The Pentagon has released its report on the U.S. air assault against a hospital in Kunduz, Afghanistan, in October. The picture painted by the Pentagon report is pretty damning. The attack killed 42 people and turned out to be a giant mistake. The U.S. attacked the wrong building.
Initially, some Afghanistan officials suggested that insurgents had taken up positions in the hospital—an allegation that spurred an intense legal debate about whether, and when, the presence of such fighters would render the hospital a legitimate military target under LOAC. The Pentagon report makes clear that these allegations were unfounded. The insurgents were located in a different building, and the U.S. hit the wrong target.
The Pentagon report details a litany of mistakes—not just a single mistake but indeed a “cascade” of errors. The mistakes were clearly evidence of unprofessional behavior and deserving of reprimands. A total of 16 Americans involved in the attacked were officially disciplined administratively.
But was the attack criminal? The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent (more on that later), but the civilian killings were not performed with purpose.
The New York Times had this to say about reckless attacks on civilians:
The failure to bring any criminal charges was “simply put, inexplicable,” said John Sifton, the Asia policy director of Human Rights Watch.
There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, he added, and recklessness or negligence does not necessarily absolve someone of criminal responsibility under the United States military code.
Is Sifton right about this?
The answer to this question is complicated. I’ve written an entire article about this, Targeting and the Concept of Intent, and I can’t go into that level of detail in a blog post. And even my full-length article did not fully address all angles of the question. The issue is exceedingly complex. But let’s make some preliminary observations.
The Rome Statute includes two particular war crimes of interest to the discussion.
The first provision defines as a war crime:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
The second provision defines as a war crime:
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 or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
The first war crime is a violation of the principle of distinction: intentionally killing civilians. The second war crime is a violation of the principle of proportionality: causing disproportionate collateral damage.
The problem with applying the first war crime provision from the Rome Statute is that the attack against the civilians in the Hospital building in Kunduz did not obviously involve “intentionally directing attacks against the civilian population.”
Now here is where things get complicated. The word “intentionally” does not have a stable meaning across all legal cultures. As I note in my article, the word intentionally is generally understood in common law countries as equivalent to purpose or knowledge, depending on the circumstances. But some criminal lawyers trained in civil law jurisdictions are more likely than their common law counterparts to give the phrase “intentionally” a much wider definition, one that includes not just purpose and knowledge but also recklessness or what civilian lawyers sometimes call dolus eventualis. Now for present purposes I am going to avoid the difficult controversy of whether dolus eventualis is equivalent to recklessness or a higher mental state (residing somewhere above recklessness but well below knowledge), and for the purposes of this discussion simply assume that dolus eventualis and recklessness are similar mental states dealing with risk-taking behavior.
Now here is the key point. In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?
I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.
The correct result, it seems to me, is to explicitly codify a new war crime of recklessly attacking civilians, and the codification of such a crime should use the word “recklessly” rather than use the word “intentionally.” The idea would be to create a duty on the part of attacking forces and then penalize them for failing to live up to it. (Of course, the scope and content of that duty would then have to be elucidated through case law adjudication.) And the existence of a separate war crime would help signal the moral difference between intentionally killing civilians and recklessly killing them.
If such a hypothetical prosecution were to take place, is there sufficient evidence that the attacking force was reckless in the Kunduz hospital case? Unfortunately yes. Among the factual issues are:
1. The targeting system of the AC-130 gunship was not operating correctly because the gunship had to take evasive maneuvers due to ground fire.
2. The targeting system therefore identified the target as an empty field, which forced the gunship’s crew to locate the correct target visually.
3. Using visual confirmation, the crew located the wrong building—the hospital—instead of the actual building where the insurgents were located.
4. Apparently the crew of the gunship either did not have a list of no-fire targets on board or failed to check the hospital coordinates against the list.
5. Commanders at HQ failed to check the coordinates of the hospital target with the coordinates on their no-fire target list. Had they done so, they would have realized that the gunship was about to engage a no-fire target.
6. After the attack began, hospital workers and MSF officials began frantically calling and texting the U.S. military to stop the attack, but there was a substantial delay before the attack was finally halted.
7. According to the Times report, at least one commander was hesitant to stop the attack when they did not have “situational awareness” (SA) on the ground. Apparently he was concerned that friendly ground forces might remain in danger even as they called off the attack. Of course, the opposite turned out to be true: because they lacked SA, they continued to attack the wrong target without a firm understanding of who or what they were really attacking. Obviously it was a mistake for them to have attacked the target in the first place given that they had no SA.
Does all of this add up to a crime of recklessness? I don’t know. That would be for the fact-finder to decide, but a prosecutor could certainly make out a prima facie case that targeting “best practices” were not followed in this case, leading to the identification of the wrong target, and the loss of 42 innocent lives. But I don’t think this is a Rome Statute case. There may be sound moral reasons to create a new war crime provision for accidents of this type, but I don’t think this conduct falls under the existing law as it stands now.