03 Oct The Attack on the MSF Trauma Center in Kunduz and the Limitations of a Risk-based Approach to War Crimes Characterization (Part 1)
[Brian L. Cox is an adjunct professor of law at Cornell Law School, a visiting scholar at Queen’s Law, and a retired U.S. Army judge advocate. This two-part post commemorating the five-year anniversary of the Kunduz strike is part of a larger cross-blog collaboration with Just Security, Lawfire and the Harvard International Law Journal Online. You can find links to the other posts below.]
Let me begin with a sincere “thank you” to the Opinio Juris editorial team for participating in this cross-platform collaboration on the occasion of the fifth anniversary of the Kunduz airstrike. Although five years have passed since the attack on the MSF trauma center, so much of the discourse involving the attack, the aftermath, and the official investigation remains relevant and significant today.
One of the central topics of debate inspired by the Kunduz airstrike is whether the attack constitutes a war crime. This post examines, in two parts, whether a war crimes characterization is appropriate for the attack on the MSF trauma center in Kunduz. The focus for Part 1 is two Opinio Juris posts that were published soon after the official Kunduz investigation was released to the public. Part 2 then expands beyond those two main OJ posts to consider the war crime characterization in the broader context.
Turning first to the issue of mens rea for the personnel directly involved in the airstrike, there is no indication that any of the personnel involved were aware that civilians would be attacked. This means the standard mens rea concepts of purpose and knowledge are ruled out. The attack, then, does not qualify as “intentionally” making civilians the object of attack pursuant to the usual Anglo-American common law understanding of intent.
That would be the end of the intent and war crimes discussion if the Anglo-American common law understanding of intent were the only mens rea interpretation. This is, of course, not the case. Although neither common law nor civil law mens rea interpretations are monolithic, recklessness is excluded from the spectrum of intentional crimes in a “typical” common law arrangement, while recklessness is considered part of the spectrum of intentional crimes in a “typical” civil law jurisdiction.
This divergence leads to an ongoing debate regarding whether recklessness, or the related civil law concept of dolus eventualis, should be included on the spectrum of intent for war crimes. While the debate predates the Kunduz airstrike, this attack rekindled the dispute and continues to feature prominently in the discussion. In the debate regarding whether the Kunduz airstrike qualifies as a war crime, the issue of intent is treated as decisive. If the mens rea standards of purpose or knowledge alone are required, there is no question that the attack does not constitute a war crime; if recklessness is included, the outcome of the war crime analysis is far less certain.
During my time as a U.S. Army judge advocate, the issue of intent and war crimes was not particularly relevant to my professional practice. This is so because, to borrow from the Rules for Courts-Martial, ordinarily persons subject to the Uniform Code of Military Justice “should be charged with a specific violation of the UCMJ rather than a violation of the law of war.” This explains why the issue of intent and war crimes (rather than UCMJ violations) is not a central aspect of the findings of the official military investigation. In general, the issue of compliance with the UCMJ, rather than a characterization of an attack as a potential war crime, is directly relevant for most practitioners in the U.S. military.
I embarked on a detailed study of the airstrike, investigation, and the official and public discourse following the attack long before I retired from the Army in 2018, and the project has continued ever since. As I began studying the issue of recklessness, intent, and war crimes, the OJ posts by Jens and Kevin about the Kunduz airstrike, along with the extensive comments for each, provided a rich collection of perspectives from which to draw.
This discussion on OJ constituted the starting point of my research for an article on the topic of intent, recklessness, and war crimes that is planned for publication in the next issue of the Georgetown Journal of International Law. While the analysis reflected in the article was initially inspired by the OJ Kunduz posts and comments, I take a broad approach to the recklessness and war crimes debate in the article rather than opining on the Kunduz airstrike specifically.
For the present OJ post, I apply the analysis derived in the forthcoming GJIL article to the specific context of the Kunduz airstrike. The title of Jens’s OJ post presents a perfect point of departure: “Was the Kunduz Hospital Attack a War Crime?”.
My response to this question is unequivocal: no.
I reach this unambiguous conclusion for two reasons. First, I assert that recklessness is not included on the spectrum of mens rea for war crimes in international law, at least not in the context of potential violations involving targeting scenarios. Second, I conclude that the airstrike was not in fact “reckless” in either the legal or colloquial sense.
Like Jens, the point of embarkation for my analysis is the Rome Statute. Also like Jens, my analysis begins with the expression of the distinction principle reflected in the treaty. Unlike Jens, though, my analysis of the Kunduz airstrike does not extend to the proportionality rule – and I will explain why after assessing compliance with the distinction rule.
As Jens notes, the relevant expression of the distinction rule from Article 8 of the Rome Statute is “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.”
The available evidence overwhelmingly demonstrates that the personnel involved in the attack did not deliberately direct the airstrike against civilians. Everyone involved believed the airstrike would be directed against opposing insurgents and a compound being used by the insurgents as a “C2 node” (or, command and control center).
Both Jens and Kevin note that the mens rea of recklessness is excluded from the Rome Statute mental element formulation. Article 30 imposes a baseline knowledge requirement and a slightly different additional requirement based on whether the violation being assessed involves conduct (the defendant “means to engage in the conduct”) or a consequence (the defendant “means to cause that consequence or is aware that it will occur in the ordinary course of events”).
Whether a particular violation involves conduct or a consequence, the baseline mens rea requirement is knowledge (by operation of Article 30, ¶ 1). Pursuant to the Rome Statute war crimes and mental element construct, violation of the distinction rule, then, requires at least knowledge that the attack will be directed against civilians. Both the evidence derived from the Kunduz investigation and the strategic messaging afterward demonstrate – to a standard of beyond a reasonable doubt – that the personnel involved did not conduct the attack in the knowledge that civilians, in this case a hospital, would be targeted.
