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U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime

Published online by Cambridge University Press:  20 January 2017

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Type
Contemporary Practice of the United States Relating to International Law
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American Journal of International Law , Volume 110 , Issue 3 , July 2016 , pp. 579 - 587
Copyright
Copyright © American Society of International Law 2016

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References

1 See U.S. Cent. Command, Summary Of the Airstrike On The MSF Trauma Center in Kunduz, Afghanistan on October 3, 2015; Investigation and Follow-on Actions 1 (Apr. 29, 2016) [hereinafter Summary Memorandum].

2 Medecins Sans Frontieres, Initial MSF Internal Review: Attack on Kunduz Trauma Centre, Afghanistan 2 (Nov. 5, 2015) [hereinafter MSF Internal Review].

3 See U. S. Forces Afghanistan Investigation Report of the Airstrike on the Médecins Sans Frontiers/Doctors without Borders Trauma Center in Kunduz, Afghanistan on 30 October 2015 017-21 (Apr. 28, 2016) [hereinafter Investigation Report].

4 U.S. Cent. Command Press Release, U.S. Central Command Releases U.S. Forces-Afghanistan Investigation into Airstrike on Doctors Without Borders Trauma Center in Kunduz, Afghanistan (Apr. 29, 2016), at http://www.centcom.mil/news/press-release/april-29-centcom-releases-kunduz-investigation.

5 Summary Memorandum, supra note 1, at 1. The lead investigating officer was Army Major General William Hickman, and the deputies were Air Force Brigadier General Robert Armfield and Army Brigadier General Sean Jenkins. Id.

6 U.S. Dep’t of Defense Press Release, Department of Defense Press Briefing by General Campbell via Teleconference from Afghanistan (Nov. 25, 2016), at http://www.defense.gov/News/News-Transcripts/Transcript-View/Article/631359/department-of-defense-press-briefing-by-general-campbell-via-teleconference-fro [hereinafter Campbell Briefing].

7 Summary Memorandum, supra note 1, at 1.

8 Id.

9 See Investigation Report, supra note 3, at 002.

10 See Campbell Briefing, supra note 6.

11 See U.S. Dep’t of Defense Press Release, Department of Defense Press Briefing by Army General Joseph Votel, Commander, U.S. Central Command (Apr. 29, 2016), at http://www.defense.gov/News/News-Transcripts/Transcript-View/Article/746686/department-of-defense-press-briefing-by-army-general-joseph-votel-commanderus [hereinafter Votel Briefing].

12 See Investigation Report, supra note 3, at 043–050, paras. 20–47; Campbell Briefing, supra note 6.

13 See Campbell Briefing, supra note 6 (describing the early launch as a response to a “troops-in contact situation” (TIC)). Emergency calls result in immediate air support from available aircraft. See id.; see also Schactman, Noah, The Phrase That’s Screwing Up the Afghan War, Wired (Dec. 9, 2009), at https://www.wired.com/2009/12/the-phrase-thats-screwing-up-the-afghan-air-war/ Google Scholar (describing general purpose and execution of the TIC call).

14 Investigation Report, supra note 3, at 052, para 48 (footnote omitted).

15 Campbell Briefing, supra note 6.

16 Investigation Report, supra note 3, at 052, para. 49.

17 See id. at 044–45, paras. 27–29; id. at 078–79, para. 108(a)(1)–(4); see also MSF Internal Review, supra note 2 (“Due to the increased intensity of fighting in Kunduz, MSF reaffirmed the well-known location of the [trauma center] by once again emailing its GPS coordinates to US Department of Defense, Afghan Ministry of Interior and Defense and US army in Kabul.... Confirmation of receipt was received from both US Department of Defense and US army representatives, both of whom assured [MSF] that the coordinates had been passed on to the appropriate parties.”).

18 Hutchinson’s name was redacted in the report but identified in a subsequent media report. See Aikins, Matthieu, Doctors with Enemies: Did Afghan Forces Target the M.S.F. Hospital?, N.Y. Times MAG. (May 17, 2016), at http://www.nytimes.com/2016/05/22/magazine/doctors-with-enemies-did-afghan-forces-target-the-msf-ho spital.html Google Scholar.

