Not a Target: Protecting Healthcare in Conflict
The al-Quds hospital in Aleppo, Syria. The Ma’arat Al-Numan hospital in Idlib, Syria. The MSF Kunduz trauma centre in Northern Afghanistan. The Shiara hospital in Razeh district, Northern Yemen. The MSF hospital in Pibor town, Jonglei State, South Sudan. In today’s conflicts, healthcare is consistently coming under attack, with devastating consequences for medical personnel and the populations they serve. In the words of Médecins Sans Frontières (MSF) International President Joanne Lui and International Committee of the Red Cross (ICRC) President Peter Maurer, “A dangerous complacency is developing whereby such attacks are starting to be regarded as the norm. They are part of the tapestry of today’s armed conflicts where civilians and civilian infrastructure are targeted, and marketplaces, schools, homes and health facilities are ‘fair game’.” What has become of the international humanitarian norms developed to protect these core humanitarian activities in wartime?
Protection of Healthcare in Armed Conflict
“We say loud and clear,” asserts Joanne Lui, “the doctor of your enemy is not your enemy.” Indeed, medical neutrality – a foundational principle of the rules of war – ensures that sick and wounded soldiers and civilians may receive medical care in conflict settings regardless of their political or other affiliations. Under international humanitarian law (IHL), medical personnel are required to treat all patients without distinction (e.g. based on race, ethnicity, religion, political affiliation or participation in hostilities). And parties to an armed conflict must respect and protect medical units, such as hospitals, in all circumstances, including by taking measures to protect medical units from attack. A hospital may only lose its protected status if it is being used, outside its humanitarian function, to commit acts harmful to the enemy (which does not include treating wounded combatants), for instance if combatants are launching attacks from the hospital. However, this protection ceases only after sufficient warning has been given, and any attack must remain proportionate to the threat.
Indeed, protecting the provision of and access to healthcare during wartime has been a core concern of IHL – which protects civilians and persons no longer engaged in combat (namely the sick, wounded and detained) – since its foundation. Beginning with the First Geneva Convention of 1864 (on wounded and sick members of armed forces in the field), specific protections for the wounded and sick, as well as for medical personnel, units and transports have been further enshrined in the Four Geneva Conventions of 1949 (on wounded, sick, and shipwrecked soldiers, prisoners of war, and civilians) and the Two Additional Protocols of 1977 (on victims of international and non-international armed conflicts). These rules are binding on both states and non-state armed groups.
Under the Statute of the International Criminal Court (ICC), intentionally directing an attack against a hospital or medical unit constitutes a war crime in international and non-international armed conflict. And even if not intentionally targeted against protected objects like hospitals, indiscriminate attacks that fail to distinguish between legitimate military objectives and protected civilian objects are also prohibited. Such attacks may violate IHL (giving rise to state responsibility) without being a war crime (giving rise to individual criminal responsibility).
Responding to Violations
In response to growing concern over attacks on healthcare – and just a week after airstrikes destroyed the MSF and ICRC-supported al-Quds hospital in Aleppo, Syria, killing at least 55 people – the UN Security Council unanimously adopted Resolution 2286 (2016), strongly condemning attacks on medical facilities and personnel. The Resolution reaffirms the responsibility of all conflict parties to respect international humanitarian law (IHL), demands an end to impunity for those responsible for such attacks, and “strongly urges” States to conduct independent investigations into violations of IHL related to the protection of medical care, and to “take action against those responsible in accordance with domestic and international law, with a view to reinforcing preventive measures, ensuring accountability and addressing the grievances of victims.”
While many humanitarian organizations – ICRC and MSF included – lobbied for Security Council action on this issue, they have also questioned the reliability of Member States when it comes to implementation. Highlighting the hypocrisy of States condemning attacks in the Council chambers while committing them on the battlefield, Joanne Lui noted that four of the Security Council’s five permanent members – US, Russia, the UK, and France – “have, to varying degrees, been associated with coalitions responsible for attacks on health structures over the last year,” including the U.S. and NATO-led coalition in Afghanistan, the Saudi-led coalition in Yemen, and the Russia-backed Syrian-led coalition. The U.S., for instance, has repeatedly declined MSF’s calls for the independent investigation into the Kunduz attack. Last week, the Pentagon announced that it has disciplined 16 U.S. military personnel with “administrative actions” for their role in the airstrike on an MSF hospital in Kunduz, Afghanistan, but has declined to press criminal charges (or courts-martial) based on its conclusion that the attack was unintentional, a move criticized by many as insufficient.
