Doctors Without Borders Attack: The Futility of Independent Investigation

Doctors Without Borders | Image by Nesimo

Doctors Without Borders | Image by Nesimo

On October 3, 2015, a hospital run by Doctors Without Borders was attacked in Kunduz, Afghanistan.  The attack, an airstrike, was launched by the United States.  At least thirty people were killed during the attack, including doctors and patients within the hospital.  At this time, it remains unclear why the hospital was attacked.

On October 4, the NATO-led coalition in Afghanistan initially reported that the attack was launched in response to insurgents firing upon U.S. forces.  Later, on October 5, General John Campbell reported that the civilians at the hospital “‘were accidentally struck’” after Afghan forces requested air support from the U.S.

Despite the U.S. Government’s claim that the attack was a mistake, the details provided by the humanitarian group in its internal review seem to indicate that the attack was no accident.  The report states that the airstrikes largely affected the main hospital building in the compound, leaving surrounding buildings “comparatively untouched.”  Additionally, the report reveals that the hospital building was located at the exact GPS coordinates that Doctors Without Borders provided to the U.S. Department of Defense, US army in Kabul, and Afghan Ministry of Interior and Defense.  Finally, the report indicates that, according to accounts of the evening provided by the organization’s staff, there was no fighting, no gunshots or explosions, and no planes heard in the area surrounding the hospital.

In the wake of the attacks, Doctors Without Borders has called for an independent investigation by the International Humanitarian Fact Finding Commission.  However, the Afghan and United States Governments have not given their consent.  This is significant as consent is required for the Commission to conduct a fact-finding investigation.  Obtaining the consent of the Afghan and United States Governments is an ambitious goal and is unlikely to be realized.  Still, if consent were given, an investigation would accomplish little.

Even if the Afghan and United States governments were to agree to an independent investigation and it was found that the attack was not an accident, it is unlikely that any consequences would follow.  Significantly, the International Humanitarian Fact-Finding Commission, constituted in 1991, has yet to investigate any possible breaches of international humanitarian law, but the procedure that would be used in the event of an investigation is available to the public.  If an investigation were to take place, the Commission would first gather evidence on the incident before making findings.  After completing its fact-finding mission, the Commission would then create a report and submit it to the parties to the conflict.  The effectiveness of a Commission report, however, would be diminished by the inability of the Commission to report its findings to the public without the consent of the parties to the conflict.  It seems unlikely that a party would agree to have a report released to the public if the Commission came to an unfavorable conclusion.  In the case at issue, if the attack is found to not be a mistake, it would be a clear violation of the fourth Geneva Convention.

Article 19 of the fourth Geneva Convention states that the protection given to hospitals may cease “only after due warning has been given, naming . . . a reasonable time limit and after such warning has remained unheeded.”  In this case, it is clear that no warning was given to the hospital concerning a loss of protected status prior to the air strike.  Thus, if the attack was intentional, the U.S. violated the fourth Geneva Convention.  If the Commission were to reach this conclusion, it is unlikely that the U.S. would choose to consent to the release of the Commission report on the incident.

Thus, the actual findings of the Commission will likely be of little value for those hoping to receive answers to questions regarding the attack on the Doctors Without Borders hospital.  Going forward, it will be more efficient for those advocating for the Commission’s investigation to focus their energies on lobbying for changes to international law that will: (1) clarify what the rights of hospitals with protected status are and (2) implement procedural changes that will allow for more effective investigations following any possible violations of the Geneva Conventions in the future.  Specifically, more clarification is needed regarding the limitations of “due warning” for those entities with protected status.  There is also a need to amend the consent requirements of the International Humanitarian Fact-Finding Commission’s investigation and reporting procedures to better safeguard the protections that the Geneva Conventions promise.

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