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IHL & Counter-Terrorism: Tensions and Challenges for Medical Humanitarian Organizations

Dr. Françoise Bouchet-Saulnier, Legal Department Director and Senior Legal Advisor at Médecins Sans Frontières (MSF) spoke on 2 June 2016 regarding the respect of International Humanitarian Law (IHL) in counter-terrorism operations taking place in situations of armed conflict and the challenges faced by an independent and impartial medical humanitarian organization.

Your Excellencies, Ladies and Gentlemen,

Thank you very much for the opportunity to address this distinguished group today. I am honored to present to you Médecins Sans Frontières’ perspectives on the tensions between International Humanitarian Law and the anti-terrorism legal frameworks we are encountering globally today in the provision of medical care in conflict settings.

Introduction to MSF

MSF is a self-mandated, international, independent, humanitarian and medical organization. It acts on the basis of its charter to deliver emergency aid to people affected by armed conflict, epidemics, natural disasters and exclusion from healthcare. Its humanitarian action is guided by medical ethics and the fundamental operational principles of international humanitarian law (IHL) with regard to medical care: humanity, neutrality, impartiality and independence.

More than half of MSF’s projects worldwide take place either in situations of armed conflict, in which international humanitarian law is applicable, or in other situations of violence. MSF provides medical care through more than 130 projects located in areas of armed conflicts.

In 2015 alone, MSF staff in Afghanistan assisted in 55,800 births; in Yemen, MSF treated 11,700 patients for wounds inflicted by intentional physical violence, including war wounds; In Syria, MSF teams performed more than 350,000 outpatient consultations; in South Sudan, MSF treated 295,000 people suffering from malaria.

Over time, MSF has become one of the largest international humanitarian NGOs providing medical care to victims on all sides of a conflict, in both international and non-international armed conflicts (NIACs). This has made MSF a direct witness to the impact of counterterrorism in situations of armed conflict.

How MSF operates under IHL

MSF’s medical and humanitarian operations in warzones are rooted in the right to humanitarian initiatives laid down in IHL, including in Common Article 3 of the Geneva Conventions of 1949, which provides that “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.”

It is also based on implementing the IHL rights and protections regarding provision of impartial and neutral medical care to all wounded and sick in situations of armed conflict.

While implementing medical operations for victims of conflict, MSF translates IHL provisions into clear and simple operational principles, as laid out in a Memorandum of Understanding (MOU) negotiated by MSF with various parties to a conflict, including both governments and non-state armed groups.

These agreements take the form of a clear and simple articulation of the most fundamental humanitarian principles pertaining to the protection of the medical mission. For example, the principle of neutrality is spelled out as a strict “no weapons” policy inside healthcare facilities.  Hospitals must, after all, always be places of safety, not danger.

MSF’s ability to operate in conflict settings since the 1970s demonstrates that it is possible to maintain functioning hospitals in warzones, if basic principles of neutrality and impartiality of medical care are taken seriously. Indeed, if and when health care is perceived by any party to the conflict as not being neutral and impartial, it falls under threat.

However, as we have witnessed in contexts like Yemen, Afghanistan, Syria, and South Sudan, attacks and other forms of armed violence against healthcare personnel, facilities, and patients are on the rise.

When looking for an explanation regarding this rise in violence, we identify the tension between counterterrorism and IHL as an element of concern.

The tension between counterterrorism and IHL, and its translation in domestic law

As MSF has previously been able to operate in these contexts, we are now confronted with a likely catalyst for increasing attacks against medical facilities, personnel, and patients.  Counterterrorism regulations, and increasing counterterrorism operations in many conflict settings, weakens the core principles of IHL – specifically the neutrality of healthcare in armed conflict, and the protection of healthcare personnel, facilities and the wounded.   Counterterrorism operations would seem to operate independently of both the rule of law and the law of war.

