“Today we pay tribute to those who died in this abhorrent attack. And we pay tribute to those MSF staff who, while watching their colleagues die and with their hospital still on fire, carried on treating the wounded” – Statement by Dr Joanne Liu, MSF International President
On the night of 3 October, the pop of Kalashnikov rifles could be heard echoing throughout the suburbs of Kunduz as government forces, aided by American special forces units, fought to dislodge Taliban fighters from key locations within the city. At 2:08am, an overhead AC-130U gunship opened fire on a compound identified by the American troops on the ground. The 105mm Howitzer, 40mm Bofors cannon, and 25mm Gatling cannon reigned down an extraordinary amount of fire-power until 3:15am, reducing the compound to a burning shell. However the compound was no insurgent fortress; it was an emergency trauma centre housing 105 patients and 80 staff, run by the humanitarian non-governmental organisation Médecins Sans Frontières (Doctors Without Borders or MSF). The attack killed 22 people, 10 of whom were bed ridden patients, and left another 37 injured. An attack on a hospital is not only deeply unsettling, but is almost certainly a clear violation of International Humanitarian Law – however is it possible to hold to account those responsible?
THE FALL OF KUNDUZ
From 2011 the security situation around Kunduz had become more and more volatile. While the Afghan National Army (ANA) forces were in a better position strategically, occupying positions in more provinces than before, their capacity was being whittled away by an increasingly belligerent Taliban. This posturing came to a head on the morning of Monday, 28 September, when 500 Taliban fighters launched an assault on Kunduz City. After only a few hours and against overwhelming odds, the Taliban managed to push the 7 000 strong ANA forces back to the airport in the south. By 7am, Taliban flags were raised above the main roundabout of the city. The fighters were jubilant and celebrated by tearing down posters of Government officials and even taking selfies with local sympathisers.
The fall of a major city to the insurgents, the first since the coalition invasion toppled the Taliban government in 2001, was an overt indication of the increase in violent activity in Afghanistan. Fully aware of the potential to be caught in a crossfire, MSF preemptively sent the GPS coordinates of its trauma centre to ANA and Coalition forces on 29 September. The Taliban assault ramped up the pressure on local healthcare. However this was not only due to the usual array of civilian casualties that typically result from conflict in a heavily populated urban environment. Amnesty International released a report on 2 October, describing a “reign of terror” perpetrated by the Taliban on those who were unable to escape Kunduz. Those who were able to escape told of death squads who went house to house searching for wounded Afghan police and army forces, executing any that they found and raping and murdering their remaining family members. This increase in violence led to the MSF trauma centre increasing the number of beds to 110 to cope with the sheer number of wounded. Over the next six days, the facility would demonstrate its value by providing specialist care to 394 people. The damage dealt to the facility by the American airstrike left it inoperable, depriving the area of a service that it so desperately needed.
In the aftermath of the airstrike, there was a large degree of outrage and confusion in equal measure. The cause of the outrage is obvious; a hospital whose coordinates had been known to government and American forces had been hit repeatedly for over an hour. However the resulting confusion stemmed from the official statements from the Afghan and American governments on what led to the attack taking place. Early on the 4th, a senior military official stated that American and Afghan forces were receiving fire from the hospital compound. Later that same day, Secretary of Defence Ash Carter told a press conference that American troops were directly under fire, prompting an airstrike on the compound. The next day, Carter corrected earlier claims, stating that Afghan forces requested air support from US troops, who then called in the strike on their behalf.
Confusion in a time of conflict is justifiable; a rapidly changing situation on the ground, imperfect communication structures, and working alongside a foreign military means that miscommunication will occur. However such confusion has called into question the effectiveness of the three investigations launched by NATO, a joint United States-Afghan group, and the United States Department of Defense. MSF’s International President, Dr Joanne Liu, has stated that a fully impartial independent investigation is required as the charity “cannot rely on only internal military investigations by the US, Nato, and Afghan forces”.
