International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.
Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”
Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”
The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”
The MSF’s hospital in Kunduz came to international attention when it suffered mass casualties on Oct. 3 after a U.S. Air Force gunship attacked and destroyed the trauma center, which served 22,000 patients in 2014. The group charged the U.S. attack on the compound constituted a “war crime.” Thirty people died in the attack.
Five different investigations are currently underway, and President Obama has promised compensation to the victim’s families.
Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.
The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.
MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”
On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”
At one point during the Taliban occupation, the group conceded in its report that nearly half of the 140 beds at the hospital were occupied by Taliban fighters.
MSF never stated in its report that it protested, resisted or objected to the Taliban request.
The medical group has not publicly denounced the Taliban since Kunduz was freed of Taliban rule in early October. Nor did it say anything about the rebel demands in an hour-long press conference held by the group on Nov. 5 when it released its report. MFS did not respond to a DCNF request to discuss the issue.
MSF has never shirked from attacking those which it regards as wrongdoers. In its USA filing with the Internal Revenue Service for 2014, the group indicated it is more than a medical service organization and frequently speaks out publicly when they see wrongdoing.
“As part of its founding principles, MSF stands ever ready to speak out publicly on a given issue should the situation call for it,” it stated in its IRS Form 990 filing.
The removal of civilian patients for soldiers violates a number of long-held provisions of the Geneva Convention and International Humanitarian Law. Both internationally-sanctioned protocols require that administrators to protect non-combatants who are patients at medical clinics and hospitals in war zones.
In its IRS filing, MFS does say it frequently serves as an advocate for those who are neglected, in this case, Afghan civilian patients. It says it will speak out when “a certain group is being neglected, that military or political efforts are causing severe medical consequences.”
The group’s silence troubles David Rivkin, a partner at the Washington, D.C. lawyer firm of BakerHostetler who has practiced before the International Criminal Tribunal and the International Court of Justice on international humanitarian law and on the laws of war.
“The fact that they did so without any protest certainly does mean that it leaves a question mark about what they were up to,” he told TheDCNF in an interview.
He told TheDCNF he considered the MFS action at the Kunduz hospital to be “unprecedented,” saying the effect of its actions were to “transform a civilian hospital into a military hospital.”
Ken Isaacs, a vice president for the Christian relief organization Samaritan’s Purse, said the situation appeared “highly irregular.” The group founded by Franklin Graham currently operates a hospital in war-torn South Sudan and operated a second hospital there for 10 years. It also ran a hospital in Afghanistan from 2002 to 2006.
“I have not heard of a precedent like it. But I would say it’s highly irregular. It’s very unfortunate,” he told TheDCNF in an interview.
Two different sets of international laws govern the war in Afghanistan. One is the Geneva Convention of 1949, which covers international conflicts.
Article 16 of Convention IV states, the wounded and sick “shall be the object of particular protection and respect” and that “only urgent medical reasons will authorize priority in the order of treatment to be administered.”
An additional protocol states, “In all circumstances, they shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.”
Surprisingly, MSF does not consider the war in Afghanistan to be an international war, even though NATO forces are actively engaged on the ground and the Taliban launch attacks from neighboring Pakistan.
The group adopts the Taliban formulation that it is an “internal conflict.” The group also never uses the name Taliban but calls them “opposition forces” to the government in Kabul.
Under the terms of an internal conflict a different body of laws kick in, called International Humanitarian Law.
Yet even under the IHL set of rules, there are strict protections for civilians.
The International Committee of the Red Cross invokes the IHL on the protection of civilians in hospitals stating, “only urgent medical reasons shall authorize priority in the order of treatment to be administered. Criteria based on nationality or rank are excluded.”
When asked by TheDCNF, the International Committee of the Red Cross declined to comment on possible MSF violations.
One does not have to look beyond Afghanistan’s borders for legal guidance. Article 18 of the country’s public health law states, “Health services shall be provided by the nearest health facility to … those whose health condition requires emergency aid, without any discrimination, and by taking into consideration the prioritized status of patients.”
Isaacs says, however, that when war descends, international rules often are the first casualty.
“There is the Geneva Convention. There is International Humanitarian Law. And there’s war. And when wars happen, the rules don’t matter really. They should. But they don’t matter. Things happen,” he said.
He believes in the end, MSF was probably pressured into the civilian-fighter swap. “I’m certain that it’s not what MSF wanted to do. If they did it, they were coerced to do it,” he said.
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