Let's get facts on Afghan hospital incident before declaring a war crime

When tragic things happen in war, do the facts matter? If your answer is "of course," consider the pronouncements of Doctors Without Borders (DWB) officials after the deadly aerial assault by U.S. forces last Saturday in the embattled Afghan city of Kunduz.

Before any investigation could get underway, DWB President Meinie Nicolai already pronounced her judgment: the incident was, she claims, "a grave violation of international humanitarian law." One has to wonder, does DWB routinely declare a diagnosis before investigating the facts?

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Moreover, in a statement that seems almost calculated to offend Americans' sense of fairness, DWB General Director Christopher Stokes asserted that there is a "clear presumption that a war crime has been committed." In the U.S. — and most rule-of-law countries around the planet — there is a "clear presumption" not of criminality, but of innocence.

In truth, DWB has some hard questions to answer. For example, did they mark their facility with a red cross or other internationally accepted distinctive symbol as provided by the Geneva Conventions, and is typical in war zones? If not, why not? Yes, it is great to provide the location coordinates as DWB claims, but in the fog and friction of combat, easily discernable visual markings can save lives.

CNN also reports that Stokes admits that while their main building "was repeatedly and very precisely hit," the "rest of the compound was left mostly untouched." If that is accurate, did the DWB staff make any effort during the 30 to 45 minutes the raid lasted to move themselves or their patients to the safety of the "mostly untouched" area?

Additionally, were armed Taliban ever in the compound? DWB seems to deny it, but The New York Times reports that Afghan police said that "Taliban fighters had entered the hospital and were using it as a firing position." Similarly, the acting Afghan governor of the region told The Washington Post that the "hospital campus was 100 percent used by the Taliban," insisting that it "has a vast garden, and the Taliban were there." He added further that "We tolerated their firing for some time [before responding]."

Importantly, the "accuse first, investigate later" approach of DWB's leadership doesn't just undermine the group's credibility; it will taint the testimony of DWB witnesses in any investigation (which DWB seems to concede is inevitable). We can now never be quite certain if they are being truthful or simply attempting to mimic and support the already on-the-record positions of their bosses.

U.N. High Commissioner for Human Rights Zeid Ra'ad Al Hussein unfortunately added to the confusion by declaring, again without the benefit of any investigation, that the event was "utterly ... inexcusable." International law, however, concludes differently. There are a number of reasons that might excuse harm to civilians that may have occurred, particularly if the compound was used by the Taliban to conduct attacks or to the shield themselves from Afghan or U.S. forces.

Yes, a hospital can become a legitimate target if it is being used for military purposes. Protocol I to the Geneva Conventions indicates that when all or part of a civilian facility is being used for warfighting, it can be struck if the anticipated civilian casualties aren't "excessive in relation to the concrete and direct military advantage expected."

As to the "military advantage expected," keep in mind that the U.N. has repeatedly found that the Taliban and other anti-government forces in Afghanistan are responsible for well more than 70 percent of all civilian casualties. This means that any decision not to attack an otherwise lawful target could result in Taliban fighters continuing to victimize innocent Afghans. Each minute the Taliban are in control of Kunduz, Afghans are in peril.

What is more is that under international law, war crime liability does not attach to mistakes — however tragic — when the attackers are making reasonable efforts under the circumstance to avoid harming civilians.

Given the chaos of the Kunduz battlespace and, particularly, the behavior of the Taliban, it is not surprising that The Washington Post writes that the "Afghan response to hospital bombing is muted, even sympathetic." It quotes an Afghan legislator who observes that when "insurgents try to use civilians and public places to hide, it makes it very, very difficult, and we understand how this can happen." He adds this melancholy truth:

You have two choices: either continue operations to clean up, and that might involve attacks in public places, or you just let the Taliban control. In this case, the [Afghan] public understands we went with the first choice, along with our international allies.

Obviously, much yet needs to learned about this heartbreaking event, but it doesn't help anyone to make judgments before the facts are fully explored. If a war crime is proven to have occurred, by all means, punish the perpetrators. International law must be followed.

Still, even as we grieve for the losses, let's avoid prejudging the incident. Yet-unproven accusations can operate to produce further political restrictions on the U.S.'s ability to aid its allies in resisting Taliban deprecations. If that happens, the most vulnerable Afghans could pay a terrible price, and that would compound what is already an awful tragedy.

This piece has been slightly revised.

Dunlap is a retired Air Force major general who is currently executive director of the Center on Law, Ethics and National Security at Duke Law School.