Afghanistan Analysts Network – English

War and Peace

MSF Investigation: US hospital strike looking more like a war crime

Kate Clark 18 min

A preliminary investigation by Médecins Sans Frontières (MSF) into the United States airstrike on its hospital in Kunduz on 3 October, which killed at least 30 people, has raised some serious questions. Fresh evidence suggests statements made by US officials in the first few days after the attack were false. It also makes clear how difficult it would have been for the US military, as its commander in Afghanistan, General John F Campbell, claimed, to have hit the hospital “mistakenly.” These are questions which the US must answer, if it is to escape the accusation that it committed a war crime. The case also draws attention to a blurring of lines between NATO’s non-combat and the US military’s more shadowy counter-terrorism missions and how dangerous this may be for humanitarians and other civilians. As the US prepares its own report on the strike, Campbell’s room for manoeuvre to explain away the attack appears to be diminishing, as AAN Country Director Kate Clark reports.

The MSF report, that was released in a press conference in Kabul on 5 November 2015, is worth reading. In unemotional language it details the events leading up to the strike and the strike itself: the patients who had been treated, civilians and wounded Taleban and government soldiers; the agreements reached with the various parties to the conflict to respect the medical neutrality of the hospital; and the NGO’s decision, when the fighting over Kunduz intensified, to send non-essential staff home and arrange for essential staff to stay at the hospital to deal with the expected inundation of wounded people.

The report describes how the hospital, known as the Kunduz Trauma Centre, was hit in the early hours of the morning of 3 October 2015 – first the Intensive Care Unit where all staff were killed and immobile patients “burned in their beds.” Then came wave upon wave of further attacks, the reports says, from east to west hitting the hospital archive, laboratory, emergency room, x-ray, outpatient, mental health and physiotherapy departments, as well as the operating theatres – both patients being operated on at the time were killed. “Many of those interviewed describe massive explosions, sufficient to shake the ground,” says the report. “These bigger explosions were most frequently described as coming in concentrated volleys. MSF staff also described shooting coming from the plane.”

The report describes a nurse who arrived at the administrative building “covered from head to toe in debris and blood with his left arm hanging from a small piece of tissue… bleeding from his left eye and oropharynx” and a patient in a wheelchair killed by shrapnel as he tried to escape from the inpatient department.

The report says, many staff described seeing people “being shot, most likely from the plane, as people tried to flee the main hospital building that was being hit with each airstrike. Some accounts mention shooting that appears to follow the movement of people on the run. MSF doctors and other medical staff were shot while running to reach safety in a different part of the compound.”

The attack – as experienced from the ground – appeared to be a systematic attempt to make sure no one escaped.

In all, at least 30 people were killed including 10 unknown patients, 13 known staff and seven bodies burned beyond recognition. “Included in these unrecognisable bodies,” says the report, “could be caretakers [the single person allowed in with every patient to help look after them]… These may not be the final numbers – additional human remains may also be found in the rubble of the hospital.” One MSF staff member and two patients are missing, presumed dead.

The Law on targeting hospitals

A few days after the strike, AAN looked in detail at the emerging narratives of the American and Afghan governments and MSF about the strike. We looked at the US military’s standard operating procedures (their own internal rules) for air strikes, which had been very robust and clear: starting from a premise that all people and buildings were civilian, a commander had to prove a target was military to get an air strike authorised. We also looked at the laws of war (known as International Humanitarian Law or IHL), which give special protection to hospitals and medical staff during conflict, making it extremely difficult to lawfully target a working hospital. Even if a hospital is invaded and used for fighting, warnings have to be given and patients and medical staff evacuated before an attack can legally take place. In cases of self-defence, protective fire has to be proportional as the US Department of Defence Law of War Manual puts it:

For example, a single enemy rifleman firing from a hospital window would warrant a response against the rifleman only, rather than the destruction of the hospital.

IHL also obliges medical staff to treat all patients, regardless of which side they were fighting on. Combatants once wounded are considered hors de combat (literally ‘out of the fight’), protected persons who can not be lawfully targeted.

