Unprecedented Action Against US Military, Inquiry For War Crime: Everything You Need To Know

Richa Verma

October 14th, 2015

Image Source: Reuters

The Incident: There was an airstrike on a hospital of Doctors Without Borders in the strategic northern city of Kunduz in Afghanistan on 3rd October. It took place as the Afghan forces were attempting to retake the town from the Taliba. The USA is helping Afghanistan. The causality included 22 people of which 12 were MSF (Medecins Sans Frontieres) staff members and 10 patients. Moreover, 37 people were wounded within the premises of the hospital.

Statements of the US and Afghanistan: They have changed their statements four times since the attack.

White House press secretary, Josh Earnest described the attack as a “profound tragedy” in a press conference on Monday, “We implement the kinds of changes that make it less likely that those kinds of mistakes will occur in the future.” The US President Obama apologized for the same in a phone call from the Oval Office to Dr. Joanne Liu, the head of MSF.

General John Campbell, the commander of US forces in Afghanistan stated that US special operation forces on the ground in Kunduz called in a US AC-130 gunship strike on the hospital as requested by Afghanistan, but “we would never intentionally target a protected medical facility”.  He regarded it as “a mistake”.

The word to be noted here is “protected” as the Afghans maintain that there was firing by Taliban forces from within the hospital premises which would mean it was not “protected” any more. Moreover, the hospital staff was not given a warning before the airstrike.
The USA is of the view that this incident does not require a global investigation.
MSF’s Stand:

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It is the above mentioned extract from June 2015 Department of Defense law of war manual that the MSF quotes while clamping down on the US military airstrike. It has been unequivocally maintaining that there was no firing from inside the hospital. Even if there had been an attack, the international law still calls for a declaration of warning before any military assault.

Mary Ellen O’Connell of the University of Notre Dame states, “Hospitals are immune from attack during an armed conflict unless being used by one party to harm the other and then only after a warning that it will be attacked”. She adds that “Any serious violation of the law of armed conflict, such as attacking a hospital that is immune from intentional attack, is a war crime.” This is agreed to a number of law experts, too.

Inside a hospital all wounded personnel, belonging to any side of the war, are not combatants but patients and cannot be attacked according to well established laws of war. While the extent to which this insurgency was an international conflict remains debatable, MSF maintains that this airstrike could not have been a mistake since the USA and Afghan governments knew the GPS coordinates of the hospital. This had been communicated to them as recently as 29th September.
In an unprecedented move, the MSF has called for a launch of an international inquiry into the bombing of its hospital. “If we let this go, as if it was a non-event, we are basically giving a blank check to any countries who are at war”, Liu told a news briefing in Geneva.

The International Humanitarian Fact-Finding Commission established in 1991 through the Additional Protocols of the Geneva Conventions, is the only permanent body with the authority to investigate violations of international humanitarian law. Till date it has never been invoked because it could never secure the agreement of the warring parties involved in any incident it has sought to investigate. In view of this, Liu calls for cooperation from the USA. Since the USA and Afghanistan have constantly changed their statements, they cannot be relied upon for an internal inquiry.
The International Committee of the Red Cross (ICRC) has voiced its support for the cause. “If it can help to clarify the facts surrounding this tragic incident which led to the deaths of medical staff and patients in a health care facility, which should be protected under the laws of armed conflict, that would be a positive development,” said Helen Durham, the ICRC’s director of international law and policy.

The IHFFC’s president, Gisela Perren-Klinger, has acknowledged the receipt of request from the MSF but says that IHFFC has its own limitations, “we cannot go on mission without being asked in by a member state, and MSF is not a state.” The MSF is waiting for any one of the 76 countries that signed the additional protocols to the Geneva conventions to prompt the inquiry for it to be legally viable. The USA has not signed the additional protocols though the MSF has repeatedly requested the USA for support in independent investigation.  If activated, the IHFFC will collect evidence from NATO, Afghanistan and people present in the hospital when it was struck.

The Logical Indian community strongly condemns this violation of human rights of the wounded in war and the doctors attending to them. We hope that the IHFCC will be activated soon and there is a prompt investigation and fixing of responsibility.

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