Paper trails

For an update and succinct review of attacks on hospitals and medical facilities in Syria – see also my ‘Your turn, doctor’ here – I recommend the latest fact-sheet from Physicians for Human Rights:

Attacks on health care, in gross violation of humanitarian norms and the Geneva Conventions, have been a distinctive feature of the conflict in Syria since its inception. PHR has documented and mapped 553 attacks on at least 348 separate facilities from March 2011 through December 2018. The reduction in the number of attacks over the past year is a clear reflection of the diminishing intensity of the conflict, which came as a direct result of the Syrian government’s takeover of most opposition-held areas. The systematic targeting of health facilities has been a crucial component of a wider strategy of war employed by the Syrian government and its allies – who are responsible for over 90 percent of attacks – to punish civilians residing in opposition- held territories, destroy their ability to survive, and draw them into government-held areas or drive them out of the country. This strategy of unbridled violence – which in addition to attacks on healthcare has included chemical strikes, sieges, and indiscriminate bombing of predominantly civilian areas – has devastated the civilian population, weakened opposition groups, and translated into direct military gains for the Syrian government.

Of the total number of documented attacks on health facilities, nearly 73 percent were carried out from the air. Nearly 98 percent of attacks on health facilities perpetrated from the air are attributable to the Syrian government and its ally Russian, which entered the conflict in 2015.

The share of attacks on health facilities from the air has grown from 38 percent of the total in 2012 to 90 percent in 2018. The Syrian government became steadily more reliant on airpower as the conflict evolved. Through their air forces, the Syrian government and Russia extended their strategy of collective punishment deep into opposition-held territory and far beyond hardened front lines. The Syrian government and its allies disabled or destroyed hundreds of facilities through aerial bombardment, leaving countless civilians without access to vital medical services.

The latest 20-page report from the Independent International Commission of Inquiry on the Syrian Arab Republic to the UN’s Human Rights Council is here.  I’ve drawn on many of these reports for my continuing work on siege warfare in Syria (see for example here, here and here), and this report – based on investigations carried out from 11 July 2018 to 10 January 2019 – makes for grim reading.  Here is the summary (but you really need to consult the full report):

Extensive military gains made by pro-government forces throughout the first half of 2018, coupled with an agreement between Turkey and the Russian Federation to establish a demilitarized zone in the north-west, led to a significant decrease in armed conflict in the Syrian Arab Republic in the period from mid July 2018 to mid January 2019. Hostilities elsewhere, however, remain ongoing. Attacks by pro-government forces in Idlib and western Aleppo Governorates, and those carried out by the Syrian Democratic Forces and the international coalition in Dayr al-Zawr Governorate, continue to cause scores of civilian casualties.

In the aftermath of bombardments, civilians countrywide suffered the effects of a general absence of the rule of law. Numerous civilians were detained arbitrarily or abducted by members of armed groups and criminal gangs and held hostage for ransom in their strongholds in Idlib and northern Aleppo. Similarly, with the conclusion of Operation Olive Branch by Turkey in March 2018, arbitrary arrests and detentions became pervasive throughout Afrin District (Aleppo).

In areas recently retaken by pro-government forces, including eastern Ghouta (Rif Dimashq) and Dar’a Governorate, cases of arbitrary detention and enforced disappearance were perpetrated with impunity. After years of living under siege, many civilians in areas recaptured by pro-government forces also faced numerous administrative and legal obstacles to access key services.

The foregoing violations and general absence of the rule of law paint a stark reality for civilians countrywide, including for 6.2 million internally displaced persons and 5.6 million refugees seeking to return. For these reasons, any plans for the return of those displaced both within and outside of the Syrian Arab Republic must incorporate a rights- based approach. In order to address effectively the complex issue of returns, the Commission makes a series of pragmatic recommendations for the sustainable return of all displaced Syrian women, men and children.

A report from Elizabeth Tsurkov in Ha’aretz confirms many of these findings.  Describing Assad’s Syria as a police state with rampant poverty’ and a ‘playground for superpowers’, she writes:

Eight years into the crisis, Syria’s economy is in tatters, half of its population displaced, hundreds of thousands of Syrians are dead, many of Syria’s cities and towns lie in ruins. Yet on top of this pile of ashes Assad sits comfortably, quite secure in his grip on power.
In areas reconquered by the regime — or as the regime euphemistically describes it, areas that “reconciled” and whose residents “returned to the bosom of the nation” — the Syrian police state is back, more aggressive than ever…

In 2011, Syrians took pride in “breaking the barrier of fear.” But fear now prevails, as the various branches of the regime’s secret police launch raids and arrest suspected disloyal elements. Many of those arrested are former activists, rebels, health and rescue workers, and civil society leaders. Syrians who wish to prove their loyalty to the regime, obtain power through it or simply settle personal scores inform on others to the regime. Suhail al-Ghazi, a Syrian analyst based in Istanbul, told Haaretz that Syrians are informing on each other “because they have been doing it for years or because they need money or favors from the regime.” In areas recently recaptured by the regime, “some locals were always pro-regime and stayed there to work as informants or just could not leave. Now they have the chance to take revenge on the majority of civilians who apparently held a more favorable view of the opposition,” Ghazi explained.