These are all old principles of warfare, dating back 150 years, the sort of principles inculcated in US armed forces and explicitly laid out in their legal manuals and in training. (1)

What the US and Afghan governments have said about the strike.

On 3 October 2015, a US military spokesman said US forces had targeted “individuals threatening the force. The strike may have resulted in collateral damage to a nearby medical facility.” ‘Collateral damage’ is a technical term used to cover inadvertent or proportional loss of civilian life and damage to civilian property during the course of a military operation. Later that day, the Pentagon press office said US forces had conducted an airstrike against insurgents who were “directly firing upon US service members advising and assisting Afghan Security Forces” in Kunduz, “in the vicinity of a Doctors Without Borders [MSF] medical facility.”

On 5 October 2015, General Campbell said the earlier statements had been incorrect: “We have now learned that on October 3, Afghan forces advised that they were taking fire from enemy positions and asked for air support from US forces. An airstrike was then called to eliminate the Taliban threat and several civilians were accidentally struck.” On 7 October 2015, testifying to the US Senate Armed Services Committee, Campbell stuck to this narrative, that the US had been supporting Afghan forces on the ground and had attacked at their request: “To be clear, the decision to provide aerial fires was a U.S. decision made within the U.S. chain of command… A hospital was mistakenly struck.”

The Afghan government, on the other hand, has consistently and unapologetically asserted that the strike was justified because – it alleges – the hospital had been taken over by Taleban and was being used to fight government forces. The spokesperson for the Ministry of Interior, Siddiq Siddiqi, for example, said on 3 October 2015 (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.” Such statements have been made repeatedly and as late as 22 October 2015 when National Security Advisor Hanif Atmar said the hospital had been used by the Taleban “as a shelter” and even that there had not been “enough information as to whether it was a hospital or enemy fortification.”

The Afghan government side’s lack of respect for medical neutrality was also shown within hours of the attack. According to the MSF report, as the NGO was trying to evacuate wounded patients to the government hospital, Afghan Special Forces arrived and started to search for Taleban patients in Ministry of Public Health and MSF ambulances. (2)

MSF findings: the view from the ground

The MSF report is based on debriefings of its staff, internal and public information, pictures and satellite images of the hospital before and after the attack, emails and phone records. The information given is relevant for countering various aspects of the US and Afghan governments’ claims.

No weapons policy

In the week prior to the airstrikes, says MSF, the ban on weapons inside the MSF hospital in Kunduz had been “strictly implemented and controlled at all times and all MSF staff positively reported in their debriefing on the Taliban and Afghan army compliance with the no-weapon policy.” (3) In a press conference in Kabul on 5 November 2015, MSF General Director Christopher Stokes explained how wounded combatants had to either enter the hospital unarmed or deposit their weapons in gun lockers. Only the patient and his or her caretaker were actually allowed into the hospital. The report says:

As a neutral medical organisation, MSF does not ask which armed groups patients belong to, as this is medically irrelevant information. In MSF patient records, a ‘C’ and ‘M’ may be used to denote ‘civilian’ or ‘military’ patients,
in relation to the collection of weapons at the entrance of the hospital as part of MSF’s ‘no weapon’ policy. No further details are recorded as to which party to the conflict a patient may belong to.

As the fighting intensified, MSF said it asked patients to remove any military identification or clothing from the hospital, standard practice, it said, to reduce possible tensions when members of both sides to a conflict are being treated side by side.

MSF does not dispute that wounded Taleban were being treated, Indeed, as it said, it would itself have been in breach of IHL if it had turned either wounded Taleban or government soldiers away.

On the night of the attack, of the 105 patients in the hospital, MSF estimates there were 20 wounded Taleban and three or four wounded members of the Afghan National Security Forces (ANSF). The overwhelming majority of patients had been wounded civilians, including women and children. (There were also 140 local MSF staff and nine internationals, plus one ICRC delegate, working in the hospital that night.) Before Kunduz came under Taleban attack, most of the military wounded had been from government forces. However, said the report, a government representative had organised the rapid referral of their wounded to another hospital when it became clear the city was falling. MSF said only the most critical wounded government soldiers had been left at the hospital. It is clear then, that MSF had a record of treating the wounded from both sides of the conflict.

