The War on Terror is a war fought today by multiple states from the US to Russia and from Syria to Saudi Arabia. Within these wars, the hospital is part of the battlefield. This has been enabled through the criminalisation of entire communities and by extension their healthcare providers. Humanitarian aid has faded into an enemy landscape.

While medical facilities have always been unacceptably targeted in times of war, the nature of war is constantly evolving, and so too is the way in which the provision of healthcare interacts with military objectives. In the past year, MSF hospitals and supported facilities have been attacked in Afghanistan, Syria and Yemen. In each of these countries, international military coalitions are supporting the state in a battle against a criminalised or terrorist-designated enemy. The majority of the MSF hospitals and supported facilities that have been hit have been operating in areas controlled by these ‘enemy’ groups.

This is not because MSF or other health care providers support ‘terrorism’, but rather because at the core of humanitarianism and medical ethics is the principle of impartiality.  Medical workers should never be expected to provide treatment based on the determination of a patients political, military, religious or other affiliation. In conflicts where everyone is someone else’s terrorist, the provision of medical treatment based on need alone mitigates against the medical act becoming a dangerous extension of political and military interests.

For an organisation like MSF aiming to provide impartial healthcare in count-terrorism conflicts, stepping over the frontline of what is considered by the state – and often its international military backers – as acceptable humanitarian assistance, carries potentially deadly consequences. The targeting of healthcare has occurred through both direct attacks on health facilities and health workers, as well as through indirect and sustained means including siege and sanctions.[1] What we are also seeing in today’s War on Terror environment is the targeting of healthcare that is often justified as a ‘mistake’ or as an unfortunate consequence of a war against an enemy that is allegedly indistinguishable from its civilian surroundings.

Within these environments, defending the ability of health workers to treat those termed as ‘terrorists’ is about defending medical ethics from being eroded by those who seek to subjugate all acts of humanity to the political and military interests of the most powerful. Indeed, as the War on Terrorism expands, being able to provide treatment to those who have been designated as ‘terrorists’ may well be the defining struggle of contemporary medical humanitarianism.

In today’s counter-terrorism environments, how have the limits on what is considered to be acceptable humanitarian action been set? How can these limits be challenged and at what cost?

State Support or Benefitting the Enemy?

Humanitarian aid is often aligned to the political and military interests of major donor states. This sets the tone for what kind of aid provision is considered to be acceptable. Afghanistan offers a good case in point.

The beginning phases of the war in Afghanistan were characterised by a highly mobile and fluid insurgency up against a large number of international boots on the ground. The international forces were aiming to build the legitimacy of the state in part through the provision of social services in the form of humanitarian assistance. However, the current phase of the war in Afghanistan is characterised by highly mobile international and Afghan Special Forces up against a local insurgency that is gaining more territory on the ground. In this context, humanitarian aid is seen as an unacceptable form of benefit to the enemy.

This trend is not unique to Afghanistan. ISIS, Boko Haram, the Pakistani Taliban, the Al Shabaab and other groups designated by the US and its allies as ‘terrorist organisations’ are controlling varying degrees of territory around the world and are being battled through airstrikes, drone strikes and Special Forces operations.

In these contexts, humanitarian aid is coming up against a growing counterterrorism legal infrastructure that seeks to criminalise a broad notion of ‘material support to terrorism’. These legal frameworks enforce the limits to what is considered acceptable forms of humanitarian assistance. These limits are often at odds with the impartial provision of assistance based on needs alone.

What does this look like on the ground? In Afghanistan as well as in other contexts, hospitals are raided and patients are arrested under a law enforcement justification. This is often done without a warrant of arrest and without following due process. In times of conflict, such as in Afghanistan, making the hospital an extension of a law enforcement operation by arresting wounded combatants that are designated as ‘criminals’ under domestic law erodes the neutrality of medical facilities.

In Yemen, the Saudi government sent letters to aid agencies asking them to leave areas under Houthi control in order to be safe from the coalition bombing campaign.

However, the limits to acceptable humanitarian action are not exclusively set by the interests of western donors. In 2012, the Syrian government passed an anti-terrorist law that made illegal the provision of humanitarian assistance — including medical care — to areas held by or working with the opposition, forcing most health structures to go underground. While western donors sought to find ways of channeling assistance to these areas, the Syrian governments assertion of sovereignty in restricting aid delivery was what set the limits on the provision of humanitarian assistance.

Ultimately, when humanitarian aid attempts to operate in areas controlled by the enemy – or attempts to provide assistance to those designated as part of the enemy – it is vulnerable to being targeted or subject to policy level access constraints. And when the enemy crosses a frontline to seek treatment, they are vulnerable to being arrested.

