On May 3rd, 2016, the United Nations Security Council (UNSC) unanimously adopted resolution 2286 strongly condemning attacks on medical facilities and personnel in conflict situations. Dr Joanne Liu, the current International President of Médecins Sans Frontières, addressed the UNSC during the session:
“The discussion here today cannot amount to empty rhetoric. This resolution cannot end up like so many others, including those passed on Syria over the past five years: routinely violated with impunity.”
Perhaps predictably the situation has not improved. Attacks on medical facilities and personnel continue, with some being described as deliberate and systematic.
On May 3rd 2018, Hague Talks, a Dutch based organisation which describes itself as a ‘forum for discussion and a starting point for concrete action’ hosted Does War have Rules. The event aimed to discuss the reasons for the failure of the implementation of UNSC resolution 2286 as well as the worsening situation of humanitarian aid workers in conflict zones.
The session inspired me to look at medical facilities and how they are treated in conflict areas. In this article, I wanted to focus on the opening speech which did a really good job of explaining why this is an important issue today. I also wanted to delve deeper into one of the case studies we looked at – The Kunduz Hospital Strike in 2015 and the aftermath of this senseless tragedy. It is an excellent example of a situation where the rules and the reality of the situation differ.
The New Barbarianism – Hospitals Are Now a Battlefield: Rationale
The session began with the screening of The New Barbarianism, a documentary by US think tank Center for Strategic & International Studies (CSIS). The film used interviews and case studies from Syria, Yemen, and Afghanistan to paint a gruesome picture of the situation faced by civilians and humanitarian workers. It can be viewed here for those with a strong stomach and a hankering for a dose of reality.
The documentary was introduced by its director and senior vice president of CSIS – J. Stephen Morrison. His rationale for producing it was drawn from his long career in humanitarian work:
“Over the course of that 20-25 year period, it was already becoming quite evident that wars were changing, that the non-governmental sector, the health sector, which under the Geneva Conventions is meant to be sacrosanct, to have neutrality and integrity, to be treated as a special zone, which is profoundly important to society even in the course of war, that that was breaking down.”
Through his work with CSIS, Mr Morrison found that with the most recent conflicts in Syria and Yemen, the situation only worsened:
“And the reverse has now happened, these [medical and humanitarian facilities] are now deliberately targeted as a tactic of war… I found that a profoundly disturbing phenomenon.”
Mr Morrison and his colleagues created this documentary to explain how this ‘breakdown of respect for the integrity and neutrality of medical operations’ came about and why it exists on such a scale today. In his opening speech, Mr Morrison blamed technology, the counterterrorism movement, and rogue states. The film also aimed to discuss the implications of this increase in attacks – how destroying medical facilities has long term consequences, for example.
The screening of the documentary followed, looking at a number of case studies. As mentioned, I was particularly interested in the Kunduz Hospital Strike and its aftermath. The Afghan hospital was described by Dr. Esmatullah Esmat, a surgeon who worked there as:
“A very good hospital for all people. All the services were free…and there was no difference between rich and poor…army or civilian.”
The documentary producers go as far as saying that the hospital was considered by many “a crown jewel medical facility in northern Afghanistan’s Kunduz province.”
A US led air strike which lasted about an hour wiped it off the map.
The Kunduz Strike and Investigation
On October 3rd, 2015, a United States Air Force (USAF) AC-130 gunship attacked the Doctors without Borders Kunduz Trauma Centre in the Kunduz province of Afghanistan. The hospital provided treatment to civilians and all parties to the conflict as long as they left their weapons at the door.
Doctors without Borders were very diligent about letting parties to the conflict know that this was a medical facility and frequently sent in their coordinates as they did not want to risk an attack like the one that took place. In fact, the organisation had just sent their coordinates to the US Department of Defense and US Army in Kabul on September 29.
A later Pentagon investigation into the incident would confirm that MSF complied with all necessary conditions to ensure that their hospital was identified as such by military personnel.
