The bombing of the hospital run by Doctors Without Borders in Kunduz, Afghanistan, this past Saturday is potentially a legal and political disaster for the governments of the United States and Afghanistan.

One of the first subjects that my students and I discuss in my class on the Law of War is the general prohibition against attacking medical facilities. Additional Protocol I, Article 12 to the Geneva Conventions (1977) states that “medical units shall be respected and protected at all times and shall not be the object of attack.”

There is one exception to this prohibition. According to Article 13.1 a hospital or medical facility may lose its protection from attack if it is used “to shield military objectives from attack.” In the case of the hospital at Kunduz the critical question, therefore, is whether it was being used to protect Taliban fighters at the time it was bombed.

Doctors without Borders (Medecins Sans Frontieres) is one of the most respected aid organizations in the world today. Its doctors, nurses and support staff go into some of the most dangerous areas to provide medical care to those who might otherwise never get help. They risk their lives to help others.

When we speak of “collateral damage” we speak of the unintentional deaths of civilians, usually as a result of poor information or human errors of judgment or technical errors in weapons systems. The United States military is keenly aware of its legal and moral obligations to avoid harming innocent civilians. It is inconceivable to me that the U.S. would intentionally bomb a hospital run by an aid group unless commanders believed that there were enemy fighters being sheltered in the facility. Doctors Without Borders, however, claims that there were no enemy fighters present in the hospital that was bombed. They have called the bombing a “war crime” and demanded a thorough investigation.

I believe that this situation is extremely difficult because Doctors Without Borders is a well-respected group. A further complication is that Kunduz has fallen to the Taliban and, therefore, it will not be possible for the United States to do an on-site investigation.

Nevertheless, it is critical that the U.S. do an investigation and do it quickly and thoroughly. If we did mount an airstrike against the hospital in Kunduz, we must admit it and discover why this happened. Was it faulty intelligence? All too often our so-called “allies” provide us with inaccurate intelligence. Was it a matter of human error? If so, then I believe that this must be admitted and steps taken to discipline those who made such a grievous error.

Gen. David Petraeus, in his 2006 counterinsurgency manual prepared for the U.S. military, argued convincingly that simple military victory is not enough in combatting terrorist organizations. If the United States is to achieve its military and political goals, then we must also win “the hearts and minds” of the populations in the countries in which we are mounting military operations. A single disaster like the bombing of the hospital at Kunduz, if it is not dealt with promptly, transparently and fairly is just the sort of thing that can lose support for our goals.

— Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World.