Afghanistan: Kunduz and the Deceit of ‘Collateral Damage’

by Sonali Huria and Pupul Dutta Prasad

On November 5, 2015, the international medical humanitarian organisation, Médecins Sans Frontières (MSF) or Doctors without Borders, released its Preliminary Internal Review1 regarding the devastating aerial attack by the American forces in the early hours of October 3, 2015, on its hospital, the Kunduz Trauma Centre (KTC), in the Afghan city of Kunduz. The attack led to the killing of nearly 30 persons, including patients and MSF doctors and staff, severe injuries to and maiming of several others, and the near-annihilation of the Trauma Centre, believed to be the only medical facility of its kind in all of northeastern Afghanistan. The MSF Internal Review is a damning indictment of what appears to have been a calculated attack by the US forces against the hospital, and lays bare the outlandish American claim of the attack being an unintended ‘mistake’.2

The MSF’s activities in Kunduz, according to the Review, became operational after detailed ‘agreements with all parties to the conflict’ had been concluded, including agreements with ‘the health authorities of the Government of Afghanistan’ and ‘health authorities affiliated with armed opposition groups’, to enable the Trauma Centre function without any threat of attack and to ensure that all parties would ‘respect the neutrality’ of the MSF’s medical operations.

These agreements, according to the MSF, contained specific reference to pertinent provisions and principles of International Humanitarian Law (IHL) including “guaranteeing the right to treat all wounded and sick without discrimination, protection of patients and staff [and] guaranteeing [to them] non-harassment while under medical care, immunity from prosecution for MSF staff for performing their medical duties, respect for medical and patient confidentiality, as well as respect of a ‘no-weapon’ policy within the hospital compound†.3

In the days leading up to the bombing of the hospital by a United States Air Force AC-130U gunship, Kunduz city had witnessed increased fighting, with the ‘Taliban seizing control of the provincial capital for several days’.4 Given the heightened violence in Kunduz, the MSF reiterated the location of the KTC to the US Department of Defence, Afghan Ministry of Interior and Defence, and US Army in Kabul, and as recognised under Geneva Law, also placed its flags on the roof of the Trauma Centre for easy identification and protection from potential attack.

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Despite this, on the intervening night of and October 2 and 3, American forces targeted the hospital building through precise and sustained air strikes, lasting more than an hour, while other buildings in the KTC compound remained relatively unscathed, thus reinforcing the belief that this was a deliberate and premeditated attack. The MSF Review also reports how those fleeing the burning hospital building to take refuge elsewhere in the hospital compound, were shot relentlessly by the circling AC-130 gunship.

International Humanitarian Law contains extensive provisions concerning care for the wounded and sick; protection of medical establishments, units and personnel as well as neutralised zones; and unhindered movement of essential medical goods and supplies. Together, these provisions serve to place important limits on warfare and on the destruction of life and property that may result during armed conflict.

In attacking and decimating the MSF medical facility, the US has violated and demonstrated for the umpteenth time its unashamed contempt for the rules of war. The Geneva Conventions and their Optional Protocols proscribe the deliberate targeting of hospitals and/or other medical facilities and units, whether civilian or military, which treat those in need of medical assistance, including civilians as well as combatants, who have been ‘placed hors de combat by sickness, wounds, detention, or any other cause’.

The Kunduz Trauma Centre had been treating both civilians and wounded Taliban combatants since the beginning of its operations in the city, in accord with the principle of ‘neutrality’ in the provision of medical services during conflict. Following increased fighting between Taliban and government forces in September this year, the number of wounded Taliban combatants entering the Trauma Centre had swelled, which the MSF suspects was the primary reason for the debilitating and criminal attack against its hospital by the American forces.5

Not only is the US guilty of violating specific provisions of the Geneva Conventions, but is also culpable for grave breach of the fundamental tenets of jus in bello, including the principle of distinction between civilians and combatants, prohibition of attacks against those hors de combat, prohibition on the infliction of unnecessary suffering, principle of proportionality and necessity, and, most importantly, the principle of humanity. In the face of glaring facts and growing evidence, it is hard to view the Kunduz attack as anything but a ‘war crime’.

Predictably, soon after news of the Kunduz aerial attack came to light, those in the US establishment as well as the American media6 were quick to dismiss the attack as ‘a mistake’, an inadvertent ‘collateral damage’ in an otherwise ‘benevolent war’. The term ‘collateral damage’, first used by the US military during the Persian Gulf War in the early 1990s to refer to ‘accidental’ civilian deaths caused by the Allied forces’ bombings,7 has become firmly entrenched in military lexicon. It is now used as an over-arching banner to cloak not only ‘unintentional’ deaths of civilian populations, but also premeditated attacks against persons and establishments explicitly protected under IHL. The US, as evidence suggests, has a long history of inflicting such intentional ‘collateral damage’ in its various wars and skirmishes across the globe.

