IHL treaties lay down extensive protections for military and civilian personnel assigned exclusively to medical duties by a party to the conflict. Those conventions also provide protections (though far fewer) for medical caregivers who are not assigned by a party. International and local humanitarian non-governmental organizations (NGOs), as well as unaffiliated individuals, may thus be at greater risk.23 Yet due to the nature of many armed conflicts involving terrorists, it is precisely those unassigned humanitarian NGOs and individuals who are often most likely to provide medical assistance to terrorists.
Generally, engaging in “principled” humanitarian action—including where it encompasses providing medical care to the wounded and sick hors de combat in
23. Because they are part of the state armed forces, military medical personnel seem unlikely—or, at least, far less likely—to face these challenges; in addition, National Red Cross or Red Crescent Societies, for example, which are typically recognized and authorized by the relevant state, similarly seem to be less susceptible to anti-terrorism measures than would private humanitarian medical providers who are not so recognized and authorized.
armed conflict—means adhering to the principles of humanity, impartiality, and independence.24 The principle of humanity dictates that organizations must focus on alleviating human suffering.25 The principle of impartiality means being guided by needs, prioritizing those with the greatest need, and not discriminating adversely against those in need.26 And the principle of independence means being sufficiently autonomous from governments so that the organization can act in accordance with humanitarian principles. Many humanitarian organizations are also guided by a fourth principle: neutrality. That principle generally means not taking sides in hostilities or in ideological, racial, religious, or political controversies.
Adhering to these principles, which are referenced in an IHL treaty,27 is meant to distinguish humanitarians from other actors on the battlefield. The perception among warring parties of whether an organization adheres to these principles is often central, as a matter of practice, to obtaining and maintaining access to deliver humanitarian relief.28
States regularly endorse these humanitarian principles. The December 2014
24. Those principles may be seen in a number of ways: as stand-alone moral concepts; as attributes of some organizations; as a quality of humanitarian assistance; as duties binding on some organizations; or as a justificatory claim for obtaining and maintaining access to populations in need.
25. Our definitions of these principles are drawn from the Statutes of the International Red Cross and Red Crescent Movement (adopted by the 25th Int’l Conference of the Red Cross at Geneva in 1986, amended in 1995 and 2006), preamble.
26. “Impartial,” in terms of medical ethics, has been said to mean “that health-care workers must treat patients on the basis of need and not on the basis of ethnicity, religion, gender, age, or any other factor that might lead to unfair discrimination. It also overlaps with medical neutrality, as referring to the non-involvement of health-care workers in political parties and issues related to the conflict within their workplaces.” Vivienne Nathanson, “Medical ethics in peacetime and wartime: the case for a better understanding,” 95 IRRC No. 889 (2013) 195–96. According to that author, “The ethical rule is clear and simple. Care should be offered based upon need; the person most in need is treated first. This is the basis of triage in both wartime and peacetime.” Id. at p. 196.
27. Article 63(1)(a) GC IV (“Subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power: (a) recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able to pursue their activities in accordance with Red Cross principles, as defined by the International Red Cross Conferences.
Other relief societies shall be permitted to continue their humanitarian activities under similar conditions […].”) [italics added].
28. For a critical view of the principles from within the humanitarian community, see, e.g., Rony Brauman, “Médecins Sans Frontières and the ICRC: matters of principle,” 94 IRRC No. 888 (2012).
U.N. General Assembly resolution concerning attacks on health workers is a recent example. The General Assembly reaffirmed those four humanitarian principles as well as the need for all actors engaged in providing humanitarian assistance in armed conflicts to promote and fully respect them.29
Yet despite states’ support for principled humanitarian action, the rationale underlying certain humanitarian principles—especially neutrality—runs into the with-us-or-against-us logic underpinning many anti-terrorism agendas. While neutrality means not taking sides, those counterterrorism approaches require it.
As a legal expert at the ICRC, Jean Pictet was an architect of the Geneva Conventions and their Protocols. In 1979, he foregrounded this dilemma from a classical humanitarian perspective:
If anyone presents the Red Cross with the well known and destructive dilemma embodied in the phrase, “whoever is not with me is against me”, may it always reply, “I am with all those who suffer, and that is sufficient”.30
Today, Pictet’s argument must confront counterterrorism policies head-on.
Indeed, for principled humanitarian organizations like the ICRC, counterterrorism framings present an existential threat. Amid swelling concern, in 2011, the ICRC called for states to exclude from anti-terrorism legislations activities
29. U.N. General Assembly, “Resolution adopted by the General Assembly on 11 December 2014: Global health and foreign policy,” U.N. doc. A/RES/69/132, January 9, 2015, preamble (similarly reaffirming the need for all actors engaging in the provision of humanitarian assistance in situations of humanitarian emergencies and natural disasters, as well, to promote and fully respect these four principles); see also id. at paras. 6 and 9 (calling for member states to respect the integrity of medical personnel in carrying out their duties in line with their codes of ethics; and stressing the obligation, in accordance with IHL and applicable national laws and regulations, to respect and protect medical personnel exclusively engaged in medical duties). In a related vein, in August 2011, the ICRC launched the Health Care in Danger Project to “develop, promote and implement measures safeguarding health care delivery.” ICRC, Annual Report 2013, Volume 1, May 2014, p. 61. States parties to the Geneva Conventions expressed their support for the goals of the project. ICRC, 31st International Conference of the Red Cross and Red Crescent Movement, Geneva, Switzerland, November 28–December 1, 2011, Resolution 5.
