Pentagon Report Says Airstrike On Afghan Hospital Wasn't A War Crime

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**Co'tor Shas**

The Pentagon's final report on the deadly U.S. airstrike on a Médecins Sans Frontières trauma center in Kunduz, Afghanistan, last October concludes the incident was caused by "human errors, compounded by process and equipment failures."

The report states that the assault, which killed dozens of medical staff and patients, does not constitute a war crime — contrary to what MSF (also known as Doctors Without Borders) has argued.

It comes down to intent, the report says:

"The label 'war crimes' is typically reserved for intentional acts – intentionally targeting civilians or intentionally targeting protected objects. The investigation found that the tragic incident resulted from a combination of unintentional human errors and equipment failures, and that none of the personnel knew that they were striking a medical facility."

The Pentagon has disciplined 16 service members as a result of the strike.

NPR's Tom Bowman reports on Morning Edition that the disciplined personnel include a "two-star general, a special forces commander who was on the ground, various officers." He adds: "Some were removed from command shortly after this happened; others were given letters of reprimand, so they could be career-enders." The penalties do not include criminal charges.

MSF calls the punishment "out of proportion" to the damage, and says, "The lack of meaningful accountability sends a worrying signal to warring parties, and is unlikely to act as a deterrent against future violations in the rules of war."

Forty-two people died in the Kunduz strikes. Initially, the Pentagon put the toll at 30, but MSF later increased its figure. The report says the U.S. government has "relied primarily upon MSF for casualty estimates, and these numbers have not been independently verified."

The Two-Way has gone into depth about the "series of avoidable errors" detailed in a November 2015 report: Among other things, the team was "inadequately briefed," there were technical issues with the onboard communication system, and the location was misidentified because of a targeting error. The intended target was an insurgent-controlled site 440 yards away from the MSF hospital.

The report released today says that as the plane was zeroing in on the hospital, a crew member called a TV Sensor Operator warned that the target might be wrong and suggested that another structure was the correct target. Despite "several attempts to clarify which structure was the actual target," the weapons system ultimately fixed on the hospital, which apparently "generally matched the physical description" of the nearby insurgent-controlled building.

The latest report also addresses two previously unanswered questions tied to the length of the assault:

Why did it take so long to realize the mistake despite repeated calls from the hospital to U.S. officials?

According to the military's account, the assault began at about 2:08 a.m. local time and lasted about half an hour — even though the first calls from MSF came 11 minutes after it began:

"Starting at approximately 2:19 a.m. MSF personnel notified several U.S. government representatives that the MSF trauma center was being engaged. Due to the fighting around Kunduz, it was initially unclear who was engaging the MSF Trauma Center. Following a series of relayed messages through multiple echelons of command, the U.S. Special Forces commander on the ground eventually realized that the AC-130 was engaging the MSF Trauma Center – not the Taliban-controlled structure the crew believed it was engaging – and halted the strike at approximately 2:38 a.m. The investigation determined that the steps taken by several U.S. military personnel during this period were inadequate."

MSF maintains that the assault lasted more than an hour.

Gen. Joseph Votel, speaking to reporters at the Pentagon, says he was struck by communication lapses between personnel in the air and on the ground.

Why did they keep firing, even with no sign of return hostile fire?

Here's Tom's exchange with Votel during the press conference:

TOM: Clearly, when they're looking at this building, there's no indication of enemy fire. There's no indication of fighting around there. Are you concerned that they were hitting a target but there's no indication of hostile intent?
VOTEL: This is an area that we did examine in some great detail. ... It's not uncommon to not see fire coming from a building or from a location coming through a sensor system, and that is my own personal experience. Some can ... trained analysts perhaps who have looked at a lot of this over a lot of time and focus on it may be able to do that, but it's not uncommon to not be able to identify that.
The other aspect that we looked at was what was the pattern of life around this particular facility. And I think one of the contributing factors here was that, what was being described by the ground force commander happening at the intended target was very closely being replicated at the Doctors Without Borders facility. They found about the same number of people, about the same general locations outside the building, and so they ...
TOM: Was anybody shooting? Nobody was shooting at the hospital, correct?
VOTEL: Nobody from the Afghans. Right. It was at a different location.
TOM: Wouldn't they think something was wrong here?
VOTEL: Again, yeah, again — there's a mistaken identification of the target. So the aircraft is looking at one location, the ground forces thinking they're looking at another location. There's no way to visually confirm that back and forth between them, and their discussions as you look at the transcripts don't add clarity to that.
TOM: I don't want to belabor this, but looking at what they saw, there was no shooting, there was no one running around with RPGs, there was no firefight on the ground, so why would they just keep hitting it?
VOTEL: In the experience of these individuals right here, who have done these types of operations before, what they were seeing was frankly in line with what was being described from the ground and with their own experience. I mean the enemy does adapt to how we operate, so they don't operate in quite an open fashion where we can always see everything that we have.

