[Photo credit: Army Medicine, Flickr]
Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum, “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” Legal Briefing, Harvard Law School Program on International Law and Armed Conflict, September 2015
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 international humanitarian law (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.
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.
We find that the global fight against terrorism has taken a turn that threatens to erode a foundational ethic of 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.
This PILAC initiative arose out of consultations with the Counterterrorism and Humanitarian Engagement Project’s Working Group — as well as the World Health Organization, Médecins Sans Frontières (Doctors Without Borders), the Norwegian Refugee Council, and the International Committee of the Red Cross.
—Timeline by Dustin A. Lewis, with assistance from Elizabeth Carthy, 2015. Made with Timeline.js.