Most of Syria’s population now lives below the poverty line. Across all parts of Syria unemployment rates are high, as the normal economy has been disrupted by years of war and the mass flight of businesspeople and capital out of the country. Syria’s middle class has largely disappeared — many of them fled to neighboring countries or Europe, while others are now living in abject poverty, along with most Syrians.
A small group of war profiteers linked to the various armed groups have been able to enrich themselves by trading in oil, weapons, antiquities, stealing aid, and smuggling people and goods in and out of the country and into besieged areas, while most Syrians struggle to survive. Nearly two-thirds of Syrians are dependent on aid for their subsistence. Basic services like electricity, cooking gas, clean water and health services are lacking in many parts of the country.

Speaking on the condition of anonymity, a resident of Latakia — an area where many of the regime’s leadership and their relatives reside — told Haaretz: “You have corruption everywhere. Bribing was common before the war, but now it is endemic.”
He described the ostentatious displays of ill-gotten wealth: “High-ranking officials, they and their families, have more rights. They roam the city in fancy cars and do whatever they want. Half of the country is dying from hunger, while the sons of officials are arrogantly showing off their wealth. With money you can do everything. This is not new, but it has become more obvious because of the lawlessness prevailing in Syria.”

At the sub-regional scale Enab Baladi filed a revealing report last month on conditions in the Ghouta (which it describes as ‘military-ruled ruins’):

Today, Ghouta is living in a state of siege similar to that it witnessed between 2013 and 2018 at the service, relief and security levels, but the difference is that food is available.

With dozens of announcements about the restoration of electricity to areas east of the capital, as well as the restoration of water and communication services, the needs of civilians are still not covered by those services repeatedly announced by the regime.

Enab Baladi spoke to five people from the eastern Ghouta who returned to it, all of whom refused to be identified for fear of the regime prosecution. They described the service situation as “miserable”, especially with regard to the water and electricity services.

According to the five sources, the electricity is continuously cut for five hours, operates for only one hour, and then it is cut again, while water reaches homes one hour a day, and people rely on submersibles and artesian wells which they dug during siege in the previous years to get water.

Some areas of Ghouta also lacked many of the services that were the top priorities of organizations before the regime forces controlled the region, while food today enters without manipulated prices, unlike in the past….

The report describes Eastern Ghouta as riven by checkpoints; an emphasis on demolition rather than reconstruction; and continuing arrests and detentions.

In early August [2018], al-Assad forces launched a campaign of arrests, which has been considered as one of the largest security operations since the regime took over Ghouta, for it has targeted the regime dissidents and activists in the Syrian revolution. The campaign was carried out in the cities and towns of Saqba, Hamuriyah, Duma, Mesraba, and Ein Tarma.

The regime also subjected local activists, civil society workers, and former media professionals, as well as members of local councils and relief agencies, to investigations into the aids they received when the area was held by the opposition.

Security branches launched arrest campaigns targeting members of the former “local council” and other members of Rif-Dimashq Provincial Council in the city of Kafr Batna in central Ghouta, according to Enab Baladi referring to local sources.

Sources affiliated to the council told Enab Baladi that Syrian security forces raided the houses and workplaces of the detainees before taking them to an unknown destination. Other local council members, who preferred to stay in Ghouta rather than go to northern Syria, are detained for the same reasons.

In the face of all that, it’s not easy to find grounds for optimism, but there is a glimmer of hope in a report from Maryam Saleh at The Intercept:

Syrian activists and lawyers are testing the bounds of international law, making two new attempts to bring the government of Bashar al-Assad before the International Criminal Court.

Syrian refugees in Jordan, through London-based lawyers, sent communications to the office of the ICC prosecutor, asking her to exercise jurisdiction over Syria based on a precedent set last year in a case involving Myanmar’s persecution of Rohingya Muslims. The communications are the latest push by Syrian civilians to hold accountable the government whose brutality upended their lives. In recent years, Syrian lawyers and human rights activists have experimented with rarely utilized aspects of international law, succeeding in getting European and American courts to weigh in on atrocities committed in Syria.

“Because of how politicized the war in Syria became, lawyers and those fighting for accountability really had to be creative,” said Mai El-Sadany, the legal and judicial director at the Washington-based Tahrir Institute for Middle East Policy. “The most recent ICC Article 15 submissions” — a reference to communications with the ICC on information about alleged international crimes — “are evidence of this, that there is space for creativity in the accountability space.”

She continues:

Even when the evidence of potential crimes exists, investigations into crimes committed in states that have not ratified the Rome Statute are near impossible because of jurisdictional issues, and U.N. Security Council members are quick to use their veto power to block investigations into crimes potentially committed by their allies.

That’s what makes the various avenues Syrians are pursuing so significant. As of last March, more than two dozen cases had been filed in European courts regarding atrocities committed by the Syrian regime, rebel fighters, and the Islamic State and other fundamentalist militant groups. The family of Marie Colvin, an American journalist killed in 2012 while reporting from the city of Homs, sued the Syrian government in a U.S. district court; in January, the court found Syria responsible for killing Colvin.

Many of the cases in Europe were brought under a legal doctrine known as universal jurisdiction; application of the doctrine varies from country to country, but it essentially allows for courts to prosecute cases regardless of where the crime was committed or whether the accused party has any links to the prosecuting state.

The biggest success so far has been in Germany, where authorities last month arrested a former high-ranking Syrian intelligence officer and two others who are accused of crimes against humanity for torturing detainees in Syrian prisons. Other cases remain pending in France, Sweden, and Spain….

These attempts are possible in part due to an unprecedented level of documentation of crimes in Syria. The victims in some of the cases were identified from a trove of 28,000 photos of people killed in Syrian detention centers, smuggled out of the country by a military defector codenamed Caesar. The U.N. General Assembly, in December 2016, took the step of creating the International, Impartial, and Independent Mechanism to investigate crimes in Syria since 2011. The IIIM, as the body is known, does not have independent prosecutorial authority, but it exists to collect information that could later be provided to courts or tribunals with jurisdiction over the crimes. Last year, 28 Syrian nongovernmental organizations committed to collaborating with the IIIM on its work.

