The geopolitics of international humanitarian law and the kunduz hospital bombing

Reports are suggesting that on 3rd October a US AC130 gunship fired on an Afghan hospital in the city of Kunduz, killing 12 staff members and 10 patients and wounding many more (while the precise figures are unclear at the moment estimates suggest around 37 people). While NATO, the Afghan Government and the US military have all stated they will launch inquires, the international humanitarian NGO Medecins Sans Frontieres (MSF) that ran the hospital is calling for an independent investigation, claiming the attack is a violation of international humanitarian law (IHL). This desire for independence is perhaps understandable, considering that since the hospital bombing the US military have released four different accounts of the circumstances surrounding the attack, while there is also a long history of the use of inquiries/investigations to delay public scrutiny of military or political decisions (see criticisms of the UK’s Iraq War Inquiry). But the desire for independence also orientates our attention to the legitimate body to conduct such an inquiry — MSF is calling upon the International Humanitarian Fact Finding Commission (IHFFC) to lead this work, a body set up in 1991 as part of Article 90 of the 1977 first amendment of the Geneva Conventions but whose services have — to date — not been used to investigate potential war crimes.

This raises three, interlinked, geopolitical issues. The first is a rather straightforward point regarding international jurisdiction over a conflict zone: what kind of global legal authority can claim the right to investigate the bombing in Kunduz? Of course, we turn to the cherished multilateralism of the Geneva Conventions and its subsequent institutional architectures. But despite their cosmopolitan/universal impulses (or perhaps because of them) these legal texts have been poor structures on which to build institutions or respond to events, in some senses they work better as a moral compass. This links to the second point, that it is interesting — institutionally speaking — that it is international civil society (and not states) that are leading these calls. Human Rights Watch and MSF stand as the defenders of global human rights in the face of a state system that seems to see these obligations as partial or context-specific. Of course, we need to be attentive to the geographies of these purportedly global actors, but it points to changes in the origin point of human rights law. The recent debates around the UK Government to establish a Bill of Rights (and rejecting the European Convention of Human Rights) illustrate the tensions between state sovereignty and the preservation of certain rights enshrined in common humanity.

But this raises a third point, however virtuous such transnational initiatives sound, they have to be able to operate in practice. I am reminded of Pierre Hazan’s account of the struggles of the Commission of Experts (CoE) in the early 1990s, tasked by the UN to investigate rumoured war crimes in the Bosnian conflict. This body was founded and celebrated as an advance in international humanitarian law, but when chief investigator Cherif Bassiouni came to establishing its offices in Geneva he discovered that there were no resources available, not even computers (he found some ol PCs in a skip in the street and used those). Hazan’s inference is that the CoE was a publicity stunt to assuage public outcry at the images of emaciated bodies within concentration camps, where powerful states didn’t want an actual investigation that could hamper efforts at a peace deal (in the end, and as Pierre Hazan brilliantly evokes, Bassiouni moved the CoE back to his offices in DePaul University in Chicago and completed a remarkable work of documenting violations of international humanitarian law). But the success of the IHFFC also requires access: the gathering of facts needs an evidential base and one of the most regularly used tactics for halting the use of humanitarian law in contested sites is to  block entry. Such ‘blocking’ is not simply a physical barrier-act, as Eyal Weizman’s work on forensics has shown, it is also an act of claiming superior scientific expertise to analyse wounds, material damage and bodily remains.

The geopolitics of IHL is, then, more complex than the tensions between international and state jurisdictions, it is also reflected in the intimate locations through and on which violence is enacted. Whether the IHFFC can respond in a way that is timely and prevents further acts of this kind remains to be seen, but it will require a releasing of jurisdiction over the urban landscape of Kunduz.

9th October update: providing an important context concerning the nature of investigative procedure, Derek Gregory has provided a detailed discussion of the practice — and knowledge-effects — of US military investigations in Afghanistan. It gives us a sense of what is potentially to come and the sight lines for modes of critique.

Alex Jeffrey, October 2015

Photo: The effects of NATO bombing in Belgrade, photo by author