Photo: Medecins Sans Frontieres
Photo: Medecins Sans Frontieres

Kunduz attack

Given the long history of deadly airstrikes in Afghanistan, is the assault on the MSF hospital any different?
Photo: Medecins Sans Frontieres
Photo: Medecins Sans Frontieres

The repeated strikes on the Médecins Sans Frontières (MSF) trauma hospital in Kunduz, northern Afghanistan, in the early hours of 3 October 2015 left many horrified and dumbfounded. It is difficult to understand how and why such an attack was possible, given the initiatives to safeguard the lives of Afghan civilians, because of a long history of deadly airstrikes.

The attack by the US military in Kunduz was just a few days short of the 14th anniversary of the 7 October 2001 airstrike that signalled the start of 'Operation Enduring Freedom', a campaign to drive out the Taliban from power and prevent Afghanistan from being used as a base for al-Qaeda operations. The US-led occupation of Afghanistan effectively came to an end in December 2014, when the International Security Assistance Force (ISAF) – which included troops from NATO and other countries – was disbanded and replaced by a much smaller programme concerned with counter-terror activities and to providing training and other support to Afghan security forces.

Afghans have struggled to survive through the different phases of a long war that began in earnest in December 1979, when the Soviet Union invaded and occupied the country until 1989. Airstrikes during the Soviet era exacted a huge human cost, in terms of deaths, displacement, and devastation of infrastructure. This included the bombing of MSF clinics in areas under the control or influence of the mujahideen who were opposed to the Soviet-backed Kabul authorities.

Such attacks echo in the destruction of the hospital in Kunduz that cut short the lives of 12 MSF staff and ten patients including three children, and injured dozens more. Some 30 staff were listed as 'missing' and feared dead at the time of writing. The MSF were unable to contact with their colleagues as fighting between Taliban and Afghan security forces persists in Kunduz. There were more than 180 patients and staff when the bombs struck the main hospital building, where intensive care facilities and the emergency room were located. The airstrike involved five bombing sorties. Some patients died when they were burned alive in their beds as the hospital was engulfed in flames. The destruction of the hospital and departure of MSF, also known as Doctors Without Borders, is a huge loss to the people of Kunduz, a city currently on the frontlines of a war that has intensified in recent times. It is also a major blow to almost a million Afghans in neighbouring districts. According to Dr Steve McVicar, a Canadian orthopedic surgeon who has worked with MSF in recent years in Kunduz, up to 100 Afghans, many suffering war wounds as a result of bomb blasts, gunfire or other such incidents, require attention at the outpatients department on a typical day. The hospital conducted 5900 surgeries and over 20,000 consultations last year.

The surgical hospital and its location were well known; GPS coordinates were regularly reiterated to all warring parties including US authorities on 29 September 2015. The hospital was destroyed by repeated bombardments, despite frantic calls from MSF to the US military. Further information about these calls has not been released.

US Government personnel made a number of different statements in the days after the attack about the circumstances in which the airstrike was initiated, as well as its purpose and intended target. Discrepancies in the competing and changing narratives still need clarification, as do comments by Afghan government officials who claimed, contrary to MSF staff who survived the attack, that "terrorists" were firing on security forces from inside the hospital grounds. During the testimony on 6 October to the Senate Armed Services Committee in Washington, General John Campbell, the current Commander of 'Resolute Support', the successor mission to ISAF, said that even though Afghans operating in close proximity to US Special Forces requested support, this "still has to go through a rigorous US procedure." Campbell said that the bombing of the hospital was a "mistake" and the decision to do so occurred "within the US chain of command". He noted that US troops probably did not comply with their own rules in relation to airstrikes that can only be authorised "to kill terrorists", to safeguard the lives of US troops and to help Afghan security forces in a fraught battle situation.

Campbell's comments, four days after the Kunduz attack, were a significant departure from initial Pentagon statements that referred to "collateral damage" as a result of a bombardment in the "vicinity" of the hospital. This 'collateral damage' terminology is offensive and entirely inaccurate in the context of an attack that, based on available evidence, flagrantly violated international humanitarian law and minimum standards set for the protection of civilians. It also fails to live up to prior claims of precision strikes throughout a long history of US aerial bombardment in Afghanistan. Earlier, Campbell said that the attack was in response to a request from Afghan forces who were pinned down by enemy gunfire. He noted that the airstrike to eliminate the Taliban threat resulted in several civilians being "accidentally struck". Also during the Senate hearings, Campbell called for "strategic patience" when he confirmed he had recommended that President Obama reverse plans to withdraw the bulk of remaining US troops before the end of 2016.

