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An environment conducive to mistakes? Lessons learnt from the attack on the Médecins Sans Frontières hospital in Kunduz, Afghanistan

Published online by Cambridge University Press:  01 April 2019

Françoise Bouchet-Saulnier  and
Jonathan Whittall
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Abstract

On 3 October 2015, the Médecins Sans Frontières (MSF) Trauma Centre in Kunduz, Afghanistan was bombed during a US–Afghan joint military operation to retake the city. Even before that night, attacks on health-care facilities in war zones were already a worrying trend and a major concern for humanitarian organizations. Such attacks have led both MSF and the International Committee of the Red Cross (ICRC) to launch campaigns1 addressing the need for greater protection of the medical mission in situations of armed conflict. Nonetheless, the scale and specific context of the attack on the Kunduz Trauma Centre have given rise to various specific investigations2 and provoked many more questions that this article will explore. The article will delve into the “many mistakes” scenario that has been presented by the US investigation in order to critically analyze whether these mistakes may originate from either incorrect or biased interpretations or implementation of international humanitarian law.

Keywords

AfghanistanKunduzMédecins Sans FrontièresIHL principlesattacks on health careinternational military coalitioncounter-terrorismidentificationself-defenceUnited States
Type
Selected articles
Information
International Review of the Red Cross , Volume 100 , Issue 907-909: 150 years of humanitarian reflection , April 2018 , pp. 337 - 372
Copyright
Copyright © icrc 2019 

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Footnotes

*

The authors thank Joanne Wong for her research assistance and contribution to the legal editing of this article.

1

The ICRC Health Care in Danger campaign was launched in 2011; see: http://healthcareindanger.org/hcid-project (all internet references were accessed in December 2018). The MSF Medical Care Under Fire campaign was launched in 2013; see: www.msf.org/en/article/medical-care-under-fire.

2

Following the Kunduz attack, four specific investigations were conducted: two domestic investigations (US and Afghan), a NATO (Resolute Support Combined Assessment Team) investigation and an internal MSF investigation. The results of the US investigation were temporarily made public: US Department of Defense, Army Regulation (AR) 15–6 Investigation, Concerning a Potential Civilian Casualty Incident in Kunduz, ordered on 17 October 2015, completed on 11 November 2015 and approved by the appointing authority on 21 November 2015 (AR 15–6 Investigation Report). The Afghan investigation, ordered by Presidential Decree No. 1348, 9 October 2015, was never made public (see Lynne O'Donnell, “Afghan President Orders Investigation into Fall of Kunduz” AP News, 10 October 2015, available at: https://tinyurl.com/yaoo5fsh); nor was the NATO investigation (see NATO, “Statement on the Kunduz MSF Hospital Investigation”, 26 November 2015, available at: https://rs.nato.int/news-center/press-releases/2015/statement-on-the-kunduz-msf-hospital-investigation.aspx). The internal MSF investigation was made publicly available; see MSF, Initial MSF Internal Review: Attack on Kunduz Trauma Centre, Afghanistan, Geneva, 5 November 2015 (MSF Internal Review), available at: http://kunduz.msf.org/pdf/20151030_kunduz_review_EN.pdf.

References

3 See Human Rights Watch, “Hospitals, Health Workers Under Attack”, 24 May 2017, available at: www.hrw.org/news/2017/05/24/hospitals-health-workers-under-attack; “At Least 11 Dead after Saudi-Led Coalition Bombs Yemen Hospital”, The Guardian, 15 August 2016, available at: www.theguardian.com/world/2016/aug/15/saudi-led-air-strike-yemen-hospital-kills-at-least-seven; MSF, “MSF President to UN Security Council: ‘Stop These Attacks’”, 3 May 2016, available at: www.msf.org/en/article/msf-president-un-security-council-stop-these-attacks.

4 Medical personnel: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Arts 24–25; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Arts 36–37; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Arts 15–16; Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), Rules 25–26, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul. Medical units: GC I, Arts 19–23; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Art. 18; Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Arts 8(e), 12–14. Medical transport: GC I, Arts 35–37; GC II, Arts 38–40; GC IV, Arts 21–22; AP I, Arts 8(g), 21–31.

5 Respect for and protection of the wounded and sick: GC I and II, Art. 12; GC IV, Art. 3; AP I, Arts 10–11; AP II, Arts 7–8; ICRC Customary Law Study, above note 4, Rule 110.

6 General protection of medical duties – prohibiting, under any circumstances, the punishment of any person for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom: AP I , Art. 16.1; AP II, Art. 10.1. See Sa'Da, Caroline Abu, Duroch, Françoise and Taithe, Bertrand, “Attacks on Medical Missions: Overview of a Polymorphous Reality: The Case of Médecins Sans Frontières”, International Review of the Red Cross, Vol. 95, No. 890, 2013, pp 327–329Google Scholar. See also Wynn-Pope, Phoebe, Zegenhagen, Yvette and Kurnadi, Fauve, “Legislating Against Humanitarian Principles: A Case Study on the Humanitarian Implications of Australian Counterterrorism Legislation”, International Review of the Red Cross, Vol. 97, Nos 897–898, 2016, p. 246Google Scholar, n. 71, citing US District Court for the Southern District of New York, United States v. Tarik Ibn Osman Shah, Rafiq Sabir and Mahmud Faruq Brent, 474 F. Supp. 2d 492, 2007, to show that doctors providing medical support to Al-Qaeda were prosecuted and convicted under US domestic criminal law.

