Let’s get one thing straight: Accidents are not war crimes. Unintentional or collateral damage does not constitute a war crime, even when there are noncombatant deaths. The advent of precision weapons has fostered an unrealistic expectation regarding the applications of military force, which is substantially at odds with the reality of combat.
When Doctors without Borders (Médecins sans Frontières, or MSF) suggests that the attack on its hospital facility in Kunduz is a war crime, they are necessarily suggesting that the attack was a deliberate strike against a known, properly marked hospital. in violation of Geneva Convention IV (1949). In the process, MSF and its allies are deliberately or unwillingly engaging in a longstanding campaign commonly known as “lawfare”—defined by the Lawfare Project as “the abuse of Western laws and judicial systems to achieve strategic military or political ends.” Abetted by overt partisans, antiwar activists, a compliant press and conflict-aversion among the military’s public affairs offices, this process consists of “negative manipulation of international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted.” Unable to reach, sanction or inhibit those terrorist, guerrilla and criminal organizations that regularly commit deliberate atrocities, practitioners of lawfare instead turn to the occasional case of military force gone awry as examples of criminal acts that require a deliberate response, when in reality they are nothing of the sort. The tragedy at Kunduz will not be lessened by the cause, but the cause itself has yet to be determined.
The term “war crime” is thrown about casually, when it is instead a legal term with a specific meaning. According to the International Criminal Court, “War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale” [emphasis added]. The ICC definition, which comports substantially with the more detailed explanation supported by the International Committee of the Red Cross, requires intent—a willful violation of customary international law regarding armed conflict.
The mere occurrence of unintended or accidental harm to noncombatants does not, and has never been considered a war crime. It is nonsensical to pretend that the application of force in warfare is a precisely controlled, sterile and predictable process with an easily achievable outcome. Force application is conducted in combat is surrounded by uncertainty, executed in chaos, swimming in adrenalin and under crippling temporal distortion. Sometimes bad things happen, and without demonstrable criminal intent no assertion of legal jeopardy should be casually made. Western powers, in general, take a very serious view of civilian casualties, and major incidents are submitted to a detailed review that is provided to the public—a typical consideration that is both unprecedented and unparalleled and which is not shared in any way by our adversaries.
The Facts: Kunduz
The facts, as we know them now, are fairly limited. On 28 September, insurgent forces claiming to be Taliban forces overran the Afghan provincial capital of Kunduz. Fighting continued and within days, government forces with U.S. support were attempting to regain control of the city. MSF operates a hospital in Kunduz that includes a trauma center, established in October 2011 in a building long used as a hospital.
On Saturday, Oct. 3, a U.S. Air Force AC-130 gunship struck an MSF medical facility in the Kunduz with a currently undetermined number and type of rounds of ammunition. The airstrike lasted for a substantial amount of time, perhaps exceeding an hour. MSF claims that 30 staff and patients were killed and at least 37 others suffered wounds of varying severity. The main hospital building was subsequently destroyed by fire.
Overhead imagery provided by Terraserver, dated April 2015, reveals that at that time the hospital building was not marked with internationally recognized symbols as a medical facility. The involvement, if any, by the International Committee of the Red Cross in facilitating recognition of the hospital is undetermined. Similarly, there is no widely disseminated video evidence in the public domain that shows any indications that the hospital was marked as such, from any viewpoint, such that its nature might be determined by any combatants.
That’s it. We do not know who precisely requested the fire or for what reason. We do not know the precise rules of engagement or to what degree they were followed. We do not know the number and type of ordnance used or the duration of the attack. The presence of Taliban fighters using the building as a fighting position has been alleged but not confirmed. MSF claims that the hospital location was provided to U.S. government authorities, but has not revealed specifically to whom that data was allegedly provided, nor if a confirmation was received. We have not seen copies of hospital certificates required by the Geneva Conventions. MSF call logs reveal that attempts were made during the attack to contact military authorities, but the logs do not reveal contact, direct or indirect, with any actual unit with command or control of air forces of any kind. We do not know if the aircrew was aware of the presence or location of a hospital. Post-attack video of the hospital, provided by the Associated Press, provides no evidence to contradict evidence suggesting a lack of marking, but the hospital roof was destroyed by fire and its remnants cannot be viewed via ground-level video.
The existence of war crimes has long been understood to be an unfortunate aspect of warfare, and there have been numerous attempts to define, and thereby limit them. The International Criminal Court was created specifically in 2002 to investigate events and prosecute individuals in cases where war crimes were determined to occur. Under the definition of War Crimes, Article 30 of the Rome Statute that founded the ICC requires a mental element:
1) Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
a) For the purposes of this article, a person has intent where in relation to conduct, that person means to engage in the conduct;
2) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3) For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.
International law with respect to the establishment of hospitals as “protected places” is found in Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949), commonly referred to as Geneva Convention IV, or GC IV. Both the United States and Afghanistan are signatories. GC IV was established specifically to make clear that civilians required special protection not necessarily covered under customary international law as defined in World War II.
