Story highlights
After U.S. bombing of Afghan Doctors without Borders hospital, aid group demands war crimes investigation
Lawyer: Hospitals have special protection in conflicts, but they lose it if they are used for military purposes
Armed forces forbidden from indiscriminate attacks, but laws recognize that mistakes are made in the "fog of war"
(CNN) —
The bombing by U.S. forces of a Doctors without Borders hospital in the Afghan city of Kunduz, which left at least 22 people dead, has caused outrage and raised questions around the world.
The United States says it is conducting a “full investigation,” but the medical aid group, also known as Medecins Sans Frontieres, or MSF – which lost 12 staff members in the attack – has called for an independent inquiry “under the clear presumption that a war crime has been committed.”
Doctors without Borders is asking for an investigation to be carried out by a never-before-used commission: the International Humanitarian Fact-Finding Commission.
It’s an open question as to whether an inquiry could be initiated, as the commission’s website says it requires the consent of the parties involved, and neither the United States, Afghanistan, nor France recognizes the commission.
CNN asked Steven Kay, who defended Kenyan President Uhuru Kenyatta against charges of crimes against humanity at the International Criminal Court, and Anthony Dworkin, co-editor of “Crimes of War: What the Public Should Know,” about the case.
READ MORE: MSF calls Kunduz bombing an ‘attack on the Geneva conventions’
In general terms, a war crime may be committed when there is an attack on a civilian population during an armed conflict, Kay says.
There is an extensive body of law that regulates military action during conflict.
The aim, says Dworkin, is to draw a balance between what armed forces are justified to do out of military necessity – which includes causing collateral damage to civilians – and the principles of humanity.
“Hospitals enjoy a special protected status under international humanitarian law. So, to attack a hospital or medical facility, whether it is a civilian or military installation, is a crime,” says Kay.
However, if the hospital is used to support military operations for nonmedical purposes, then it loses its special protection status and it can be attacked by the opposition forces.
But the law requires that the attack be proportionate to the threat and risk involved.
04:18 - Source: CNN
Police shoot stun grenades at peaceful Arab-Israeli protesters
PHOTO:
CNN
Police shoot stun grenades at Arab Israelis protesting an increase in gang violence in their towns.
Now playing
Police shoot stun grenades at peaceful Arab-Israeli protesters
PHOTO:
olcanological Survey of Indonesia via Reuters
Mount Sinabung in Indonesia erupted on March 2, launching a cloud of ash and dust several kilometers into the sky. No one was injured in the eruption but authorities have warned people to stay away from the crater.
Now playing
See this volcano in Indonesia erupt
PHOTO:
Courtesy Maxar
New satellite images taken by Maxar show that North Korea sometime in the past year built a structure that may be intended to obscure entrances to an underground facility where nuclear weapons or nuclear weapons components are stored.
Now playing
See images US intelligence claims is a secret weapons site
nigeria kidnapped schoolgirls released Busari pkg intl ldn vpx_00000423.png
Now playing
Tears of joy and relief as 279 Nigerian schoolgirls return home
PHOTO:
STR/AFP/AFP via Getty Images
Protesters take cover behind homemade shields as tear gas is fired during a demonstration against the military coup in Yangon on March 1, 2021. (Photo by STR / AFP) (Photo by STR/AFP via Getty Images)
Now playing
Footage shows tear gas, flash bangs used on protesters in Myanmar
PHOTO:
CNN
01 rivers migrants pkg 02282021
Now playing
CNN correspondent speaks to migrants making dangerous journey to US
PHOTO:
Kiran Ridley/Getty Images
PARIS, FRANCE - MARCH 01: Former French President Nicolas Sarkozy leaves court after being found guilty of corruption and influence-peddling on March 01, 2021 in Paris, France. Mr. Sarkozy is only the second French president in modern times to have been convicted, after the conviction of former President Jacques Chirac in 2011. (Photo by Kiran Ridley/Getty Images)
Now playing
'An earthquake in French politics': CNN reporter on Sarkozy sentence
Hear from schoolgirl who escaped abduction in Nigeria
PHOTO:
Metropolitan Police
UK police appealed for help Friday, Feb. 20, 2015, to find three teenage girls who are missing from their homes in London and are believed to be making their way to Syria.
The girls, two of them 15 and one 16, have not been seen since Tuesday, Feb. 17, 2015, when, police say, they took a flight to Istanbul. One has been named as Shamima Begum, 15, who may be traveling under the name of 17-year-old Aklima Begum, and a second as Kadiza Sultana, 16. The third girl is identified as Amira Abase, 15.
Now playing
Shamima Begum loses legal bid to return home to appeal citizenship revocation
How a religious festival turned into a massacre
PHOTO:
FAYEZ NURELDINE/AFP/Getty Images
Saudi Crown Prince Mohammed bin Salman attends a conference in the Saudi capital Riyadh on October 2018.
Now playing
US intel report: Saudi Crown Prince responsible for approving Khashoggi operation
PHOTO:
Costa Argyrous
A Fijian rugby team serenaded workers in the Sydney hotel where they are quarantining.
Now playing
See Fijian rugby team serenade quarantine staff in Australia
PHOTO:
FERNANDO MACHADO/AFP/AFP via Getty Images
Soldiers stand guard outside the CRS Turi prison in Cuenca, Ecuador on February 24, 2021. - At least 79 inmates died in simultaneous riots blamed on gang warfare at four prisons in Ecuador, officials said Wednesday. (Photo by FERNANDO MACHADO / AFP) (Photo by FERNANDO MACHADO/AFP via Getty Images)
Now playing
Ecuador prison riots leave dozens dead in gang 'extermination'
PHOTO:
Russia MOFA
Russian diplomats working in the Pyongyang embassy had to use a handcar as they returned home from North Korea with their family members.
In a video released by the Russian Foreign Ministry on Thursday (February 25) diplomats and their family members are seen pushing a handcar and cheering as they cross the bridge which serves as a demarcation line between the two countries.
Now playing
Video shows Russian diplomats leaving North Korea on handcar
PHOTO:
Daniel Slim/Getty Images
The Pentagon, the headquarters of the US Department of Defense, located in Arlington County, across the Potomac River from Washington, DC is seen from the air January 24, 2017. / AFP PHOTO / Daniel SLIM (Photo credit should read DANIEL SLIM/AFP via Getty Images)
Now playing
US carries out airstrikes on Iran-backed militia groups
Doctors without Borders says the hospital was bombed for more than half an hour after it notified NATO and U.S. officials that the facility was under attack.
In this case, according to Kay, the hospital bombing would be justified, and not considered a war crime, only if there was a clear, imminent or ongoing attack at the hospital.
Kay notes that there have been instances of medical installations being used as cover for forces to launch attacks.
Kay cites examples including allegations that during the last three decades of the Sri Lankan civil war, the separatist Tamil Tigers based fighters and used force at protected sites like civil hospitals. A U.N. panel found credible allegations of war crimes committed by both sides during the final stages of the country’s civil war.
Dworkin makes the point that hospitals can be attacked by mistake.
In comments Monday, Gen. John Campbell, the commander of U.S. forces in Afghanistan, described the hospital deaths as an error, saying “several innocent civilians were accidentally struck” in an operation targeting Taliban fighters.
Dworkin says he believes that in this case, the United States would not be found guilty of committing a war crime because although armies are forbidden from conducting indiscriminate attacks, “the laws do recognize that mistakes happen in the fog of war.”
But it would come down to a matter of evidence and establishing exactly what happened.
Collateral damage: A brief history of mistakes at war
“Beyond reasonable doubt – the criminal standard of proof,” says Kay.
