US strike on MSF hospital in Kunduz poses tough legal questions

Exactly what caused the United States to strike a Doctors Without Borders trauma hospital in Kunduz, Afghanistan, on Saturday morning is still unclear, but details emerging from the incident are chilling. U.S. air support assisting Afghan ground forces against a Taliban offensive in the city repeatedly bombed the hospital for over an hour, leading to the deaths of 12 staff members and 10 patients, according to the organization, known by its French acronym, MSF.

Those who could, fled as the building burst into flames, said Heman Nagarathnam, MSF’s head of programs in northern Afghanistan, in a statement, “but patients who were unable to escape burned to death as they lay in their beds.”

Outraged, MSF has demanded answers from the U.S. military. But it also asking for something from the international community: an independent investigation “under the clear presumption that a war crime has been committed,” said Christopher Stokes, the organization’s general director, in a statement. That conclusion was echoed by United Nations human rights chief Zeid Ra’ad al-Hussein, who called the attack “inexcusable” and said it may amount to “a war crime.”

Legal experts in the U.S. say that it is too early to make that determination and that it will likely hinge on the claim by Afghan authorities that Taliban fighters were using the hospital as a firing point. That was the rationale for striking the building, U.S. authorities said on Monday. “Afghan forces advised that they were taking fire from enemy positions and asked for air support from U.S. forces,” U.S. Gen. John Campbell told reporters. “An airstrike was then called to eliminate the Taliban threat, and several innocent civilians were accidentally struck."

MSF, however, countered that "there can be no justification for this horrible attack." It said it provided the GPS coordinates of the hospital to coalition and Afghan military officials as recently as last Tuesday to avoid being hit. That is standard practice in conflict zones such as Kunduz, where coalition forces have been trying to roll back the Taliban since insurgents briefly captured the city last week.

The first step in any potential war crimes investigation will be determining what information the Pentagon had about the hospital when it decided to strike, experts said. “In normal conflict, as long as you have military objective, you can attack,” said David Bosco, an expert in the law of war at American University in Washington, D.C. “However, if a military objective is embedded in a civilian facility and you have reason to believe civilian harm is disproportionate to the military objective, that could be a crime.”

The question of proportionality — whether the force used against a target is appropriate to the threat posed by it — is a tricky issue in the law of war. It has come up during recent Israeli offensives in Gaza, where Israeli forces have targeted schools and residences under the rationale that Hamas uses them to store weapons and harbor military units.

The case of Kunduz would be viewed differently under international law, however, because the Afghan government has invited the U.S. and NATO into the country to help fend off the Taliban. As a result, Afghanistan is considered an internal conflict — not an international one — which would therefore leave investigation of alleged war crimes up to the parties involved. When it’s left up to military authorities, Bosco noted, “you don’t see that kind of thing prosecuted very often because it’s a really hard judgment call on the ground. Most militaries will give their commanders a lot of leeway” to assess proportionality.

The internal conflict designation is part of the reason the International Criminal Court — the body designed to intervene when local authorities are unwilling or unable to act — is unlikely to step in. The ICC has jurisdiction in Afghanistan, which became a member of the court in 2003, but it has yet to launch a formal investigation into any war crime allegations raised during the 14-year conflict there.

It would face a number of hurdles in doing so. The fact that the U.S., NATO and Afghanistan have all announced investigations into the Kunduz incident would seem to negate the court’s principle of complementarity — meaning that it may prosecute only when local parties fail to do so. Also, an ICC investigation in Afghanistan would be politically sensitive for the U.S., which is not a member of the court. Experts say the U.S. is already concerned about possible exposure to allegations of torture and other crimes committed in detention centers in Afghanistan, which the court’s chief prosecutor, Fatou Bensouda, has cited an interest in investigating.

But the ICC has looked at civilian casualties of airstrikes in the past in Afghanistan and found no evidence the victims were intentionally targeted. “So unless there were evidence that this was a deliberate attack on a civilian facility without any military objective, it’s very unlikely” that the court would pursue the matter, Bosco said.

If there is evidence of a crime, the U.S., which carried out the strikes, could launch its own prosecution. The U.S. would not prosecute war crimes per se but would pursue the underlying offense under U.S. law, according to Eugene Fidell, an expert on U.S. military law at Yale Law School. Potential charges include dereliction of duty, which would be punishable under the Uniform Code of Military Justice and carries a charge of a few months in confinement. “If an investigation were to conclude [that there was] reckless conduct, it’s also possible that a kind of homicide offense could fall out of it,” he said.

The other factor complicating prosecution is determining who was responsible. In a military operation like the Kunduz airstrike, there are many moving parts: those gathering and analyzing intelligence on the ground, the pilot or drone operator and the commander who ordered the strike, among others. “It can be difficult to determine culpability,” Fidell said. “And I don’t think anyone should jump to conclusions right now without knowing a lot more.”