Home Afghanistan Will the ‘Sleeping Beauty’ Awaken? The Kunduz Hospital Attack and the International Humanitarian Fact-Finding Commission

Will the ‘Sleeping Beauty’ Awaken? The Kunduz Hospital Attack and the International Humanitarian Fact-Finding Commission

Published on October 15, 2015        Author: 

Editors Note: Following the attack earlier this month in Kunduz on a hospital run by Médecins Sans Frontières, we  are  today posting two articles on the potential role of the International Humanitarian Fact-Finding Commission (IHFFC) in any investigation. The two posts, the first by Ove Bring (Professor Emeritus of International Law at Stockholm University & Swedish National Defence University, and former member of the IHFFC) and the second by Catherine Harwood (Ph.D. Researcher at the Grotius Centre for International Legal Studies at Leiden University), present different views on the debate regarding the IHFFC’s role.

The horrific attack on 3 October 2015 on a hospital run by Médecins Sans Frontières (MSF) in Kunduz province, Afghanistan, has turned the world’s attention back to the enduring armed conflict in Afghanistan and the need for full and transparent investigations of incidents that ostensibly violate international humanitarian law (IHL). Following the attack, MSF called on the US to “consent to an independent investigation led by the International Humanitarian Fact-Finding Commission (IHFFC) to establish what happened in Kunduz, how it happened, and why it happened.”

The IHFFC, established by Article 90 of Additional Protocol I (1977) to the Geneva Conventions (AP I), is the only permanent international fact-finding body with a specific mandate to investigate violations of IHL. Its President, Dr. Gisela Perren-Klingler, has confirmed that the Commission is ready to undertake an investigation of the attack. Despite its potential value to promote compliance with IHL, the IHFFC has never been used. Back in 2002, Professor Frits Kalshoven questioned whether the Commission had become a ‘Sleeping Beauty’, suggesting that its disuse was due to its independence and the general reluctance of parties to armed conflicts to have the truth about certain facts exposed.

This incident appears at first sight to provide an eminently suitable opportunity to put the Commission to good use. However, this contribution argues that the distinctive contours of the Commission’s jurisdiction, combined with political factors, mean that it is unlikely to be roused from its fact-finding slumber just yet.

The airstrike on MSF’s hospital in the early hours of 3 October 2015 killed 22 people and injured many others. US and Afghan forces had been made aware of the hospital’s location prior to the attack. During the airstrike, MSF’s frantic calls to those in charge appeared to go unheeded, with the attack continuing, it says, for more than half an hour after the first calls were made. President Obama has called the incident a “terrible, tragic accident”, while the High Commissioner for Human Rights described it as “utterly tragic, inexcusable, and possibly even criminal”. MSF President, Dr. Joanne Liu, went further, stating that MSF was “working on the presumption of a war crime”.

As reported in the New Yorker, statements by US and Afghan officials gave rise to divergent accounts which did not explain several concerning aspects of the incident. The legality of the incident under IHL has been comprehensively analysed by Jonathan Horowitz at Just Security and Milena Sterio at IntLawGrrls, so I will not rehearse their analyses, suffice to say that the prima facie unlawfulness of the attack means that an investigation is in order. According to Article 8(2)(e)(iv) of the Rome Statute, it is a war crime to direct attacks against hospitals, provided that they are not military objectives. The duty to investigate suspected war crimes can be traced back to the grave breaches regime in the Geneva Conventions and is articulated by the ICRC as a rule of customary IHL applicable in international armed conflicts (IACs) and non-international armed conflicts (NIACs). Indeed, the US has accepted that an investigation is necessary, and has established three investigations, including one by the Department of Defense. MSF International President, Dr. Joanne Liu, has rejected internal military investigations as insufficient, and called on the US to consent to an independent investigation by the IHFFC.

MSF states that all that is needed is for “one of the 76 signatory States to sponsor an inquiry”, and has called on the US to consent. Unfortunately, this does not represent the reality of the IHFFC’s jurisdiction. According to Article 90 of AP I, its jurisdiction is triggered in two ways:

  • The IHFFC has ‘ongoing’ jurisdiction pursuant to Article 90(2)(a) when a High Contracting Party to AP I declares that it recognises: “in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to enquire into allegations by such other Party, as authorized by this Article”; and
  • The IHFFC has ‘ad hoc’ jurisdiction pursuant to Article 90(2)(d): “In other situations, the Commission shall institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.”

Unfortunately for those advocating an independent international investigation, neither situation appears to be applicable to the conflict in Afghanistan. The IHFFC has ongoing jurisdiction when allegations are made by a state which has ratified AP I and lodged a declaration, in respect of another state which has also ratified AP I and lodged a declaration. Even if one of the 76 signatory states was willing to ‘sponsor’ an inquiry by raising allegations, neither Afghanistan nor the US have completed the required paperwork. Afghanistan has not lodged an Article 90 Declaration and the US is not even a party to AP I.

