Photo credit: U.S. Naval Forces Central Command/U.S. Fifth Fleet, “USS NIMITZ (CVN 68)_130718-N-AZ866-394,” Flickr, CC BY 2.0.

A “decisive verdict, in general and imperative terms […]” on the importance of protecting impartial medical care to enemy nationals.^[1] Such is how the ICRC characterized the prohibition, in the First Geneva Convention of 1949, on mistreating or convicting anyone who nursed an enemy combatant—irrespective of that fighter’s nationality or conduct—in an IAC.

Well over six decades later, a similarly decisive verdict in favor of impartial medical care for all of the wounded and sick—including terrorists—in all armed conflicts has not been issued. That more expansive ruling would perforce need to include sufficient protections against punishing anyone who provides ethically sound wartime medical care to enemy fighters and civilians—including to terrorists. Such a verdict may not be forthcoming any time soon. So long as counterterrorism policies reject the fundamental premises on which the IHL protections for the wounded and sick are based, a clash of norms will persist. And, more broadly, irrespective of terrorism-related concerns, IHL protections for medical care could be strengthened.

Anti-terrorism framings continue to powerfully influence domestic legal regimes, international debates, and global culture. A worldwide consensus among states seems to have emerged on the importance of addressing the threat of terrorism. And, of course, states have a duty to protect their populations—in line with international legal obligations and standards—from those threats.

Yet despite a general understanding of the need to fight terrorism, there is less agreement on how exactly to do it. States do not always see eye-to-eye, for instance, on who constitutes a terrorist or what constitutes an act of terrorism.^[2]

Of course, counterterrorism is not a monolithic advent of recent history. It has been resisted and revised by various actors within government and civil society. And despite the Security Council’s attempts at standardization, states have undertaken anti-terrorism measures with varying degrees of commitment and at different speeds.

Meanwhile, many states support—including through large financial contributions and often as a pillar of their foreign-policy platforms—principled humanitarian organizations. Indeed, states and civil society actors regularly praise many humanitarian NGOs that provide wartime medical care, such as the ICRC and Médecins Sans Frontières.

The overall fragmentation in legal protections for medical care in armed conflict is partly a reflection of the diversity of state approaches to balancing military necessity with considerations of humanity. At its core, IHL is an ambivalent normative system: it is often pulled in one direction by the former and in another direction by the latter. Protections for impartial wartime medical care represent one of this system’s basic humanitarian compromises.

Stepping back, it is not clear that, to date, in designing and implementing anti-terrorism frameworks, states have intentionally aimed to diminish the IHL protections for impartial wartime medical assistance. But it is also not clear that states have fully considered the potential effects that anti-terrorism frameworks may have on those IHL protections.

The rationales underpinning IHL protections for impartial wartime medical care seem difficult to square with many counterterrorism policies. If terrorists really are today’s “enemies of all mankind,” do states have good grounds for considering medical care to them yet another form of illegitimate support? And should states actually trust terrorist organized armed groups to control—and not to abuse—the claim of inviolability of medical personnel and objects amid the turmoil of war?

When the central challenges are cast in these terms, it may seem particularly naïve, or even dangerously misguided, to stress the importance of ensuring sufficient normative protections for everyone—even those who, like ISIS, reject the ethics on which IHL is founded.

In today’s armed conflicts, should impartial medical care be considered a form of illegitimate support to certain enemies—perhaps especially if those enemies are terrorists? And if, for the sake of argument, such medical care is illegitimate, are there alternative bases on which states should repose trust in those enemies to control medical personnel and objects?

Here, perhaps, some of the hard-earned lessons of history that instructed the drafters of the Geneva Conventions may also offer contemporary decision-makers guidance. In the wake of WWII, trust among states was at a nadir. Even as the United Nations was emerging, memories of battlefield atrocities and violations were all too fresh. Meanwhile, some of the architects of the war were in the dock, their abuses laid bare for the world to scrutinize.

Yet out of the ashes of WWII, states nonetheless came together to establish—as a norm of international law—that no one could be harassed or convicted for nursing the enemy wounded. This rule applied only with respect to IACs. But the humanitarian logic underlying it seems valid for all armed conflicts: that once out of the fight, all wounded and sick fighters (and all wounded and sick civilians) should be cared for, and no one should be penalized for giving that care. In short, medical care should be above the conflict.

Does that logic hold when it is applied to the diverse set of contemporary theatres of armed conflict involving terrorism? For those situations, states considering whether to reconceptualize medical care as a form of illegitimate support to terrorists would need to address three challenges.

The first relates to the relative position of the wounded and sick hors de combat of state parties versus those of terrorist organizations: is there a compelling reason why the former but not the latter should be entitled to receive impartial medical care? For its part, IHL pivots on recognizing the inherent humanity of all persons hors de combat in need of medical attention—irrespective of which side they fight on.

The second challenge is in the same vein but focuses on the civilian wounded and sick: with respect to the entitlement to receive medical treatment, is there a compelling reason to distinguish between such persons if they are in a territory controlled by a state versus those in a territory controlled by a terrorist group? This challenge is difficult to overcome for the same rationale as the first challenge: just as it does not distinguish between fighters hors de combat, the fundamental IHL principle of humanity does not distinguish between civilians based on whose control they are under.

The third challenge implicates situations where terrorist organized armed groups reject (or, at least, systematically fail to comply with) IHL: is there a compelling reason why the state opposing those groups should set aside its own obligation to uphold IHL medical-care protections? This challenge must overcome the general principle that the obligation to respect and ensure respect for IHL by and large does not depend on whether the adversary also respects and ensures respect for IHL.^[3]

Scanning the normative landscape, the result today is unsatisfactory. Prosecutions of physicians for supporting terrorists through medical care in armed conflicts likely constitute violations of at least some states’ IHL treaty obligations. But in other conflicts 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 spotlight the non-comprehensiveness—or, at least, the indeterminateness and the variability—of the normative framework.

The Security Council’s move to legislate global counterterrorism measures has occurred without due consideration—at least due public consideration—of the potential impact on the foundational ethic of IHL entailed in impartial medical care. Nor, in implementing those Council obligations and in devising their own additional anti-terrorism measures, have states sufficiently and publicly evaluated the potential consequences for that foundational ethic. Without duly considering what may be lost, these responses to terrorism risk unwittingly eroding a normative pillar of IHL.