Reports recently surfaced that United States forces carried out an air strike against a Doctors Without Borders (Medecins Sans Frontieres) hospital in Kunduz, Afghanistan. Twenty-two civilians died as a result of the attack – twelve Doctors Without Borders staff members and ten patients; thirty-seven additional individuals were injured during the attack. By all accounts, the United States-executed bombing took place as part of a larger military operation to re-capture Kunduz from the Taliban forces. The strike was horrific, as described by a Doctors Without Borders President, Dr. Joanne Liu:

“Our colleagues had to operate on each other. One of our doctors died on an improvised operating table — an office desk — while his colleagues tried to save his life.”

This post will explore the most relevant question: whether the United States’ bombing of the Doctors Without Borders hospital constituted a violation of international humanitarian law and whether the individuals responsible for this operation committed a war crime?

The answer to the above question is not easy and it depends on numerous factors, including an accurate factual accounting of what truly happened. The United States’ government first claimed that the bombing was a mistake; that narrative changed over the last few days, when Gen. John F. Campbell, the American commander in Afghanistan, offered detailed congressional testimony to lawmakers, and clearly stated that the attack was “a U.S. decision made within the U.S. chain of command.” President Obama himself officially apologized to Dr. Liu. According to White House officials, President Obama also told Dr. Liu that he would make any changes necessary to ensure that such incidents were less likely in the future, and he promised a “full accounting” of who was to blame, and whether the military’s rules of engagement needed to change. In addition, Doctors Without Borders have confirmed to the press that they shared the hospital’s GPS coordinates with the United States’ military numerous times, including as late as September 30. In light of General Campbell’s testimony, President Obama’s apology to Dr. Liu, and the fact that Doctors Without Borders shared the hospital’s precise location with the United States’ forces very recently, it seems unlikely that the bombing was simply a mistake. Jonathan Horowitz on Just Security has already laid out four different hypotheticals for what could have led the United States to conduct the attack against the Doctors Without Borders hospital; two of these hypotheticals include scenarios where the United States did not know that it was bombing a hospital. This post will discard these two hypotheticals because it seems implausible, in light of recent developments, that the United States’ military did not know that it was attacking a hospital. Two other plausible scenarios which Horowitz correctly lays out include the possibility that the United States intentionally targeted the hospital which was being used for medical services only, or that the United States intended to bomb Taliban fighters who it believed were located either in the hospital or somewhere nearby. If either of the latter two factual scenarios were true, did the United States violate international humanitarian law? Most likely – yes.

Civilians, as well as hospitals and medical professionals cannot be an object of an attack under international humanitarian law – even if the enemy is receiving medical treatment inside a hospital. Hospitals lose their protected status only if they are being used by the enemy to launch attacks. However, even if a hospital becomes a legitimate target of a military attack, international humanitarian law’s principle of precautions still requires that the attacker take precaution to minimize or avoid harm to civilians. Principle of proportionality additionally requires that attacking forces must ensure that the attack will not cause civilian harm excessive to the anticipated military advantage. If one assumes that the United States deliberately targeted a hospital which was being used for civilian and medical purposes only, then the United States violated international humanitarian law, and individuals involved in these attacks committed war crimes. Even if the attacked hospital had been treating Taliban fighters, the same conclusion would apply because, as stated above, hospitals do not lose their protected status under international humanitarian law if they are treating enemy forces.

If the United States attacked the hospital because it suspected that Taliban fighters were located near or in the hospital itself, the relevant principles of precautions and proportionality would still apply. The United States would have to demonstrate that its forces took appropriate precautions – that those who planned the attack chose the most appropriate means and methods in order to avoid or minimize incidental loss of civilian life, and injury to civilians and civilian objects. In addition, the United States would have to show that it conducted an appropriate proportionality assessment – that its military commanders knew, when ordering the strike against the hospital, that civilians would be killed and/or injured, but that they concluded that military advantage gained from the attack would outweigh civilian harm. In other words, the principle of proportionality authorizes military attacks if the expected civilian harm is not excessive to the anticipated military advantage; those carrying out the attack have an obligation to cancel or suspend the attack if it becomes apparent that the attack will not be proportionate. It is unclear, at best, that the United States will be able to prove that its military actions against the hospital in Kunduz satisfied the principles of precautions and proportionality. The general public is still in the dark regarding more specifics about United States’ targeting operations in Kunduz and how important the attack against the hospital was in relation to the overall military strategy in this region. What is clear, however, is that the civilian harm caused by the attack was significant, and that the United States has a lot of explaining to do in order to justify this attack. In addition, the United States would only be justified in attacking the hospital if it could demonstrate that the Taliban fighters present in the hospital or its vicinity were launching attacks themselves against United States’ forces (as stated above, if Taliban fighters were in the hospital because they were receiving medical treatment, then the hospital could not become a legitimate military target). Doctors Without Borders has vehemently disputed any such allegations, and it is not clear as of now what the United States’ government’s position on this issue is.

The only way that we may find out what truly happened in Kunduz is through an independent investigation. Thus far, the United States has committed to conducting an investigation by the Department of Defense. In addition, NATO and a joint United States-Afghan group will also investigate. Doctors Without Borders has called for a separate independent investigation by the International Humanitarian Fact-Finding Commission. The Commission is a body set up under the Geneva Conventions which can investigate violations of international humanitarian law; however, affected countries (here the United States and Afghanistan) must consent. It is unlikely that either will. Because of the gravity of the alleged conduct, they clearly should. A military investigation conducted by the military which itself may have carried out the illegal operation is insufficient and inappropriate.