Following the Kunduz attack last month, the Pentagon spokesman, Navy Capt. Jeff Davis, is reported to have said: “No other nation in the history of warfare has gone to the lengths we do to avoid civilian casualties. And when we make a mistake, we will not only own up to it, we will also scrutinize all of the facts to learn from them so that it never happens again.†8 Nothing could be further from the truth.

It is instructive to recall how the US, the pre-eminent military power in the post-Cold War world, has got away with an excessive number of civilian casualties inflicted in almost all of its bombing operations and air strikes. Leaving aside the question of legality and legitimacy of US/NATO military actions in the former Yugoslavia, Iraq, Afghanistan, Pakistan, and Yemen, the fact remains that each of these interventions led to glaring violations of IHL for which hardly any accountability was established and enforced. Instead, war crimes are committed frequently, and accountability is always shirked by blatantly misusing the tag of ‘collateral damage’.

All states engaged in armed conflict must comply with the rules of IHL. In fact, it has been argued that even non-state actors have human rights obligations in conflict situations.9 Considering the increasing threat posed to non-combatants during hostilities, in which terrorist groups, armed rebels and insurgents, private military companies are involved, the case for strengthening and expanding the legal framework for the protection of victims in armed conflicts is certainly strong. However, that does not take away from the fact that non-compliance of IHL by state parties themselves remains one of the biggest challenges to the rights of persons who are not or are no longer participating in the hostilities. The US record in this regard inspires little confidence. Its highly subjective application of the term ‘collateral damage’ has made a mockery of legal obligations under IHL.

During NATO’s military operation in Serbia in 1999, the bulk of bombs and missiles struck Serbia proper and its infrastructure, rather than the Serbian military forces, resulting in a large number of civilian casualties. Henry Shue10 has convincingly made the case that NATO’s bombing of Serbia flagrantly violated the principle of discrimination by intentionally causing civilian distress as a means of forcing Milosevic into submission. Deliberate targeting of the civilian infrastructure as a legitimate military end, showed that ‘collateral damage’ was part of the plan. Despite well-documented evidence, the International Criminal Tribunal for the former Yugoslavia did not commence any investigation into allegations of serious violations of international humanitarian law during the NATO military campaign.11 Treating war crimes committed by the victors differently from those of the losers strikes at the very root of the universality of IHL.

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Responding to the US bombing of a civilian warehouse in Afghanistan in late 2001, Donald Rumsfeld, the then US Secretary of Defence stated: “We’re not running out of targets, Afghanistan is.†12 While the US reaction may not have been so openly callous about incidents of so-called collateral damage at other times, its military record certainly raises serious doubts about its adherence to the fundamental principle for the conduct of war—respect for the lives and property of non-combatants.

During the Afghan conflict, the US military planes bombed wedding parties in July and November 2008, leaving more than 100 dead. The US military expressed ‘regret’ for the loss of civilian life. However, in both cases, the Pentagon maintained that it was not at fault and that the intended targets had been terrorists’ bases in the area.13

US airstrikes on the village of Azizabad in Shindand District of Afghanistan’s Herat Province was one of the deadliest attacks on civilians by US forces since the invasion of 2001. The attack came on the night of August 21-22, 2008 when villagers had gathered for a memorial service for a tribal leader, reportedly anti-Taliban, killed the previous year. According to several investigations and the on-the-spot reporting of New York Times journalist Carlotta Gall, at least 90 civilians, including perhaps 15 women and up to 60 children, died that night. The White House Spokesman, Tony Fratto, said that as per officials at the Department of Defence, it was a ‘good strike’ though the loss of lives of innocent civilians in such attacks was a matter of regret.14 He derisively added that Coalition Forces take precautions to prevent the loss of civilians, unlike the Taliban and militants who target civilians and place civilians in harm’s way.

Just to dwell a little on the politics of the use of the term ‘collateral damage’, the National Commission on Terrorist Attacks Upon the United States, also called the 9/11 Commission,15 has said that “it [the enemy] makes no distinction between military and civilian targets. Collateral damage is not in its lexicon.†In the face of substantial evidence of post-9/11 war crimes committed by the US, and couched as ‘collateral damage’, such a formulation can only be aimed at conferring a high moral ground on the US, which is belied by the facts of many cases.

The US military’s investigation into the deadly and controversial airstrikes in Azizabad was described by Human Rights Watch as ‘deeply flawed, which called into question the Defence Department’s commitment to avoid civilian casualties’.16 It further cautioned that unless the Obama Administration urgently addressed the US military’s airstrike practices in Afghanistan, more unnecessary civilian deaths and injuries would inevitably result.

Circumstances bear little evidence of the US practices, in Afghanistan or elsewhere, having undergone any drastic change. On the contrary, permissiveness towards collateral strikes only seems to have increased. When reports of civilian casualties from US and coalition attacks in Syria and Iraq started coming in, the Obama administration first insisted that the reports were inaccurate.17 In 2013, following sharp international criticism over civilian deaths caused by the American drone missions against war-on-terror targets, especially in Pakistan, Afghanistan, and Yemen, Barack Obama announced new restrictive rules of engagement on air strikes, especially from drones, in which the military had to have a ‘near certainty’ of no potential civilian casualties in order to carry out a strike. However, more recently, the White House has acknowledged for the first time that the new rules meant to temper the civilian death toll from unmanned US drones will not apply to US military operations in Syria and Iraq.18

Military rules of engagement of the US so brazenly trumping its IHL obligations can only be taken as a portent of things to come.

