Will U.S. answer for Kunduz airstrike?

Activists and experts call for full investigation after 22 killed in hospital

In the wake of the recent U.S. airstrikes on a Doctors Without Borders hospital in Kunduz, only one thing is certain: 22 people are dead.

What is least certain is whether anyone will be called to account. Or that the survivors or relatives of those who died in the repeated aerial attacks will obtain any justice in a legal landscape that is as rocky as the roads of Afghanistan.

“When it comes to accountability, it matters whether you’re Western or not,” says Jennifer Gibson, a staff attorney at London-based Reprieve, which takes on the cases of war victims worldwide.

“Airstrikes on a Western NGO like MSF (Médecins Sans Frontières) will draw a lot of attention to damage to civilians. But this is not a one-off case. They’ve been happening in post-9/11 countries far from Afghanistan with no recourse or accountability.”

Washington’s double standard on airstrikes is damaging its international image, she says.

Her group has protested against Russian bombing in Syria, “but (the U.S. has) been dropping missiles there for a year. If the most powerful country in the world — the standard bearer for human rights — can show such hypocrisy, where do we go from here?”

Government secrecy and conflicting reports also make the victims’ struggle for justice harder.

After the Kunduz strikes, the U.S. military changed its story, most recently saying the strikes were a response to a call for help from Afghan forces that were under fire near the hospital.

Christopher Stokes, the general manager of the international medical charity, known by its French initials MSF, said in a statement that the U.S. was “now attempting to pass responsibility to the Afghanistan government.

“The reality is the U.S. dropped these bombs. (It) hit a huge hospital full of wounded patients and MSF staff. The U.S. military remains responsible for the targets it hits, even if it is part of a coalition.”

UN Secretary- General Ban Kimoon and UN human rights chief Zeid Ra’ad Al Hussein added their voices to calls for a full and transparent investigation. Al Hussein called the event “utterly tragic, inexcusable and possibly even criminal.”

U.S. forces have launched a military investigation, which MSF is calling “wholly insufficient.”

Under international humanitarian law, hospitals have special protection, and warring parties must take additional precautions to avoid subjecting them to attack.

The first question is whether the hospital was accidentally or deliberately hit, says Brad Adams, the Asia director of Human Rights Watch. “Although by definition it’s a violation of humanitarian law, that doesn’t make it a crime.”

He says Human Rights Watch, in a 2008 study of airstrikes and civilian deaths in Afghanistan, found that “when the U.S. plans attacks, its ef- forts to minimize civilian casualties tend to be successful.” But when responding to calls from troops on the ground, attacks can go badly wrong with tragic results.

If an inquiry finds the U.S. responsible for the deaths at the Kunduz hospital, there will still be few avenues to justice open to survivors and relatives of the dead.

The International Criminal Court launched an investigation of war crimes allegedly committed during the conflict in Afghanistan, but it is unlikely to act on a single airstrike, like that in Kunduz, says Adams. “There are too many cases in different countries.”

Nor is the Afghan government likely to submit a case involving its troops and chief ally, the U.S., or to bring a case against Washington in its own courts.

“It would be immensely difficult to get justice,” says Gibson, who has worked with aerial attack victims from Pakistan and Yemen.

If evidence of U.S. culpability emerges, France, where MSF was founded, could take American officials to court, although Italy’s attempts to punish CIA officials condemned by Italian courts have been ignored.

Kunduz victims could also try to bring a case to the U.S. courts.

“It’s an uphill battle,” says Gibson. “There are huge barriers for non-Americans who want to get standing.”

The wrongful death suit filed by a Yemeni man whose brother Salem bin Ali Jaber — an imam who preached against Al Qaeda — was killed by a U.S. airstrike, was recently thrown out of court.

“All he wanted was an apology,” said Gibson.

“We offered to withdraw the case if he got one. The Obama administration refused, although it apologized earlier for the deaths of two Western hostages in Pakistan in a drone strike.

“Sorry is a very hard word to say if you’re the United States.”