‘IHL is not enough – effective protection requires active engagement.’
In the decade since the adoption of UN Security Council Resolution 2286, increased awareness of the impact of conflict on medical care has not equated with better protection on the ground. Shedding light on the extent of the problem is important, as is the expression of a political commitment to address it, but solutions lie in adopting and following practical measures to give effect to existing protections.
The preceding chapters have identified a number of concrete measures that can be taken by states, organized armed groups and other actors to promote compliance with the rules. It has to be recognized that armies and armed groups with no wish to comply with IHL will not be persuaded to take any such measures. Nevertheless, this chapter sets out five overarching conclusions.
7.1 Military doctrine to minimize impact on medical care
Some states are elaborating instruments to minimize civilian harm across all their military operations. Some are also preparing for war-fighting readiness, including adopting measures for complying with IHL in the event of armed conflict, bearing in mind that conflict may occur on their own territory as well as abroad.
As they do this, a key step to minimize the impact of military operations on continuity of, and access to, medical care is developing doctrine, policies and directives that identify in a granular way how healthcare systems can be impacted by military operations, and specific measures that can be taken to reduce this impact.
Central to this is a robust understanding of the ‘civilian environment’ in which operations will be conducted. In terms of medical care this includes:
- Mapping the locations of medical facilities and assessing their capacity for the provision of medical care in the expected area of operations and in the immediate vicinity.
- Elaborating ‘no strike’ lists for medical facilities, and requiring heightened care for objects that provide essential services on which they depend.
- Determining the proximity of medical facilities to military objectives.
- Assessing the potential indirect impact on medical care of military operations – such as the disruption of essential utilities and access for patients caused by the interruption in the supply of electricity and water, or obstruction of supply routes.
The operational environment should be assessed both prior to, and at regular intervals during, operations.
Measures for minimizing the negative impact of military operations on civilian medical care include:
- Developing contingency plans to address the foreseeable disruption to the provision of civilian healthcare services, and to restore full service as soon as possible;
- Facilitating and/or implementing measures to restore healthcare services (medical support for facilities, engineering support for repair, etc.) after military operations.
Military medical personnel should be involved in the elaboration of these measures. And the measures should be refined for each theatre of operations, ideally on the basis of engagement with the civilian medical actors present.
7.2 Continuous communication and coordination
IHL’s system of protection of medical care is to a great extent based on trust, but this trust has been eroded. Key to returning to a situation of respect during active hostilities is an effective channel of communication between belligerents and those operating medical facilities. But this is missing in most situations.
Representatives of medical organizations and of armed forces who participated in the consultations for this paper agreed that a key measure in ensuring continuity of medical care in armed conflict is the efficacy of channels of communication between belligerents and civilian healthcare providers.
In peacetime, engagement between states and representatives of medical organizations facilitates the elaboration of harm mitigation measures based on an accurate understanding of the civilian environment. It also enhances mutual understanding and, in turn, trust. Conducting joint exercises and training programmes in peacetime can play an important role in this regard.
Such civil–military coordination is essential in times of armed conflict. As discussed in preceding chapters, it allows agreement on procedures to minimize the impact of military operations on continuity of healthcare, and to address allegations of abuse.
Despite its evident value, in many contexts such engagement does not exist. While states engage with international medical organizations to authorize the latter’s operations, this is often the extent of the contact. Most frequently, this occurs in state capitals at health ministry level. Channels of engagement are also necessary with military and security forces at all levels – central, regional and local.
Engagement is also necessary with organized armed groups. Yet, in many contexts it is this very engagement with such armed groups that has led states to punish healthcare providers.
Coordination with their military and civilian counterparts must be enshrined in the doctrines and policies of armed forces and healthcare providers.
7.3 Coherence across legal regimes
Realization of the protections of medical care in IHL can be undermined by restrictions in other bodies of law. This is particularly the case for domestic counterterrorism measures, frequently applied by states parties to non-international armed conflicts. These include broad prohibitions on the provision of any type of support to groups considered terrorist, and are frequently used to limit the operations of medical organizations.
The same concerted engagement between humanitarian actors and states that led to the inclusion of safeguards for humanitarian action in most sanctions regimes must now shift to criminal counterterrorism measures. Importantly, safeguards must expressly refer to medical care, which is not synonymous with humanitarian action.
7.4 Reinvigorating the supervisory measures foreseen by IHL
Until the adoption of Additional Protocol I, the protection afforded by IHL treaties to civilian objects was limited. In view of this, the extension of the specific protections initially granted to military medical facilities, transports and personnel to their civilian equivalents was significant. This protection was granted only to facilities and people under a degree of state control. The authorities overseeing them were responsible for supervising their operations, for preventing abuse of the protected status, and for putting instances of abuse to an end. The system of supervision generated trust in the system.
Additional Protocol I unintentionally changed these dynamics. The rules regulating the conduct of hostilities offered significant protection to all civilian objects, without a corresponding system of supervision. The extension of protection to civilian medical facilities, transports and personnel is of course positive, but it diminished the incentive to adopt the control mechanisms that were the condition for entitlement to the specific protection of medical facilities.
The important system of authorization and supervision of medical facilities has been overlooked as a matter of law, and has fallen into disuse in practice. This is unfortunate. Many of the challenges faced by the organizations operating medical facilities relate to allegations of misuse. A system that contributes to preventing misuse, and that plays a role in mediating allegations of misuse, remains extremely valuable in upholding the system of trust that is essential to the functioning of the rules. While recognizing that at times the very actor that should be exercising this supervision is in fact the actor misusing the facilities, efforts should be made to revive this aspect of the rules, including in the preparedness measures currently being developed by some states.
7.5 Violations must have consequences
The entitlement to receive medical care in armed conflict is a cardinal principle of IHL. There is no gap in the rules protecting the wounded and sick, medical facilities and transports, and their violation constitutes war crimes. Yet there have been no consequences for even the most flagrant violations. In the past two decades, investigations by international and domestic tribunals can be counted on the fingers of one hand.
This disconnect between the letter of the law, the rhetoric condemning violations, and the reality of lack of accountability is unacceptable. Conduct impacting medical facilities and personnel is not intrinsically more difficult to investigate than other acts.
There is no reason why domestic and international tribunals are overlooking the range of offences that can deprive entire communities of life-saving services. Violations must have consequences for the perpetrators, not just the most vulnerable.
7.6 Final words
In recent times, it has often been asserted that the rules-based international order is a thing of the past. It has to be recognized, of course, that for civilians in many countries the current shift in the international order is not significant: they have suffered under the threat or actuality of unlawful and protracted armed conflict all their lives.
Is IHL immune from the change in the international order? It can surely be said that no model of a future world order is conceivable without fundamental humanitarian rules and principles protecting the most vulnerable in armed conflict. In the current global instability and the continuation of multiple armed conflicts, the rules of IHL are more important than ever.
