Protection of medical care in armed conflict
There have in recent conflicts been severe and repeated violations of the rules of IHL protecting the wounded and sick, and those providing medical assistance. These rules are the most long-standing codification of IHL, and consist of three key elements:
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The entitlement of wounded and sick civilians and fighters who are hors de combat to receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. No distinction may be drawn between them on any grounds other than medical ones.1
- The prohibition on harming, prosecuting or otherwise punishing those who provide medical assistance, regardless of the nationality, religion, status or affiliation with a party to the conflict of the person receiving such care.2
- The special protection afforded to healthcare facilities – hospitals, clinics, dispensaries – and transports such as ambulances. These must not be attacked. Should they be used to commit, outside their humanitarian duties, acts harmful to the enemy, they lose this protection but only once a due warning has been given, setting, whenever appropriate, a reasonable time limit within which to end such conduct, and after such warning has remained unheeded.3
Attention has focused on attacks against or causing damage to healthcare facilities in violation of these rules. For example, the mechanism established by UN Security Council Resolution 1612 (2005) to monitor and report on six grave violations affecting children in armed conflict includes ‘attacks against hospitals’.4 And in 2012 the World Health Assembly requested the World Health Organization to collect and report instances of attacks on healthcare.5 Attacks are now being systematically recorded, but while there is now greater public awareness, this has not been accompanied by improved compliance. Attacks on healthcare facilities are dramatically visible; but a number of less evident violations, discussed below, may suggest a rejection of the foundational principles of IHL relating to the protection of healthcare, in particular to the entitlement of all wounded and sick to receive medical care. In addition to the problem of violations of the law, there are a small number of issues in respect of which the law is not clear, or where its application and protection may be compromised by the interplay with counterterrorism measures.
A first question is who constitutes ‘medical personnel’. These persons are granted special protection: they must be respected and protected, and are entitled to wear the distinctive red cross or red crescent emblem. The first and second Geneva Conventions of 1949 (GC I and GC II) grant these special protections to military medical personnel.6 The first Additional Protocol of 1977 to the Geneva Conventions (AP I) expands the definition to certain classes of civilian medical personnel.7 In all cases, the medical personnel must be exclusively engaged in medical activities and be ‘assigned’ to such duties by a party to the conflict.8 They are thus exercising their functions on the basis of the authorization by a state, which is also responsible for exercising a degree of control over them to ensure that there is no abuse of the special protected status.9
Attacks on healthcare facilities are dramatically visible; but a number of less evident violations may suggest a rejection of the foundational principles of IHL relating to the protection of healthcare
Military medical personnel are assigned ex officio by the armed forces, but IHL treaties do not lay down specific procedures for assigning civilian medical personnel, leaving it to states to do so.10 Some recent exchanges address the question of whether the medical staff of public healthcare facilities should be considered as ‘automatically’ assigned by states.11
The position in non-international armed conflicts is more complex, particularly in respect of organized armed groups. While Article 9(1) of the second Additional Protocol of 1977 to the Geneva Conventions (AP II) sets out the same obligation to respect and protect medical personnel, and, additionally, to grant it all available help for the performance of its duties, it does not refer to ‘assigned’ personnel. A provision specifying that these protections related exclusively to personnel ‘assigned’ to these tasks was elaborated during the negotiations, based on that in AP I, but slightly amended to address specific aspects of non-international armed conflict. It provided that both parties to the conflict could assign medical personnel.12 However, as part of the radical shortening of the draft, this provision was not included in the version of the text that was adopted. What does this mean? That there is no requirement that personnel be assigned in non-international armed conflict? This is unlikely, in view of the reference in Article 12 AP II to the entitlement of medical personnel to wear the distinctive emblem, ‘under the direction of the competent authority concerned’.13 Rather, this suggests that the ‘competent authorities’ of both states and organized armed groups are entitled to assign medical personnel. Drawing on the approach adopted for states in international armed conflicts, the precise formal measure by which this is done is not significant. What matters more is that the personnel only conduct medical activities and that the group exercises some degree of control to ensure the status is not abused.
