The Kunduz Hospital Atrocity

The U.S. bombing of a Doctors Without Borders hospital in Kunduz, Afghanistan, blipped on and off the mainstream media’s radar, catalogued as just one more unfortunate mistake in the last 14 years of war. But there is probable cause to treat the atrocity as a war crime, writes Marjorie Cohn for TeleSUR.

By Marjorie Cohn

In one of the most despicable incidents of the United States’ 14-year war in Afghanistan, U.S. troops bombed a hospital in Kunduz, killing 22 people, including patients, three children, and medical personnel from Doctors Without Borders, or MSF. Thirty-seven people were injured, including 19 staff members in the Oct. 3 attack.

U.S. forces knew they were targeting a hospital because MSF, as it does in all conflict contexts, had provided its exact GPS coordinates on multiple occasions over the past months, including most recently on Sept. 29. There was a nine-foot flag on the roof that identified the building as a hospital. After the first strike, MSF contacted U.S. officials and reported the hospital was being bombed and begged them to halt the attack. Nevertheless, the U.S. AC-130 gunship continued to pummel the hospital repeatedly for more than one hour.

Aftermath of the U.S. destruction of the Doctors Without Borders hospital in Kunduz, Afghanistan. (Graphic credit: RT)

Aftermath of the U.S. destruction of the Doctors Without Borders hospital in Kunduz, Afghanistan. (Graphic credit: RT)

“Our patients burned in their beds,” said MSF International President Joanne Liu. “Doctors, nurses and other staff were killed as they worked.”  She added, “Our colleagues had to work on each other. One of our doctors died on an improvised operating table an office desk while his colleagues tried to save his life.”

In attempting to explain why they had bombed a hospital, U.S. military leaders changed their story four times. On Saturday, the day of the bombing, U.S. spokesman Col. Brian Tribus said the strike occurred “against individuals threatening the force. The strike may have resulted in collateral damage to a nearby medical facility.”

On Sunday, Gen. John Campbell, U.S.-NATO commander in Afghanistan, claimed the strike occurred “against insurgents who were directly firing upon U.S. service members  in the vicinity of a Doctors Without Borders medical facility.”

On Monday, Campbell announced, “Afghan forces advised that they were taking fire from enemy positions and asked for air support” and “several civilians were accidentally struck.” By Tuesday, Campbell said, “the decision to provide aerial fire was a U.S. decision, made within the U.S. chain of command. A hospital was mistakenly struck. We would never intentionally target a medical facility.”

Since the Pentagon has access to video and audio recordings taken from the gunship, they must know what actually occurred. Daily Beast reported that the recordings contain conversations among the crew as they were firing on the hospital, including communications between the crew and U.S. soldiers on the ground. Moreover, AC-130 gunships fly low to the ground so the crew can assess what they are hitting.

 

But members of Congress who oversee the Pentagon have been denied access to the classified recordings.

Article 18 of the Fourth Geneva Convention states, “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.”

International law expert Mary Ellen O’Connell, a professor at Notre Dame Law School, said, “The critical question for determining if U.S. forces committed a war crime was whether they had notified the hospital ahead of the strike if they understood the Taliban to be firing from the hospital.”

MSF has said they were never notified that the hospital would be bombed. “Not a single member of our staff reported any fighting inside the MSF hospital compound prior to the U.S. airstrike on Saturday morning,” according to MSF General Director Christopher Stokes.

Parties to a military conflict have a duty to distinguish between civilians and combatants, and civilians and their facilities cannot be targeted. If the hospital were being used for military purposes, the strike must be proportionate to the military advantage sought, and the U.S. forces had a duty to warn the people inside the hospital that it would be struck. No one in the hospital said it was being used for military purposes, and even if it was, the U.S. forces never warned those in the hospital before striking it.

The U.S. strike was a precise attack on the hospital, because no other buildings in the MSF compound were hit. MSF executive director Jason Cone said, “I want to reiterate that the main hospital building where medical personnel were caring for patients was repeatedly and very precisely hit during each aerial raid while the rest of the compound was left mostly untouched. So we see this as a targeted event.”

MSF is demanding an independent investigation by the International Humanitarian Fact-Finding Commission (IHFFC), established under Additional Protocol I to the Geneva Conventions. But the United States must consent to the investigation. The U.S. government says there are enough investigations one by the Pentagon, one by a joint U.S.-Afghan group, and one by NATO. But none of these is independent and impartial.

Historian and investigative journalist Gareth Porter has written three articles about three different internal investigations the U.S. military used to cover-up operations that should have led to criminal prosecutions against U.S. officers. Why should we believe that this will be any different?

