither was the killing of the civilians.”

Did the soldiers’ actions amount to war crimes? The answer to this question depends on which version of the facts one believes and on which body of law one applies to the conflict in Afghanistan. The Polish officers, as well as the Polish Minister of Defense, had claimed that the killings took place as part of a mission to eliminate specific Taliban targets in response to enemy fire. The prosecution insisted that the attack on Nangar Khel was a deliberate act targeting a civilian population not performed in direct response to a Taliban attack against the Polish soldiers. The question of whether the soldiers’ acts amounted to war crimes depends in the first place on which version of the facts amounts to the actual truth.

Second, the question of whether Polish soldiers committed war crimes turns on applicable law. Most scholars agree that the armed conflict in Afghanistan is a non-international armed conflict to which relevant principles of international humanitarian law apply. International humanitarian law (also known as the law of armed conflict) aims to mitigate human suffering caused by war by limiting the amount of violence used in a war and by restricting it toward those who are directly participating in the war. Two main principles of international humanitarian law directly relevant for the purposes of this case are the principle of distinction and the principle of proportionality. The principle of distinction requires that belligerents distinguish between military objectives and civilian persons and objectives and that only the former be attacked. This principle has been established as both a norm of customary law applicable to non-international armed conflict as well as treaty provisions. Article 13(2) of Additional Protocol II of the Geneva Conventions states that “(t)he civilian population as such, as well as individual civilians, shall not be the subject of attack…” It is undisputed that if the Polish soldiers had fired on the village of Nangar Khel deliberately, and not in response to an attack by the Taliban from that geographic area, then these acts would have violated the principle of distinction.

However, because the conflict in Afghanistan is of a non-international character, some uncertainty remains as to whether such violations of the principle of distinction amount to war crimes within the paradigm of a non-international armed conflict. On the one hand, Additional Protocol II, applicable to non-international armed conflict, lacks specific provisions found in Additional Protocol I, applicable to international armed conflict, which render the violation of the principle of distinction a war crime. On the other hand, however, the Galic case of the International Tribunal for the Former Yugoslavia held that an attack against civilians can constitute a war crime, even in non-international armed conflict, by virtue of customary law. Thus, the issue of whether Polish soldiers committed war crimes by violating the principle of distinction turns on the accuracy of the differing factual accounts of the incident as well as on one’s interpretation of international humanitarian law.

In addition to the principle of distinction, the principle of proportionality constitutes another fundamental principle of international humanitarian law. This principle dictates that the military advantage gained by a particular operation must outweigh the civilian damage caused by that operation. It follows that every time a large number of civilians may be injured as collateral damage as compared to the importance and advantage of the contemplated military operation, the attack should not take place because it would cause excessive civilian damage. Most scholars, as well as case law of recent international criminal tribunals, agree that the principle of proportionality applies to non-international armed conflict via international customary law. The question of whether the Polish soldiers violated the principle of proportionality and thereby committed a war crime turns as well on the accuracy of differing factual accounts presented in this case. If the Polish soldiers had fired on Nangar Khel village as retaliation for a past attack and not in response to a direct attack by the Taliban forces, then the Polish soldiers would have violated the principle of proportionality by attacking a civilian village with indiscriminate fire which would clearly be expected to cause excessive civilian damage without achieving an advantageous military goal. If the Polish soldiers attacked Nangar Khel in response to enemy fire with the presumption that Taliban forces and targets were to be found in the village, then their attack could potentially be justified under the principle of proportionality despite the fact that the attack would cause some civilian casualties.

The Warsaw Military District Court found that there was no evidence of deliberate acts against civilians by the Polish soldiers, thereby at least partially accepting the soldiers’ version of the incident. The Court’s ruling, and this case in general, are significant for several reasons. First, this trial was the first-ever war crimes trial in modern-day Polish history. Second, while the willingness of Polish authorities to hold such a trial against its own soldiers is remarkable, the outcome of the case sheds doubt on the issue of individual criminal responsibility for soldiers involved in armed conflict on behalf of their governments. It may be that in the future that almost every violation of international humanitarian law during armed conflict committed by active forces of a warring state will be shielded by the argument that there is not enough evidence to prove the wrongdoers’ guilt beyond a reasonable doubt.

Third, it is reasonable to conclude that future prosecutions of this type will always be tainted by politics and self-interest. In this particular case, Polish authorities had undertaken remarkable efforts to make amends for the incident, including paying compensation to the victims of shelling at Nangar Khel and transporting the injured to Poland for further treatment. However, the individual soldiers involved in the incident were all acquitted of war crimes charges despite the strong possibility that they violated the principles of distinction and proportionality. Even if their acquittal was proper, the Nangar Khel incident has set an unfortunate precedent in the history of Polish armed forces and may have troubling implications for future war crimes prosecutions in other countries.

Milena Serio is professor of law at Cleveland-Marshall College of Law. She received her JD from Cornell University.

Suggested citation: Milena Serio, Polish Soldiers Acquitted of War Crimes For Nangar Khel Incident, JURIST – Academic Commentary, April 20, 2015, http://jurist.org/forum/2015/04/milena-serio-war-crimes.php