Many voices in the international community are calling for an independent investigation into the bombing of the Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan. On Tuesday, 7 October, the U.S. Military took responsibility, claiming it was a “mistake” and U.S. President Obama apologized to MSF. MSF called for an independent body under international law to “establish facts and uphold international humanitarian law.”
The Hague Institute’s Rule of Law Program Head, Dr. Lyal S. Sunga addressed the issue of criminal liability and the likelihood of an independent investigation in a broadcast of World Insight on China Central Television – English (CCTV).
Responding to the question if the bombing constitutes a war crime
“It’s too early to say if this is a war crime or not, but an independent investigation would be useful. It’s certainly a violation of the 1949 Geneva Conventions. Under the Geneva Conventions, the expectation is that the High Contracting Parties investigate the actions of their commanders and subordinates to see if they constitute crimes. A U.S. military investigation [alone] would not satisfy.”
What do you think about the suggestion from MSF that an international fact-finding commission should investigate the incident? What is the procedure for bringing this investigation to the ICC?
“One kind of investigation does not preclude the others. It’s important that the three investigations continue. The International Humanitarian Fact-Finding Commission (IHFFC) has a role to play. Run by the International Committee of the Red Cross, it’s an opportunity for the U.S. to show it takes this issue seriously and respects the international rule of law and the Geneva Conventions.
Something went wrong, and it raises a number of issues; someone is responsible for a serious violation of the Geneva Conventions.”
The bombing of the MSF facility in Kunduz raises questions about the independence, objectivity and impartiality of fact-finding, including criminal investigations, particularly in the difficult circumstances of armed conflict. The Hague Institute is currently engaged with several initiatives on fact-finding, monitoring, investigation and reporting on serious violations of international human rights law, humanitarian law and international criminal law.