A Doctors Without Borders employee walks inside the charred remains of their hospital, Oct. 16, after it was hit by a U.S. airstrike in Kunduz, Afghanistan, on Oct. 3. | AP Photo Rights group: U.S. airstrike on hospital should be probed as potential war crime

The Pentagon should investigate an October U.S. airstrike on an Afghan hospital as a potential war crime, Human Rights Watch has urged Defense Secretary Ash Carter in a letter obtained by POLITICO.

"We believe that there is a strong basis for determining that criminal liability exists," Sarah Margon, the group's Washington director, wrote to Carter late last week. She added that any investigation should occur outside the U.S. military chain of command in Afghanistan to avoid undue influence and questions about its credibility.


The nighttime strike in the Afghan city of Kunduz on Oct. 3 targeted a hospital staffed by the international aid group Doctors Without Borders. A U.S. Special Operations C-130 gunship warplane strafed the facility, killing at least 42 people and wounding dozens more—most of them doctors and patients.

Despite the fact that the hospital's coordinates had been registered with U.S. forces in the region, military leaders say the Americans believed they were attacking a nearby facility where Taliban fighters were reported to be sheltering. Multiple military investigations into the incident are underway.

Human Rights Watch officials told POLITICO that their examination of public evidence suggests that the attack may amount to a war crime. They noted that a war crime does not require malicious intent and that recklessness or negligence—for instance, a failure to clearly identify a target—can be criminal.

A Pentagon spokesman did not have an immediate comment.

Outrage over the Kunduz attack comes as Obama administration officials are more broadly examining the civilian toll of U.S. counter-terrorism operations abroad.

In late October, White House counter-terrorism adviser Lisa Monaco and deputy national security adviser Avril Haines met privately with a group of human rights activists and legal experts to solicit their thoughts on the subject. Monaco and Haines reiterated President Barack Obama's past pledges to increase transparency about the conduct of U.S. anti-terrorism operations—an area where activists say Obama’s record has been a disappointment.

In a Nov. 25 press briefing, the commander of U.S. forces in Afghanistan, John F. Campbell, blamed "avoidable human error" and technical problems for the strike on the hospital, which he said the Americans had confused with a nearby facility. "U.S. forces would never intentionally [strike] a hospital" or other protected sites, Campbell said.

In the same briefing, Brig. Gen. Wilson Shoffner said that some of the U.S. personnel involved in the airstrike "did not follow the rules of engagement."

The president has personally apologized to Doctors Without Borders, also known as Medecins Sans Frontieres, which lost 12 staff members in the attack.

In its letter to the Pentagon, Human Rights Watch urged that the investigation focus on several questions of possible negligence by U.S. commanders and soldiers in Afghanistan, including what the group called evidence that the AC-130 air crew chose not to abort its mission after encountering intelligence and technical problems, and the fact that no hostile fire was returned from the facility during the attack, which lasted more than 30 minutes.

The Geneva Conventions say that targeting errors do not constitute war crimes, except in cases of recklessness, according to the International Committee of the Red Cross.

Human Rights Watch says the Kunduz tragedy is an opportunity for transparency, as well as a chance to restore confidence in a military justice system that activists say has not proven reliable in recent years.

Members of Doctors Without Borders hold placards in Geneva, Switzerland, during a Nov. 3 demonstration urging investigation into the Oct. 3 airstrike in Kunduz, Afghanistan. | Getty

"We don't have much faith in the military justice system anymore. We just don't," said John Sifton, the group's Asia advocacy director. "It's a systemic problem. The U.S. government doesn't have a good track record of investigating cases of civilian casualties."

Margon said that “the U.S. government should recognize that its resolution of this horrific incident will have repercussions for U.S. military operations far beyond Afghanistan.”

Human Rights Watch has called for criminal investigations into U.S. military operations several times since the wars in Afghanistan and Iraq began, but officials there said it has been many years since their last such request.

In her letter to Carter, Margon noted that the group cannot be certain the Pentagon has not already begun a criminal investigation into the episode, but it has no way of knowing because the military will not discuss its ongoing inquiries.

In addition to human rights activists, some Congressional Democrats and Doctors Without Borders itself have deep expressed unhappiness that no independent, civilian-led investigation into the attacks is underway. Doctors Without Borders has insisted the episode amounts to a war crime and has called for an independent, international investigation.