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American Attack on Kunduz Hospital

When is a War Crime not a War Crime?

Photo credit: Médecins Sans Frontières
Photo credit: Médecins Sans Frontières

On 15 October, international medical humanitarian organization Médecins Sans Frontières (MSF)—better known in the English-speaking world as Doctors Without Borders—launched a petition to encourage the United States to consent to an independent investigation into the American bombing of a hospital in Afghanistan.

On 3 October, American airstrikes targeted the MSF-run trauma hospital in Kunduz. The missile strikes killed twenty-two people in the hospital–twelve staff members and ten patients, three of whom were children–and over three-dozen others were injured in the hour-long barrage. In the hours after the attack, the survivors’ stories that emerged were visceral and gut-wrenching; one hospital nurse described “patients burning in their beds.”

In reaction to the airstrikes, MSF has pulled out of Afghanistan. Civilians in Kunduz who require medical aid now must walk hours to the nearest hospital.

The American and Afghani responses to the airstrikes have been murky and poorly coordinated. Various US military officials initially reported that the attack was accidental. On 3 October, the NATO line was that the Kunduz airstrikes were designed to target the increasing Taliban forces in the region, and “may have resulted in collateral damage to a nearby medical facility.”

This story was vociferously rejected by MSF; the aid organization declared that it had reported to NATO the precise locations of its operations several times over the past months, and had even phoned Washington during the airstrikes in a last-ditch attempt to stop the bombing. Afghan officials retracted their story, and next implied that the bombing was intentional, claiming that the Taliban were using the hospital grounds as a base, a claim that MSF has entirely rejected as “spurious.”

While the official US narrative is still unclear, it’s undeniable that US forces knew the location and nature of the hospital before the strike was called.

MSF, meanwhile, immediately initiated the steps required for a formal independent inquiry. On 14 October, MSF received official confirmation that the International Humanitarian Fact-Finding Commission (IHFFC) was prepared to investigate the bombing. The IHFFC is the only body mandated to investigate violations of international humanitarian law, but it will require American and Afghani consent to continue.

Initiating a petition to encourage President Obama to provide his consent is the first stage of the process, since it is currently uncertain whether or not the US will cooperate with the IHFFC.

On 7 October, Obama telephoned MSF Chief Joanne Liu to apologize for the attacks. He confirmed that the airstrike was not mere collateral damage, but a mistake, and promised a complete American investigation into the matter. Currently, three separate investigations have been promised by US military, NATO and Afghan officials. But in the context of continuing contradictory stories, MSF insists that an independent inquiry is necessary. “Apologies and condolences,” said Dr. Liu, aren’t enough. “We are still in the dark about why a well-known hospital full of patients and medical staff was repeatedly bombarded for more than an hour.”

MSF has said that it is proceeding under “the clear presumption that a war crime has been committed,” and that the attack was in any case a “grave violation of International Humanitarian Law.” Zeid Ra’ad al-Hussein, UN High Commissioner for Human Rights, added to the call for an independent and transparent inquiry into the attack. “This event is utterly tragic, inexcusable, and possibly even criminal,” he stated, and observed that “if established as deliberate in a court of law, an airstrike on a hospital may amount to a war crime.”

Although US and Afghani officials have not directly addressed this accusation, reports on the bombing indicate that there is a strong possibility that American forces have broken their own rules of engagement.

Typically, medical services are held to be sacrosanct in conflict zones. MSF depends on the presumption that medical facilities are neutral, protected spaces. They state on their website that, “If not for the recognition of these principles, MSF and other humanitarian organizations could not work in conflict zones and other places rife with violence.” This is not an uncontested presumption (What about situations where the people receiving aid are supporting enemy agents? What does it mean to provide medical services and medical services alone to a population that is facing other dangers, like starvation?), but it’s roughly held to be true. The presumption is strong enough that the international community was swift in its condemnation of the American action.

This condemnation might not be enough to outweigh the reality of American military weight or, more importantly still, the rhetorical power of American exceptionalism. In his essay “Why sorry isn’t enough,” CBC analyst Neil Macdonald forwards the thesis that the American conviction that they only conduct “just wars” prevents the nation’s leaders from opening their processes to external review, and consequently from being held accountable for their mistakes.

Macdonald refers to a showdown between journalist Matt Lee and Mark Toner, spokesman for the US State Department at a press conference two days after the bombing. Toner apologized for the bombing in vague terms, but was unwilling or unable to characterize it as anything other than a “difficult situation,” and stated that an investigation would have to be concluded before anything else could be said.

Lee, unsatisfied, compared the Kunduz bombing to a 2014 attack by Israeli forces on a UN school in Gaza, despite being aware that it was a school. American leaders had been swift to decry the violence as “disgraceful” and “appalling” without waiting for an investigation. “Can you say now,” Lee pressed, “that this shelling of this hospital was disgraceful and appalling?”

The double standards of “just” military engagement—while unacceptable according to the rule of law—are fundamental to the realities of international politics.

Though theoretically any nation may be accused of a war crime, Macdonald points out that the five permanent members of the UN Security Council have veto power, which effectively prevents American war crimes from being referred to the International Criminal Court.

What would it mean for the rule of law and respect for international process if the US were to reject the inquiry? It depends—and certainly if the US completes its own investigation with adequate transparency, public opinion in the States might not rise to the level to insist that their government comply with the IHFFC.

In areas of international military conflict, the demands of the rule of law compete with the realities of geopolitical power. Perceptions of the moral righteousness of states’ actions persist even in the absence of obedience to internationally agreed-upon processes.

The investigation of war crimes are at least as implicated in geopolitics as in law, and the facts of the Kunduz airstrike are not in dispute–the only contested element is its justification.