How U.S. should investigate hospital attack

Story highlights

  • At least 22 people were killed in a U.S. airstrike on an Afghan hospital
  • Joanne Mariner: U.S. military investigations falling short

Joanne Mariner is Amnesty International's senior crisis response adviser. The opinions expressed in this commentary are solely those of the author.

(CNN)"There are no words for how terrible it was," Doctors Without Borders nurse Lajos Zoltan Jecs said, describing the aftermath of the U.S. airstrike on Kunduz hospital in Afghanistan last Saturday. "In the Intensive Care Unit, six patients were burning in their beds."

Kunduz hospital was the only surgical facility of its kind in north Afghanistan, and was a place that victims of the conflict came to for treatment. Every month, dozens of people with gunshot wounds, blast injuries or embedded shrapnel made often perilous journeys to reach its sanctuary. Over the years, hundreds of lives have been saved by Doctors Without Borders staff working there. Yet on Saturday, 12 of those staff, and 10 patients -- including three children -- lost their lives.
Joanne Mariner
The hospital was attacked despite the fact that all parties to the conflict, including in Kabul and Washington, had been repeatedly informed of the precise location of the Doctors Without Borders facilities. The medical aid group says that even after Afghan and U.S. officials were informed of the strikes, the bombing of the hospital continued for more than 30 minutes.
    U.S. Secretary of Defense Ash Carter said in a statement Tuesday that the U.S. military was carrying out a "full and transparent investigation" into the incident, one that would "hold people accountable as necessary." While his explicit reference to accountability is encouraging, a review of the United States record is not.
    To be credible, and to fairly establish the facts, an investigation must be independent, thorough, and impartial. In other words, it must break with the pattern of past investigations. And anyone reasonably suspected of criminal responsibility must be held accountable through fair trials.
    The bombing of the hospital is not the first time that U.S. airstrikes have hit civilian targets in Afghanistan. Indeed, some of the war's deadliest incidents, in terms of the civilian toll, have involved U.S. airstrikes. In all, thousands of civilians have been killed by U.S. and allied bombs, with attacks hitting wedding parties, civilian homes, and civilian vehicles.
    The laws of war, while requiring that fighting forces take all feasible precautions to minimize harm to civilians, recognize that lawful attacks may cost civilian lives. While not all attacks that kill civilians are war crimes -- not even those that kill large numbers of civilians -- deliberate attacks on civilians (and of course hospitals) are unequivocally prohibited. It is also a war crime to intentionally launch an indiscriminate or disproportionate attack that results in death or injury to civilians -- that is, to launch an attack knowing that it will not distinguish between military objectives and civilian objects, or that it will cause excessive civilian injury.
    Importantly, the laws of war require that a prompt, thorough, and impartial investigation be carried out if there is prima facie evidence or credible allegations of unlawful killings. In the present case, such an investigation is clearly mandated.
    Last year, Amnesty International completed an extensive review of the U.S. record of investigating and, where appropriate, prosecuting cases involving civilian casualties in Afghanistan. We interviewed numerous civilian survivors of U.S. attacks, including airstrikes, reviewed the few cases that had resulted in trials, and compiled a large database of incidents in which civilians had been killed.
    Not one of the very small number of cases that were brought to the court martial stage involved illegal airstrikes. Instead, nearly all of them involved purposeful, close-range killings, as with Robert Bales' deliberate slaughter of 16 Afghan villagers in Kandahar province in March 2012.
    In examining the U.S. record, we found that its military's investigative and prosecutorial practices fall far short of what is needed to ensure accountability for crimes against civilians. In cases in which there was credible evidence of unlawful killings of civilians, the military failed to conduct prompt, thorough and impartial investigations.
    Notably, family members of the victims in nearly all of the incidents that Amnesty International documented said that they and other eyewitnesses had never been interviewed by U.S. military investigators. Without an effort to document the facts by speaking to those who could describe them directly, it is hard to see how an investigation could be considered serious or thorough.
    Moreover, the U.S. military's investigative practices fail an even more fundamental test.
    A key requirement of a good investigation is that those responsible for carrying out the investigation are independent of those implicated in the alleged crimes. But in the U.S. military justice system, investigations are carried out by military personnel with a career interest in not tarnishing the prestige of their service. A "commander-driven" system, the military justice system leaves numerous key decisions to the discretion of military commanders, and, to a large extent, relies on soldiers' own accounts of their actions in assessing the legality of military operations.
    Amnesty International's review of U.S .military investigative and prosecutorial practices led us to call for the urgent reform of U.S. laws and policies -- reforms similar to those that have been put in place in several European countries. Until such changes are made, we can have little confidence in the results of U.S. military investigations.
    So what should the response be to Saturday's attack?
    The U.S. government should mandate a civilian body, outside of the military chain of command, to investigate the hospital bombing. This body should be granted access to all relevant witnesses, participants and documents, and should issue a public report as promptly as possible. Most importantly, the potential criminal liability of those responsible for the bombing must be assessed, and avenues for accountability must be opened.
    In addition, Doctors Without Borders has called for the International Humanitarian Fact-Finding Commission to investigate. The Office of the Prosecutor of the International Criminal Court should also look at the bombing as part of its ongoing preliminary examination of the situation in Afghanistan.
    Doctors Without Borders is no stranger to working in conflict areas, and will continue to do so. But sadly, as surviving patients and staff have been transferred to other facilities, the hospital in Kunduz now stands empty.