By: Iosif Sorokin
Photo: Richard Roche
On October 3, 2015 United States warplanes struck a hospital in Kunduz, Afghanistan operated by Doctors Without Borders, killing 23 staff members and patients. The airstrike drew widespread condemnation from the international community and led Doctors Without Borders to accuse the U.S. of having committed a war crime. The bombing was a horrific tragedy, but whether it actually amounted to a war crime remains unclear given the information currently available. Nevertheless, it is crucial to set out a framework for analyzing war crimes under international law so that as further details come to light, particularly regarding the military commanders’ factual understanding and intent in conducting the strike, there may be a clearer understanding of whether the bombing violated international law.
Law of Armed Conflict
Jus in bello, or International Humanitarian Law (IHL), is the body of law governing armed conflict. It is codified in the Geneva Conventions and three Additional Protocols (APs). The U.S. is a party to the Geneva Conventions and AP III. While the U.S. has not ratified AP I or AP II, many of the principles therein are recognized as customary international law, meaning that the obligations apply to every country – regardless of its formal treaty ratifications. The Kunduz hospital bombing appears to implicate the customary international laws of distinction, precaution and target verification, and responsibility for alleged war crimes.
The customary international law principle of distinction obliges parties in an armed conflict to distinguish between civilians and combatants, and between civilian and military objects. Attacks are only permitted against combatants and military objects. Intentionally directing an attack against a hospital would unquestionably be a war crime under international law (as well as U.S. law). However, almost immediately after the October 3 bombing, the U.S. military stated that it did not deliberately target the hospital in Kunduz. As the Commander of U.S. Forces in Afghanistan, General John Campbell, explained in his testimony before the Senate Committee on Armed Services following the bombing, “The hospital was mistakenly struck. We would never intentionally target a protected medical facility.” But this lack of intent does not discharge the US of its other significant obligations under IHL, particularly that it take precautions and verify its targets before conducting attacks.
Precaution and Verification
Article 57(2)(a)(ii) of AP I, which is recognized as customary international law, mandates that constant care be taken in all attacks to avoid or minimize injury to civilians and civilian objects. Parties must take “all feasible precautions” given the circumstances at the time to minimize harm to civilians, including verifying that the objectives to be attacked are not civilian objects.
Reports indicate that before calling in the strike on the Kunduz hospital, U.S. forces did not positively identify the area to be attacked to confirm that it was a legitimate target. If true, this would be a violation of both customary international law and U.S. law, codified in rule 5.11.4 of the U.S. Law of War Manual. However, it is critical to distinguish whether U.S. commanders failed to undertake verification efforts at all, or whether they did so but in a flawed way, which would not be a violation of IHL.
This distinction was crucial in another mistaken bombing that took place in 1999, when U.S. forces bombed the Chinese embassy in Belgrade during the NATO intervention in Yugoslavia. The subsequent investigation of the bombing by the International Criminal Tribunal for the former Yugoslavia found that U.S. forces undertook verification efforts to identify the target before bombing, but relied on flawed maps that did not accurately identify the location of the Chinese embassy. Based on these facts, the tribunal decided not to attempt to assign criminal responsibility for the bombing to the pilots or senior commanders because they were provided with flawed information. The bombing did, however, lead to the dismissal of one CIA officer and reprimands for six senior managers, as well as changes to how US bombings were to take place.
It is especially egregious in this case that the target of the bombing was a hospital, which is a protected zone under IHL, and that Doctors Without Borders provided its location to U.S. forces four days before the strike. This makes it very unlikely that U.S. forces lacked reliable information as to the hospital’s location and suggests that they may in fact have failed to make efforts to verify their target before attacking. However, reports have also indicated that American forces who were new to Kunduz contributed to the mistakes that led to the bombing. IHL recognizes that military personnel directing attacks must make their decisions based on the information available to them at the time. So, if these new personnel were unfamiliar with the Kunduz area, they may have attempted to verify the target, but only based on a limited assessment of all of the information available to them. This would be a grave and costly mistake, but not a violation of IHL.
Finally, customary international law mandates that a nation investigate alleged war crimes committed by its armed forces; U.S., NATO, and Afghan forces are currently investigating the Kunduz hospital bombing. Doctors Without Borders has also released an internal review of the bombing and the events leading up to it and has called for an investigation by the International Humanitarian Fact-Finding Commission (IHFFC), an international body established by AP I that is tasked with investigating alleged violations of IHL. As an independent investigator, the IHFFC would be less susceptible to accusations of bias than those of the U.S., NATO, or Afghanistan. However, an IHFFC investigation is unlikely to happen because it would require consent from all states involved, and neither the US nor Afghanistan is a party to AP 1.
Ultimately, if U.S. military personnel are found responsible for a violation of IHL, the U.S. would be required to make reparations payments to the individuals harmed by the attack and to prosecute those responsible. The Obama Administration has already apologized for the strike and has stated that it will pay reparations to the families of the doctors and staff killed in the attack. So, even if the investigations do not uncover a violation of IHL, the U.S. bears enough culpability that it is appropriate to pay reparations. (Similarly, the U.S. paid $32.5 million in reparations to the Chinese government and to the families of those killed in the embassy bombing in Belgrade, despite no finding of a violation of IHL). As further information about the attack becomes known throughout the ongoing investigations, we may finally gain a clearer picture of whether the bombing amounted to a war crime under international law.
Iosif Sorokin is a J.D. candidate at Berkeley Law. He is a student contributor for Travaux.