MSF isn't satisfied with the military's account and tweeted a list of further questions after the release of the report.

"Today's briefing amounts to an admission of an uncontrolled military operation in a densely populated urban area, during which US forces failed to follow the basic laws of war," Meinie Nicolai, president of MSF Belgium, says in a statement. "It is incomprehensible that, under the circumstances described by the US, the attack was not called off."

Tom reports that according to the Pentagon, there will not be an independent investigation into the Kunduz incident. MSF continues to demand one.

http://www.npr.org/sections/thetwo-way/2016/04/29/476178817/pentagon-report-says-airstrikes-on-afghan-hospital-wasnt-a-war-crime

**Shadow Captain Edithae**

tl;dr: "War Criminals say what they did wasn't a war crime".

**Co'tor Shas**

Eh, it's more complicated than that.

**Dreadclaw69**

Shadow Captain Edithae wrote:
tl;dr: "War Criminals say what they did wasn't a war crime".

In case you missed this part of the report;

Co'tor Shas wrote:
It comes down to intent, the report says:

"The label 'war crimes' is typically reserved for intentional acts – intentionally targeting civilians or intentionally targeting protected objects. The investigation found that the tragic incident resulted from a combination of unintentional human errors and equipment failures, and that none of the personnel knew that they were striking a medical facility."

http://www.npr.org/sections/thetwo-way/2016/04/29/476178817/pentagon-report-says-airstrikes-on-afghan-hospital-wasnt-a-war-crime

**skyth**

Actually...what the article says is that it wasn't a war crime because it wasn't intentional.

**Breotan**

A devil's advocate might point out that negligence can be criminal, depending on the circumstances.

**Dreadclaw69**

Breotan wrote:
A devil's advocate might point out that negligence can be criminal, depending on the circumstances.

And is it in these circumstances?

**oldravenman3025**

Sounds to me like a case of somebody screwing up in a BIG way. Which happens in conflicts, unfortunately. It's just bad that a hospital ended up getting the shaft.

As far as this goes:

Why did they keep firing, even with no sign of return hostile fire?

Every vid I've seen of insurgents getting waxed, they didn't return fire. Not to say that it doesn't happen. But nine times out of ten, they either get obliterated before they can respond, or they panic and attempt to flee/ seek cover.

**LordofHats**

I could swear we already had a thread on this...

**Co'tor Shas**

LordofHats wrote:
I could swear we already had a thread on this...

That was back when it actually happend, this is for the response. I didn't want to drag a thread out from months ago.

Automatically Appended Next Post:

oldravenman3025 wrote:

Sounds to me like a case of somebody screwing up in a BIG way. Which happens in conflicts, unfortunately. It's just bad that a hospital ended up getting the shaft.

As far as this goes:

Why did they keep firing, even with no sign of return hostile fire?

Every vid I've seen of insurgents getting waxed, they didn't return fire. Not to say that it doesn't happen. But nine times out of ten, they either get obliterated before they can respond, or they panic and attempt to flee/ seek cover.

I'm not sure what they would return fire with. Are anti-air weapons that common in Afghanistan?

**LordofHats**

That must be it. My brain thinks we already had this exact discussion for some reason XD

**oldravenman3025**

Co'tor Shas wrote:
LordofHats wrote:
I could swear we already had a thread on this...

That was back when it actually happend, this is for the response. I didn't want to drag a thread out from months ago.

Automatically Appended Next Post:

oldravenman3025 wrote:

Sounds to me like a case of somebody screwing up in a BIG way. Which happens in conflicts, unfortunately. It's just bad that a hospital ended up getting the shaft.

As far as this goes:

Why did they keep firing, even with no sign of return hostile fire?

