Armed conflicts continue to cause civilian and military deaths and have grave consequences for human health, interfering greatly with people's ability to enjoy their rights to life and health. Among the direct and indirect effects of armed conflicts on public health that are the focus of this article are injuries resulting from hostilities, long-term physical disabilities and mental health problems, increasing rates of epidemic and endemic diseases, insufficient health care for mothers and children, substantial reductions of public health budgets, the departure of trained medical professionals, and the interruption of medical and food supplies. These effects are associated with a complete or partial breakdown of health systems and the destruction of essential infrastructure in armed conflicts.
In particular, the indirect and long-term adverse impact of armed conflicts on public health have often been underestimated and overlooked.Footnote 1 This is despite the fact that frequently rising death rates in armed conflicts are predominantly due to the conflict's indirect impacts on public health: the great majority of victims of war worldwide die from diseases (mainly acute respiratory infections, diarrhoeal diseases, maternal and neonatal morbidity, tuberculosis, and malaria) and malnutrition.Footnote 2
This contribution asks whether, and if so, how, the law applicable to non-international armed conflicts takes account of the direct and indirect health effects of armed conflicts and contributes to their mitigation. This is intrinsically linked to the question of the parallel application of international humanitarian law (IHL) and international human rights law (IHRL), in particular IHL and the right to health. The analysis focuses on the complementarity of IHL rules relating to the protection of the wounded and sick and medical personnel, units, and transports, and relevant aspects of the right to health as set out in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 3 It will be shown that, overall, IHL and the right to health complement each other well in setting out the obligations of states to mitigate the mentioned direct and indirect health consequences of armed conflicts. To this end, first the applicability of economic, social, and cultural (ESC) rights to situations of non-international armed conflict is briefly outlined, as well as their relationship to IHL. Second, the protection of the wounded and sick and the possible scope of health services to be provided in non-international armed conflicts under IHL and the right to health are explored in some detail. Third, the special protection that is given to medical personnel, facilities, and transports is examined. In the concluding remarks, the main findings on the complementarity between IHL and the right to health are summarised.
In articles of limited scope, choices have to be made between either focusing on certain aspects in detail or giving a general overview of the subject. This article has opted for the former. This is also the main reason why concessions concerning the scope of the analysis had to be made: first, the article focuses on the law applicable to non-international armed conflicts, leaving the law of international armed conflicts aside. This choice was made because the vast majority of armed conflicts are of a non-international character today,Footnote 4 and because it is this type of conflict in which IHL and IHRL have to interact most for the effective protections of affected individuals.Footnote 5 Second, this contribution mainly concentrates on states' obligations in non-international armed conflicts. The obligations of non-state armed groups and possibly international humanitarian organisations are only touched upon, since no sufficiently thorough research could be conducted into the actual practice of diverse non-state armed groups in regard to socio-economic issues (IHL and ESC rights), or into the opinion of states and international organisations on these matters and the approach adopted in national and international jurisprudence. Such research would be needed to draw persuasive conclusions on the scope of the IHL obligations of diverse non-state armed groups, and possibly their obligations by virtue of the right to health and other socio-economic rights.Footnote 6 Third, the question of whether accepting the parallel application of IHL and the right to health to armed conflict situations results in a right to human rights-based humanitarian assistance of the affected populations cannot be explored in all its details.
The applicability of ESC rights to armed conflict situations and their relationship to IHL
The parallel applicability of IHL and IHRL, including ESC rights, in times of armed conflict is widely accepted today.Footnote 7 Most prominently, this was pronounced by the International Court of Justice (ICJ) in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, where the ICJ referred directly to the applicability of the ICESCR and other international human rights treaties containing socio-economic rights to armed conflict situations.Footnote 8 In its 2012 fourth periodic report to the United Nations (UN) Human Rights Committee (HRC), even the United States signalled a departure from its previous position on the non-applicability of IHRL to armed conflict situations.Footnote 9 Together with Israel, the United States had on occasion denied the applicability of IHRL to conflict situations, in particular its extraterritorial applicability.Footnote 10
Questions can be asked about the scope of states' obligations under the ICESCR in times of armed conflict. In this context, it has to be noted that the ICESCR does not contain a derogation clause. A tendency can be observed that states, the UN Committee on Economic, Social and Cultural Rights (CESCR), and other international bodies nonetheless accept derogations from labour rightsFootnote 11 in times of armed conflicts and other emergencies that ‘threaten the life of the nation’.Footnote 12 If accepted, such derogations shall arguably conform to the derogation principles set out in Article 4 of the International Covenant on Civil and Political Rights (ICCPR).Footnote 13 The non-derogability of all other ESC rights, in particular of so-called survival rights (the rights to food and health), is substantiated primarily by the fact that it seems inherently unnecessary to derogate from these rights to protect or restore public order.Footnote 14
The non-derogability of most ESC rights in times of armed conflict does not, however, require states to do the impossible and to guarantee these rights in all their sometimes very detailed aspects to the same extent as in peacetime. The notion of progressive realisation in Article 2(1) of the ICESCR and the Covenant's general limitation clause (Article 4 of the ICESCR) offer sufficient flexibilities for states to adapt their implementation strategies for ESC rights in difficult situations of armed conflict. The requirements of Article 4 of the ICESCRFootnote 15 have to be followed in such possible adaptation processes, and have been understood in the literatureFootnote 16 as follows: first, states must show that limitations are necessary for the ‘purpose of promoting general welfare’ – or at least that their implementation preserves ‘general welfare’ to the greatest extent possible. Based, inter alia, on the travaux préparatoires of the ICESCR, general welfare primarily refers to the economic and social well-being of individuals and the community, and excludes notions of ‘public morals’, ‘public order’, and ‘national security’. Second, states must ensure that limitations are determined by national law that conforms to all their international human rights obligations and is sufficiently clear and publicly accessible. Third, the requirement that limitations must be acceptable in a democratic society calls upon states to legitimise any limitations of ESC rights through a participatory and transparent decision-making process. Fourth and most importantly, limitations should ‘be compatible with the nature of these [ESC] rights’. This can reasonably be interpreted to exclude limitations which infringe upon minimum core obligations/rights as defined by the CESCR in its respective General Comments and as concretised through national legislation.Footnote 17 National particularities, including the availability of resources, can be taken into account in domestic law. And lastly, limitations must respect the principle of proportionality. This requires states to show that the scope and severity of a limitation is proportionate to the aim it seeks to pursue (that is, the promotion of general welfare).Footnote 18
The parallel application of IHL and IHRL is often described as being regulated by the lex specialis maxim. There is, however, no agreement on the actual meaning of this maxim.Footnote 19 Nonetheless, as an operational tool, lex specialis can be useful to guide the simultaneous application of IHL and IHRL. This is most clearly set out in the International Law Commission's (ILC) study on Fragmentation of International Law,Footnote 20 which sums up the two main functions of the maxim. In its first function, lex specialis is applicable to conflicts of norms, where it promotes the setting aside of the more general rule to an extent that it is inconsistent with the more special rule. The second function of the lex specialis maxim comes into play when the two norms are consistent with each other, but when one rule is more detailed or tailored to the particular situation at hand. In this case, any tension between the rules is solved through interpretation, and the more specific rule is an application of the general rule. In practice, it will often be difficult to determine whether one rule is more special than another, whether there is indeed a direct conflict between the two, and thus whether the special rule sets aside the general rule or applies in addition to the general rule.Footnote 21 The ILC study also highlights that even in cases where the more special law sets aside the more general rule, the general rule remains in the background and ‘provide[s] interpretative direction’Footnote 22 to the special rule. Moreover, the exact function of the lex specialis maxim depends on the character of the two rules at hand, the specific situation to which those rules shall be applied, and any additional rule of treaty interpretation that might be taken into account in the parallel application of two norms.Footnote 23 From this, it is clear that the application of the lex specialis maxim to the relationship between IHL and IHRL is not a schematic exercise; it does not mean that IHL must always be given absolute preference in armed conflict situations, and that IHRL can simply be ignored.
