Afghanistan Analysts Network – English

War and Peace

Airstrike on a Hospital in Kunduz: Claims of a war crime

Kate Clark 15 min

Médecins Sans Frontières (MSF) is now demanding an International Humanitarian Fact-Finding Commission look into the United States air strike which hit its hospital in Kunduz in the early hours of Saturday morning (3 October 2015). 12 MSF staff and 10 patients, including three children, were killed in the strike which came four days into fierce fighting between Afghan forces supported by their US allies, and the Taleban. MSF has alleged the attack was deliberate, saying, “We are working on the presumption of a war crime.” The commander of US and NATO forces in Afghanistan, General John F Campbell, has admitted “a hospital was mistakenly struck.” AAN’s Kate Clark has been trying to make sense of the different narratives coming out about the strike and looking into the war crime allegation (with input from Fazal Muzhary).

Emergency surgery after the bombing in one of the remaining parts of MSF's hospital in Kunduz on the 3rd October 2015. Photo: MSFEmergency surgery after the bombing in one of the remaining parts of MSF's hospital in Kunduz on the 3rd October 2015. Photo: MSF

Bombing a hospital breaks one of the oldest and strongest taboos in modern warfare. The imperative to protect the war wounded and those treating them was the original driving force (1) not only behind the founding of the International Committee of the Red Cross (ICRC) as a neutral organisation to protect the war wounded, but also, shortly after, the establishment of the first convention to come out of Geneva, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field in 1864. It established the principles that:

Relief should be given to the wounded without any distinction as to nationality;

Medical personnel and medical establishments and units are neutral and should be protected and respected by belligerants (2)

If deliberate, the bombing of a hospital would almost always amount to a war crime under International Humanitarian Law (IHL), the body of law, including the Geneva Conventions, which aims to regulate warfare and protect civilians.

Timeline of actions and reactions

Many of the circumstances surrounding the strike on the MSF hospital are still murky or contested. The hospital – situated southwest of Kunduz city centre (see a map here) – was on one of the frontlines in the bitter fighting for Kunduz city and was inundated with casualties. In the early hours of Saturday morning (3 October), the hospital, said MSF, came under “sustained bombing”; the building was badly damaged and both staff and patients were killed and wounded – all of them Afghans.

The first US response, by a military spokesman, came that day:

“US forces conducted an airstrike in Kunduz city at 2.15 am (local), 3 October, against individuals threatening the force. The strike may have resulted in collateral damage to a nearby medical facility. This incident is under investigation.”

‘Collateral damage’ is a technical term used to cover inadvertent loss of civilian life and damage to civilian property during the course of military operations.

US Secretary of Defence Ashton Carter said, also on 3 October a full investigation into “the tragic incident is under way in co-ordination with the Afghan government.” Stronger words came on the same day from the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, who urged a full and transparent investigation, calling the attack “tragic, inexcusable and possibly even criminal.” (3)

MSF reacted to the US statement later that day with enough detail to firm up its version of events:

From 2:08 AM until 3:15 AM local time today, MSF’s trauma hospital in Kunduz was hit by a series of aerial bombing raids at approximately 15 minute intervals. The main central hospital building, housing the intensive care unit, emergency rooms, and physiotherapy ward, was repeatedly hit very precisely during each aerial raid, while surrounding buildings were left mostly untouched.

“The bombs hit and then we heard the plane circle round,” said Heman Nagarathnam, MSF head of programs in northern Afghanistan. “There was a pause, and then more bombs hit. This happened again and again. When I made it out from the office, the main hospital building was engulfed in flames. Those people that could had moved quickly to the building’s two bunkers to seek safety. But patients who were unable to escape burned to death as they lay in their beds.” 

MSF also said it had given the precise location and GPS coordinates of the hospital to all parties to the conflict (it specified those in Washington and Kabul but also, presumably the Taleban) as recently as 29 September to avoid the hospital being hit – a routine practice – and that its staff had called Afghan and Coalition officials when the bombing started, but the attack only stopped half an hour after the calls.