7 See, e.g., UN Doc. S/RES/1368, 12 September 2001, available at: www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1368%20%282001%29; UN Doc. S/RES/1465, 13 February 2003, available at: www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1465%20%282003%29.

8 For a primer on the protection of medical services under IHL, see: www.msf.org/article/primer-protection-medical-services-under-international-humanitarian-law. See also the entries on “Medical Personnel” and “Medical Services” in The Practical Guide to Humanitarian Law online, available at: http://guide-humanitarian-law.org/content/article/3/medical-personnel/ and http://guide-humanitarian-law.org/content/article/3/medical-services/.

9 See, for example, Ellen Policinski, “Terrorism, Counter-Terrorism and IHL: Primer on a Recurring Conversation”, Humanitarian Law & Policy, 2 November 2016, available at: http://blogs.icrc.org/law-and-policy/2016/11/02/terrorism-counter-terrorism-ihl; Blank, Laurie, “Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self-Defense Justifications”, William Mitchell Law Review, Vol. 38, No. 5, 2011Google Scholar; Corn, Geoffrey S., “Self Defense Targeting: Conflict Classification or Willful Blindness?”, International Law Studies, Vol. 88, No. 1, 2012Google Scholar.

10 See UN Assistance Mission in Afghanistan, Afghanistan: Annual Report 2015: Protection of Civilians in Armed Conflict, February 2016, available at: https://unama.unmissions.org/sites/default/files/poc_annual_report_2015_final_14_feb_2016.pdf. See also “Israelis in Disguise Raid Hebron Hospital, Seizing Suspect”, BBC News, 12 November 2015, available at: http://www.bbc.com/news/world-middle-east-34801195; “Three Killed as Afghan Forces Raid Swedish-Run Clinic”, Al Jazeera, 19 February 2016, available at: www.aljazeera.com/news/2016/02/killed-afghan-forces-raid-swedish-run-clinic-160219044441899.html.

11 See, among others, the Safeguarding Health in Conflict Coalition website, available at: www.safeguardinghealth.org/mission; Amnesty International, Iraq: At Any Cost: The Civilian Catastrophe in West Mosul, Iraq, 11 July 2017, available at: www.amnesty.org/en/documents/mde14/6610/2017/en/; Human Rights Watch, All Feasible Precautions? Civilian Casualties in Anti-ISIS Coalition Airstrikes in Syria, 24 September 2017, available at: www.hrw.org/report/2017/09/24/all-feasible-precautions/civilian-casualties-anti-isis-coalition-airstrikes-syria; Samuel Oakford, “More than 1,800 Civilians Killed Overall in Defeat of ISIS at Raqqa, Say Monitors”, Airwars, 19 October 2017, available at: https://airwars.org/news-and-investigations/raqqa-capture/; Amnesty International, Syria: “I Won't Forget this Carnage”: Civilians Trapped in the Battle for Raqqa, 24 August 2017, available at: www.amnesty.org/en/documents/mde24/6945/2017/en/.

12 See AR 15–6 Investigation Report, above note 2, p. 75.

13 See Matthieu Aikins, “Doctors with Enemies: Did Afghan Forces Target the M.S.F. Hospital?”, New York Times, 17 May 2016, available at: www.nytimes.com/2016/05/22/magazine/doctors-with-enemies-did-afghan-forces-target-the-msf-hospital.html.

14 See “Resolute Support (NATO)”, GlobalSecurity.org, available at: www.globalsecurity.org/military/ops/resolute-support.htm; John F. Campbell, “Operation Freedom's Sentinel and Our Continued Security Investment in Afghanistan”, US Army, 1 October 2015, available at: www.army.mil/article/156517.

15 This confusion of legal frameworks can be seen in earlier statements by US officials. See, e.g., “Attorney General Eric Holder speaks at Northwestern University School of Law”, 5 March 2012, available at: www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law; “Remarks of John O. Brennan, ‘Strengthening Our Security by Adhering to Our Values and Laws’”, 16 September 2011, available at: https://obamawhitehouse.archives.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an; Harold Hongju Koh, “The Obama Administration and International Law”, 25 March 2010, available at: https://2009-2017.state.gov/s/l/releases/remarks/139119.htm.

16 These claims can be linked to the so-called “erosion” of IHL norms. For more on the debate on the weakening of the norms of law versus the weakening of the application of the law, see Adama Dieng, “We Must Stop the Erosion of International Humanitarian Law”, Justiceinfo.net, 15 December 2015, available at: www.justiceinfo.net/en/component/k2/25124-we-must-stop-the-erosion-for-international-humanitarian-law.html; Benjamin Wittes, “Notes on the Erosion of Norms of Armed Conflict”, Lawfare, 14 January 2015, available at: www.lawfareblog.com/notes-erosion-norms-armed-conflict. A contrario, on lack of respect for the norms, see Sassòli, Marco and Issar, Yvette, “Challenges to International Humanitarian Law”, in von Arnauld, Andreas, Matz-Lück, Nele and Odendahl, Kerstin (eds), 100 Years of Peace Through Law: Past and Future, Duncker & Humblot, Berlin, 2015Google Scholar; Helen Durham, “Atrocities in Conflict Mean We Need the Geneva Conventions More than Ever”, The Guardian, 5 April 2016, available at: www.theguardian.com/global-development/2016/apr/05/atrocities-in-conflict-mean-we-need-the-geneva-conventions-more-than-ever; “We Are Witnessing … Erosion of the Protection of Civilians”, Opening Remarks by Jonas Gahr Støre to the Second Annual Trygve Lie Symposium, Norwegian Ministry and International Peace Institute, 24 September 2009, available at: www.ipinst.org/2009/09/we-are-witnessing-erosion-of-the-protection-of-civilians.

