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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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United States drone strikes: legal mechanisms and controversy

By Sarah Ben-Moussa

As the nature of warfare and military endeavors continues to evolve, one of the most controversial topics continues to be unmanned aerial vehicles (UAVs) and remotely piloted aerial systems (RPAS), more commonly known as drones. They have been mostly used in situations where manned flight is considered to be too dangerous or difficult, in an effort to prevent intrusive military operations. Their use began under the administration of President George W. Bush, and has since increased under President Barack Obama’s administration, becoming a favored military strategy in recent years, despite international and domestic criticism. There is has been a growing and widespread concern for civilian casualties as a result of the use of drones, especially after January of this year, when President Obama faced public backlash over the drone strike that killed Warren Weinstein, a 73-year-old American aid worker, and the Italian hostage, Giovanni Lo Porto, 37.

In a 2013 statement to the National Defense University, President Obama defended the legality of the drone program, stating, “America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.” However, are drone strikes legal under domestic and international law? And what are their human rights implications?

DOMESTIC LAW AND THE AUTHORIZATION FOR THE USE OF MILITARY FORCE

Domestically, the justification for drone strikes has largely come from the Authorization for the Use of Military Force (AUMF), a congressional act passed in 2001, shortly after the Sept. 11 attacks. The original text of the act authorizes the President of United States “to use all necessary and appropriate force” against those they determine to be involved in the terrorist attacks that occurred on September 11, 2001.

The Act, which has not been revised since its passage in 2001, remains the principle justification for military force against Al-Qaeda and its associates, including the use of drone strikes. Only 60 words in length, it does not speak specifically to the use of drones, nor does it address the subsidiary groups and evolutions of Al-Qaeda that have risen in the last fourteen years. But the language “all necessary and appropriate force” has allowed presidential administrations to interpret the authorizations broadly, allowing for continued and growing targeted killing operations in Afghanistan, Yemen, Pakistan and Somalia.

There have been many critics of the continued use of the AUMF, both from Democrats and Republicans, asserting that the original purpose of the statute does not conform with the changing nature of war. As terrorist groups continue to grow and evolve, the AUMF is used as a blank check for the U.S. to engage in a sort of “forever war,” without seeking Congressional reauthorization for involvement in new conflicts. Moreover, legal scholars have argued that the law may not authorize the targeted killings of those who are indirectly or loosely associated with Al-Qaeda. Critics have expressed concern over the United States’ legal ability to use drones on Americans. Some have also said that the current drone program, which targets individuals in Yemen or Somalia without establishing clear ties between them and Al-Qaeda, is based on an overly-broad interpretation of the AUMF.

Many have called for a revision of the law, which continues to allow such broad presidential powers. These revisions are becoming more pertinent as questions arise about if the AUMF can extend in legal scope to justify military force against the Islamic State in Syria (ISIS), which did not exist at the time of the Sept. 11 attacks, and thus, does not fall under the original parameters of the AUMF.

There are currently two proposed amendments to the law that seek to approve military force in Iraq and Syria. The White House proposed a version that would allow the President to use the armed forces as he determines necessary against ISIS and associated groups, subject to a reauthorization of the act every three years. Despite the administration’s insistence that the proposed bill would not authorize long-term, large-scale ground operations, many criticized the text of the statute as too broad, leaving wide discretionary use of power to use the armed forces. A subsequent revised proposal made by members of Congress sought to confine the authorization of military force to only ISIS, and decrease the scope of presidential discretion. Both proposed versions would limit their reauthorization to three years.

Despite their differences, the language of both bills does not address or regulate the use of drones. The nature of warfare is changing in a way that the world has not seen before. Thus, it is imperative that our laws and authorizations to use military force address the changing nature of war, including the use and regulation of drones.

INTERNATIONAL LEGAL CONCERNS

The predominant concern in assessing the legality of drone strikes under international law is the risk to civilian life. In their May 2010 report, the U.N. Human Rights Council (HRC) took up the issue of “targeted killings,” a term not previously defined in international law. While the term has been used in a variety of contexts, including the use of drones, the HRC has interpreted it to encompass times when lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance. The United States has adapted the military tactic of targeted killings in other countries since the attacks on Sept. 11, 2001, causing concern in the international legal community.

The international legal argument on drones involves three principal considerations. Under international humanitarian law, targeted killing is only lawful in times of armed conflict when a target in question is a “combatant” or “fighter.” In the case of a civilian, it is only lawful during the time a person “directly participates in hostilities.” Given the changing landscape of warfare, the exact definition of these terms continues to be the subject of an ongoing legal debate.

Under human rights law, a killing by a state is only legal if it is required to protect life and there are no other means, of preventing that threat to life. In the case of targeted killings across state borders, the HRC clarified that targeted killings conducted outside of the territory of a country’s borders does not violate sovereignty if the other state consents. Furthermore, it is legal if the country conducting the killing is doing so in self-defense under Article 51 of the UN Charter because the other country is unwilling or unable to stop armed attacks launched from its territory. International law permits the use of lethal force in self-defense in response to an “armed attack” as long as that force is necessary and proportionate.

The United States argues that its actions are in compliance with international law because the U.S. is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces. The U.S. further asserts that the targeted killings they conduct fall within the scope of the self-defense as defined under the Article 51 of the UN Charter. Thus, in the case of Syria and ISIS, it is imperative for the U.S. to reauthorize the AUMF in order to meet the definition of “armed conflict.”

However, despite this defense, the HRC pointed to a number of concerns with the U.S. legal justification, including: “the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.” The U.S. may continue to encounter similar international scrutiny in Syria as in the conflicts in Afghanistan, Pakistan, and Somalia.

CONTROVERSIES OF THE DRONE PROGRAM

The U.S. continues to face backlash over its drone program, especially in Pakistan. The Pakistani government has called for the immediate cessation of the drone program. Even so, it doesn’t seem as though future development of the drone program will halt. The administration has defended its reliance on drones as a way to decrease the effectiveness of terrorists groups, such as Al-Qaeda, who operate in remote areas. Obama has also argued that this program achieves its military objectives while avoiding civilian causalities with “near certainty.”

Despite recent controversy, and many doubting the effectiveness of drones in reducing civilian causalities, research has shown that the civilian causality rate under the drone program has actually been dropping since 2008. The number of civilians and unknowns (persons who cannot be identified) reported killed by drones in Pakistan from the beginning of President Obama’s tenure to 2011 represented 11 percent of fatalities, and in 2012 went down to 2 percent (as compared to 33 percent in the previous administration). Additionally, since 2004, the drone campaign has killed at least 49 militant leaders.

It may be the case that the United States’ reliance on drones in conducting warfare is beneficial in the long term. Proponents of the program have strong arguments for its use as opposed to traditional methods of warfare, especially in the light of evolving terrorists’ threats against the U.S. and other states. The legality of the drone program continues to be debatable, depending on whose interpretation you are relying on. But one thing remains certain: there can be no denying the tragic sense of loss faced by those who are affected by civilian causalities. Our analysis cannot be rooted in a simple cost-benefit inquiry, nor an understanding of legal mechanisms, but must instead look at the issue from a humanitarian perspective. It is imperative for the United States to increase its transparency and administrative regulation when it comes to its drone program, while also balancing prevailing national security interests. The U.S. must institute national review mechanisms of the drone program and ensure continued research into increasing technological effectiveness and accountability. Above all, the U.S. must demonstrate the utmost commitment to the sanctity of civilian life.

Sarah Ben-Moussa 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: U.S. Air Force photo/Staff Sgt. Brian Ferguson/Creative Commons