Every vid I've seen of insurgents getting waxed, they didn't return fire. Not to say that it doesn't happen. But nine times out of ten, they either get obliterated before they can respond, or they panic and attempt to flee/ seek cover.

I'm not sure what they would return fire with. Are anti-air weapons that common in Afghanistan?

Outdated MANPADS and HMGs, probably. Not a real threat to a high flying AC-130 with modern countermeasures, or Predators.

**Spetulhu**

Breotan wrote:
A devil's advocate might point out that negligence can be criminal, depending on the circumstances.

Yes, but negligence isn't (usually) a war crime. Executing surrendering opponents is a war crime, hitting the wrong target due to bad intel or equipment malfunction (usually) isn't. Cluster bombing a residential area without giving civilians time to get out could be a war crime.

**Ouze**

I have to agree that i don't think this rises to the level of a war crime, either.

**Lord of Deeds**

Of course for most of those disciplined, it will be a career killer and and they have effectively been shown the door so it is not a slap on the wrist as some would make it out.

Hopefully they will take a legitimate look at the mistakes and correct them while not needlessly complicating the ROE any more to the point that lives of friendlies are lost.

**d-usa**

LordofHats wrote:
That must be it. My brain thinks we already had this exact discussion for some reason XD

We had two actually:

The first one when it actually happened, which had to be locked when the usual suspects claimed that the US wouldn't screw up like this, that this means the hospital had to provide shelter to militants, and that it's the fault of the medical staff that they all got killed because that's what you get when you give shelter to our enemies.

The second one was when the preliminary report came out which said the same thing as the final report, when the same folks didn't say a single word.

**spiralingcadaver**

Well, that's fairly upsetting. Thanks for the information, I guess.

**Jefffar**

In war the line between a criminal act and a tragic accident is pretty much based on intent.

If a force that makes a reasonable effort to avoid targeting civilian facilities mistakenly beleives a civilian facility is a hostile target, as horrible as what follows is, it's not a crime.

Now a force that doesn't make any effort to avoid civilivian facilities hits one it mistakes for a hostile facility ... still not a crime as long as they can demonstrate they reasonably thoughtthe target was hostile.

A force that iintentionally targets civilian facilities hits one they mistakenly thought was hostile ... Oddly not a war crime, but the other times they knowingly went after civilian facilities, yeah definitely war crimes.

**Kovnik Obama**

Jefffar wrote:
In war the line between a criminal act and a tragic accident is pretty much based on intent.

If a force that makes a reasonable effort to avoid targeting civilian facilities mistakenly beleives a civilian facility is a hostile target, as horrible as what follows is, it's not a crime.

Now a force that doesn't make any effort to avoid civilivian facilities hits one it mistakes for a hostile facility ... still not a crime as long as they can demonstrate they reasonably thoughtthe target was hostile.

A force that iintentionally targets civilian facilities hits one they mistakenly thought was hostile ... Oddly not a war crime, but the other times they knowingly went after civilian facilities, yeah definitely war crimes.

Kinda makes you wonder what exact metaphysical quality war provides to a situation that it suddenly makes responsibility so easy to skirt. In any other context (under canadian criminal law, at least), the participant to this atrocity would receive heavy sentences ranging from manslaughter to murder.

Let's also note that intentional killing is actually not a requirement constitutive of a war crime acts as defined by the International Criminal Court, which states that directing any attacks against civilians or humanitarian workers in the process of an international conflict fully constitute a war crime.

So, it's actually pretty much like Shadow Captain Edithae called it : "War criminals say what they did wasn't a war crime".

**Ouze**

Kovnik Obama wrote:
Let's also note that intentional killing is actually not a requirement constitutive of a war crime acts as defined by the International Criminal Court, which states that directing any attacks against civilians or humanitarian workers in the process of an international conflict fully constitute a war crime. .

This is factually incorrect. The word intentionally is explicitly in that sentence. In fact, every one of those different charges requires an element of intent.

What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

murder;
mutilation, cruel treatment and torture;
taking of hostages;
intentionally directing attacks against the civilian population;
intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
pillaging;
rape, sexual slavery, forced pregnancy or any other form of sexual violence;
conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

This is the set of definitions you freely selected (the ICC), and they're not very long, so you might want to reconsider your post.