A long history of airstrikes in Afghanistan has left its mark on the psyche of the Afghan people who are vocal in their condemnation of incidents of mass killings, whatever the circumstances. One such calamitous event was a wedding party in July 2002, when an AC-130 gunship, the same aerial vehicle used in Kunduz, was deployed in an attack that killed some 48 civilians in the village of Kakrak in southern Afghanistan. As noted in the Guardian, the AC-130 "is often used for devastating saturation night-bombing". Initially, the US military claimed that they were fired at from the ground but in the subsequent noted that "war is not a precise art", while admitting that military planners often relied on imprecise information. In July 2008, another wedding party was struck resulting in the deaths of 47 civilians, of which 39 were women and children. The US military first denied that any civilians had been killed. According to the UN, the most deadly airstrike occurred in Shindand, Herat province, in August 2008, when a memorial service for a deceased relative was attacked resulting in the death of 92 civilians, including 62 children. As in previous instances, the US military first argued that less than ten civilians had perished and that the airstrike had killed more than 30 Taliban militants. General McKiernan, the senior US Commander in Afghanistan, requested a separate investigation by headquarter's personnel once photographic and other evidence was produced by the UN that clearly showed infants had been killed. He finally issued a statement expressing regret for the loss of civilian lives.

McKiernan formulated a new tactical directive to regulate the use of airstrikes shortly after the attack in Shindand. This was followed, in 2009, by a more stringent directive issued by General McChrystal who succeeded McKiernan, further restricting the use of aerial explosives in populated areas to avoid civilian casualties.

A recent study by Action on Armed Violence (AOAV), a British NGO, found that civilian deaths as a result of aerial bombardments "have fallen by 81% between 2008 and 2014", thanks in part to their more restricted use. This is an important achievement and reflects efforts to address the political fallout of the rising civilian casualties. However, there has been very little, if any, change in the reliance of the US military on its internal investigations, notwithstanding a lamentable record even in this regard. Similarly, experience shows that, with a few rare exceptions, the US administration has little interest in holding to account those responsible for gross international humanitarian law (IHL) violations.

When Campbell went before the Senate Armed Services Committee, its members effectively ignored some fundamental questions including, for example, whether those who called in or authorised the attack knew that the intended target was a hospital. Neither was Campbell questioned on why "rigorous" procedures to vet targets had failed so catastrophically in relation to Kunduz.

From any perspective, including the changing US narratives, as well as the very different analysis of MSF and its assumption that a war crime occurred when its hospital was attacked, it appears that Washington has yet to absorb the fundamentals of IHL.

The Kunduz airstrike can be seen as an attack on the essence of humanitarianism including the availability of medical facilities for all war wounded. Staff safety is essential to maintain wartime healthcare and that unregulated warfare is immoral as well as unlawful. The rules of war, set out in the 1949 Geneva Conventions adopted immediately after World War II, dictate that non-combatants, meaning civilians and those no longer taking part of hostilities, such as wounded soldiers, have a protected status as do medical facilities and personnel. This does not mean that all civilian casualties are, automatically, the result of IHL violations. That the killing of civilians as a result of warfare is always a problem and particularly for those directly affected need not be emphasised. IHL requires that all warring parties make a clear distinction between those who are directly engaged in armed hostilities and all other individuals. IHL also requires that certain precautions be undertaken prior to an assault, to avoid or minimise civilian casualties, as well as the damage to infrastructure or assets essential for civilian survival.

It is very difficult for a medical facility to lose its protected status and become a legitimate target. Those in charge of military tactics, such as aerial bombardments, have a responsibility to determine whether potential civilian losses are proportionate to the presumed military or tactical advantage in advance of a planned airstrike. This effectively means, for example, that a hypothetical lone gunman firing from the roof of a mosque that is full of children should not be bombed in order to eliminate enemy fire, given the great likelihood that scholars and staff would be harmed even though the gunman is contravening IHL. In such a situation, the military would have to choose methods and means that have a high assurance of minimising harm to the children and teachers, as well as other civilians and civilian assets in the vicinity.

Clearly, airstrikes in populated areas require very unambiguous military policy and procedures that are independently reviewed routinely to give meaningful effect to IHL obligations. This means that all prohibited consequences are taken into account, mitigated where necessary and inform military decision-making prior to a potential or planned attack. In the Kunduz case, for example, MSF is firm in asserting that there were no armed personnel in the hospital grounds and it received no advance warning of the planned attack as required under IHL.

It is not a surprise that the 6 October statement of Dr Joanne Liu, President of MSF International, as well as several media accounts, described the attack as ‘deliberate’. This implies that the airstrikes were undertaken with full awareness and intent or that gross criminal negligence was involved. Liu also stated that MSF is “working on the assumption of a war crime”. Only a tribunal or independent fact-finding commission, with all the necessary facts at its disposal, can determine in a credible fashion whether a war crime was committed.

