Attack on the Geneva Conventions? A Principled Review of the US Military Strike on the MSF Trauma Centre in Kunduz, Afghanistan
In October 2015, the US military attacked a trauma center operated by the global aid agency Médecins Sans Frontières in Kunduz, Afghanistan. Because medical facilities are protected pursuant to international law from being made the object of attack, the incident was widely condemned in global public discourse as a war crime. The US military dismissed this characterization with one single sentence, asserting that “the label ‘war crimes’ is typically reserved for intentional acts” and that this attack does not qualify because the trauma center was not attacked “intentionally”. Demands to allow for an investigation by an independent, international fact-finding commission went unheeded by the US military, which instead performed its own internal investigation. The decision not to initiate criminal proceedings against any personnel involved in the attack prompted further public outcry. The discord created by various competing narratives and perspectives involving this attack remains largely unresolved. This thesis engages in a thorough and detailed analysis that is founded upon identified legal principles to evaluate whether the attack constitutes a war crime. After concluding that the attack is not a war crime because the required mental element is not established, the examination goes on to assess whether personnel involved in the attack nonetheless violated applicable international law. The assessment of compliance with the law of armed conflict (LOAC) concludes, contrary to the findings of the official military investigation, that the LOAC rules of distinction and proportionality were not violated, though specific personnel violated the requirement to take feasible precautions in the attack. Existing narratives related to this attack typically are not founded upon a recognizable legal analysis or, as is the case with the official military investigation, are built upon an inaccurate or incomplete legal analysis. This is so even though these narratives invoke inherently legal terminology such as “war crime” and “LOAC violation”. An analysis based on identifiable and verifiable legal principles can provide a foundation for the effort to reconcile the various competing narratives and perspectives and perhaps assuage the discord that persists today. The detailed legal analysis conducted in this thesis is intended to provide such a foundation.
URI for this recordhttp://hdl.handle.net/1974/24865
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