Why A US Congressional Special Investigative Committee (CSIC)
Must Be Created To Investigate The MSF Hospital Bombing

By Franklin Lamb

10 October, 2015
Countercurrents.org

Beirut: “The Pentagon and Afghan claims via their spokespersons that the investigation is continuing and they can't say when it will be completed, don't wash. The Pentagon knows right now what happened and should come clean. It's time to present the full truth and not just their preferred partial version.”

The bombing of the DoctorsWithoutBorders/Medicine Sans Frontiers (MSF) hospital at Kunduz is a punishable war crime and the Pentagon stands indicted and must be held accountable depending on the findings of fact.

Massive international customary law and a host of treaties and conventions in force, including the Geneva Conventions specifically protect medical facilities and their medical staffs and patients make this plain.

Given also that many facts of this case are no longer credibly deniable, with respect to no warnings being given by the US military before the attack, no evidence fighters were firing from the site, hospital staff sending to NATO and the US and Afghan militaries its quadrants, as recently as two weeks ago, for its well-known four years operation of the largest hospital in Kunduz, to mention just a few.

Under accepted principles, standards and rules of International law the question of whether an advance warning was given to staff at Kunduz hospital is critical in determining if US forces had committed a grave breach of international humanitarian law.

This is recognized by the June 2015 Department of Defense Law of War Manual (LWM) on adherence to the rules of war. It is required for study by US forces everywhere who supposedly review the manual periodically and are tested on its rules via written exams. The manual explicitly requires such notification: " Protection for civilian hospitals may cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.

Admittedly we are still in the dark and vulnerable to misstatements and word games from the Afghans and the US military which as is now widely known include many denials, misstatements, blame the terrorists, clarifications and 'corrections' with seemingly half a dozen new possible theories. Part of this is understandable but by now the US military surely has the full accurate accounts from it and the Afghan forces of what exactly happened, why and how.

The Pentagon and Afghan claims via their spokespersons that the investigation is continuing and they can't say when it will be completed, don't wash. The Pentagon knows right now what happened and should come clean. It's time to present the full truth and not just their preferred partial version.

So what should we do now to change the behavior of our military forces that violate this most basic humanitarian law?

Congressional Special Investigative Committee (CSIC)

I see key responsibility with the U.S. Congress. Both the House and the Senate can perhaps raise their rock bottom approval ratings among skeptical constituents and Congress can perhaps gain much needed goodwill in this region for America if it establishes a Congressional Special Investigative Committee (CSIC) on Kunduz. Most importantly it can, if it has the political will, bring some justice and some accountability and military reform and perhaps even advance the tenets of international humanitarian law.

Congress knows that our country committed a war crime by US forces at Kunduz early this month. Applying international customary and treaty humanitarian law to the facts conceded, even to date make this plain. No excuses such as 'mistake', 'collateral damage' 'the Afghans called in the strike' 'the Taliban was inside the hospital firing at coalition forces', we were fighting in the vicinity' will be accepted in any serious investigative or judicial forum. That much is black-letter law.

As one Congressional staffer who is working on launching a CSIC project explained to this observer, "Congress knows we committed a war crime and the CSIC must include a strict 45 days (no extensions) deadline to submit its full report, no redaction or deletions like the 9/11 Commission's 'black-out' of a 28-page section of its finding." Also he emailed: "Congress must not allow any secret codicils to the full report to be submitted to the international public from its independent transparent investigation into the bombings at Kunduz hospital on 10/3/2015." He claims the Obama White House will strongly back it and that Obama is sickened and furious over what happened in Kunduz. No sooner than he wrote than Obama issued an apology personally by phone to MSF and which was also for the Afghan victims during which he promised a transparent and thorough investigation of the facts "and if necessary will implement changes to make sure tragedies like this one are less likely in the future."

America owes no less to the victims of the war crime committed by its military and to the thousands of Afghans who reply on the now withdrawn from Kunduz MSF medical teams for life saving, non-politicized, urgent medical care.

Hopefully we can convince MSF to return to Kunduz, because around the world in the more than 70 countries where its works Doctors Without Borders/Medecins Sans Frontières (MSF) saves countless lives by providing urgently needed medical aid where it is needed most--in armed conflicts, epidemics, natural disasters, and other crisis situations. Humanity needs MSF to continue their life-saving work

But first we need a credible investigation of exactly what happened and why and we need accountability for the actions of the US Military all the way up the chain of command. This must include the rooting out of drug use among US forces in Afghanistan and elsewhere, why reports are suggesting may have played a role in the 'gung-ho' bombing as well as confronting the all too common 'blackwater mentality' among some US soldiers- again, sometimes drug fueled-occurring over the past dozen years in the Middle East.

And there must be full reparations and compensation for the families of the victims and the survivors of the attack, as well as rebuilding the hospital.