This is heartening in its way, but whenever I’ve been asked about attempts to enforce accountability in relation to the systematic attacks on hospitals, I’ve had to say that the hideous intimacy between torturer and tortured allows for an identification and assignment of culpability that is much more difficult in the case of the extended ‘kill-chain’ involved in bombing.

But that doesn’t mean it’s impossible: we know, from the courageous work of activists cited in Maryam’s report, that Assad’s security apparatus fetishized record-keeping, and that many of those records have been smuggled out of Syria so that they can now serve as testimony and evidence  (For other testimonies, see the work of Forensic Architecture on Saydnaya Prison that I described here: scroll down).  To sharpen the point, hare some of the slides from a presentation I once gave around precisely these questions:

If my work on bombing in other theatres of war is anything to go by, there will also be extensive trails (paper or digital) that animated the air strikes: though how they can ever be exposed is another question.

Fighting over Kunduz

This is the third in a new series of posts on military violence against hospitals and medical personnel in conflict zones. It examines some of the key issues arising from the US attack on the Trauma Centre run by Médecins Sans Frontières (MSF) in Kunduz on 3 October 2015; it follows directly from my detailed analysis of the attack here and prepares the ground for a still more detailed analysis of attacks on hospitals, doctors and casualties in Syria to follow.

There are at least four main issues arising from the US attack on the MSF Trauma Centre in Kunduz that spiral out into a wider argument about what I will later call ‘The Death of the Clinic’.  I’m treating ‘the clinic’ here as a topological figure that extends from the body of the wounded through the evacuation chain to the hospital itself.  The clinic has been accorded a privileged status within the space of exception that is the modern conflict zone – a complicated, fractured space in which killing is made permissible subject to the protocols of international humanitarian law –  so that the clinic becomes an exception to the exception and its inhabitants granted a conditional immunity from attack.

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It’s important to understand that this legal armature is not immutable, and that changes (and challenges) to it arise through both (geo)political and military actions; international humanitarian law is not a deus ex machina, somehow above the fray, but is thoroughly entangled with the prosecution of military violence.  More on this to come, but for now it will be enough to list some of the major protections accorded to the clinic in war-time.

The first Geneva Convention (1864) (‘the Red Cross Convention’):

Ambulances and military hospitals shall be acknowledged to be neuter, and, as such, shall be protected and respected by belligerents so long as any sick or wounded may be therein.  Such neutrality shall cease if the ambulances or hospitals should be held by a military force … A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuations.

Under the Hague Regulations (1899/1907) that were in force during the hospital raids in France at the end of the First World War:

… all necessary steps must be taken to spare, as far as possible, … hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.

Geneva Conventions 1949 care of woundedUnder the Geneva Conventions (1949) – whose provisions applied to the attack on the MSF Trauma Centre a hundred years later – there is a similar immunity granted to the military-medical machine:

The protection to which fixed establishments and mobile medical units of the Medical Service are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.

And this is explicitly extended beyond the military-medical machine to institutions like the MSF Trauma Centre:

Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict.

The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.

In so doing the treatment of hostile combatants is also explicitly provided for and protected:

The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service, shall not be considered to be acts harmful to the enemy.

The language and specifications change, but there is nevertheless a consistent thread running through these provisions.  It has been stretched – and perhaps broken – by the attack on the MSF Trauma Centre, and here I’ll focus on four issues that have proved contentious.  First, the visual identification of the Trauma Centre; second, the alleged breach of its conditional immunity; third, the construal of the attack as a war crime; and fourth, the putative rejection of medical neutrality altogether.

(1) Visual identification

International humanitarian law (IHL) requires those responsible for hospitals ‘to indicate their presence’ – the language varies – in order to ensure their protection, and here the US military investigation made this finding (all page numbers in brackets refer to the redacted report):

The center roof of the MSF Trauma Center was marked with two rectangular MSF flags… The front and sides of the MSF hospital were marked from the street view and a MSF flag flew in the courtyard.  The MSF Trauma Center was not marked with any internationally recognized symbols such as a red cross, red crescent or a red “H”.  If it had been marked with these symbols, it is possible the Trauma Center would not have been engaged. (082)

This counterfactual does not loom large in the report or its recommendations, but Charles Dunlap (at Lawfire) has seized upon it to berate MSF:

Ask yourself: wasn’t it a mistake for [MSF] – and a serious one – not to have marked its facility in accordance with Protocol III to the Geneva Conventions which designates “the only emblems recognized by nations signifying the protected status of individuals or objects bearing them during armed conflict”?  Had, for example, the hospital been marked with large Red Crosses/Red Crescents or one of the other internationally-recognized symbols (as the U.S. does) or something that would make its protected use clear from the air, isn’t it entirely plausible that the aircrew (or someone) might have recognized the error and stopped the attack before it began?

Put another way, isn’t it foreseeable that in an exceptionally chaotic combat situation (where a belligerent is making use of civilian buildings to conduct combat operations) that mistakes could occur in identifying a protected structure absent Protocol III markings or at least something to make it identifiable at a distance, especially when it’s known that attacking aircraft are being used?  Wouldn’t reasonably prudent persons have marked their medical facility with an internationally-recognized symbol or something of similar clarity to the warring parties?  Wouldn’t due care demand it in that situation?