Justifying the attack 

President Ashraf Ghani, without actually specifying who had carried out the attack, expressed, through a statement published on his official website, “his deep sorrow over the killing and wounding of civilians including the staff and doctors of Doctors without Borders as a result of the ongoing military operations in Kunduz Province.” Other government figures have implied the attack was deliberate and sought to justify it by saying Taleban had been firing from the building. Spokesperson for the Ministry of Interior Siddiq Siddiqi, on 3 October, said (heard live on BBC):

“10 to 15 terrorists were hiding in the hospital last night and it came under attack. Well they are all killed. All of the terrorists were killed. But we also lost doctors. We will do everything we can to ensure doctors are safe and they can do their jobs.”

The Ministry of Defence, on 4 October, said:

A group of militants got into the MSF hospital with their heavy and light weapons and used the hospital building as a shelter, from where they attacked the ANSF. As a result of a fighting, a rocket shell landed near the hospital and caused civilian casualties.

Acting Defence Minister Masum Stanakzai and newly appointed governor for Kunduz, the former deputy governor, Hamdullah Daneshi, reported Pajhwok, both said there had been militants in the MSF hospital, “who used the hospital as a shelter and attacked the security forces and civilians.” Daneshi also spoke to The Washington Post:

He said Taliban fighters had been using the Doctors Without Borders compound to plot and carry out attacks across the city, including firing rocket-propelled grenades from the property. “The hospital campus was 100 percent used by the Taliban,” Danishi said. “The hospital has a vast garden, and the Taliban were there. We tolerated their firing for some time” before responding. Danishi said the suspected U.S. airstrike had been aimed along the perimeter of the hospital grounds. He said the main hospital building, where most of the causalities occurred, caught fire but was not the main target.

An early tweet by the spokesman for the Ministry of Public Health, ‪Wahidullah Mayar, said “no visitor (paywaz) or patient inside the hospital was armed” (read by AAN, but not cached); it was subsequently taken down.

MSF has denied that there was anyone armed inside the hospital saying the gates were closed at nightfall and only patients, their caretakers and staff were inside. (4)

Earlier this year, in July, the hospital was forcibly entered by Afghan special forces looking for what they believed was an al-Qaeda commander. They reportedly assaulted staff. The Afghan authorities may have been irked that the hospital is a neutral site and treats everyone without distinction, including insurgents.

Changing US narrative; growing MSF outrage

Two days after the airstrike (on 5 October), the US version of events changed, as General Campbell explained:

We have now learned that on October 3rd… Afghan forces advised that they were taking fire from enemy positions and asked for air support from U.S. forces. An airstrike was then called to eliminate the Taliban threat and several civilians were accidentally struck.”

He also implied that the Taleban were really to blame: “As you know, the United States military takes extraordinary steps to avoid harm to civilians. However, the Taliban have purposefully chosen to fight from within a heavily urbanized area, purposely placing civilians in harm’s way.”

MSF, in an apparent response to this and Afghan government statements, upped the ante alleging, on 6 October, that its hospital had been “deliberately bombed”:

Until proven otherwise, the events of last Saturday amount to an inexcusable violation of this law. We are working on the presumption of a war crime…  

This attack cannot be brushed aside as a mere mistake or an inevitable consequence of war. Statements from the Afghanistan government have claimed that Taliban forces were using the hospital to fire on Coalition forces.

These statements imply that Afghan and US forces working together decided to raze to the ground a fully functioning hospital, which amounts to an admission of a war crime.

While testifying to Congress about the US military in Afghanistan on 6 October, Campbell finally admitted “a hospital was mistakenly struck.” He also said, “To be clear, the decision to provide aerial fires was a U.S. decision made within the U.S. chain of command” and confirmed a AC-130 gunship had made the strike. “We would never intentionally target a protected medical facility,” he said.

MSF responded today (7 October) by saying it was unacceptable for the bombing of a hospital and the killing of staff and patients to be “dismissed as collateral damage or brushed aside as a mistake.”

This was not just an attack on our hospital – it was an attack on the Geneva Conventions. This cannot be tolerated. These Conventions govern the rules of war and were established to protect civilians in conflicts – including patients, medical workers and facilities. They bring some humanity into what is otherwise an inhumane situation. The Geneva Conventions are not just an abstract legal framework – they are the difference between life and death for medical teams on the frontline. They are what allow patients to access our health facilities safely and what allows us to provide healthcare without being targeted.

