Hospitals and war crimes: a patchy record

Médecins Sans Frontières says the bombing of its hospital in Kunduz by a US warplane was a war crime. The four separate enquiries* that have been launched into the incident, which killed 22 people, should show whether the medical charity is right. But precedent suggests that whatever their findings, criminal prosecutions are unlikely.

For its part, MSF has called for the activation of the International Fact-Finding Commission, an investigatory rather than judicial entity established in 1991 under the Geneva Conventions. It has yet to mount an enquiry.

This briefing examines the historical and judicial context of previous attacks on medical facilities.

How common are they during war time?

Attacks on hospitals have been an unfortunate feature of conflicts for decades. High profile cases include:

Sarajevo: Kosevo hospital was the main medical facility in Sarajevo when the city came under siege in 1992 and was shelled more than 100 times over the following three years, at times at very close range.

Vukovar: The hospital in this Croatian town was shelled by the Yugoslav People's Army (JNA) when they surrounded the town in 1991. On 20 November , the JNA removed approximately 300 people from the hospital grounds, took them to a remote farm and executed them. Along with other atrocities in Vukovar, this was recognised as a war crime and formed part of the Croatian indictment of Serbia's then president Slobodan Milosevic.

Mulliavaikal: In 2008-9, Human Rights Watch documented thirty incidents of attacks on medical facilities in under six months in Sri Lanka. The most high profile was the shelling of the Mulliavaikal medical centre in Sri Lanka. Located in the "no fire zone" during the end of a long civil war, the makeshift hospital was repeatedly hit by the Sri Lankan military between 28 April and 3 May 2009. HRW described the incidents as war crimes.

In addition to these cases, hospitals have been attacked in recent years in Afghanistan, Syria, Congo, Gaza, and South Sudan.

And it's not just hospitals. A recent ICRC study found 2,398 incidents of violence against health care facilities and providers in 11 countries over two years (2012-2014).

Are hospitals offered specific protection under international humanitarian law?

Yes. Attacks on hospitals have been described as the very first defined war crime: They are specifically covered in the codification of war crimes Abraham Lincoln wrote during the American Civil War, one of the first pieces of legislation of its kind. His words were used largely verbatim in the drafting of the Fourth Geneva Convention in 1949, which is the main basis in IHL for the special protection offered to medical facilities in war time. It has been signed by 196 countries.

So what happens when a war crime like this is suspected?

The first line of responsibility in the case of a suspected breach of IHL is the military force involved which is meant to carry out investigations and where necessary punish perpetrators.

The International Criminal Court comes into the picture, says Dustin Lewis, a senior researcher at Harvard Law School's Program on International Law and Armed Conflict, only "where it has jurisdiction and where the relevant state is unwilling or unable genuinely to investigate and, if warranted, prosecute the underlying conduct. The ICC system, in other words, is set up to backstop investigations by states."

In the case of Kunduz, there is also the complicating factor that the American government is not a party to the Rome Statute that underpins the ICC, though Afghanistan, where the incident took place, is.

How many prosecutions for attacks on hospitals have there been under IHL?

Very, very few. Hardly any cases regarding medical facilities have been put forward in international criminal tribunals, and those that have tended to include attacks on hospitals as part of a broader range of suspected war crimes.

The attack on the Vukovar hospital, for example, was named specifically in the charges made against former Serbian president Slobodan Milosevic, but this referred primarily to the execution of those removed from the hospital, not to an attack on the hospital itself. In any case, Milosevic died before the case could be brought to a conclusion.

"Whatever the intentions behind IHL the reality is in practice it is rarely enforced."

The Kosevo hospital attacks in Sarajevo also formed part of proceedings against Bosnian Serb Stanislav Galic at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Here again, things got complicated. Initially, trial court judges found that the firing on Kosevo hospital buildings was not aimed at any possible military target. Yet the appeals chamber held that the trial chamber's finding was partially incorrect because the hospital may have been used as a base from which to fire at Galic's forces, in which case the hospital was, at least temporarily, a military target.

Are the national level approaches any better?

Not really. National level investigations tend to drag on for years and be inconclusive. In the case of Mulliavaikal in Sri Lanka, for example, a panel of experts set up by the UN Secretary General to examine accountability in the war there found that the hospital was indeed shelled by the military, despite being clearly marked as a medical facility. In May 2010 president Mahinda Rajapaksa appointed a national Lessons Learnt and Reconciliation Commission, which didn't look at specific incidents but concluded in general that while civilians had died, they had not been specifically targeted. In 2012, the US government's Office of Global Criminal Justice disagreed, and asked the Sri Lankan government for yet another investigation into what they regard as credible allegations that serious breaches of IHL, including the hospital attacks, were committed. To date, no criminal proceedings have been instigated.

In short, most allegations of attacks on hospitals don't advance much beyond a flurry of media interest, furious condemnation and carefully worded PR from the alleged perpetrators.

Is anyone trying to fix this?

Yes, they are. ICRC, the agency most closely associated with IHL, are so worried they have a particular project focussing on the protection of medical care in conflict, called Health Care In Danger.

The issue of international humanitarian law has been a key preoccupation of the World Humanitarian Summit. The Synthesis Report which summarises consultations to date states that perpetrators need to be held to account, and reflects calls for states to "reaffirm their commitment to better respect, and ensure greater respect for, international humanitarian law." So far, though, the Summit seems short on ideas as to how this actually might be achieved, or what it might mean in practice, beyond references to providing training and asking for voluntary commitments from states.

Does that mean there's no way forward?

Not necessarily. Prosecution for serious violations of IHL is not the only way to approach this question. Some lawyers argue that the victims of war crimes are more likely to get justice if they sue the perpetrators rather than relying on war crimes tribunals. London based human rights lawyer Louise Hooper points out that many victims have successfully brought actions against governments across Europe and American - and been compensated.

A group of Iraqis whose relatives had been detained, raped or killed by British forces, for example, won their case in 2011 and were awarded damages of $23,000 each. "Whatever the intention behind IHL the reality is that in practice it is rarely enforced, particularly if the perpetrators of abuse are from the 'powerful' western states some of whom are not signed up to various convention and courts in any event," said Hooper.

"An alternative and perhaps ultimately more successful course of action may be to bring a class action for compensation by the victims. This would mean that even if the international community was rendered powerless owing to the operation of politics the individuals would at least obtain some form of redress," she added.

*These will be led by US Department of Justice, the Pentagon, NATO and an American-Afghan team