We Asked An Expert if the US Bombing of a Hospital in Afghanistan Was a War Crime

Since 9/11, the American military has been making headlines for all the wrong reasons. Whether it's abusing prisoners of war in Iraq, detaining alleged terrorists indefinitely without due process in Guantanamo Bay, or launching drone attacks that kill children and other non-combatants in places like Yemen, Uncle Sam can't seem to fight a war without causing collateral damage and testing the limits of the Geneva Conventions. There was actually a welcome departure from this trend last week, when a successful raid carried out by American and Kurdish forces freed 69 Arab prisoners of the Islamic State in Iraq. But that only briefly distracted attention from the US bombing of a Doctors Without Borders hospital in Kunduz, Afghanistan, earlier this month that killed at least 30 people.

As the Associated Press has reported, the bombing was carried out despite US forces being aware the facility was an active hospital—albeit one they apparently believe to be under Taliban control. An American gunship took five separate passes at the place, killing both staff and patients. Doctors Without Borders promptly labeled the strike a war crime, but what does that actually mean for the most powerful country on Earth? Is anyone—whether the individual soldiers involved or someone higher up in the US military or government—actually going to get in any kind of trouble here?

For some perspective, we reached out to M. Cherif Bassiouni, professor emeritus of law at DePaul University and the UN Commission on Human Rights' former independent expert for Afghanistan. One of the world's leading war crimes experts, he says the bombing was a "prime facie war crime"—which is to say it looks an awful lot like one. But that doesn't mean thinks anyone will be going to prison over it.

VICE: So what laws come into play when assessing whether an act of war or an act of violence in a military setting is a war crime?
M. Cherif Bassioun: So [under the Geneva Conventions], there is something called "protected targets," and something that carries a red cross or red crescent is a protected target and is a medical establishment. Whether it's a ship or a plane or a tent or a building, it is a protected target. So the first thing is, a protected target is absolutely protected. You cannot hit a protected target. That's number one.

Number two, you can only hit a protected target if, in fact, the other side is violating the status of the protected target. In other words, if the other side pretends that it is a hospital and puts a cannon inside the hospital, then it turns the protected target into a valid military objective. So all of that, [is][ straightforward, very simple.

The problem arises when you have two combatants and you have a protected target that may or may not be used for hostile purposes by one of the two sides.

So how do we apply these rules to the bombing in Kunduz?
[In] Kunduz, do we have any hostiles to the American forces, let's call them the enemy, who are in control of the hospital? Then comes the factual questions. Are they in control of the entirety of the hospital or some of the hospital? And what part of the hospital are they in control of? Number two, what are they in control of the hospital for? Because if the purpose of their controlling the hospital is so that they can bring in their own injured to be treated, then it's permissible. You can't attack a medical facility because it is treating your enemy.

Now, if you are coming in and you are using that protected area in order to attack your enemy, in this case the US troops, then we go, again, into a factual evaluation. What is the enemy doing? Is the enemy placing a sniper at the top of one buildings? Is the enemy using—I don't know, the garage—to store things? Is it bringing in tanks and artillery? What are they doing that is considered a threat to you? So once you've ascertained, "Yes, I have a threat," you're asked to evaluate what that threat is and you're going to say, "What is this threat?' Is it one sniper or ten snipers? Are these snipers close enough to hit me or not close enough to hit me? Are they bringing in tanks, bazookas, anti-aircraft stuff? What are they doing?"

In other words, my American justification for attacking a protected target is called "military necessity." Now, for military necessity to arrive, I have to show—the burden of proof is on me—to show that there is something in that protected area that was causing harm to my people and that this harm was so significant that it required my destroying that whole thing. Because if I have a single sniper sitting on top of the roof, I'm not going to destroy the whole building. So that's where we are, and we don't know these facts.

Even if the US believed the Taliban was operating from the hospital, the presence of wounded patients would have made an attack untenable no matter what. Is that right?
If the United States believed the Taliban was there, the next question would have been, "What are they doing in terms of hostilities against the US troops?" Mere presence itself does not transfer the hospital into a hostile situation.

What institutions apply the law or can actually enforce the law?
What you have is a situation involving basically two countries. You have Afghanistan, where the crime occurred, and you have the United States. Afghanistan can ask the United States to prove that its action was not in violation of the Geneva [Conventions]. If it is not satisfied, Afghanistan has the first right of pursuing a criminal action against the American soldiers. Because the actions are not against the American government, it's the individuals. So it's the soldiers, it's the commanders who are in the field, it's the guys flying the plane, it's the guy giving instructions, it's the commanding officers who are instructing those who are on the plane.

But are they equally culpable, both the commanders and the individual soldiers carrying these actions out?
Sure they are. The officers for doing the act and their superiors for command responsibility.

Does the fact that this is an NGO—Doctors Without Borders—that is actually leveling the accusation complicate things at all?
No, it doesn't. The answer to your question is that this is an aggrieved victim and the aggrieved victim is entitled to raise the question of his or her victimization. If you had a son who was killed here, then you would be able to raise the claim. They can raise the claim with the US if that's the case and, you know, maybe transform it into a civil claim and a claim for damages and they can negotiate it. And that's the case if you had an automobile accident. But if you're dealing with a criminal case, then it has to be a state or an international organization.

Every country has the right to bring a criminal action against any of the soldiers or officers who have participated in that crime. So France can do so, Italy can do so, Timbuktu can do so, whoever you want. Because the Geneva Convention says in Article I that all countries have the obligation to enforce the provisions of the convention. So any country can do that, and we had a number of cases like that after the Yugoslavia War and after the Rwanda War. We had people who committed crimes in Yugoslavia and Rwanda and fled to the Netherlands or Austria or Germany or Italy or France. And these countries found out that they had committed crimes there and they prosecuted them. So they can go there.

But since the United States is not a party to the International Criminal Court, assuming no outside country does act, the Afghanis would have to bring charges in their domestic legal system?
Or in the United States, if the United States assumes the prosecution. Frankly, I don't understand why the US is acting like [this]… I would refer all of these people to a general inquiry in the US and let the general inquiry decide if it was a crime and if it was a crime refer them to a general court martial. Get it over with.

In the last 15 years or so we've heard the term "war crime" thrown around a bit in the context of Abu Ghraib and other actions by the United States. Where do you think this incident stacks up in the context of these others?
There's been a lot of prosecutions for war crimes in the last 20 years. Frankly, the only one who's managed to avoid any responsibility has been the United States. And that's what's created this feeling that, you know, there's American exceptionalism—that the whole world is held to certain rules and standards and the US is the only one that can get away with doing whatever it wants and nobody can get after them.

So do you expect anyone to be held accountable for this bombing?
Knowing the record of the United States to sort of avoid any type of criminal responsibility, particularly as I look at the incidents of extraordinary rendition and torture abroad, the answer is, unfortunately not.

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