Expressing distrust in the US military, NATO or Afghan government to uncover the truth, it said it wants an investigation by the International Humanitarian Fact-Finding Commission, a body set up by the Additional Protocols of the Geneva Conventions and, says MSF, is the only permanent body set up specifically to investigate violations of international humanitarian law. It has never been used before and, as neither Afghanistan or the United States have formally recognized the Commission, any investigation would have to be voluntary.

A war crime?

Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.

ICRC’s Customary International Humanitarian Law Database Rule 28 (5)

The ICRC quotes examples given in the Commentary on the First Geneva Convention of acts harmful to the enemy: “the use of medical units to shelter able-bodied combatants, to store arms or munitions, as a military observation post or as a shield for military action.” (6)

However, even if the Taleban were using the MSF hospital to fire at Afghan forces – “committing acts harmful to the enemy” – as the Afghan government has alleged and MSF denied, the bar is extremely high for a hospital to lose its protected status and become a legitimate target during a conflict, as the ICRC explains:

It is further specified in State practice that prior to an attack against a medical unit which is being used to commit acts harmful to the enemy, a warning has to be issued setting, whenever appropriate, a reasonable time-limit and that an attack can only take place after such warning has remained unheeded. These procedural requirements are also laid down in the Geneva Conventions and Additional Protocols. 

In other words, hospitals and medical personnel get special protection during conflict with rules far more rigorous even than those protecting ordinary civilians. If Taleban had been firing from the hospital, it would still have been a working hospital; it would not have become a legitimate target for an airstrike made without warning and wholly disproportionate to the threat.

If US or Afghan forces knew this was a hospital and deliberately targeted it or sought its bombing, this would breach International Humanitarian Law. However, simply asserting that the airstrike was a mistake does not let the US military off the hook. Warring parties must have systems in place to ensure civilians, and especially medical staff and facilities, are protected. Taking precautions to protect civilians and civilian property is mandatory for all parties to a conflict.

Bombing civilians, protecting civilians before 2015…

In earlier years, the US not infrequently bombed Afghan civilian targets – wedding parties, private homes and vehicles – after getting faulty or mischievously wrong intelligence from Afghan allies or sources. Lax rules on the use of air power continued to result in hundreds of civilian deaths, as Human Rights Watch reported, in 2008. However, eventually the realisation dawned that killing Afghan civilians was damaging the US war effort, and the US military and NATO eventually came to have very tight restrictions on the use of airpower. By 2012, any decision to conduct an airstrike had to start with the presumption that the targeted location was civilian and civilians would be present: the onus was on the military to prove this was not the case if they wanted to carry out a targeted killing or offensive strike. For a defensive strike, troops had to be in danger and have no possibility of escape. Approval for airstrikes had to be made at the highest levels in the army. (8).

The new rules of engagement eventually went well beyond what IHL legally bound the US and ISAF to do. Targeting protocols used by Special Operations Forces were somewhat looser, but were also tightened during 2013-14. The CIA’s rules were always murkier and certain of their strikes would have broken ISAF and US military rules.

Civilian casualties did fall – in 2012, compared to 2011, for example, by 42 per cent, reported UNAMA. When civilians were killed in airstrikes, it was usually where protocols were not followed – for example, after positive identification of a target, line of sight must be continuous until an attack is made; if not, children and women can, for example, get into a car already identified as having insurgents in and will be among the dead and injured. (7)

… and this year

In 2014, President Obama said the American combat mission would be over by the end of that year. However, as the Taleban have made gains this year, the US military has been drawn back into the battle (with a marked increase in airstrikes, for example, in the summer, including a doubling between May and June 2015).The US-Afghan military agreement negotiated under Karzai, but signed as soon as President Ghani and CEO Abdullah took office, had specified that “US military operations to defeat al-Qaida and its affiliates may be appropriate,” but also said there would be no “unilateral US military counter-terrorism missions.” NATO’s own agreement for its ‘train, advise and assist’ mission, Resolute Support, has no such combat clause. Which US forces and in what numbers are with NATO’s Resolute Support and which with the US counter-terrorism Freedom’s Sentinel mission has been left vague. (9)

