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US Claims Assault on MSF Afghan Hospital Isn't a War Crime Because It Was an Accident

A US military investigation found that series of human and equipment-related errors led to the attack in Kunduz, which lasted for a full half-hour and killed 42 people before the gunship stopped firing on the hospital.

by Samuel Oakford
Apr 29 2016, 6:35pm

Photo by Salvatore Di Nolfi

No one in the US military will face criminal charges over the sustained aerial attack last October on a hospital in northern Afghanistan that left 42 civilians dead, the Pentagon said on Friday. The hospital was operated by the medical charity Médecins Sans Frontières (MSF), also known as Doctors Without Borders.

The incident, US officials claimed, did not constitute a war crime because American forces did not intend to destroy the hospital and kill those inside. Legal experts immediately called that declaration into question, however.

Central Command General Joseph L. Votel said that 16 military personnel, including one general officer, received administrative punishments as a result of the killings. Those measures, said Votel, involved removal from command, letters of reprimand, counseling, and further training — but fell short of criminal charges.

He spoke as the US military declassified its massive internal investigation report on the incident. According to a summary of the investigation, US 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."

Related: US General Apologizes in Person for Bombing MSF Hospital in Afghanistan

The report found that series of human and equipment-related errors led to the attack in the early morning hours of October 3. It came as Afghan security forces, backed by American Special Forces and US airpower, were attempting to retake Kunduz after the Taliban captured it a week prior. American officials have repeatedly claimed that the intensity of fighting in the hours and days prior to the assault exacerbated the string of alleged errors that morning.

The American AC-130 gunship was supporting Afghan forces on the ground in Kunduz when it came under fire. Votel described it as "an extraordinarily intense combat situation." In the course of supporting ground operations, the crew of the gunship misidentified the hospital — a protected facility — as an intended target: a separate building roughly a half kilometer away that was under the control of the Taliban.

The attack lasted for a full half-hour before the gunship stopped firing on the hospital. Correcting initial reports and claims by Afghan forces, Votel said that no gunfire came from the hospital at any point, and confirmed that it was not being used as a Taliban base.

Chief among the failures that led to the destruction of the hospital and the killings of medical staff and patients was that the gunship's crew didn't carry a no-strike list that would have included the MSF facility and its exact location. According to US investigators, there were no "eyes on the ground" to even check that the intended target was in fact being hit, and if it was not, to determine what was being shelled.

Related: NATO Was 'Praying' for MSF as the US Attacked Its Hospital in Kunduz

American military officials were informed 10 minutes into the attack that they were hitting a hospital, but fire continued to rain down for nearly 20 minutes more, in part due to communication breakdowns, according to Votel. During that time, several patients burned alive as they lay in hospital beds.

"Their intention was true, they were absolutely trying to do the right thing," Votel told reporters at the Pentagon.

MSF staff at a demonstration in Geneva, Switzerland, November 2015. (Photo by Salvatore di Nolfi)

In a statement, MSF said that "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."

"Today's briefing amounts to an admission of an uncontrolled military operation in a densely populated urban area, during which US forces failed to follow the basic laws of war," said MSF PresidentMeinie Nicolai. "It is incomprehensible that, under the circumstances described by the US, the attack was not called off."

MSF had earlier denounced the attack as a "blatant breach of international law" and said that it was "working on the presumption of a war crime."

"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."

Related: US Attack on MSF Hospital in Kunduz Leaves Patients with Nowhere Left to Turn

MSF has been joined by other humanitarian and rights organizations in calling for an independent civilian investigation and for criminal charges to be filed, if appropriate, against those in the chain of the command who failed to prevent the attack and stop it once it became clear that the AC-130 was firing on a hospital.

"For 29 minutes they weren't even watching who they were killing. That raises real concerns," said Naureen Shah, director of Amnesty USA's Security with Human Rights Program. "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."

In the declassified report, investigators found that US forces both on the ground and in the gunship "failed to comply with" the law of armed conflict during the attack, and 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."

Related: US Special Forces Couldn't See Afghan Hospital When They Called in Deadly Strike

In determining that no war crimes were committed, the summary to the investigation explained that "the label 'war crimes' is typically reserved for intentional acts — intentionally targeting civilians or intentionally targeting protected objects" (original emphasis), which the US military claims was not the case in Kunduz. Curiously, the only reference to determining if the attack was a war crime comes in the summary, not the report itself.

Reached by VICE News, a Pentagon spokesperson explained that its decision was based on relevant international law, but that the US military "wouldn't attach the Geneva Convention" to the report.

"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 US has not adequately explained the factual and legal basis for its conclusion that a war crime was not committed."

Shah also questioned the US contention that because its military didn't intentionally strike the hospital, the attack should therefore not be considered a war crime.

"If that's their position, that's not correct," she said. "It has to be willful, but willful can be reckless. Essentially the point is that even if they didn't intentionally target this hospital but they were reckless in the actual targeting process, then that recklessness could amount to a war crime."

Follow Samuel Oakford on Twitter: @samueloakford