19 See Investigation Report, supra note 3, at 053, para. 51.

20 See id. at 044, para. 26.

21 See id. at 054, para. 53.

22 Votel Briefing, supra note 11; see also Investigation Report, supra note 3, at 053, para. 52.

23 Summary Memorandum, supra note 1, at 2.

24 Investigation Report, supra note 3, at 054, para. 55.

25 See id. at 057, paras. 59, 61.

26 See id. at 056–58, paras. 58, 61– 62. One media story observed that this description does not resemble the NDS facility’s distinctive layout, and suggested that Afghan forces might have intentionally misled Hutchinson in order to target the MSF center because of its relationship with and treatment of Taliban members. See Aikins, supra note 18. The Department of Defense report, however, did not reach this conclusion or even suggest it as a possibility.

27 See id. at 057–58, para. 62.

28 Id. at 056, para. 57.

29 See id. at 054, para 54 & n. 105.

30 See Gibbons-Neff, Thomas & Lamothe, Dan, Pentagon: 2015 Strike on Doctors Without Borders Hospital in Afghanistan Was Not a War Crime, Wash. Post (Apr. 29, 2016), at https://www.washingtonpost.com/news/checkpoint/wp/2016/04/29/pentagon-2015-strike-on-doctors-without-borders-hospital-in-afghanistan-was-not-a-war-crime/ Google Scholar.

31 See Investigation Report, supra note 3, at 054, para. 54.

32 Id. at 059, paras. 65–66.

33 Id. at 059–61, paras. 65–70.

34 Id. at 061–62, para. 74.

35 Id. at 061– 62, paras. 74, 76. His intent, as relayed by the JTAC, was to “destroy targets of all opportunity”— that is, both the physical compound and the people inside it. Id. at 063, para. 77.

36 Id. at 062, para. 76.

37 Id. at 095–96, para. 115(a)(2), (4); see also Votel Briefing, supra note 11 (“Our forces did not receive fire from the trauma center during the incident, nor did the investigation find that insurgents were using it as a base for operations.”).

38 Craig, Tim & Whitlock, Craig, Afghan Response to Hospital Bombing Is Muted, Even Sympathetic, Wash. Post (Oct. 4, 2015), at https://www.washingtonpost.com/world/afghan-official-hospital-in-airstrike-was-a-taliban-base/2015/10/04/8638af58-6a47-11e5-bdb6-6861f4521205_story.html Google Scholar. The Afghan Ministry of Defense similarly claimed that terrorists had entered the MSF center and used “the buildings and people inside as a shield.” O’Donnell, Lynne, Doctors Without Borders: 19 Dead in Clinic Airstrike, AP: The Big Story (Oct. 3, 2015), at http://bigstory.ap.org/article/069682e9bee94ce4a48e347ac4dc3ec0/doctors-without-borders-afghan-clinic-bombed-3-staff-dead Google Scholar. The president of MSF International, Dr. Joanne Liu, denied these claims. See Liu, Joanne, MSF Denounces Blatant Breach of International Humanitarian Law, Medecins Sans Frontieres/Doctors Without Borders (Oct. 6, 2015), at http://www.doctorswithoutborders.org/article/msf-denounces-blatant-breach-international-humanitarian-law Google Scholar.

39 Investigation Report, supra note 3, at 066, para. 83.

40 Id. at 067, para. 84.

41 Id. at 067–68, para. 84.

42 Id. at 068, para. 86.

43 Id. at 068, paras. 86–87.

44 Id. at 068, paras. 85.

45 MSF Internal Review, supra note 2, at 12. MSF has requested that the United States explain these contrasting timelines. Kunduz: Some of MSF’s Questions in Response to the U.S. Military Investigation into Their Attack on the Hospital, Medicins Sans Frontieres (Apr. 29, 2016), at http://www.msf.org/en/article/kunduz-some-msf%E2%80%99s-questions-response-us-military-investigation-their-attack-hospital.

46 Rep. of the UN Assistance Mission in Afg., Afghanistan: Human Rights and Protections of Civilians in Armed Conflict: Special Report on Kunduz Province 8 (Dec. 2015), available at https://unama.unmissions.org/sites/default/files/special_report_on_kunduz_province_12_december_2015.pdf [hereinafter UNAMA Report].

47 Investigation Report, supra note 3, at 070, para. 94.

48 See MSF Internal Review, supra note 2, at 12; Summary Memorandum, supra note 1, at 3 (indicating that the U.S. military did not independently verify MSF’s fatality report); see also Richard C. Kim & Moham Mad Kabir, Executive Summary:Combined Civilian Casualty (Civcas) Assessment of an Air Strike on a Medical Facility in Kunduz City on 03 October 2015, para. 3(a) (Nov. 2015), available at https://www.shape.nato.int/resources/3/images/2015/saceur/exec_sum.pdf (providing similar casualty figure from NATO civilian casualty team investigation).

