The Geneva Conventions are meant to protect civilians during war. But nations have flouted these with impunity, leading to collateral damage in places like Afghanistan and Yemen.
By Anuj Raina
War doesn’t have many rules. Though it is often romanticized as a fair confrontation, the reality is quite different. Modern combat is usually about fighting as unfairly as possible. It entails eliminating the enemy as efficiently as possible, while exposing oneself to as little risk as possible.
Insofar as rules go, there are a few that most nations have agreed to, as codified by the Geneva Conventions of 1949. These confirm immunity for civilians, hospitals and medical staff. Also, the 1977 Additional Protocols to the conventions state: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”
The rule is that civilians must not be directly targeted for military attack. Also, wounded, sick or shipwrecked military personnel, who are considered to be hors de combat (out of action due to injury), are protected, as are prisoners of war.
One of the oldest references to conduct in war can be found in the Mahabharata, where a discussion takes place between Bhishma and Yudhishthira concerning what constitutes acceptable behavior on a battlefield. According to Bhishma: “One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him…. War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him.”
Let’s fast forward to 2015. International Humanitarian Law (IHL) is a legal framework applicable to situations of armed conflict and sets in when two or more parties engage in an armed confrontation. These may be international or non‐international in character. The application of IHL is not dependent on a declaration or formal recognition of war. Broadly speaking, internatio-nal law (along with its subordinate IHL) is based on three pillars: Treaties, customs and general principles.
Only states that have taken necessary and sufficient steps to bring a treaty into force are bound by its terms. Even if a state is not party to a specific IHL treaty, many of its rules reflect customary international law.
The Geneva Conventions specify that civilians must not be directly targetted. Also, wounded, sick or shipwrecked military personnel, who are out of action due to injury, should be protected.
These rules came into play recently when Médecins Sans Frontières’ (MSF) trauma hospital in Kunduz, Afghanistan, came under precise and repeated airstrikes on October 3, 2015. The main building, which housed the intensive care unit, emergency rooms, laboratory, X-ray, outpatient department, mental health and physiotherapy ward, was hit during each aerial raid, while the surrounding buildings were left mostly untouched. It left at least 30 dead, including 10 patients, 13 staff and 7 unrecognizable bodies. When the attack occurred, there were 105 patients in the hospital and 80 MSF staff who were on duty.
This was done despite the Geneva Con-ventions saying that hospitals, ambulances, medical aircraft and medical personnel are entitled to protection from hostile fire, provided that the structures are marked with a red cross or red crescent and not used improperly or near military objectives.
FATAL ERROR
By the US Department of Defense’s own admission, MSF had provided the GPS coordinates of the trauma hospital to the US Department of Defense, the Afghan Ministry of Interior and Defense and the US Army in Kabul less than a week before the airstrike. The attack continued for more than 30 minutes despite MSF informing the NATO command in Afghanistan and US military officials in Kabul and Washington that it was a hospital being hit.
According to the US military’s investigation of the incident, the medical facility was misidentified as a target by its personnel who believed they were striking a different building several hundred meters away where there were reports of Taliban fighters. The hospital was on the military’s so-called “no-strike list”. A minute before the firing, the crew transmitted the coordinates of their target to their headquarters at Bagram Airfield, north of Kabul, giving the accurate location of the hospital.
On October 3, 2015, MSF Trauma Hospital in Kunduz, Afghanistan, came under precise and repeated airstrikes. Around 30 were killed.
MSF’s hospital in Kunduz was the only facility of its kind in north-eastern Afghan-istan, providing free life- and limb-saving trauma care. Since its opening in 2011, more than 15,000 surgeries were conducted and more than 68,000 emergency patients were treated. The hospital has been substantially destroyed and is no longer operational.
INDEPENDENT PROBE
MSF has now demanded an independent investigation by the International Humani-tarian Fact-Finding Commission (IHFFC) to establish the facts of this event. IHFCC is not a UN body; it was created in 1991 by Additional Protocol 1, Article 90 of the Geneva Conventions that govern the rules of war. It was set up to independently investigate violations of humanitarian law such as attacks on hospitals which are protected in conflict zones.
Although the US military has formally apologized for the incident with suspended members accepting that the “cause of this tragedy was avoidable human error, compounded by process and equipment failures”, it has categorically rejected accusations of war crimes and calls for independent inquiries.
Far more troubling are the broader implications of the US military’s report on the incident. They indicate deep, systemic failures at every level of the US military’s chain-of-command. At no point were US forces in visual contact with Taliban fighters; they relied on the reports of Afghan soldiers, who reported taking fire from the hospital. Moreover, the US military’s Central Comm-and had the precise GPS coordinates of the hospital’s location and yet bombed it.
Counterterrorism expert and executive director of Delhi-based Institute for Conflict Management Ajay Sahni points out the double standards of the US. “One of the justifications the US gave for the attack was that Taliban insurgents were using MSF hospital as a base. That doesn’t hold water. If you remember, at the UN, the US itself was pushing to condemn Sri Lanka, which killed civilians who were being used as human shields by the LTTE. So targeting insurgents using civilians as human shields in Afghanistan is illegal as well,” he says.
CULTURE OF IMPUNITY
The US is not the only power that has recently been accused of violating IHL by targeting medical facilities. An examination of conflict zones shows a disturbing culture wherein states wage war disregarding the Geneva Conventions with impunity.
Airstrikes carried out on the night of October 26 by the Saudi Arabia-led coalition in northern Yemen destroyed a hospital supported by MSF. Miraculously, no one was killed. Hospital staff and two patients managed to escape before subsequent airstrikes occurred over a two-hour period. With the hospital destroyed, at least 2,00,000 people now have no access to medical care.
Less than two months later, on December 2, another airstrike carried out by the Saudi-led coalition hit a clinic in southern Yemen run by MSF, wounding nine people, including two MSF staff. Three airstrikes initially targeted a park in Taiz city’s Al Houban district, 2 km from MSF’s clinic. The MSF team immediately evacuated the clinic and informed the Saudi-led coalition that their jet planes were mounting an attack nearby. Regardless, the clinic itself came under attack a short while later. The hospital’s GPS coordinates were regularly shared with the coalition and the roof of the facility was clearly identified with the MSF logo.
While the US and others have often implied that MSF provides medical care to wounded insurgents and enemy combatants, such criticism is utterly baseless insofar as IHL goes. Geneva Conventions clearly state that so long as they refrain from any act of hostility and do not attempt to escape, the wounded and sick—of all parties—must be collected and cared for. Medical personnel, units, and transports under the control of those parties have so-called “special” protections under IHL.
Moreover, under IHL not only warring states but also “organized armed groups”, at least pursuant to Additional Protocol II, may control their own medical personnel, units, and transports. Those organized armed groups may thereby extend “special” protections to the medical personnel and objects under their control.
So obviously, though rules are laid down, it isn’t necessary that they will be followed with care.