Whatever position is adopted on this question, it is important to bear in mind that the question of who is ‘assigned’ medical personnel is only relevant to the special protections to which they are entitled. It is clear that other civilians who provide medical care remain civilians, and that they must be respected and protected as such. This also includes the staff of international non-governmental organizations providing medical care who, with the exception of staff of national red cross/red crescent societies in certain circumstances,14 are not ‘assigned’ by parties to conflict – and who frequently would not wish to be assigned by parties to a conflict as this could negatively affect perceptions of their neutrality and independence.15
It is equally clear that providing assistance to the wounded and sick – including enemy fighters – does not lead to a loss of special protection for ‘assigned’ personnel, does not amount to direct participation in hostilities,16 and is not a reason for punishment. IHL treaty provisions applicable in both international and non-international armed conflict expressly prohibit punishing any person for having carried out medical activities, regardless of who benefits from them.17
Despite this very clear prohibition, in recent years, in a number of contexts, people have been harassed, investigated, prosecuted and imprisoned, and at times ill-treated, for having provided medical care.18 Individuals have been listed under UN sanctions among other things for having provided medical care to members of groups designated as terrorist that are parties to non-international armed conflict.19
The entitlement to receive medical care and the protections of those who provide it are the core of these rules, and these rules are clear
Other examples of difficulties in the interpretation or application of this area of IHL include how wounded and sick members of the armed forces or military medical personnel are to be considered in proportionality analyses undertaken for the purpose of targeting;20 what actions amount to ‘acts harmful to the enemy’ leading to loss of special protection for medical personnel; and the extent of belligerents’ obligations to provide medical care to civilians in areas where they are conducting military operations.21
While these examples, and the questions discussed above, are indicative of a lack of clarity or possibly a gap in IHL, they relate to issues described as ‘peripheral’ to the legal framework protecting medical care in armed conflict. The entitlement to receive medical care and the protections of those who provide it are the core of these rules, and these rules are clear. But problems can arise because of tensions between IHL and other bodies of law – principally international and domestic counterterrorism measures – that prohibit providing assistance to groups designated as terrorist, groups that are also frequently parties to non-international armed conflicts. Overly broad counterterrorism prohibitions are impeding humanitarian actors from conducting operations as envisaged by IHL, and in accordance with humanitarian principles, in a number of ways; but the criminalization of the provision of medical care is the most stark and problematic manifestation of the tensions, as it is contrary to the express prohibition in IHL on punishing those who provide medical care.
1 Article 12 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I); Article 12 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces (GC II); Article 10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (AP I); and Article 7 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (AP II).
2 Article 18 GC I; Articles 16(1) and 17(1) AP I; and Article 10(1) AP II.
3 Articles 19 and 21 GC I; Articles 22 and 34 GC II; Articles 12 and 13 AP I; and Article 11 AP II.
4 UN Security Council Resolution 1612 (2005) and Secretary-General’s report on Children and Armed Conflict, S/2005/72, 9 February 2005, para 68.
5 World Health Assembly resolution 65.20. This request led to the Attacks on Health Care initiative: see further World Health Organization (2020), ‘Responding to attacks on health care’, https://www.who.int/emergencies/attacks-on-health-care/en/.
6 Articles 24–26 and 40 GC I; and Articles 36 and 42 GC II.
7 Articles 8(c) and 18 AP I.
8 The corresponding provision in the English-language version of Article 24 GC I used the term ‘engaged’ in a range of medical activities, but the French version referred to persons ‘assigned’ to conduct them, and there is general agreement that the requirement is one of ‘assignment’. See ICRC (2016), Commentary to the First Geneva Convention (2nd edition), (ICRC Commentary to GC I) para 1972.
9 See for example Bothe, M., Partsch, K. J. and Solf, W. A. (eds) (2013), New Rules for Victims of Armed Conflicts, 2nd ed., Leiden and Boston: Nijhoff, pp. 104–105.
