International Law: LOAC

Amid Investigations of Hospital Bombings, Don’t Lose Sight of Key Principles

By Dustin Lewis, Naz Modirzadeh, Gabriella Blum
Friday, October 30, 2015, 9:46 AM

In the midst of armed conflict, accurate and comprehensive information is notoriously difficult to come by. But if initial reports are confirmed, this month may go down as one of the gravest in recent memory for hospitals in war: the United States destroyed a Médecins Sans Frontières (MSF) hospital in Afghanistan; Russia bombed four hospitals in Syria; and the Saudi Arabia-led coalition destroyed an MSF hospital in Yemen. (The reported Russian bombings of hospitals in Syria occurred against the backdrop of the Syrian government’s multi-year series of attacks on health-care facilities there.) Regarding the MSF hospital in Kunduz, earlier this week the Associated Press reported that the Army Green Berets who called in the strike believed the facility was under the “control” of the Taliban—a claim that MSF, an organization that over many years has developed a reputation for its independence, denies.

As we detailed in a recent report for the Harvard Law School Program on International Law and Armed Conflict, since 1864 states have put medical care “above” the conflict in important ways. The short version is that so long as they refrain from any act of hostility and do not attempt to escape, the wounded and sick—of all parties—must be collected and cared for. Caregivers should be guided by considerations of medical need—not by the wounded’s affiliation. And those caregivers and the means necessary for them to provide care must be respected as well.

These IHL obligations are imposed primarily on the warring parties. Medical personnel, units, and transports under the control of those parties have so-called “special” protections under IHL. Importantly, under IHL not only warring states but also organized armed groups, at least pursuant to Additional Protocol II, may control their own medical personnel, units, and transports. Those organized armed groups may thereby extend “special” protections to the medical personnel and objects under their control.

In the 1970s, during the drafting of those provisions in what would become Additional Protocol II, the United States was a strong advocate for organized armed groups to have the legal capacity to control their own medical personnel and objects. The rationale was straightforward: in civil wars and other non-international armed conflicts, trust had to be reposed in organized armed groups—as it had been in states in international armed conflicts—to control medical personnel, units, and transports in order to ensure that those caregivers and objects were exclusively engaged in protected medical activities. While the U.S. has not become a party to Additional Protocol II, the Department of Defense included the vast majority of that treaty’s medical-care provisions in its June 2015 Law of War Manual.

Meanwhile, the drafters of IHL have also laid down important protections for medical caregivers and health-care facilities not controlled by a party to the conflict. Indeed, for over 150 years, IHL has explicitly recognized that civilians, even on their own initiative, may care for the wounded and sick, including the enemy.

For all of these reasons, even if it were true that the MSF hospital was under the control of the Taliban, that fact in and of itself would not justify an attack on the hospital. Moreover, even if what the Green Berets meant was that the hospital was being used by the Taliban for hostile purposes, rather than for medical care, and that turned out to be true, it would not exhaust the conversation: if proven, those facts alone could not have determined the legality of the American attack on the facility.

Consider the following: IHL treaties lay down specific warning requirements concerning medical units that are authorized and designated as such by a party to the conflict. (In international armed conflicts, an IHL treaty provides an analogous requirement for civilian hospitals.) But even where a health-care facility is not so authorized in a non-international armed conflict, as may be the case in some of the recent reported attacks, that facility is generally considered a civilian object, which under IHL may not be directly targeted. If such a civilian health-care facility were converted into a military objective, the adverse party would still need to give effective advance warning of an attack that may affect the civilian population—which would include the wounded and sick hors de combat in the facility—unless circumstances do not permit. (Naturally, merely treating the enemy wounded and sick hors de combat does not convert a civilian object into a military objective.) 

At each of the key moments in the progressive development of IHL—1864, 1906, 1929, 1949, and 1977—states strengthened protections for impartial medical care. Nonetheless, there is admittedly fragmentation in the IHL protective landscape. For example, as we detailed in the report, not all states are bound—in all armed conflicts—by the exact same medical-care obligations. But that technical fragmentation should not obscure the larger point: IHL protections for impartial medical care—including where that care is controlled by or given to the enemy—inject a vital dose of humanity into the devastation of war. They represent one of the fundamental humanitarian compromises of the laws of armed conflict.

Today, there is disagreement over the contours of “direct participation in hostilities.” Meanwhile, some states are recasting medical care as impermissible support to terrorists—and possibly even a form of such participation. In this context, there is an increased risk that states will unwittingly erode the commitments they made over the last century-and-a-half, including the general principle that medical care for anyone injured or sick is a humanitarian, not a belligerent, activity.

Each of the reported attacks in Afghanistan, Syria, and Yemen on hospitals this month occurred in armed conflicts involving designated terrorists. (As documented by the International Committee of the Red Cross’s Health Care in Danger Project, attacks on health-care facilities also occur in armed conflicts not involving designated terrorists.) Among their various important functions, investigations provide an opportunity for states and the public to reflect upon and reaffirm the core IHL principle that places impartial medical care for all—soldiers, enemies, and civilians alike—above the conflict.