For the context of this article, the lex specialis maxim seems to be limited to the second function mentioned above. With regard to the issues to be examined in this article – states' obligations under IHL and the right to health to mitigate the direct and indirect health consequences of armed conflicts – no direct conflicts arise between IHL and the right to health. As will be shown, they seem to complement each other well. Thus, the lex specialis maxim will rather promote a harmonious parallel application of both bodies of law, furthering the situation-dependent interpretation of relevant IHL rules in the light of the right to health and vice versa in situations of non-international armed conflict.Footnote 24
Another issue to be touched on before entering into the substantive discussion of states' obligations to mitigate the direct and indirect health consequences of non-international armed conflicts is the scope of non-state armed groups' obligations under IHL and, in particular, the ICESCR. It is not questioned that non-state armed groups have obligations under IHL (as long as they meet the organisational requirements provided for by IHL), but it remains unclear whether non-state armed groups are bound by IHRL, and if so, to what extent.Footnote 25 The possibility shall not be excluded that well-organised non-state armed groups can have (limited) obligations flowing from IHRL, in particular when they control territory or even establish a functioning administration.Footnote 26 It seems problematic, however, to demand that all types of non-state armed groups are obliged to implement, for example, the sometimes far-reaching obligations that states have under the right to health. It is questionable whether non-state armed groups regularly have the capacity to devise and implement a comprehensive public health policy and to build an accessible public health system, as states are required to do under their obligations flowing from the right to health. Rather, the current author assumes that non-state armed groups are primarily bound by IHL rules, complemented and reinforced by the ICESCR, that allow the smooth delivery of humanitarian assistance to individuals under their control. In other words, arguably non-state armed groups will primarily have obligations towards national and international humanitarian organisations that may take on the implementation of many obligations under IHL and the right to health that will be discussed below, when they themselves lack the capacity for implementation.Footnote 27 However, as mentioned above, the obligations of non-state armed groups are not the main focus of this article. Their obligations will possibly take the form of a ‘sliding scale’Footnote 28 of obligations, providing for non-state armed groups' increasing obligations according to their degree of organisation, the intensity of violence in which they are involved, and the extent to which they control territory.
With these general observations on the scope of states' obligations flowing from the ICESCR in times of armed conflict as well as their relationship to IHL in mind, we will now move to discuss the protection of the wounded and sick and the possible scope of health services to be provided to individuals affected by non-international armed conflicts under IHL and the right to health. First, the article explores who is covered by the protection offered by the right to health and by relevant IHL rules. Second, the question of the possible scope of health services, facilities, and goods that states are obliged to provide under these rules are discussed, addressing the direct and indirect health consequences of armed conflicts.
The protection of the wounded and sick and the possible scope of health services to be provided in non-international armed conflicts
Personal scope of application
Reflecting the realities of the 1859 Battle of Solferino, IHL applicable to international armed conflicts has historically focused on the protection of wounded and sick combatants.Footnote 29 Although the Fourth Geneva Convention (GC IV) already provided some protection to wounded and sick civilians in international armed conflicts, it is only with the adoption of the First Additional Protocol to the Geneva Conventions (AP I) in 1977 that wounded and sick civilians benefited from the full protection traditionally guaranteed to wounded and sick combatants.Footnote 30 Due to the absence of a combatant status in the law of non-international armed conflicts, protection offered to the ‘wounded and sick’ in Common Article 3 of the First to Fourth Geneva Conventions (GC I–IV) and the Second Additional Protocol to the Geneva Conventions (AP II) of 1977 applies to all persons ‘whether or not they have taken part in the armed conflict’.Footnote 31 Thus, treaty rules on the wounded and sick were more inclusive in non-international than in international armed conflicts already in 1949, when Common Article 3 of GC I–IV was adopted.Footnote 32
As is clear from Article 8(a) of AP I, the definition of ‘wounded and sick’ in IHL covers everyone who (a) requires medical care and (b) does not engage in any act of hostility:Footnote 33
‘Wounded’ and ‘sick’ mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility.Footnote 34
Though originally applicable to international armed conflicts only, this definition is usually resorted to for situations of non-international armed conflict as well.Footnote 35 It can also be assumed that it underlies rules 109–111 of the ICRC Study on Customary IHL (hereinafter ICRC Study), which do not give a customary definition of the ‘wounded and sick’.Footnote 36 The definition is not restricted to those conflict-affected individuals who are wounded and sick for reasons related to the armed conflict, but covers all persons in need of medical treatment: the ICRC Commentary on Article 8(a) of AP I observes that ‘this criterion – being in need of medical care – is the only valid one for determining whether a person is “wounded” or “sick” in the sense of the Protocol (insofar as the second condition [to refrain from any act of hostility] is fulfilled)’.Footnote 37 Article 8(a) of AP I even allows the inclusion not only of individuals who do not require immediate medical care in the sense of emergency medical treatment, but also of those who need other curative or rehabilitative treatment, for example because of chronic sickness or disability. The adjective ‘immediate’ does not qualify ‘medical assistance’ in the first sentence, and moreover, the definition refers to ‘physical and mental disorder or disability’. As the ICRC Commentary to Article 8(a) of AP I explains, the second sentence of this Article aims to cover those persons who are ‘neither wounded nor sick in the usual sense of these words’ but ‘whose condition may at any moment necessitate immediate medical care’,Footnote 38 and thus it includes the adjective ‘immediate’.
The right to the highest attainable standard of physical and mental health is held by ‘everyone’Footnote 39 under the jurisdiction of states that have ratified the ICESCR, including in times of armed conflict. Article 12(2)(d) of the ICESCR specifies that the right to health poses an obligation on the state to create the ‘conditions that assure to all medical service and medical attention in the event of sickness’Footnote 40 – the element of the right to health that is particularly relevant here. The health system and goods, services, and programmes that states should ensure under their minimum core and non-core obligations must be available, accessible, acceptable, and of good quality.Footnote 41
The right to access various elements of the health system made available through the implementation of the right to health is clearly not limited to those in need of emergency medical treatment because they have been injured in ongoing hostilities, but includes those in need of preventive, curative, and rehabilitative care. Yet it must be recalled that the scope of health care provided under the right to health in a particular situation can rarely meet the health needs of everyone because this scope depends on the availability of resources and the related definition of the national minimum core right to health.Footnote 42 The question of the likely material scope of the obligations flowing from Article 12 of the ICESCR, in particular the scope of the emerging international minimum core right to health in situations of non-international armed conflict, will be discussed next, together with relevant states' obligations under IHL.
Obligations to mitigate the direct health consequences of armed conflicts
IHL obligations and those flowing from the right to health aiming to alleviate the direct health consequences of armed conflicts can be divided into obligations to search for and collect those in need of medical care, and obligations describing the scope of medical attention and care that is to be provided to those suffering the direct health consequences of armed conflict.
