Can and should the Doctors without borders be charged with war crimes

[Declan]

So my facebook feed has been populated with posts regarding an American airstrike/bombardment in Afganistan. A number of the medical staff had been killed as well as several of the wounded civillians.

The facility has been operating there for at least 4 years, and has been known by all combatants. So no surprises there.

So far, it appears to have been a strike called in by Afgan units, who were taking fire from the hospital. The only questionable part by US forces, in my opinion, was that this request should have been refused, and if the hospital was being used by insurgent forces, then it should have been documented via video.

I get it though, that the docs are between a rock and a hard place with insurgents taking over their hospital, and allied efforts to dislodge them.

There are exceptions. A school, for example, becomes a legitimate military target if soldiers are based there. With hospitals, the situation is more complicated since they are permitted to keep armed guards on their grounds. But immunity from attack can be lost if the people or objects are used to commit acts that are harmful to one side in a conflict. If the Bosnian Serbs besieging Sarajevo had concluded that government forces were firing weapons from within the Kosevo hospital complex, they would have had the right to fire back—but only if they had first asked the Bosnian government to stop using the hospital as a shield and had given them a reasonable period to comply.

I snagged that quote, while looking for the exact verbiage regarding protected places in war time. Hospitals, Hospital ships etc. Well documented, clear signage and just enough firepower to keep order.

Now , it sucks to be the doctors, but stuff like that is going to happen in a combat situation. But when someone in the UN is babbling about it being a war crime, I decided to run with the ball.

At some point, the doctors should have asked for removal of protection from the hospital, as it was no longer under their control. Since they did not, they tacitly allowed the hospital to be used as a shield. Now presuming that the insurgents have gone to meet their maker, and not available to answer charges, that leaves the docs and their version.

The organization, should be formally brought up on charges of war crimes.

Declan

[Smapti]

Absolutely not. I don’t believe either the US nor MsF is in the wrong here.

[The_Other_Waldo_Pepper]

@Declan

At some point, the doctors should have asked for removal of protection from the hospital, as it was no longer under their control. Since they did not, they tacitly allowed the hospital to be used as a shield. Now presuming that the insurgents have gone to meet their maker, and not available to answer charges, that leaves the docs and their version.

The organization, should be formally brought up on charges of war crimes.

I see the here’s-what-you’re-supposed-to-do bit that you quoted – about what’s asked of folks who want to fire on a building like that – but I don’t see where you then quoted anything requiring the doctors to ask for removal of protection.

It’s like you posted a quote about how a guy can’t leave you stuff in his will unless it’s signed by two witnesses – and then said, and so, if you’d wanted to inherit from the guy, you should’ve submitted a notarized request to the mayor. Unless I’m missing something, the bit you prefaced it with seems weirdly irrelevant.

[Declan]

@The_Other_Waldo_Pepper

I see the here’s-what-you’re-supposed-to-do bit that you quoted – about what’s asked of folks who want to fire on a building like that – but I don’t see where you then quoted anything requiring the doctors to ask for removal of protection.

It’s like you posted a quote about how a guy can’t leave you stuff in his will unless it’s signed by two witnesses – and then said, and so, if you’d wanted to inherit from the guy, you should’ve submitted a notarized request to the mayor. Unless I’m missing something, the bit you prefaced it with seems weirdly irrelevant.

If your asking what I think your asking, then here is how I see it.

Insurgents invade the hospital, but otherwise don’t molest the staff, then it should be recorded to the organizations head quarters, if they have the time. If its like a home invasion and there is no time available, then the docs should not, nor the organization be blamed, but it should be understood and noted that the facility no longer enjoys what ever legal position it does.

So bottom line, a protected facility or entity that is well marked in an approved way is deliberately taken under fire is actionable as a war crime. That same facility and persons contained, that is deliberately being used as a shield, no longer enjoys the protections normally expected.

The MSF should have made a statement, that person or persons unknown entered the facility and began using it as a base for military advantage. Then these individuals or forces would face the judge, if possible.

[Implicit]

MSF would have evacuated their staff and volunteers from the hospital if it had been overrun by insurgents.

I don’t know if what happened was a war crime or not, but blaming MSF is ludicrous.

[Grumman]

Wasn’t the claim that the insurgents were in the hospital compound and not inside the hospital itself? If that was true evacuating might mean running out into the middle of a firefight, which is obviously counterproductive.

[The_Other_Waldo_Pepper]

@Declan

If your asking what I think your asking, then here is how I see it.

I’m not asking how you see it.

I’m noting that you (a) posted a big fine quote about what people who intend to fire on such a building should do – and then you (b) added that, as you see it, here’s what the folks in that building should’ve done.

I see no reason why you did the former, and I’m not much interested in the latter; what I am interested in, and what I will ask you to supply, is a quote laying out what the folks in that building were required to do.

