This blog is authored by Niyati Prabhu from the National University of Advanced Legal Studies (NUALS).
Introduction
Violence against patients, health workers, and health facilities has become a pervasive aspect of modern war. Conflict and unrest create a state of instability that makes maintaining a functional healthcare system seemingly inconceivable. To debilitate a rival’s durability and resilience, supply vehicles, hospitals and ambulances are habitually attacked by military forces, while infirmary patients and healthcare personnel are often intimidated, assaulted, or deprived of access to healthcare. This ‘weaponization of healthcare’ turns the quintessential requirement for healthcare into a war tactic that seeks to threaten, destabilize and demoralize. In response, the World Health Assembly adopted WHA65.20, a resolution calling on WHO's then Director-General to “Provide leadership at the global level in developing methods for systematic collection and dissemination of data on attacks on health facilities, health workers, health transport, and patients in complex humanitarian emergencies, in coordination with other relevant UN bodies, other relevant actors, and intergovernmental and non-governmental organizations.”
‘Weaponization of Healthcare’ across the Globe: -
Attacks against healthcare personnel are in contravention of International Humanitarian Law. Russian forces have carried out more than 250 attacks on healthcare within the initial 100 days of the war in Ukraine. In Tigray, more than 70% of the hospitals have been destroyed by the Ethiopian federal forces since the onset of the conflict in November 2020. The assault by gunmen on the Dasht-e-Barchi hospital in Kabul, Afghanistan, where the attackers had deliberately and methodically killed mothers and pregnant women in their beds, one after the other, elicited the Médecins Sans Frontières (MSF) to declare that they were terminating their affairs at the hospital. According to a factsheet published by the Safeguarding Health in Conflict Coalition (SHCC), 69 incidents of violence or obstruction against healthcare were perpetrated in the Occupied Palestinian Territories (oPt) in 2021 alone. The harm caused by these attacks has far-reaching consequences – painful recoveries, lifelong medical consequences, psychological wounds inflicted on survivors, bereaved families, etc. Despite evidence of these inhumane methods of warfare, a majority are undocumented if not met with impunity. It is, therefore, imperative to address these attacks both in places where they are captured by cameras critically and where they are not.
Assessing the Magnitude of Conflicts: -
The landscape of bringing together this body of evidence has remarkably transitioned over the years: local newspapers, radio stations and their transcripts, and social media. Individual health workers have taken to social media. In juxtaposition, many organizations, like the MSF have started to introduce internal reporting mechanisms to monitor what goes on. Consequently, the present issue must involve collating information using technology while figuring out whose voices are heard and whose are not. The challenges include fake stories, deepfakes, internet shutdowns (Tigray, Donbas), etc. When this happens, monitoring the safety of healthcare workers becomes onerous due to the various dangerous possibilities they face in reporting their experiences. An attack on healthcare, on a fundamental level, has many intricacies to it. Healthcare centers deprived of proper network connectivity, fuel, electricity, monetary funds, and other basic supplies have comparable outcomes. Research centering around these invisible attacks on health systems having generational impacts (raiding of health funds, destruction of the healthcare workforce, the inability of the public sector/regulated private sector to continue paying and keeping on-staff health workers) is lacking.
Challenges to Healthcare in Times of Conflict: -
Addressing the escalating attacks on healthcare infrastructure, personnel, and patients in instances of armed conflict is quintessential. The idea of protecting people and places has been thoroughly examined over the years, culminating in the Geneva Conventions, which lay out the rules of warfare, including protecting healthcare personnel. Principles of jus in Bello, or “law in war,” govern the actions of parties engaged in armed conflict, creating the normative structure that forms the kernel of “rules of engagement” to navigate wartime decision-making. Yet, day by day, there are attacks on Afghanistan, Ethiopia, and Ukraine. Conflict amplifies the need for healthcare but does not change the baseline healthcare needs of a population. The deliberate destruction, vandalization, and looting of maternity health centers in Tigray have been one of the hallmarks of conflicts.