High-value patients?

MSF has said it had been aware on 30 September 2015 of two new patients who appeared to be higher ranking Taleban – based on their having been brought to the hospital by several combatants and the regular inquiries that were made about their medical condition in “order to accelerate treatment for rapid discharge.”

On 1 October 2015, MSF said, it had received a question from a US Government official in Washington asking whether the hospital or any other of MSF’s locations had a large number of Taliban “holed up” and enquiring about the safety of MSF staff. MSF said it had told the official that staff were working at full capacity with the hospital full of patients including wounded Taliban combatants, some of whom had been referred to the MSF medical post in Chahrdara district. MSF said it was “very clear with both sides to the conflict about the need to respect medical structures as a condition to our ability to continue working.”

In the MSF press conference, Stokes said they had not regarded it as an unusual enquiry: “It was from a regular channel in the US… Whenever you have peaks of violence, you will get an increase in phone calls from various armed forces. It was the only contact during that week, so we answered that, and there was no follow-up afterwards.” According to The Los Angeles Times, the enquiry had come from Carter Malkasian, special advisor to the US Chair of the Joint Chiefs of Staff and former commander of ISAF and US forces in Afghanistan, General Joseph Dunford. The paper said this showed:

…a focus on the hospital in the northern city of Kunduz at senior levels of the Pentagon before the deadly Oct. 3 airstrikes and raises fresh questions about whether the U.S. had an accurate picture of what was happening there.

A calm night

The US claim that there was fighting close by and that forces (theirs? Afghan?) needed close air support is contradicted quite comprehensively by the MSF report. The NGO said its staff conducted their usual nightly rounds of the hospital (between 0020 and 0110) and that:

The coordinator reported that the [Kunduz Trauma Centre] was calm, with no armed combatants present, nor any fighting on the hospital grounds or within the audible vicinity. All MSF guards were on duty and MSF was in complete control of the compound.

It also said that “from all MSF accounts, there was no shooting from or around the Trauma Centre and the compound was in full MSF control with our rules and procedures fully respected.”

Indeed, the night of 2/3 October 2015 was calm enough for MSF staff to go outside the grounds of the hospital for the first time in days. Previously, this had been too dangerous because of shrapnel and bullets flying around from nearby fighting.

A visible target, a known location

The hospital was visible from the air. It was one of the very few buildings in the city lit up, said MSF. Mains power had been cut to Kunduz, but MSF was using generators to have constant lighting and power for the Intensive Care Unit, operating theatres and other facilities. Moreover, it said, staff had put up two large MSF flags flat on the roof in the hours before the airstrike because of the greater fear of air attacks and also because the relative peace around the hospital meant staff could get onto the roof without too much trepidation. The two flags were in addition to the MSF flag at the hospital entrance.

This is all relevant because the AC-130 gunship used for this attack is a specialised aircraft designed to support American Special Operations Forces at night in ground operations. It has an array of equipment and sensors designed to give as much night vision as possible to those on board so that they can see what is happening on the ground, as it slowly loiters in the sky above its target.

MSF had already said it had given the GPS coordinates of the hospital to the parties to the conflict. Here, in this report, it says it received written confirmation of the receipt of those coordinates from the US Department of Defence and US army representatives, and oral confirmation from the Afghan Ministry of Interior. It said a UN intermediary confirmed the transmission of the coordinates to the NATO Resolute Support mission. Giving coordinates is standard practice in modern warfare and should have meant the hospital showed up as a protected area if the US or another party wanted to target attacks in the vicinity.

Despite all this, the main hospital building was hit precisely and repeatedly, with other buildings within the compound left comparatively untouched. Again this gives lie to the notion that, in defending Afghan forces nearby, the US air force had accidentally hit the hospital. It also raises the question of what those in the AC-130 gunship thought they were targeting if the strike was not deliberate.