Obligations to search for and collect the wounded and sick
Article 7(1) of AP II contains the general obligations toward the wounded and sick in IHL: it requires that the wounded and sick shall be ‘respected and protected’.Footnote 43 This entails that they are not made the subject of any attack, that they are not mistreated, and that their belongings are not taken away.Footnote 44 It also implies an obligation on the parties to the conflict to take more proactive measures to safeguard the protection of the wounded and sick against harmful acts by third parties, and their removal from the scene of combat as soon as possible.Footnote 45 Both obligations are confirmed in Article 8 of AP II, which specifies that the wounded and sick shall be protected against pillageFootnote 46 as well as searched for and collected. These obligations extend to non-state armed groups.Footnote 47
The obligation to ensure physical and economic access to minimum health-care facilities and services for everyone under the right to health includes an obligation not to unduly interfere with existing access, and thus reinforces the IHL obligations. As highlighted by the CESCR, this obligation entails that states refrain from ‘limiting the access to health services as a punitive measure, for instance during armed conflicts’.Footnote 48 The UN HRC considers that a similar obligation flows from the right to life under the ICCPR.Footnote 49
As specified in Article 8 of AP II, states' IHL obligations to search for and collect the wounded and sick imply that ‘whenever circumstances permit, and in particular after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked [in order] to ensure their adequate care’.Footnote 50 The phrase ‘whenever circumstances permit’ implies that the duty to search for and collect the wounded and sick extends beyond the duty to do so on the battlefield, in particular because in contemporary armed conflicts it is ‘difficult to determine where exactly the battlefield is in place and time’.Footnote 51 Moreover, it makes clear that there is a duty to search for the wounded and sick not only after each engagement, but also in other situations – for instance, when civilians have been injured by mines or unexploded ordnance outside an area of active combat.
Similarly to IHL, obligations flowing from the right to health require states to undertake more proactive measures to safeguard the health of those suffering direct health consequences of hostilities. As part of their obligation to ensure equal access to existing health facilities, goods, and services, in an armed conflict situation states should arguably pay priority attention to those particularly vulnerable persons who have been wounded in ongoing hostilities.Footnote 52 States are moreover obliged under the right to health to directly ensure access to health facilities when individuals are unable, for reasons beyond their control, to realise that element of the right to health themselves.Footnote 53 There is no reason why the measures that are to be taken to ensure these individuals' access to medical treatment required by their condition should differ from the mentioned obligations under IHL: obligations to search for and collect the wounded and sick, with all the implications described above.
This would also be strengthened by states' obligations under the right to life, a right closely connected to the right to health. The HRC has long observed that ICCPR Article 6(1) should not be interpreted narrowly and requires states to adopt ‘positive’ measures to safeguard lives, including ensuring access to medical assistance.Footnote 54 In addition, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate that law enforcement officials shall, ‘whenever the lawful use of force and firearms is unavoidable’, ensure ‘that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment’.Footnote 55
The jurisprudence of the European Court of Human Rights (ECtHR) shows that obligations under the right to life (Article 2) of the European Convention on Human Rights (ECHR) can equally reinforce and specify obligations under the right to health. The ECtHR has long found that Article 2(1) of the ECHR obliges states not only ‘to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within [their] jurisdiction’.Footnote 56 More concretely, in Cyprus v. Turkey, the ECtHR held that ECHR Article 2 may be violated ‘where it is shown that the authorities of a Contracting State put an individual's life at risk through the denial of health care which they have undertaken to make available to the population generally’.Footnote 57 In this case, the restrictions placed on the freedom of movement of Greek Cypriot and Maronite populations by the Turkish Republic of Northern Cyprus (TRNC) in northern Cyprus resulted in some delay in their access to health care, and hampered medical visits.Footnote 58 That this is equally valid for situations of non-international armed conflict is clear from another judgement, Albekov and Others v. Russia. In this judgement, the ECtHR found that Russia had violated its ‘positive’ obligations to take appropriate steps to safeguard the lives of victims who had died from landmine explosions in Chechnya.Footnote 59 The finding was based on the Russian authorities' ‘failure to endeavour to locate and deactivate the mines, to mark and seal off the mined area so as to prevent anybody from freely entering it, and to provide the villagers with comprehensive warnings concerning the mines laid in the vicinity of their village’.Footnote 60
The ECtHR did not mention, as a further violation of Russia's ‘positive’ obligations to safeguard lives, the repeated refusalFootnote 61 of the Russian military unit stationed close to the applicants' village to search for one villager who had been wounded by a landmine, but such a finding is conceivable. This would be the case in particular when aforementioned IHL obligations to search for and collect the wounded and sick as well as obligations under the right to health were taken into consideration.Footnote 62 In this specific case it was even known to the military that a wounded villager was in need of medical assistance, since residents of the village had explicitly approached the military unit with the request to search and collect the wounded villager. The villagers were afraid of triggering more landmine explosions when searching for him on their own without the help of sappers. Since the IHL duty to search and collect the wounded and sick usually rests with the governmental armed forces operating military and civilian medical services – including independent national Red Cross and Red Crescent Societies – the residents' appeal to the military unit stationed in the region should have been responded to.
Rule 109 of the ICRC Study includes an obligation to take all possible measures to evacuate the wounded and sick when circumstances permit,Footnote 63 an obligation closely related to the obligation to search for and collect the wounded and sick. It can be argued that this obligation also includes a duty to create the conditions in which searches and evacuations can be carried out successfully. The more detailed provisions applicable to international armed conflicts in GC I can, by analogy, give more specific indications as to what an obligation to evacuate the wounded and sick could entail: for example, GC I Article 15(2) suggests that parties to the conflict arrange ‘an armistice or a suspension of fire’ or make ‘local arrangements’ to ‘permit the removal, exchange and transport of the wounded’. Reinforced by states' obligations under the right to health to undertake actions to restore the health of the population,Footnote 64 these measures should be applied to non-international armed conflicts as well.Footnote 65 This would also allow national and international humanitarian organisations to take care of the wounded and sick in territories where parties to the conflict are unable to provide necessary medical care themselves, including in territories under the control of armed groups. In fact, both state and non-state parties to conflicts have frequently agreed that humanitarian organisations could assist in the search, collection, and evacuation of the wounded and sick in non-international armed conflicts.Footnote 66 This obligation is strengthened by Article 2(1) of the ICESCR, which calls on states to request and accept international assistance for the implementation of in particular minimum core ESC rights when they are unable to secure these rights themselves.Footnote 67
The analysis now turns to the scope of the medical attention and care that states must provide to those wounded or psychologically traumatised by ongoing hostilities under IHL and the right to health.
The scope of medical attention and care to be provided to those suffering from direct health consequences of armed conflicts
Article 7(2) of AP II requires that the wounded and sick are ‘treated humanely’ in all circumstances and that they ‘receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition’.Footnote 68 Article 8 of AP II confirms this, emphasising the obligation ‘to ensure their adequate care’.
The phrase ‘in all circumstances’ leaves no doubt that military necessity cannot be invoked to justify non-compliance with this obligation.Footnote 69 However, as pointed out in the ICRC Commentary on AP II, the provision ‘to the fullest extent practicable and with the least possible delay’ is informed by realism, since sometimes it might be impossible to provide the care that is immediately necessary due to the prevailing circumstances. Nonetheless, the provision clearly requires that the parties to the conflict act in good faith and that they make their best efforts to provide the required medical care to the wounded and sick as quickly as possible.Footnote 70
Explaining the obligation to provide wounded and sick persons with adequate care, the ICRC Commentary to Article 8 of AP II further holds that
‘adequate care’ is first aid given on the spot, which may be of the utmost importance to avoid wounded, sick or shipwrecked succumbing during evacuation, which must take place as quickly as possible. Obviously such care includes ensuring the transport of the wounded to a place where they can be adequately cared for.Footnote 71
Beyond the provision of first aid and emergency medical treatment, the details and types of medical care that have to be given to the wounded and sick are rarely specified in commentaries on relevant provisions of IHL.Footnote 72 One reason for this is presumably IHL's focus on protecting mainly the traditional function of medical services attached to governmental armed forces, which is primarily concerned with caring for those who have been wounded in battles and focuses on first aid, surgeries, and amputations.
