Saying that it is operating on the assumption that a war crime occurred and “cannot rely only on internal military investigations by the U.S., NATO, and Afghan forces,” Doctor Without Borders announced today that it was seeking an independent investigation by the little-known International Humanitarian Fact-Finding Commission into the U.S. airstrike on Saturday that killed 12 of its staff and ten others near Kunduz, Afghanistan. President Obama has called the head of the group, often referred to by its French acronym MSF, to apologize for the incident, but that hasn’t exactly mollified the justifiably enraged organization.
U.S. explanations for the strike have been inconsistent so far. Initial statements suggested that U.S. special operations forces advising Afghan commandos in the area had called in the airstrikes. Afghan officials suggested that the hospital was attacked because senior Taliban were inside. However, Gen. John Campbell, commander of the U.S. forces in Afghanistan, said on Monday that the hospital was struck accidentally after nearby Afghan forces called for U.S. air support when they came under fire. The New York Times has also reported, quoting anonymous military officials, that Campbell now believes that “the Americans on the ground did not follow the rules of engagement fully” in determining whether they were attacking a legitimate target.
So did a war crime take place? It depends on what exactly happened and what exactly U.S. commanders knew before it did. In a recent post on the Just Security blog, Jonathan Horowitz, a legal officer at the Open Society Justice Initiative, ran through several possible scenarios. If the U.S. intentionally bombed a facility that it knew was a civilian hospital, that would likely be a war crime, even if Taliban fighters were being treated inside.
More likely is that the U.S. wanted to bomb Taliban fighters it believed were in or near the facility, but didn’t realize it was bombing a hospital due to bad intelligence or oversight. In this case, the question of whether or not it was a crime under international law depends on whether the U.S. took “all feasible precautions” to avoid civilian casualties before launching the strike. Campbell’s apparent belief that U.S. special forces did not have “eyes on” the area “raises alarm bells as to whether the U.S. took adequate precautionary measures,” Horowitz told me. “You have between Wednesday [when the U.S. began assisting the Afghan forces attempting to retake Kunduz] and when the strike occurred on Saturday. It seems to me that this is a significant amount of time, even in a military operation, to find out where significant civilian populations are located and where specially protected objects like schools, hospitals, and heavily populated markets are located.” This also raises the question of whether the Afghan forces who requested the airstrike knew the hospital was there. MSF says that U.S. and Afghan forces were notified of the facility’s location as recently as Sept. 29. If commanders simply ignored that information or didn’t consult before ordering the strike, that could be illegal under international law.
It’s also possible that the U.S. did know it was bombing a hospital, but had reason to believe that Taliban was actively using the facility itself or the nearby area for military purposes. In this case, the military would be obligated not only to take steps to avoid civilian casualties but to ensure that the risk to civilians wasn’t excessive in relation to the anticipated military advantage. Those are pretty vague criteria, and they have been intensely debated in the past, including in the case of Israel’s airstrikes of civilian facilities, including schools and hospitals, in Gaza. In any event, MSF has denied that the Taliban were using the hospital for military purposes or that there was heavy fighting in the immediate area.
Even if a war crime did occur, no one in the U.S. is going to get prosecuted for it on an international level.*
But MSF is going a different route. In seeking the involvement of the International Humanitarian Fact-Finding Commission, the organization is delving into what Horowitz calls a “hidden part of international law.” As MSF explained in its press release today, the commission, which was established by the Additional Protocols of the Geneva Conventions to investigate violations of international humanitarian law, has existed since 1991 but has never actually been activated. “The tool exists and it is time that it is activated for this purpose,” the group’s U.S. executive director Jason Cone said at a press conference in New York this morning. To launch an inquiry, the commission requires a sponsorship from one of its 76 state parties, which MSF is now calling for.
It would also require consent of the countries involved in the conflict, in this case the U.S. and Afghanistan, to conduct the investigation and to make the results public—one big reason why it’s never been used before. The inquiry wouldn’t have prosecutorial authority, but it would seek to establish the facts of the case and whether or not a violation occurred.
The U.S. seems unlikely to consent to such an investigation. State Department spokesman Mark Toner said yesterday that with the U.S. and Afghan governments both launching their own probes, “enough investigations are underway that we’ll get to the truth…. I think we’ve proven over time that we can investigate incidents like these—like this, and as I said, hold anyone accountable who needs to be held accountable, and do it in such a way that’s transparent and, I think, credible.”
Credibility is certainly the key here. The U.S. has warned Russia, which has itself been accused of striking medical targets, about avoiding civilian casualties, and has sought to distance itself from civilian casualties caused by ally Saudi Arabia’s airstrikes in Yemen. If the U.S. wants to distinguish its own military conduct from those countries, and isn’t willing to consent to an outside investigation, it had better start providing some pretty good explanations for what happened and hold someone accountable for it.
*Correction, Oct. 7, 2015: This post originally misstated that crimes committed by U.S. Forces in Afghanistan would not fall under the jurisdiction of the International Criminal Court. These crimes would, but an ICC investigation of them is still highly unlikely. The sentence has been removed.