The Rome Statute for the International Criminal Court provides several bases for war crimes prosecution. They include willful killing; willfully causing great suffering or serious bodily injury; intentional attacks against civilian or civilian objects; intentional attacks with knowledge they will cause death or injury to civilians when clearly excessive in relation to the anticipated military advantage; and intentionally attacking medical facilities which are not military objectives.

Although the United States is not a party to the Statute, there could be jurisdiction over U.S. leaders if the Security Council referred the matter to the Court. That will not happen because the United States would veto such a referral.

If U.S. leaders are found on the territory of a country that is a party to the Statute, that country could send them to The Hague, Netherlands, for prosecution. But the Bush administration blackmailed 100 countries into signing “bilateral immunity agreements,” promising they would not send U.S. nationals to The Hague on penalty of losing U.S. foreign aid.

Other countries can prosecute foreign nationals under the well-established doctrine of “universal jurisdiction.” But since Bush initiated his war on Iraq, no nation has been willing to incur the wrath of the United States by maintaining such an action against a U.S. leader.

Nick Turse and Bob Dreyfuss documented the killing of as many as 6,481 Afghan civilians by U.S. forces from October 2001 through 2012. The U.S. government has killed large numbers of civilians in its drone attacks in Iraq, Afghanistan, Pakistan, Libya, Syria, Somalia and Yemen. But President Obama rarely apologizes to or compensates the victims. It is only because a Western-based organization was hit and the attendant media coverage has been so overwhelming that led Obama to apologize to MSF.

MSF’s advance provision of the hospital’s coordinates to U.S. forces, its notifications during the bombing, its denial that any fire was coming from the hospital, and the Pentagon’s shifting rationales for the bombing constitute probable cause that a war crime was committed.

Obama should consent to a full, independent, impartial investigation of the hospital bombing by IHFFC. If that investigation shows that war crimes probably occurred, appropriate prosecutions of the U.S. chain of command should ensue.

Marjorie Cohn is a professor at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See www.marjoriecohn.com. [This article was originally published by teleSUR:  “http://www.telesurtv.net/english/opinion/The-Kunduz-Hospital-Bombing-20151013-0018.html”]

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23 comments for “The Kunduz Hospital Atrocity

  1. dahoit
    October 14, 2015 at 11:29 am

    Reminds me of the Israeli attack on the USS Liberty,with the ID readily apparent but ignored.
    Wasn’t a C130 shot down a week before this incident?Maybe it was a rogue attack?by revengeful fellow soldiers,including officers?

  2. Zachary Smith
    October 14, 2015 at 12:12 pm

    In an Oct. 4 thread here I read the following passage:

    The dirty little secret Arkin had discovered was that, once such an operation is under way, special forces ground controllers in the area take full control, and the plans drawn up by lawyers and controllers far from the action no longer apply. Similar rules may have applied to the U.S. air strikes on the MSF hospital in Kunduz, making it difficult for anyone in Washington or Kabul to stop them once they were under way.

    The Afghans and the US Special Forces knew precisely what they were doing – shooting up a hospital. The reason they went ahead and did it was because they expected they could get away with it. And from all indications, they are going to get away with it.

    BHO is officially the head of the US military. If he wanted, he could release all the relevant information about the attack and order an independent investigation. It’s perfectly clear he doesn’t want to do this. Is it because he’s a full-blooded neocon himself? Or is he a puppet of somebody else who actually runs things who has told him what to do?

    Likewise, BHO could release the US information about the MH17. He could fire the slimy neocons in his administration.

    Defending him is no long possible, IMO.

    • Bob Van Noy
      October 15, 2015 at 3:35 pm

      “BHO is officially the head of the US military.”

      Exactly, Zachary Smith. And, quite simply that makes him a war criminal!

  3. bobzz
    October 14, 2015 at 12:38 pm

    Doctors Without Borders are true humanitarians who serve any and all they can. Were they helping too many Taliban at the hospital? Just asking. If they were, yeah, it would get them killed.

  4. F. G. Sanford
    October 14, 2015 at 12:42 pm

    “The critical question for determining if U.S. forces committed a war crime was whether they had notified the hospital ahead of the strike if they understood the Taliban to be firing from the hospital.”

    Of course, my “opinion” counts for nothing, regardless of the credentials or the positions I held. In today’s world of complete and utter lawlessness, the role of legal experts is exactly this kind of obfuscation.

    This article touches on points of “Jus Ad Bellum”, or the “Law of Just War” which includes concepts of “distinction” and “proportionality”. These concepts deal with whether the force applied was justifiable and proportional to the concrete strategic outcome to be realized as a result of the military intervention.