In accusing MSF of ‘imprudence’ and even recklessness Dunlap applies a double standard.  He repeatedly insists that the US and the Afghan militaries confronted ‘an extraordinarily intense situation’ in Kunduz, that they faced ‘terrible urgency’ and ‘enormous pressure’ as they operated ‘in the turmoil of a war zone’ – all of which is undoubtedly true – but he uses this to excuse their mistakes while refusing to extend the same privilege to MSF.

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Let me remind you of Dr Kathleen Thomas‘s account of working in the ER (above) once the city had fallen to the Taliban:

The first day was chaos – more than 130 patients poured through our doors in only a few hours. Despite the heroic efforts of all the staff, we were completely overwhelmed. Most patients were civilians, but some were wounded combatants from both sides of the conflict. When I reflect on that day now, what I remember is the smell of blood that permeated through the emergency room, the touch of desperate people pulling at my clothes to get my attention begging me to help their injured loved ones, the wailing, despair and anguish of parents of yet another child lethally injured by a stray bullet whom we could not save, my own sense of panic as another and another and another patient was carried in and laid on the floor of the already packed emergency department, and all the while in the background the tut-tut-tut-tut of machine guns and the occasional large boom from explosions that sounded way too close for comfort.

In any case, MSF had clearly ‘indicated their presence’ to both the US and Afghan authorities by providing them with the GPS co-ordinates of the Trauma Centre (see my previous discussion here). Dunlap finds this ‘commendable’ but ‘legally problematic’.

Instead, he is fixated on the absence of a Red Cross flag from the roof, in which case he might reflect on another passage from the report.  On 2 October, the day before the air strike, MSF phoned the Special Operations Task Force in Bagram to develop a contingency plan: while the Taliban were respecting the neutrality of the Trauma Centre and ‘treating the government casualties well’, they wanted to know the feasibility of extracting their patients should conditions deteriorate.  During that conversation they were advised to ‘take the signs normally affixed to the sides of the trucks and to install them on the top of the vehicles for easy identification by aircraft during this or any future MSF resupply operations‘ (503; my emphasis).  This surely makes it clear that the US military anticipated no difficulty in recognising MSF’s flag and logo as symbols of medical neutrality.

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(2)  Conditional immunity

IHL makes it clear that treating wounded combatants does not compromise the protections afforded to a medical facility; that occurs only if it is used as a base from which ‘to commit, outside their humanitarian duties, acts harmful to [one of the belligerents]’.  I’ll address the intervening clause – ‘outside their humanitarian duties’ – under (4) and confine my discussion here to the alleged militarisation of the clinic.

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MSF’s internal review found that its unambiguous ‘no weapons‘ policy was adhered to:

All of the MSF staff reported that the no weapons policy was respected in the Trauma Centre. [Since the KTC opened, there were some rare exceptions when a patient was brought to the hospital in a critical condition and the gate was opened to allow the patient to be delivered to the emergency room without those transporting the patient being first searched. In each of these instances, the breach of the no weapon policy was rapidly rectified.]  In the week prior to the airstrikes, the ban of weapons inside the MSF hospital in Kunduz was strictly implemented and controlled at all times and all MSF staff positively reported in their debriefing on the Taliban and Afghan army compliance with the no-weapon policy.

The US military investigation accepted this was indeed the case:

Evidence provided to the investigation team supports the MSF internal initial report’s characterization that their no-weapons policy was adhered to with rare exceptions (038, note 15).

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Mathieu Aikins‘s interviewees also confirmed the absence of weapons from the Trauma Centre:

Though the MSF hospital was crowded with fighters, whether patients or caretakers (each patient was allowed one), staff members and civilians who were present said the insurgents respected the rules. They left their weapons outside or handed them over at the gun lockers at the entrance. One employee recalled seeing a fighter give up his weapon but forget his ammunition vest; when the employee nervously approached the fighter about it, the man apologized profusely and handed it over. “We had respect for the hospital, as they were serving the people,” said Shahid, the Taliban commander. “I myself went there once when one of our men was wounded, and before entering we submitted our weapons outside.”

Aikins goes on to report that patients were allowed to retain their cellphones, and some of their caretakers retained hand-held radios whose transmissions were intercepted by Afghan special forces.  They in turn concluded that not only were the Taliban inside the hospital but were using it as a base: ‘They had raised their flag and established their headquarters there.’  On 1 October, presumably in response to these reports, the Pentagon contacted MSF in New York to ask whether ‘they had a large number of Taliban “holed up”’ in the Trauma Centre, and were assured that the only Taliban inside the hospital were wounded patients.

But the suspicions clearly remained, and festered to such a degree that some of those on the ground were convinced that the hospital had been overrun by Taliban fighters.  Associated Press reported that the radio intercepts prompted US analysts to request ‘specific intelligence-gathering flights over the hospital’ – their outcome has never been disclosed – and on 1 October a senior Special Forces commander (whether in Kabul or in Kunduz is unclear) wrote in his daily log that the Trauma Centre was under Taliban control and that he planned to clear it in the coming days.   At least some of the Green Berets in Kunduz agreed with his assessment: ‘They were using it as a C2 node … They had already removed and ransomed the foreign doctors, and they had fired on partnered personnel from there.’  Indeed, after the attack a senior US officer in Kabul was told – by whom has been redacted – that ‘there were three dead Military-Aged Males near the hospital, identified as Taliban by the local population.  They were using the hospital as a command post (using its protected status)’ (275).