The so-called ‘collateral damage’ has been presented as a fait accompli by the US, which is problematic at two levels. First, the phrase ‘collateral damage’ has masked the true nature and character of incidents for which it has been used. Second, the use of the phrase has been appropriated solely by the big powers as a rhetorical weapon. This has engendered an absence of scrutiny and accountability, and the double-standards have been so routinised as to appear to be acceptable.

The Kunduz attack is of a piece with many previous examples of intentional collateral damage by the world’s superpower. It is unlikely to be the last unless the culture of impunity built on the deceit of collateral damage is successfully resisted and challenged. Mere murmurs of protest and little action on the part of the international community will only serve to further dilute international accountability mechanisms, which already stand on tremulous ground.

Footnotes

1. Public release of initial MSF internal review, November 5, 2015. Available at https://www.doctorswithoutborders.org/sites/usa/files/msf_kunduz_review.pdf

2. “US General: Afghan MSF hospital strike was a mistake†, Al Jazeera, October 7, 2015. Available at http://www.aljazeera.com/news/2015/10/clashes-resume-embattled-afghan-city-kunduz-151006130234945.html

3. MSF internal review, November 5, 2015, op.cit.

4. “Air strike kills MSF medical staff in Afghanistan“, Al Jazeera. October 3, 2015. Available at http://www.aljazeera.com/news/2015/10/aid-workers-killed-air-strike-afghan-hospital-kunduz-151003043052500.html

5. Vidya Krishnan, “MSF’s Kunduz hospital attacked for treating Taliban patients, says report“, The Hindu, November 6, 2015.

6. Glenn Greenwald, “US Journalists Who Instantly Exonerated Their Government of the Kunduz Hospital Attack, Declaring it an ‘Accident’“, The Intercept, November 6, 2015. Available at https://theintercept.com/2015/11/06/u-s-journalists-who-instantly-exonerated-their-government-of-the-kunduz-hospital-attack-declaring-it-an-accident/

7. “What is collateral damage?“, Black’s Law Dictionary, Second Edition. Available at http://thelawdictionary.org/collateral-damage/

8. Ken Dilanian and Lynne O’Donnell, “US Troops Didn’t Have Eyes On Afghan Hospital Before Attack“, The Huffington Post, November 11, 2015. Available at http://www.huffingtonpost.com/entry/us-troops-didnt- have-eyes-on-afghan-hospital-before-attack_5643cfd9e4b08 cda34876d 83?section=india&adsS iteOverride=in

9. Andrew Clapham, “Human Rights Obligations of Non-state actors in Conflict Situations†, International Review of the Red Cross, Volume 88, Number 863, September 2006.

10. Henry Shue, 2003, “Bombing to rescue?: NATO’s 1999 bombing of Serbia†in Deen K. Chatterjee and Don E. Scheid (eds.), Ethics and Foreign Intervention, Cambridge University Press: Cambridge, UK, pp. 97-117.

11. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Available at http://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal~

12. Ben Kiernan, “‘Collateral Damage’ from Cambodia to Iraq†, Antipode, Volume 35, Issue November 5, 2003. pp. 846—855

13. James Griffiths, “Collateral Damage: A Brief History of US Mistakes at War†, October 7, 2015. Available at http://edition.cnn.com/2015/10/06/middleeast/us-collateral-damage-history/

14. Tom Engelhardt, “Slaughter, Lies, and Video in Afghanistan“, September 11, 2008. Available at http://www.tomdispatch.com/post/174975/slaughter_lies_and _video_in_afghanistan

15. The 9/11 Commission Report. Available at http://avalon.law.yale.edu/sept11/911Report.pdf

16. Human Rights Watch, “US Investigation of Airstrike Deaths ‘Deeply Flawed’†, January 15, 2009. Available at https://www.hrw.org/news/2009/01/15/afghanistan-us-investigation-airstrike-deaths-deeply-flawed

17. Ed Morrissey, “US: Our collateral damage policies don’t apply to Syria, Iraq air strikes“, October 1, 2014. Available at http://hotair.com/archives/2014/10/01/us-our-collateral-damage-policies-dont-apply-to-syria-iraq-air-strikes/

18. Jim Acosta and Kevin Liptak, “White House exempts ISIS strikes from civilian casualty guidelines“, October 2, 2014. Available at http://edition.cnn.com/2014/10/01/politics/wh-isis-civilians/

Sonali Huria works as a Research Consultant, and Pupul Dutta Prasad as a Senior Superintendent of Police at the National Human Rights Commission, New Delhi. The views expressed in the article are the authors’ own.