    It’s true, a hospital can be a legitimate target under some circumstances, if it can be shown that the hospital was engaged in belligerent activity. It’s illegal to place land mines around a field hospital in order to “defend” it because mines are OFFENSIVE, not defensive weapons. BUT it is quite legal for armed guards to defend a hospital and to use deadly force to protect it. But these considerations apply to MILITARY hospitals, not to civilian relief organizations. Now, if the hospital were actually owned and operated by the Taliban and it was located on a legitimate battlefield, that quote might have some validity, but in this case, it simply doesn’t.

    That hospital was a civilian hospital, and while GWOT claims, “the whole world is a battlefield”, it was located in an urban neighborhood, not behind “enemy lines”. You can’t surrender to a gunship, especially at night, though the hospital staff sought to do exactly that. And, last but not least, the most curious detail must be that elusive “strategic objective”. Well, we know that Medicins Sans Frontieres does not always see eye to eye with U.S. foreign policy. But, would they really go this far?

    If a U.S. Navy Captain runs a ship aground or has even a minor collision at sea, he is IMMEDIATELY relieved of command. No death, injury or damage need be involved. This scenario is not rare, and the consequences are swift and decisive. At Kunduz, we have what are indisputably DEATH PENALTY offenses which have resulted in actual deaths and damage. Nobody got relieved.

    The conceptual corollary to Jus Ad Bellum is Jus Post Bellum. That deals with war crimes. Oddly, I note that the American Bar Association has taken down its page regarding “law regulating use of force” under Jus Ad Bellum.

  5. Andrew Nichols
    October 14, 2015 at 6:59 pm

    Nothing to see here…move along….
    After me “MH17 MH17 Bad Russians Bad Russians”

    Look how quickly Kunduz fades from public consciousness…

  6. Jay
    October 14, 2015 at 7:24 pm

    Sustained artillery attack likely from an air born howitzer, not a bombing.

  7. Joe Tedesky
    October 15, 2015 at 1:04 am

    I will just say it this way, there probably isn’t much to it that their TPP agreement views of the Medecins Sans Frontierers/Doctors Without Borders may have sealed their fate, as to their hospital being targeted in Kunduz, but the timeline is uncanny at best. All happening within the same week that President Obama meets with the Pacific Rim leaders to begin the TPP agreement process, and then this hospital receives the worst of the worst ass whoopings from an American C130. Either some group of sick generals were behind this, or MSF/DWO has the worst luck in the world.

    September 29th MSF/DWO posted this;

    http://www.doctorswithoutborders.org/help-us-fix-tpp

    If you go on their site, there is much to read concerning their views on inexpensive medicine and the effects that the TPP agreement will have on any continuation of providing such medical supplies to third world nations. I don’t know about you, but us Americans could also benefit from generic drugs, or better prices for subscription medicine, so this effects Americans also. Advocating for sensible health cost should not be a reason to suffer from a C130 bombing mission. Deciding this planets health outcome must not solely be determined by a group of corporate pharmaceuticals.

    When I hear that the investigations for this disaster in Kunduz is going yo be investigated by the Pentagon, US-Afghan Group, or (ugh) NATO…that says it all. The U.S. looks at this international legalism, as a bother, and quite the joke. ‘You talk’n to me?’ What I cannot figure out, is what were they thinking, when issuing the orders to bomb the MSF/DWO hospital? I’m hoping this is a rogue operation, because if not, America has gone completely sicko crazy at the top. How, was this not going to receive bad press? I’m going to go now, before my head explodes. Somethings just cannot be explained, when you don’t have enough information, to truly understand the situation. Although, you could call your senators, and representatives, and tell them to vote against the TTP & the TTIP agreements. Then, maybe go donate some money to MSF/DWO.

    • Joe Tedesky
      October 15, 2015 at 1:16 am

      Just for the record, I was editing all my errors, and then the edit vanished. I apologize for these first draft mistakes…and I do make them. I’m guessing by now, that if you frequent these comment sections, you also account for, and figure out misspelled words, and basically get the point…I hope. Losing that edit thing was weird, and yes, my second draft was much better, but the essence of my thoughts is there.

      • Joe Tedesky
        October 15, 2015 at 1:21 am

        I figured it out…you get 5 minutes to edit, and I ran out of time. Oh great I look stupid. Oh well that isn’t the first time. I’ll just try, try, and try again.

        • F. G. Sanford
          October 15, 2015 at 4:01 am

          Joe, you can’t possibly look stupid. Not when the world has gone this sicko crazy.

  8. Ellen Sweets
    October 15, 2015 at 3:49 am

    Once again we are vulnerable to allegations that we are war criminals. The Pentagon and its minions can only get away with as much as the American voting public lets it get away with. Maybe better representation in congress will keep a closer eye on military decisions. We won’t know until we elect better people.