Much attention has been paid to clarifying the legal framework of counterterrorism operations outside situations of armed conflict, including by this Committee. We wish to underline the challenges encountered with counterterrorism operations in situations of armed conflict, especially non-international armed conflicts (NIACs).   As it has happened in the past with the IHL detention framework being challenged by counterterrorism, we see today the IHL framework of medical care being put in danger.

It is indeed at the intersection of IHL and domestic criminal and counterterrorism laws that we are encountering the greatest difficulty in securing the neutrality and safety of the medical mission, and the protection of our staff and patients.  In NIACs, while IHL does not provide immunity to combatants from non-state armed groups it certainly maintains their right to assistance and medical care when they are no longer engaged in combat. Therefore, they fall under a “double legal regime,” which considers them as protected persons under IHL, and as criminals under domestic law. Their criminal status is elevated by counterterror legal regimes.  If the IHL framework is not clearly prioritized and maintained in situations of counterterrorism operations and armed conflict, both those seeking and those providing medical care inevitably becomes criminalized.

In addition to this problem with counterterrorism regulation, we also see that counterterrorism operations blur the necessary distinction between law enforcement and law of war activities, by authorizing the use of armed forces against suspected individuals outside usual due process and judicial guarantees, including inside neutral and protected medical facilities in contexts of conflict.

As we know, IHL develops the general framework regarding the protection of the wounded and sick, and healthcare facilities and personnel in situations of armed conflict. However, some fundamental provisions of IHL may get lost in the process of implementation into domestic law. In fact, counterterrorism operations in situations of armed conflict fall under a regime of “double regulation,” whose poor articulation leaves dangerous “grey areas” for military operations and even more grey areas for medical and humanitarian operations.

These grey areas of tension between IHL and counterterrorism result in unnecessary ambiguity in practice, whereby civilians or combatants outside of combat seeking treatment remain under threat of military operations of search, capture and attack, even while receiving treatment in neutral or protected medical facilities.

As witnessed by MSF in many settings, these tensions and the lack of proper translation and prioritization of fundamental IHL provisions at the domestic level have the following damaging ramifications:

  • Increasing limitations, restrictions and de facto criminalization of providing medical care to all wounded and sick under domestic law and counterterror legislation is a violation of IHL principles;
  • Restrictions on the right to treat all wounded and sick in civilian or humanitarian healthcare facilities, contradict the right to offer impartial medical care to all wounded and sick without discrimination under IHL;
  • Increasing “duty to report” on victims of violence to state authorities, according to domestic law, contradicts with the adherence to medical ethics and medical confidentiality under IHL;
  • Increasing application, under domestic laws, of sanctions on medical staff not adhering to state restrictions on provision of medical care, duty to report, etc., contradict the immunity afforded under IHL to medical personnel carrying out medical activities in accordance with medical ethics, no matter the circumstances;
  • The blurring of the lines between militarized law enforcement and law of war operations in situations of armed conflict, and counterterrorism, which contradicts with IHL protections of healthcare activities and facilities, and for medical personnel and patients; and
  • The increasing occurrence of such military operations inside healthcare facilities and against “suspected” wounded and sick, which are taking place without supporting legal documents such as valid judicial warrants, violates the neutral status of healthcare facilities.

It is important to understand that such actions are in direct contradiction with the spirit of IHL, and threaten the impartial and neutral nature of medical care to the wounded and sick in wartime. They directly threaten the neutral and protected status of healthcare facilities and personnel since they provide a military advantage to one party to a conflict, and can be interpreted as harmful to the enemy. Therefore, these military operations or militarized law enforcement operations inside hospitals open the way to more attacks and violence on healthcare facilities.

As a result, we see hospitals becoming part of the battlefield against terrorists or other suspected criminals in many situations of conflict.

It is clear that it is at this intersection of competing laws governing the response to terrorist threats, where we encounter a weakening of the protection of international humanitarian law, and a repeated threat against the medical mission.