The obligations in the convention are reciprocal, meaning that all parties involved are expected to adhere to their provisions. This is particularly important in that it is not solely binding on the combatants but also binding on medical personnel, and applies to the facilities in which they operate and the organizations which establish them.
Article 14 outlines the “institution and recognition” of hospitals and safety zones. Article 18 states that civilian hospitals “may in no circumstances be the object of attack,” and goes on to require certain actions by the parties to the conflict, including the issuance of a civilian hospital certificate and critically, marking of the hospitals. Article 18 in its entirety:
Art 18. 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.
States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19.
Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, but only if so authorized by the State.
The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces in order to obviate the possibility of any hostile action.
In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives.
The proscription against hospitals not being the “object of attack” addresses the issue of intent, and is not meant to imply either that individuals or equipment in a hospital can be treated as separate from the hospital, or to define any damage to a hospital under any conditions as constituting a prohibited act.
To further clarify Article 18’s provisions, Geneva Convention I, article 38 (referenced above) requires specific markings of hospital buildings.
As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground, formed by reversing the Federal colours, is retained as the emblem and distinctive sign of the Medical Service of armed forces.
Nevertheless, in the case of countries which already use as emblem, in place of the red cross, the red crescent or the red lion and sun on a white ground, those emblems are also recognized by the terms of the present Convention.
Returning to GC IV, Article 19 addresses the very limited conditions under which a properly established protective status may be lost:
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. Protection may, however, 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 Application of the Rules
The application of the rules merits further examination, and will no doubt be part on the process that surrounds the investigation. At this point, the facts have not been firmly established. Key to the determination of war crimes will be the intent behind the attack on the hospital. A deliberate attack on a facility known at the time by the attackers to be a hospital would be a violation of Article 18 unless the hospital’s protection was revocable (and revoked) under Article 19. An attack on a facility not known to be a hospital by the attackers would not be a war crime, particularly as there is no reason to categorize the gunship’s attacks as indiscriminate—the weapons’ effects were aimed very precisely and confined to a specific area. If it is likewise determined that the MSF did not take required steps to make the hospital readily located and easily identified from either the air or ground by use of the prescribed international symbols, it would add to the tragedy of the event.
Calls for an independent investigation are a common occurrence in events of this type. With the United States and NATO forces, such calls for independence are unwarranted. The United States has demonstrated a consistent, thorough and meticulous approach to investigating civilian casualty events, and has done so for decades. Investigative reports are made available (examples can be viewed here, here, and here) and the CENTCOM Reading Room offers a single Website for ease of access. These events occur regardless of whether the event in question receives international attention, and occurs in the fact of humans rights violations and not only fatalities, and may cover acts by allied forces not under U.S. control. Finally, in the same way that aviation mishaps require aviation expertise to investigate, combat outcomes require investigators with expertise in combat operations. The U.S. Department of Defense is by far the most experienced investigator of adverse events in warfare and had demonstrated both competence and transparency to the extent possible.
The reality of the situation is that an outside investigation will by its very nature be incomplete. Department of Defense is not likely to provide classified information to an outside tribunal, thus limiting the comprehensiveness of any determination of facts. U.S. personnel will have had more ready access to the site of an event than any later outside investigation. Furthermore, U.S. military personnel are not normally subject to foreign legal proceedings under any circumstances, and should not be expected to provide testimony under conditions which do not comport with U.S. judicial proceedings and under which their rights as U.S. military personnel and U.S. citizens are not protected. Where necessary, war crimes prosecutions are conducted by U.S. military courts.
In and of Itself, the Use of Force Is Not Criminal
The tragic attack on the Médecins sans Frontières hospital in Kunduz was an unfortunate outcome in a country that has seen no shortage of war-related suffering and destruction. The horrific results of the attack should not blind us to the fact that warfare is not clean or precise and that the unintentional outcomes often weigh most heavily on the innocent. To assert that a mishap is automatically a war crime is not in accordance with international law and a disservice to warring parties for which intentional acts against protected civilians are anathema. U.S. military personnel are clearly responsible for the attack, but to assert criminal culpability requires evidence that the attack was a deliberate act against a protected place by individuals who knew in advance that they were attacking a hospital. In an environment where deliberate Taliban atrocities against the population are so routine that they escape international notice it is a reflection of the reality that U.S. military operations endure special scrutiny. However unpleasant the results, mishaps which occur in a combat setting are still mishaps, and it is a tribute to the professionalism of U.S. forces that they do not occur more often. It is unreasonable to expect perfect outcomes in combat, and legally and morally wrong to automatically ascribe criminal motives to these events when they do occur. The Laws of Armed Conflict are designed to protect civilians from effects that might reasonably protected—they are not a blanket criminalization of the use of force and should not be treated as such.