Rights Groups: U.S. Is Whitewashing the Kunduz Massacre

Human rights advocates denounced the U.S. military’s decision not to file criminal charges against troops responsible for a disastrous airstrike on a Doctor Without Borders hospital last year, calling it an outrage that could inflict lasting damage to America’s credibility and raise questions about Washington’s commitment to humanitarian law.

U.S. Defense Department officials said Thursday that more than 12 service members involved in the airstrike in Kunduz, Afghanistan, which left 42 people dead and dozens more wounded, will face various disciplinary measures for their roles in the raid, including administrative penalties that will effectively end some of their military careers. The officer who led a U.S. commando unit on the ground is among those being reprimanded, officials told Foreign Policy.

But none of the troops are due to face a court martial for their actions, even though Doctors Without Borders and other rights groups said their negligence led to the wrong target being bombed from the air by an American gunship — a mistake, they say, that constitutes a potential war crime.

“It’s incredibly disappointing and discouraging,” Andrea Prasow of Human Rights Watch told FP. “We have come up with our own analysis of the case, and we think there should be a criminal investigation.”

The outcome of the Pentagon’s inquiry into the air raid showed that when it comes to grave and complicated incidents in battle that are not easily pinned on one rogue soldier, the American military “has a vested interest in protecting its own,” Prasow said.

In the Oct. 3 strike, an AC-130 gunship was scrambled from the sprawling Bagram Air Base at the request of a team of U.S. special operations forces in the northern city of Kunduz, which had been overrun by Taliban militants. The aircraft, equipped with heavy machine guns on the left side of its fuselage, pounded the hospital intermittently for an hour, killing 42 people, including 14 medical staff. Doctors Without Borders, the Geneva-based medical charity that also goes by its French name, Médecins Sans Frontières, had provided its coordinates to the U.S. military and, once the attack started, placed desperate phone calls to the Pentagon and U.S. officers in Afghanistan to halt the raid.

The president of Doctors Without Borders, Joanne Liu, has demanded an international inquiry of the strike. In a speech days after the incident, Liu said the strike “was not just an attack on our hospital — it was an attack on the Geneva Conventions.”

Sandra Murillo, a spokeswoman for the group, said Thursday that Doctors Without Borders would not comment on the disciplinary actions until the Pentagon officially conveyed its decision to the organization or made a public announcement.

The Defense Department, for its part, has insisted that the U.S. military goes to great lengths to avoid causing civilian casualties and rejected allegations from Doctors Without Borders that the strike represents a possible war crime.

“No nation does more than the United States to avoid civilian casualties, but in this case we failed to live up to that standard,” U.S. Central Command spokesman Col. Patrick Ryder said Thursday. “We have learned from this terrible incident and will take the steps necessary to prevent a recurrence in the future.”

But legal experts and rights activists say that recklessness can be prosecuted under the law of armed conflict through a well-established principle dating back decades. That means U.S. personnel would, in theory, be culpable even though no critic is arguing that they were trying intentionally to attack the hospital.

“Not all war crimes are odious or inhuman acts,” wrote Gary Solis, a retired Marine who teaches at Georgetown University’s law school, in his 2010 textbook, The Law of Armed Conflict. “Recklessness, as well as intent, is a sufficient prosecutorial basis.”

In a January letter to President Barack Obama, Physicians for Human Rights called on the U.S. government to release promptly the military’s internal probe and launch a formal inquiry into possible criminal liability of the troops and commanders involved in the air raid in Kunduz.

“On the face of it, there is every indication that these attacks were the result of gross negligence and possibly criminal negligence,” Susannah Sirkin, a senior advisor for the New York-based group, told FP. “So it would be of concern if there is only an administrative response to this and not an inquiry that would lead to court martial.”

The disciplinary moves against the U.S. troops were telegraphed last November when the military command in Kabul announced that a number of service members had been suspended from their duties. On Nov. 25, Gen. John Campbell, then-commander of American-led forces in Afghanistan, released a portion of the 3,000-page report into the incident that was submitted to U.S. Central Command and Special Operations Command, saying that the strike was “a tragic, but avoidable, accident caused primarily by human error.”

For some troops implicated in the bungled airstrike, Campbell has recommended that Special Operations Command decide on the proper disciplinary action to be taken, officials said.

Doctors Without Borders has repeatedly demanded that the U.S. military appoint an international, independent panel to investigate the Oct. 3 incident. But, instead, the Pentagon named Maj. Gen. William Hickman, the deputy commanding general of U.S. Army Central based in Kuwait, to conduct the probe. The military’s rationale was that Hickman could conduct an unbiased review because he was not involved in operations in Afghanistan.

U.S. officers have said members of the crew of the AC-130 gunship failed to follow the military’s own rules of engagement in launching the attack. The personnel aboard the warplane were among those suspended from their duties. Members of the U.S. special operations team on the ground in Kunduz were also a focus of the investigation. After several days of combat with Taliban fighters in the city, the team had taken up positions several hundred meters away from the hospital, according to the military’s probe.

At the time of the strike, the commandos did not have the building within their line of sight. That lack of visibility led the gunship to strike the wrong building, and the commandos on the ground didn’t know enough to call them off.

Military investigators found that the mistakes began even before the AC-130 left the ground. The gunship crew rushed to get in the air after they were given a report of U.S. troops in a clash with the Taliban and launched without being briefed on the “no-strike list,” which would have given them the coordinates of the hospital. Adding to that were technical failures, so the plane’s crew relied almost entirely on a physical description of the building, as opposed to grid coordinates, which led them to attack the wrong building.

Personnel at Bagram Air Base also failed that night, not realizing that the grid location the aircrew transmitted back before opening fire showed they were about to fire on the hospital, which was marked on the no-strike list. The soldiers continued to fire on the hospital even when the aircraft’s grid location system came back on and indicated that they were firing on the wrong building. The aircrew relied instead on the verbal description relayed by the American forces on the ground.

Humanitarian and rights groups say that medical clinics and health professionals face a growing danger given a pattern of attacks — both intentional and indiscriminate — in Afghanistan and elsewhere. Given that backdrop, the United States has a particular duty to be seen as living up to humanitarian law and holding its troops accountable for the Kunduz strike, rights advocates said.

In Syria’s civil war, regime forces have invaded and attacked hospitals, blocked medical transport, and detained and tortured doctors for treating wounded civilians. In 2015 alone, there were 122 attacks on medical facilities, with the vast majority carried out by Syrian government troops or their allies, according to a recent report by Physicians for Human Rights.

In the wake of Kunduz and other airstrikes on Doctor Without Borders hospitals across Syria and in Yemen, some aid workers have started to rethink the policy of providing their locations to military forces. But it might not always make a difference. In February, one Doctor Without Borders-supported hospital in Syria refused to share its coordinates with government authorities but was hit by four missiles fired from a Syrian or Russian jet anyway. At least 25 people — including nine staff members and one child — were killed. The strike underscored the violence being visited on medical workers in conflict zones around the world, with attacks against hospitals and clinics from Afghanistan to South Sudan becoming increasingly common, killing hundreds and shutting down numerous medical facilities in places that need them the most.

Photo credit: STR/AFP/Getty Images