However, the inclusive definition of the ‘wounded and sick’ given above shows that ‘adequate care’ today goes beyond first aid and emergency medical treatment for those suffering from the direct health consequences of armed conflicts: it may, for example, include short- and long-term medical, mental, and rehabilitative care for those with conflict-related physical and psychological health problems, including for victims of sexual violence.Footnote 73 Non-state armed groups' obligations in this area are most likely concentrated on obligations to give consent to the work of national and international humanitarian organisations implementing these and other obligations discussed below, in particular when the non-state armed group in question is relatively weak.Footnote 74
The question of whether obligations to provide long-term rehabilitative care lie outside the regulatory realm of IHL is intrinsically linked to the question of the temporal scope of application of IHL of non-international armed conflicts. Conventional rules of IHL fail to determine the point in time at which IHL of non-international armed conflicts ceases to operate, but the ICRC Commentary and the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) give some further guidance on the temporal scope of application of IHL of non-international armed conflicts. The ICRC Commentary suggests that IHL is no longer applicable ‘after the end of hostilities’,Footnote 75 leaving the question open as to whether this refers to the point in time when a ceasefire agreement has been reached or to the time at which general hostilities have come to a close, typically through a peace agreement.Footnote 76 The latter interpretation is supported by the ICTY, which held that the application of IHL of non-international armed conflicts ‘extends beyond the cessation of hostilities until … a peaceful settlement is achieved’.Footnote 77 Such an interpretation is further backed by the fact that IHL of both international and non-international armed conflicts contains provisions that are explicitly meant to have effect beyond the cessation of hostilities.Footnote 78 While the present author agrees with Sivakumaran that the temporal application of IHL should ultimately be determined by the existence or non-existence of certain facts (an armed conflict), which have to be judged on a case-by-case basis,Footnote 79 some more recent IHL treaties suggest that longer-term obligations could flow from IHL that are of relevance even after the end of hostilities and even when the fact-condition ‘armed conflict’ is no longer met. This is particularly so in regard to treaties that draw from IHL as well as from IHRL,Footnote 80 and whose temporal scope of application is not limited to armed conflict situations.Footnote 81 For example, in his foreword to the Convention on Cluster Munitions (CCM), the ICRC's former president Jakob Kellenberger observes that the CCM ‘established a broader norm that those who engage in armed conflict can no longer walk away from the long-term consequences of the weapons they use, leaving local communities to carry the burden’.Footnote 82 Article 5(1) of the CCM obliges each state party to ‘adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support’ to cluster munition victims, as well as to ‘provide for their social and economic inclusion’. From CCM Article 5(2)(e) it is furthermore clear that this obligation is not limited to victims of cluster munitions, but includes all ‘who have suffered injuries or disabilities from other causes’. The recognition of the parallel application of ESC rights to armed conflicts is made explicit in the CCM.Footnote 83
To explore this further, the discussion will now move to analyse the extent to which states' obligations flowing from the right to health address the mentioned direct impacts of armed conflicts on public health. This is linked to the difficult question about the more exact scope of the health facilities, goods, and services that states are most likely obliged to grant equal access to under an emerging internationally defined minimum core right to health, possibly encompassing the provision of emergency as well as longer-term rehabilitative care to those who have been injured in hostilities. To recall, the implementation of the right to health in non-international armed conflicts will in most cases inevitably be limited to the implementation of a nationally defined minimum core right to health that mirrors the internationally defined minimum core as closely as possible, in accordance with ICESCR Articles 2(1) and 4.Footnote 84
The first question to be asked for the conflict context is whether emergency medical treatment is part of the international minimum core content of the right to health, strengthening the mentioned IHL obligations. The CESCR's General Comments 3 and 14 seem rather to regard ‘essential primary health care’Footnote 85 as the minimum core of the right to health. Trauma care and surgery that require specialised training and sophisticated technology and resources are not usually part of ‘primary health care’.Footnote 86 General Comment 14 refers to the Alma-Ata DeclarationFootnote 87 as a ‘compelling guidance on the core obligations arising from Art. 12’Footnote 88 of the ICESCR – that is, on what constitutes ‘essential primary health care’:
at least: education concerning prevailing health problems and the methods of preventing and controlling them; promotion of food supply and proper nutrition; an adequate supply of safe water and basic sanitation; maternal and child health care, including family planning; immunization against the major infectious diseases; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs.Footnote 89
The Humanitarian Charter and Minimum Standards in Humanitarian Response of the Sphere Project, which claim to be built on the minimum core right to health,Footnote 90 also suggest that health interventions by humanitarian organisations should emphasise community-based public health and primary care. This is based on the aforementioned fact that the indirect impacts of armed conflicts on public health often constitute a far greater health threat to the people affected than violent injury, especially in poorer countries.Footnote 91 This is further discussed in the section ‘Obligations to mitigate the indirect health consequences …’, below.
The focus of the international minimum core right to health on primary health-care does not exclude emergency medical treatment and specialised surgical services from being considered immediately accessible services under a nationally defined minimum core, in particular in high-income countries. For example, the existence of an effective referral system has been named as a decisive component of a health system that conforms with the right to health, even if this health system prioritises primary care.Footnote 92 This presumes the existence of primary (community-based), secondary (district-based), and tertiary (specialised) facilities and services, providing a continuum of prevention and care.Footnote 93 It also reflects an understanding of primary care as a hub from which patients are guided through a health system.Footnote 94 As noted by the World Health Organization (WHO), even in resource-constrained settings it is ‘not acceptable that … primary care would be reduced to a stand-alone health post or isolated community-health worker’,Footnote 95 although the notion of ‘progressive realisation’ recognises that a comprehensive health system cannot be constructed immediately.Footnote 96 Moreover, there are indications from constitutions, state practice, and cases at the national level that states may regard the provision of emergency medical care, including specialised surgeries, as forming part of the minimum core right to health, whether defined nationally or internationally.
The South AfricanFootnote 97 Constitution contains a right to emergency medical treatment.Footnote 98 In other countries, access to emergency medical treatment has been recognised in case law: the Supreme Court of India found that there was a constitutional duty of government-run hospitals to provide timely emergency treatment to those who are seriously ill, derived from the right to life.Footnote 99 Similar cases are known from Colombia,Footnote 100 Argentina,Footnote 101 and Venezuela.Footnote 102 Many countries that restrict access to health care for non-citizens seem to at least allow for their access to emergency medical treatment,Footnote 103 a requirement that is reiterated in Article 28 of the Convention on Migrant Workers.Footnote 104
The right to emergency medical treatment could also flow from the right to life and the prohibition of torture or cruel, inhuman, or degrading treatment. The UN HRC has held that states are under an obligation to provide such treatment to persons in detention,Footnote 105 and it has voiced its concern about inadequate health facilities in different countries in its concluding observations.Footnote 106 An obligation to provide emergency medical treatment to individuals against which force or firearms have been used lawfully by law enforcement officials is also reinforced by the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.Footnote 107 Several cases decided by the ECtHR also suggest that the right to emergency medical treatment could be contained in the right to life and the prohibition of torture or inhuman and degrading treatment.Footnote 108 The ECtHR is, however, not consistent in this regard.Footnote 109 The South African Soobramoney case moreover shows that it is not always easy to agree on what constitutes ‘emergency medical treatment’. In this case, the South African Constitutional Court held that Mr. Soobramoney, in need of dialysis treatment because of renal failure, was not an ‘emergency’ in the sense of an accident or sudden illness, but that his condition was rather an ‘ongoing state of affairs’ and was thus not entitled to this treatment.Footnote 110 The package of services that constitute ‘emergency medical treatment’ has to be determined at the national level, with the help of human rights principles such as participation, non-discrimination, and concentration on marginalised and disadvantaged groups, and the resources available to a particular country.Footnote 111
Thus, at least in high-income countries, it can be expected that the provision of specialised emergency medical treatment will form part of a nationally defined minimum core right to health that can be accessed by everyone. Every effort must be made to continue the provision of such treatment in times of armed conflict in order to address direct health consequences, if necessary with assistance from humanitarian organisations.Footnote 112 This would also be in line with the requirement of ICESCR Article 4 to limit the right to health only for the reason of ‘promoting general welfare’. Cutting down on specialised medical care when there are numerous victims suffering from serious injuries in a non-international armed conflict would not be conducive to the ‘promotion of general welfare’. If high- and middle-income countries are affected by armed conflicts, the main cause of excess mortality and morbidity is often violence, at least when the conflict is limited to a short period of time.Footnote 113 This would justify prioritising the provision of emergency medical services in these situations.Footnote 114
Even in resource-poorer countries where definitive trauma and surgical care may not (yet) be available even in peacetime, there are simple procedures that can increase the survival chances of severely injured individuals, as pointed out in the Sphere Charter. These include ‘clearing the airway, controlling haemorrhage and administering intravenous fluids’ as well as ‘cleaning and dressing wounds, and administering antibiotics and tetanus prophylaxis’.Footnote 115 These measures can stabilise patients until adequate assistance arrives from national or international humanitarian actors.