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But all of this was fantasy, and the investigation discounted it.  Although US intelligence reported that insurgents were present at the hospital at the time of the strike, the investigation accepted that this was for medical treatment and they could trace ‘no specific intelligence reports that confirm[ed] insurgents were using the MSF Trauma Center as an operational  C2 [command and control] node, weapons cache or base of operations’ (085).  In addition, they determined that observations made from the AC-130 revealed neither substantive hostile acts nor demonstrations of hostile intent –  only ‘unarmed individuals walking around [or] sitting in chairs’ (085).  The report describes these as ‘ordinary and innocuous acts’ (055), but to at least one member of the aircrew that was in itself grounds for suspicion: ‘In his experience, when AC-130 aircraft fly over insurgents, they act normally or try to stay normal… [whereas] civilians will not try to be nonchalant when the aircraft is overhead’ (093, note 304).  Damned if you do, and damned if you don’t: when everything is construed as hostile, even the most innocent acts are transformed into somcething sinister.

The claims made by Afghan forces were even wilder.  Here is May Jeong in The Intercept:

On the night of the hospital strike, a unit commander with the Ministry of Defense special forces was at the police headquarters taking fire from the direction of the hospital. “Vehicles were coming out of there, engaging, then retreating,” he told me. When I pointed out that he couldn’t have seen the gate of the hospital from where he was, several hundred meters away, he said that he was sure because he had personally interrogated a cleaner who told him that the hospital was full of “armed men using it as a cover.” The cleaner told the commander that there were Pakistani generals using the hospital as a recollection point and that they had set up a war room there. When I challenged his line of vision again, he responded, “Anyone can claim anything. The truth is different.”

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[Amrullah] Saleh, [former head of the National Security Directorate and] the author of the 200-page Afghan commission report on the fall of Kunduz … believed that the “hospital sanctity had been violated” and held out as evidence 130 hours of recorded conversations with more than 600 interlocutors. “I spoke with the MSF country director,” Saleh told me recently. “They don’t deny that the hospital was infiltrated by the Taliban.”

But of course they did deny it: repeatedly, emphatically and convincingly.

(3) War crimes?

The US military investigation was unequivocal: it found multiple violations of the military’s own Rules of Engagement and of international humanitarian law.

The first rule of customary international humanitarian law, now codified in the Additional Protocols to the Geneva Conventions, is distinction:

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.

The investigation found that both the Ground Force Commander (GFC) and the aircraft commander failed to exercise this core principle:

Neither commander distinguished between combatants and civilians nor a military objective and protected property. Each commander had a duty to know, and available resources to know that the targeted compound was protected property’ (075-6).

A second core principle is proportionality:

Launching an attack 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, is prohibited.

The investigation found this to have been disregarded too:

The GFC and the aircraft commander failed to exercise the principle of proportionality in relation to the direct military advantage (076).

Both principles are deceptively simple, and in ‘The Passions of Protection: Sovereign Authority and Humanitarian War’ Anne Orford reminds us that IHL ‘immerses its addressees in a world of military calculations.’  In practical terms the distinction between civilians and combatants in today’s conflicts is rarely straightforward, but in this case the No-Strike List plainly recognised the protected status of the Trauma Centre and there is no convincing evidence that its immunity had been compromised.  In addition, the balance between loss of civilian life and military advantage is weighed on the military’s own scales – ‘expected’; ‘excessive’; ‘anticipated’: these are not self-evident calculations – but even if the GFC or the aircraft commander had grounds to believe the Taliban were firing from the hospital the Pentagon’s own Law of War Manual (which is not without its own controversies: see here and, specifically on proportionality, here and here) advises under §7.10.3.2 that

The obligation to refrain from use of force against a medical unit acting in violation of its mission and protected status without due warning does not prohibit the exercise of the right of self-defense. There may be cases in which, in the exercise of the right of self-defense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces receiving heavy fire from a hospital may exercise their right of self-defense and return fire.  Such use of force in self-defense against medical units or facilities must be proportionate.

Not only was there was no evidence of hostile let alone ‘heavy fire’ from the Trauma Centre but the AC-130 was also monitoring the progress of the Afghan Special Forces convoy that it was tasked with protecting and knew perfectly well that it was still within the perimeter of the airfield.  This was not a time-sensitive target (the report makes that crystal clear) and neither the GFC nor the aircraft commander had reason to believe that any putative threat to Afghan or US forces was so grave and so sustained that it called for an air strike involving multiple passes by the AC-130 – over 30 minutes according to the US military, an hour according to MSF – delivering such intense fires that the building was virtually destroyed.

For these reasons many commentators – and MSF (‘Under the clear presumption that a war crime has been committed, MSF demands that a full and transparent investigation into the event be conducted by an independent international body’) – have insisted that the attack was a war crime.

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But others (including the US military) have concluded that it was not.  US Central Command’s initial summary – produced before the redacted report was released – accepted that there had been breaches of both the Rules of Engagement and of IHL (‘the law of armed conflict’) but noted that

the investigation did not conclude that these failures amounted to a war crime.  The label “war crimes” is typically reserved for intentional acts – intentionally targeting of civilians or intentionally targeting protected objects.  The investigation found that the tragic incident resulted from a combination of unintentional human errors, process errors and equipment failures, and that none of the personnel knew that they were striking a medical facility.