This competition of law is aggravated by the “double helmet” worn by states, acting both as party to the conflict and as law enforcement. These dual duties within a states’ prerogative must be confronted and questioned in situations of armed conflict.

Conclusions and Recommendations

In the face of growing violent extremism globally, safe and secure access to medical care for victims of war is ever more vital. It is imperative that we stop and question the advantage obtained through militarized operations inside hospitals as it violates the principal of neutrality and threatens the means by which medical assistance can be delivered.

From its operational and historical perspective, MSF would like to reiterate that it is not possible to operate healthcare facilities in war zones under the threat of so called “lawful militarized security” or law enforcement operations inside hospitals against wounded and sick suspected of being criminals or terrorists.

Urgent guidance and decisions must be taken to assert the sanctity and neutrality of healthcare facilities and the rights of medical personnel to treat all wounded and sick impartially in situations of armed conflict. This must be applied to all counterterrorism legislative regimes and against all types of military operations, including counterterrorism operations in the context of non-international armed conflicts, in which states act both as guardian of law and order under domestic law, and as party to the conflict under IHL.

This Committee has an unprecedented opportunity to address the blurring of competing and incomplete laws and guidelines that increase threats against the medical mission globally. There remains much to be done to ensure that domestic law regulating counterterrorist operations do not jeopardize fundamental IHL principles that have been proven useful until now.  Awareness of the role of this Committee is an important first step.

I would like to leave you with a few recommendations for your consideration:

  • To maintain the foundational principles of IHL that protect impartial wartime medical care, the committee should encourage UN Member States to adopt the suggestion made by the International Committee of the Red Cross, stating that measures adopted by governments, whether internationally or nationally, aimed at criminally repressing acts of terrorism should be crafted so as to not impede humanitarian action;”
  • The Committee should go further, in regards to medical care, and issue specific guidance to ensure that the provision of impartial healthcare to all wounded and sick in situations of armed conflict is excluded from the scope of counterterrorism legislation as well as from any military interference. Notably the Committee should recommend that:
    • Counterterrorism legislation shall explicitly exclude medical activities from the scope of material support to terrorism;
    • Counterterrorism legislation entail no restriction on the right of healthcare personnel to provide impartial medical assistance to all wounded and sick whatever their presumed criminal status, in situations of armed conflict;
    • Counterterrorism regulations and domestic laws acknowledge the right and duties of healthcare personnel for providing medical care compatible with medical ethics to any wounded and sick, whatever the circumstance or criminal status of the persons benefiting from it and contain explicit provisions keeping healthcare personnel and humanitarian organizations immune from prosecution, sanction or punishment for the mere fact of doing so; and
    • Medical confidentiality and a patient’s best interest prevails in situations of armed conflict over any other domestic and counterterrorism regulations related to the duty to report to authorities on cases of violence-related injuries;
  • The Committee should also emphasize the fact that the respect of neutrality of healthcare facilities in situations of conflict should prevail and be prioritized over other counterterrorism imperatives. The Committee should reinforce that in situations of armed conflict, no counterterrorism or militarized law enforcement operations are allowed inside protected healthcare facilities; and
    The Committee should also reiterate that the presence of a suspected “high value target” affiliated with a terrorist organization that is wounded or sick and being treated in a hospital, does not warrant the loss of protection of a facility and cannot justify military operations inside or against a facility to arrest or target, capture or kill.

In Kunduz, Afghanistan, for the last 6 months, more that 1.5 million people have been deprived of emergency and lifesaving surgical care. In Syria, the restriction of medical care as a weapon of war by the authorities has not altered the course of the war. Rather, it is the flow of refugees and displaced persons that has increased in the face of restrictions made on impartial and neutral medical care in wartime. There must be other ways to fight terrorism than by depriving the wounded and sick, healthcare facilities and personnel of essential protection of IHL in contexts of armed conflict.

By Dr. Françoise Bouchet-Saulnier.  Photo by Brendan Bannon © Brendan Bannon, 2012.

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