**Kovnik Obama**

Ouze wrote:
Kovnik Obama wrote:
Let's also note that intentional killing is actually not a requirement constitutive of a war crime acts as defined by the International Criminal Court, which states that directing any attacks against civilians or humanitarian workers in the process of an international conflict fully constitute a war crime. .

This is factually incorrect. The word intentionally is explicitly in that sentence. In fact, every one of those different charges requires an element of intent.

What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

murder;
mutilation, cruel treatment and torture;
taking of hostages;
intentionally directing attacks against the civilian population;
intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
pillaging;
rape, sexual slavery, forced pregnancy or any other form of sexual violence;
conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

This is the set of definitions you freely selected (the ICC), and they're not very long, so you might want to reconsider your post.

You might want to look at ICC art. 7b(v) " Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives". No requirements of intentionality.

Pro-tip : legal documents trumps website FAQ.

**Sgt_Scruffy**

Kovnik Obama wrote:
Ouze wrote:
Kovnik Obama wrote:
Let's also note that intentional killing is actually not a requirement constitutive of a war crime acts as defined by the International Criminal Court, which states that directing any attacks against civilians or humanitarian workers in the process of an international conflict fully constitute a war crime. .

This is factually incorrect. The word intentionally is explicitly in that sentence. In fact, every one of those different charges requires an element of intent.

What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

murder;
mutilation, cruel treatment and torture;
taking of hostages;
intentionally directing attacks against the civilian population;
intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
pillaging;
rape, sexual slavery, forced pregnancy or any other form of sexual violence;
conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

This is the set of definitions you freely selected (the ICC), and they're not very long, so you might want to reconsider your post.

You might want to look at ICC art. 7b(v) " Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives". No requirements of intentionality.

Pro-tip : legal documents trumps website FAQ.

You left out "with knowledge of the attack" from your little cherry-picked quote. Pro-tip, next time, quote the entire relevant section of the law.

Long story short, you have to KNOW you are attacking a civilian target.

Here's the link https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

EDIT: That's assuming you are referring to article 7 (which doesn't have a section b, subsection 5). Article seven refers to crimes against humanity. Article 8 "War Crimes" does have the relevant quote you cherry picked but you forgot paragraph 1 of the article which states "The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes."

**Kovnik Obama**

Sgt_Scruffy wrote:
Kovnik Obama wrote:
Ouze wrote:
Kovnik Obama wrote:
Let's also note that intentional killing is actually not a requirement constitutive of a war crime acts as defined by the International Criminal Court, which states that directing any attacks against civilians or humanitarian workers in the process of an international conflict fully constitute a war crime. .

This is factually incorrect. The word intentionally is explicitly in that sentence. In fact, every one of those different charges requires an element of intent.

What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

murder;
mutilation, cruel treatment and torture;
taking of hostages;
intentionally directing attacks against the civilian population;
intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
pillaging;
rape, sexual slavery, forced pregnancy or any other form of sexual violence;
conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

This is the set of definitions you freely selected (the ICC), and they're not very long, so you might want to reconsider your post.

You might want to look at ICC art. 7b(v) " Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives". No requirements of intentionality.

Pro-tip : legal documents trumps website FAQ.

You left out "with knowledge of the attack" from your little cherry-picked quote. Pro-tip, next time, quote the entire relevant section of the law.

Long story short, you have to KNOW you are attacking a civilian target.

Here's the link

That is absent from the text of the law on http://legal.un.org/icc/statute/romefra.htm

http://legal.un.org/icc/statute/romefra.htm wrote:2. For the purpose of this Statute, "war crimes" means: [...] (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: [...] (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

AH! And it's also absent from your version.

**Sgt_Scruffy**

Kovnik Obama wrote:
Sgt_Scruffy wrote:
Kovnik Obama wrote:
Ouze wrote:
Kovnik Obama wrote:
Let's also note that intentional killing is actually not a requirement constitutive of a war crime acts as defined by the International Criminal Court, which states that directing any attacks against civilians or humanitarian workers in the process of an international conflict fully constitute a war crime. .

This is factually incorrect. The word intentionally is explicitly in that sentence. In fact, every one of those different charges requires an element of intent.

What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

murder;
mutilation, cruel treatment and torture;
taking of hostages;
intentionally directing attacks against the civilian population;
intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
pillaging;
rape, sexual slavery, forced pregnancy or any other form of sexual violence;
conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

This is the set of definitions you freely selected (the ICC), and they're not very long, so you might want to reconsider your post.