30. Jean Pictet, The Fundamental Principles of the Red Cross Proclaimed by the Twentieth International Conference of the Red Cross, Vienna, 1965: Commentary (1979), available at https://www.icrc.org/eng/resources/documents/misc/
fundamental-principles-commentary-010179.htm [https://perma.cc/4XCU-UJD4].
that are exclusively humanitarian and impartial in character and are conducted without adverse distinction.31 Otherwise, prohibitions of medical services to persons rendered hors de combat as support to terrorism would “call into question the very idea behind the creation of the ICRC—and subsequently of National Red Cross and Red Crescent Societies—over 150 years ago.”32
Outline
The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate IHL protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly.
In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge.
These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats.
The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet, as noted above, so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for
31. International Committee of the Red Cross, International Humanitarian Law and the challenges of contemporary armed conflicts, doc. 31IC/11/5.1.2, October 2011, Geneva, p. 53 [hereinafter, “ICRC, Challenges Report”].
32. ICRC, Challenges Report, supra note 31, at p. 53. The ICRC and National Red Cross and Red Crescent Societies benefit from certain particular protections under IHL beyond those for unassigned international humanitarian organizations or independent caregivers. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Definition of caregivers, transports, and units” and “Display of the distinctive emblems.”
designating those who facilitate such care as terrorists themselves.
The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness—or, at least, the indeterminateness and variability—of the normative framework.
At first glimpse, the legal protections for medical care to an ISIS fighter or a member of the Shining Path may seem relatively unimportant. But those safeguards represent a fundamental thread that ties the larger tapestry of IHL protections together. Pulling that thread risks unraveling the broader wartime international law protective regime—a regime that aims, however imperfectly to date, to cover not only terrorists but all wounded people in armed conflict: military and civilian, terrorist and non-terrorist alike.
Following this Introduction, in section 2 we summarize key relevant concepts in the laws of armed conflict and state responses to terrorism. We put forward working definitions of terrorist and terrorism for purposes of the report. We also outline contemporary definitions of armed conflict found in international law. And we briefly discuss the distinctions and overlaps between IHL and the frameworks in which states respond to terrorism, including the potential statuses of terrorists under IHL.
In section 3, we trace the long history of the development of international legal protections for impartial medical assistance in armed conflict. We show how—as a corollary to the care for wounded combatants, prisoners of war, and civilians—
states agreed to IHL treaties requiring respect and protection for those who provide
wartime medical care. Yet we note a problem in the normative framework: not all IHL medical-care measures are universally applicable to all armed conflicts. We trace the oldest fault line: the extent to which the legal regime protects medical care in the two types of armed conflict recognized under IHL—international armed conflicts (IACs) and non-international armed conflicts (NIACs). Such protections in IAC treaties have been regulated for over a century and a half. Yet for a long time there were no international legal protections for medical care in internal conflicts or civil wars. In 1949, Common Article 3 introduced basic provisions, but those did not come close to the extensive medical-care protections found in IAC treaties. As states attempted to create a more uniform and comprehensive regime in the 1970s, the resulting treaties flattened many of those distinctions for contracting states. But because numerous states did not become party to the new treaties, those efforts simultaneously exacerbated the fragmentation between states and across conflicts.
The result is that the scope of IHL protections for medical care may be vastly different between states and across types of armed conflict—or even for the same state between types of NIACs.
Next we discuss how, in principle, customary international law—those rules of international law deriving from and reflecting a general practice accepted as law33— could fill those gaps in the lex scripta: between states party and those not party to the Additional Protocols; between IACs and NIACs more generally; and between different types of NIACs. With respect to some elements of wartime medical care, the most extensive evidence accumulated to date (the ICRC’s pioneering Customary IHL Study) does not, in our view, meet the necessary criteria for customary law: It does not reflect sufficiently uniform, extensive, and representative state practice; nor does it reflect dense enough evidence of such practice being undertaken due to a
33. Michael Wood, Special Rapporteur, “Second report on identification of customary international law,” International Law Commission, 66th Session, U.N. doc. A/CN.4/672, May 22, 2014, p. 7, para. 20; see generally id. at pp. 7–14, paras.
21–30 (discussing state practice, decisions of international courts and tribunals, and literature in arguing in favor of this “two-element” approach).
legal conviction. Meanwhile, some important facets of the contemporary practice of wartime medical care remain lightly regulated or even unaddressed in IHL. Finally, we highlight complementary developments in the related fields of IHRL and ICL.