The provision of long-term medical care, rehabilitation, and psychological support for those who have been injured in armed conflicts seems not to be part of the emerging internationally defined minimum core right to health. These obligations appear rather to be part of non-core obligations, the implementation of which is more dependent on resources and therefore subject to progressive realisation to a greater extent than minimum core obligations.Footnote 116 This is clear from General Comment 14, which does not list such care under the heading of ‘minimum core obligations’, as well as from Article 5(2)(c) of the CCM. The latter seems to recognise that the mentioned obligation established in CCM Article 5(1) to ‘provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support’ to cluster munition victims cannot be realised immediately; states must therefore ‘develop a national plan and budget, including time-frames to carry out these activities’,Footnote 117 reflecting the notion of progressive realisation. Moreover, as noted in the CESCR's Concluding Observations on Bosnia and Herzegovina, under the right to health and other rights of the ICESCR, social assistance provided to victims of war should be distributed equally among different groups of victims.Footnote 118 In this particular case, considerably lower social assistance was given to civilian victims of the 1990s armed conflicts than to military victims.
Obligations to mitigate the indirect health consequences of armed conflicts
Among the indirect health effects of armed conflicts are the spreading of infectious diseases (epidemic and endemic), rising numbers of maternal and neonatal deaths, increasing prevalence of mental illness, and complications from chronic diseases. As already observed, civilian deaths and suffering resulting from these indirect health effects tend to be far greater than those from violent injuries, and some of them may occur only in the long term.Footnote 119 However, the exact scope of this indirect impact on public health depends very much on the circumstances, including the state of the health system of the country in which the armed conflict takes place. The question arises as to whether and to what extent IHL and the right to health place obligations on states to mitigate these indirect health consequences.
States' obligations under IHL to alleviate the indirect health consequences of armed conflicts
Due to its historical origins, IHL focuses primarily on the protection of military medicine and the mitigation of the direct health effects of armed conflicts. However, there are several indications that obligations to alleviate armed conflicts' indirect impacts on public health are also part of IHL.
First, the broad definition of ‘wounded and sick’ referred to in the above section is not restricted to those who suffer from injuries sustained in ongoing hostilities, but also includes maternity cases, newborn babies, and other persons who may be in need of medical assistance or care. Moreover, Article 7(2) of AP II contains the obligation to ensure that medical care is provided to the wounded and sick as ‘required by their condition’, no matter whether this ‘condition’ is due to violence or other illness, as well as the requirement that the wounded and sick are treated humanely.Footnote 120 The ‘requirement of humane treatment is an overarching concept’,Footnote 121 demanding in general terms that a human being is provided with the things that are necessary for his or her ‘normal maintenance as distinct from that of an animal’ and treated ‘as a fellow human being and not as a beast or a thing’.Footnote 122 It is clear that the concrete prohibitions listed in common Article 3 of GC I–IV and Part II of AP II are manifestations of the obligation to treat persons hors de combat humanely, but also that the principle as such and therefore the obligations under IHL are broader.Footnote 123 It can thus be argued that as an obligation flowing from the requirement of humane treatment, parties to the conflict should do everything that ‘is feasible’Footnote 124 in order to address the indirect health effects of armed conflicts in a similar way as violent injuries.
Second, this is further confirmed by the wide understanding of ‘medical activities’ protected by Article 10 of AP II. The ICRC Commentary on this Article holds that the term ‘medical activities’ should be interpreted broadly – that is, in addition to medical care and treatment of the wounded and sick, it includes acting to ‘vaccinate people, make diagnoses, give advice etc’.Footnote 125 These activities are vital for mitigating indirect health consequences of non-international armed conflicts.
Third, IHL protects all medical units and transports, no matter whether they care for the war-wounded or other patients. Although more complex than the protection of medical units and transports, the IHL protection of medical personnel is also not restricted to the protection of military doctors and nurses. It includes all ‘persons assigned, by a Party to the conflict, exclusively to … medical purposes',Footnote 126 for example ‘the prevention of disease’.Footnote 127
All these IHL obligations to address indirect health consequences are clearly reinforced and specified by the simultaneous application of the minimum core right to health, as will be shown in the following section.
Minimum core obligations under the right to health addressing indirect health consequences of non-international armed conflicts
As suggested, under the international minimum core obligations flowing from the right to health, states are to concentrate on building a basic health system that ensures the provision of ‘essential primary health care’.Footnote 128 This includes a prioritisation of ‘immunisation against major infectious diseases occurring in the community’, of taking ‘measures to prevent, treat and control epidemic and endemic diseases', and of ensuring ‘reproductive, maternal (pre-natal as well as post-natal) and child healthcare’.Footnote 129 Moreover, the internationally defined minimum core right to health emphasises the great importance of protecting the underlying determinants of health: ‘access to a minimum essential food which is nutritionally adequate and safe’ as well as ‘access to basic shelter … and sanitation, and an adequate supply of safe and potable water’.Footnote 130
This focus seems particularly helpful for averting some of the most dreadful indirect health consequences of armed conflicts. This shall be illustrated with the example of infectious diseases, which account for a great majority of preventable indirect deaths.Footnote 131 As public health experts observe, armed conflicts create conditions that are conducive to their transmission, progression, and lethality.Footnote 132
Among the most deadly infectious diseases in times of armed conflict are, according to the Sphere Charter, measles, diarrhoea, acute respiratory infections, and malaria.Footnote 133 Checchi et al. add tuberculosis.Footnote 134 Epidemiologists explain that different diseases have different routes of transmission: by air droplet (breathing, sneezing, and coughing), faecal-orally, sexually, vector-borne (through insect bites), through blood, from mother to child, or through unclean wounds.Footnote 135 Various risk factors can increase the likelihood of an outbreak and of transmission. Among the risk factors that are recognised to cause the majority of excess morbidity and mortality from infectious diseases in armed conflict situations are ‘overcrowding; inadequate shelter; insufficient nutrient intake; insufficient vaccination coverage; poor water, sanitation and hygiene conditions; high exposure to and/or proliferation of disease vectors; [and] lack of and/or delay in treatment’.Footnote 136
Different risk factors are linked to an increased risk of an outbreak of certain infectious diseases, depending on their route of transmission, and to faster transmission. To name but a few examples, overcrowded settings favour the spread of diseases that are transmitted by air droplet (particularly acute respiratory infections, measles, meningitis, tuberculosis, and flu) and by the faecal-oral route (diarrhoeal diseases including Shigella and cholera).Footnote 137 Vector-borne diseases such as malaria do not particularly depend on overcrowding,Footnote 138 but inadequate shelter can increase exposure to disease vectors. Insufficient nutrition intake increases the risk of outbreak of almost all infectious diseasesFootnote 139 due to its immediate effect on the human immune system.Footnote 140 Inadequate water, sanitation, and hygiene conditions primarily increase the infection rate of faecal-oral diseases.Footnote 141
Control measures for infectious diseases must consider both transmission routes and risk factors. The provision of adequate shelter, access to sufficient and safe food and water, and adequate sanitation facilities are recognised as measures that will always be conducive to the affected population's health status, since they reduce risk factors regardless of the specificities of the situation.Footnote 142 This is in harmony with the internationally defined minimum core obligations flowing from the right to health that call on states to prioritise the implementation of the ‘underlying determinants of health’.Footnote 143
