On 3 October 2015, a Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, was destroyed in a strike carried out by the United States Air Force. 22 civilians were killed - 12 MSF staff members and ten patients; 37 individuals were injured, including 19 MSF staff. Condemnation of the operation was swift, including from MSF which "condemn[ed] in the strongest possible terms the horrific aerial bombing ... [which] constitutes a grave violation of International Humanitarian Law." President Obama apologized to MSF, and the United States government has announced it will issue "condolence payments."
Was this a war crime? Any analysis of the question centers on the IHL principles of distinction, proportionality and precautions in attack. It also raises the fundamental protections afforded civilians and civilian objects under IHL, as well as those special protections for medical personnel and hospitals. Any answer to this question requires a thorough and independent investigation, so as to determine the facts on the ground. This raises a host of additional questions, including the obligation of states to investigate and prosecute (if appropriate) in cases like this, as well as the potential role of the International Humanitarian Law Fact-Finding Committee. The Commission, set up under the Geneva Conventions, can investigate violations of IHL - but it has not been used before.
This learning session served as a case study to apply the areas covered in previous sessions in the series. It reviewed the various legal questions related to the strike, including the relevant rules of targeting, the protections afforded medical staff and hospitals, and what investigation and accountability looks like.