The real question is not about the right to international privacy of an individual provided for in Article 17 of the International Covenant on Civil and Political Rights but for the protection of the masses at the hands of non-state entities and corporations willing to collect the data to upsurge mass warfare. The state signatories to the International Covenant on Civil and Political Rights rely upon the Geneva Conventions of 1949 and their Additional Protocols of 1977 as the founding legal grounds to protect the victims of war.
Further, Article 2(4) of the UN Charter provides for the ‘principle of non-intervention’, and Article 51 of the Charter talks about ‘self-defense in case of armed conflict’. However, there is no clause for countermeasures in the Charter. Article 22 of the Responsibility of States for Internationally Wrongful Acts, 2001 provides for countermeasures including retorsion, piercing the veil of the sovereignty of the State, and the plea of necessity indicating that action might not be internationally wrongful despite it affecting the interests of another State; a State must prove that the act committed by the other State or the non-state entity was internationally wrongful. However, the same cannot be solved as for it to be recognized, there must be a state practice, and this new method of warfare thus gets away with international wrongs even by States as it does not amount to a breach under Article 2(4) of the UN Charter.
Policies to Mitigate these Attacks: -
There is a global predominance of urban or asymmetrical warfare with an unfortunate continuity of these attacks – Korea, Vietnam, the Balkans, and Chechnya. In some ways, they are based on dehumanizing enemies—a part of the cruelty of war itself. But to get a nuanced understanding of the recurrence of these attacks, we need to dig deeper – especially since the Geneva Conventions originated in the protection of healthcare back in 1864, the oldest international treaty concerning the protection of non-combatants. However, after all these years, are these provisions, which are so clear and explicit, violated? A competing set of norms that are rarely articulated but influence conduct date back to the same period. The argument that moral standards apply in war but that there can be exceptions to quickly winning "just wars"—dubbed "military necessity"— is justifying all sorts of reasons (a strategic, tactical, belief that enemies should not be treated for fear that they might come back to fight) for attacking health care. Military entities are required to treat everyone, including enemy soldiers, impartially, not neutrally.
Firstly, civilians and military leaders have predominantly abdicated their responsibilities to make sure that their troops obey the law (clear, transparent rules including training in very specific actions, military operations at checkpoints, hospital searches, and adequate medical care for enemies) and only a few militaries do this, including the ones which express the most commitments to the Geneva Conventions. This is seen even in the influence of the competing norm of military necessity and contemporary law where counter-terrorism law has deemed people affiliated with terrorist organizations unworthy of care, a direct contravention to the Geneva Conventions law, norms, and values but has seeped into military practice globally, especially in the last two decades. Consequently, we require leadership to restore commitment and operationalize those commitments to the Geneva Conventions, which have garnered profound support from across the world.
Secondly, there is almost no categorical accountability for these crimes, the proof being the fact that very few prosecutions for war crimes involving healthcare have occurred, most of which due to other means of accountability – diplomatic pressures, refusal of arms sales to the perpetrators, the usage of UN mechanisms to hold perpetrators to account, etc. The level of evidence required in court is such that it remains very difficult to prove the intention, impact, and scale of these attacks in a manner that the court could address them. The collection of data and evidence should align with the prosecutorial requirements and the standards of evidence.
Conclusion: -
As the Geneva Conventions evolved over the years, the exegesis of the term ‘attack’ expanded from concern towards direct attacks to the usage of indiscriminate attacks. Obstruction of access, delays, looting, or blockage of supplies at checkpoints are responsible for more deaths than direct bombings of hospitals. In Afghanistan, the Taliban wanted to control health services by forcefully closing health facilities until their demands were met. Despite the dearth of outright violence, its impacts were profound. Further research, standardized monitoring, and their use for reform, accountability, and programming are sacrosanct. Moreover, stakeholders must ensure the relevance of research toward these ends. A nuanced understanding of the consequences of the attacks both in the short and long term in juxtaposition with the local, national and international impacts is required. States and global organizations must prioritize this issue in terms of supporting research, response, and prevention.
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