According to Gen. John Campbell, US Commander in Afghanistan, the strike began at 02.08 AM and lasted 29 minutes. According to Doctors without Borders (MSF), the attack lasted until 03:00 – 03:15AM. Minutes after it began, Doctors without Borders contacted US Military officials in Kabul and Washington to let them know they were firing on a hospital; the attack continued for at least another half-hour following this.
MSF received a response from a representative of NATO’s Afghanistan mission at 02:52AM which stated “I’m sorry to hear that, I still do not know what happened.” At 02:59AM, after MSF had made requests to end the strike, the NATO official sent the following “I’ll do my best, praying for you all.”
Prayers are rarely enough and certainly weren’t in this case. MSF’s log of events that morning shows that two more messages were sent from MSF at 03:04 and 03:07 respectively, stating that the hospital was now on fire. It wasn’t until 3.13 AM that MSF communicated that the strike had ended.
What was lost that night
At least forty two people died that night. Another 27 staff were injured, along with many patients. But the numbers don’t tell the full story. Dr Kathleen Thomas was on her first mission in Kunduz with Doctors without Borders when the attack took place. This is what she had to say:
“Our colleagues didn’t die peacefully like in the movies. They died painfully, slowly, some of them screaming out for help that never came, alone and terrified…it was a scene of nightmarish horror that will be forever etched in my mind.”
The hospital was obliterated. This wasn’t just a pop-up clinic. This was a massive hospital which, in the four years in which it had been operational, performed 15,000 surgeries and treated 68,000 emergency cases. The destruction of this facility and the senseless death of medical staff took away major and much needed infrastructure from the people of the Kunduz region. Infrastructure which will take years to rebuild.
MSF refused to operate in the region after the attack. It wanted commitment from all parties to the conflict that the integrity of their medical facilities will be respected. It wasn’t until July 2017 that a small outpatient clinic run by MSF opened in Kunduz. This was to alleviate the burden which other regional hospitals were facing. It goes without saying that the outpatient clinic is nowhere near the level of the lost Kunduz hospital by any stretch of the imagination.
“I can’t help but think that every day the hospital is a burnt out shell is a day that could have seen dozens of lives saved and hundreds of patients treated. What will they all do – the survivors and future injured patients of Kunduz? What on earth will they do?” – Dr Kathleen Thomas
What went wrong
Doctors without Borders insisted on an independent investigation by the International Humanitarian Fact- Finding Commission. The commission was set up by Art 90, Additional Protocol I of the Geneva Conventions to investigate violations of international humanitarian law. The United States is a signatory state to Additional Protocol I but has not yet ratified it. They chose not to honour this request and instead decided to have their own internal investigation. Although they may have had their own reasons, it sounds ludicrous – having the perpetrator investigate their own crime.
The results of a heavily redacted 3000 page Pentagon report shed some light on the situation. A New York Times article from April 2016 detailed the many mistakes that took place that night. There was equipment failure and human errors coupled by unexpected circumstances – probably all things you could expect to happen if you are operating in a war zone, and hardly justifying obliterating a hospital, but that’s just a lay(wo)man’s opinion.
Crew members knew they would be asked to support Afghan and American troops in Kunduz who were, at the time, facing direct fire from the Taliban. However, an unrelated emergency meant the plane left the military base in Kabul before they could be appropriately briefed and before a database identifying protected buildings could be uploaded. Once in the air, a satellite radio failed which prevented the crew’s ability to receive the data they needed, or to send and receive information.
In Kunduz, once they had evaded Taliban insurgents who used surface-to-air missiles to attack them, they filled in the building’s coordinates which took them to an open field that was obviously not the target. Rather than relying on their faulty equipment, they decided to ‘rely on their own eyes’ and then identified the hospital as the target as it roughly matched the description of what some of their colleagues on the ground said:
“…I don’t know if you will be able to pick this up, but it’s also an arch-shaped gate…”
As the New York Times journalist commented, arch-shaped gates are not an uncommon sight in Afghanistan, or indeed many Middle-Eastern states.
Confusion ensued among crew members who were unsure whether they had identified the correct target or whether they were expected to shoot. They made numerous attempts to clarify the intended target, but were led to the hospital, where they were given clearance to attack shortly after 02:00 that morning.