The further priority measures that epidemiologists recommend to prevent the spread of infectious diseases in emergencies depend on the local context:Footnote 144 the climate of a region, the health status of the population prior to the armed conflict, whether the population has been displaced and is living in camps, the extent to which affected populations can be accessed by health workers, the relative importance of prevention and treatment, the available financial and human resources, and so on.Footnote 145 This flexibility conforms to the international minimum core obligations formulated in broad terms in General Comment 14. It does not specify against which infectious diseases the state has to provide immunisation, it just requires that immunisation covers ‘the major infectious diseases occurring in the community’.Footnote 146 Likewise, it does not specify the exact measures that are to be taken to ‘prevent, control and treat epidemic and endemic diseases’.Footnote 147
Nonetheless, human rights principles as well as public health principles seem to reasonably guide the choice of priority health interventions. States should define what health services they provide for individuals under their jurisdiction as part of a nationally defined minimum core right to health, in accordance with available resources, and guided by the internationally defined minimum core which is inevitably formulated in broad terms. Such definition should be the outcome of a consultative process which includes health professionals, should take equal account of the health-care needs of all members of society (particularly marginalised groups), and should address the most common health issues prevailing in a community.Footnote 148
These priorities will not necessarily change in times of armed conflict, and, if existent, a nationally defined minimum core will remain relevant for guiding priority health interventions in non-international armed conflicts.Footnote 149 Diseases that are common in a community may become even more prevalent in non-international armed conflicts. Yet adaptations will sometimes have to be made, if only to accommodate the fact that national health-care providers are supported by international actors in order to cope with the strains put on the health system by the armed conflict, in accordance with states' obligations to seek international assistance under ICESCR Article 2(1).Footnote 150 This obligation gains importance when states are unable to implement minimum core obligations by utilising their maximum available resources.Footnote 151 In some cases, priorities need to be shifted if the armed conflict brings about diseases that were previously absent from a communityFootnote 152 or if the health system has to treat a large number of people wounded and traumatised in hostilities.
Human rights and public health principles can equally guide those adaptation processes: the Sphere Charter stipulates that the principle of participation shall be followed in the form of consulting affected populations on priority health interventions as far as possible.Footnote 153 Likewise, ensuring non-discriminatory/equal access to health services, and their acceptability and quality, remains relevant.Footnote 154 Guaranteeing equal access to health care may also require particular attention to disadvantaged groups, which in conflict situations can include children, pregnant women, and elderly or disabled people, but also members of a specific ethnic or religious group, people with a particular political affiliation, internally displaced persons, and people living in areas with damaged infrastructure.Footnote 155 The strict application of the equality/non-discrimination principle becomes exceedingly important in the implementation of the right to health in highly politicised armed conflict situations.Footnote 156
These principles will interact with public health principles such as the maxim to ensure the greatest health benefits to the greatest number of people through priority health interventions in non-international armed conflicts.Footnote 157 For instance, epidemiologists have methods to determine high-risk infectious diseases and assess which will be a priority.Footnote 158 However, difficult decisions that involve inevitably utilitarian considerations in view of limited available resources and capacities will always remain to be made in armed conflicts.
To conclude, the minimum core right to health as well as other human rights and public health principles promise to help states (and humanitarian actors) to set priorities in their efforts to mitigate one of the most prevalent indirect health consequences of non-international armed conflicts: the spread of epidemic and endemic diseases. Similar analyses could be conducted with regard to other elements of the internationally defined minimum core right to health, such as the obligation to ‘ensure reproductive, maternal and child healthcare’Footnote 159 and ‘to provide education and access to information concerning main health problems in the community, including methods of preventing and controlling them’.Footnote 160 The right to health thereby broadens and complements the scope of protection as well as giving further specification to the aforementioned IHL rules that indicate states' obligations to address the indirect impact that armed conflicts can have on public health. Moreover, the right to health thereby complements the obligations under IHL that continue to operate beyond the cessation of active hostilities and arguably beyond the existence of the fact-condition of ‘armed conflict’.Footnote 161
Medical personnel, medical facilities, and medical transports
Mitigating the direct and indirect health consequences of non-international armed conflicts discussed so far is impossible without the presence of skilled medical personnel and functioning medical units (facilities) and transports. In the following, it is shown that IHL gives detailed definitions of ‘medical personnel’, ‘medical units’, and ‘medical transports’ and offers them special protection from the effects of hostilities, inter alia by giving them the right to display the distinctive emblem (Red Cross/Crescent/Crystal) to render their protected status visible. These detailed definitions can be regarded as a very valuable specification of the components of a health system that states have to create and maintain for individuals to enjoy their minimum core and non-core rights to health. However, the IHL definitions also have some limits that can be complemented by the simultaneously applicable right to health. For example, obligations under the right to health would strengthen some of the more proactive state obligations to facilitate the work of medical personnel, units, and transports under IHL, and would offer some protection to medical personnel, units, and transports that have not been recognised and authorised by a competent authority.
IHL of non-international armed conflicts protects medical personnel,Footnote 162 medical units,Footnote 163 and medical transportsFootnote 164 in a similar way as the wounded and sick themselves (they must be respected and protected), and also gives them the right to make their protected status visible.Footnote 165 Violations of these rules in non-international armed conflicts are criminalised under Articles 8(2)(e)(ii) and (iv) of the ICC Statute.
The IHL definitions of ‘medical units’ and ‘medical transports’ – specifying obligations under the right to health
Because there is no IHL definition of medical units and medical transports in AP II, the comprehensive definitions set out in GC I, GC IV, and AP I are resorted to, as suggested in the ICRC Commentary on Article 11 of AP IIFootnote 166 and affirmed by the ICRC Study.Footnote 167 Thus, based on GC I Article 19, GC IV Article 18, AP I Article 8(e), and Rule 28 of the ICRC Study, ‘medical units’ include all medical establishments and other units, be they permanent or temporary, military or civilian, fixed or mobile. Moreover, under Article 8(e) of AP I these medical establishments and other units must be ‘organised for medical purposes’;Footnote 168 and Rule 28 of the ICRC Study requires that they are ‘exclusively assigned to medical purposes’. While the reasons behind this change in wording in Rule 28 are not entirely straightforward,Footnote 169 it is clear that for medical establishments and other units to count as ‘medical units’ under customary and conventional IHL, they must first and foremost be assigned for a medical purpose (interpreted very flexiblyFootnote 170), and such assignment must be made to the exclusion of any other assignment.Footnote 171 In particular, medical units should not be used for activities that lie outside their humanitarian functions.Footnote 172 Examples of ‘medical units’ that are assigned for medical purposes include hospitals, laboratories, transfusion and rehabilitation centres, equipment depots, preventive medicine centres and institutes, medical and pharmaceutical stores, and first aid posts.Footnote 173
Based on Articles 8(f)–(g) of AP I and Rule 29 of the ICRC Study,Footnote 174 ‘medical transport’ means any means of transportation on land, water, or air assigned exclusively to transporting the wounded, sick, and shipwrecked, medical personnel, and medical equipment and supplies, be they military or civilian, permanent or temporary. Medical transports should be under the control of a competent authority.Footnote 175 Ambulances or other medical land vehicles (such as trucks or trains), hospital ships, and medical helicopters are examples of such ‘medical transports’.