17 See May Jeong, “Death from the Sky: Searching for Ground Truth in the Kunduz Hospital Bombing”, The Intercept, 28 April 2016, available at: https://theintercept.com/2016/04/28/searching-for-ground-truth-in-the-kunduz-hospital-bombing.

18 Ibid.

19 See box, “From Collateral Damage to Tragic Mistake: The United States’ Changing Narrative”, below.

20 MSF Internal Review, above note 2.

21 AR 15–6 Investigation Report, above note 2.

22 See Michiel Hofman and Sophie Delaunay, Afghanistan: A Return to Humanitarian Action, MSF USA, 11 March 2010, available at: www.msf.org/sites/msf.org/files/old-cms/fms/article-images/2010-00/return_to_humanitaian_action.pdf.

23 See MSF, “Afghanistan: MSF Opens a Surgical Hospital in Kunduz”, Kabul, 18 October 2011, available at: www.msf.org/afghanistan-msf-opens-surgical-hospital-kunduz.

24 Ibid.

25 See Jonathan Whittall, “The Operation Was Successful, but the Patient Died”, Huffington Post, 20 March 2014, available at: www.huffingtonpost.co.uk/jonathan-whittall/afghanistan-humanitarian-aid_b_4993451.html.

26 See MSF Internal Review, above note 2, p. 2.

27 For example, in 2014 alone more than 22,000 patients received care at the hospital and 4,241 surgeries were performed. Ibid., p. 3.

28 Ibid.

29 Ibid., p. 2. A June 2015 press release on the Kunduz Trauma Centre stated: “From 20 to 23 June, MSF's medical teams treated 77 patients directly wounded in the fighting; one-third of these patients were women and children. The majority of wounded patients admitted to the trauma centre came from Chardara district, around ten kilometres from Kunduz city, which has been engulfed by fighting since Saturday 20 June. The bulk of patients had sustained bomb blast or gunshot wounds, with MSF surgeons treating severe abdominal, limb and head injuries.” MSF, “Afghanistan: Scores of Wounded Treated after Heavy Fighting in Kunduz Province”, Press Release, Kabul, 25 June 2015, available at: www.msf.org/en/article/afghanistan-scores-wounded-treated-after-heavy-fighting-kunduz-province.

30 For more information on the background of this medical post, see MSF Press Release, above note 29.

31 See Stuart Gordon, Winning Hearts and Minds? Examining the Relationship between Aid and Security in Afghanistan's Helmand Province, Feinstein International Center, Tufts University, April 2011, available at: https://tinyurl.com/yd52wej6.

32 Gordon, Stuart, “The United Kingdom's Stabilisation Model and Afghanistan: The Impact on Humanitarian Actors”, Disasters, Vol. 34, No. 3, 2010, p. S370CrossRefGoogle ScholarPubMed.

33 See Jonathan Whittall, “Is Humanitarian Action Independent from Political Interests?”, Sur International Journal on Human Rights, April 2015, available at: http://sur.conectas.org/en/is-humanitarian-action-independent-political-interests/.

34 See Michael, Markus, Pavignani, Enrico and Hill, Peter S., “Too Good to Be True? An Assessment of Health System Progress in Afghanistan, 2002–2012”, Medicine, Conflict and Survival, Vol. 29, No. 4, 2013CrossRefGoogle ScholarPubMed, available at: www.ncbi.nlm.nih.gov/pubmed/24494581.

35 Ibid.

36 MSF, “Afghanistan: MSF Condemns Violent Armed Intrusion in Hospital in Kunduz”, Kabul, 3 July 2015, available at: www.msf.org/en/article/afghanistan-msf-condemns-violent-armed-intrusion-hospital-kunduz.

37 See UN Assistance Mission in Afghanistan, above note 10.

38 MSF Internal Review, above note 2, p. 4.

39 Trelles, Miguel et al. , “Averted Health Burden over 4 Years at Medecins Sans Frontieres (MSF) Trauma Centre in Kunduz, Afghanistan, Prior to Its Closure in 2015”, Surgery, Vol. 160, No. 5, 2016CrossRefGoogle Scholar, available at: www.surgjournal.com/article/S0039-6060%2816%2930199-4/pdf.

40 GC I–IV, common Art. 3(2); AP I, Arts 10–11; AP II, Arts 7–8; ICRC Customary Law Study, above note 4, Rule 110.

41 See Rubenstein, Leonard S., “Global Health and Security in the Age of Counterterrorism”, Journal of the Royal Society of Medicine, Vol. 108, No. 2, 2015, p. 50CrossRefGoogle ScholarPubMed: “The logic of employing health instrumentally to advance security has also led to practices that deny healthcare as a counterterrorism strategy and punish those who offer it.”