You for some reason posted a quote about something else entirely before mentioning what you think folks in the building should’ve done to avoid war-crimes charges; I’m just asking you to preface it with a relevant quote instead of an irrelevant one.

[Declan]

@The_Other_Waldo_Pepper

what I am interested in, and what I will ask you to supply, is a quote laying out what the folks in that building were required to do.

Article 12 and 13
That would be calling up someone in the US army , as they seemed to be able to do , given the bombing and stating that they can no longer comply with the legal requirements. The reasonable time frame would be the sticking point, but thats for the lawyers.
Relevent article twelve

2. Paragraph I shall apply to civilian medical units, provided that they:
   (a) Belong to one of the Parties to the conflict;
   (b) Are recognized and authorized by the competent authority of one of the Parties to the conflict; or
   (c) Are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First Convention.

Means that the MSF is legally a player, I doubt anyone disagreed with this, but it also means that they have obligations

Relevent article 13

1. The protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.

Whom ever the hospital administrator is or is running the hospital, when they find themselves in violation of article twelve, even through no fault of their own, should have communicated that to the relevant authorities.

[Little_Nemo]

A bunch of medical non-combatants were inside a hospital that was protected by its non-combatant status. A bunch of insurgents violated the non-combatant status of the hospital. As a result it was a target of an air attack.

Why should the medical staff be held responsible for this? They didn’t violate the non-combatant rules. The insurgents did that.

The only way I could see holding the medical staff responsible is if you could demonstrate they had some degree of control over the situation. Like if the insurgents had asked permission and the hospital staff had agreed to let the insurgents set up a base inside the hospital. But I doubt there’s ever been a real world situation where insurgents have asked permission.

The non-combatants were victims and shouldn’t be blamed for what happened to them.

[The_Other_Waldo_Pepper]

I see where, if certain requirements are met, the civilian medical unit is entitled to protection – and I see where that ceases, if specified circumstances come to pass before a warning is given and goes unheeded. But I genuinely don’t see where it’s a war crime for said civilian medical unit to not place that phone call.

The only folks I see facing a ya gotta tell 'em what’s going on requirement are the ones looking to attack the medical unit; I see that just fine. But where the heck does it say the medical unit has to give anybody a head’s-up?

[Bryan_Ekers]

@Declan

At some point, the doctors should have asked for removal of protection from the hospital, as it was no longer under their control. Since they did not, they tacitly allowed the hospital to be used as a shield. Now presuming that the insurgents have gone to meet their maker, and not available to answer charges, that leaves the docs and their version.

The organization, should be formally brought up on charges of war crimes.

Since there’s a strong possibility that asking for removal of protection wasn’t practical, possible, or safe (and it’s unclear that it was even necessary), I disagree.

[Left_Hand_of_Dorkness]

@Declan

Article 12 and 13
That would be calling up someone in the US army , as they seemed to be able to do , given the bombing and stating that they can no longer comply with the legal requirements. The reasonable time frame would be the sticking point, but thats for the lawyers.
Relevent article twelve

Means that the MSF is legally a player, I doubt anyone disagreed with this, but it also means that they have obligations

Relevent article 13

Whom ever the hospital administrator is or is running the hospital, when they find themselves in violation of article twelve, even through no fault of their own, should have communicated that to the relevant authorities.

Nothing in what you quoted describes obligations of civilian medical units. 100% of the obligations in those quotes adhere to military forces. How on earth are you seeing anything in there about obligations of medical forces?

Edit: furthermore, I think the very idea is absurd. The Geneva Conventions apply to the parties in the armed conflict. MsF (Medicins sans Frontiers, if you were confused like me, dear readers ) isn’t a party in the conflict, so I don’t think it can possibly contain sanctions against them. Is this incorrect?

[Little_Nemo]

@The_Other_Waldo_Pepper

The only folks I see facing a ya gotta tell 'em what’s going on requirement are the ones looking to attack the medical unit; I see that just fine. But where the heck does it say the medical unit has to give anybody a head’s-up?

@Bryan_Ekers

Since there’s a strong possibility that asking for removal of protection wasn’t practical, possible, or safe (and it’s unclear that it was even necessary), I disagree.

Especially when you consider the likely consequences. If the medical staff informed the world that military forces were using the hospital, they would be surrendering their non-combatant status - which would be telling opposing military forces that the hospital was a legitimate target. And the medical staff and their patients would be a collateral part of that target.

It would be an incredibly high standard to require people to voluntarily declare that they are eligible to be shot at.

Another factor is that if military forces knew that medical staff was obligated to report the presence of military forces, the obvious step to conceal themselves would be to kill off all the medical staff and patients when they occupied a hospital.

So I think the reasonable standard is to require medical staff to comply with non-combatant rules to the best of their ability. But they should not be held responsible for enforcing those rules on others or to self-report if they’re forced into a situation where others are violating their non-combatant status. In situations like that, they should be allowed to just lay low.