These are all important elements of a well-developed health system for the realisation of the minimum core and non-core components of the right to health. In particular, they can be seen as a specification of what states are obliged to provide under ICESCR Article 12(2)(d), which calls on states to take steps to create ‘conditions which would assure to all medical service and medical attention in the event of sickness’. Direct destruction or dismantling of such facilities not in conformity with the requirements of ICESCR Article 4 in armed conflicts would violate the right to health as well as IHL requiring respect for and protection of medical units and transports ‘at all times’Footnote 176 – that is, prohibiting their direct attack.
By giving special attention to the protection of medical transports, IHL highlights the importance of this particular medical service for the protection of the right to health during non-international armed conflicts, when potentially more injured or sick individuals have to be transported to hospitals for emergency care than is normal, under more challenging conditions. The ICRC Commentary on Article 11 of AP II specifies that medical transports cannot be attacked even when they are not being used to transport any wounded or sick,Footnote 177 nor can their work or movement be interfered with arbitrarily in any other manner. While not always respected by them, it is clear that this rule also binds non-state armed groups.Footnote 178 The IHL provisions on medical transports are a good example of how IHL imposes obligations that aim to mitigate the direct health consequences in the specific situation of armed conflict, specifying also the content of the right to ensure access to health-care facilities, goods, and services in this particular situation. As mentioned, an effective, integrated referral system is an important part of a health system functioning in accordance with the right to health,Footnote 179 which arguably includes sufficient medical transport. Yet a detailed protection of medical transports as given in IHL might be less relevant for ensuring the health of conflict-affected individuals in poorer countries, where effective medical transport are frequently absent even in peacetime, inter alia because of insufficient roads. In these situations the protection of the activities of international and local humanitarian organisations not linked to any party to the conflictFootnote 180 may be more important for safeguarding the health of conflict-affected communities.
The IHL definition of ‘medical personnel’ – specification of the different health professionals needed to ensure comprehensive health care
The definition of ‘medical personnel’ in IHL applicable to non-international armed conflicts is rather complex. While AP II does not contain a definition of medical personnel, the definition given in Articles 8(c) and (e) of AP I is regularly relied on.Footnote 181 Accordingly, medical personnel covers ‘those persons assigned, by a Party to the conflict, exclusively to … medical purposes’Footnote 182 – that is, to ‘the search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded, sick and shipwrecked, or for the prevention of disease’,Footnote 183 and ‘to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary.’Footnote 184 The ICRC Study suggests that the definition of ‘medical personnel’ has been further specified through developments in customary law applicable to non-international armed conflicts. It holds that the definition of ‘medical personnel’ that was originally suggested in the drafting process of AP II, but which was removed during the simplification process shortly before the Protocol was adopted, could be relied on.Footnote 185 According to this definition, in non-international armed conflicts the term ‘medical personnel’ includes:
(i) medical personnel of a party to the conflict, whether military or civilian;
(ii) medical personnel of Red Cross or Red Crescent organisations recognised and authorised by parties to the conflict;
(iii) medical personnel of other aid societies recognised and authorised by a party to the conflict and located within the territory the conflict is taking place.Footnote 186
The definition differs in two ways from the more specific definition of medical personnel given in Articles 8(c) and (e) of AP I,Footnote 187 and reflects states’ ongoing fear of undue foreign intervention in non-international armed conflicts. First, the phrase ‘Red Cross and Red Crescent organisations’Footnote 188 was introduced ‘to cover not only assistance available on the government side, but also groups or sections of the Red Cross on the other side which already existed, and even improvised organisations which might be set up during the conflict’.Footnote 189 Second, the phrase ‘aid societies … located within the territory the conflict is taking place’ discloses the intention of states to avoid situations in which obscure private groups from outside the country establish themselves by claiming the status of a relief society, and are then recognised by the insurgents.Footnote 190 Thus, in non-international armed conflicts it is only the personnel of those (recognised and authorised) aid societies (other than Red Cross or Red Crescent organisations) that are located within the territory of the state where the conflict takes place that enjoy protection as ‘medical personnel’ under AP II.Footnote 191
Similar to medical units and transports, the CESCR's General Comment 14 recognises the existence of ‘trained medical and professional personnel’Footnote 192 as essential for the realisation of the right to healthFootnote 193 – and the definitions given in IHL can be regarded as a helpful specification of the range of health professionals needed to ensure comprehensive health care of the population. Unlike the more general protection that is afforded to all persons under the jurisdiction of a state under the right to health, including to medical personnel,Footnote 194 the specific protection that IHL gives to the specific category of persons of ‘medical personnel’ highlights the utmost importance of the work of these personnel in the exceptional context of an ongoing armed conflict, where the number of persons in need of medical care is particularly high. The IHL prohibition of direct attacks on these personnel is well established in conventional and customary IHL, addressing both state and non-state parties to armed conflicts.Footnote 195 The observance of these rules is important not only for ensuring the care of those whose health is directly affected by the hostilities, but also for minimising interruption of the work of medical personnel engaged in, for example, the treatment, control, and prevention of diseases, in order to reduce the indirect health consequences of armed conflicts discussed above.Footnote 196 The recent killing of several doctors who were conducting an anti-polio vaccination campaign in Nigeria serves as a tragic illustration of this point.Footnote 197 States’ obligations under the right to health not to arbitrarily interfere with the work of health professionalsFootnote 198 will reinforce these IHL obligations. For example, reports of the UN Special Rapporteur on the Right to Health express concern that ‘in some countries, on account of their professional activities, health workers have been victims of discrimination, arbitrary detention, arbitrary killings and torture, and have their freedom of opinion, speech and movement curtailed’.Footnote 199 The right to health will also extend its protection to medical personnel that may not directly fall under the customary IHL definition of ‘medical personnel’ applicable to non-international armed conflicts – for example, to those (medical) personnel that belong to humanitarian organisations not located within the territory of the state where the conflict takes place.Footnote 200 Before this is discussed below in the section ‘The IHL obligation to recognise medical personnel, units, and transports’, we will now examine further aspects of the protections offered to medical personnel, units, and transports under IHL and the right to health, in particular states’ obligations to promote and facilitate their work.
Obligations to promote and facilitate the work of medical personnel, units and transports
States are obliged to actively promote and facilitate the work of medical personnel, units, and transports. Under IHL, these obligations flow from the general obligations to respect and protect medical personnel, units, and transports, which have achieved customary statusFootnote 201 and are to be interpreted in a similar manner as the obligation to respect and protect the wounded and sick themselves.Footnote 202 These obligations are strengthened and complemented by the parallel application of the right to health, in particular in those areas where some uncertainty exists as to the exact scope of the more proactive obligations under IHL applicable to non-international armed conflicts, as well as to their customary status in these types of conflicts.