Alternatively, the IHFFC has ad hoc jurisdiction when a party to the conflict requests an inquiry and all other parties to the conflict give their consent. It does not appear necessary for those parties to have ratified AP I, due to the choice of language in that provision. However, the involvement of the Taliban evokes a more fundamental barrier to the IHFFC’s jurisdiction: the conflict is non-international in nature. The Commission was borne out of AP I, which only applies in IACs. Moreover, according to Article 90(2)(c)(i), it may investigate grave breaches and other serious violations of “the Conventions and this Protocol”, which excludes Additional Protocol II and customary IHL. Thus, the classification of the conflict could preclude jurisdiction.

The jurisdictional hurdle of IAC could perhaps be satisfied by pointing to facts which “internationalise” the conflict, such as allegations of Pakistan’s covert support of the Taliban. However, it is doubtful whether such support, even if sufficiently proven, would amount to a sufficient level of control over the Taliban’s operations so as to internationalise the conflict under IHL. Another potential internationalising feature could be the involvement of Coalition forces in Afghanistan. Yet, the ability for a NIAC to be transformed into an IAC simply due to the presence of multinational forces remains highly contested. Geiß and Siegrist, for instance, write that a NIAC remains non-international in nature when a multinational force supports another state against armed opposition (p. 14, note 8).

Another possible approach could be to take a more relaxed interpretive approach to jurisdiction, so as to encompass NIACs. Kalshoven observed that “almost from day one” the IHFFC was willing, provided that all parties agreed, to operate in a NIAC, and to apply the entire corpus of IHL. Such an interpretation might be possible by reading the provision for ad hoc jurisdiction broadly, so that the phrase “in other situations” includes NIACs, and is disconnected from the restrictions on applicable law. Proponents might also point to Common Article 3 to the Geneva Conventions (which provides for minimum protections in NIACs) as evidence of NIAC jurisdiction, seeing as the IHFFC can investigate serious violations of the “Conventions” as a whole. Yet the rules on ad hoc jurisdiction and applicable law remain part and parcel of AP I, which as a whole only applies in IACs. There is also a paucity of state practice to support a possible extension to the IHFFC’s jurisdiction on the basis of customary IHL.

While in theory it might be possible for the US and Afghanistan to consent to an extended version of the IHFFC’s jurisdiction, and it may represent a valuable opportunity to activate the IHFFC, the states are well within their rights to refuse to do so on the basis that it is at odds with the face of AP I. If the wording of article 90(2)(d) is to be respected, consent from the Taliban as a ‘Party to the conflict’ would also need to be secured. The foreseeable resistance to that suggestion might indicate the extent to which Article 90 was drafted with inter-state conflict in mind.

An alternative approach which would avoid those jurisdictional hurdles, and which might allay the concerns of MSF, would be for the states to agree to establish an international fact-finding commission composed of well-respected IHL experts, such as those individuals serving as Commissioners of the IHFFC, without invoking the formal credentials of that body. On a practical level, however, consent is unlikely to be forthcoming, possibly because state officials believe that existing investigations are sufficiently robust, but possibly also for the reasons suggested by Professor Kalshoven.

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10 Responses

  1. Jordan

    Good comment. However, the armed conflict in Afghanistan in oct. 7, 2001 was an IAC and has not changed in character except that it has been even more “internationalized” over the years, especially with an expanded de facto theatre of war into parts of Pakistan (see )When the U.S. intervened there had already been an ongoing “belligerency” between the Northern Alliance and the Taliban govt. and the U.S. et al. intervention further “internationalized” the armed conflict. Today, President Obama announced the continued need for U.S. soldiers to participate in the war that has migrated to parts of Pakistan. The Taliban continues to be at least a “belligerent” fighting in an IAC. U.S. soldiers and those from other countries who fight in Afghanistan are in an IAC — otherwise they would not be “combatants” entitled to “combatant immunity” for lawful acts of war or pows when captured — see also ; )
    Note that the ICC can have jurisdiction over a U.S. national who is reasonably accused of a war crime in relevant conduct occurs on the territory of a party to the Rome Statute ( ).

  2. Few would dispute that an investigation into the facts is desirable, whether by the IHFFC or through other mechanisms. Few would dispute that this is so because serious questions arise regarding the legality of the attack. However, whether we ought to proceed on the assumption that a war crime has been committed – as MSF apparently does – is a different matter. Sure, it is a war crime to direct attacks against hospitals which are not military objectives, but only if done intentionally. Based on what we know, it probably goes to far to proceed on the assumption that US forces directed the attack against the hospital in the knowledge that it was not a military objective. The more likely scenario, based on what we know, is that the civilian loss and damage was accidental rather than intentional. This does not preclude the fact that insufficient precautions were taken. This would be a violation of IHL, but without intention, it is not a war crime.

  3. Jordan

    Aurel: but a war crime could also occur if the bombing was the result of wanton, reckless disregard (even though the ICC does not have full jurisdictional competence to address all war crimes, e.g., the knowledge or intent req.) See, e.g., GC, art. 147 (“wantonly”); GPI, art. 51(4)-(5) (“indiscriminate”).

