The US government’s 120-page report on the Kunduz airstrike — in which US forces killed 42 civilians and destroyed a Médicins Sans Frontières hospital — found that US forces violated their rules of engagement and violated fundamental rules of international humanitarian law (the law of armed conflict). A summary released with the report also concluded that no “war crimes” were committed because US forces had no “intention” to strike a hospital or civilians. The report, however, fails to explain this conclusion. In particular, the report does not examine why the series of mistakes and errors that were found do not satisfy a “recklessness” test for intention.
Given the grave consequences of the strike, and the seriousness of the violations that were found, the government should explain its reasoning. Below is a short guide to the law of armed conflict violations committed, and an explanation of the inadequacies of the report’s war crimes findings.
Violations of international humanitarian law
According to the summary, the investigation found that “certain personnel failed to comply with the rules of engagement and the law of armed conflict.” Violations of fundamental rules of international humanitarian law in the Kunduz strike included:
1. Failure to take precautions in attack
The investigation found a breach of the rule that attacking forces must take feasible precautions to minimize harm to civilians. The breach arose from failures on the part of those involved in the attack to determine or obtain information about whether the target was actually a lawful military objective. According to the report, when faced with inconsistent information, the US forces failed to reconcile the differing accounts, and an accurate target grid location was ignored “in favor of a vaguely described compound” that later turned out to be the MSF hospital. Further, when an aircrew sensor operator “raised doubt” about the threat to US forces not matching a ground force commander’s description of the scene, instead of attempting to get more information, they continued with the attack.
2. Failure to distinguish between civilians and combatants
The investigation found that commanders did not respect the principle of distinction, which prohibits attacks directed against civilians. The report found:
Neither commander distinguished between combatants and civilians nor a military objective and protected property. Each commander had a duty to know, and available resources to know that the targeted compound was protected property.
The report states that the MSF compound was not a “time-sensitive target” and that the behavior of the nine unarmed people targeted (sitting in chairs and walking around) required more investigation to establish if they were combatants. Yet commanders failed to further investigate their target when they had reason to do so. Instead, they fired 211 rounds for an estimated nine people and then delayed issuing a cease fire order, all of which violated the principle of distinction.
3. Failure to respect the requirement of proportionality in attack
The investigation found that the attack was “facially disproportional” because the MSF hospital was not a lawful military objective. Thus, at “the point of engagement, any use of force against it was disproportional.”
War crimes: Not committed, but not explained
The five-page unclassified “summary” of the investigation provides that:
[T]he investigation did not conclude that these failures amounted to a war crime. The label “war crimes” is typically reserved for intentional acts — intentionally targeting civilians or intentionally targeting protected objects. The investigation found that the tragic incident resulted from a combination of unintentional human errors and equipment failures, and that none of the personnel knew that they were striking a medical facility. [emphasis in the original]
While it is legally correct to state that the war crime of murder requires an “intent” to kill a protected person (e.g., a civilian), nowhere in the 120-page report is there an analysis of the legal meaning of “intention.” The report actually makes no specific or direct findings about war crimes. (“War crime” appears only once, in reference to a report by the United Nations Assistance Mission in Afghanistan).
Under international law, “premeditation” is not necessary for the war crime of murder, but the precise scope of intention is less clear. Numerous cases have stated that genuine mistakes and negligence are insufficient for murder. But a number of international cases and UN-mandated inquiries have found that “recklessness” or “indirect intent” could satisfy the intent requirement. Article 85 of Additional Protocol I also provides that intent encompasses recklessness. (See The 1949 Geneva Conventions: A Commentary, from page 449, for a full discussion.)
The investigation released today makes clear that US forces committed numerous violations of fundamental rules of the laws of war, violations which should and could have been avoided. Yet the report provides zero direct analysis of whether these violations amounted to war crimes. Given the seriousness of the violations committed, the US should specifically explain why the facts do not amount to recklessness, and explain the legal tests applied for the commission of war crimes.