Afghanistan: US Inquiry Must Go Past Admitting Mistakes

Washington, DC (HRW) – The United States military’s statement that US forces “mistakenly struck” a Medecins Sans Frontieres (Doctors Without Borders, MSF) hospital in Kunduz, Afghanistan needs to be followed up by a credible, independent, and transparent investigation that provides genuine accountability, Human Rights Watch said today. The US should establish an independent panel outside the military chain of command with the aim of establishing the facts and assessing possible culpability for the strike that killed at least 22 medical staff and patients and wounded dozens more.

“There’s no question deadly mistakes were made in the bombing of the MSF hospital,” said Brad Adams, Asia director at Human Rights Watch. “Now it’s the responsibility of the US government to take prompt and transparent action to fully compensate the victims of the attack, ensure full accountability for what occurred, and adopt measures to ensure this doesn’t happen again.”

At a Senate hearing on October 6, 2015, Gen. John Campbell, commander of US forces in Afghanistan, testified that “the decision to carry out a deadly air strike that hit a hospital in the Afghan provincial capital of Kunduz was made within the US chain of command.” He also stated that he “had confidence the three investigations into the incident – conducted by NATO, the Department of Defense, and Afghanistan’s government – would bring the facts to light.”

However, contradictory statements since the October 3 airstrike raise concerns about the credibility of these investigations, Human Rights Watch said. The NATO-led coalition initially characterized the destruction to the hospital as “collateral damage” after a US airstrike was carried out “against insurgents who were directly firing upon US service members advising and assisting Afghan Security Forces” in the vicinity of the hospital. On October 5, Campbell stated that “Afghan forces advised that they were taking fire from enemy positions and asked for air support from US forces,” appearing to shift responsibility for the airstrike to the Afghan forces.

MSF officials have consistently maintained that there was no armed Taliban presence inside the hospital compound and that US and Afghan officials were informed of the hospital’s coordinates well in advance. MSF has provided extensive witness accounts about the attack, which continued for at least 30 minutes after the organization had called both Afghan and US officials to try to get the attack stopped. MSF has also stated that only its own staff and patients were inside the hospital at the time of the attack.

Many important facts about the airstrikes still have not come to light, Human Rights Watch said, including the nature of Taliban activity in the vicinity of the hospital at the time of the attack. Also unclear is the method of attack used by US forces, the intended target, the number of strikes, and what precautions were taken to minimize civilian harm.

The laws of war require that the parties to a conflict take constant care during military operations to spare the civilian population and to “take all feasible precautions” to minimize the loss of civilian life and damage to civilian objects. Prohibited are deliberate attacks on civilians and civilian objects, and indiscriminate attacks, which are attacks that do not distinguish between military objectives and civilians. States have an obligation to investigate and fairly prosecute individuals in their armed forces implicated in war crimes. War crimes are serious violations of the laws of war committed with criminal intent.

Hospitals have special protections under the laws of war. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.” Attacks on forces using a hospital for military purposes must not be disproportionate – that is, the civilian harm incurred in the attack cannot exceed the expected military gain.

There have been previous incidents in Afghanistan where US forces have called in an airstrike based on requests by US forces that have resulted in high civilian casualties. In 2008 Human Rights Watch released a report, “Troop in Contact: Airstrikes and Civilian Deaths in Afghanistan,” documenting large numbers of civilian deaths and injuries as the result of US airstrikes that almost always occurred during rapid-response strikes, often carried out in support of ground troops after they came under Taliban attack. Such unplanned “opportunity” strikes in support of ground troops that have made contact with enemy forces are known as “Troops in Contact” (TIC) strikes.

Between 2006 and 2008, more than 550 Afghan civilians were killed in TIC incidents in Afghanistan. Human Rights Watch investigated many of these cases and found that in all of them there were concerns as to whether the attacking forces acted in accordance with their obligation under the laws of war to exercise “constant care to spare the civilian population” and to take “all feasible precautions” to minimize loss of civilian life. This obligation requires that combatants do everything feasible to verify that targets are “military objectives,” and not civilians; that the means and methods of warfare are chosen to minimize civilian loss; and that the expected civilian loss is not excessive in relation to the concrete and direct military advantage expected.

In addition to calling for prompt, credible, and transparent investigations in the event of airstrikes causing civilian casualties, Human Rights Watch recommended adopting measures to reduce the likelihood of civilian casualties in TIC situations:

  • Airstrikes should not be carried out without an adequate Collateral Damage Estimate (CDE);
  • Trained Joint Terminal Air Controllers (JTACs) should be involved in all TIC airstrikes, including those involving special forces;
  • There should be no strikes in densely populated areas unless the intelligence is highly reliable and the target has been visually identified;
  • Precision-guided low-collateral-damage munitions should be used whenever possible, especially on targets in populated areas;
  • Rules of engagement should be adopted by the US and NATO that are consistent to ensure that differences do not result in unnecessary civilian casualties;
  • JTAC training regarding civilian casualties and field CDEs should be improved; and
  • All strike aircraft should have low-collateral-damage bombs available at all times to minimize the potential for civilian casualties.

Campbell testified that an AC-130 gunship, reportedly equipped with a 105mm howitzer, was called in to carry out the strike.

Human Rights Watch called for any investigation to address key questions, such as:

  1. Did the AC-130 have a JTAC member on board?
  2. Did US forces fire based solely on intelligence from Afghan troops? Did the US identify and confirm the targets independently?
  3. Did the AC-130 use weapons with a large blast and fragmentation radius, such as the105mm howitzer it was reported to be carrying? Explosive weapons with wide area effects are not appropriate for use in populated areas. Could weapons that presented a lower risk to civilians be reasonably used?

“Conflicting accounts of the October 3 airstrikes and the inadequacy of previous US investigations into civilian casualties in Afghanistan raise concerns about the credibility of the proposed investigations,” Adams said. “To ensure that the US inquiry into the MSF hospital bombing is viewed as independent and impartial, the US should create a special independent investigation panel outside the military chain of command.”

Enduring FreedomThis report was prepared by Human Rights Watch.