Potential Implications of CENTCOM’s MSF Investigation on the ICC’s Preliminary Examination of U.S. Forces in Afghanistan

This morning, U.S. Central Command (CENTCOM) released its formal report of investigation into the airstrike on a Medecins Sans Frontieres (MSF) trauma center in Kunduz, Afghanistan. Of note in the report is a finding that the “aircrew’s failure to exercise judgement . . . led to a LOAC [law of armed conflict] violation.” Yet, CENTCOM indicates that while certain personnel were subject to disciplinary action, including suspension, removal from command, letters of reprimand, and formal counseling, no one is recommended for prosecution. Apart from any domestic political and legal issues that this finding and recommendation may prompt, CENTCOM’s report will surely attract the attention of the International Criminal Court’s (ICC) Office of the Prosecutor (OTP).

As Lawfare readers are aware, the OTP has an open preliminary examination of the situation in Afghanistan—and specifically pointed to the Kunduz MSF strike in its most recent report. In that report, the OTP indicated that the strike was being investigated by the United States, but declared that “the [a]lleged crimes committed in Kunduz [would] be further examined by the Office” as part of the ongoing preliminary examination. By characterizing the incident as a violation of international law (and choosing not to prosecute), the United States may unwittingly be strengthening the OTP’s case.

It is true that CENTCOM’s statement makes clear that the investigation found that the actions of U.S. personnel did not constitute war crimes, noting the absence of intentionality. But the OTP might disagree with CENTCOM’s legal rationale – as it seems to have done previously with regard to detention operations – and decide to investigate these acts anyway as potential war crimes. Indeed, MSF President, Meinie Nicolai, responded to the report’s release, commenting that “[t]oday’s briefing amounts to an admission of an uncontrolled military operation in a densely populated urban area, during which U.S. forces failed to follow the basic laws of war,” Nicolai added that “armed groups cannot escape their responsibilities on the battlefield simply by ruling out the intent to attack a protected structure such as a hospital.” The OTP may very well agree with Nicolai on this point.

The OTP is also unlikely to be persuaded by arguments that CENTCOM’s investigation and administrative actions satisfy complementarity – at least for the immediate purposes of furthering the controversial preliminary examination. It will be interesting to see how the OTP treats this development, in particular since it appears the OTP is interested in moving the preliminary examination to an investigation in the near future.