Dear reader may well ask, 'You can't be serious, proposing putting the Congressional fox in charge of the chickens! I can see the coming Congressional white wash from where I am taking shape with morons like Huckabee, McCain, and Cheney, among others already lambasting Obama for being weak and that America should never have to apologize because we are the good guys.

This observer does not quite see it that way. For the following reasons.

How do we quickly, without international politicization and interminable delays that have plagued the International Criminal Court (ICC) and the Special Tribunal for Lebanon (STL) and most other judicial and quasi-judicial/investigative efforts discover what happened and why at Kunduz? Politically, the UN will not touch the idea of setting up an independent serious investigation in my opinion. Neither will the EU or NATO and in any case the latter- post Libya would lack any credibility.

Moreover, these investigations would not have access to key information that only Congress can subpoena without problems with privacy rights of troops including officers who are directly responsible for the war crimes committed.

And why Congress? Having worked there and attended and helped gather witnesses for several hearings and a few investigations such as the Church and Ervin committees I believe that Congressional staffers can and will be objective, dedicated, thorough, professional, competent and able to rise about politics to get the full facts out quickly.

The Special Investigative Committee will also have many substantive and procedural evidentiary options at its disposal that no other investigative body would possess. Such a committee is the best way the American people and global community can make informed decisions about the reforms needed to prevent this crime from recurring.

Medecins Sans Frontieres is recommending waking up a never-used body The International Humanitarian Fact-Finding Commission (IHFFC) to investigate the US bombing of its hospital at Kunduz. MSF cogently explained that it frankly does not trust internal military inquiries into the bombing that killed at least 22 people and wounded at least 37.

Neither do most of the rest of us.

But the IHFFC, which was set up in 1991 under the Geneva Conventions as a fact gathering agency that submits recommendations only has never conducted a single hearing during its 24 year history. The IHFFC's president, Gisela Perren-Klingler told the media on 10/7/2015: "We are not an accountability mechanism, so we are different from the ICC [International Criminal Court]." We much demand accountability which IHFFC can't deliver.

Frankly IHFFC is not up to this serious investigation that MSF recommends and this noble humanitarian association and its millions of admirers would surely be disappointed. What the IHFFC eventually would very likely produce is a long drawn out generalized findings and recommendations. The IHFFC only has 76 signatories who do not include either the US and Afghanistan, the two suspects in the war crime at Kunduz. Importantly, before the IHFFC can even begin its work the US and Afghanistan would have to consent to its jurisdiction. They will not. No country ever has. Moreover, the IHFFC 15 members panel, comprised of diplomats, military officers, medical doctors and legal academics, have full-time jobs in their own countries of origin around the world, and their involvement -- if a mission ever did go ahead, which is not at all likely would depend on their availability. Moreover the IHFFC report will be confidential, and not released to the public. It will go only to the two culpable governments concerned. Where presumably it will be filed away somewhere. The investigation of the horrendous events must be very public with media and the public monitoring it every day.

So in this observer's 2-cents worth opinion, the proposal to turn this egregious war crime case over to the IHFFC is faulty in that IHFFC will not deliver justice or the full independent transparent investigation that we all owe the victims. It cannot in fact achieve much of anything at all anytime soon, if ever.

But a US Congressional Special Investigative Committee with vast powers and multiple sources of information including the 16 Agency US Intelligence Community would not be the "internal military inquiry" that MSF and most of us reject. And many members of Congress are furious with the slaughter at Kunduz and are in no mood for a Pentagon whitewash according to two Senatorial congressional staffers interviewed in the past two days. Neither reportedly is President Obama.

Both long-time Congressional aids agree that the CSIC would be bipartisan, consist of selected Intelligence and Judiciary committee members from both parties, and have full subpoena powers. After Watergate, Congress created the Church Committee to investigate illegal actions committed by the intelligence community. What it found was staggering and it released the report and changes happened. The American people demanded change and they will also in this case to prevent the slaughter of innocents in their name. Congress has the ability to conduct the most thorough investigation and release the full results globally much better and faster than any other investigative body domestic or international.

There can be any number of investigations including one by The International Humanitarian Fact-Finding Commission (IHFFC) as MSF has proposed. But we also need a modern day Church Committee answerable to the American public and American values.

It is the best way to shine the light and create real accountability for those who perpetrated the war crimes at Kunduz and to put into Federal law substantive changes and oversights. No other institution can succeed in holding U.S. officials and our armed forces legally accountable for the bombing of the MSF hospital. The U.S. Congress must finally bring home the horrors and the indiscriminate nature of our country's endless air wars and systematic war crimes against millions of innocents. These are not American values and we must never accept them.

Franklin Lamb is a former Assistant Council for the House Judiciary Committee of Congress and has taught International Law at Northwestern College of Law in Portland, Oregon. He volunteers with the Sabra-Shatila Scholarship Program (sssp-lb.org)