In a press conference on 7 October, Liu, noting that the attack on the MSF hospital was also “an attack on the Geneva Conventions”, called for an investigation by the International Humanitarian Fact-Finding Commission (IHFFC), established in 1991 to investigate IHL violations. The IHFFC came into being shortly after the First Gulf War, but has never been used, and is not a prosecutorial body. This in itself is indicative of the ‘fog of war’ argument that is routinely used to explain ‘mistakes’ or ‘accidents’ as did John McCain, US Republican Senator and former presidential candidate, during an interview on 4 October. McCain also attributed the bombing to reduced US troop numbers in Afghanistan having earlier argued against the drawdown of US forces. A few days later, President Obama apologised to MSF for the bombing of their hospital and telephoned the President of Afghanistan, Ashraf Ghani, to convey his condolences about the Kunduz casualties, while underlining his continued commitment to support Afghan security efforts.

Other stakeholders, including the UN and international civil society actors have issued statements underlining their concern or stressing the need for an independent investigation. These include the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, who expressed concern about the safety of civilians given reports of a growing death toll shortly after the onset of hostilities in Kunduz city on 28 September. He described the bombing of the hospital as “utterly tragic, inexcusable, and possibly even criminal” and called for a “swift, full, and transparent investigation”. Emergency Relief Coordinator and UN Under-Secretary General for Humanitarian Affairs, Stephen O’Brien, also echoed the need for an impartial investigation noting that the bombardment illustrated “the disproportionate risk for civilians when explosive weapons are used in urban areas”.

Washington has not responded to MSF’s proposal for the activation of the IHFFC, but has indicated that it plans to initiate or participate in other investigations. These include enquiries by the Pentagon, the US Department of Justice, NATO and an American-Afghan team. President Ghani has already established a government fact-finding mission to identify issues that led to the Taliban takeover of the city at the end of September, as well as the circumstances surrounding the hospital attack. However, as noted by Liu, it is not possible for MSF to “rely on internal military investigations by the US, NATO and Afghan forces”, as these are not independent and impartial parties to the events of 3 October. Indeed, the US response to date echoes the long-standing experience in Afghanistan, where disputed incidents of warfare rarely, if ever, result in reconciled accounts of the exact events and the civilian casualties.

A week after the MSF hospital attack, the Pentagon indicated it would offer “condolence payments” to the injured and to the families of those killed as well as resources to repair the hospital. The issue of the so-called ‘condolence payments’, which is not an admission of guilt or responsibility for IHL violations, has a complicated history in Afghanistan. Such payments are also known as ‘solatia’. This is seen as an expression of sympathy or the provision of much needed financial support at a time of loss that often involves additional expenditures for healthcare or funeral expenses.

Condolence payments gained currency, so to speak, in Afghanistan around 2008 and coincided with increased emphasis on counter-insurgency hearts-and-minds initiatives. However, the reality of intensified warfare as the Obama surge took hold in 2009 put into question ISAF’s protect-the-population strategy as the incidence of civilian casualties rose. It strained relations between the then-Afghan President, Hamid Karzai, and the US Administration.

MSF won the Nobel Peace prize in 1999 in recognition of its “pioneering humanitarian work”. In recent years, this included spearheading and mobilising robust action on the West African Ebola crisis. MSF’s association with Afghanistan began in the 1980s. It continued to operate during the turbulent period of factional fighting after the Soviet withdrawal and the arrival of the Taliban regime. MSF left Afghanistan in 2004 after the assassination of five staff, allegedly by local commanders, who were not arrested or prosecuted. It returned to the country in 2009 to work in some of the hardest hit areas as the war spread and intensified.

Only time will tell whether the US and Afghan authorities agree to an independent investigation by the IHFFC. Based on past experience, it is unlikely that Washington will agree to an independent and transparent process even if it lacks prosecutorial functions. But while not doing so will not be unusual, this airstrike is arguably different, given the growing concern within and beyond humanitarian circles that medical facilities, personnel and civilians in general are increasingly targeted and killed with impunity.

The widespread use of barrel bombs in Syria, coupled with the recent Russian airstrikes, and the soaring number of civilian casualties attributed to airstrikes by Saudi Arabia in Yemen highlight the overdue need to challenge contemporary patterns of warfare and general contempt for international humanitarian law. In the words of Joanne Liu, the killings in Kunduz cannot be brushed aside “as a mere mistake or an inevitable consequence of war”.

In the event that the US thumbs its nose at the IHFFC, and by extension its IHL obligations, it is important that humanitarian actors band together and generate an alternative, competent and credible high-level group tasked with undertaking an independent and transparent investigation. An independent and objective investigation is a vital part in challenging trends that include indiscriminate shelling and repeated attacks on a clearly demarcated and well-known surgical hospital in a country wracked by decades of warfare.

~Norah Niland has spent much of her professional life with the United Nations. She headed the human-rights team in the United Nations Assistance Mission in Afghanistan from 2008-2010 that started to systematically document incidents of warfare involving civilian casualties and related efforts to reduce the impact of war on civilians.

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