The legality of the incident under
Posted: Tue Feb 18, 2025 3:34 am
As reported in the New Yorker, statements by US and Afghan officials gave rise to divergent accounts which did not explain several concerning aspects of the incident. IHL has been comprehensively analysed by Jonathan Horowitz at Just Security and Milena Sterio at IntLawGrrls, so I will not rehearse their analyses, suffice to say that the prima facie unlawfulness of the attack means that an investigation is in order. According to Article 8(2)(e)(iv) of the Rome Statute, it is a war crime to direct attacks against hospitals, provided that they are not military objectives. The duty to investigate suspected war crimes can be traced back to the grave breaches regime in the Geneva Conventions and is articulated by the ICRC as a rule of customary IHL applicable in international armed conflicts (IACs) and non-international armed conflicts (NIACs). Indeed, the US has accepted that an investigation is necessary, and has established three investigations, including one by the Department of Defense. MSF International President, Dr. Joanne Liu, has rejected internal military investigations as insufficient, and called on the US to consent to an independent investigation by the IHFFC.
MSF states that all that is needed is for “one of the 76 signatory States to sponsor an inquiry”, and has called on the US to consent. Unfortunately, this does not represent the reality of the IHFFC’s jurisdiction. According to Article 90 of AP I, its jurisdiction is triggered in two ways:
The IHFFC has ‘ongoing’ jurisdiction pursuant to Article 90(2)(a) when a High Contracting Party to AP I declares that it recognises: “in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to enquire into allegations by such other Party, as authorized by this Article”; and
The IHFFC has ‘ad hoc’ jurisdiction pursuant to Article 90(2)(d): “In other situations, the Commission shall institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.”
Unfortunately for those advocating an independent international investigation, neither situation appears line database be applicable to the conflict in Afghanistan. The IHFFC has ongoing jurisdiction when allegations are made by a state which has ratified AP I and lodged a declaration, in respect of another state which has also ratified AP I and lodged a declaration. Even if one of the 76 signatory states was willing to ‘sponsor’ an inquiry by raising allegations, neither Afghanistan nor the US have completed the required paperwork. Afghanistan has not lodged an Article 90 Declaration and the US is not even a party to AP I.
Alternatively, the IHFFC has ad hoc jurisdiction when a party to the conflict requests an inquiry and all other parties to the conflict give their consent. It does not appear necessary for those parties to have ratified AP I, due to the choice of language in that provision. However, the involvement of the Taliban evokes a more fundamental barrier to the IHFFC’s jurisdiction: the conflict is non-international in nature. The Commission was borne out of AP I, which only applies in IACs. Moreover, according to Article 90(2)(c)(i), it may investigate grave breaches and other serious violations of “the Conventions and this Protocol”, which excludes Additional Protocol II and customary IHL. Thus, the classification of the conflict could preclude jurisdiction.
The jurisdictional hurdle of IAC could perhaps be satisfied by pointing to facts which “internationalise” the conflict, such as allegations of Pakistan’s covert support of the Taliban. However, it is doubtful whether such support, even if sufficiently proven, would amount to a sufficient level of control over the Taliban’s operations so as to internationalise the conflict under IHL. Another potential internationalising feature could be the involvement of Coalition forces in Afghanistan. Yet, the ability for a NIAC to be transformed into an IAC simply due to the presence of multinational forces remains highly contested. Geiß and Siegrist, for instance, write that a NIAC remains non-international in nature when a multinational force supports another state against armed opposition (p. 14, note 8).
MSF states that all that is needed is for “one of the 76 signatory States to sponsor an inquiry”, and has called on the US to consent. Unfortunately, this does not represent the reality of the IHFFC’s jurisdiction. According to Article 90 of AP I, its jurisdiction is triggered in two ways:
The IHFFC has ‘ongoing’ jurisdiction pursuant to Article 90(2)(a) when a High Contracting Party to AP I declares that it recognises: “in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to enquire into allegations by such other Party, as authorized by this Article”; and
The IHFFC has ‘ad hoc’ jurisdiction pursuant to Article 90(2)(d): “In other situations, the Commission shall institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.”
Unfortunately for those advocating an independent international investigation, neither situation appears line database be applicable to the conflict in Afghanistan. The IHFFC has ongoing jurisdiction when allegations are made by a state which has ratified AP I and lodged a declaration, in respect of another state which has also ratified AP I and lodged a declaration. Even if one of the 76 signatory states was willing to ‘sponsor’ an inquiry by raising allegations, neither Afghanistan nor the US have completed the required paperwork. Afghanistan has not lodged an Article 90 Declaration and the US is not even a party to AP I.
Alternatively, the IHFFC has ad hoc jurisdiction when a party to the conflict requests an inquiry and all other parties to the conflict give their consent. It does not appear necessary for those parties to have ratified AP I, due to the choice of language in that provision. However, the involvement of the Taliban evokes a more fundamental barrier to the IHFFC’s jurisdiction: the conflict is non-international in nature. The Commission was borne out of AP I, which only applies in IACs. Moreover, according to Article 90(2)(c)(i), it may investigate grave breaches and other serious violations of “the Conventions and this Protocol”, which excludes Additional Protocol II and customary IHL. Thus, the classification of the conflict could preclude jurisdiction.
The jurisdictional hurdle of IAC could perhaps be satisfied by pointing to facts which “internationalise” the conflict, such as allegations of Pakistan’s covert support of the Taliban. However, it is doubtful whether such support, even if sufficiently proven, would amount to a sufficient level of control over the Taliban’s operations so as to internationalise the conflict under IHL. Another potential internationalising feature could be the involvement of Coalition forces in Afghanistan. Yet, the ability for a NIAC to be transformed into an IAC simply due to the presence of multinational forces remains highly contested. Geiß and Siegrist, for instance, write that a NIAC remains non-international in nature when a multinational force supports another state against armed opposition (p. 14, note 8).