The report has been so heavily redacted so that this legal discussion is unavailable (see also the commentary by Sarah Knuckey and two of her students here).  We do know that the investigation team included an unnamed legal advisor from US Central Command (CENTCOM) and that its report was subject to legal review by the Staff Judge Advocate, who accepted its findings as ‘legally sufficient’ with several, redacted exceptions  – though there is no way of knowing what they were (007-009).  We know too that General John Campbell, who ordered the investigation as commander of US Forces in Afghanistan, subsequently disapproved a number of findings and recommendations ‘not related to the proximate cause of the strike’ (002) but, again, the details have been excised.

General Votel at Pentagon press briefing on MSF attack

General Joseph Votel, commander of CENTCOM, repeated the summary statement’s disavowal of war crimes at a Pentagon Press Briefing on 29 April 2016, and in responding to a storm of questions from plainly incredulous reporters (above) he elaborated:

… an unintentional action takes it out of the realm of actually being a deliberate war crime against persons or protected locations…. They were absolutely trying to do the right thing; they were trying to support our Afghan partners; there was no intention on any of their parts to take a short cut, or to violate any rules that were laid out for them. And they were attempting to do the right thing.  Unfortunately, they made a wrong judgment in this particular case…

Jens David Ohlin explains the disputation (which Faye Donnelly helpfully re-casts as one between two contending narratives whose speech-acts struggle to realize their performative force):

The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent … but the civilian killings were not performed with purpose.

The Rome Statute of the International Criminal Court provides for war crimes prosecutions for ‘intentionally directing’ or ‘intentionally launching’ attacks that contravene international humanitarian law (in effect, criminalizing the rules of IHL).  Jens discusses this in relation to attacks on civilians, but the Statute also proscribes ‘intentionally directing attacks against buildings, material, medical units and personnel’ or against ‘personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission’.

In every case the emphasis is on intentionality, and yet intentionality – as philosophers have demonstrated time and time again – is not the simple, settled matter some legal scholars assume it to be.  Jens’s central point is that common-law cultures identify intentionality with purpose or knowledge whereas civil-law cultures widen its sphere to include a conscious disregard of risk or ‘recklessness’.  The full argument is here – including an intricate disection of the (geo)politics involved in drafting the Geneva Conventions and the Additional Protocols – but the sharp conclusion is that (for Jens, at least) the strike on the Trauma Centre would not constitute a war crime under the first count (he accepts that neither the GFC nor the aircraft commander possessed the knowledge or the purpose) but could under the second (their actions, and those of others, were reckless).  I should add that he recommends the recognition of a new war crime to explicitly address the second count and thereby signal ‘the moral difference between intentionally killing civilians and recklessly killing them.’

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The investigation report provides endless, explicit examples of a thoroughly compromised ‘risk management process’ by multiple actors at multiple sites, and this dispersal of responsibility in Kunduz (see map above) and Bagram further complicates the legal situation.  Peter Margulies – who does not accept that ‘the lack of intent among US personnel is determinative’ – concedes that ‘the cascading systemic errors in the hospital attack impede the attribution of culpable awareness to one or more specific individuals.’ In his view,

CENTCOM would have been better served by acknowledging that intent was not required [for the commitment of a war crime], but that awareness of risk was distributed among many organizational components, without full awareness concentrated in one or more individuals who could be charged criminally.

Adil Ahmad Haque notes that Additional Protocol I to the Geneva Conventions requires attackers to do ‘everything feasible’ to verify that their target is a military objective and instructs them in cases of doubt to presume that it is civilian – the Law of War Manual doesn’t follow this standard, but the investigation report does –  and here there is such clear evidence of recklessness on the part of many of the US forces involved (whose evidence is shot through with technical failures and radical uncertainty) that, in his view, their decision to press on with the attack ‘was unlawful, irrespective of their good faith.’

(4) Medical neutrality at risk

I noted above that hospitals only lose their protected status if they are used ‘to commit, outside their humanitarian duties, acts harmful to [one of the belligerents]’.  It’s a telling provision because its intermediate clause can be read as a tacit acknowledgement that those humanitarian duties – treating the sick and wounded – could otherwise be construed as acts harmful to their enemies.

And there is evidence that this is exactly how both the Afghan government and its military viewed MSF’s activities.  When Mathieu Aikins visited Kunduz after the air strike he reported:

Some members of the Afghan government and security forces there had little respect for MSF’s neutrality and resented its treatment of wounded Taliban. When I visited Kunduz in November, their anger was still surprisingly raw, despite the recent destruction of the hospital. “They give them medicine; they transport and treat their injured,” [Colonel Abdullah] Gard, the commander of the [Ministry of Interior’s] quick-reaction force, told me. “Their existence is a big problem for us…. The people that work there are traitors, all of them.”

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Gard (seen above) and one of his colleagues told May Jeong exactly the same:

Gard spoke of MSF with the personal hatred reserved for the truly perfidious. He accused the group of “patching up fighters and sending them back out,” a line I heard repeatedly. Cmdr. Abdul Wahab, head of the unit that guarded the provincial chief of police compound, told me he could not understand why in battle an insurgent could be killed, but the minute he was injured, he would be taken to a hospital and given protective status. Wouldn’t it be easier, he asked, wouldn’t the war be less protracted or bloody if they were allowed to march in and take men when they were most compromised? He had visited the MSF hospital three times to complain. Each time a foreign doctor explained the hospital’s neutral status and its no-weapons policy, which mystified him.

In short, it seems that some (perhaps many) in the Afghan security forces – particularly after the humiliation of being forced out of Kunduz – believed that the Taliban were legitimate targets wherever they were and that the fight against them was being hamstrung by what one officer described to Jeong as a ‘silly rule’.

