One of the most flagrant, and widely reported, recent attacks on a medical facility was carried out by American troops. On 3 October 2015, Americans bombed a trauma centre in Kunduz in Northern Afghanistan run by Médecins Sans Frontières, killing 42 people, including 24 patients, 14 staff and 4 caretakers. A United States Department of Defense (DOD) investigation concluded that the airstrike was caused by “a combination of human errors, compounded by process and equipment failures. Fatigue and high operational tempo also contributed to the incident.” The investigation observed that these factors contributed to the “fog of war” but that the attack did not amount to a war crime, as none of the personnel knew they were striking a medical facility.
International Criminal Law is unclear on whether intent is necessary to commit a war crime. Criminal responsibility under the Statute establishing the International Criminal Court requires intent, but there is also support for the standard of recklessness in customary international law. This was highlighted by MSF and war crimes experts in response to the DOD investigation.
In that case, to what extent was the attack carried out recklessly? The evidence from the DOD investigation sets out a “cascade” of errors in identifying the hospital as the target, despite the coordinates having been supplied to US forces. The aircraft took off without having confirmed no-strike designations and, due to equipment failure, visually identified the incorrect target. The most heart wrenching detail is that staff in the hospital called and informed an American officer at the Bagram Air Base that the hospital was being bombed but that the attack did not cease. This was despite the fact that the call was made 11 minutes after the first wave of firing, which continued for 68 minutes. A New York Times investigation suggests that reason for the incorrect visual identification was that Afghan forces may have deliberately provided incorrect information to American troops, based on which they identified the hospital as a Taliban controlled compound. It also sets out an array of concerns regarding the chain of command.
These concerns, and many other remaining questions, highlight the need for an independent investigation outside the US chain of command. MSF have called for the matter to be referred to a International Humanitarian Fact-Finding Commission, established in the Additional Protocols of the Geneva Conventions, which has never been used before.
The New York Times article suggests that, at least as far as the Afghans were concerned, the hospital was a legitimate target. And while the question of recklessness remains with respect to the Kunduz attack, deliberate and systematic targeting of medical facilities has become the new normal in other conflicts, including Syria and Yemen. In Syria, government forces have attacked not only field hospitals, but also paediatric and maternity hospitals and have made a double-tap strike their hallmark (where a second hit is carried out once a first emergency response has arrived to assist, maximising the number). An open letter sent in August from the last remaining doctors in Aleppo to President Obama noted that “whether we live or die seems to be dependent on the ebbs and flows of the battlefield”. In Yemen, US-backed, Saudi-led forces have bombed four MSF hospitals in the war with Houthi militias in the last 12 months, leading MSF to pull out of the northern part of the country.
Such attacks are preventing the provision of medical treatment for the most vulnerable – the sick and wounded – and have a doubly destructive effect on civilian populations, as it is not only medical staff and patients at risk but the entire civilian population who depends on those medical facilities for access to health care. Such attacks are also eroding medical neutrality as a cornerstone of international humanitarian law, which the indirect support by powerful nations, together with the continued impunity of perpetrators does nothing to abate. Health care is at a breaking point in many locations and it remains to be seen whether the Security Council can play an effective role in ensuring that medical personnel – and the civilian populations which rely on them – are protected.
Tineke Baird is an international lawyer. She is interested in human rights, IHL, international criminal law, international organizations and counterterrorism. Tineke studied at the Graduate Institute of International and Development Studies.
For further information, see The Security Council Report: http://www.securitycouncilreport.org/monthly-forecast/2016-09/protection_of_civilians_8.php