As AAN understands it, the old protocols governing air strikes have not been loosened since the ISAF withdrawal. The US military is still averse enough to civilian casualties in Afghanistan that proportionality considerations are not even made, ie the calculation, legal under IHL, to carry out an attack even if there is an expected loss to civilian life or property (‘collateral damage’), if the harm to civilians is not disproportionate or excessive compared to the anticipated military gain. Many Afghan requests for airstrikes this year have been refused because of the fear that Afghan civilians would be killed. UNAMA, in its mid-year report on the protection of civilians, did note 27 civilian deaths and 22 injured from international (ie US) airstrikes, largely drones, in the first six months of the year – a 23 per cent increase compared with the first six months of 2014 (it is not known how many strikes were made). However, the MSF strike is the first this year to go catastrophically wrong and cause mass civilian casualties. (10)

This having been said, two ‘friendly fire’ incidents showed up possible problems with targeting protocol: on 20 July 2015, two US helicopters opened fire on an Afghan army post in Logar, killing eight soldiers and wounding others and on 7 September, Afghan officials alleged a US airstrike had targeted police in Helmand, killing 11 of them; the US military denied the strike, but said it would be investigating. The results of that investigation are now with the Ministry of Interior, a US military spokesman told AAN, but were not yet public.

What went wrong in Kunduz?

General Campbell, in his testimony to Congress, was clear the decision to “drop aerial fires” on 3 October was made through the US chain of command – which should mean a general signed the order off. Whatever Afghan forces might have claimed about their requested target, the decision would still have to have gone through the US military’s own, independent checking procedure: what was the building? who might be in it? how can we be sure there are no civilians inside? and so on. Such questions should have been asked whatever Afghan forces were saying and even if the locations of this and other medical facilities had not been known to the military.

Further questions are raised by Campbell’s acknowledgement that it was an AC-130 gunship that had made the strike.

This aircraft, slow and bristling with weapons, is used almost exclusively to support Special Operations Forces and is designed to operate at night, at relatively low altitudes (7000 feet or just over 2000 metres). It uses visual targeting. “Specifically [it] has to be guided onto the target by a force on the ground,” an American close-support pilot speaking to The Washington Post said, “and will fire only after identifying friendly and enemy forces.”  . Unlike other military aircraft which target according to coordinates, the Post said, the AC-130 “relies on direction, ie a compass heading, and a distance to the enemy target from the friendly forces engaged on the ground.”

There is a question about who guided the gunship in: US Trained Joint Terminal Air Controllers (JTACs) should be involved in all airstrikes where troops are in combat, says Human Rights Watch. It also questions the weapons used. It seems likely that a 105mm howitzer was used, an “explosive” weapon, says Human Rights Watch, with “a large blast and fragmentation radius” and “wide area effects not appropriate for use in populated areas.”

Ewan Watson, speaking for the ICRC, raised a further issue:

… if MSF have given their coordinates, these then need to be put into the military planning and made sure that area is respected so that, it’s not just a question of not attacking that particular hospital, it’s also factoring in, if you’re attacking a military target nearby to make sure that there’s not going to be undue civilian casualties as a result of that. So there really does need to be a full investigation.

The investigation

AAN has reported on US military investigations into civilian casualties before. They include one investigation which was thorough, substantial and revealed the truth – how Uruzgani journalist Omaid Khpulwak came to be shot dead by US forces in his place of work in July 2011. Another AAN report found the military had failed to reveal the monstrous mistakes in intelligence which led to the targeted killing in an air strike of ten civilian election campaign workers in September 2010 after the US had tracked one of their mobile phone SIM cards believing, wrongly, that it belonged to a Taleban commander. The US military has never admitted to the grave breaches in IHL it committed in this targeted killing of civilians.

Generally, investigations into killings involving major and powerful organisations fare better (Khpulwak had worked for the BBC) or where the Afghan government is convinced that a wrong has been done and puts pressure on the US military to explain itself. In the case of the strike against the MSF hospital in Kunduz, the Afghan government has sought to justify the attack. Against this, the strike was catastrophic, completely beyond the pale in terms of IHL, and targeted a globally well-known and well-respected organization. MSF, however, has already lost trust in the goodwill and capacity of the US or the Afghan governments to ensure the truth comes out.

