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U.S. failure in Kunduz: a mistake that violates international humanitarian law?

By Amaury A. Reyes-Torres

War is neither fair nor pretty. But it does not mean that there are not rules that govern the conduct of those involved in conflict. The primary aim of these rules, embodied mainly in the Geneva Conventions and in customary international law, is to protect civilians, the sick, the wounded or those who no longer fight. These rules extend to objects and buildings, such as medical units, that deserve special protection because of the purpose they serve.

In October 2015, U.S. forces mistakenly bombed a Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, likely in violation of international law. Despite several separate investigations, the details of what exactly happened are still unclear, revealing how the U.S.’ response to this tragedy lacks transparency. As survivors, families of the victims and MSF seek answers, transparency and accountability should be paramount.

THE PROBLEM: ATTACK ON A MEDICAL UNIT

Kunduz has been the location of intense fighting against the Taliban, and was especially so during the first two weeks of October when the Taliban gained control of the city. On Oct. 3, the U.S. military forces conducted a military operation against the Taliban, which consisted of bombing specific targets in Kunduz. But the military operation did not go as expected.

The offensive, carried out by a US AC-130, did not hit a military object, but rather a medical facility operated by MSF, known as Doctors Without Borders in English, despite the fact that MSF had shared their GPS coordinates with all sides of the conflict. The medical facility was occupied by doctors, patients and other staff members during the time of the air strikes, and the attack killed 30 people, including staff and patients, and injured over 27 others. MSF staff described horrible scenes of confusion and suffering, where patients burned in their beds and close colleagues had to operate on one another. The bombing lasted over 30 minutes, despite repeated calls to U.S. and Afghan officials at the beginning of the attack stating that they were hitting a hospital. The personnel in the facility had no opportunity to evacuate.

The U.S. responded with conflicting reports in the four days the followed. The U.S., at first, described the event as an incident where a nearby medical facility could have sustained collateral damage. Later, the U.S. stated that its forces were supporting Afghan forces that were being attacked by the Taliban, and several civilians were struck by accident. Then, the leader of U.S. forces in Afghanistan testified that the airstrikes were ordered by the U.S. and that a hospital has been mistakenly struck. The question is: did this action by the U.S. violate international humanitarian law?

PROTECTION OF MEDICAL UNITS UNDER INTERNATIONAL HUMANITARIAN LAW

The conduct of hostilities in international law is regulated by four major principles: the principles of distinction, proportionality, necessity and the prohibition against unnecessary cruelty. Each of these principles play an important role in how the parties to any armed conflict (international or non-international in character) should formulate military objectives and prioritize the protection of civilians or protected objects.

The principle of distinction has two important components. First, the parties in the hostilities must be able to distinguish between civilians and combatants, or persons who directly participate in hostilities. The same applies with respect to wounded combatants who are considered hors combat, or people who are no longer engaging in conflict. This principle reflects customary international law, and it is included in the U.S Commander’s Handbook.

According to Sandesh Sivakumaran, a professor of public international law at the University of Nottingham, there are certain objects that are entitled to special protection. Although it can be argued that they are, after all, civilian objects because of their purpose, medical units have special protection during the conduct of hostilities. Under this rule, medical units should be respected and protected under all circumstances, unless they are being used outside of a humanitarian function. This includes when no one is receiving care.

This obligation to respect and protect medical units derives from Additional Protocols I (AP I) and II (AP II) to the Geneva Conventions, as well as from article 19 of the First Geneva Convention I, a treaty ratified by the United States. Also, article 18 of the Fourth Geneva Convention (also ratified by the United States) extends these protections to civilian hospitals, which are not necessarily formal hospitals, a category in which the facilities of MSF may fall. Moreover, even countries like the United States, which has not ratified Protocols I and II to the Geneva Conventions, must respect the prohibition against attacks on medical units and transportation bound for medical facilities because these rules are a part of customary international law.

