Doctors without Borders says the bombing of its hospital was a war crime, while the US says it was a tragic mistake. The loss of civilian life is often the consequence of systemic problems in how strikes are conducted.
The US military had been given the GPS coordinates of the Kunduz trauma hospital as recently as September 29, according to Doctors without Borders. Yet the hospital was still bombed. Twenty-two people died in the airstrike, 12 staff and 10 patients. Another 37 civilians were injured.
The commander of US and NATO forces in Afghanistan, General John Campbell, said the hospital was "mistakenly" targeted and promised a "thorough investigation." President Barack Obama has personally apologized to Doctors without Borders, known internationally by its French acronym, MSF.
The president of MSF International, Joanne Liu, said the strike was deliberate and therefore a war crime. MSF has called for an independent probe by the International Humanitarian Fact-Finding Commission. The body, established by the first protocol of the Geneva Conventions, has never before been called upon to investigate war crime allegations.
"It's incomprehensible that NATO forces, American forces deliberately targeted a hospital," Michael Newton, a former military operational attorney who has advised commanders on targeting issues, told DW. "That's not the way things are done. Period. We're not ISIS."
According to Newton, the US military maintains strict no-fire lists with the locations of civilian buildings like schools and hospitals. Legal experts are also present during every step of the targeting process to ensure the laws of war are being upheld. But Newton questioned whether or not this information made it to forces in the field.
"What were the internal NATO processes for disseminating that information?" Newton asked. "We don't know all the facts."
Shifting US story
On Wednesday, the US executive director of MSF, Jason Cone, told the Guardian that the US military did not provide advance notice of an airstrike.
According to MSF, coalition aircraft bombed the hospital in 15 minute intervals between 2:08 am and 3:15 am on October 3. It allegedly took 30 minutes for the bombings to stop after Afghan and US had been informed they were hitting a hospital.
The US explanation for the bombing has shifted over the past four days. Originally, the military claimed American forces had been directly fired on by the Taliban and requested close air support from an AC-130 gunship.
General Campbell later corrected that account and said Afghan forces had "advised that they were taking fire from enemy positions" and requested US air cover. According to MSF, there were no Taliban combatants in or near the hospital when the strikes occurred.
In his testimony to the Senate on Tuesday, General Campbell said that while the Afghans requested close air support, the decision to strike was ultimately made within the US chain of command.
According Neta Crawford, under the current US rules of engagement in Afghanistan, the military can provide close air support to Afghan forces only if American personnel are also in imminent danger.
"That's precisely because of the issue that has come up," Crawford, the author of "Accountability for Killing: Moral Responsibility for Collateral Damage in America's post-9/11 wars," told DW. "You're at great risk of killing civilians and when you do so that turns everybody against you and undermines the goals of the war."
She believes the loss of civilian life in Kunduz highlights systemic problems in how the US has waged war in Afghanistan, Iraq and now Syria. When the US is operating with allies, it's sometimes unclear who calls an airstrike and who's in charge, she said.
"They're not just accidents that happen, they're predictable, they're foreseeable," Crawford said of civilian casualties. "We need a systemic analysis of both of the major wars and of the operation in Syria to understand how is it that these incidents keep occurring. They're very familiar."
'Civilian lives routinely not valued'
Whether or not the airstrike in Kunduz constitutes a war crime depends on who was targeted, according to Newton. Deliberately targeting a hospital is clearly a war crime, but targeting armed combatants in or near a hospital is not by definition a war crime, he said.
At that point, the principle of proportionality comes into play. Is the use of force excessive or does it recklessly endanger civilian lives?
"Even under the heat of battle, you've got a duty to comply with the principle of distinction and proportionality," said Newton, an expert in humanitarian law at Vanderbilt Law School.
Again, MSF has denied combatants were in or near the hospital when it was struck. But according to Crawford, even if the US military intended to target Taliban militants somewhere near the facility, the problem is that too often when targeting decisions are made, civilian life isn't valued enough.
"Always you can say there's a military necessity," Crawford said. "The notion that military necessity trumps the lives of civilians is built into international law, but it systemically means, routinely means, that civilian lives are not valued."