MAKING LAWS FOR THE LAWLESS
The International Humanitarian Fact-Finding Commission (IHFFC) may be just the institution that can ensure a satisfactory independent investigation can be carried out. Founded in 1991 under Article 90 of the 1977 First Additional Protocol of the Geneva Conventions, the IHFFC offers an avenue where violations of International Humanitarian Law can be investigated. The Commission’s purview is to support state adherence to the four Geneva Conventions of 1949 and its three additional protocols of 1977 by providing a level of non-obligatory accountability. The very nature of a fact-finding committee means that the IHFFC can work to establish the circumstances that led to violations of humanitarian law. Adherence is largely intended to be obtained through the broadcasting of the commission’s findings, thereby ‘naming-and-shaming’ violators. However it has no power to punish violators or enact enforcement measures in order to ensure future adherence. As the International Criminal Court’s foundation document, the Rome Statute of 1998, utilises the Geneva Conventions to inform its own category of War Crimes, it is theoretically possible that the findings of the IHFFC could be used by prosecutors. This remains hypothetical, as in the 24 year history of the IHFFC, it is yet to be called upon to conduct an investigation.
Further complicating matters is that the IHFFC requires all involved states to recognise the competency of the commission. If this competency has been recognised, then the IHFFC can begin its investigation when it receives a request from a state party to the conflict. However if this is not the case, then consent needs to be obtained from each state. Despite ratifying the First Additional Protocol as recently as 2009, Afghanistan has not recognised the competence of the IHFFC, and the United States has signed but not ratified this protocol. While a state can be called on to consent to an investigation by the IHFFC with varying levels of strength by the bodies of the UN, or even under Chapter VII of the UN Charter, I would suggest that American could potentially gain more than it loses by cooperating with the IHFFC.
COOPERATION INTO THE FUTURE
As it stands, America has little to no say in the direction in much of the international legal framework; a framework which is becoming more and more potent. In a previous article for Global Quorum, I wrote on the expanding capabilities of peacekeepers which has enabled them to work much more closely with the ICC. America’s failure to ratify the Rome Statute leaves it well outside the community of states working together to create a rules based system that can reduce impunity and enhance accountability. It is this community that America should see as an opportunity, rather than a hindrance, to its foreign policy in the future.
By consenting to an investigation into the Kunduz air-strike by the IHFFC, and pressuring its Afghan ally to do the same, the United States not only provides the Commission with a significant windfall of credibility but would reinforce the rules based international order. The world is no longer the unipolar system that it was during the 1990s. As Russia and China become increasingly intransigent on issues like Syria, Ukraine, and the South and East China Sea, America will become further overstretched as it expands physical and political capital to retain the legitimacy of its overseas interventions. The most successful Russian propaganda appeals to this by painting the United States as no more than a neo-colonial power, intervening for oil and leaving nothing but failed states in its wake – and it has been a remarkably successful campaign at that. In allowing an IHFFC investigation to take place, America is able to demonstrate its adherence to International Humanitarian Law and the importance of the international system while highlighting the hypocrisy of other interventionist powers who remain largely outside this system.
By enlarging its cooperation with international institutions, American servicemen may be exposed to potential prosecution for violations of the Geneva Conventions. However, this would be unlikely to result in the usurpation of sovereignty that the United States so fears. The principle of complementarity outlined in the Rome Statute means that domestic courts will likely undertake these cases – domestic courts which already have the capacity to prosecute on such grounds. American foreign policy goals overlap significantly with those ideals that the international liberal order seeks to uphold. By engaging with this framework, American interests can be properly represented in the creation of a more potent international order. This is in contrast to the current belligerent stance taken by American foreign policy makers, who not only undermine current institutions but also only end up creating more obstacles for themselves to navigate. As such, the negative effects of allowing accountability of American actions overseas pale in comparison to the potential that these frameworks offer for the advancement of liberal ideals everywhere. This would overwhelmingly mean that illiberal governments would wind up in the crosshairs of international institutions, thereby facilitating a move towards a system that no longer tolerates impunity due to political convenience.
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