In the wake of the Taliban’s takeover over the Afghan city of Kunduz last week, United States and Afghan military forces have waged a fight to reclaim control of the city. On Saturday, September 3rd, the U.S. bombed a Médecins Sans Frontières/Doctors Without Borders medical facility in Kunduz. The facility, the only facility of its kind in that region of Afghanistan, regularly served thousands of patients for free. Médecins Sans Frontières has called for an independent investigation into what they have deemed a “war crime.” This tragedy has led many in the general public to wonder: What qualifies as a war crime?
The International Criminal Court lists the definition of a war crime as, “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.” It goes on to list prohibited acts, which include: “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals.” The Geneva Conventions protect war victims and make up the foundation of international humanitarian law.
If a war crime includes intentionally attacking hospitals, the question becomes: Did the United States intentionally hit the medical facility in Kunduz? The response from U.S. officials has included a variety of conflicting explanations. Initially, the U.S. military said Taliban fighters were directly firing on U.S. service members in the vicinity of the hospital and a hospital may have been struck. There were also reports that Taliban members had taken up positions within the hospital and were using it as a firing position. The next explanation, from General John Campbell, commander of U.S. forces in Afghanistan, stated that Afghan forces had called for air support from the U.S. military, admitted that the hospital had in fact been struck accidentally and was “a U.S. decision made within the U.S. chain of command.”
With conflicting explanations and a multitude of unclear facts, determining whether this was in fact a war crime requires a clear understanding of the factual happenings on the ground and the decisions leading up to the strike on the hospital. Médecins Sans Frontières has called for an independent investigation of the attack, saying that an independent investigation would help ensure “maximum transparency and accountability.” It is currently advocating for the first ever use of the International Humanitarian Fact-Finding Commission. The Commission was established by the Protocols to the Geneva Conventions and serves to investigate grave breaches and serious violations of international humanitarian law. It has never before been called upon to investigate. Meanwhile, President Obama has apologized to Médecins Sans Frontières and assured it that the U.S. is conducting a joint investigation with NATO and the Afghan government.
Until we know whether or not the attack on the Médecins Sans Frontières hospital was truly an accident and whether or not there were Taliban fighters using the hospital as a launching ground for attacks, there cannot be a definitive answer as to whether these attacks qualify as “war crimes” under international humanitarian law. If the answer becomes clear, it will only lead to more questions. What next? How do we prevent this from happening again? How will the U.S. respond to Médecins Sans Frontières, the families of those ten adults, three children, and twelve Médecins Sans Frontières staff who were killed? Only time, and a truly transparent investigation, will tell.
Julie Marling is a 3L at the University of Denver Sturm College of Law and is the Training and Cite and Source Editor on the Denver Journal of International Law and Policy.