The Oldest War Crime in the Book?

During the night of Friday to Saturday 3rd of October 2015 the US airforce bombed a hospital in the Afghan city of Kunduz.  The attack destroyed the hospital and killed (as of today, 5th of October) 13 Médecins sans Frontières staff and about 10 of their patients. The US military soon recognized their responsibility in this attack, MSF has been prompt to denounce the attack as a war crime. The US army after announcing that an inquiry would be needed to find out the full facts now seem to be using Afghan sources to justify this attack. The Washington Post now makes room for claims that the attack may have been warranted – that the compound may have been a refuge for armed Talibans. Under fire from the hospital, its destruction would have been warranted in tactical terms.

In the left leaning French press, in an article of Libération the French political scientist Gilles Dorronsoro attributes a strategic aim to this shelling. By destroying the hospital the Afghan government and its American allies would be waging a war against humanitarians who stood aloof from the US led reconstruction of Afghanistan. The destruction of the hospital would thus tear apart a major international NGO from the Taliban and deprive Taliban fighters from decent medical infrastructures and presumably affect morale and military effectiveness.

Whether tactical or strategic the destruction of a hospital is undoubtedly in violation of the Geneva Convention and can be classified as a war crime. It is also the oldest war crime in the book, including in US military law under the terms of the American general order 100 promulgated by President Lincoln in 1863: art 35 ‘hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.’  These terms were almost copied word for word in the Geneva convention of 1949 (IX & xxiv). Under the terms of the Geneva Convention (art. 147 and additional protocol I) violating these terms are regarded as ‘grave breaches’ or war crimes.

The law has always been extremely clear regarding the fact that a hospital – even when it is the last redoubt of entrenched enemies – cannot be considered a normal target. Yet the law has always been challenged in practice. On 21 January 1871 for instance an entire French hospital was massacred by German soldiers, the same year German positions shelled the hospitals of Paris until the French used prisoners as human shields, also in violation of the Geneva Convention of 1864. One could multiply the examples over the last 150 years of violations of the sanctuary rights of hospitals or of the neutrality of medical staff. In 1878 the Russians shelled an Ottoman hospital in what is now Bulgaria. Hospital ships were sunk during both world wars (23 for World War II alone). Wars since 1945 have been marred by a multitude of incidents and massacres, purposeful acts of violence or indiscriminate shelling. As the Médecins sans Frontières author François Jean noted it in 1996, during the Chechen war, Russian blanket shelling made no room for hospital neutrality.[1] Historical evidence shows repeatedly that one cannot assume any legal protection when the frontline approaches the medical facilities.  

Does this sorry story make the Kunduz shelling less of an outrage? Of course it does not. It is made more shocking by the fact that we have been used to a language of the military which stresses the ‘surgical’, precise or even intelligent nature of modern warfare. This does not square well with the euphemism of ‘collateral damage’. A hospital is a landmark on any map, in any city, in any masterplan. This attack against a hospital staffed by a major medical NGO has to be put in context – many medical structures are under attack today in Syria or Yemen. But this attack reminds us that humanitarian law is often breached – that it has little power of redress  – that the emblems of neutrality do not provide safety or security if the warring parties do not wish to abide by international law. It is striking, however, that there is not more of a public uproar when the armed forces of democracies act against their own legal tradition. This violence has a tendency to backfire whatever its immediate tactical or strategic purpose. If the historical evidence shows that warring parties have long violated the treaties that are meant to make war less inhuman when they imagined they could get away with it – it also shows that there is, almost always, a political price to pay for acts of that kind.  

Bertrand Taithe

[1] Jean, François. “The problems of medical relief in the Chechen war zone.” Central Asian Survey 15, no. 2 (1996): 255-258.

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