By: Mélanie Thienard
Is the United States waging a war on humanitarianism?
On 26 October 2015, a Médecins Sans Frontières (MSF) hospital in Northern Yemen was struck by airstrikes, allegedly conducted by the US-supported, Saudi-led coalition, who have denied any implication in the destruction of the hospital. Earlier that month, on the 3rd of October, another MSF hospital was destroyed by the sustained fire of a US Air Force AC-130U gunship in Kunduz, Afghanistan.
In a series of press articles, French academic Gilles Dorronsoro claimed that these attacks in fact reflect a criminalisation of humanitarianism. According to him, former US Secretary of state Colin Powell tried to use humanitarian organisations in the War on Terror. It is the refusal of MSF to become ’essential contributors to the United States’ “combat team”’ which, according to Dorronsoro, led the organisation to become a legitimate target for the US army in what he described as a ‘war on humanitarianism.’ Whilst this remains speculative, other matters arose from the Kunduz bombing and the US justifications: a lack of verification of targets and/or a disregard for the core International Humanitarian Law (IHL) principle of proportionality.
International humanitarian law, hospitals, and the principle of caution
The body of law governing the conduct of hostilities is clear on the status of hospitals:
’Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.’
The UN General Assembly reaffirmed this principle with a resolution: ‘places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations’.
To uphold their protected status, hospitals set up by humanitarian organisations, such as MSF, must communicate their geographical position to all fighting parties on a regular basis. MSF is well aware that it is crucial to ensure the relative safety of both staff and patients. In fact, the GPS coordinates of the Kunduz hospital were last communicated to the coalition forces only days before its destruction.
Military necessity and proportionality
Only a few hours after the first US statements attributing the attack to a ‘mistake’, US commander in Afghanistan General John Campbell hinted that the attack on the Kunduz Trauma Hospital was justified by military necessity after Afghan forces allegedly came under Taliban fire. In this approach, the hospital was engaged deliberately rather than ‘mistakenly struck.’ Is that legal? In certain circumstances, yes.
‘The “principle of military necessity” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.’
The surviving MSF staff in Kunduz however strongly denied the presence of active combatants in their facilities at the time of the attacks.
Military necessity is, however, not unlimited. It is in fact bound by another essential component of IHL: proportionality. In terms of IHL, proportionality ‘seeks to limit damage [to civilians and civilian objects] caused by military operations by requiring that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought’.
Considering the above IHL principles, let’s imagine that Taliban combatants were indeed using the hospital to target coalition forces.
Two questions remain unanswered. On a tactical level, was Taliban fire sustained enough to justify the call of an air strike on a civilian building? Strategically, would razing a perfectly functional hospital to the ground – killing 30 staff and patients and depriving thousands of civilians from accessing medical treatment – be critical to regain control of the city of Kunduz after it had been seized by Taliban fighters? If the answer to both is yes, the strike could be legally justified. If, however, the answers are uncertain, so is the legality of the attack.
An intelligence failure and the role of the Afghan forces
A final question, potentially the most important one, remains. Did the Afghan forces deliberately provided flawed intelligence to the US forces to justify the call of the airstrike?
As mentioned previously, the Afghan forces have claimed the presence of Taliban fighters in the hospital’s main compound, which prompted a muted, even sympathetic Afghan response to the attack.
A military coalition must be based on a certain degree of trust. It is doubtful that the US forces in Afghanistan possess the capability of double-checking every action of their Afghan allies. Such a policy could furthermore create a hierarchy between US and Afghan forces, which could undermine the coalition as a whole. If it turns out that the Afghan forces indeed provided flawed intelligence, drastic measures need to be taken to ensure the verification of targets by US operatives before a strike.
However, let’s not forget that, in the end, US forces pulled the trigger. Communication transcripts show that the gunship’s crew questioned the legality of the airstrike, but were nevertheless ordered to engage the hospital. General Campbell also admitted that ‘the decision to provide aerial fires was a US decision, made within the US chain of command.’ No one forced the US forces to take Afghan intelligence at face value. To the General director of MSF, it is clear that the attack constitutes a war crime as well an attack on the Geneva conventions.
Claiming that a ‘war against humanitarianism’ is being waged is in this case far-fetched and misleading. Such claims however show that, when it comes to foreign military intervention, the US is walking on eggshells and faces grave accusations of disregard of IHL and civilian lives.
The destruction of the Kunduz hospital shows two worrying trends at the operational level: a flawed chain of command, and the dissemination of flawed intelligence by Afghan forces. Whilst the advancements in targeting technology led some to argue that only the US army was capable of conducting warfare in accordance with the principles set forth by IHL, incidents such as the Kunduz bombing show a critical lack of communication between units with regard to the selection of targets. This makes the US army vulnerable to embarrassing ‘mistakes’ and war crime accusations as well as putting humanitarian NGOs working in active combat zones even more at risk.
The only way to address these issues in a constructive manner is for President Obama to answer the calls of MSF and consent to an independent and impartial investigation of the Kunduz attack.
Even war has rules.
 Article 15, Fourth Geneva Convention, § 3, available at https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter11_rule35
Mélanie is a 3rd year IR student specializing in the Middle East, human rights and humanitarian law, president of the Amnesty International Society at King’s and has worked at Amnesty International UK since 2014 as a national student representative. Prior to coming to King’s she studied law and economics in Marseille, France.