Medical care for wounded combatants is compromised by counterterrorism laws and policies, according to a new report from the Harvard Law School Program on International Law and Armed Conflict, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism.
Although there are extensive medical-care protections in place, they are fragmented and non-comprehensive. At the same time, counterterrorism policies contradict some of these International Humanitarian Law (IHL) protections and “expose the weakness of key others,” the report found.
IHL requires that wounded and sick fighters of all parties be protected and cared for. It also protects those delivering medical care and the means to do so. In addition, “under IHL no wounded fighter may be denied medical care due to a terrorist designation,” the report explains.
The report examines “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.” The report found that these counterterrorism policies ignore two basic tenets of IHL: the notion that medical treatment is always legitimate and does not constitute a hostile act, and the fact that IHL requires the warring parties—including organized armed groups—to oversee their own medical units and personnel. Instead, the report notes, states’ approaches to terrorism recast medical care as a form of illegitimate support to the enemy and reject the notion that a terrorist organization may assign a medical corps to work under its authority.
There are numerous examples of states interfering with medical care during armed conflict. Notably, 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. The U.S. also penalized a different American for seeking to travel to Iraq and Syria to provide medical care to wounded members of ISIS and in hospitals in ISIS-held territory and prosecuted a Canadian in part for providing English lessons in an al-Qaeda clinic in Afghanistan to assist nurses in reading medicine labels.
Aggressive counterterrorism policies are not entirely to blame, however. Not all IHL medical care measures are universally applicable to all armed conflicts, selective participation in the legal regime has led to significant variance in states’ medical-care obligations, an array of medical-care rules has crystallized into customary IHL, and treaties do not exhaustively protect all facets of medical care.
Parallel to these shortcomings is the broad brush of the U.N. Security Council, which has required member states to step up their counterterrorism efforts. “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,” according to the report. Instead, 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 report notes that while protecting a physicial who provides medical care to al-Queda may not garner much support, it is part of the fabric of IHL. “Pulling that thread risks unraveling the broader wartime international law protective regime,” the report states.
A copy of the full report is available here.