While questions remain about the proper response to the Kunduz attack, it is also important to distinguish between different causes of or rationales for violence against healthcare. For instance, the U.S.’s internal investigation concluded that the airstrike on the MSF hospital in Kunduz was the result of “a chain of human errors and equipment and procedural failures.” In Syria, by contrast, there is mounting evidence of the systemic targeting of healthcare as a strategy of war. As Physicians for Human Rights (PHR) documents, “Since 2011, the Syrian government has systematically violated this principle and is using attacks on medical workers and facilities as a weapon of war.” In Yemen, it has been somewhat more difficult to determine whether airstrikes on hospitals are the result of indiscriminate or intentional attacks. An in addition to spreading an atmosphere of fear, the widespread assault on healthcare in armed conflicts is decimating already fragile healthcare systems, with huge knock-on affects for populations at risk.
Where do we go from here?
Citing the lack of sincere international commitment to addressing systematic violations, MSF recently announced its decision to pull out of the upcoming World Humanitarian Summit (WHS) in Istanbul. In a statement, MSF called the process a “fig-leaf of good intentions” which will deal in “ambitious ‘commitments’” while neglecting to “reinforce the obligations of states to uphold and implement the humanitarian and refugee laws which they have signed up to,” or to implement systemic reforms to improve humanitarian response. Others are still holding out hope though that the WHS will present an opportunity for the international community to take action on this and other pressing issues for the humanitarian sector – and participants must demand that discussions move beyond ceremonial statements or fundraising appeals to concrete actions. The implementation of Security Council Resolution 2286 (2016) provides another such opportunity for states to counteract the disturbing trend of attacks on healthcare in armed conflict by reasserting international norms and principles, and instituting specific measures to protect healthcare in armed conflict.
Whether in the Security Council chambers, WHS deliberations or in other international fora, both political commitments and concrete actions are needed to reinforce longstanding norms protecting healthcare in armed conflict. States and all parties to armed conflict should recommit to respecting their obligations under international law, including by implementing effective measures to prevent violence against healthcare personnel and facilities in conflict. Additionally, states should promote – and at minimum not hinder – principled engagement with non-state armed groups to promote respect for international law and protect healthcare from attack. And when attacks do occur, states should commit to independent and impartial investigations, and ultimately, accountability measures to end the prevailing impunity.
In the short to medium term, improved efforts are needed to mitigate the vulnerability of humanitarian actors and civilians to attack, including enhanced tools and methods to manage risk and insecurity in the field. This includes a frank professional dialogue on medical ethics and procedures, especially behaviors that may be contributing to perceptions of healthcare practitioners as partial or one-sided, and as a result, stoking hostility against them. Moreover, while IHL grants a significant amount of leeway to the “reasonable military commander” in assessing the difficult balance between military necessity and humanity in planning attacks, the prevalence of indiscriminate attacks and a high tolerance for collateral damage to civilians and civilian objects in contemporary conflicts evinces an urgent need to rebalance the scales in favor of humanity. Parties to conflicts must not be allowed to hide behind IHL’s more permissive allowances of military necessity as an excuse for “anything goes” in the fog of war. Attacks on healthcare in conflict are assaults on the core of humanitarian action. Turning back their tide requires concerted political action at the local, national and international level.
For more discussion of the role of humanitarian professionals in promoting respect for and enhancing compliance with international international humanitarian law (IHL), tune in to this month’s ATHA Podcast.
Legal Research Associate
Julia Brooks is a Legal Research Associate at Harvard Humanitarian Initiative (HHI), where she focuses on international humanitarian law, policy and education. For the Advanced Training Program on Humanitarian Action (ATHA), she serves as host and producer of the Humanitarian Assistance Podcast series; a researcher focusing on international humanitarian law and humanitarian protection; and a managing editor and contributor to the ATHA blog and paper series. She also contributes as a writer, teaching fellow and consultant to curriculum development for e-learning tools, online and in-person courses developed by the Humanitarian Academy at Harvard.
Previously, Julia worked in Berlin, Germany at the Foundation "Remembrance, Responsibility & Future" (Stiftung EVZ), Adelphi Research & Consult, the German Parliament (Bundestag), and the UN High Commissioner for Refugees (UNHCR) as a Senior Fellow with Humanity in Action. She has also worked at the Office of the High Representative in Bosnia and Herzegovina (OHR) in Sarajevo, and the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, The Netherlands. She holds a Master of Arts in Law and Diplomacy (MALD) from the Fletcher School of Law and Diplomacy at Tufts University, where she received the Alfred P. Rubin Prize and Leo Gross Prize for excellence in international law, and a Bachelor of Arts (BA) in Public Policy from Brown University, magna cum laude.