On October 3rd last year a US AC-130 gunship carried out a series of strikes targeting the main building in the Médecins Sans Frontières (MSF) hospital compound in Kunduz, Afghanistan. 42 were killed and over 30 were injured, including doctors, women, children, and combatants from both sides of the conflict.
MSF was pretty pissed – and rightly so. From the beginning of time (ok like, 200 years), international law has protected hospitals and medical staff. These laws have been codified on multiple occasions, such as in the Geneva Conventions of 1949, but can be traced back to the 19th century Lieber Code which sought to protect non-participants of war and balance military necessity with decency.
Example of human decency in action: not bombing a hospital
MSF continues to call for an independent investigation by the International Humanitarian Fact-Finding Commission, yet neither Afghanistan nor the US has consented. Instead, the US opted for an internal military investigation, an effort which ultimately concluded that the building was misidentified.
2016 has also seen joint US-Afghan investigations run concurrently with NATO investigations. MSF continues to protest, claiming it is impossible for an impartial investigation to be carried out when the accused perpetrator is undertaking all three.
For example, the military reported the shelling continued for 29 minutes whereas MSF recorded the event as having gone on for almost an hour. Case in point.
The US military has, to date, provided three separate explanations as to why their gunship targeted the Kunduz hospital compound. The chronology of these explanations is as follows:
- The strikes were required to defend US forces on the ground.
- The attack was requested by Afghan forces under Taliban fire.
- The hospital bombing was but a tragic accident requiring: lacking a mission brief and failure to provide a no-strike list (on which MSF’s coordinates were featured); electronic malfunction; relying solely on a physical description of the target; and fatigue.
Christopher Stokes, MSF’s general director, expressed his absolute dismay that a planned military attack could be carried out with neither a verified confirmation of the target nor a no-strike list (presumably, or rather hopefully, everything that isn’t the target).
When Afghan authorities suggested there were Taliban present or hiding in the compound, MSF denied these claims. MSF responded by suggesting that any justification of the strike with such an accusation “amount[ed] to the admission of a war crime”.
This episode brings to mind some serious questions concerning the ability of international law to hold states to a certain standard. States are understandably reluctant to commit to anything that undermines the primacy of their sovereignty, however this poses the issue – how do we hold states accountable when they breach international laws?
International law typically lacks any formal enhancement mechanisms, and conduct within the law is predicated on two mechanisms of accountability. The first is state responsibility (for its armed forces), and the second is international criminal law. In really, really bad cases these are followed by reparations and individual prosecution, respectively. The vast majority of the time, however, the onus is on the states themselves to uphold international law.
One criticism of international law is that certain states are overrepresented, whilst repercussions for other states seem to be overlooked. The International Criminal Court has created controversy having only ever indicted African citizens. This enmity intensified just last month when Kenya urged AU members to pull out of the ICC in protest.
Are power-poor states bearing the brunt of the punishment?
While the full details of the Kunduz affair may never be fully uncovered, it is perhaps wise to remain critical as to which unlawful actions are punished and which remain unaddressed and carefully obscured. Recall when Russia vetoed the UN investigation in the downing of MH17, and take notice of the parallels.
International law must be an instrument of equal justice available to all, and not simply an instrument of power for some.
Quynh McGrath is a second-year Political Science & International Relations student at the University of Western Australia, and a member of the UWA International Law Club.