Please see the original posted at Small Wars Journal, October 13, 2015; by Jay Morse and Prof. Geoff Corn.
It is a tragic inevitability of war that innocent civilians often pay a price for the chaos of battle, and the unfortunate loss of life resulting from Saturday’s destruction of a hospital in Kunduz should sadden us all. There may have been a time in history when massive civilian casualties were considered a tolerable consequence of armed conflict, but international law today demands a respect for human life that is fundamentally incompatible with any concept of “total war.” We should be neither surprised nor dismayed that the international response to this tragedy has been so intense. However, we should also be careful not to confuse sympathy for the victims of this incident with an assumption that the attack was in violation of international law. Human error and the proverbial “fog of war” will always create a risk of unintended consequences, and the law that regulates war also recognizes that no military force can ever guarantee error-free warfare.
Our military is without question the most professional and well-equipped force in the world. However, while both our weapons systems and our laws have progressed, the reality is that even the very best amongst the profession of arms can only hope to mitigate the risk of civilian casualties on today’s battlefield. It is unrealistic to expect a force to guarantee attack execution perfection, and the unfortunate casualties resulting from the destruction of the hospital in Afghanistan serves as powerful reminder of this certainty.
It is important to pause and mourn the loss of life, as it is important to conduct a thorough investigation in an effort to prevent similar events from happening in the future. But it is just as important to ensure that American pilots are not automatically branded as “war criminals” without understanding the law and how it applies. Some of the international reaction to Kunduz symbolizes the risk that emotion will adversely affect proper legal critique of military operations. Assessing compliance with the requirements of the international laws of war, or humanitarian law, is distorted by the tendency to engage in “consequence based” analysis: civilians died, therefore, as Médecins Sans Frontières (MSF) President Meinie Nicolai asserts, the attack constitutes a “grave violation of international humanitarian law.” Her statement is both premature and legally misleading. Tragic images of civilian suffering naturally paints a legally troubling picture, but a force’s compliance with international law must be judged upon an accurate understanding of the law, focused on the pre-attack situation – not on post-attack effects.
There should be no debate as to what law applied to regulate the Kunduz attack decisions. While international humanitarian law was developed primarily to regulate war between states, there are core rules that regulate all conflicts, including those against non-state organized armed groups, such as the ongoing conflict in Afghanistan. Forces engaged in these hybrid conflicts are bound by certain fundamental international legal obligations: to limit deliberate attacks only to “military objectives” (a legitimate military target); to take all feasible precautions to mitigate the risk to civilians resulting from those attacks; and to forego any attack on a lawful military target when the anticipated civilian casualties would significantly outweigh the anticipated military advantage to be gained from the attack (the so-called “proportionality” rule). In addition to these general obligations, one rule seems particularly relevant to the bombing in Kunduz: the extensive protection afforded to hospitals.
Though no object in the battle-space enjoys more legal protection, a hospital is not completely immune from being lawfully attacked, despite an MSF spokesperson’s assertion that “bombing a fully functioning hospital can never be justified.” International law prohibits attacking hospitals so long as they are not being used by the enemy in a manner inconsistent with their exclusive medical and humanitarian function. Even when a commander has intelligence indicating misuse, humanitarian law requires that the commander, normally through an intermediary like the International Committee of the Red Cross, issue a demand to the enemy that he terminate his misuse of the hospital before any attack may be lawfully conducted. The only exception to this requirement is when friendly forces are actually under fire from a hospital and have no alternative other than to respond with force.
Any attack on a hospital will automatically trigger intense scrutiny by U.S. commanders, but it is invalid to immediately draw a conclusion that the law must have been violated simply because a hospital was hit. Too many variables need to be assessed. If the hospital was intentionally targeted, an investigation must determine whether notice of the hospital’s status was conveyed to U.S. forces; if the notice was properly integrated into the planning process; if there were indications that the hospital was being used improperly; if a warning was issued by U.S. forces; and whether the hospital was the actual intended target or was rather the result of an attack on another target nearby. If the attack was directed against a nearby target, then an investigation should determine if U.S. forces took feasible precautions to mitigate the risk to the hospital. The commander should have assessed whether attacking a nearby target would risk damaging the hospital; what was the anticipated level of damage; and how it compared to the anticipated benefit of the attack. Finally, and probably most likely in the bombing at Kunduz, an investigation should determine whether the attack on the hospital was the result of human or technical error, and if so, whether that error was reasonable under the circumstances.
Answering these complex questions requires a thorough investigation that recreates the situation that confronted the U.S. commanders and pilots who executed this mission. Nonetheless, President Meinie Nicolai almost immediately condemned the attack as a “grave violation” of international humanitarian law. Her reaction – that because a hospital was attacked, it must be a violation of international law – is an unfortunate outgrowth of the incorrect assumption that modern professional militaries are capable of executing error-free operations. This assumption is completely at odds with the reality of warfare, no matter how “precision” our weapons. Furthermore, even President Nicolai’s assertion that the U.S. committed a “grave violation” – the most serious category of war crimes – is legally impossible, as a grave breach may occur only during an international armed conflict – a conflict between states. Whether President Nicolai is misinformed or simply misspoke, her statements illuminate the gross misunderstanding the public has of the laws as they apply to armed conflict.
Nations have attempted to set rules for war for surely as long as there has been warfare itself, and continuing efforts to both improve and implement the law are essential to advancing the aspirations that always motivated these rules: to strike a balance between the need to allow states to wage war while limiting, as much as possible, the inevitable human suffering produced by conflict. Condemnation of attacks based purely on results not only distorts this balance, but applies the law erroneously and sets a dangerous precedence. Of course, none of this means mean that U.S. military personnel operate with impunity, and President Obama’s order to conduct a thorough investigation is correct (though certainly redundant). There is a robust and clear body of law that proscribes actions while simultaneously giving military personnel a structure to determine not only what is a legitimate target, but also, just as importantly, when and how you can attack that target. If an investigation concludes that the law was violated, accountability for that violation is essential. And not to assuage international public opinion, but to reinforce the essential link between complying with international humanitarian law and legitimately claiming status as a professional armed force. The reality is that armed forces of the United States are regularly trained on whom and what constitutes a legitimate target. The personnel involved in the targeting process not only understand the law, but also the strategic and political implications of attacking a typically civilian facility such as a hospital. Only a comprehensive investigation will reveal whether the attack was the result of human or technical error, or perhaps even (though highly unlikely) malicious intent; only this determination will indicate whether there was in fact a violation of the law.
The bombing of the hospital in Kunduz certainly aggravates the tragedies of more than a decade of war in Afghanistan, and will only make US efforts to stem ISIS and a resurgent Taliban that much more difficult. But the fact remains that war today is, as it has always been, a brutal endeavor, and no matter how precise our weapons or thorough our analysis, human error will lead to tragedy. This doesn’t make it a war crime.
Jay Morse is retired US Army lieutenant colonel and is a partner in the law firm of Corn, Jensen & Morse. He can be reached at jaymorse.org or jay.morse@cornjensenmorse.com.
Geoffrey Corn is a retired US Army lieutenant colonel and is a Professor of Law at South Texas College of Law in Houston, Texas. He can be reached at gcorn@stcl.edu.