 

 

(1) Specifically, it was witnessing the horrific suffering of 40,000 wounded soldiers left in the aftermath of the Battle of Solferino that inspired Swiss businessman Henry Dunant to work to found the ICRC and subsequently codify rules of engagement to protect civilians and reduce suffering.

(2) The convention also made a red cross on a white background the distinctive sign signalling medical neutrality during conflict.

(3) The NATO Secretary General sent his condolences to all affected. Both the UN (Secretary General here) and his envoy to Afghanistan here) and the ICRC, immediately and strongly condemned the bombing; the UN described it as ‘devastating’, the ICRC as ‘appalling’. Both organizations also called the airstrike ‘tragic,’ a word commonly used when no-one is to blame for a disaster. Clearly, though, someone was to blame for this particular catastrophe

(4) MSF UK executive director, Vickie Hawkings said on BBC’s Newshour on 3 October:

“We shut the gates of the hospital when it got dark yesterday evening and inside were 105 patients, their caretakers and 80 MSF staff. So, I have absolutely no information, no idea what the ministry is referencing. everything completely was normal, everything was quiet, inside the hospital until the bombing…” 

See also MSF’s press releases quoted earlier.

(5) The ICRC explains:

Customary international humanitarian law is a set of unwritten rules derived from a general, or common, practice which is acknowledged as law. It’s the basic standard of conduct in armed conflict accepted by the world community. Customary international humanitarian law is applicable universally – independently of the application of treaty law – and is based on extensive and virtually uniform State practice regarded as law.

In the 1990s, at the request of the international community, the ICRC undertook an extensive study into current State practice in international humanitarian law in order to identify customary law in this area. Before the study was published, no comprehensive written analysis and compilation of customary IHL rules existed. The study has contributed to identifying the common core of international humanitarian law binding on all parties to all armed conflicts. Today, the ICRC’s Customary IHL Database makes these rules and the commentaries thereto easily accessible and searchable.

(6) The ICRC says the Geneva Conventions and Additional Protocols to the Geneva Conventions do not define “acts harmful to the enemy” but do indicate several types of acts which do not constitute such acts: “when the personnel of the unit is armed, when the unit is guarded, when small arms and ammunition taken from the wounded and sick are found in the unit and when wounded and sick combatants or civilians are inside the unit.”

(7) An example of an incident in 2012 reported by UNAMA where protocols were not followed was an airstrike on 16 September in Alingar, Laghman, approved by both ISAF and ANSF commands and supposed to kill insurgents, which actually killed four women and four children who had been walking to a mountain to gather wood and pine nuts:

… it is unclear what pre-engagement measures and precautions were taken prior to launching the [Alingar] strike. Based on discussions with ISAF, such measures normally include establishing a target as a lawful military objective, maintaining positive identification of a specific targeted subject, assessing potential collateral damage and understanding the pattern of life in the area. In this case however, there was an apparent failure to undertake appropriate measures to distinguish between civilians and insurgents which resulted in significant civilian casualties.

See AAN reporting here

(8) This AAN report details the protocols and also quotes the then commander of ISAF and US military forces, John Allen speaking to The New York Times:

“I eventually said to President Karzai that civilian structures, tents, potential areas where civilians might be either taking refuge or hiding or living, I’m not going to deliver any more fires on those structures unless my troops are pinned down, can’t move, and the only option they have is to deliver fires on these structures, or I decide, the senior leader out here, I decide to deliver fires on these structures.”

(9) The Institute for the Study of War in its ‘Order of Battle’ reports:

Some of the organizational changes that accompanied the December 2014 transition from N ATO’s International Security Assistance Force to the Resolute Support Mission and from the U.S. Operation Enduring Freedom to Operation Freedom’s Sentinel remain unclear? which U.S. units, for example, fall under Operation Freedom’s Sentinel but not under the Resolute Support Mission.

(10) Another alleged killing of civilians came in Alisher in Khost on 5 June 2015 when locals said a drone strike killed more than a dozen people, including multiple members of two families, returning from a funeral (possibly of a Taleban commander). The US military has said they were fighters.

 

 

 

 

Tags:

Kunduz international engagement Civilian Casualties International MIlitary human rights violations

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