These are not necessarily new dilemmas in war zones. What is new is how the War on Terror has created a legal and moral framework for justifying such a conduct of warfare. It should come as no surprise that an increasing number of states are fighting domestic wars under the War on Terror banner.

The legal and moral justifications enabled by the War on Terror narrative are combined with an aid system that is either entrenched in playing the role of an auxiliary to the major donors political and military interests or subject to the assertion of sovereignty from those states resisting those interests. Stepping over the line set by either of these dynamics carries potentially deadly consequences.

‘Mistakes’ in the Making

Once health workers have crossed the line of what is considered an acceptable form of humanitarian assistance, there are numerous ways in which hospitals come under attack.

Some of the most recent direct attacks on health-care have been carried out by states that are indiscriminately bombing entire neighbourhoods and communities in their counter-terrorism operations. In Syria, hospitals have not only been directly targeted but also hit along with schools, market places and bakeries. Other attacks, such as in Gaza, have been conducted by those who justify their targeting of hospitals within the framework of an ever-expanding legal grey zone that sees hospitals as potential human shields for ‘terrorists’. Another approach that we can see, in a context such as Afghanistan, is in a subtle combination of both patterns: a willingness to use often disproportionate force combined with a willingness to blur the distinction between combatants and civilians, which results in hospitals being ‘mistakenly’ struck.

The bombing of the MSF hospital in Kunduz – which resulted in the biggest loss of life for the organization in a single airstrike – is an illustrative example of broader challenges facing medical humanitarianism in counter-terrorism environments.

MSF was attacked by US Special Forces, operating in support of the state, in a context where its medical facility was within an area controlled by an enemy — some of which are designated as ‘terrorists’. The American reaction was that the bombing was a mistake, simultaneously allowing them to escape any meaningful legal consequences and conveniently removing Afghan forces from the picture. In the investigation into the bombing, the Ground Forces Commander explains how he could not have imagined any hospital could still be functioning in the zones controlled by the Taliban. Their own investigation also reveals how the US forces considered that most civilians had fled the town and that anyone who remained was thought to be hostile and threatening.

In a context where entire populations are designated as hostile, the killing of ‘civilians’ or the bombing of protected facilities is problematically justified as a mistake post-facto. This is rooted in a ‘with us or against’ approach to warfare that turns entire communities into acceptable targets before a strike, only for mistaken targets to be determined and apologised for after the attack. A policy of ‘shoot first, ask questions later’. The supposed lack of ‘intentionality’ to target civilians becomes a key feature of the mistake narrative. If civilians were not intentionally targeted, they were ‘mistakenly struck’ – as the US stated in their investigation of the Kunduz bombing. The lack of intentionality is used by the military to avoid having to respond to violations of the laws of war with anything more than minor administrative reprimands.

Whether intentionally bombed or mistakenly struck, humanitarian aid in counter-terrorism environments risks coming under attack when it operates beyond the limits to aid delivery that are set by the state and their international backers, and where the distinction between civilian and combatant has been eroded.

Where to From Here?

What does this mean for an organisation like MSF? The first scenario is one where the organisation is able to obtain a negotiated agreement to operate with full impartiality in conflicts characterised by counter-terrorism operations. This would include the ability to cross frontlines if they exist, or for patients to reach its facilities regardless of whether they are considered a terrorist or criminal. This would entail the unlikely exemption of hospitals from the ‘with us or against us’ logic of the War on Terror.

The second scenario is that MSF does not reach a negotiated agreement with various parties to the conflict but decides, instead, to operate with full impartiality regardless. This would mean accepting more risks for MSF and its patients.

The third scenario is that MSF does not reach a negotiated agreement and decides to compromise on its impartiality by adapting its projects so that they do not treat enemy combatants, opponents or armed opposition groups in counter-terrorism environments. This would entail, for example, avoiding surgical or trauma projects.

The final scenario is that MSF does not reach a negotiated agreement and does not compromise, while being unwilling to accept a higher level of risk. This would result in it deciding not to work in and pulling out of such environments.

If MSF does not resist the most recent forms in which health care comes under attack, it will be accepting a reality in which health care providers serve at the benefit of the most powerful due to the limitations set on their ability to operate outside of these interests. Resigning to the historic reality that health care has always come under attack or ignoring the specificities of the War on Terror environment will mean that MSF will fail to challenge the very real obstacles to healthcare delivery in contemporary conflict. Failing to resist these trends will mean that it will be giving in to being blown in the winds of prevailing political interests.  The very act of impartial health care delivery is at stake.

By Jonathan Whittall. Photo by Andrew Quilty © MSF, 2015.

[1] In Syria, for example, surgical supplies are systematically removed from aid convoys that sporadically enter areas under military siege. In Iraq, the international sanctions imposed on the country during the 90’s resulted in the decimation of the health system.