During the hour of the attack, MSF and others repeatedly put in calls to try to get it called off. MSF has listed the phone calls and SMS messages it sent: to Resolute Support, the US Department of Defence in Washington, the International Committee of the Red Cross (ICRC), the Civil-Military liaison officer of the UN Office for the Coordination of Humanitarian Affairs (OCHA) and the Afghan Ministry of Interior. Almost an hour after MSF’s initial call, which was to Resolute Support at 0219, the incoming fire stopped. Two SMS text replies received back from Resolute Support during that hour are particularly telling:

At 2.47am, an SMS was sent from MSF in Kabul to Resolute Support in Afghanistan informing that one staff was confirmed dead and many were unaccounted for


At 2.52am a reply was received by MSF in Kabul from Resolute Support stating “I’m sorry to hear that, I still do not know what happened”

At 2.56 an SMS was sent from MSF in Kabul to Resolute Support insisting that the airstrikes stop and informing that we suspected heavy casualties

At 2.59am an SMS reply was received by MSF in Kabul from Resolute Support saying ”I’ll do my best, praying for you all”

Resolute Support command was clearly not empowered to stop the strikes and could not find out what was going on – it was out of the communication loop on this.

Mission creep and mission confusion

There are, of course, two foreign military missions in Afghanistan, NATO’s Resolute Support and the US military’s more shadowy, counter-terrorist Freedom’s Sentinel. One could easily assume a designated point of contact with one (as MSF and other humanitarian organisations have) should be enough to cover both missions and the US military in general. Both missions are commanded by the same US general, John Campbell. Moreover, as well as the counter-terrorism mission being scarcely spoken of (it Googles 500 odd mentions in news reports, compared to Resolute Support’s 18,000), as AAN has reported before, there appears to have been deliberate obfuscation as to which US forces in Afghanistan answer to the Resolute Support chain of command and mandate and which to Freedom’s Sentinel – or indeed, whether this might be fluid, according to particular operations: are some servicemen and women double-hatted?

Before looking at how this confusion manifests itself, it should be stressed that the aims and parameters of the two missions should be clear. The US agreement with the Afghan government (known as the BSA or Bilateral Security Agreement) signed almost immediately after President Ghani and CEO Abdullah took office, stresses the supportive nature of the mission which would come to be called Freedom’s Sentinel. It also says that “US military operations to defeat al-Qaida and its affiliates may be appropriate,” (although it also specifies these would not be unilateral US missions).

NATO, which signed its Status of Forces Agreement or SOFA with the Afghan government on the same day as the BSA, is a firmly “non-combat mission” aimed at working to “help train, advise and assist” Afghan security forces at the “security and national institutional level,” ie army corps and equivalent police level. NATO soldiers would not be in the field advising – with one exception: “the non-combatant training, advising and assistance by NATO forces could be extended to the tactical level in the case of Afghan Special Operations Forces” (emphasis added) on the “request and invitation” of the Afghan government.

The NATO is a explicitly non-combat and Freedom’s Sentinel is largely non-combat, but has the option to pursue al-Qaeda and its affiliates in support of Afghan forces. The muddling of these missions can be seen in the way US military officers speak for both, for example, US officer Brigadier General Wilson Shoffner, for the US military – clearly on a Freedom Sentinel mandate here, although without mentioning its name, and here for NATO. The spokespeople also mix the missions up, as Shoffner did on 3 May 2015, when, apparently speaking for NATO (4), he said that “U.S. jets had flown over insurgent positions near Kunduz in recent days but did not drop any munitions.”

Another spokesman, US colonel Brian Tribus, also represents on occasion NATO, at other times the US military and sometimes both at the same time. He spoke about the US’s first air strike in 2015, on 16 January on the Dangam district, Kunar as a NATO mission – as Stars and Stripes reported:

U.S. and allied [sic] aircraft struck Taliban forces in eastern Afghanistan last month, according to a coalition [sic] spokesman… in support of Afghan efforts to push back Afghan and Pakistani Taliban fighters, according to coalition spokesman Col. Brian Tribus and Afghan officials…

About 12,000 foreign troops, almost half from allied countries, remain in Afghanistan following the Dec. 31 end of the NATO combat mission. But they are in the country to train, advise and assist Afghan forces rather than for combat operations.