[Declan]

@Little_Nemo

Especially when you consider the likely consequences. If the medical staff informed the world that military forces were using the hospital, they would be surrendering their non-combatant status - which would be telling opposing military forces that the hospital was a legitimate target. And the medical staff and their patients would be a collateral part of that target.

They lost their non combatant status when the insurgents started to fire on the Afgan police and or military units. That irregular forces are likely to break inconvienent rules is no surprise, and will happen again .

WAPO story

More details emerging.

While I can see the civillians getting it wrong , and not really seeing a difference between an F16 dropping Jdams and a Spectre Gunship pounding a target with 105 mm rounds, it does mean that there was a higher degree of targeting, than a fast mover coming in hot.

If the spectre video is anything like we seen in Iraq, that will tell the tale.

[Declan]

@Left_Hand_of_Dorkness

Nothing in what you quoted describes obligations of civilian medical units. 100% of the obligations in those quotes adhere to military forces. How on earth are you seeing anything in there about obligations of medical forces?

First they are not medical forces, thats a separate group and would most likely pretain to a combat surgical hospital, or the old style mash units.

Second , they are a group thats in a controlled area, that is under the aegis of the occupying power or nation state.

@Left_Hand_of_Dorkness

Edit: furthermore, I think the very idea is absurd. The Geneva Conventions apply to the parties in the armed conflict. MsF (Medicins sans Frontiers, if you were confused like me, dear readers ) isn’t a party in the conflict, so I don’t think it can possibly contain sanctions against them. Is this incorrect?

(a) Belong to one of the Parties to the conflict;
(b) Are recognized and authorized by the competent authority of one of the Parties to the conflict; or
(c) Are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First Convention.

Parties being used as a word, is most likely a legal term to describe an organized group. Red Cross/Crescent and MSF are recognized parties, that does not mean that they are combatants. What it does mean, that if they expect to enjoy what ever protections the conventions give them, they have obligations to ensure that they work in accordance with the conventions.

[Evil_Captor]

Your conclusion does not pass the Common Sense Test: Should we go after the people who are killing people and blowing up shit, or should we go after the people who are saving people’s lives and mending them?

Yah, go after people who are saving people’s lives (on whatever side) and mending them. That makes ALL kinds of sense … NOT!

[Little_Nemo]

@Declan

They lost their non combatant status when the insurgents started to fire on the Afgan police and or military units. That irregular forces are likely to break inconvienent rules is no surprise, and will happen again .

I’m not disputing that they lost their non-combatant status. But that’s not the question you asked. You asked if they should be charged with a war crime for losing their non-combatant status. And my answer remains no, for the reasons I’ve already given.

People should not be held responsible for somebody else’s actions over which they had no reasonable control.

Suppose somebody mugged you and took your wallet. He then used the money he stole from you to go out and buy a gun. He then went home and shot and killed his wife.

Should you be charged as an accessory to murder? You provided the robber with the money he used to buy the murder weapon.

Hopefully you’ll agree the answer is no. As a unwilling victim of a crime, you should not be held responsible for other crimes this man committed even if the crime committed against you made the other crimes possible.

[Claverhouse]

America has already punished them for their disloyal activities. As with bombing an embassy by ‘accident’’ the force of the penalty is lost by formally codifying it in advance and not sending out one’s thunderbolts in a purely capricious and disclaimable fashion.
Terror works best by paralysing the will of the victims to do anything that may provoke retaliation.
Doctors will now think twice before tending to people America dislikes.

[Left_Hand_of_Dorkness]

@Declan

Parties being used as a word, is most likely a legal term to describe an organized group. Red Cross/Crescent and MSF are recognized parties, that does not mean that they are combatants. What it does mean, that if they expect to enjoy what ever protections the conventions give them, they have obligations to ensure that they work in accordance with the conventions.

Fair enough. Where, specifically, does the convention detail the reporting requirements of parties?

[Ken001]

It is a horribly complex tragedy. My first reaction was to agree the bombing was a war crime. However…

The city of Kunduz is an active war zone. It is held by Taliban and currently being attacked by the Afghanistan Army with some US Special Forces in support.

The Afghan Army has had “issues” with Medicine Without Frontiers because they treat everyone who needs help - including Tailb fighters.

The AA told the US that they were under attack from specific coordinates and boom…their annoyance went away. We aren’t dealing with angels.

The leader of MSF said it was a quiet night and she didn’t see any Taliban anywhere around the hospital.

The problem is the insurgents (or patriots from another point of view) aren’t silly. They know they can use a hospital for cover. So they run into the grounds with mortars RPGs etc, surprise the AA, and then leave. In a war zone and a hospital busy with patients, its hard to know exactly what is going on outside and even in the building from moment to moment.

We may never know if there is someone to “blame”. This is the stuff of the fog of war and it is an abysmal tragedy.