The international president of Doctors Without Borders, also known as Médecins sans Frontières, has called a US attack on a hospital in Kunduz, Afghanistan, that on Saturday a “” and “ on the Geneva conventions”. On Wednesday, the director of the charity said of the airstrike, in an apparent violation of the Pentagon’s own instructions on the rules of war.
But could the strike be prosecuted as a war crime?
War crimes are defined as grave breaches of the laws of war set out in the of four treaties (1949). The conventions distinguish between combatants and non-combatants and include rules protecting non-combatants. War crimes under the conventions include willfully killing or torturing a protected person or targeting a protected facility such as a hospital without advance notice. The treaties were ratified by 196 countries including the United States.
US civilian and military lawyers have prosecuted war crimes under the War Crimes Act of 1996 and the Uniform Code of Military Justice. The Pentagon publishes a separate law of war manual that be given before civilian hospitals may be targeted, and for retaliation on such a target to be proportional.
Mary Ellen O’Connell, a professor of international law at the University of Notre Dame, said that according to international humanitarian law, the critical question for determining if US forces committed a war crime was whether they had notified the hospital ahead of the strike if they understood the Taliban to be firing from the hospital.
“Any serious violation of the law of armed conflict, such as attacking a hospital that is immune from intentional attack, is a war crime. Hospitals are immune from attack during an armed conflict unless being used by one party to harm the other and then only after a warning that it will be attacked,” O’Connell the Guardian.
But , an expert on accountability and transnational justice at Vanderbilt University law school, said in an email that “they do not have sufficient facts to allege an actual war crime, though I fully understand the outrage and hurt” in this case.
The Nuremberg trials of Nazi war criminals after the second world war were followed by “50 years of silence on international law”, according to The Practical Guide to Humanitarian Law by Françoise Bouchet-Saulnier, a book published by MSF.
Attempts to prosecute international war crimes began to re-emerge in 1993, with the establishment of a special war crimes tribunal on Yugoslavia, and in 1994 with a war tribunal on the Rwanda genocide.
A meeting of diplomats in Italy produced the Rome Statute of 17 July 1998, which set up the International Criminal Court at the Hague. The United States is not party to the ICC, which so far has only tried war crimes suspects . Earlier this year, a Palestinian delegation and elsewhere as potential war crimes.
Speaking in Geneva on Wednesday, the MSF international president, Joanne Liu, for a non-prosecutorial inquiry by the International Humanitarian Fact-Finding Commission, or IHFFC, a never-before-used investigative commission under the Geneva conventions.
Americans have been convicted of war crimes in court prosecutions, which have convicted soldiers and former soldiers.
Former US soldiers have also been convicted in civilian court of crimes committed in war zones. In May 2009, a Kentucky jury in the gang-rape and killing of a 14-year-old Iraqi girl and the murder of her family in 2006 in a village near Mahmudiyah, Iraq. Four other soldiers were convicted or pleaded guilty in the crime.
In March 1971, a military court convicted William Calley of the premeditated murder of 22 Vietnamese civilians in the My Lai massacre. In June 2012, to 16 counts of murder for the massacre of Afghan civilians in Kandahar, and was sentenced to life in prison.
Human rights and civil liberties groups including the Center for Constitutional Rights have attempted to prosecute former US officials for alleged war crimes including torture.
The Kuala Lumpur war crimes commission, whose legitimacy has been challenged around the world, has convicted in absentia former British prime minister Tony Blair and former US president George W Bush for the invasion of Iraq. The commission, which was set up by a former Malaysian prime minister in protest at inaction by other international bodies, also convicted former US vice-president Dick Cheney and others in absentia for the torture of detainees after the 11 September 2001 attacks.