US bombing of Kunduz hospital in Afghanistan may have been a war crime

The Nobel Peace Prize-winning group Doctors Without Borders (MSF) sent letters to 76 countries that have signed Article 90 of an additional protocol to the Geneva Conventions.

 

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The Conventions set out rules for conducting armed conflict including rules meant to protect non-combatants. MSF believes the attack on its hospital in Kunduz, Afghanistan may have been a war crime. The attack killed at least 22 people. Among those killed were 12 MSF staff and 10 patients. Thirty-three people are still unaccounted for.

The U.S. military, the Afghans, and NATO are already planning investigations into the incident that the US now calls a mistake. Obama called MSF president Joanne Liu and apologized for the attack. Liu however sees an independent investigation as necessary especially since there have been inconsistencies between US and Afghan accounts in recent days. Liu said: ”We cannot rely on only internal military investigations by the U.S., NATO and Afghan forces." The MSF sent a letter to UN Secretary-General Ban Ki-Moon about their demand. Stephane Dujarric a spokesperson for the UN said that ban is "always in favor of accountability, and he looks forward to a transparent and impartial investigation of what happened in the hospital in Kunduz". Note that the reply says nothing about who should be investigating.

The MSF demanded that the 15 member International Humanitarian Fact-Finding Commission based in Bern Switzerland carry out the investigation. The Commission is made up of diplomats, legal experts, doctors, and some former military officers from nine EU countries. It was created after the Gulf War in 1991 but has never been deployed on a fact-finding mission. Liu complained that the attack in Kunduz was not just an attack on their hospital and a possible war crime but an attack on the Geneva Conventions that cannot be tolerated. The attack has completely shattered the humanitarian aid response team in Kunduz, with MSF and other aid groups suspending operations in the area. The hospital was the primary medical facility in the entire region.

Only a single country need call for the Commission to be mobilized. However, both the U.S. and Afghanistan would need to agree to the investigation. Neither Afghanistan nor the U.S. have signed on to this article of the Conventions. MSF has not yet heard from any country.

The MSF demand did receive support from the top commander of NATO:Philip Breedlove, NATO Supreme Commander and four-star US Air Force General, told Deutsche Welle that he supports the investigation called for by Doctors Without Borders, through the International Humanitarian Fact-Finding Commission (IHFFC).

The directory of international law and policy at the International Committee of the Red Cross also supported the MSF, claiming that the IHFFC investigation would complement those of the Afghans, NATO and the US. No doubt some military authorities are probably as astonished at what happened as others and would like to know how it could happen. So far US authorities have said they do not believe an international investigation is needed. But even one of their top generals thinks otherwise.

The circumstances of the attack make the official US view that it was a mistake difficult to believe. The location of the hospital had been made clear to both Afghans and Americans. Hospital officials also noted:

The U.S. military aircraft that attacked an Afghan hospital over the weekend made at least five passes over it dropping explosives, even though two flags draped across the roof of the building marked it as a medical facility, hospital officials said on Thursday.The staff noted the hospital was the only structure hit in the attack. They denied that the Taliban were using the hospital as a base at the time or that there were any armed Taliban fighters in the hospital. The building that was attacked contained emergency rooms, an intensive-care unit, blood lab, and X-ray room plus an outpatient waiting room. No other buildings on the hospital grounds were attacked. The attack began just after 2:00 in the morning and lasted almost an hour even though MSF frantically contacted authorities to inform them the hospital was under attack.

It seems clear that the intention was to attack the building that was hit, even though it was known that it was a hospital. Perhaps, the attack was based upon some intelligence about hi-value targets being in the hospital, or that it was being used as a base by the Taliban. Even if this had been true it would not justify the attack. The U.S. story changed. At first those killed were collateral damage in an attack called in to protect troops being fired upon from the hospital or nearby as discussed on the appended video. As often happens, the story had to be altered as new evidence of what happened emerged.