Art. 19. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.
The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service, shall not be considered to be acts harmful to the enemy.
In Kunduz, MSF has been very clear that there is no evidence any Taliban were harmed in the bombing of the hospital, or that it was housing any munitions. But even if there were such evidence, under the law of war the U.S. would still have had to have given “due warning” before embarking upon its horrific bombing raid. Which, of course, it didn’t.
U.S. general John Campbell has now admitted that the raid was a “mistake,” although he hasn’t gone so far as to say that it was a criminal mistake. But here’s the problem: Even if the U.S. self-investigation uncovers evidence of a war crime, the criminals will manage to avoid any kind of international prosecution. “If errors were committed, we will acknowledge them,” Campbell is now saying—but that acknowledgement will not comprise referral to the International Criminal Court.
Indeed, the U.S. is refusing even to allow the independent investigation which MSF is demanding. For all that the U.S. narrative about the bombing has shifted many times, the main takeaway—that this was a regrettable and terrible accident caused by nothing more malicious than the fog of war—has been remarkably constant.
The problem is, that conclusion is deeply implausible. For one thing, if the U.S. government genuinely believes the “terrible accident” story to be true, then it should agree to an independent investigation of the event. Any kind of self-exoneration is going to be weak tea indeed compared to an exoneration by an independent third party. The result is that there’s only one way that the U.S. military can clear its name—and they’re refusing to choose that option. As Glenn Greenwald says of the “terrible accident” brigade:
They’re certain of this despite how consistent MSF has been that this was a “war crime.” They’re certain of it despite how many times, and how recently, MSF notified the U.S. military of the exact GPS coordinates of this hospital. They’re certain of it even though bombing continued for 30 minutes after MSF pleaded with them to stop. They’re certain of it despite the substantial evidence that their Afghan allies long viewed this exact hospital with hostility because— true to its name and purpose—the group treated all wounded human beings, including Taliban. They’re certain of it even though Afghan officials have explicitly defended the airstrike against the hospital on the ground that Taliban were inside. They’re certain of it despite how many times the U.S. has radically changed its story about what happened as facts emerged that proved its latest claims false. They’re certain of it despite how many times the U.S. has attacked and destroyed civilian targets under extremely suspicious circumstances.
But they are not apparently so certain that they desire an independent, impartial investigation into what actually happened here.
Still, it’s worth asking, is the “terrible accident” conclusion even plausible? Let’s ask three questions.
First, did the bombing come in response to an Afghan call for help, as Campbell now asserts? If it didn’t, then there was a unilateral U.S. decision to target a hospital: it’s almost impossible to imagine a more clear-cut war crime. But even if we were responding to an Afghan call for help, they can send in as many requests as they like for the Americans to bomb a certain building—but they are not in the American chain of command. The order to bomb has to come from an American officer, and no American officer takes orders from any Afghan.
Second, did anybody in the American chain of command know that they were bombing a hospital? If they did, then, again, they prima facie committed a war crime. And yet: the hospital was well known, it had been there for four years, and MSF was making desperate phone calls to everybody they could think of, telling them that their hospital was being bombed. The technology to mark certain buildings as sites which should never be bombed has existed since the 1940s, and has only got more accurate and sophisticated since then. But even if that technology failed, we surely have the technology to get in contact with a pilot and tell him to stop bombing, once we’ve learned that our target is actually a hospital.
Finally, and most importantly, who gave the order to bomb the hospital? In order to believe the “terrible accident” story, you basically have to believe that it was some confused low-level jarhead. But the Afghans are adamant that they were attempting to target high-level terrorists who were in the hospital. And the more high level the terrorist, the more high level the U.S. officers who would have had to sign off on the raid. (The decision to launch the raid which ended up killing Osama bin Laden, for instance, was made by the President.) Any U.S. officer with enough intelligence to believe that a high-level terrorist target was in the building would surely also have had enough intelligence to know that the building was a hospital.
It’s understandably extremely hard to believe that any American would deliberately bomb a hospital: it’s the exact opposite of everything that America stands for. But wherever there is war, there are war crimes, no matter who is doing the fighting. Any investigation into this bombing has to start from the assumption that it’s at least possible a dreadful war crime was committed. Given that so far no American has even admitted the possibility, the U.S. self-investigation really does look like a joke.