42 Human Rights Watch, Attacks on Health: Global Report, May 2015, available at: https://tinyurl.com/m3cq3tf; UN Office of the High Commissioner for Human Rights, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/28/69, 5 February 2015, p. 13.

43 See ICRC, Safeguarding the Provision of Health Care: Operational Practices and Relevant International Humanitarian Law concerning Armed Groups, Geneva, June 2015, pp. 30–35, available at: https://shop.icrc.org/les-groupes-armes-et-la-protection-des-soins-de-sante-2106.html.

44 MSF Internal Review, above note 2, p. 4.

45 Ibid.

46 Ibid.

47 Ibid., p. 5; and quoted initially in MSF, “Afghanistan: MSF Hospital Overwhelmed with Wounded after Heavy Fighting in Kunduz” Press Release, Kabul, 30 September 2015, available at www.msf.org/article/afghanistan-msf-hospital-overwhelmed-wounded-after-heavy-fighting-kunduz.

48 MSF Internal Review, above note 2, p. 5.

49 Ibid.

50 GC IV, Arts 16, 18–20; Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958Google Scholar (ICRC Commentary on GC IV), pp. 154 (particularly noting the phrase “outside their humanitarian duties” at Art. 19), 40–41; GC I, Arts 21, 22; GC IV, Art. 19; AP I, Art. 13; AP II, Art. 11; ICRC Customary Law Study, above note 4, Rules 28, 31. See also Dustin A. Lewis, Naz K. Modirzadeh and Gabriella Blum, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism, Harvard Law School Program on International Law and Armed Conflict, September 2015, available at: https://tinyurl.com/ycmqahv5.

51 GC I, Arts 3(1), 12(1); GC II, Arts 3(1), 12(1); Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Art. 3(1); GC IV, Arts 3(1), 16(1); AP I, Arts 10(1), 41(1), 85(3)(e); AP II, Arts 4(1), 7; ICRC Customary Law Study, above note 4, Rule 47.

52 For further discussion on this, see below. See US Department of Defense, Law of War Manual, December 2016 (US LoWM), para. 7.10.1.1, available at: www.hsdl.org/?abstract&did=797480. It is important to emphasize that military hospitals are not legitimate military objectives. Under IHL, military objectives are defined as “objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. ICRC Customary Law Study, above note 4, Rule 8. See also Gisel, Laurent, “Can the Incidental Killing of Military Doctors Never Be Excessive?”, International Review of the Red Cross, Vol. 95, No. 889, 2013CrossRefGoogle Scholar, available at: www.icrc.org/eng/assets/files/review/2013/irrc-889-gisel.pdf.

53 MSF Internal Review, above note 2, p. 7.

54 Ibid.

55 Ibid., p. 8.

56 Ibid., p. 9.

57 Ibid., p. 10.

58 “Kunduz Airstrike Reportedly Kills 19 at Doctors Without Borders Hospital”, NPR, 3 October 2015, available at: www.npr.org/sections/thetwo-way/2015/10/03/445435361/after-u-s-airstrike-3-dead-at-doctors-without-borders-hospital.

59 “US Strike on Afghan Kunduz Clinic ‘Killed 42’, MSF Says”, BBC News, 12 December 2015, available at: www.bbc.com/news/world-asia-35082350.

60 Ibid.

61 “Doctors Without Borders Airstrike: US Alters Story for Fourth Time in Four Days”, The Guardian, 6 October 2015, available at: www.theguardian.com/us-news/2015/oct/06/doctors-without-borders-airstrike-afghanistan-us-account-changes-again.

62 White House Office of the Press Secretary, “Readout of the President's Call with Doctors Without Borders International President Dr. Joanne Liu”, 7 October 2015, available at: https://obamawhitehouse.archives.gov/the-press-office/2015/10/07/readout-presidents-call-doctors-without-borders-international-president.

63 See MSF, MSF: Even War Has Rules, Geneva, 7 October 2015, available at: www.doctorswithoutborders.org/what-we-do/news-stories/research/msf-even-war-has-rules.

64 The IHFFC was established under Article 90 of AP I. When parties to a conflict are accused of violating IHL, experts from the Commission may investigate the allegations. Unlike a court, the IHFFC's remit is limited to establishing the facts: it does not issue verdicts. The Commission informs the relevant parties of the results of its investigation and makes recommendations for improving compliance with, and implementation of, IHL. For further information, see the IHFFC website at: www.ihffc.org.

65 Please refer to IHFFC News Archive, “International Humanitarian Fact-Finding Commission to Lead an Independent Forensic Investigation in Eastern Ukraine (Luhansk Province)”, 19 May 2017, available at: http://www.ihffc.org/index.asp?Language=EN&page=news&do=-1%27.

66 AP I, Arts 90(2)(c)(ii), 90(d). See also Ove Bring, “The Kunduz Hospital Attack: The Existence of a Fact-Finding Commission”, EJIL: Talk!, 15 October 2015, available at: www.ejiltalk.org/the-kunduz-hospital-attack-the-existence-of-a-fact-finding-commission/; IHFFC, “The IHFFC in a Few Words”, available at: www.ihffc.org/index.asp?page=aboutus_general.

