In the early hours of Saturday 3 October 2015, the United States military conducted a series of sustained airstrikes on a Medecins Sans Frontieres (MSF) hospital in Kunduz, Afghanistan. 42 civilians, including MSF staff, were killed. Dr Joanne Liu, president of MSF, condemned the attack as “an attack on the Geneva Conventions” and General Director Christopher Stokes stated that MSF is “working on the presumption of a war crime” having been committed by the US. 1
US officials initially denied responsibility. Six weeks later, they admitted that the attack had occurred due to repeated human error and mechanical failure, culminating in the wrong target having being hit. The findings of the US investigation into the attack were recently made publicly available, and concluded that certain US military personnel failed to comply with their rules of engagement and the law of armed conflict. However, the report also concluded that such failures did not amount to a war crime because the attack was a mistake and therefore lacked the requisite ‘intention’ requirement.
Under Article 8(b)(ix) of the Rome Statute of the International Criminal Court, ‘intentionally directing attacks against hospitals and places where the sick and wounded are collected, provided they are not military objectives’ amounts to a war crime. The Elements of Crimes Explanatory Note to the Rome Statute clearly sets out intention as the third element required in order for an act to constitute a war crime.
The US maintains that its mistaken attack on the MSF hospital, as a result of having misidentified it to be a military objective, means that its personnel who conducted the attack cannot be individually prosecuted for war crimes because they did not intend for the hospital to be the object of the attack. However, even if the US had mistakenly attacked the hospital despite having been provided with the MSF’s GPS coordinates as a precaution beforehand, the fact that the attack continued for an alleged thirty minutes after the MSF first informed US and Afghan officials that the hospital was being mistakenly targeted raises serious questions as to whether the US had intended to target it. 2
Under International Humanitarian Law (IHL), medical personnel and hospitals are afforded special protection from attack (Geneva Convention 1 articles 19, 33 and 34; Additional Protocol 1 articles 12, 14 and 16) and are regarded as civilians and civilian objects, respectively. Even in the unlikely event that a hospital is transformed from a civilian object to a military objective due to a change in its purpose, nature, location or use, parties to the conflict are required to take all feasible precautions to distinguish between military targets and civilians, and ensure proportionality – that is, that there is not excessive loss of, or injury to, civilian life compared to the anticipated military advantage to be gained from the attack.
Furthermore, if a hospital is being used to commit hostile acts outside its humanitarian function, international humanitarian law requires an advance warning to be given before it may be targeted. MSF denies that the Kunduz hospital was ever used for military purposes or to commit hostile acts, and maintains that no warning was received before the hospital was attacked.
The MSF attack raises two important rule of law issues:
- the value of having independent institutions to determine questions of law (or fact); and
- the importance of a fair trial (a trial that is fair, and is perceived to be fair).
Backlash from MSF and the international community following the release of the Pentagon’s report suggests that the Pentagon is not perceived as sufficiently impartial, and was not an appropriate institution to be gauging US military compliance with International Humanitarian Law.
Instead, MSF has demanded an independent investigation by the International Humanitarian Fact Finding Commission (IHFCC), citing a lack of transparency in the US investigation, coupled with the disciplinary action taken against the US personnel who conducted the attack (according to the Pentagon report, such actions included suspension, letters of reprimand, formal counselling and retraining). However, the likelihood of such an investigation commencing is questionable, given the Commission has never before been used, and both the US and Afghanistan would have to agree to the investigation before it could commence. 3
The IHFFC was created by Article 90 of Additional Protocol 1 to the Geneva Conventions, and is a commission created to ascertain controversial facts in situations of mutual allegations and denials of violations under IHL. On its face, it appears to be a more logical institution for gauging US military compliance with International Humanitarian Law. However, the major drawbacks to the Commission include its consent-based safeguards for state sovereignty, which limit the Commission’s ability to commence an inquiry to circumstances where one state that has recognised the Commission’s competence by declaration, unilaterally requests an enquiry against another state that has made the same declaration. While the Commission may seek to conduct an enquiry on an ad hoc basis (meaning that a party to an armed conflict has not made a declaration to accept the Commission’s competence) consent must first be sought. If consent is refused, the Commission is not permitted to commence an enquiry. Currently, only 76 states have recognised the Commission’s competence, none of which include Afghanistan or the United States. 4
The question of how to improve compliance with IHL obligations is not a new one. One of the key proposals at the 32nd International Conference of the Red Cross and Red Crescent was to create:
A non-binding voluntary mechanism which would bring states together to:
(1) Exchange information and best practices on key thematic and technical issues; and
(2) Participate in a voluntary self-reporting process on IHL compliance.
Despite the rhetorical recognition that this is a problem, there is no real political will to engage substantively to make things better.
In light of the tragedy at the hospital in Kunduz, the necessity of finding appropriate mechanisms and institutions to resolve international legal disputes is more pressing than ever. The failure to determine accountability for indiscriminate attacks by states and individuals alike sets a dangerous precedent.
— Laura Hugh
NSWYL International Law Committee