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This becomes material because, as I showed previously, the intended target for the air strike was a National Directorate of Security compound whose co-ordinates had been passed to Major Michael Hutchinson, the Ground Force Commander, by Afghan Special Security Forces (who, like him, were unfamiliar with the city): they had identified the NDS compound as a Taliban command and control node, and planned to clear it on their return from the airfield following a casualty evacuation.  The AC-130 was supposed to provide Close Air Support, but a series of technical difficulties compromised the accuracy of its sensors and several hours after the Afghan Special Security Forces had left in an armoured convoy with their three casualties the aircrew were still unsure of the location of the target and so requested a verbal description of the NDS compound.  This was provided by Afghan forces still inside the Provincial Chief of Police compound: their description matched the MSF Trauma Centre much more closely than the NDS compound, and the aircrew fixed on this as their target.

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It’s impossible to know whether this was a mistake or misdirection, and the report fails to identify who provided the description.  Hutchinson was shown various photographs but explained that ‘it was dark when everything happened’; he couldn’t remember the name of the Afghan liaison officer and – the redactions make his responses difficult to follow at this point – he wasn’t always sure who he was talking to since he had to rely on interpreters (387-8).  But the description obviously had to come from someone who knew the city (which would include Gard and Wahab), and both Aikins and Jeong clearly believe that misdirection is not only possible but also extremely likely.  ‘That hospital is in the service of the Taliban,’ Gard told Aikins. ‘I swear to God, if they make it a hundred times, we’ll destroy it a hundred times.’  Hence the headline for Aikins’s searching New York Times report (above): ‘Doctors with enemies: did Afghan forces target the MSF hospital?‘ I should note that David Glazier dismisses all this as ‘highly speculative’ and insists that ‘it simply defies logic’.  While the claim is speculative it surely doesn’t defy logic, and Aikins and Jeong make at least a plausible if not definitive case).  They are clearly not alone in their suspicions: MSF’s very first question in response to the investigation report was this:

‘What was the physical description of the intended target provided by the Afghan forces and how did it match the description of the MSF hospital?’

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The studied refusal to recognise medical neutrality – if that is what this was – emerges from a long history of friction between MSF and the government in Kabul, and it threads its way out into a wider history and geography of deliberate attacks against medical facilities elsewhere in Afghanistan, and – among other recent places – in Gaza (by the Israeli military), in Syria (primarily by the Russian and Syrian Arab Air Forces) and in Yemen (primarily by the Saudi-led coalition which is advised by the United Kingdom on targeting).  In February 2014 Thanassis Cambanis was already writing that ‘medical care is now a tool of war’, and in a report issued in May 2016 the World Health Organisation counted almost 600 attacks against medical facilities, doctors and nurses in 19 countries since then.  These shocking statistics, which are inevitably imperfect, include attacks by non-state actors, among them the Taliban and Islamic State, but I have emphasised the complicity of state actors – including leading members of the UN Security Council – because it is their actions that determine the course of international humanitarian law and because they are ultimately responsible for what MSF’s president Joanne Liu saw in the wake of the attack on its Trauma Centre in Kunduz as  ‘not just an attack on our hospital’ but ‘an attack on the Geneva Conventions.’

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In a letter to the UN Security Council issued on 22 September 2016, after a direct and deliberate attack on a humanitarian convoy delivering aid to eastern Aleppo, more than 100 humanitarian organisations noted that:

‘Each [head of state] that accepts a lack of accountability for perpetrators and facilitators of war crimes colludes in the ongoing dissolution of international humanitarian law.’

That dissolution can be seen as a defiant reassertion of the absolutism of sovereign power, because ‘medical neutrality’ is not a neutral claim.  Adia Benton and Sa’ed Ashtan persuasively argue that:

The health worker’s claim to impartiality may itself be a stance against the state’s insistence that it is the sole arbiter of who can live and who can die. The local health worker’s claim to an international norm … may be understood as a direct challenge to the state’s claim to sovereignty…. Can ‘‘medical neutrality’’ accurately describe a situation where there is no neutral ground upon which to stand? (‘‘‘Even War has Rules’’: On Medical Neutrality and Legitimate Non-violence’ , Cult. Med. Psychiatry 40 (2016) 151-158).

As the spectral presence of Giorgio Agamben in my slide below implies, this has the liveliest implications for how we are to understand the space of exception and the refusal of its victims to be reduced to the passivity of ‘bare life’.

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As I will show in the next post in this series, Syria is the most egregious contemporary case.  If some members of the Afghan security forces wilfully misled the Americans into targeting the MSF Trauma Centre in Kunduz, then it seems clear that they objected to the protection extended by IHL to wounded Taliban combatants and those who treat them (though many of those killed in the attack were civilians, despite Alan Dershowitz‘s tawdry attempt to suggest that MSF ‘favoured Taliban fighters over civilian patients’: see Kevin Jon Heller’s magisterial response here).  But in Syria not only has the provision of medical aid to those in rebel-held areas been explicitly criminalised by the state’s new Counterterrorism Law which came into effect in July 2012 – the space of exception is far from being a ‘legal “black hole” – but the ban extends to those providing medical aid to sick or wounded civilians.  And make no mistake: there have been no mistakes.  The murder of doctors and nurses and the bombing of hospitals and clinics in Syria has been deliberate and systematic.  The exception to the exception contracts to its vanishing point.

To be continued.