Based on Jens’s analysis, it seems that we agree on the outcome regarding the assessment of compliance with the distinction rule. Unlike Jens, though, my analysis of compliance with relevant provisions of the Rome Statute ends there. More specifically, I do not assess the proportionality rule to be relevant to the discussion of the Kunduz airstrike.
As Jens points out, the formulation of the proportionality rule as it is reflected in the Rome Statute is:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
This is where my analysis diverges from that of both Jens and Kevin. Jens interprets a violation of the proportionality rule as “causing disproportionate collateral damage” (emphasis added) and analyzes the rule accordingly. Kevin’s assessment picks up on Jens’s proportionality analysis and, by my calculation, blends the distinction and proportionality rules together. I take a stricter approach to the proportionality rule, thereby diverging from both Jens’s and Kevin’s conclusions.
First to Jens’s description, I do not interpret the outcome of an attack to be directly relevant when assessing compliance with the proportionality rule. That is, “intentionally launching an attack in the knowledge” that the incidental damage caused would be “clearly excessive in relation to the concrete and direct overall military advantage anticipated” is much different than causing disproportionate collateral damage. The focus of the latter is on the outcome of the attack, whereas the focus of the former is on the perception of the attacker before and during the attack.
Applied to the facts of the Kunduz airstrike, the personnel involved did not launch the attack “in the knowledge” that any incidental damage would occur. If there is a “0” entered on the “knowledge of incidental damage” side of the equation, as long as there is at least some quantum of military advantage anticipated to enter on the other side, by definition the proportionality rule is not violated.
In order for the proportionality rule to be relevant to the discussion, then, there are two specific requirements. First, the attacker had to expect that incidental damage would occur. Second, some quantum of military advantage had to be anticipated. To assess that a violation occurred, the trier of fact needs to conclude the attacker expected the former to be clearly excessive in relation to the latter and that she engaged in the attack anyway.
I agree with Jens, then, that recklessness should not be read into the mental element for existing war crimes. Unlike Jens, though, my concern with including recklessness is not that doing so “would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction.”
From my perspective, the outcome of the attack is wholly irrelevant when assessing compliance with the proportionality rule. Distinction and proportionality are and must remain two completely separate rules, and proportionality is not relevant in the absence of at least some expected incidental damage – regardless of whether the collateral damage was, as a factual matter, “disproportionate” in result.
The focus on the perspective of the attacker and indifference (from an analytical point of view) regarding the outcome of the attack is also where my perspective differs from Kevin’s. Kevin at one point actually does explicitly exclude the outcome of the attack from the analysis when he points out that violation of the distinction rule is not a consequence crime. As Kevin notes (correctly, by my assessment), this means that “no harm to civilians is necessary” to demonstrate violation of the distinction rule.
However, my assessment is that Kevin’s formulation indirectly introduces an outcome element by blending the distinction and proportionality rules. The point of departure for me is this observation from Kevin: “although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population” (emphasis in original).
From my perspective, this is the point at which Kevin’s analysis blends the distinction and proportionality rules. The aspect of this formulation in italics represents the distinction rule exclusively. In an attack in which compliance with the proportionality rule is relevant, the attacker actually does intentionally attack the civilian population. The purpose of the attack is not to harm civilians, but the attacker is aware that civilians will be affected and the extent of incidental damage expected has been assessed in relation to the concrete and direct military advantage anticipated from the attack.
In assessing the proportionality rule, then, the attacker does have “knowledge for the necessary circumstance” in accordance with Kevin’s formulation, where the “necessary circumstance” is that civilians will be attacked. For the proportionality rule, the central question is not whether the attacker “knew” civilians would be attacked; by definition, she did know. The central question here is whether she assessed that the incidental damage would be excessive in relation to the concrete and direct military advantage and she engaged in the attack anyway.
This strict separation of the distinction and proportionality rules, in my assessment, differentiates my application of the rules from Kevin’s interpretation. As Kevin clarifies in the comments section of his post, “I do not believe that an attack on a military objective that causes proportionate incidental harm can be described as an intentional attack on a civilian population.” By my assessment, this formulation incorrectly focuses on the outcome of the attack (an attack that causes proportionate harm) and impermissibly blends the assessment of incidental damage from the proportionality rule with the central question of the distinction rule – whether the attack was intentionally directed at civilians rather than a military objective.
By my assessment, then, the lack of knowledge that civilians would be attacked in the Kunduz airstrike is outcome determinative when assessing compliance with the distinction rule. Without an expectation of incidental damage, as is the case in the Kunduz attack, proportionality is not a consideration.
My emphasis on the knowledge of the attacker, along with operation of the mistake of fact provision reflected in Article 32 of the Rome Statute, drives my rejection of recklessness as a mens rea for war crimes in a targeting scenario. This is a topic I explore in more detail in the forthcoming GJIL article, but, in brief, my assertion that recklessness should be excluded is based primarily on two factors. Those two factors and some concluding reflections are addressed in Part 2 of this post.
Other posts in this collaborative blog series:
Military Accountability and the Attack on the MSF Trauma Center in Kunduz
Military Justice Reform, Accountability, and the Legitimacy Imperative: The Kunduz Example
Harvard International Law Journal Online:
Answers to MSF’s Questions in Response to the U.S. Military Investigation into the Kunduz Attack: An Insider’s Perspective
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