  4. Catherine Harwood

    Jordan, I agree that the conflict in Afghanistan was indeed an IAC as at October 2001, but in my view the Taliban’s fall from power and the subsequent alliance between the Afghan Government and ISAF did change the character of the conflict to a NIAC (albeit with various ‘international’ elements, none of which affected its classification). See e.g., Marko Milanovic’s contribution in the updated Commmentary to the Geneva Conventions (2015) where he writes that US involvement in Afghanistan after the fall of the Taliban regime is a “paradigmatic example” of a cross-border NIAC (p. 44).

  5. Jordan

    With all due respect, there is no such thing as a “cross-border” or “transnational” NIAC. When the theatre of war expands into another country the conflict, whatever it had been, is internationalized. Unfortunately, the Taliban have not been defeated, still generally control territory as a “belligerent,” have leaders operating from parts of Pakistan, and the war rages on.

  6. Jordan, I am still not convinced that MSF is knocking on the right door by invoking war crimes. Sure, facts may yet transpire which may establish that a war crime has been committed. But based on what is known so far, it seems a little premature to proceed on this assumption.

    You mention Art 51(4) AP I, which deals with indiscriminate attacks. Art 51(4)(a) prohibits attacks which are not directed at a specific military objective. The term ‘directed’ implies the deliberate targeting of civilians or civilian objects. Based on what we know, nothing indicates that the hospital was knowingly (rather than accidentally) targeted as a civilian object. Art 51(4)(b) prohibits attacks which employ a method or means of combat which cannot be directed at a specific military objective. The weapons used were clearly capable of being directed at a specific military objective. Whether or not they were in fact directed at a military objective is a different matter, which takes us back to Art 51(4)(a). Finally, Art 51(4)(c) prohibits attacks which employ a method or means of combat the effects of which cannot be limited. This does not appear to be relevant in the present context.

    You also mention Art 51(5) AP I. Art 51(5)(a) defines as an indiscriminate attack those which treats as a single military objective a number of clearly separated and distinct military objectives. Given that the damage was confined to the hospital, this rule does not appear to be engaged. We then get to Art 51(5)(b), which sets outs the proportionality rule. The rule assumes that the civilian harm that may be expected from the attack has been weighed by the attacking forces against the military advantage anticipated form the attack. It is rather unlikely that this calculation was performed in the present case. Assuming that US forces identified the target as a hospital, but one which became a military objective and thus lost protection from attack, they would have had to take into account the likelihood of civilians being present in the structure as part of validating the target. The civilian casualty value for a hospital of this size would have been considerable. We may reasonably assume that this value would have exceeded the civilian casualty value authorised under the applicable ROE. Since it is highly unlikely, therefore, that the target would have been authorised, this suggests that it was either not properly validated or that it was not in fact attacked on the basis of a proportionality calculation.

    You also refer to Art 147 GC IV and the prohibition of wanton destruction. That rule prohibits the wanton destruction of ‘cities, towns or villages’. It only covers the destruction of civilian objects, not the loss of civilian life, and only if it involves the destruction of property on a large scale. Again, this does not seem to be relevant here.

  7. Jens Iverson


    Your points are well taken. For what it’s worth, the competence of the commission is to “enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol;” so IHL, not ICL per se. AP I prohibits “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” – so a violation of this prohibition may be within the commission’s ambit over serious violations – were it not for the problems Catherine has identified.

  8. Jordan

    Thank you Jens for raising the “expected to cause” criterion, which is even a lower mens rea threshold than wanton or reckless disregard.
    With respect to the ongoing war with the Taliban and common Article 3, the text and the ICRC Commentary make clear that the conflict with the Taliban in Afghanistan and Pakistan cannot be a NIAC. Article 3 focuses on important language: “not of an international character” occurring “in” the territory of “one” state party. III Commentary at 36 (ICRC 1960): art. 3 conflicts “take place within the confines of a single country”). See also GP II, art. 1(1) (“armed conflicts … which take place in the territory of a” state party). Yoram Dinstein, Concluding Remarks, in Non-International Armed Conflict in the Twnety-First Century 400 (Watkin & Norris eds., 2012) (“[o]rdinary military operations in Afghanistan” constitute “an IAC waged … against the Taliban”).
    If the continuing war, which never ended, was, contrary to common article 3 and the ICRC Commentary, for example, merely a NIAC, every soldier of every nationality that killed am enemy when self-defense or defense of others under domestic Afghan or Pakistani or the extraterritorial law of the state of nationality of the killer would not pertain could be guilty of “murder” and, although it is not a war crime merely because one is a fighter in a NIAC when, in a NIAC, a soldier cannot be a “combatant” and cannot have “combatant immunity” for what would be lawful acts of war in an IAC, “murder” is a war crime under common article 3(1)(a).
    Those professors who ignore than language of common article 3 and the ICRC Commentary can tell every foreign soldier who comes home who does not have a defense under relevant domestic law and who kills someone on the battlefield that you are a “murderer” — what a happy result!

  9. Jordan

    That’s actually IV Commentary at 36 (same language) and III Commentary at 37.

  10. […] an overview of the organization, and calls for increased awareness of its existence. The second questions the jurisdictional basis for initiating at IHFFC […]