The Pentagon on Friday released the findings of its inquiry into the October 3, 2015, air attack on a Doctors Without Borders (Médecins Sans Frontières, or MSF) hospital in Kunduz, Afghanistan. If the report was meant to demonstrate that appropriate action had been taken against those responsible, it was a failure. Instead, it highlights both the unlawfulness of the attack and the inadequacy of U.S. military justice. Those responsible received administrative punishment -- and not a single criminal charge was pursued.
The airstrike killed 42 patients, caregivers and medical staff, and injured dozens more. Some patients burned alive in their beds as the U.S. gunship struck the hospital for more than half an hour. There was no doubt about the hospital's protected status; the report acknowledges the Pentagon had the hospital's coordinates. It was the only facility of its kind in a part of Afghanistan that is seeing intense conflict, and its destruction has deprived thousands of vital medical services.
The report details violations of the law of armed conflict committed by U.S. forces on the ground in Kunduz and in the AC-130 aircraft that carried out the attack that destroyed the hospital. The report notes, for instance, that the ground commander who ordered the strike and the aircrew "failed to comply with the LOAC (laws of armed conflict)" by making an "unreasonable" determination that the MSF facility was a lawful target and an unjustified blanket determination that all at the site were combatants, and ordering the attack on persons at the site even after observing that they did not appear to be armed or engaging in hostile activity.
Not all laws of war violations are war crimes -- only serious violations committed with criminal intent or recklessness. Yet two of the report's findings make clear that serious violations occurred. First, the attack was unlawfully indiscriminate because "neither commander distinguished between combatants and civilians nor a military objective and protected (civilian) property." Second, even if the commanders reasonably believed they were carrying out an attack on a lawful target, the report found that the attack was unlawfully disproportionate to the expected military gain of the attack.
In its summary, the Pentagon concedes that violations were committed, but says they did not amount to war crimes. The reason, according to the summary, is because the "label 'war crimes' is typically reserved for intentional acts -- intentionally targeting civilians or intentionally targeting protected objects."
War crimes may "typically" be committed intentionally, but as the U.S. military knows very well, they don't have to be. War crimes can also be committed through reckless behavior. In 2013, the army court-martialed an officer for homicide because reckless orders resulted in the deaths of two civilians in Afghanistan. And under the U.S. military justice system, basic provisions on homicide and misconduct are also applicable, and those crimes can be committed with recklessness or even negligence.
The report's findings show overwhelming evidence of recklessness. The ground commander, "9 km from the MSF site" and with no visual "line of sight," ordered repeated strikes on an unseen target and persons at the site on the basis of a single source and gave contradictory and confusing information to the aircraft about the purpose of the attack. Even though the actual and intended target was not time sensitive, and even as air crew stated their "confusion" and raised questions about the strike, both ground and air commanders failed to use "resources available ... that would have confirmed" that the location to be attacked was a hospital, and not the site that the ground commander wanted to attack.
And commanders overseeing the operation failed to call off the attack after MSF had alerted them that they were attacking a hospital. The attack continued a full eight minutes beyond when commanders directly involved in the air control operations were told they were shooting at a hospital, although the Pentagon says the "ground force and the AC-130U aircrew were unaware the aircrew was firing on a medical facility throughout the engagement."
Left out of this litany of recklessness is the investigation team's recommendations -- they are redacted. We don't know whether the team called for criminal action. All we have are the follow-on actions ordered by Gen. John Campbell, then the U.S. forces commander in Afghanistan. These include information (but no specific details) that administrative measures were taken against 16 service members, including "administrative or disciplinary action, including suspension and removal from command."
The military's actions don't come as a surprise. In more than 14 years of armed conflict in Afghanistan, the U.S. military has conducted numerous inquiries into airstrikes that caused scores of civilian casualties, but has rarely referred personnel for criminal charges.
The flaw is in the U.S. military justice system itself. In general, U.S. military administrative investigations of cases involving multiple levels of decision-making too often focus on policy and protocols instead of potential criminal liability of specific personnel. Decisions to prosecute are left with the field commanders, rather than with military prosecutors acting outside the regular chain of command. This is why Human Rights Watch last year called for an independent investigation into the attack by competent individuals outside the military chain of command.
The report makes some good recommendations to avoid such unlawful attacks in the future. But minimizing civilian casualties is not just about rules and protocols. It's also about accountability. Reckless actions resulting in dozens of civilian deaths are unlikely to be deterred by administrative actions alone, however severe they seem in the context of the military. Appropriate criminal prosecutions are necessary.
After the report was released, MSF posed this question to the Pentagon: "Who within the chain of command is ultimately responsible for the deaths of 42 people, and how is that person being held accountable?" The question concerns those responsible for the attack and efforts to prevent such attacks in the future. But it was more than that: it was about finding a measure of justice for the victims of the attacks and their families. That's something administrative actions will never provide.