And their fallout
Médecins Sans Frontières (MSF), widely known as Doctors without Borders, led the biggest trauma centre in the northern city of Kunduz until Saturday when the facility was attacked and destroyed by an air strike. It has been recorded, owing to the ongoing hostilities in the region between the Afghan forces and Taliban fighters, 296 patients had been admitted, including 64 wounded children.
The deadly air strike, carried out on Saturday and went on for an hour according to the sources, has created a hue and cry which left 32 dead including 11 doctors and three children. Witnesses have given ghastly and terrifying accounts of what actually happened in the medical facility when the American forces struck. “Patients who were unable to escape burned to death as they lay in their beds,” recalled Heman Nagarathnam, the head of programs of the charity group.
Distinction is one of the core principles in International Humanitarian Law (law which governs the rules during wars). The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians as they are to be protected under all circumstances. At this point in time the academic argument whether Afghanistan constitutes of International armed conflict, a non-international armed conflict, an internationalised non-international armed conflict or all of these mentioned is irrelevant. IHL recognises civilians are protected persons during all sorts of conflicts. The rule of distinction has to be read in conjunction with the prohibition to attack persons recognised to be hors de combat (people who cannot be targeted/attacked) and with the rule that civilians are protected against attack unless and for such time as they take a direct part in hostilities. The principle of distinction is now codified in Articles 48, 51(2) and 52(2) of Additional Protocol I, to which no reservations have been made.
Distinction is one of the core principles in International Humanitarian Law (law which governs the rules during wars). The parties to the conflict must at all times distinguish between civilians and combatants
The American narrative changed from day to day — first stance was that US struck the hospital because it wanted to help US forces on the ground; the stance changed to the Afghan government requesting for an airstrike because they were under attack by the Taliban forces. However, Gen Campbell, the top commander in Afghanistan, altered his statement on Monday claiming that separate investigations were being carried out to find out precisely what happened in Kunduz which led to this airstrike. Subsequently, the statement changed into an apology in a day. “The hospital was mistakenly struck. We would never intentionally targeted a protected medical facility”, said Gen, Campbell.
But the strike on the hospital in Kunduz was not the first time the US has killed civilians in Afghanistan. The US military has a history of mistaken aerial strikes not only in Afghanistan, but in other countries likes Yemen, Iraq, Syria and the former Yugoslavia. Many times they have also targeted wedding ceremonies and lost a few American citizens in these mistaken strikes.
This strike has renewed questions about the shape and scope of the US in Afghanistan. The White House has placed broad limits on when and where they can resort to force after the mission ended last year which confers absolute discretion to Gen Campbell to do what he deems necessary to aid Afghan troops.
The US military is supposed to comply with Geneva Conventions at all times while engaging in direct hostilities. The First and Fourth Geneva Conventions provide for the possibility of setting up hospital and safety zones. Both types of zone are intended to shelter the wounded, the sick and civilians from the effects of conflict, but the hospital and safety zones are meant to be far removed from military operations, whereas neutralised zones are intended for areas in which military operations are taking place.
President Obama has apologised in person for this tragic incident and assured that the Pentagon probe would provide a “transparent, thorough and objective accounting of the facts and conditions of the event”.
However, MSF is of the view that this is not enough and more should be done to investigate the incident. “We cannot rely on an internal military investigation,” MSF chief Joanne Liu told reporters, insisting that an “international humanitarian fact-finding commission” should probe the attack. “This was not just an attack on our hospital, it was an attack on the Geneva Conventions. This cannot be tolerated,” Liu added. MSF’s US leader Jason Cone afterwards called on Obama to provide approval to the commission, which he said would “send a strong sign of the United States authorities’ obligation to… international humanitarian law as well as the rules of war.”
The fact finding commission, that was formally established in 1991, requires a request by among the 76 states that are signatory to start its work. But MSF brushed aside that explanation, saying “a blunder isn’t an answer for us” and insisting on understanding “the facts, the objective, the standards”, behind the raid. MSF has been insisting that this aerial attack amounts to war crime.
Respect of IHL and Geneva Conventions is mandatory for military forces and non-state actors/insurgents who are actively participating in hostilities and cannot be disregarded under any circumstances
Zeid Ra’ad Al-Hussein, the UN Human Rights Commissioner said that the air strike was “inexcusable” and “possibly criminal”. He called for a transparent investigation, expressing that, “if established as deliberate in a court of law, an air strike on a hospital may amount to a war crime”. Reiterating the long established principles of IHL, he stated, “International and Afghan military planners have an obligation to respect and protect civilians, and medical facilities and personnel are the object of a special protection. These obligations apply no matter whose air force is involved, and irrespective of the location”,
Respect of IHL and Geneva Conventions is mandatory for military forces and non-state actors/insurgents who are actively participating in hostilities and cannot be disregarded under any circumstances. This air strike has raised questions regarding rules of engagement for the US military. The fighting in Kunduz over the past 10 days has elucidated the limits of air power and is a dreadful reminder of the danger that airstrikes pose to civilians — amidst war zones whether hot or cold war zones– who have been repeatedly killed as collateral damage by US aerial bombardment since the outset of the war. Furthermore, it is also imperative for Humanitarian Law to adapt to new developments in order to limit unnecessary losses and excessive suffering, which might be inherently caused by modern warfare.
