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Staff survey the scene following October's deadly bombing of an MSF clinic in Kunduz. (Photo: Barcroft Media)

Pentagon Claim That War Crimes Must Be "Intentional" Called "Flatly Wrong"

'There are laws—even in the heat of warfare—which must be followed. And no one is above them,' says Physicians for Human Rights

Nadia Prupis

The U.S. Department of Defense on Friday released its redacted report on the military's deadly October 2015 airstrike on a Doctors Without Borders/Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, which found that the bombing was a mistake—and thus, not a war crime—a conclusion which human rights groups called "an affront" to justice and accountability.

The report follows an announcement on Thursday that the Pentagon would not file any criminal charges against 16 people it found associated with the bombing that killed 42 people.

General Joseph Votel, head of U.S. Central Command (CENTCOM), said during a press conference on Friday that the individuals responsible for the airstrike "were trying to do the right thing. They were trying to support their Afghan partners."

"The investigation determined that all members of both the ground force and the AC-130 air crew were unaware that the aircraft was firing on a medical facility throughout the engagement," Votel said. "The investigation ultimately concluded that this tragic incident was caused by a combination of human errors, compounded by process and equipment failures."

MSF held a briefing with Votel on Thursday to discuss the Pentagon's findings. MSF president Meinie Nicolai said Friday that the briefing "amounts to an admission of an uncontrolled military operation in a densely populated urban area, during which U.S. forces failed to follow the basic laws of war."

"It is incomprehensible that, under the circumstances described by the U.S., the attack was not called off," Nicolai said, adding that the punishments announced Thursday were disproportionately inadequate for the destruction of a protected medical facility, the deaths and wounding of dozens of people, and the loss of critical medical access to people in Kunduz.

Donna McKay, executive director of Physicians for Human Rights, added in a press release, "The decision to dole out only administrative punishments and forego a thorough criminal investigation of October's deadly strike in Kunduz is an affront to the families of the more than 40 men, women, and children who died that night, punished merely for being in a hospital, a supposed safe haven in a time of war."

And John Sifton, the Asia policy director of Human Rights Watch, told the New York Times on Friday that Votel's "assertion that a war crime must be deliberate, or intentional, is flatly wrong."

"Unfortunately they made a wrong judgment in this particular case and ended up targeting this Doctors Without Borders facility," Votel said. "The fact that this was unintentional...takes it out of the realm of actually being a deliberate war crime against protected persons or locations."

That logic did little to quell outrage from critics.

As McKay said, "There are laws—even in the heat of warfare—which must be followed. And no one is above them. Period. While the Kunduz strike may have been a mistake, some mistakes may be, justice for the patients who died in their beds, the doctors and nurses and hospital staff killed while doing their jobs, was denied."

Naureen Shah, director of Amnesty International's Security with Human Rights program, added that the reports "demonstrate the need for an independent investigation, outside of the chain of command, to determine what happened in Kunduz and to assess potential criminal wrongdoing," a demand that Amnesty and MSF, among other groups, have consistently called for since the bombing.

In the immediate aftermath of the attack, the U.S. military changed its narrative no less than four times in as many days to evade culpability, while evidence continued to mount that officers knew they were targeting an active hospital.

As Glenn Greenwald wrote for The Intercept on Friday, "none of that matters. The only law to which the U.S. government is subject is its own interests."

Meanwhile, in Syria, a clinic in Aleppo was bombed, likely by either Russian or Syrian government forces—the same day as the Pentagon announced it would only mete out administrative punishments to the 16 personnel.

U.S. Secretary of State John Kerry issued a statement expressing "outrage" over the Aleppo airstrikes.

"On the list of those with even minimal credibility to denounce that horrific airstrike," Greenwald writes, "Kerry and his fellow American officials do not appear."

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