67 See MSF, above note 63.

68 See IHFFC News Archive, “IHFFC Contacted by Médecins Sans Frontières”, 8 October 2015, available at: www.ihffc.org/index.asp?Language=EN&page=home&mode=newsarchive.

69 See US Department of Defense, “Department of Defense Press Briefing by General Campbell via Teleconference from Afghanistan”, 25 November 2015, available at: www.defense.gov/News/Transcripts/Transcript-View/Article/631359/department-of-defense-press-briefing-by-general-campbell-via-teleconference-fro.

70 AR 15–6 Investigation Report, above note 2. The report was made available to MSF as well as publicly available on 29 April 2016 but is no longer publicly accessible. See also MSF, “Kunduz Hospital Attack: Initial Reaction to Public Release of U.S. Military Investigative Report on the Attack on MSF Trauma Hospital”, New York, 29 April 2016, available at: www.msf.org/kunduz-initial-reaction-public-release-us-military-investigative-report-attack-msf-trauma-hospital; MSF, “Kunduz Hospital Attack: Some of MSF's Questions in Response to the U.S. Military Investigation into Their Attack on the Hospital”, New York, 29 April 2016, available at: www.msf.org/kunduz-some-msfs-questions-response-us-military-investigation-their-attack-hospital.

71 M. Jeong, above note 17.

72 Former CIA covert operations officer Joshua Katz appeared on a Fox News Channel segment entitled “Shepard Smith Reporting” on 5 November 2015, available at: http://video.foxnews.com/v/4598798043001/?#sp=show-clips.

73 See Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, July 2013, available at: www.nrc.no/globalassets/pdf/reports/study-of-the-impact-of-donor-counterterrorism-measures-on-principled-humanitarian-action.pdf. See also D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 50; Jessica S. Burniske and Naz K. Modirzadeh, Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action, Harvard Law School Program on International Law and Armed Conflict, Counterterrorism and Humanitarian Engagement Project, March 2017, available at: http://blogs.harvard.edu/pilac/files/2017/02/Pilot-Empirical-Survey-Study-and-Comment-2017.pdf; Naz K. Modirzadeh, Comment on Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action, Harvard Law School Program on International Law and Armed Conflict, Counterterrorism and Humanitarian Engagement Project, March 2017, available at: http://blogs.harvard.edu/pilac/files/2017/02/Pilot-Empirical-Survey-Study-and-Comment-2017.pdf; and the Harvard Law School Counterterrorism and Humanitarian Engagement Project website, available at: https://pilac.law.harvard.edu/counterterrorism-and-humanitarian-engagement-project/. And see Marine Buissonniere, Sarah Woznick, Leonard Rubenstein and Julie Hannah, The Criminalization of Healthcare, June 2018, available at: www1.essex.ac.uk/hrc/documents/54198-criminalization-of-healthcare-web.pdf.

74 See, e.g., Melzer, Nils, Targeted Killing in International Law, Oxford University Press, Oxford, 2008CrossRefGoogle Scholar.

75 Ibid. See discussion below. See also the Françoise Bouchet-Saulnier, “IHL and Counter-Terrorism: Tensions and Challenges for Medical Humanitarian Organizations”, speech given to the UN Security Council Counter-Terrorism Committee, New York, 2 June 2016, available at: http://msf-analysis.org/ihl-counter-terrorism-tensions-challenges-medical-humanitarian-organizations/.

76 This is true for instance, in the treaty provisions regarding the principles of proportionality and precautions in attack, and regarding the definition of military and civilian medical units. Additionally, under customary international law there is arguably no requirement of advance warning in order for a medical unit to lose its protected status.

77 A list of States that have ratified AP II is available at: https://tinyurl.com/y77xzvdf.

78 AP II, Art. 11(2).

79 GC I, Art. 21; GC IV, Art. 29; AP I, Art. 13; ICRC Customary Law Study, above note 4, Rules 27, 29.

80 But there is some agreement on what constitutes a “hostile act” and “acts harmful to the enemy”. Please see Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952Google Scholar, Art. 21, available at: https://ihl-databases.icrc.org/ihl/COM/365-570026?OpenDocument.

81 AP I, Art. 13(2).

82 This is an example given for the rules of IAC in both US LoWM, above note 52, para. 7.17.1.1; ICRC Commentary on GC IV, above note 50, p. 154.