49 Investigation Report, supra note 3, at 074, para. 106(a).

50 Id. (emphasis added). Although the bulk of the report’s findings focused on the actions of U.S. personnel leading up to the strike, the report also concluded that “[w]hen select commands were notified that the Trauma Center was being engaged..., on-shift leaders took insufficient steps that could have minimally mitigated damage to personnel [there].” Id. at 078, para. 108(a).

51 See, e.g., id. at 074, para. 106(a)(2).

52 Id. at 081, para. 109(a), (a)(2).

53 Id. at 081, para. 109(a)(2).

54 Id. at 082–83, para. 110(a).

55 See id. at 086, para. 112(a)(1).

56 Id.

57 See id. at 086, para. 112(a)(1)(a).

58 See id. at 089, para. 112(a)(2)(a)(ii).

59 Id. at 093, para. 114(a).

60 Id. at 095, para. 114(g)(5). See also Margulies, Peter, Centcom Report on the Kunduz Hospital Attack: Accounting for a Tragedy of Errors, Lawfare (May 2, 2016), at https://www.lawfareblog.com/centcom-report-kunduz-hospital-attack-accounting-tragedy-errors Google Scholar.

61 Investigation Report, supra note 3, at 091, para. 113(g)(2).

62 Id. at 091, para. 113(g)(1), (3).

63 Id. at 093, para. 113(g)(4)(f).

64 See id. at 073–96, paras. 106–116 (detailing findings of investigation).

65 Votel Briefing, supra note 11; see also Summary Memorandum, supra note 1, at 2 (using identical language to define war crime and reiterating report’s finding that “none of the personnel knew that they were striking a medical facility”). Votel repeated later in the same press conference that “an unintentional action takes it out of the realm of actually being a deliberate war crime against persons or protected locations.” Votel Briefing, supra note 11.

66 Summary Memorandum, supra note 1, at 4.

67 Rome Statute of the International Criminal Court Art. 8(2)(b)(i), (iv), (ix), July 17, 1998, 2187 UNTS 90, 37 ILM 1002 [hereinafter Rome Statute]. The UNAMA report reflects a similarly high standard. See UNAMA Report, supra note 46, at 12 (“Should an attack against a hospital be found to have been deliberate, it may amount to a war crime.” (emphasis added)).

68 Rome Statute, supra note 67, Art. 30(1).

69 Id. Art. 30(2).

70 The Rome Statute itself states that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” Id. Art. 10.

71 See, e.g., Haque, Adil Ahmad, What the Kunduz Report Gets Right (and Wrong), Just Security (May 10, 2016), at https://www.justsecurity.org/30986/kunduz-report-and-wrong/ Google Scholar; Whiting, Alex, Recklessness, War Crimes, and the Kunduz Hospital Bombing, Just Security (May 2, 2016), at https://www.justsecurity.org/30871/recklessness-war-crimes-kunduz-hospital-bombing/ Google Scholar.

72 Office of the Prosecutor, Int’l Criminal CT., Report on Preliminary Examination Activities (2015) 26, para. 112 (Nov. 12, 2015).

73 Id. at 28, para. 120.

74 See Liu, supra note 38; Sifton, John, Pentagon Hospital Attack Report Falls Short, Human Rights Watch (May 4, 2016), at https://www.hrw.org/news/2016/05/04/pentagon-hospital-attack-report-falls-short Google Scholar.

75 Initial Reaction from MSF to Public Release of US Military Investigative Report on the Attack on MSF Trauma Hospital in Kunduz, Afghanistan, Medécins Sans Frontiéres (Apr. 29, 2016>), at http://www.doctorswithoutborders.org/article/initial-reaction-msf-public-release-us-military-investigative-report-attack-msf-trauma [hereinafter Initial Reaction from MSF].

76 Sifton, supra note 74.

77 See Initial Reaction from MSF, supra note 75; Sifton, supra note 74.

78 Campbell Briefing, supra note 6.

79 Mashal, Mujib & Rahim, Najim, U.S. Commander in Afghanistan Apologizes for Bombing of Hospital, N.Y. Times, Mar. 22, 2016, at A10Google Scholar.

80 Votel Briefing, supra note 11.