The Geneva Conventions provide a mechanism for an international probe but this would require the consent of the United States and Afghanistan
Following the US airstrike that killed 12 Médecins Sans Frontières staff, 10 patients (including three children), and left 37 others injured at the trauma centre in Kunduz, Afghanistan on October 3, MSF is demanding a war crimes probe into the incident as envisaged by the Geneva Conventions of 1949.
“This was not just an attack on our hospital – it was an attack on the Geneva Conventions. This cannot be tolerated. These Conventions govern the rules of war and were established to protect civilians in conflicts – including patients, medical workers and facilities. They bring some humanity into what is otherwise an inhumane situation” said MSF International President Dr Joanne Liu in an official statement.
In light of this, the MSF has demanded a probe into the matter by the International Humanitarian Fact-Finding Commission.
The little-known commission was set up as part of Article 90 of the First Additional Protocol to the Geneva Conventions and is meant to investigate the violation of International Humanitarian law. Despite the fact that this commission has existed since 1991 – it took 14 years after the protocol opened for ratification for enough countries to sign up to it – the IHFFC has never been used to probe a matter of this nature – or indeed of any kind.
The Dutch international law expert Frits Kalshoven has called the commission a “sleeping beauty”.
The activation of this commission requires one among the 76 states parties to sponsor an enquiry. However, the inquiry can only proceed with the consent of the concerned parties – in this case, the United States and Afghanistan – neither of whom is party to the commission or is likely to accept its ad hoc jurisdiction.
In effect, even if MSF were to find a sponsor, the probe it wants would not get off the ground.
US knew Kunduz site was a hospital
Afghan and US military spokespersons have stated that the Kunduz hospital was being used by the Taliban to fire at coalition forces. However, no proof of these allegations was submitted by either body and the airstrikes were conducted in the absence of adequate proof, MSF says.
The humanitarian organisation has made it clear that the hospital was in an area well known to the Afghan military, NATO and US forces. In fact, the exact coordinates of the hospital were shared with them on September 29, just four days before the strike. Furthermore, the attack went on for 30 minutes after officials from MSF informed the US and Afghan military that the hospital was being hit. There were no reports of any armed combatants in the hospital compound on the day of the strike or in the days prior to it. Keeping these facts in mind, Dr Liu said, “The facts and circumstances of this attack must be investigated independently and impartially, particularly given the inconsistencies in the US and Afghan accounts of what happened over recent days. We cannot rely on only internal military investigations by the US, NATO and Afghan forces.”
MSF has launched a public campaign of support for their demand and has written a letter to the heads of all the 76 states that are signatories to the protocol. According to MSF General Director Martin Sloot, “This is a very serious matter as hospitals in conflict zones are entitled to protection under the Geneva Convention. In spite of that, if attacks take place, then we will have to demand that the matter is investigated comprehensively. This is the first time such a demand is being made and we hope it is taken seriously so as to prevent attacks of this kind from ever happening again.”
A commission with no work
In fact, this is not the first time an attempt has been made to involve the IHFFC in a war crimes investigation in Afghanistan.
Amnesty International wrote to the US, the UK and the erstwhile Northern Alliance after the they took control of Afghanistan at the end of 2001 asking that they invite the commission to probe the 1997 massacre of Taliban prisoners at Mazar-i-Sharif. As Kalshoven notes, “the parties never even answered to Amnesty’s suggestion.”
Others who have flirted with the idea of an IHFFC probe in the past include the Government of Colombia, which in 1997 envisaged a role for the commission in instilling respect for IHL amongst its own armed forces as well as rebel groups like the ELN. However, the idea was dropped after a new president was elected.
Ironically, the Colombian case was the closest the commission got to doing any actual work – even though the armed conflict there was internal while the First Additional Protocol which set up the IHFFC is meant to deal with situations of international armed conflict.