10 See for example Sassòli, M. (2019), ‘Joint Blog Series: Medical care in armed conflict PART I, Humanitarian Law and Policy, 24 January 2019, https://blogs.icrc.org/law-and-policy/2019/01/24/joint-blog-series-medical-care-armed-conflict-part-i/; and Liivoja, R. (2019), ‘Status of medical personnel: Clear as mud?’, Humanitarian Law and Policy, 25 February 2019, https://blogs.icrc.org/law-and-policy/2019/02/25/status-medical-personnel-clear-as-mud/.
11 Ibid.
12 Sandoz, Y., Swinarski, C. and Zimmermann, B. (eds) (1987), Commentary on the Additional Protocols of 8 June 1977 (ICRC Commentary to the APs), Geneva, Nijhoff, paras 4661–4669.
13 The ICC Statute war crime of ‘internationally directing attacks against … personnel using the distinctive emblems of the Geneva Conventions in conformity with international law’ in non-international armed conflict also suggests that there are people entitled to display the distinctive emblems in non-international armed conflicts. Article 8(2)(e)(ii) ICC Statute.
14 Article 26 GC I and Article 8(c) AP I.
15 UN Security Council Resolution 2286 (2016) on healthcare in conflict avoids the discussion of ‘assigned’ medical personnel, referring instead to medical personnel and ‘humanitarian personnel exclusively engaged in medical duties’.
16 See for example Sassòli (2019), Joint Blog series: Medical care in armed conflict PART I; and Livoja (2019), Status of medical personnel: Clear as mud?.
17 Article 16 AP I and Article 10 AP II.
18 See for example Buissonniere M., Woznick S. and Rubenstein L., with Hannah J. (2018), The Criminalization of Healthcare, University of Essex, John Hopkins Bloomberg School of Public Health and Safeguarding Health in Conflict, https://www1.essex.ac.uk/hrc/documents/54198-criminalization-of-healthcare-web.pdf; Koteiche R., Murad S. and Heisler M. (2019), ‘My Only Crime Was That I was a Doctor’: How the Syrian Government Targets Health Workers for Arrest, Detention, and Torture, Physicians for Human Rights, https://phr.org/wp-content/uploads/2019/12/PHR-Detention-of-Syrian-Health-Workers-Full-Report-Dec-2019_English-1.pdf; and Bouchet-Saulnier, F. (2018), ‘How CT Measures and Other Sanctions Are Concretely Impacting Humanitarian Action?’, Proceedings of the Bruges Colloquium: Legal and Operational Challenges Raised by Contemporary Non-International Armed Conflicts, 19th Bruges Colloquium, 18–19 October 2018, p. 206.
19 Gillard, E.-C. (2017), Humanitarian Action and Non-state Armed Groups: The International Legal Framework, Research Paper, London: Royal Institute of International Affairs, p. 14, https://www.chathamhouse.org/sites/default/files/publications/research/2017-02-02-humanitarian-action-non-state-armed-groups-gillard.pdf.
20 See for example ICRC Commentary to GC I, paras 1353–1357; Corn, G. and Culliver, A. (2017), ‘Wounded Combatants, Military Medical Personnel, and the Dilemma of Collateral Risk’, Georgia Journal of International and Comparative Law, 45(3), p. 445, doi:10.2139/ssrn.2884854; and Kleffner, J. K. (2018), ‘Military Collaterals And Ius In Bello Proportionality’, Israel Yearbook on Human Rights, 48, pp. 43–61, doi:10.1163/9789004382183_004; and Sari, A. and Tinkler, K. (2019), ‘Collateral Damage and the Enemy’, British Yearbook of International Law, doi:10.1093/bybil/brz004.
21 Spiegel, P., Garber, K., Kushner, A. and Wise, P. (2018), The Mosul Trauma Response: A Case Study, Johns Hopkins Center for Humanitarian Health.