Kunduz and ICC Scrutiny of U.S. Forces in Afghanistan

By David Bosco
Monday, October 5, 2015, 6:37 AM

By all accounts, what took place in the Afghan city of Kunduz over the weekend was horrific. It appears that several airstrikes hit a hospital run by Médecins Sans Frontières, killing more than twenty and wounding dozens. MSF describes the attacks on the medical facility as repeated and precise:

From 2:08 AM until 3:15 AM local time today, MSF’s trauma hospital in Kunduz was hit by a series of aerial bombing raids at approximately 15 minute intervals. The main central hospital building, housing the intensive care unit, emergency rooms, and physiotherapy ward, was repeatedly hit very precisely during each aerial raid, while surrounding buildings were left mostly untouched.

“The bombs hit and then we heard the plane circle round,” said Heman Nagarathnam, MSF head of programs in northern Afghanistan. “There was a pause, and then more bombs hit. This happened again and again. When I made it out from the office, the main hospital building was engulfed in flames. Those people that could had moved quickly to the building’s two bunkers to seek safety. But patients who were unable to escape burned to death as they lay in their beds.”

The organization has called the attack a "grave violation of international humanitarian law" and insisted that it be investigated "under the clear presumption that a war crime has been committed." NATO, the U.S. government, and the Afghan government have all pledged full inquiries.

MSF's insistence that the attack constituted a war crime raises the question of who should investigate and (potentially) prosecute. And that in turn should remind us that the International Criminal Court (ICC) could still become involved in Afghanistan. It is often forgotten that the court has broad jurisdiction in the country, which became an ICC member in 2003. For more than six years, the ICC office of the prosecutor (OTP) has been conducting a "preliminary examation" of the situation to determine whether crimes under the jurisdiction of the court have been committed and to assess whether the states involved are addressing them adequately (the "complementary" test). In its most recent update, the prosecutor's office made clear that it has decided the former question in the affirmative but remains uncertain about the latter.

The status of of the ICC's preliminary examination has been particularly sensitive for the United States. The Rome Statute provides the court with jurisdiction over crimes committed on the territory of member states--even when non-member state nationals commit them. And that means that the prosecutor can scrutinize U.S. activity (U.S. officials and some commentators have argued that the court cannot prosecute non-member state nationals and/or that status of forces agreements between international partners and Afghanistan effectively ousts the ICC of jurisdiction, but the prosecutor appears to give these arguments little weight).

I've reported a couple of times for Foreign Policy (here and here) on how the Obama administration has sought to influence ICC deliberations regarding Afghanistan. The U.S. activity that has attracted most scrutiny from the prosecutor is the alleged abuse of detainees early in the conflict. What the prosecutor has been focusing on is 1) whether the alleged abuses were part of a broader policy of abuse; and 2) whether the United States has adequately investigated the alleged crimes. It appears that there has been a quiet back-and-forth between U.S. officials and the prosecutor's office about specific cases. It's not clear where the investigation now stands, but the prosecutor should release a new report on its preliminary examinations in a few months.

In light of the Kunduz attacks, it's worth noting that the prosecutor has stated in the past that she sees no solid evidence that coalition air forces have intentionally attacked civilians. And the OTP pointed out in its latest report that it classifies the Afghanistan conflict as a non-international one, which means that the war crime of intentionally launching a disproprotionate attack (listed in the Rome Statute for international conflicts) would not be available. The likelihood that the Kunduz bombings would ever be the subject of an ICC indictment is therefore vanishingly small. But the tragedy is an important reminder that the prosecutor still has a decision to make about her Afghanistan inquiry--and that her decision could have implications for the United States.