Pentagon Report On MSF Hospital Strike Falls Short

NEW DELHI: The Pentagon released the findings of its inquiry into the October 3, 2015 air strike on the Médecins Sans Frontières (or Doctors Without Borders) hospital facility in the war-torn city of Kunduz, Afghanistan. The attack had killed 42 people.

The report, instead of demonstrating that appropriate action was taken, highlights both the unlawfulness of the attack and the inadequacy of US military justice. The people identified as being responsible received administrative punishments, and no criminal charges have been filed.

42 people were killed and dozens injured whilst the US military aircraft pounded the MSF medical facility for over half an hour. The report admits that the hospital had protected status, and that its coordinates were known -- a fact that MSF themselves have repeatedly pointed out.

At one level, the report is damming. It notes that the strike was a result of clear violations of the law of armed conflict committed by US forces. It says, for instance, that the ground commander who ordered the strike and the aircrew "failed to comply with the LOAC (laws of armed conflict)" by making an "unreasonable" determination that the MSF facility was a lawful target and an unjustified blanket determination that all at the site were combatants, and ordering the attack on persons at the site even after observing that they did not appear to be armed or engaging in hostile activity.

As John Sifton points out in an article published by CNN: Not all laws of war violations are war crimes -- only serious violations committed with criminal intent or recklessness. Yet two of the report's findings make clear that serious violations occurred. First, the attack was unlawfully indiscriminate because "neither commander distinguished between combatants and civilians nor a military objective and protected (civilian) property." Second, even if the commanders reasonably believed they were carrying out an attack on a lawful target, the report found that the attack was unlawfully disproportionate to the expected military gain of the attack.

The report, however, has concluded that the violations were not were crimes. This is because “war crimes” is a definity typically reserved for intentional acts -- intentionally targeting civilians or intentionally targeting protected objects." The truth, however, is that intentionality is not the sole criteria; recklessness also finds place in the definition of “war crimes” -- and by the Pentagon’s own admission, the chain of events leading up to the attack on the MSF hospital can only qualify as reckless behaviour.

As Sifton notes, the report's findings show overwhelming evidence of recklessness. The ground commander, "9 km from the MSF site" and with no visual "line of sight," ordered repeated strikes on an unseen target and persons at the site on the basis of a single source and gave contradictory and confusing information to the aircraft about the purpose of the attack. Even though the actual and intended target was not time sensitive, and even as air crew stated their "confusion" and raised questions about the strike, both ground and air commanders failed to use "resources available ... that would have confirmed" that the location to be attacked was a hospital, and not the site that the ground commander wanted to attack.

Sifton continues: And commanders overseeing the operation failed to call off the attack after MSF had alerted them that they were attacking a hospital. The attack continued a full eight minutes beyond when commanders directly involved in the air control operations were told they were shooting at a hospital, although the Pentagon says the "ground force and the AC-130U aircrew were unaware the aircrew was firing on a medical facility throughout the engagement."

One thing is clear, the report puts the blame of the strikes on US forces. This is a huge step on its own, as the US has gone through a lot of official back and forth on what exactly happened. Last month, new commander of American and NATO forces in Afghanistan, Gen. John W. Nicholson Jr., issued an apology to the families of the victims of the strike. This was in stark contrast to his predecessor, Gen. John F. Campbell. In fact, it took over a month for Gen Campbell to event admit that the strike on the Médecins Sans Frontières (Doctors Without Borders) hospital was a mistake that could have been avoided. Even then, Campbell’s statement -- based on a report that stated that forces directly involved in the airstrike did not know the compound targeted was the Doctors Without Borders hospital, and that the facility was misidentified as a target by U.S. personnel who believed they were striking a nearby building where there were reports of insurgents taking shelter -- was met with protest. MSF maintained that its coordinates were given to the US mission in Afghanistan, and that the strike continued even after MSF informed American and Afghan officials that its facility had been struck.

Conflicting accounts passed for official versions for a long time. In October last year, Afghanistan’s acting Defence Minister, Masoom Stanekzai, justified the strike, telling The Associated Press in an interview that Taliban insurgents were using the facility as a “safe place.” Stanekzai said a Taliban flag had been hoisted on the walls around the hospital compound. "That was a place they wanted to use as a safe place because everybody knows that our security forces and international security forces were very careful not to do anything with a hospital," Stanekzai said. "But when there was on one of the walls of the hospital, there was a Taliban flag -- what can you think?"

"I am saying the compound was being used by people who were fighting there, whether it was Taliban or ISI or whoever they were," he said.

Kate Stegeman, MSF's communications director in Afghanistan reiterated that no armed combatants were in the hospital at any time, with MSF staff providing much needed medical care to victims of war in Kunduz -- as Taliban militants captured the city. "We reiterate that every staff member in Kunduz working for MSF has repeatedly reported to us that there were no armed people in the hospital at the time of the bombing,” Stegeman said.

Meanwhile, MSF demanded a clear explanation for the strike, claiming that the attack was deliberate. “The hospital was repeatedly hit both at the front and the rear and extensively destroyed and damaged, even though we have provided all the coordinates and all the right information to all the parties in the conflict," Christopher Stokes, general director MSF told AP.

The US also kept contradicting itself. Previously, General John Campbell conceded that the strike was called by US special operations forces and not their Afghan allies, as had been originally alleged. Before that, however, General Campbell had given a different version of events. The General said that Afghan forces had requested US air cover after being engaged in a “tenacious fight” to retake the northern city of Kunduz from the Taliban.

Campbell changed the story a few days later saying that Afghan forces had not directly communicated with the US pilots of an AC-130 gunship overhead.

Then a day later, Campbell told the Senate armed services committee that “Even though the Afghans request that support, it still has to go through a rigorous US procedure to enable fires to go on the ground. We had a special operations unit that was in close vicinity that was talking to the aircraft that delivered those fires.”

MSF on its part, was consistent in holding the US military entirely responsible. “The US military remains responsible for the targets it hits, even though it is part of a coalition,” said MSF Director General Christopher Stokes.

The report, for the first time, holds the US forces responsible, and gives a clear picture of what happened leading up to the incident. The tragic part is that having done so, no real action has been taken against those responsible.

This, however, should not come as a surprise. In the 14 years since the US war on Afghanistan began, the US military has conducted numerous inquiries into airstrikes that caused scores of civilian casualties, but has rarely pressed criminal charges.