While much remains unclear, facts are slowly emerging about the U.S. airstrikes on a Médecins Sans Frontières (MSF) hospital in Kunduz, in northern Afghanistan on October 3^rd, which killed 12 staff, all Afghans, and at least 10 patients, and seriously wounded another 37 people. MSF General Director Christopher Stokes condemned the bombing as “a grave violation of International Humanitarian Law” and presumed “war crime,” while calling for a “full and transparent investigation […] conducted by an independent international body” such as the International Humanitarian Fact-Finding Commission.

The U.S., for its part, has acknowledged the attack and promised a full investigation. It has also offered partial and contradictory explanations in the immediate wake of the attack. First, U.S. Defense Secretary Ash Carter called the attack “a tragic incident,” and possible case of “collateral damage.” In a later statement, the Pentagon said it had been targeting Taliban insurgents who were firing upon U.S. forces from the site. U.S. commander in Afghanistan General John Campbell has since reversed this statement, admitting that no U.S. forces were under fire at the time, but that Afghan forces had requested U.S. airstrikes in response to enemy fire. Amidst these competing allegations and media flurry, international law is clearly delineated on the protection of medical personnel in armed conflict. So does the label “war crime” fit?

Protection of medical personnel under international law

International humanitarian law (IHL) prohibits attacks on medical personnel and patients, including attacks on medical facilities, who are afforded both general civilian protection and special protection by virtue of their crucial humanitarian role.

First, medical personnel and facilities are entitled to general civilian protection from attack under IHL. The IHL principle of distinction requires that the “parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” Even in the permissible targeting of military objectives, the IHL principle of proportionality limits collateral damage by prohibiting attacks which “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Furthermore, “in the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects.” All parties to a conflict are required to “take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks.”

Beyond this general protection from attack afforded to the civilian population, IHL grants special protection to medical personnel and facilities because of their life-saving humanitarian role. IHL requires that “medical units exclusively assigned to medical purposes must be respected and protected in all circumstances.” Further protections for health care can also be found in international human rights law, health care ethics, and existing domestic legal frameworks.

Despite these protections, attacks against medical and other humanitarian aid workers and facilities are increasingly common. As the ICRC argues, “Violence against health-care workers, facilities and beneficiaries is one of the most serious humanitarian challenges in the world today. And yet it frequently goes unrecognized.” So while IHL has an established legal framework for the protection of emergency medical services in armed conflict, the problem appears to be mainly one of implementation and enforcement of existing norms.

The consequences of these attacks are severe, both in terms of the direct lives lost and the consequences for humanitarian action. “Besides resulting in the deaths of our colleagues and patients,” said Meinie Nicolai, MSF President, “this attack has cut off access to urgent trauma care for the population in Kunduz at a time when its services are most needed.” Prior to the attack, the hospital had served as the only free trauma center in northern Afghanistan, and was treating a surge of victims of the latest fighting. The destruction of the hospital has therefore left tens of thousands without access to care, amidst ongoing armed conflict.

Did the attack constitute a “war crime”?

MSF has denounced the Kunduz attack as “a grave violation of International Humanitarian Law” and is “working on the presumption of a war crime.” Under the Rome Statute of the International Criminal Court, “intentionally directing attacks against […] hospitals and places where the sick and wounded are collected” constitutes a “war crime” in both international and non-international armed conflict, “provided they are not military objectives.”

In assessing the Kunduz case, two aspects of this definition stand out. First, the final clause discontinues protection for hospitals being used as “military objectives”. Under IHL, medical units may “lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.” U.S. and Afghan officials have each hinted at this exemption in various statements following the Kunduz attack, including the Pentagon’s assertions that either US or Afghan forces took fire from the facility, the Kunduz governor’s suggestion that the hospital served as “a Taliban base,” and the Afghan Defense Ministry’s reference to “armed terrorists” inside the facility.

MSF has categorically denied such allegations of armed actors or arms fire from the facilities: “Not a single member of our staff reported any fighting inside the MSF hospital compound prior to the U.S. airstrike on Saturday morning.” Yet even if armed insurgents were using the medical facility – which remains questionable – it would not automatically lose protection from attack. Namely, IHL requires that belligerents give reasonable warning before attacking an object that is presumed to have lost protection due to hostile acts. Additional Protocol II to the Geneva Conventions, applicable to non-international armed conflict, specifies that:

Similar provisions are found in the First Geneva Convention [Art. 21] and Fourth Geneva Convention [Art. 19], applicable in international armed conflict. The ICRC notes that this requirement to issue advanced warning is generally heeded in state practice, affirming it as a norm of international law. No information presented thus far indicates that any such advance warning was given; to the contrary, MSF staff report the repeated attacks on the hospital as a shock.

Second, in order to constitute a war crime under the ICC’s definition, the attack must be “intentionally direct[ed]” against the protected object, i.e. the hospital. At this point, we know too little about the motives for the airstrike to make this determination. For instance, was the airstrike targeted at another site, and hit the hospital by mistake – a potentially indiscriminate attack? Or was it targeted at another site, and caused extensive collateral damage to the hospital, as U.S. officials first asserted – a potentially disproportionate attack? Or as U.S. officials are now claiming, was the site deliberately targeted, without realizing that it was a hospital? If so, how could that happen? We know that U.S. forces knew of the hospital’s location – MSF had repeatedly communicated the hospital’s GPS coordinates to Coalition and Afghan military and civilian authorities, including as recently as September 29^th. Yet U.S. officials maintain that despite “rigorous” procedures to prevent such an incident, the airstrike was a tragic error. “The hospital was mistakenly struck,” said General Campbell this week, “We would never intentionally target a protected medical facility.” If the initial attack was a mistake, why did it continue “for more than 30 minutes after [MSF] first informed US and Afghan military officials in Kabul and Washington that it was a hospital being hit,” as MSF reports? Whether conducted by the U.S. or an independent commission, or both, investigation into the bombing of MSF’s hospital in Kunduz must answer these questions.

The attack in Kunduz – whether it meets the technical definition of a war crime or not – constitutes an affront to the shared norms of humanity, and a serious violation of at least the object and purpose of international law protecting medical and other humanitarian aid workers in armed conflict. Moreover, an attack may violate IHL (giving rise to state responsibility) without being a war crime (giving rise to individual criminal responsibility). Amidst increasing attacks against aid workers, there is a grave need to improve protection for humanitarians both legally and operationally, and ensuring accountability for intentional or indiscriminate attacks against humanitarian workers, at both the state and individual levels. It also requires enhanced efforts to understand the causes of consequences of attacks against humanitarian aid workers, political commitment to the implementation and enforcement of international law, and professional consensus around strengthening the protection of healthcare and other humanitarian aid workers in insecure settings. Such efforts are essential to ensuring that life-saving assistance continues to reach those in need.