Showdown over war crimes: MSF versus the United States

Why identifying a war crime might be easier than finding justice, especially when the U.S. is involved.

By: /
29 October, 2015
Joanne Liu, President of Medecins Sans Frontieres (MSF) International, delivers a statement in Geneva, Switzerland, October 7, 2015. Medecins Sans Frontieres (Doctors Without Borders) called on Wednesday for an independent international fact-finding commission to be established to probe the deadly U.S. bombing of its hospital in Kunduz, Afghanistan. REUTERS/Denis Balibouse
By: Josh Scheinert
Lawyer practising international law in Toronto

On Oct. 3, a hospital run by Médecins Sans Frontières (MSF) in the Afghan city of Kunduz was attacked in an airstrike. An estimated 30 people were killed, including 12 MSF staff and 10 patients, and 37 others were injured. A nurse said that six ICU patients burned in their beds. Though the hospital was one of many buildings on the compound, other buildings were mostly left untouched.

Representatives from U.S. headquarters in Afghanistan said an airstrike was directed against individuals “threatening” U.S. forces, and there had been “collateral damage” to a nearby medical facility. Two days later they changed their story, saying the strike was carried out at the behest of Afghan forces.

President Obama later apologized to MSF saying the hospital was “mistakenly struck.” The U.S. government has also announced its intention to pay “condolence payments” to victims.

MSF is not backing down, and believes the U.S. has committed a war crime. (Another MSF hospital was hit in Yemen on Oct. 26, though reports that a Saudi-led coalition was responsible have been refuted by Saudi officials.) “Even war has rules,” said MSF’s International President, Dr. Joanne Liu, in the aftermath of the attack in Afghanistan.

What took place on Oct. 3 remains unclear. A NATO investigation is ongoing, but MSF is demanding an independent investigation by the International Humanitarian Fact Finding Commission (IHFFC), established by the Geneva Conventions. But regardless of which body investigates, a central question will be why U.S. forces repeatedly struck a hospital whose GPS coordinates it had been given, and why they continued striking the hospital for 30 minutes after they and Afghan officials were informed an MSF hospital was the target.

The rules of war Dr. Liu speaks of are codified by International Humanitarian Law (IHL) and the 1949 Geneva Conventions. One of those rules, in the fourth Geneva Convention on the protection of civilians during war, prohibits attacking civilian hospitals, notwithstanding the fact that they may be treating enemy combatants. A hospital can only lose its protected status if it is used for military purposes, and, before an opposing side attacks the hospital site, it must provide “due warning.” If an attack is carried out on a target where collateral damage is expected, for example a hospital also used for military purposes, that damage must be proportional and cannot be “excessive in relation to the concrete and direct military advantage.” 

“Serious violations” of these rules amount to war crimes.

As reported earlier this week, MSF has denied that the hospital was being used for anything but its stated purpose. In response to a U.S. military inquiry before the strike as to whether or not the hospital housed Taliban fighters, MSF answered no. That inquiry adds further evidence to the claim that the U.S. knew the site was a hospital, and that even if it was treating Taliban fighters, it was protected by the laws of war.

A finding, by NATO or the IHFFC, that the strike constituted a war crime, however, does not automatically come with consequences for the perpetrators.

The laws of war are devoid of an enforcement mechanism. It would be up to the U.S. to prosecute those responsible. Another state, in the face of U.S. intransigence, could invoke universal jurisdiction over the actions and attempt to secure a conviction, but recent history cautions against attempts at extraterritorial prosecution of U.S. officials. Italian courts may have convicted 23 CIA agents for an act of rendition on Italian soil in 2003, but none of those agents have ever set foot in an Italian prison, or the court that convicted them for that matter. And while the International Criminal Court does have jurisdiction over war crimes, and could theoretically mount an investigation and possible prosecution, it would likely be the already fragile court’s undoing for it to assume jurisdiction over a situation where the focus of its investigation was U.S. military officials.

This leaves U.S. efforts as the most plausible means of accountability. However, history also cautions against unchecked faith in U.S. efforts to prosecute its own officials for war crimes. To date, most U.S. war crimes prosecutions involve individual soldiers acting outside their official capacity, such as rape or abuse of detainees. In the one instance where war crimes were carried out in the course of an official military operation — at My Lai in the Vietnam War — only one soldier, Lt. William Calley, was charged. He served less than four years in house arrest before being released and obtaining a limited presidential pardon.

Coming back to the present then, one must ask: If it is concluded that the U.S. airstrike on the MSF hospital did constitute a war crime, will there ever be justice?

A finding by the IHFFC that the Kunduz strike was a war crime would be the first time the body made such a determination. However, as neither the U.S. nor Afghanistan has shown any inclination to cooperate with an IHFFC investigation, such a finding would be of limited effect in terms of catalyzing the U.S. into action.

In her statement after the attack, Dr. Liu said that the attack “was not just an attack on our hospital — it was an attack on the Geneva Conventions.” How the U.S. conducts itself in the coming weeks will determine if those conventions, which according to Dr. Liu “bring some humanity into what is otherwise an inhumane situation,” can be attacked with impunity.

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