83 AR 15–6 Investigation Report, above note 2, p. 80: “Prior to the engagement, the [redacted] reporting confirmed that as many as 65 Taliban had recently received care at the facility, and that unarmed Taliban were present at the time of the strike. [Redacted] confirmed that two senior Taliban officials had recently visited the hospital. No foreign persons of interest were observed at the trauma center”; pp 84–85: “Intelligence assessed that insurgent and potentially high value individuals were or had visited the MSF trauma center. There are no specific intelligence reports that confirm insurgents were using the MSF trauma center as an operational C2 node, weapons cache or base of operations”; p. 217: “our initial objective for the night of 29/30 September was the actual Kunduz city hospital (also known as the PRT) in Kunduz city … as it had been taken by the Taliban. The mission was approved”; p. 271: “The plan was for [redacted] … to clear a hospital in the south edge of the city. The hospital was reportedly held by the Taliban …. The hospital was one of the three that we knew about in addition to the MSF facility and an Afghan hospital on the west side of Kunduz city, in the same area as the MSF trauma hospital. With three hospitals and the language barrier, it was often difficult to determine which hospital was discussed in conversations”; p. 424: “It should be noted that the initial [operational plan] approved at the [Resolute Support] level on 29 sept had the Kunduz hospital as the clear [objective].” Nevertheless, the precise description of the MSF Trauma Centre was transmitted by the force on the ground to locate and target a Taliban command and control centre; pp. 241–242: “I had them describe the compound[, and] [redacted] said that it was a large T shaped structure with several smaller structures around it. I advised the [ground force commander] and he advised the [redacted] the description of the TBC2 compound and the [redacted] confirmed this was the structure. [Redacted] also advised that there was an arching gate on the compound which was also relayed to our [redacted] who confirmed this to be the TB C2 node.”

84 GC I, Art. 21; GC II, Art. 34 for hospital ships; GC IV, Art. 19; AP I, Art. 13(1); AP II, Art. 11(2).

85 ICRC Customary Law Study, above note 4, Rule 28. This rule, related to protection of medical units, does not explicitly mention (save in the Commentaries) the warning requirement. The requirement of warning is included in Rule 20, regarding attacks which may affect the civilian population.

86 US LoWM, above note 52, para. 7.17.1.2.

87 Corn, Geoffrey S., “Self-Defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello”, International Law Studies, Vol. 88, No. 1, 2012Google Scholar, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract-id=1947838; Moussa, Jasmine, “Can Jus ad Bellum Override Jus in Bello? Reaffirming the Separation of the Two Bodies of Law”, International Review of the Red Cross, Vol. 90, No. 872, 2008CrossRefGoogle Scholar, available at: www.icrc.org/eng/assets/files/other/irrc-872-moussa.pdf.

88 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016Google Scholar (2016 Commentary on GC I), para. 1848 (particularly n. 22).

89 See MSF, “Yemen: Saudi-Led Airstrike on Abs Hospital Cannot Be Justified as ‘Unintentional Error’”, 9 December 2016, available at: www.msf.org/en/article/yemen-saudi-led-airstrike-abs-hospital-cannot-be-justified-unintentional-error; MSF, “Yemen: MSF Releases Detailed Documentation of Attacks on Two Medical Facilities Ahead of UNSC Closed Session on Protection of Medical Mission”, 27 September 2016, available at: www.msf.org/en/article/yemen-msf-releases-detailed-documentation-attacks-two-medical-facilities-ahead-un-security.

90 See for example Saudi Press Agency, “Official Spokesman of Joint Incidents Assessment Team (JIAT) Issues Statement”, Riyadh, 6 December 2016, available at: www.spa.gov.sa/viewstory.php?lang=en&newsid=1567351. The language used by the Joint Incident Assessment Team, “Houthi armed leaders” and “targeted the location of that gathering”, suggests that there was a subjective belief that there were high-value individuals involved in this incident.

91 This refers to the aerial bombardment of Haydan Hospital in Saada governorate. See Saudi Press Agency, “Joint Incidents Assessment Team (JIAT) on Yemen Responds to Claims on Coalition Forces’ Violations in Decisive Storm Operations”, Riyadh, 5 August 2016, available at: www.spa.gov.sa/viewstory.php?lang=en&newsid=1524799.

92 In this case, MSF was able to identify the presence of a military objective located next to the GPS coordinate provided for the hospital, and was able to request that it be moved away.

93 This argument is central in the attack on the Kunduz Trauma Centre. It was also presented by the Saudi-led coalition regarding the attack on the Abs Hospital in Yemen on 6 December 2016: see Saudi Press Agency, above note 90; Saudi Press Agency, “Joint Incidents Assessment Team (JIAT) Response to Doctors Without Borders, Amnesty International”, Riyadh, 6 December 2016, available at: www.saudiembassy.net/news/joint-incidents-assessment-team-jiat-response-doctors-without-borders-amnesty-international. Regarding the attack on the Haydan Hospital in Saada governorate in Yemen on 26 January 2015, see Saudi Press Agency, above note 91.

94 The words “collateral damage”, “incidental damage” and “unintended damage” are also frequently used.

95 But see L. Gisel, above note 52.

96 US LoWM, above note 52, para. 7.8.2.1: “The incidental killing or wounding of such personnel, due to their presence among or in proximity to combatant elements actually engaged by fire directed at the latter, gives no just cause for complaint. Because medical and religious personnel are deemed to have accepted the risk of death or further injury due to proximity to military operations, they need not be considered as incidental harm in assessing proportionality in conducting attacks”; para. 7.10.1.1: “The incidental harm to medical units or facilities, due to their presence among or in proximity to combatant elements actually engaged, by fire directed at the latter, gives no just cause for complaint.”; para. 7.12.2.5 (acceptance of the risk from proximity to combat operations).