Tribus said the airstrikes were “consistent with authorities under the NATO-Afghanistan Status of Forces Agreement” which was adopted last year. (5)

Tribus was simply wrong about the NATO mandate.

Elsewhere, we have also seen confusion about which assets – physical and human – belong to which command. On 7 August 2015, for example, a spokeswoman for Resolute Support insisted to AAN that the Camp Integrity base north of Kabul which had been attacked by Taleban was part of NATO’s ‘train, advise, assist’ mission. She denied they were involved in the counter-terrorism Freedom’s Sentinel. Two days later, a defence department press release confirmed a soldier killed in the attack had been on combat duty with Freedom’s Sentinel.

Along with a blurring of the lines between the two missions, there has also been mission creep. President Obama had been clear when speaking in 2014 that, from 1 January 2015, “America’s combat mission will be over” and it would be “training Afghan forces and supporting counterterrorism operations against the remnants of al Qaeda.” However, we see a very different mandate being played out on the ground.

The US airstrikes in Kunduz on supposedly Taleban targets (leaving aside whether this was a deliberate attack on a hospital or a mistaken attack on the Taleban) would seem to be outside both Resolute Support and Freedom Sentinel’s stated mandates. The Taleban could possibly be squeezed into the category of ‘al-Qaeda affiliate’, but given that this is a mission in Afghanistan, if the US and Afghan governments had wanted to include the Taleban in their counter-terrorism mission agreement, it would have been simpler to just name them or use a term such as ‘domestic terrorist groups’. The other possible rationale for the strikes could have been if US Special Operations Forces had been on the ground alongside Afghan Special Forces taking their “train, advise, assist” in its widest possible sense (one senior US military officer told AAN they had been on the ground). The strikes could then have been conceived as ‘self defence’.

The US military has actually been involved in combat operations in Afghanistan in 2015 since 16 January, ie from the very beginning, some focussed on al-Qaeda targets, particularly along the eastern border with Afghanistan, but others clearly in support of Afghan forces against the Taleban. One way to track the growing US participation is in the number of “weapons released” during US air missions which rose sharply in June 2015 and, after a lull in July during Ramadan when fighting generally slowed down, increased again – almost doubling between September and October. In Kunduz, we have seen multiple air strikes to support efforts to re-take Chahrdara, Kunduz and Dasht‐e Archi districts. AAN was also told that US special operations forces, along with their Afghan counterparts, actively defended the airport when the Taleban had almost taken over on the night of the 30 September 2015.

Of course, the US, in agreement with the Kabul government, is free to change its counter-terrorism mandate. But such changes would raise questions for the US public – does it want its armed forces still to be fighting in Afghanistan? – as well as for NATO and the US’ NATO partners – are they happy with the confusion surrounding the US military’s role in Afghanistan and its impact on NATO’s image? The changing mandate also raises significant problems for organisations like MSF and other humanitarians trying to work in Afghanistan’s conflict zones, and, of course, for Afghan civilians: who is in charge of US military forces on the ground and in the air?

Additionally, the strike on MSF raises questions as to what the US military’s current standard operating procedures for air strikes are and whether the far more transparent guidelines from 2014 and before (both for ISAF and for the separate previous US counter-terrorism mission, Enduring Freedom), which markedly brought down civilian casualties, have been changed. One senior US military source told AAN they had been “liberalised” in Kunduz.

Another indication that the rules may have changed came in two other airstrikes on the same night as the MSF hospital attack, which hit what appeared to be civilian targets in Kunduz: a mansion and a warehouse in what The Washington Post described as two “densely populated residential areas”. No-one was killed, but “the targets were pulverized and the walls and windows of nearby homes were shattered.” The paper reported Afghan commanders had requested all three strikes because their forces were under attack by Taleban fighters. However, “residents said that while their neighborhoods had been conflict zones earlier, there were no militants at any of the locations at the time of the attacks.” Like the MSF strike, this does not sound like a command presuming locations are civilian until proved otherwise.

