On Oct. 4, Zareena Grewal published a disturbing account of a recent U.S.-led coalition bombing in Iraq in an op-ed for the New York Times. Although the target was aimed at an ISIS weapons storage facility, the strike hit two civilian homes, killing her husband’s cousin, a university professor and his young son. 

Others sustained burn and related bodily injuries. The emotional pain experienced by the survivors is vividly described by Grewal, with those recovering from their physical wounds trying in the immediate aftermath of a stunning reversal of fortunes to “make sense of how missiles or bombs could be launched against a defenseless family who did not have so much as a pistol in the home.” 

A spokeswoman for the U.S. Air Force Central Command did concede that there a “civilian casualty allegation” in Mosul the day after the airstrikes and said an investigation would be launched. 

On the same day, disturbing news out of Afghanistan came to light. In the midst of a Taliban offensive launched to take over the northern city of Kunduz, American-led airstrikes under the auspices of NATO hit a Doctors Without Borders hospital, killing 22 staff, patients and others. 

The bombing was particularly alarming in light of the revelation that the GPS coordinates of the trauma hospital were provided to coalition and Afghan military and civilian officials as recently as Sept. 29, to avoid the hospital being hit. 

While President Obama issued a rare apology to the head of Doctors Without Borders and, yet again, promised an investigation, the tragedy produced another group of victims in an incredibly complex web of official and unofficial military operations the United States carries out on a daily basis across the world. 

The global reach of these operations are indeed breathless and raise a host of international legal and humanitarian issues, particularly where civilian causalities become all too common. 

In a recent journalistic investigation by Nicholas Turse and in a lengthy New York Times article from last June, U.S. Special Operations forces were found to be operating in over 100 countries worldwide. This includes countries like Burkina Fason, Cameroon, Chad and Mali. More volatile places, such as Afghanistan, Pakistan, Djibouti, Ethiopia, Libya, Somalia, Syria, Iraq and Yemen, experience almost a constant daily barrage of drone strikes and “stealth” missions, all with an untold number of “collateral damage” in the form of human life. 

The Special Operations Command has stated that since the 9/11 attacks, its forces “have been involved in tens of thousands of missions and operations in multiple geographic theaters and consistently uphold the highest standards required of the U.S. Armed Forces.” 

Such breathtaking projection of American military force has led to countless civilian causalities (According to a new report from The Intercept, nearly 90 percent of people killed in recent drone strikes in Afghanistan “were not the intended targets” of the attacks), with little oversight from any accountability mechanism at the global or local level. 

Apart from the problem of lack of transparency—much of the details of these operations remain classified—the analysis of the legality of such airstrikes and operations often fail to appreciate the astonishing human suffering reaped by these airstrikes. 

The typical international legal analysis on these issues will usually contain a smattering of citations to the UN Charter, the Geneva Conventions and other applicable international humanitarian legal principles (i.e., proportionality, distinction and so forth) and call for some sort of accountability. 

Unfortunately, the latter tends to be lacking because the facts of what occurred in a given tragedy are unclear. The investigations are often time-consuming and conducted in a tendentious and ad hoc manner. 

Criminal investigations into civilian causalities are usually politically impractical and controversial. They also face considerable jurisdictional hurdles that all but prevent any chance of prosecution for negligent or deliberate forms of killing. 

In the aftermath of the Kunduz hospital bombing last month, many international agencies, including the Red Cross, called for the commission of a formal investigation pursuant to Article 90 of the Additional Protocol to the Geneva Conventions of 1949 (Protocol I). That article provides for the establishment of an International Fact-Finding Commission (IHFFC). 

The Commission, though not widely known in the international legal scene, was officially constituted in 1991 and is made up of diplomats, legal experts, doctors and some former military officials from nine European countries, including Britain and Russia.

However, this Commission has not yet been activated in any serious way to investigate the countless incidents of violations of IHL since its inception. 

For the IHFFC to be mobilized, a single country would have to call for the fact-finding mission; and the U.S. and Afghanistan—which aren’t signatories—must also give their consent. Doctors Without Borders is still awaiting responses to letters sent to 76 countries that signed the additional protocol to the Geneva Conventions, asking to mobilize the 15-member commission.

Fact-finding missions can serve multiple goals, foremost of which is to sort through the often varied “scenarios” of what happened to cause a human tragedy in the midst of an armed conflict. 

The inconsistent explanations offered by senior U.S. military for the mistaken bombing of a hospital—first, that it was Afghan forces had requested the strike, to then modifying that account that the Afghan forces were not in communication with U.S. pilots and finally to admitting that the strike was mysteriously approved by personnel in the “chain of command”— demonstrates the importance of an impartial investigation. 

The IHFFC has many advantages over the International Criminal Court (ICC). First, because it is an investigative body and not judicial in nature, it need not issue judgments or apply international legal principals to the facts it discovers. Second, because it is exclusively concerned with “grave breaches” and “other serious violations” of international humanitarian and human rights law, the experience and information gained from investigating such tragedies can help uncover information from the inevitable future tragedies that have become all too common yet forgotten. 

In the course of an investigation, opposing sides in an international armed conflict are permitted to present and challenge evidence, in addition to the IHFFC conducting its own independent investigation. Another strong impetus for choosing an IHFFC by the parties to a conflict is that the Commission’s finding of facts and recommendations are published, although the conclusions are not unless consented to by all parties to the conflict. 

The first step for accountability under international law is an impartial fact-finding body capable of determining facts where often even the facts are contested. Only then could we hope for some sense of justice for the countless victims of the “global war on terrorism.” 

-Ahmad Chehab is a court-appointed attorney in Detroit