On 8 October, Dr. Joanne Liu, the President of MSF issued a statement that included these words.
"It is precisely because attacking hospitals in war zones is prohibited that we expected to be protected. And yet, ten patients, including three children and twelve MSF staff, were killed in the aerial raids.
The facts and circumstances of this attack must be investigated independently and impartially, particularly given the inconsistencies in the US and Afghan accounts of what happened over recent days. We cannot rely on only internal military investigations by the US, NATO, and Afghan forces.
Today we announce that we are seeking an investigation into the Kunduz attack by the International Humanitarian Fact-Finding Commission (IHFFC). This Commission was established in the Additional Protocols of the Geneva Conventions and is the only permanent body set up specifically to investigate violations of international humanitarian law. We ask signatory States to activate the Commission to establish the truth and to reassert the protected status of hospitals in conflict. MSF has called the event a war crime and has demanded an international investigation."
Whether these attacks constitute a war crime, a deliberate breach of the Geneva Convention protections on hospitals in war zones, will be up to the IHFFC, which BBC News describe as a "never-used body" to determine.
A week after the event, some facts are apparent. The hospital, seen here in this photo from an MSF factsheet on the bombing, was clearly marked as such, and its location was known to NATO and Afghan authorities.
The MSF has denied claims from the Afghan government that enemy forces were operating on the hospital grounds.
This week the New York Times reported that the US forces involved were apparently not in a position to confirm what was happening at the hospital when they ordered the strike.
The Special Operations Forces also apparently did not have “eyes on” — that is, were unable to positively identify — the area to be attacked to confirm it was a legitimate target before calling in the strike, the officials said.
Regardless of what mistake may have been made, General Campbell told a Senate committee on Tuesday that the strike was ultimately the result of “a U.S. decision made within the U.S. chain of command.” He took responsibility for the sustained bombardment of the medical facility, which he said took place in response to an Afghan call for help.
“Obviously, the investigation is still underway, but Campbell’s thinking now is that the Americans on the ground did not follow the rules of engagement fully,” said one of three American officials, all of whom emphasized that no final conclusions had been reached and that the inquiry could yield different reasons for what transpired.
Under Article 18 of the Geneva Convention, hospitals enjoy protected status in war zones provided that they are being used as hospitals, as this UN commentary on the Article notes.
A civilian hospital must have the staff (including administrative staff) and the equipment required to fulfil its purpose. It must be organized to give hospital care. That is the essential point. It is not necessary for the hospital to function permanently as a hospital. The Diplomatic Conference considered that establishments converted into auxiliary hospitals as an emergency measure consequent upon the events of war, should not be excluded from the protection of the Convention (5), as such hospitals are very often established in the combat area itself, and their need for protection is thus all the greater. The deciding factor is, as has just been mentioned, that it must be effectively possible to give hospital treatment and care, and that necessarily implies a modicum of organization.
Clearly the hospital in Kunduz was organized to provide care, and was entitled to the protection of the Geneva Convention.
In an interview with NPR, an American law professor noted that to convince a court or tribunal that this a war crime, as something more than an accident, would be difficult.
Still, it is a high bar to call the Kunduz attack a war crime, says Robert Goldman, who teaches international law at American University.
"Are we going to have to make some kinds of reparation and so forth? Well, I think, you bet," he says. But, he cautions, it will be difficult to make a case that this was an intentional attack on a protected place — rather than just a case of poor intelligence or negligence.
"The burden would be on the prosecution to establish beyond a reasonable doubt that this was an attack willfully undertaken in the knowledge that it was an object entitled to protection," Goldman says. "That is a very, very high hurdle."
At the very least, the bombing of the hospital in Kunduz was the result of haste, the "fog of war", chaos, and poor communications. It should not have happened. It seems unlikely that those who bear responsibility will face international justice, but the doubtless will face internal investigation, and possibly reprimand and dismissal. Beyond those consequences, those who called the mission, authorized it, flew it, and fired the weapons will face the moral consequences and injury for the rest of their lives.