PHAP Online Learning Series on Humanitarian Law and Policy – Strike at Kunduz: An IHL analysis of the US strike that killed and wounded civilians and destroyed a hospital
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.
Session recording (downloadable audio podcast)
- Knowledge of basic rules governing conduct of hostilities
- Awareness of specific rules affording enhanced protection to hospitals under certain conditions
- Understanding of how an analysis of the legality of a strike is undertaken
- Awareness of the International Fact Finding Commission mechanism and the conditions under which it might be activated
- Familiarity with the some of the challenges that emerge when assessing whether there has been a violation of IHL
For those wishing to prepare for the session, we recommend the following resources:
- Jonathon Horowitz, “Was the Kunduz Strike a War Crime?” Just Security Blog (5 October 2015)
- David Bosco, “Kunduz and ICC Scrutiny,” Lawfare Blog (5 October 2015)
- Milena Sterio, “Strike at Kunduz: Did the United States Violate International Humanitarian Law?” IntLawGrrls Blog (8 October 2015)
- Julia Brooks, “US Denies War Crime Allegations in Kunduz MSF Hospital Bombing: Could the Label Fit?” ATHA Blog (8 October 2015)
- Catherine Harwood, “Will the ‘Sleeping Beauty’ Awaken? The Kunduz Hospital Attack and the International Humanitarian Fact-Finding Commission,” EJIL Talk Blog (15 October 2015)
- Norah Niland, "Kunduz attack - Commentary," Himal (16 October 2015)
- Kate Clark, "Airstrike on a Hospital in Kunduz: Claims of a war crime", Afghanistan Analysts Network (7 October 2015)
- Médecins Sans Frontières (MSF), "Initial MSF internal review: Attack on Kunduz Trauma Centre, Afghanistan" (November 2015)
- UNAMA, "Human Rights and Protection of Civilians in Armed Conflict - Special Report on Kunduz Province" (December 2015)
PHAP members have the possibility to undergo a two-part assessment after the session as part of the PHAP Continuous Learning Credits framework.
To encourage peer learning among members, selected essay responses will also be published on the website, if approved by the writer. As a member, you can comment on the responses and read other members' comments.
Professor of International Law and Security, School of Law, University of Glasgow
Prior to his professorship at the University of Glasgow, Robin Geiss was Professor of International and European Law at the University of Potsdam. Prior to that, he had worked as Legal Adviser to the International Committee of the Red Cross (ICRC) in Geneva and as ICRC delegate to the United Nations Human Rights Council. At Glasgow, he convenes the LL.M. in International Law and Security.
Professor Geiss studied law in Bielefeld, Edinburgh, Kiel (PhD, 2005) and at the New YorkUniversity (LL.M., 2004), and is a qualified German lawyer (admitted in 2007). His areas of research include most major subjects of public international law, in particular United Nations law, statehood, human rights, international humanitarian and international criminal law. A former scholar of the German National Merit Foundation, Robin Geiss is currently managing editor of the Yearbook of International Humanitarian Law and Rapporteur of the International Law Association’s (ILA) Study Group on the challenges to international humanitarian law in contemporary armed conflicts. He is also member of a European research consortium that investigates the unintended consequences of international counter-narcotic measures and was a member of the international group of experts that, under the auspices of the NATO Cooperative Cyber Defence Centre of Excellence in Tallinn, drafted the “Tallinn-Manual” on international law applicable to cyber-warfare. He is the author of “Failed States” (Duncker & Humblot 2005) and co-author of “Piracy and Armed Robbery at Sea” (OUP 2011) and has published in a wide range of scholarly journals.
In addition to his academic work, Professor Geiss has advised states inter alia in proceedings before the International Court of Justice (ICJ) and especially on matters pertaining to cyber-security. His advisory work has also included mandates from the United Nations Office for the Coordination of Humanitarian Affairs, the World Health Organization, the Military Academy of the German Armed Forces, the Centre for Economic and Social Rights and the Geneva Centre for Security Policy. In 2010, he was invited to address the United Nations Human Rights Council on the protection of journalists in armed conflicts.
Consulting Expert on International Humanitarian Law, International Association of Professionals in Humanitarian Assistance and Protection (PHAP)
PHAP Credentialing Program
International Legal Frameworks for Humanitarian Action
In particular, the event will address segments 3.5 and 5.3 of the certification assessment outline. The event will also address some aspects of segments 3.4, 5.1, and 5.2.