Questions for the US to answer

The MSF report has put the onus very squarely on the US military to explain how it could have got its targeting so terribly wrong – or to admit, as MSF has alleged, that it deliberately targeted the hospital. The new evidence from the ground will make it more difficult to explain this attack away as a mistake.

The US has access to types of evidence unavailable to others: the chain of command, what was said and to whom, cockpit video and recorded conversations. The question is whether it will be transparent about what it can find out – as President Obama and others have promised. We have seen good, transparent investigations, with relevant detail (such as the shot-by-shot account of how BBC and Pajhwok journalist Omaid Khpalwak came to be shot dead by US forces in 2011). At other times, the US military has been bulldozer-like, insisting its forces behaved correctly despite overwhelming proof that they had in fact committed grave breaches in the laws of war.

The US investigation into the air strike is due to be finished at the weekend and to be released some time after that. MSF and many others will be keen to know the details of the decision-making trail that led to the hospital being attacked. (6)

 

(1) See, for example, page 478-9 of the US Department of Defence “Law of War Manual”, the latest version of which was published in June 2015:

7.17 CIVILIAN HOSPITALS AND THEIR PERSONNEL

During international armed conflict, civilian hospitals organized to give care to the wounded and sick, the infirm, and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the parties to the conflict.

7.17.1 Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the Enemy. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.

7.17.1.1 Acts Harmful to the Enemy. Civilian hospitals must avoid any interference, direct or indirect, in military operations, such as the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a center for liaison with combat forces. However, the fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered acts harmful to the enemy.

7.17.1.2 Due Warning Before Cessation of Protection. In addition, protection for civilian hospitals may cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.

The obligation to refrain from use of force against a civilian medical facility acting in violation of its mission and protected status without due warning does not prohibit the exercise of the right of self-defense. There may be cases in which, in the exercise of the right of self- defense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces receiving heavy fire from a hospital may exercise their right of self-defense and return fire. Such use of force in self-defense against medical units or facilities must be proportionate. For example, a single enemy rifleman firing from a hospital window would warrant a response against the rifleman only, rather than the destruction of the hospital. 

(2) The ambulances, according to IHL, should have received the same protection as hospitals.

(3) The MSF report also said:

Since the [Kunduz Trauma Centre] opened, there were some rare exceptions when a patient was brought to the hospital in a critical condition and the gate was opened to allow the patient to be delivered to the emergency room without those transporting the patient being first searched. In each of these instances, the breach of the no weapon policy was rapidly rectified.

(4) Full text here:

NATO said it had troops in the area in an advisory and training capacity – the limited remit of its Resolute Support mission, which involves around 13,000 soldiers.” 

Brig. Gen. Wilson Shoffner, spokesman for the mission, said U.S. jets had flown over insurgent positions near Kunduz in recent days but did not drop any munitions.

(5) The Afghan military were also confused about their partner’s mandate, as Stars and Stripes reported: “‘According to our new agreement, the NATO air forces will support Afghan security forces until the Afghan air force is sufficient,” said Afghan Defense Ministry spokesman Gen. Zahir Azimi.’”

(6) Questions that, in particular, need to be answered include:

Was this a Resolute Support or a Freedom’s Sentinel operation?

Were there US forces on the ground?

Was there a US Joint Terminal Air Controller (JTAC) on the ground guiding in the gunship? (this should be mandatory for all such airstrikes).

Who requested the fire?

What was the targeting based on?

What is the nature of the US military’s current checking procedure?

Did they consider what the building was and who might be in it?

Did they make sure there were no civilians inside?

Such questions should have been asked, regardless of what Afghan forces were reporting and even if the locations of this and other medical facilities had not been known to the military.

What happened to the US military’s standard operating procedures where commanders were obliged to assume any person or building they wanted to attack was civilian, unless proven otherwise.

Have the rules been ‘liberalised?

Why did the GPS coordinates not show the hospital up on the US system as a protected place?

What fail-safe procedures were in place?

Who gave the command to fire?

Tags:

war crimes Kunduz NATO Resolute Support US military BSA

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