Imagine you are the head of an international medical humanitarian organization with extensive operations in Yemen. Your organization provides life-saving care to civilians and wounded fighters hors de combat alike. There is no doubt that there is tremendous need for medical assistance. But there have also been numerous attacks on civilians and medical establishments in the region. Would you increase, maintain, or decrease your operations there? What role should the disposition of the parties to the conflict toward IHL play in your decision?
According to Doctors Without Borders (Médecins Sans Frontières or MSF), there have been three attacks in a three-month span on their facilities in Yemen. An October 27th airstrike by the Saudi-led coalition destroyed Haydan hospital. Then, on December 2nd, a Saudi-led strike hit a health facility in Taiz. This past Sunday, January 10th, a Saudi-led coalition projectile hit the MSF-supported Shiara Hospital in Razeh. Combined, these incidents have resulted in significant death, injury, and destruction.
Now suppose you read the letter submitted on Dec. 4, 2015 to the United Nations by the Kingdom of Saudi Arabia, purportedly on behalf of the “Coalition to Restore Legitimacy in Yemen.” If you missed the two-page letter and annex when it was published, you are not alone—a quick online search turns up no coverage of the statement. The statement responds to the Secretary-General’s condemnation of the reported December 2nd airstrike by the coalition on an MSF mobile medical clinic in Taiz.
As with most letters addressed to the Secretary-General and to the President of the Security Council, much of the statement is standard U.N. fare. The coalition command notes that it “welcomes and appreciates” MSF’s efforts in Yemen. The command “reaffirms that it takes all measures possible to identify and strike targets precisely, in order to avoid any collateral damage.” Further, the letter notes that coalition command has established a fact-finding committee “to determine the truth and accuracy of what had been reported” and has reached out to MSF. For now, “the coalition would like to gather complete information on the incident and then convey it completely and in full transparency to the public at the regional and international levels.” To date, it would appear no investigative report or finding has yet been released by the KSA or the coalition command.
So far, so good. However, there is a worrying statement in the fourth paragraph. The coalition command states:
We would like to stress that humanitarian organizations must work closely with the coalition command before choosing where they are going to set up operations in Yemeni cities and that they should stay away from areas in which Houthis [sic] militias are present, in order to avoid any collateral [damage], God forbid.
Charitably, that sentence might be read to merely reflect the provisions in IHL setting out the authorities’ role in overseeing impartial humanitarian organizations’ access to combat zones. But a more ominous view is that the sentence can be read as an implicit rejection of Common Article 3’s so-called “right of humanitarian initiative.” Recall that Common Article 3 provides that “An impartial humanitarian body … may offer its services to the Parties of the conflict.” Furthermore, the statement might be taken as rejecting the IHL principle that civilians and fighters hors de combat must not be denied access to impartial medical care, even when they are in enemy-held territory. Taken on its face, the letter appears to urge MSF not to operate in Houthi-controlled territory at all. Regardless of whether one has sympathy for Houthi fighters, the destruction or absence of medical establishments in these areas would effectively mean denying tens of thousands of civilians—as well as wounded fighters hors de combat—access to potentially life-saving care.
As the lead coalition actor against the Houthis in Yemen, Saudi Arabia is taking an increasingly aggressive security posture. And to the extent that the Kingdom is projecting its leadership role among Sunni Arab states, its law-of-war interpretations and security policies serve as an important source of practice, not only in Yemen but in other conflicts as well.
It is unclear what this all means for organizations, like MSF, contemplating their presence in conflicts such as Yemen. In the absence of a published investigative report or further details regarding the circumstances of the strikes, should medical humanitarian organizations read the coalition command’s letter as a threat? Should the statement affect their risk assessment on whether to remove staff and volunteers? In short, in this climate how should humanitarian organizations balance their medical mission against the Saudi-led coalition putting them on apparent notice regarding its interpretation of IHL applicable to enemy-held territory? As a corollary question, if Saudi Arabia is, in fact, threatening to ignore fundamental IHL principles in relation to Houthi-held areas, what are the responsibilities of coalition partners, including the United States and the United Kingdom?
During the press briefing on the internal investigation into the United States strike against the MSF clinic in Kunduz, Afghanistan, the U.S. repeatedly reaffirmed its respect for the IHL protections for impartial wartime medical care and underscored its respect for independent humanitarian organizations like MSF. A medical humanitarian organization might conclude that the U.S. strikes against the MSF facility in Kunduz violated IHL but at least the organization could take comfort while operating in Afghanistan moving forward that the U.S. did not respond by suggesting that they were rethinking their interpretation of IHL protections for impartial medical care. It is still too early to fully assess the U.S. response to the attack on the MSF trauma center in Kunduz. But thus far, at least, unlike the KSA letter, the U.S. has not suggested that independent humanitarian organizations should cease activities in enemy-held territory.
Medical humanitarian organizations today face a range of daunting challenges in armed conflicts around the world. One of those challenges should not be whether parties to armed conflicts will ignore hard-won IHL protections for the medical mission when the enemy may benefit from those protections.