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US Still Can't Escape Calls for War Crimes Investigation into Its Bombing of MSF Hospital

New UN report finds record level of civilian casualties in Afghanistan; says there are 'prima facie grounds to warrant further investigation into whether US personnel committed war crimes'

Hospital beds lay in the MSF hospital in Kunduz, Afghanistan, about six months after an American airstrike killed dozens of patients, some of whom burned to death in their beds. (Photo: Reuters)

A new United Nations report reveals a grim state of affairs for civilians in Afghanistan—a record level of civilian casualties for the first half of the year—and also renews the call for an independent investigation into whether the United States committed war crimes in bombing a Doctors Without Borders (MSF) hospital in Kunduz.

Published days after a suicide attack in Kabul killed scores, the report (pdf) from the United Nations Assistance Mission in Afghanistan (UNAMA) with input from the Office of the United Nations High Commissioner for Human Rights (OHCHR) states that 5,166 civilians were either killed or maimed in Afghanistan from January through June, the highest half-year total since counting began in 2009. The new, likely conservative figures bring the total casualties since 2009 to nearly 64,000.

"Every single casualty documented in this report—people killed while praying, working, studying, fetching water, recovering in hospitals—every civilian casualty represents a failure of commitment and should be a call to action for parties to the conflict to take meaningful, concrete steps to reduce civilians' suffering and increase protection," stated Tadamichi Yamamoto, the U.N. Secretary-General's Special Representative for Afghanistan and head of UNAMA.

A "particularly alarming and shameful" figure noted in the report, said U.N. High Commissioner for Human Rights Zeid Ra'ad Al Hussein, is that the latest casualties include over 1,500 children. "Child casualties now comprise 29 percent of all civilian casualties," the report states.

"Explosive remnants of war" were the "second leading cause of child casualties in the first half of 2016," the report adds, and notes the disproportionate impact they have on the young. Children "comprised 85 percent of the casualties caused by such devices," a press release accompanying the report states.

The report further notes the continuing impact the unrest has on the country's ability to eradicate polio, stating that "during the May 2016 national polio campaign, approximately 358,000 children missed their polio vaccination as a result of insecurity."

The new publication also takes aim at how the U.S. classified its Oct. 3, 2015 airstrike on an MSF hospital in Kunduz, which killed 42 people and wounded dozens others.

"There must be an end to the prevailing impunity enjoyed by those responsible for civilian casualties—no matter who they are."
—UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein
The U.N. report includes the U.S. military's own findings, in redacted form, into the bombing, which it released in April following a shifting narrative on the attack.

The U.N. report cites the U.S. argument that "the tragic accident resulted from a combination of unintentional human errors and equipment failures" while the designation of "'war crimes' is typically reserved for intentional acts."

UNAMA, however, questions the impartiality and transparency of the U.S. military's findings, and states that "there are prima facie grounds to warrant further investigation into whether United States personnel committed war crimes."

From the report:

The United States military Army Regulation 15-6 investigation is essentially an administrative fact-finding tool for the United States military that makes recommendations to the convening officer who can then decide whether to accept or reject findings of fact as well as recommendations. While the Commander of U.S. Forces Afghanistan appointed general officers from outside of his chain of command to conduct the fact-finding investigation, the ultimate authority for taking actions, including recommending any criminal investigation, essentially remained with the command responsible for the incident.

This calls into question whether the AR 15-6 procedure is sufficiently independent, impartial, transparent and effective to determine whether criminal offenses occurred in relation to the 3 October 2015 airstrike. Furthermore, neither the press release nor the investigation itself addressed the issue of criminal liability for recklessness in the commission of war crimes, nor criminal liability under the United States Uniform Code of Military Justice.

The mission notes that after a review of the redacted United States MSF Investigation Report, even absent findings of specific intent, there are prima facie grounds to warrant further investigation into whether United States personnel committed war crimes and other criminal offenses in relation to the 3 October 2015 airstrike on the MSF Hospital in Kunduz.

"There must be an end to the prevailing impunity enjoyed by those responsible for civilian casualties—no matter who they are," Zeid added in his statement.

For its part, MSF, along with other human rights groups as well as family members of those killed in the attack, previously lambasted the U.S. military assessment of the attack as unacceptable and a total affront to justice.

Like the U.N., MSF has also called for an independent investigation in the attack, and, in December, delivered a petition signed by over half a million people to President Barack Obama urging him to consent to an investigation by the International Humanitarian Fact-Finding Commission into possible violations of international humanitarian law.

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