April 29, 2016; VICE, “News”
An internal investigation into the U.S. bombing of a hospital in northern Afghanistan in October 2015 that left 42 civilians dead has found that the incident could not be classified a war crime because, although numerous regulations and procedures were ignored by those involved in the attack, it was not “intentional.”
As readers will recall, the hospital was operated by Médecins Sans Frontières (MSF), also known as Doctors Without Borders, and that organization and other humanitarian NGOs have been calling for an independent investigation.
Central Command General Joseph L. Votel reported that 16 military personnel, including one general officer, were given administrative punishments as a result of the killings, but no criminal charges were lodged. A summary of the investigation says that U.S. officials “concluded that certain personnel failed to comply with the law of armed conflict and the rules of engagement” but “did not conclude that these failures amounted to a war crime.”
But the protocols that were violated were multiple, including the fact that when the coordinates became vague, the crew of the gunship simply eyeballed approximate similar buildings and began to fire. Here is how the New York Times describes what the military calls a “tragic incident,” as if there were no human hand at work:
The AC-130 gunship circled above the Afghan city, its crew struggling to figure out where exactly to direct the aircraft’s frightening array of weaponry. Missile fire had forced it off course, and now the gunship’s targeting systems were pointing it to an empty field, not an enemy base.
About 1,000 feet to the southwest, however, the crew spotted a collection of buildings that roughly matched the description of the Taliban compound provided by American and Afghan forces on the ground. Nine men could be spotted walking between the buildings.
The gunship’s navigator called an American Special Forces air controller on the ground seeking guidance. The response was immediate and unequivocal.
“Compound is currently under control of the TB, so those nine PAX are hostile,” the air controller said, using common military shorthand for “Taliban” and “people.”
The air controller was wrong.
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The gunship’s crew didn’t carry a no-strike list that would have included the MSF facility and its exact location, and there were no “eyes on the ground” to check the target’s accuracy. Additionally, although the U.S. was informed by multiple contacts 10 minutes into the attack that they were hitting a hospital, communication breakdowns led to 20 more minutes of fire while patients burned alive in their beds. The investigation further found that U.S. forces both on the ground and in the gunship “failed to comply” with the Law of Armed Conflict in that the bombardment “was disproportional to the observed threat.”
“The aircrew failed to take feasible precautions to reduce the risk of harm to individuals they could not positively identify as combatants,” said the report. “The aircrew consistently engaged individuals that it did not positively identify as a threat for 30 minutes.”
But, as Votel told reporters at the Pentagon, “Their intention was true, they were absolutely trying to do the right thing.”
MSF declared in a statement, “The administrative punishments announced by the US today are out of proportion to the destruction of a protected medical facility, the deaths of 42 people, the wounding of dozens of others, and the total loss of vital medical services to hundreds of thousands of people.”
“[This] briefing amounts to an admission of an uncontrolled military operation in a densely populated urban area, during which U.S. forces failed to follow the basic laws of war,” said Meinie Nicolai, president of both MSF Belgium and MSF’s operational directorate in Brussels. “It is incomprehensible that, under the circumstances described by the U.S., the attack was not called off.”
“The threshold that must be crossed for this deadly incident to amount to a grave breach of international humanitarian law is not whether it was intentional or not,” Nicolai added. “With multinational coalitions fighting with different rules of engagement across a wide spectrum of wars today, whether in Afghanistan, Syria, or Yemen, armed groups cannot escape their responsibilities on the battlefield simply by ruling out the intent to attack a protected structure such as a hospital.”
Naureen Shah, director of Amnesty USA’s Security with Human Rights Program, said, “For 29 minutes they weren’t even watching who they were killing. That raises real concerns.…Clearly something went wrong, and for more than 40 people to be killed and more than 40 people to be injured and for no one to face the prospect of criminal prosecution is pretty stunning.”
“The report itself does not explain in detail what legal test the US is using for intention. UN-mandated inquiries, and case law from some international tribunals, have found that murder can be committed through recklessness,” said Sarah Knuckey, co-director of the Human Rights Institute at Columbia University. “The U.S. has not adequately explained the factual and legal basis for its conclusion that a war crime was not committed.”
The report’s description of this incident is shocking in its depiction of the reckless abandonment of protocols meant to keep us within internationally agreed-upon rules of war. Some of the conversation between the gunship and the ground is painful to read in its utter confusion, and if this high-profile case where an NGO is unwilling to let it go as a tragic mistake is an indicator, there is a far larger problem here.—Ruth McCambridge