Because an object like a medical unit is entitled to protection, several steps must be taken by all parties in engaged in hostilities. First, all parties must distinguish between a military object, which can be subject to a lawful attack, and a civilian or medical object against which a direct and purposeful attack is forbidden.

Second, under international customary law, all parties must take precautions – especially when it comes to air warfare – to protect civilians and civilian objects in good faith and with due diligence. Under AP I, all parties must: 1) do everything possible to verify the nature of an object; 2) take all necessary precautions, including in the means and methods of attack, to avoid or minimize collateral damages to civilians and civilian objects; and 3) be aware that certain actions could entail a violation of the principle of proportionality.

The amount of information available at the time of an attack is a large determinant of how lawful an attack is. The information available must be reliable, up-to-date and properly interpreted by decision-makers at the time of the action. In this respect, the timing of an attack may be extremely important, as civilian losses can be avoided at certain times of day.

More importantly, parties are obligated to give effective warnings prior to attacks, which is a well-settled rule of international law, according to Yoram Dinstein, an international law scholar. The warnings should alert civilians and civilian facilities that an attack is imminent.

KUNDUZ BOMBING: DISREGARD OF INTERNATIONAL LAW

In the Kunduz bombing, the U.S. military launched an attack on a medical facility, an object that is protected against direct and/or purposeful attack under international humanitarian law. The commander of the U.S. forces in Afghanistan testified that the attack was a mistake. It is clear that the U.S. forces did not properly distinguish a protected object from a lawful military target, and that they did not take precautions to avoid civilian causalities.

According to the Associated Press, American special operations analysts knew that the place of attack was a medical facility. In fact, according to The Guardian, MSF had communicated its coordinates to both U.S. and Afghan authorities as recently as Sept. 29, but apparently this was disregarded.

MSF also said that they were not warned of the attack, as is required under international law as well as the Department of Defense’s law of war manual. Therefore, there are strong indications that the attack was unlawful under the laws of armed conflict. MSF may be justified in calling this a war crime, according to Professor Mary Ellen O’Connell from the University of Notre Dame.

Although President Barack Obama did apologize to MSF, and launched investigations into the events, it is unclear whether the U.S. government will hold accountable the individuals responsible for the ultimate decision to bomb the hospital. Not only do the victims have a right know what happened, but it is also imperative for the U.S. to be as transparent as possible so that humanitarian organizations that do dangerous but necessary work feel reassured to continue or restart their operations.

THE NEED FOR TRANSPARENCY

This tragedy shows us that in the wake of unlawful attacks there is a need for transparency. There are two main questions that require answers: (1) what led the U.S. to believe the target was legitimate at the time of the attack?; and (2) if U.S. knew this building was a hospital, what led them to believe the medical unit had been stripped of its protection under international law?

MSF has called on the U.S. to consent to an independent fact-finding commission, arguing that the U.S., NATO and Afghanistan cannot be relied on to conduct neutral and transparent investigations. This request has unfortunately fallen on deaf ears.

The International Humanitarian Fact-Finding Commission has a mandate to investigate violations against international humanitarian law like the attack in Kunduz. It was created by article 90 of the AP I, and its president has declared that the commission is ready to investigate the attack in Kunduz. Although United States is not a party to AP I, it can still consent to investigation by the commission. Afghanistan can consent as well to its ad hoc jurisdiction.

One potential pitfall of the commission is that it was created by an international document pertaining to international armed conflicts, and not internal armed conflicts like the one taking place in Afghanistan. But, a broad reading of the ad hoc jurisdiction text in article 90(2) AP I could include non-international armed conflicts, which would allow for accountability and transparency in the wake of this tragic incident.

Recently, President Obama announced that U.S. forces will remain in Afghanistan soil until at least 2017. Now, more than ever, the U.S. must meet its obligations under international humanitarian law. In the case of Kunduz, the U.S. must consent to an independent investigation for the sake of the victims who deserve to know the truth. By doing this, the U.S. will show that it is committed to the rule of law, and that it believes that independent investigations are good policy.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Annette Dubois/Creative Commons

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