Photo Credit: Army Medicine, “U.S. Soldiers transport patients,” Flickr, CC BY 2.0 license.

The global fight against terrorism has taken a turn that threatens to erode a foundational ethic of international humanitarian law (IHL): the protection of medical care for all wounded combatants, whether friend or foe. At the same time, aggressive state responses to terrorism illuminate how IHL medical-care protections, while extensive, are often fragmented and non-comprehensive. In short, contemporary counterterrorism policies contradict some of these IHL protections and expose the weakness of key others.

In 1864, states agreed to a pioneering IHL treaty on medical care. It required that the wounded and sick combatants of the warring states who are rendered hors de combat (out of the battle) be protected and cared for. Over time, those safeguards were extended to all wounded fighters hors de combat of all parties in all armed conflicts. Of course, protections for the wounded would be largely meaningless without access to medical personnel and supplies. So IHL also shields those engaged in medical care and the means they employ to do so. States thereby struck a balance—part practical, part moral—to keep medical care for the wounded and sick above the conflict.

None of these IHL protections is weakened for an enemy if she is defined as a terrorist. For instance, under IHL no wounded fighter may be denied medical care due to a terrorist designation.

Yet as part of their response to terrorist threats, some states attack medical caregivers or abuse, withhold, prevent, or punish medical care. Attacks directed at health-care facilities in terrorist-controlled areas and the use of health-care professionals in the abusive treatment of alleged terrorists have been widely condemned. So, too, have denials of medicine to populations under the control of terrorist groups.

Our inquiry focuses on another element: how, often with the legal force and political backing of the United Nations Security Council, states penalize—during wartime (as well as peacetime)—diverse forms of support, sometimes including medical care, to terrorist organizations. These responses to terrorism reject two of the premises underlying the IHL protections for medical care.

First, counterterrorism policies recast medical care as a form of illegitimate support to the enemy. In comparison, according to the International Committee of the Red Cross (ICRC), the “dominant idea behind” the First Geneva Convention of 1949 is that “medical treatment, even where given to enemies, is always legitimate, and does not constitute a hostile act. Medical personnel are placed above the conflict.” Amid swelling concern, in 2011, the ICRC called for states to exclude from anti-terrorism legislations activities that are exclusively humanitarian and impartial in character and that are conducted without adverse distinction. 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.”

Second, counterterrorism policies reject the corollary proposition that a terrorist organization may assign a medical corps to work under its authority. Thus, domestic anti-terrorism legislations often prohibit medical caregivers from acting under the direction and control of terrorist groups. In comparison, the IHL system of protection of medical care hinges partly on mutual trust between the warring parties. The display of the Geneva Conventions’ distinctive emblems is perhaps the most visible manifestation of that trust. Displaying those emblems notifies the opposing side that the personnel and objects bearing them claim to benefit from special protections. IHL requires the warring parties—including organized armed groups—to safeguard that trust by overseeing and controlling their own medical personnel, transports, and units.

As we demonstrate, however, IHL’s own commitment to these premises remains incomplete and creates fault lines in the protective landscape. State responses to terrorism exacerbate these fault lines. And counterterrorism policies threaten to further weaken these ethical norms.

These are not mere abstract concerns. Across recent and current armed conflicts, state responses to terrorism have cast a spotlight on the scope and implementation of IHL protections for medical care:

During its internal armed conflict, Peru prosecuted physicians in part for providing medical assistance to members of Sendero Luminoso (the Shining Path);
Colombia penalized a medical professional who managed the longer-term specialized care of members of the Fuerzas Armadas Revolucionarias de Colombia (the Revolutionary Armed Forces of Colombia);
Syria detained physicians who gave medical care to wounded opposition fighters designated as terrorists, and it attacked health-care facilities in terrorist-controlled areas;
The United States prosecuted an American physician for agreeing to be an “on call” doctor for wounded members of al-Qaeda the next time that doctor travelled to Saudi Arabia; it penalized a different American for seeking to travel to Iraq and Syria to provide medical care to wounded members of the Islamic State of Iraq and al-Sham (ISIS) and in hospitals in ISIS-held territory; and it prosecuted a Canadian in part for providing English lessons in an al-Qaeda clinic in Afghanistan to assist nurses in reading medicine labels; and
Australia and the United Kingdom are evaluating whether to penalize, upon their return, medics who have reportedly provided medical care in ISIS-held territory—including, potentially, to members of ISIS.

Over the last quarter-century, terrorists and other non-state actors have controlled access to civilian populations in a variety of armed conflicts. Consider Afghanistan, Chechnya, Colombia, Gaza, Iraq, Lebanon, Mali, Nepal, Nigeria, Pakistan, Peru, the Philippines, Somalia, Syria, and Yemen (among others). The number and effects of terrorist attacks are reportedly increasing around the world. And states are designating more organized armed groups as terrorists. We therefore expect that these questions will become more salient and more urgent in a growing number of theaters.

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 background, 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.

While those responses to terrorism highlight fault lines in the IHL landscape of medical-care measures, 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.

Part of the problem in the normative framework is that not all IHL medical-care measures are universally applicable to all armed conflicts. The oldest fault line is the disparate 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). Traditionally, IHL imposed many more medical-care obligations in IACs than in NIACs. In the 1970s, states attempted to create a more uniform and comprehensive regime. Those efforts met success insofar as states opted into the resulting treaties flattening many of those distinctions. But because numerous states did not contract into the new treaties, those efforts simultaneously exacerbated the fragmentation between states and across conflicts. Over all, selective participation in the legal regime has led to significant variance in states’ medical-care obligations.

Meanwhile, an array of medical-care rules has crystallized into customary IHL (which binds all states, regardless of whether the state is a party to a relevant treaty). But a number of important customary IHL medical-care rules identified by the ICRC in a pioneering study lack, in our view, sufficient evidence of states’ buy-in. Nor do developments in international human rights law and international criminal law fully resolve the fragmentation or fill the gaps in the IHL protections for medical care.

Furthermore, even the most extensive IAC and NIAC treaties do not exhaustively protect all facets of medical care. To date, for instance, under IHL states have not regulated the capture and retention of medical personnel in NIAC. Nor have they addressed independent caregivers seeking to travel to conflict areas to treat the wounded and sick in terrorist-controlled territory where civilian needs are often greatest.

Against the backdrop of this fragmented protective landscape, states are taking more aggressive approaches to preventing, intercepting, and punishing terrorism. 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 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 designating those who facilitate such care as terrorists themselves.

The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail 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 attract little sympathy. 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.

We first introduce some key concepts and sketch the relationship between the laws of armed conflict and state responses to terrorism. Then we trace the long history of the development of international legal protections for impartial medical assistance in armed conflict. We next illuminate the two major sets of IHL protections for impartial wartime medical care concerning terrorists: first, the entitlement to and the protection of medical care for the wounded and sick; and second, the most salient aspects of the corollary protections for medical caregivers, transports, units, and supplies.

We then discuss—alongside a broader analysis of the relationship between the laws of armed conflict and responses to terrorism—how states are attempting to prevent, disrupt, and punish terrorist threats. We focus on the relatively recent ascendance of the globally oriented anti-terrorism regime emanating from the U.N. Security Council. We also highlight 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.

We conclude by emphasizing that 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.