The reason why it took so long to stop the attack seems to be attributed to confusion and a lack of situational awareness. One unnamed American commander was recorded as saying that stopping the attack could “put the ground force at risk” as they could not confirm that the hospital was indeed Taliban free. This is interesting as the attack had started out as unintentionally firing on a hospital due to bad intel. At this point, the assumption was that they had conceded they were firing on a hospital. Under the Law of Armed Conflict (or International Humanitarian Law), there are very few circumstances when it is okay to directly target a hospital in this way and this was certainly not one of the exceptions.
So what were the consequences? 16 members of the military received administrative punishments such as being removed from command, letters of reprimand, and suspensions. Apparently accidentally obliterating a hospital and killing 42 innocent people warrants what amounts to a slap on the wrist. This is the kind of lack of respect for the integrity of medical units that Stephen Morrison was talking about during his opening speech.
The Law of Armed Conflict: War does have Rules
The US may not have ratified Additional Protocol I of the Geneva Conventions, but they did ratify the Geneva Conventions.
The International Committee for the Red Cross (ICRC) has helpfully outlined what constitutes customary international law (i.e. a practice most states abide by and are bound by regardless of whether it is codified in national or international law) when dealing with Medical Units:
Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.
This rule has been codified in the Geneva Conventions, particularly within Art. 19 in Convention (IV) relative to the Protection of Civilian Persons in Time of War:
The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.
Even when medical units lose their protection, a party to the conflict must issue a warning with a reasonable time-limit in which the hospital may cease harmful activity. The attack may proceed only if the medical unit does not heed the warning after the time-limit has elapsed. So, by attacking the Kunduz hospital and continuing the attack after it had been identified as a medical unit, the US were in breach of their obligations under the Geneva Conventions.
MSF’s immediate response was that they were acting under the presumption that this was a war crime – it may be difficult to prove this assertion as a war crime dealing with the destruction of property requires that the perpetrator was aware of its protected status. This may not have been the case in this instance.
However, one thing is certain; the administrative action taken against sixteen individuals on the basis of an internal investigation was disproportionate to the immediate pain, suffering, and destruction caused by this attack. It was disproportionate to the long-term damage done to the Kunduz region, a region which is now deprived of an excellent medical facility and trained medical staff. Where are vulnerable people in need of urgent medical attention expected to go? How can they trust that their hospitals, spaces which should be safe from hostilities, will remain so? And then looking to the future, how are people expected to rebuild their lives post-conflict when they don’t have access to basic necessities such as medical care?
All of these implications cannot have been considered given the lack of consequences faced by the individuals involved in this tragedy. I hate to think of the precedent this is setting – one where “accidents” such as this one are dealt with by light administrative actions like suspensions and demotions.
The New Barbarianism, Center for Strategic & International Studies
The Law of Armed Conflict: an Operational Approach, Corn, Geoffrey S, et al, Wolters Kluwer Law & Business, 2012.
Security Council Adopts Resolution 2286 (2016), UN Meeting Coverage and Press Releases
Pentagon Details Chain of Errors in Strike on Afghan Hospital, The New York Times
Was the U.S. attack on the Kunduz hospital a war crime?, The Washington Post
Address by Dr. Joanne Liu to United Nations Security Council, May 3, 2016, Médecins Sans Frontières/ Doctors Without Borders
Kunduz Hospital Airstrike, Médecins Sans Frontières/ Doctors Without Borders
MSF Factsheet – Kunduz Hospital Attack, Médecins Sans Frontières/ Doctors Without Borders
Initial MSF Internal Review: Attack on Kunduz Trauma Centre, Afghanistan November 2015, Médecins Sans Frontières/ Doctors Without Borders
IHL Database: Customary IHL – Practice Relating to Rule 28. Medical Units, International Committee for the Red Cross
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, Wounded and Sick IV. Discontinuance of Protection of Hospitals, International Committee for the Red Cross
Elements of Crimes, International Criminal Court