97 Ibid., paras 7.10.1.1, 7.8.2.1, 4.10.1.

98 Ibid., paras 5.12.3.2, 7.8.2.1, 7.10.1.1, 4.10.1, 17.15.1.1.

99 This view is echoed by the Saudi-led coalition in a statement by the Joint Incidents Assessment Team regarding the bombing by coalition forces in Taiz province, Yemen, on 2 December 2015: “It is necessary to keep the [MSF] mobile clinic away from military targets so as to not be subjected to any incidental effects.” See Saudi Press Agency, above note 91.

100 See, for example, UN Panel of Experts on Yemen, Final Report, 27 January 2017, notably para. 128 and Appendix C to Annex 49 on the attack on Abs Hospital in Yemen, available at: www.un.org/ga/search/view_doc.asp?symbol=S/2017/81; Saudi Press Agency, “JIAT Response to Doctors Without Borders”, above note 93; Saudi Press Agency, above note 90.

101 Amongst these are Oona Hathaway, “The Law of War Manual's Threat to the Principle of Proportionality”, 23 June 2016, available at: www.justsecurity.org/31631/lowm-threat-principle-proportionality; Geoffrey S. Corn and Andrew Culliver, “Wounded Combatants, Military Medical Personnel, and the Dilemma of Collateral Risk”, 13 December 2016, available at: https://ssrn.com/abstract=2884854; Jens D. Ohlin, “Was the Kunduz Hospital Attack a War Crime?”, 1 May 2016, available at: http://opiniojuris.org/2016/05/01/was-the-kunduz-hospital-attack-a-war-crime/.

102 See GC I, Arts 35–38; GC II, Arts 41–45; GC IV, Art. 18; AP I, Art 18; AP II, Art 12; AP I, Annex I, Arts 1–14. In NIAC the “competent authority” authorizing the use of the protective emblem may not allow its use by medical facilities in territories under the control of non-State opposition groups. See also Gérald C. Cauderay, “Les moyens d'identification des transports sanitaires protégés”, International Review of the Red Cross, Vol. 76, No. 807, 1994, available at: https://doi.org/10.1017/S0035336100009734.

103 AP I, Annex I, Art 1.4.

104 Ibid.

105 For more information regarding MSF's recent practice of sharing GPS identification, see Alejandro Pozo Marín and Françoise Bouchet-Saulnier, The Moral Relativism of Subordinating Civilians to Terrorists, MSF Centre for Applied Reflection on Humanitarian Practice, June 2017, p. 15, available at https://arhp.msf.es/attacks-against-medical-mission/moral-relativism-subordinating-civilians-terrorists. See also Michiel Hofman, “The UN Security Council Must Do More to Protect Syrian Civilians”, The Guardian, 21 February 2016, available at: www.theguardian.com/commentisfree/2016/feb/21/medecins-sans-frontieres-plea-for-civilian-bombings-syria-stop. For more information regarding the general practice of sharing GPS identification, see Global Shelter Cluster, Guidance for Submitting Humanitarian Location Information in Syria and Iraq, rev. 21 January, 2015, available at: www.sheltercluster.org/sites/default/files/docs/deconfliction_of_movements_in_iraq_guide_for_ingos_ocha.pdf; UN Office for the Coordination of Humanitarian Affairs (OCHA), Deconfliction Mechanisms of Humanitarian Organisations Operating in Yemen (Mission Movements and Static Locations), last update 29 March 2018, available at: https://reliefweb.int/report/yemen/deconfliction-mechanism-humanitarian-organisations-operating-yemen-mission-movements; OCHA, No Strike List Guidelines, 4 February 2018, available at: https://reliefweb.int/report/yemen/no-strike-list-guidelines.

106 The Afghan law regulating the use of the protective emblem was adopted on 8 October 2016, one year after the attack on Kunduz. It served to fill the legal gap regarding the designation of a domestic authority competent to authorize usage of the emblems. The law delegates this power to the Afghan Red Crescent Society. ARCS Regulative Law 1395/7/17 on Regulation Affairs of the Red Crescent Society, 8 October 2016, Part 2. See, generally, ICRC Customary Law Study, above note 4, Rules 1–10; ICRC, Study on the Use of the Emblems: Operational and Commercial and Other Non-Operational Issues, Geneva, 2011Google Scholar, available at: www.icrc.org/eng/assets/files/publications/icrc-001-4057.pdf; D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 50, pp. 37–66.

107 AP I, Appendix I, Art. 1.2: “These rules do not in and of themselves establish the right to protection. This right is governed by the relevant articles in the Conventions and the Protocol.” See also GC I, Chap. 7, especially Arts 38, 42; 2016 Commentary on GC I, above note 88, para. 2540; Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987Google Scholar, paras 732–733.

108 In a meeting between MSF and the Royal Court of the Kingdom of Saudi Arabia on 30 August 2016, this request was made directly to MSF. The minutes of this meeting state: “The Coalition would like that GPS are send [sic] with different points delimitating the perimeter to be protected.”

109 See US Department of Defense, above note 69.

110 Ibid.

111 Ibid.

112 Ibid.

113 Ibid.

114 Ibid.

115 Ibid.

116 Ibid.

117 AR 15–6 Investigation Report, above note 2, p 72: “Throughout the investigation, it became clear that many commands have difficulty articulating an understanding of the Tactical Guidance, [Resolute Support] and [Operation Freedom Sentinel] ROE and the basic fundamentals regarding the use of force.”