    • N Dalton
      October 15, 2015 at 5:25 am

      What allegations ? The Pentagon and its leaders – in fact the US – should not be allowed to get away with this ` obvious war crime ` on one of DWBorders hospital.

      http://www.doctorswithoutborders.org/article/kunduz-hospital-attack-msf-factsheet

      To no real surprise,only Israel defended “ the right to defend itself by bombing hospitals”
      according to Israeli ambassador to the US Ron Dermer . . . again tells Israel`s exemptions.

    • Joe Tedesky
      October 15, 2015 at 10:34 am

      “But members of Congress who oversee the Pentagon have been denied access to the classified recordings.”
      …………………………………………………………….
      Ellen, when I read this sentence Majorie Cohn’s article here, the first thought in my head was, and congress probably didn’t want to know. Probable deniability comes in handy for those in office, on such occasions. This hospital attack, is a text book case, for when to apply such deniability. I mean, what are these congress people to do with such information? This is why, I suspect how someone ordered that attack, knowing full well what they were doing. We could start wondering why, and for what reason, would anyone want to bomb a humanitarian facility. Although, I can hear some knowledge hardened Americans declaring how, Taliban were being protected by these sleazy doctors. I don’t think most Americans would say or think this, but there are some who do. I wouldn’t put it pass ‘right wing talk radio’ to go this far. If this hospital was attacked on purpose, then what was the motive? I agree with you, our congress should do an investigation of this travesty. Maybe, we should call our congress representatives immediately, and demand such an investigation.

      • Mortimer
        October 15, 2015 at 11:48 am

        This one’s for you, Joe —

        Happy Reading !!!

        https://www.lewrockwell.com/2015/10/no_author/the-cia-director/

        • Joe Tedesky
          October 15, 2015 at 1:22 pm

          Mortimer, thanks for the read. Yes, the Dulles brothers were something weren’t they? Eisenhower was in poor health, and I think the Dulles crew took advantage of that, maybe with a willing Vice President…maybe. Kennedy being younger, and more on his game, had to go. I’m sure that Allen Dulles thought of himself, as being a true American patriot. It would also appear, that the Dulles legacy lives on, in our modern CIA, and that’s too bad.

        • bobzz
          October 15, 2015 at 6:17 pm

          heard about this on democracy now; ordered the book that day, can’t wait to get into it. I recall gov. frank clement’s (TN) keynote address at the democratic conventinon referring to brother, john foster dulles, as the greatest “unguided missile” to grace foreign policy.

  9. a.z
    October 15, 2015 at 7:29 am

    this is the most clear cut article that shows the overall picture of the situation. i know because i have been collecting articles regarding the situation. if anyone wants to make someone aware of this incident please recommend this article

  10. denk
    October 15, 2015 at 11:25 am

    pentagoon spokesman,
    *The people there are dead because we wanted them dead*

    Q.E.D

    http://www.swans.com/library/art7/gowans11.html

  11. Joe Tedesky
    October 15, 2015 at 11:54 am

    Originally the U.S. went into Afghanistan to capture, or kill, Osama bin Laden. So, now that he is officially dead, why are we still there? Just this morning President Obama made Breaking News by announcing how the U.S. will be remaining there, until our mission is completed. Just what is that mission? With Al-Qæda now in Syria, why is not our fight still with Osama’s old remaining alive gang? I thought Al-Queda were the ‘bad guys’, no? Afghanistan is run by corrupt thugs. We are there either to defend oil pipelines, or drug routes, or both. This has nothing to do with freedom.

  12. Mortimer
    October 15, 2015 at 5:31 pm

    “Just what is that mission?” > Joe Tadesky
    .

    Afghanistan is awash in gold, copper and precious metals as well a wealth of industrial minerals – lithium and other rare earth metals. Speaking plainly, the country is resource rich.

    By extending US/NATO troop presence, Obama’s simply passing the exploitation torch to the next POTUS. (Resource Wars).

  13. Joe Tedesky
    October 16, 2015 at 9:47 am

    Update. Apparently the U.S. led investigation turns out to be a hospital smashing up job with an American tank. Evidence we don’t need no stinking evidence.

    Read this;

    http://www.washingtonsblog.com/2015/10/us-rejects-investigation-instead-smashes-into-hospital-in-tank-destroying-evidence.html

  14. Antaea
    October 26, 2015 at 4:15 pm

    Waiting. We are all waiting: for the truth. Now, it appears a whistleblower is required to release the video/audio tapes from the C130. But, of course, that will not reveal the prime motive….which at this point might be unthinkable. What has happened to our country?

Comments are closed.