The pictures are shocking. A hospital engulfed in flames, helpless patients and staff trapped inside. A mangled bed upended against what remains of a destroyed wall.
This was the aftermath of the U.S.-led aerial bombing of a Médecins sans frontières (Doctors Without Borders) hospital in Kunduz, Afghanistan, last month in which 30 people were killed and at least 37 injured. The internationally respected humanitarian organization has asked a bottom-line question of the United States, Afghanistan, and NATO – all of which played a role in the attack:
"Are we, or are we not, protected under the Geneva Conventions?" MSF international president Joanne Liu said in an open letter last week. "Did our hospital lose its protected status in the eyes of the military – and if so, why? Those responsible for requesting, ordering and approving the air strikes hold these answers."
The United States called the attack a mistake and suggested Afghan forces, not U.S. advisers, had requested an air strike. President Barack Obama apologized and promised a full inquiry. The U.S. military and NATO agreed to report on their internal investigations within 30 days. That deadline has passed.
One reason may be concern about the Fourth Geneva Convention, which states that hospitals treating the wounded are protected places provided they are properly identified as such. No one denies that MSF was flying its flag; or that the building was plainly visible; or that allied forces had recorded the exact GPS location as an extra precaution. To bomb a hospital is a war crime under the convention – not something U.S. military officials would wish to acknowledge. The possible political ramifications make it small wonder the military report has been delayed.
Perhaps they hope to find refuge in the exceptions to the convention's immunity rule: A hospital may lose its protected status if, for example, forces from one side of a conflict fire weapons from inside its walls, although civilians can never be the target of an attack. Rumours suggesting MSF may have breached certain conditions of protection have been circulating; these include Afghan government claims the hospital was being used by the Taliban in their fight.
To counter such speculation, MSF recently released its own review, including a clarification of the hospital's status the night of Oct. 2-3 and transcripts of urgent messages sent to military headquarters in Kabul and Washington after the bombing began. They confirm that all standing rules in the hospital were implemented, including the "no weapons" policy. MSF was in full control of the environs; a security check had confirmed that all was calm; there was no fighting from or around the trauma centre before the strikes began. Nor were there armed combatants within the hospital compound. Wounded combatants from both Afghan government forces and the Taliban were being treated without differentiation.
One disturbing piece of news recounted in the review was a call that MSF had received the previous day from an unidentified government official in Washington, asking whether a large number of Taliban were "holed up" in the hospital. Had the hospital become a target? MSF believes so. Also disturbing was confirmation that a U.S. tank drove into the ruins of the hospital just days after the attack, damaging evidence that might have been used in a potential war-crimes investigation.
In recent years, hospitals have been bombed in Sarajevo, Gaza, Chechnya and Burundi. In each case, the perpetrators claimed the protected site had been appropriated by the enemy, and in the fog of war it was impossible to prove otherwise.
In an attempt to reverse this dangerous trend, MSF has called on the little-known International Humanitarian Fact-Finding Commission, a body created by the Geneva Conventions, to conduct an independent investigation. This would be ideal: The agency is neutral; it draws no conclusion. However, it cannot operate without agreement from all concerned parties, and co-operation has not been forthcoming.
To leave MSF dangling would seriously undermine the established laws of war. In copycat acts, the Saudis have bombed a clinic in Yemen and the Russians have bombed hospitals in Syria.
U.S. President Barack Obama, winner of the Nobel Peace Prize, should allow the fact-finding commission to do its work, and encourage the Afghans to do the same.