118 See US Central Command, “April 29: CENTCOM Releases Investigation into Airstrike on Doctors Without Borders Trauma Center”, 29 April 2016, available at: http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/904574/april-29-centcom-releases-investigation-into-airstrike-on-doctors-without-borde/; US Department of Defense, “Department of Defense Press Briefing by Army General Joseph Votel”, 29 April 2016, available at: https://www.defense.gov/News/Transcripts/Transcript-View/Article/746686/department-of-defense-press-briefing-by-army-general-joseph-votel-commander-us.

119 AR 15-6 Investigation Report, above note 2, pp. 45, 270–271, 423–424, 429, 622.

120 Ibid., p. 622, point 21.

121 Ibid., p. 596: When asked about the purpose of the AC-130 fire, “he stated that the purpose was the ‘overall self-defense of our perimeter’ and that everything west of [redacted] was full of insurgents.”

122 Ibid., p. 254.

123 Ibid., p. 256.

124 Ibid., pp. 32, 77–79.

125 Ibid., pp. 52, 81–82, 424, 620.

126 Ibid., p. 89.

127 Ibid., p. 75.

128 See, for example, G. S. Corn, above note 9, p. 58.

129 US LoWM, above note 52, para. 5.8.3.3.

130 AR 15-6 Investigation Report, above note 2, p. 86: “Specific finding. [Redacted] willfully violated the ROE and tactical guidance by improperly authorizing offensive operations. The GFC [ground force commander] understood he had the operational authority to employ fire in self-defense of the [pre-deployment site survey] element against a hostile act under Resolute Support ROE and abused that authority to engage the [ground assault force] target objective with pre-assault fires”; p. 92: “The aircrew was told by the GFC that the building was under Taliban control. They were provided a self-defense authority by the GFC, which was inconsistent with their own observations. They were told to soften the target, suggesting pre-assault fires, but provided a self-defense authority. They were told to strike without any positive identification of a threat.”

131 Ibid., pp. 59–61.

132 Ibid., p. 29.

133 Ibid., pp. 29–30. In response to concerns about the legality of the requested fire, the aircraft commander requested confirmation of the applicable Rules of Engagement; the response given was “collective self-defense ROE”.

134 Ibid., p. 61.

135 Ibid., p. 596. When asked about the purpose of the AC-130 fire, he stated that the purpose was the “overall self-defense of our perimeter”.

136 Ibid., p. 93: “The use of military force failed to comply with the plain language of the applicable NATO/USFOR-A tactical guidance, was a departure from the [Resolute Support commander]’s intent, and did not comply with either the governing NATO or [Operation Freedom Sentinel] ROE or [Resolute Support] SOP. [Ground force commander] and aircrew failed to comply with [the law of armed conflict]” (citing AP I, Art. 57(2)(a)(ii)).

137 Ibid., p. 374.

138 Ibid., p. 72.

139 Ibid., pp. 93, 84.

140 Islamic Republic of Afghanistan, Presidential Decree 2774, 10 December 2017, approving the “Host Country Agreement (HCA) signed between Médecins Sans Frontières (MSF) and the Government of the Islamic Republic of Afghanistan”, of which the mentioned Annex refers to the “Memorandum of Understanding between Islamic Republic of Afghanistan and Medecins Sans Frontières for Protection of MSF Operation in Afghanistan” signed on 17 July 2017; US Secretary of Defense, “Principles related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations during Armed Conflict: Memorandum for Secretaries of the Military Departments”, 3 October 2016, available at: www.hsdl.org/?abstract&did=796930.

141 UNSC Res. 2286, 3 May 2016. See also UN, “Security Council Adopts Resolution 2286 (2016), Strongly Condemning Attacks Against Medical Facilities, Personnel in Conflict Situations”, 3 May 2016, available at: www.un.org/press/en/2016/sc12347.doc.htm.

142 Letter from the Secretary-General addressed to the President of the Security Council, “Recommendations of the Secretary-General, Submitted Pursuant to Paragraph 13 of Security Council Resolution 2286”, UN Doc. S/2016/722, 18 August 2016, available at: www.un.org/ga/search/view_doc.asp?symbol=S/2016/722.

143 Ibid., paras 8–9, 19–23.

144 Ibid., paras 6, 28–31.

145 For example, the Joint Incidents Assessment Team responses regarding its investigations of Saudi coalition forces’ violations in Yemen: see Saudi Press Agency, above notes 90, 91 and 93.

146 For example, both the Russian and Syrian governments continued denying allegations of having intentionally targeted medical facilities in Syria in 2015–16, without ever engaging in official reviews of such attacks and sharing their conclusions. Despite the UN Independent International Commission's recent findings that “Syrian and/or Russian forces continued to target hospitals and medical personnel”, neither the Russian nor Syrian governments have acknowledged responsibility or error. See Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/36/55, 6 September 2017, Summary and p. 13 available at: www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/Documentation.aspx; “Russia Has Denied Carrying Out Air Strikes that Killed Dozens of Civilians in Syria”, Time, 28 November 2017, available at: http://time.com/5038762/russia-denies-airstrike-syria/.