Since it became operational in 1992, the International Humanitarian Fact-Finding Commission, a Swiss-based international body established under the Geneva Conventions, has dutifully held annual meetings where it elects new commissioners, mourns the passing of former commissioners, and welcomes new signatory nations. But never before has it done the very thing it was set up to do: investigate a country for potential breaches of international humanitarian law.
On Wednesday, international attention turned to the little-known commission after Doctors Without Borders (aka Medécins Sans Frontières, or MSF) requested it launch its first probe. The subject would be the United States's bombing of an MSF hospital clinic in Kunduz, Afghanistan, on Saturday. At least 22 staff and patients were killed the in the airstrikes, which U.S. military officials have called a mistake, while 37 others were injured.
Speaking to reporters Wednesday at the MSF American headquarters in New York City, U.S. Executive Director Jason Cone said the shifting military account into what prompted the bombings underscores the need for an independent international inquiry.
"This commission has been tasked to do this. It’s why it was established. It’s why it exists," Cone said.
"Unfortunately it’s never been used before, but we think it has the right impetus and focus to get some of the answers we all deserve — not just for our patients and staff who died but for the work of humanitarian organizations around the world," he said.
For the commission to take up an investigation, an important hurdle must first be overcome: one of the 76 signatory nations to the group must make a formal request.
The commission's president, Gisela Perren-Klingler, told The Guardian she had received the MSF request on Tuesday night – but that was not enough.
“We have activated ourselves but we cannot go on mission without being asked in by a member state, and MSF is not a state,” Perren-Klingler said.
She added the commission had made contact with the U.S. and Afghan governments to offer their services, as well as Washington's NATO.
Cone told BuzzFeed News that MSF had sent formal letters to each member nation's embassy through their state capitals and U.N. missions, but had no plans to lobby one particular nation more strongly than others.
The list of commission member nations is mainly centered around Europe. Some member nations, such as Russia and Bolivia, aren't exactly pro-U.S. in their foreign policy.
Representatives from Bolivia's U.S. embassy did not respond to a request for comment. A spokesperson for the Russian embassy, Yury Melnik, declined to comment, but referred BuzzFeed News to a statement issued Monday by Russian Foreign Ministry special representative Maria Zakharova.
"Medécins Sans Frontières representatives called the airstrike a gross violation of international law. I would find it hard to argue with this statement," Zakharova said.
"We strongly condemn the airstrike against this civilian facility. We demand an immediate, objective investigation into the incident and the punishment of those guilty of this tragedy," she said.
Cone dismissed the suggestion that the process could become politicized and detract from the independence MSF is seeking in an investigation, citing rules that govern the composition of the commission.
To be nominated and potentially elected to the 15-person commission, countries must put forward individuals of "high moral standing and acknowledged impartiality." Further, under commission rules, any investigation would be conducted by seven members of the commission — who are mostly doctors, lawyers, and military experts — but none are allowed to be from one of the countries being investigated. (That's not at issue here, though, as the U.S. and Afghanistan are not member nations, but they would still need to cooperate.) Any findings and potential recommendations won't be made public unless the nations party to the conflict give permission.
Already though, the prospect of the U.S. opening itself up to an international tribunal for an investigation into possible war crimes has bristled at least one prominent American conservative: "I find it ludicrous and insulting that people would say because of this terrible accident that somehow war crimes are committed," Sen. John McCain told NPR on Wednesday morning. "To call that a war crime distorts the definition of a war crime."
President Obama on Wednesday telephoned MSF International President Dr. Joanne Liu to formally apologize for the airstrikes and express his condolences over her staff killed in the bombings.
The U.S. Department of Defense, NATO, and the Afghan government are each investigating the incident, but Cone called on the president to consent to the independent international probe.
"Doing so will send a powerful signal of the U.S. government's commitment to and respect for international humanitarian law and the rules of war," Cone said.