But we note that those developments in IHRL and ICL, while buttressing protections already recognized in IHL, do not fully resolve the fragmentation or fill the gaps in the protections for medical care.
In section 4, we spotlight the two major sets of IHL protections for impartial wartime medical care concerning terrorists. Since IHL does not contemplate the status of terrorist as such, we explain what types of protections exist across the various statuses terrorists may have under IHL (having sketched those statuses in section 2).
We first outline the entitlement to and the protection of medical care for the wounded and sick hors de combat and for wounded and sick civilians. These protections cut across such categories as the search for, collection, and evacuation of the wounded; the provision of all feasible medical care to them impartially; respecting and protecting the wounded, including against attacks; protecting them against ill-treatment and pillage; and treating them humanely. This set of protections also encompasses prohibitions on certain medical, scientific, and biological experiments and related procedures. We include protections for civilians in our analysis for two reasons. First, certain terrorists may have civilian status under IHL. And second, attempts to curtail care specifically for terrorists may significantly diminish civilians’
access to medical attention more generally.
We then sketch the second set of protections: the most salient aspects of the corollary protections for medical caregivers, transports, units, and supplies. This category includes protections ranging from the respect and protection due to medical personnel, transports, and units—including against direct attack—as well as protections for certain medical personnel in IACs who, upon capture, may be retained but not detained. It also encompasses, under some treaties, prohibitions on punishing medical caregivers. Lastly, this subsection discusses the IHL provisions
establishing the terms of use of the protective emblems of the Geneva Conventions.
Throughout, we note areas of overlap, but also areas of divergence, between various sets of IHL treaties and rules put forward in the Customary IHL Study. The resulting portrait is of a somewhat fragmented, intricate, fact-dependent normative regime—one marked by many areas of substantive agreement but also important protective gaps.
In section 5, we discuss how states are attempting to prevent, disrupt, and punish terrorist threats. We briefly note that, despite the proliferation of international terrorism treaties, states have yet to agree on a general anti-terrorism convention. We also quickly outline developments concerning customary international law. We then focus in more depth on the relatively recent ascendance of the globally oriented anti-terrorism regime emanating from the U.N. Security Council. Through these Council resolutions, states are required to impose sanctions against hundreds of individuals and dozens of groups as well as to suppress and prevent terrorism more generally. In imposing these obligations, as noted above, the Security Council has not fully exempted impartial wartime medical care, even in circumstances that would render such care protected under IHL. By potentially inviting states to ignore IHL obligations regarding medical care for terrorists, the Council’s approach may indirectly jeopardize access to medical care for wounded civilians in conflict areas.
Finally, we discuss the domestic jurisprudence of three states—Colombia, Peru, and the United States of America—where legal proceedings concerning wartime medical care to terrorists have been instituted.
In the Conclusion, we emphasize that states and international organizations should more consciously and more deliberately weigh the costs and benefits of weakening medical-care protections through their counterterrorism frameworks.
Finally, in the Compendium, we provide verbatim excerpts of medical-care
protections in the lex scripta of IHL.
A few caveats: The research was conducted primarily in English and thus generally does not comprehensively take into account secondary sources in other languages.34 While it reflects research into numerous jurisdictions spanning every continent (except Antarctica), our analysis is nonetheless non-comprehensive in terms of its survey of domestic counterterrorism legislations. We do not focus on attacks on medical caregivers. Nor do we focus on the use of health-care professionals in the abusive treatment of detained (alleged) terrorists,35 or on the role of military medical service members in providing terrorists with medical care.36 We limit our study to those, outside of the military medical service, generally dedicated to medical care in armed conflict. We thus omit caregivers who actively participate in hostilities or who (also) knowingly and intentionally provide non-medical forms of assistance to fighters. Nor does our analysis address protections for health-care professionals in situations not arising to an armed conflict under international law. Due to the relative rarity of warfare at sea involving terrorists, we generally do not address protections for shipwrecked wounded and sick persons. Lastly, none of us is a physician (nor otherwise professionally medically trained). The report therefore does not reflect the insights of those who have faced the normative and operational dilemmas identified in this report.
One of our chief aims in this report is to provide key reference points for further exploration as well as an initial analytical framing of the main considerations. We also hope that this report will spark debate on how to safeguard impartial medical care for all wounded and sick persons in armed conflict.
34. PILAC Research Assistants provided some research support with respect to Arabic, Chinese, French, Russian, and Spanish materials. One of the report authors checked the translations of the only authentic (French) text of the pre-1949 IHL treaties discussed herein against his own translation of those texts.
35. See, e.g., the discussion and citations in Mehring, Medical Ethics in IHL, supra note 11, at pp. 49–62.
36. Concerning the so-called “dual loyalty” of members of the military medical service, who may face competing loyalties due to their dual positions—as members of the armed forces subject to command hierarchy and as health-care practitioners subject to professional ethics—see, e.g., id. at pp. 22–26.