You might want to look at ICC art. 7b(v) " Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives". No requirements of intentionality.

Pro-tip : legal documents trumps website FAQ.

You left out "with knowledge of the attack" from your little cherry-picked quote. Pro-tip, next time, quote the entire relevant section of the law.

Long story short, you have to KNOW you are attacking a civilian target.

Here's the link

That is absent from the text of the law on http://legal.un.org/icc/statute/romefra.htm

http://legal.un.org/icc/statute/romefra.htm wrote:2. For the purpose of this Statute, "war crimes" means: [...] (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: [...] (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

AH! And it's also absent from your version.

I was looking at article seven, not article eight. My point still stand as I explained in my edit which you ninja'd me by about 20 seconds.

paragraph 1 of article eight contains the relevant text.

**Ouze**

TIL any time a military causes collateral damage or deaths it's a war crime.

**Kovnik Obama**

Sgt_Scruffy wrote:

EDIT: That's assuming you are referring to article 7 (which doesn't have a section b, subsection 5). Article seven refers to crimes against humanity. Article 8 "War Crimes" does have the relevant quote you cherry picked but you forgot paragraph 1 of the article which states "The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes."

Ah yes, sorry. Got mislead because Ouze quoted from Article 7 when I was always refering to Article 8. So, ICC Art.8b(v).

As for 8(1), I refer you to the commentary : "Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. In contrast to crimes against humanity, plan, policy, and scale are not elements of war crimes. One single act may constitute a war crime. However, it is unlikely that a single act would meet the gravity threshold in article 17(1)(d).

Automatically Appended Next Post:

Ouze wrote:
TIL any time a military causes collateral damage or deaths it's a war crime.

Well, yes. Anytime (well, most of the time) a civilian accidently kills another, it's a manslaughter, which is (most of the time) a crime. God only knows why everyone keeps thinking the military should get a pass on this millenia-old principle.

**Ouze**

Which would you prefer - because it's a bad analogy, in that accidental deaths aren't always manslaughter, or because the US isn't a signatory to the ICC? You may select whichever you like.

**Kovnik Obama**

Ouze wrote:
Which would you prefer - because it's a bad analogy, in that accidental deaths aren't always manslaughter, or because the US isn't a signatory to the ICC? You may select whichever you like.

An accidental homicide committed while manipulating deadly forces is more than likely going to be tried as a manslaughter, depending on the jurisdiction. So while they aren't always, they are pretty damn often.

As to the U.S. not signing, well, no fething surprise, but it still doesn't absolve you, as Article 12 may cover non-participating States acting in a participating States (as to enforcement, I have no clue).

**Ouze**

You're saying accidents when manipulating deadly forces more often then not result in manslaughter charges.

Look, what is the most common cause of accidental deaths to other parties? Presumably it's car accidents, right? Assuming there is no drug influence, or obvious criminal negligence - which is presumable a minority of all car accidents - I'm guessing the vast overwhelming majority of fatalities involving car accidents do not result in manslaughter charges. I think you have a really bad analogy here and you should reframe it.

Intent matters, man. It does.

**Kovnik Obama**

Ouze wrote:
You're saying accidents when manipulating deadly forces more often then not result in manslaughter charges.

Look, what is the most common cause of accidental deaths to other parties? Presumably it's car accidents, right? Assuming there is no drug influence, or obvious criminal negligence - which is presumable a minority of all car accidents - I'm guessing the vast overwhelming majority of fatalities involving car accidents do not result in manslaughter charges. I think you have a really bad analogy here and you should reframe it.

Intent matters, man. It does.

That's not my specialty, but I'd equally assume that the vast overwhelming majority of fatalities involving car accidents do not have a clearly delineated responsibility. And, simply thinking about the odds, if there was, at least 50% of those cases would end in the death of the party responsible. But I do find the numbers to be ridiculously low. 300 Vehicular Manslaugther convictions in the States in 2016? I mean, just by the number of death caused by drunk driving it should be a hell of a lot more.

And I agree that intent matters. I'm not saying that all who participated in this operation are monsters that should be tried for life. "War crimes" has this heavy connotation, but it's just a legal category, it doesn't imply a gravity of crime. While intent matters, so does carelessness, negligence and incompetence.