For example, Article 9(1) of AP II requires that medical personnel be granted ‘all available help for the performance of their duties’. Article 15(2) of AP I further specifies, in the context of international armed conflicts, that civilian medical personnel shall be granted all available help in particular in areas where civilian medical services have been disrupted due to hostilities; and Article 15(4) of AP I explicitly gives ‘civilian medical personnel access to any place where their services are essential’ albeit ‘subject to such supervisory and safety measures as the relevant Party to the conflict may deem necessary’.Footnote 203 The question can be asked about the extent to which these more far-reaching obligations to grant all available help to medical personnel are applicable to non-international armed conflicts, and whether they have attained customary status, given that rules 25, 28, and 29 of the ICRC Study limit themselves to restating the general obligation to ‘respect and protect’ medical personnel, units, and transports. The commentary to Rule 25 reiterates the treaty obligation under Article 9(1) of AP II, suggesting that it may have attained customary status.Footnote 204 Some of the military manuals relied on in the ICRC Study also indicate that states recognise more far-reaching, proactive IHL obligations towards medical personnel, units, and transports in international and non-international armed conflicts. For instance, Argentina's military manual stipulates that ‘medical personnel shall be respected, protected and assisted in the performance of their duties’;Footnote 205 Spain's military manual states that medical personnel shall be ‘defend[ed], assist[ed] and support[ed] when needed’;Footnote 206 and the German military manual formulates a ‘positive’ duty towards medical transports, holding that ‘their unhampered employment shall be ensured at all times’.Footnote 207 There are indications that non-state armed groups have also accepted some more proactive obligations toward medical personnel, units, and transports.Footnote 208 However, the ICRC Commentary's observation on Article 11 of AP II, proposing that the obligation to respect and protect medical units and transports includes a proactive obligation ‘to actively take measures to ensure that medical units and transports are able to perform their functions and to give them assistance where necessary’,Footnote 209 are not affirmed in the commentaries to rules 28 and 29 of the ICRC Study.Footnote 210
Any proactive obligations under conventional IHL applicable to non-international armed conflicts are reinforced by, and any possible gaps in customary IHL in this area are closed by, the parallel application of the right to health, in particular as far as the state party to the conflict is concerned. State parties to the ICESCR clearly have an obligation to take proactive measures to facilitate the work of medical personnel, transports, and units, in particular in their endeavours to guarantee the implementation of the minimum core right to health, including in territories under the control of non-state armed groups.Footnote 211 It starts with the obligation to ‘provide appropriate training to health personnel’, which the CESCR considers part of the international minimum core right to health.Footnote 212 Guaranteeing physical accessibility to at least the essential health services contained in the minimum core right to health and relevant IHL rules discussed above in the section ‘Obligations to mitigate the indirect health consequences of armed conflicts’ would for example imply an obligation to support medical personnel and transports in their efforts to reach populations in areas where infrastructure is damaged, who would otherwise be denied their right to treatment.Footnote 213 The CESCR's Concluding Observations on Israel point in this direction. Referring to Israel's closures of the Occupied Palestinian Territories, the CESCR recalled Israel's obligation to ‘give full effect to its obligations under the Covenant and, as a matter of priority, to undertake to ensure safe passage at checkpoints for Palestinian medical staff’Footnote 214 – an obligation that includes a proactive dimension. Similarly, in its Concluding Observations on Russia, the CESCR for instance called on the government ‘to allocate sufficient funds to reinstate basic services, including the health and education infrastructure’ in Chechnya despite the ‘difficulties posed by on-going military operations’.Footnote 215 Reinstating basic health services would surely include an obligation to actively facilitate the work of medical personnel, transports, and units in conflict-affected areas.
The IHL obligation to recognise medical personnel, units, and transports – a restricting requirement in situations where many medical tasks are fulfilled by international actors
The right to health has the potential to partially compensate for another limit of IHL of non-international armed conflicts. In IHL, the special protected status, including the right to display the distinctive emblem is reserved for those civilian medical personnel, transports, or units (in addition to military medical personnel, units, and transports) that have been ‘recognised’ (that is, they must have been regularly trained, constituted, and registered in accordance with national legislation) and ‘authorised’ (that is, the party to the conflict must agree that the personnel are employed as medical personnel) by one of the parties to the conflict.Footnote 216 This includes medical personnel, units, and transports of Red Cross and Red Crescent organisations.Footnote 217 The recognition and authorisation requirement, together with the restricted definition of ‘medical personnel’ given above, focuses IHL's protection on recognised and authorised national medical personnel, units, and transports that were present in a particular territory before a non-international armed conflict started.Footnote 218 As is clear from the drafting records of AP II, this was mainly due to the fear of states that broader definitions of in particular ‘medical personnel’ could be exploited by foreign forces to intervene in non-international armed conflicts.Footnote 219
While undoubtedly important, in many low-income countries such (restricted) protection might be less appropriate for guaranteeing minimal health care for conflict-affected populations.Footnote 220 A functioning health system built of these nationally recognised and authorised medical personnel, units, and transports may not (yet) exist. In these settings, the protection of (international) medical personnel and medical units of international humanitarian organisations, as well as the promotion and facilitation of these organisations’ activities, becomes more important for providing the minimum health services described above in the section ‘The protection of the wounded and sick …’.
While the simultaneous applicability of the right to health will not give foreign medical personnel, units, or transports of international humanitarian organisations the right to display the distinctive emblem, the obligation not to attack them and the more proactive obligations to facilitate their work that were discussed above will extend to them. It can also be argued that this includes an obligation on states affected by non-international armed conflicts to speed up the process of recognising foreign medical qualifications to ensure that the civilian population can get access to basic health care under their minimum core right to health.Footnote 221 This should not exclude the possibility of states setting up mechanisms to monitor foreign medical interventions in order to prevent conflict-affected populations from being exposed to the danger of unskilled or inappropriate treatment.Footnote 222 Moreover, medical personnel deployed by international humanitarian organisations are protected under Article 10 of AP II, as humanitarian relief personnelFootnote 223 and by their status as civilians.Footnote 224
Concluding remarks
This contribution analysed some elements of states’ obligations under IHL and the right to health that aim to mitigate the direct and indirect health consequences of non-international armed conflicts. In sum, relevant IHL rules and obligations flowing from the right to health complement each other well in this endeavour.
In general terms, due to its historical origin and purpose of protecting wounded and sick soldiers of standing governmental armies, IHL focuses on the protection of the wounded and sick, and those civilians and persons hors de combat suffering from the direct health consequences of armed conflicts. For example, the IHL obligations to ‘respect and protect’ as well as ‘search for and collect’ the ‘wounded and sick’ give welcome details on how to implement the right to access minimum health facilities, goods, and services in an armed conflict context. IHL obliges states to immediately provide emergency medical treatment to the wounded and sick.
The right to health, on the other hand, is more expansive, and takes better account of the fact that the relationship between health and armed conflict is not confined to medical attention to the war-wounded. The internationally defined minimum core right to health encourages states parties to the ICESCR to prioritise the provision of primary health care by creating and maintaining an accessible basic health system. This focus enables it to highlight and address the indirect health consequences of non-international armed conflicts, such as the spreading of epidemic and endemic diseases and rising child and maternal mortality and morbidity. These may occur in the long term, and are – particularly in low-income countries – the main causes of death during and after armed conflicts. Moreover, the minimum core right to health gives flexibility to states to adopt the measures required to address the specific indirect health problems in a particular situation, which can vary substantially. In particular, the human rights principles of non-discrimination and the concentration on disadvantaged and marginalised groups can guide this process. Consultation with public health professionals is equally essential for pinpointing the exact measures that are to be taken to implement minimum core obligations under the right to health in non-international armed conflicts.
Complementarity between IHL and the right to health can also be observed in the protection offered to medical personnel, facilities/units, and transports. The detailed definitions of these entities given in IHL can be regarded as a welcome specification of the components of a well-developed health system that states have to create under minimum core and non-core obligations flowing from the right to health. On the other hand, obligations under the right to health can compensate for some uncertainties in the scope of the more proactive obligations to facilitate and promote the work of medical personnel, units, and transports in the customary rules 25, 28, and 29 of the ICRC Study, and offer some protection to (international) medical personnel, units, and transports that may not be covered by the IHL definitions of these terms.
