Is bombing a hospital or shooting down a civilian jetliner a war crime? How about if the president apologizes?
These questions are being played out in Afghanistan in the aftermath of the U.S. bombing of a hospital run by the humanitarian group Medicins Sans Frontieres (Doctors Without Borders) that killed 22 people, including 12 of the group's medical personnel last weekend.
The term "war crime" has a precise legal definition, according to experts. It can't be used just to describe an accident or some other type of incident during war.
"For it to be a war crime, you have to intend or know that you are hitting a civilian object," said Allen Weiner, professor of international law at Stanford University. "It is a crime if you intentionally target civilian objects, also if you engage an attack if you think it's military and the attack is disproportionate to the military advantage."
President Obama called the head of the French group this week to apologize. Still, the group's leaders say they are pressing for an independent investigation of what happened and whether the U.S. military officials involved can be charged with a war crime. The Pentagon says it is conducting its own investigation.
Under international law, attacks on hospitals, schools and other civilian places are protected unless they are being used for military purposes. Pentagon officials said initially that Afghan troops on the ground were taking fire from Taliban units at the hospital, but the medical staff denied this report.
"There's no scenario where the United States would have wanted this outcome," said Beth Van Schaack, visiting professor of human rights at Stanford. "The question is what were the circumstances on the ground."
The International Criminal Court in the Hague has prosecuted individuals in recent years for war crimes, and set up special tribunals to investigate war crimes in places like the former Yugoslavia, Sierra Leone, Rwanda, Lebanon and Cambodia, according to Mark Drumbl, international law professor at Washington and Lee University.
While Afghanistan is a signatory to the treaty that gives the ICC jurisdiction in these cases, the United States is not. Neither are nations like Russia, China or Syria, for example. That would make prosecuting Russia for the shoot-down of a civilian airliner over rebel-held territory in the Ukraine last year more difficult as well.
"Under the international criminal court, in order to have jurisdiction, the attack has to be part of a widespread or systematic pattern of attacks," Drumbl said. "A one-off doesn't rise to that level."
Even though the doctors' group has pushed for an initial investigation, it's not clear the U.S. officials will cooperate. On the other hand, the United States has prosecuted individual soldiers for war crimes against civilians in Iraq and Afghanistan. The soldiers were charged with murder and convicted by military courts.