 

‘Acceptable CIVCAS is 0’

Kunduz 0 Extract JPEG

Finally US Central Command has released a redacted version of its investigation into the US airstrike on MSF’s Trauma Center in Kunduz (see my posts here, here and especially here).  You can download it from CENTCOM’s Freedom of Information Act library here.  (All the extracts pasted below capture communications exchanges before the attack, but the report includes redacted interviews with the participants involved in clearing, executing and continuing the air strike; the image above – and the title for this post – is taken from a briefing slide included in the report).

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I’ll be spending the weekend reading it, but meanwhile the Intercept has published its own long-form account of the attack by May Jeong – ‘Death from the sky: searching for ground truth in the Kunduz hospital bombing‘.  It was written before CENTCOM’s investigation was released but includes details from a series of interviews and is truly compelling reading.

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I obviously won’t be alone in working my way through the report.  Yesterday MSF was briefed by the head of CENTCOM, General Joseph Votel, and today released this preliminary statement:

MSF will take the time necessary to examine the U.S. report, and to determine whether or not the U.S. account answers the many questions that remain outstanding seven months after the attack.

MSF acknowledges the U.S. military’s efforts to conduct an investigation into the incident. Today, MSF and other medical care providers on the front lines of armed conflicts continually experience attacks on health facilities that go un-investigated by parties to the conflict. However, MSF has said consistently that it cannot be satisfied solely with a military investigation into the Kunduz attack. MSF’s request for an independent and impartial investigation by the International Humanitarian Fact Finding Commission has so far gone unanswered….

The hospital was fully functioning at the time of the airstrikes. The U.S. investigation acknowledges that there were no armed combatants within – and no fire from – the hospital compound.

The nature of the deadly bombing of the MSF Kunduz Trauma Centre, and the recurring attacks on medical facilities in Afghanistan, demand from all parties to the conflict a clear reaffirmation of the protected status of medical care in the country. MSF must obtain these necessary assurances in Afghanistan before making any decision on if it is safe to re-start medical activities in Kunduz.

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The Pentagon has insisted that no war crimes were committed but confirmed that 16 people had been punished.  Mark Thompson explains:

None of those involved will face court martial, but the administrative punishments levied against them—ranging from removal from command, letters of reprimand, to counseling—likely mark the end of their careers in uniform. None was identified by name. Those involved—the highest-ranking was a two-star general—included those aboard the AC-130 gunship that repeatedly fired on the Doctors Without Borders hospital in Kunduz, as well as members of the Army Special Force team on the ground that called in the strikes.

MSF has, understandably, condemned this response, arguing that the punishments

are out of proportion to the destruction of a protected medical facility, the deaths of 42 people, the wounding of dozens of others, and the total loss of vital medical services to hundreds of thousands of people. The lack of meaningful accountability sends a worrying signal to warring parties, and is unlikely to act as a deterrent against future violations of the rules of war.

That last sentence is particularly important, because there has been a steady increase in the targeting of medical personnel and medical facilities in Afghanistan, occupied Palestine, Syria and elsewhere: all gross violations of medical neutrality.

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So this commentary from Joanne Liu (International President of MSF) and Peter Maurer (President of the International Committee of the Red Cross) – also published today – is much more than a response to the bombing of yet another MSF facility, this time in Aleppo:

What we are witnessing is a sustained assault on, and massive disregard for, the provision of healthcare during times of conflict. Under international humanitarian law and principles, health workers must be able to provide medical care to all sick and wounded regardless of political or other affiliation, whether they are a combatant or not. And under no circumstances should they be punished for providing medical care which is in line with medical ethics. The doctor of your enemy is not your enemy.

But we are confronted with violations of these fundamental rules, with serious humanitarian consequences, for entire communities and healthcare systems that are already stretched to the limit. And this is not just the opinion of MSF and the Red Cross Red Crescent Movement.

That is why we, as the presidents of MSF and the ICRC, welcome the proposal for a landmark UN resolution to protect healthcare. But we urge the UN security council to make the resolution effective. First, it should send a powerful political message that healthcare needs to be protected. All parties to an armed conflict must fully comply with their obligations under international law, including humanitarian law. And they must clearly state their respect for the delivery of impartial medical care during times of conflict.

Second, it must urge states and all parties to armed conflict to develop effective measures to prevent violence against medical personnel, facilities and means of transport. States need to bolster, where appropriate, their legislation including by lifting restrictions and sanctions impeding impartial wartime medical care.

Armed forces and all parties to a conflict should integrate practical measures for the protection of the wounded and sick and for those engaged in medical work. These should be incorporated into orders, rules of engagement, standard operating procedures and training.

Third, it must acknowledge that when attacks on medical facilities and personnel do take place, there needs to be full, prompt, impartial and independent investigations to establish the facts. It cannot only be the victims or perpetrators who attempt to establish the facts. And there should be regular and formal reporting of such attacks at the highest level and an annual debate in the security council.

Underpinning everything has to be the acceptance that the medical needs of people – no matter who they are, where they are from or what side they support or fight for – must take precedence. Medical staff are present in areas of conflict in order to care for the sick and wounded, on the basis of need. And only need. This is the fundamental principle of impartiality and is the basis of medical ethics. It is the very fact that doctors treat on the basis of need – and are not involved in hostilities – that they can claim protection under international humanitarian law.

But there is more.  John Sifton from Human Rights Watch insists that General Viotel was simply wrong to claim that war crimes must be deliberate or intentional, so that those involved in the attacks on the MSF hospital could be absolved of criminal responsibility because the acts they committed were genuine mistakes.  According to the New York Times, Sifton argued:

There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, and that recklessness or negligence do not necessarily absolve someone of criminal responsibility under the United States military code.