Kunduz Update

The Afghan government is doubling down on its strong insinuations that a Médecins Sans Frontières hospital that US and Afghan forces bombed in Kunduz on October 3 was a legitimate military objective. In the latest reports from the Associated Press, Afghanistan’s defense minister labeled the hospital a “safe place” that the Taliban, and possibly Pakistani intelligence operatives, used to carry out operations. His remarks did not, however, go as far as to say, as others claimed, that Taliban forces actually fired from the hospital.

It’s not clear how much weight should be given to the minister’s recent explanation. The New York Times spoke to an unnamed Afghan security official who dismissed the defense minister’s claims as “unfounded — there is no hard evidence.” Nonetheless, the defense minister’s statement, if true, is significant because it raises new questions about whether there were individuals within the hospital who, despite not firing on US or Afghan soldiers, could be the subject of attack.

To be sure, under certain specific and narrowly tailored conditions, individuals can be attacked even when their actions fall short of carrying weapons or opening fire on the enemy. But this alone does not necessarily justify the attack on the hospital.

Here are some of the considerations that need to be taken into account to determine whether the hospital was targetable, assuming the Afghan defense minister’s claims are true: 

  • If US and Afghan forces knew at the time of the bombing that individuals inside the hospital were lawfully targetable, then the hospital may have become susceptible to attack. But, for that to be the case, the lawfulness of the attack must be judged against what the forces knew at the time of the attack, not what they came to know after the attack.
  • Also, and more to the point, even if the Taliban were known to be operating from the hospital, this alone doesn’t mean the hospital could be attacked. Other rules of IHL, such as proportionality and the need to take precautionary measures, still would likely have prohibited the attack. Indeed, the significant amount of death and destruction caused to the hospital, the staff, and civilians inside raise serious concerns about whether these rules were followed.
  • Additionally, if Taliban forces were not actively firing from the hospital at the time of the bombing, serious questions arise over whether Afghan and/or US forces took the appropriate precautionary measures to avoid, or at least minimize, the harm caused to the hospital, its staff, and civilians inside.

All of the above assumes that the defense minister has a legally accurate understanding of who constitutes a targetable member of the Taliban and what constitutes targetable Taliban operations. What if that’s not the case?:

  • If Afghan forces relied on an overly expansive notion of who is targetable, they may have breached IHL’s core obligation to distinguish between those who can and cannot be attacked, known as the principle of distinction. This will ultimately rest on how the forces define who is targetable and how they applied that definition to the facts as they were known at the time of the attack. It will be necessary to know, for example, what the defense minister meant when he used the words “safe place” and what military significance he gave to his allegation that a Taliban flag was hanging on the wall of the hospital (a charge that MSF says none of its staff ever reported).
  • Additionally, if any forces involved in the hospital bombing knowingly or intentionally over-expanded who could be targeted, then additionally pressing concerns arise — possibly to the level of criminal liability — if the hospital was intentionally targeted. For example, if a soldier justified the bombing because Taliban war wounded were receiving care in the hospital, this would be a wholly antithetical interpretation of international humanitarian law. Wounded soldiers are generally protected from intentional attack, which makes both the wounded and the hospital off limits. To do otherwise may amount to a war crime. (I should add that there is no conclusive reporting that this is what justified the bombing.)

MSF, for its part, has emphatically denied that armed people were in the hospital, that they were firing from the hospital, or that the hospital was being used as a Taliban base. The United States, for its part, has conceded that the bombing was a “mistake,” but we don’t know if this was because the United States didn’t know the building was a hospital or if the “mistake” rests on the United States having known it was a hospital that it shouldn’t have bombed.

The lack of factual clarity and a multitude of inconsistent government statements surrounding the hospital bombing, while immensely frustrating, isn’t surprising. If anything, it demonstrates why the bombing must be investigated in a thorough, independent, impartial, and transparent manner.

I worry, however, that the findings of an investigation will remain shrouded in secrecy if the investigation hinges on determining whether or not people inside the hospital were targetable. This is because governments go to great lengths to protect information they glean from human and signals intelligence sources when making such determinations. And if the US and Afghanistan aren’t willing to show the victims and the public why they thought they could, or couldn’t, bomb the hospital, the credibility of the investigation would be significantly damaged, perhaps to the point of failure. 

About the Author(s)

Jonathan Horowitz

Legal Officer - National Security and Counterterrorism Program at the Open Society Justice Initiative Follow him on Twitter (@J_T_Horowitz).