The 3 October, a US air raid, carried out in support of the Afghan troops, has caused the destruction of the hospital in the Afghan city of Kunduz and the death, according to current estimates, of more than twenty people, including health personnel and civilians (including some children).
There are several reconstructions of the fact, both from the United States, both from the Afghan side, and again from the "Doctors Without Frontiers" organization, which manages, or better manages, the hospital in question. And all contrasting between them, of course.
In this regard, we interviewed our Marco Valerio Verni, an expert lawyer in criminal law, military criminal law and qualified advisor for the armed forces in the application of the international humanitarian law in armed conflicts.
Attorney Verni, in the case in question, all the actors involved tend to provide contrasting versions of the incident. The Afghans, in particular, claim that there were terrorists hiding in the hospital, who also fired at their troops. Doctors without borders, on the other hand, affirm that none of this is true and that, indeed, the bombing continued even after the American command had been warned of what was affecting US planes. In terms of responsibility, the truth of one or the other version could be decisive, without prejudice to the condolences for the death of civilian victims?
In principle, I would say yes: not yet knowing the dynamics of the facts, in the specific case, we can try to reason abstractly, and refer to the rules that regulate armed conflicts (in particular, the Geneva Conventions and its additional protocols that , together with other Treaties, constitute the international humanitarian law).
In this context, art. 18 of the Geneva Convention for the Protection of Civilian Persons in Time of War, clearly states that "Civil hospitals organized to provide care for the wounded, the sick, the sick and those who have recently given birth can not under any circumstances be attacked; they will be, at any time, respected and protected by the belligerent parties".
Therefore, in general, the bombing of a hospital is forbidden, and in this case, if this were the picture, it could probably have been a mistake, since it could be ruled out that the Americans deliberately killed civilians.
However, it must also be said that the subsequent art.19 of the aforementioned Convention states that the protection due to civil hospitals "it may cease only if it was used to commit acts harmful to the enemy, other than humanitarian duties".
It is not uncommon, in fact, that a civil property, such as a school or a hospital, is - in fact - used for the shelter of weapons, to hide troops, or used as a real "point of fire". By doing so, they end up being considered military targets in all respects and, consequently, bombed. With this in mind, we could then design a second scenario, in which to accompany the hypothesis that, inside the hospital, there were terrorists, or weapons, or, in any case, fighters, capable of offending the Afghan army which, in at that time, he was carrying out a counteroffensive, according to some versions.
In this case, certainly, the US bombardment of the hospital could be justified, provided that two other requirements were considered: military necessity and proportionality.
In this regard, the art. 52 of the I Additional Protocol of 1977 establishes the lawfulness of the attacks only if directed against "goods which by their nature, location, destination or employment actually contribute to military action, and whose total or partial destruction, conquest or neutralization offers, in the concrete case, a definite military advantage".
According to this rule, two are therefore the requirements for a goal to be defined as military: the first is that the good must effectively contribute to the enemy's warfare a) by nature (military aircraft, military ship, armored vehicles, weapons, ammunition , etc.), b) by location (militarily important area, for example: a bridge that serves for the passage of enemy troops), c) by destination (future use of the property, for example: civil bus intended to carry weapons), d) employment (current use of the property, for example: school in which a military command was established).
The second requirement is that conquest, destruction or neutralization must offer a precise military advantage, that is concrete and direct, excluding - for the majority doctrine - hardly perceptible advantages and those that can materialize in the long term.
Was this analysis made by the US military command, in case there were, indeed, terrorists in the bombed hospital? And was the bombing the only way to neutralize them? Has a balance been made between the potential military advantage thus acquired and the civil losses that would inevitably have occurred? What intelligence activity has been carried out?
Among other things, the rule referred to in Article 19 cited, goes further, stating, for example, that even the fact that in a hospital are cared for injured or sick military or that there are portable weapons and ammunition withdrawn to these same soldiers and not yet delivered to the competent service, can not consider themselves "harmful fact".
It also specifies that, even in the latter case (damaging fact), protection may cease only after "an indication by which a reasonable time limit is fixed, in all appropriate cases, has remained without effect".
On the other hand, it will be necessary to investigate thoroughly whether, even on the part of the hospital structure, the caution of the case has been respected: always the aforementioned art. 18 provides that "States participating in a conflict will have to issue to all civilian hospitals a document attesting to their civil and precise hospital character that the buildings they occupy are not used for purposes which, in the sense of Article 19, could deprive them of protection .
Civil hospitals will be marked, as long as they are authorized by the State, by the emblem provided for in the 38 article of the Geneva Convention of 12 August 19491 to improve the fate of the wounded and sick of the armed forces in the countryside.
The belligerent parties, as military requirements allow it, will take measures to make visible to enemy, terrestrial, air and maritime forces, the distinctive emblems that signal the civil hospitals, in order to prevent the possibility of any aggressive action.
In consideration of the dangers that the proximity of military objectives may be for hospitals, we must ensure that these objectives are possibly far away ".
All very clear: it will be necessary, therefore, to ascertain well the dynamics of the facts, if ever it will be possible, to attribute to those responsible, the consequences of the case.
Of course: let's start from the assumption that the violations of the DIU, where committed (as it happens prevalently) by state organs, respond to both states (for which it derives not a repair obligation, but the possible payment of an indemnity) , both to individual authors. Under the first profile, various regulations - the Hague Convention of 1907 (Article 3), the Geneva Conventions (Conv.I, Article 51, Conv.II, Article 52, Conv. III, Article 131; Conv. 4, art 148) and the I Protoccolo Aggiuntivo of 1977 (Article 91) - establish the international responsibility of States for all acts committed by persons belonging to the respective armed forces. Under this last point, the Geneva legislation intended to strengthen and extend the scope of this principle, establishing the obligation of all States parties to seek, prosecute or extradite those accused of committing, or order to commit violations known as "serious infractions", which are listed by convention and by the Additional Protocculus of 1977 (Conv.I, articles 49-50; Conv. II, article 50-51; Conv. III, articles 129- 130; Conv IV, Articles 146-147; Prot. I 1977, Article 85, Co. 1-2) according to the criterion of universal criminal jurisdiction.
President Obama has announced a commission of inquiry, in this regard, to ascertain, in fact, the dynamics and possible responsibilities.
I believe that a commission of inquiry that can be truly impartial should not be run by one of the parties involved. As has already happened in other cases, it could be the Red Cross, for example, or the United Nations, to carry out the necessary investigations, to avoid the obvious suspicions of piloted investigations. In this sense, the president of the "MSF's operational directorate" of Brussels, Meinie Nicolai, also expressed herself, according to which, since there is a suspicion that a war crime may have been committed, she asked that the aforementioned (investigations) be carried out byInternational Humanitarian Fact-Finding Commission, born in the 1991 just in the scope of the Additional Protocol to the Geneva Conventions of the 1977, and never used until today. On the other hand, on the importance, in these cases, of an impartial investigation, we should know something about it with the story of the marines. But this is another story.
(photo: MSF)
