The Dutch, nice people, thought they could fight an insurgency in their sector of Afghanistan by gentle intervention, talking to locals in endless shuras, pushing reconstruction promises, offering security over instability.
This tranquilizing approach – at least as promoted by The Hague – drew derision from American and NATO troops involved in combat and clearance missions. At the base in Kandahar, graffiti scrawled on a lavatory wall jeered: "Don't slam the door. It'll scare the Dutch."
It came as a shock to the nation, then, when a TV crew, embedded with troops in Uruzgan, brought back film footage that showed Dutch soldiers kicking down doors, charging into homes and vigorously rousting civilians during raids. Goodness, they looked like ... Americans.
War will do that to you. Often, it compels it of you. Those who don't have it in them need not apply, or enlist.
By no definition, except to a Canadian judge far removed from the maelstrom of a conflict zone, can routine slam-bam searches of targeted premises, in the context of a perilous counter-insurgency, be considered an actionable violation of human rights as defined by the Geneva Conventions.
Federal Court Justice Richard Barnes – who I suspect has never been closer to a heart-racing "kinetic" situation than a weekly squash game – took a different view in a judicial review ruling released Friday.
In the absence of facts, summoning his own interpretation of the Convention articles, Barnes kicked back to the Immigration and Refugee Board the case of an American deserter denied his application for asylum. A new panel must reconsider the claim of Pte. Joshua Key, this time with a broader interpretation of eligibility that might encompass soldiers objecting to "condoned military misconduct."
What Key had described – his traumatizing participation in nighttime house searches during a 2003 deployment to Iraq, rough incursions condoned by military commanders – did not meet the threshold of war crimes, Barnes acknowledged.
Yet Barnes asserts a superior knowledge of both law and combat, maintaining the U.S. military showed "little understanding" that civilians are protected persons. "The wanton destruction of property, the intimidation of the entire family including children, the absence of any cultural sensitivity, the disrespect for human dignity and physical integrity, the pillaging and the violence could well be breaches of the Geneva Conventions."
Not grave enough to constitute war crimes, even if Key's recitation of events was accurate – evidence never challenged – but possibly violations of prohibitions against "humiliating and degrading treatment." In his refusal to participate further in such raids, and facing prosecution as a deserter, Key might qualify for refugee status here, Barnes concluded.
As far as we know, nobody with whom Key served in Iraq has ever been charged under military or civilian or international law: no courts-martial, no conduct unbecoming, no rights violations, no criminal indictments.
But Barnes assumes and accepts a disproportionate level of violence by American troops: "A score of young men brandishing weapons ... descending on a sleeping family in the middle of the night, blowing up the front door ..."
This is what combat troops do. It's what Canadian troops do.
Armed conflict is inherently belligerent, chaotic, bruising to everyone involved. Some violations of civil rights are permitted under the rules of engagement. That's just a fact of war or counter-insurgency.
Soldiers aren't required to read any citizen his rights. They don't obtain subpoenas. Nobody gets to call a lawyer. Brutality and torture are clearly not allowed. Discreditable conduct is punished. War crimes are prosecuted. But a conflict zone isn't Rosedale or Jane-Finch. Barnes clearly doesn't understand that distinction.
What Barnes did, from his distant perch in Ottawa, was indict the entire U.S. military of something just short of war crimes. It is a desertion of common sense.
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