Special Guest Post By Dustin A. Lewis, Senior Researcher, Harvard Law School Program on International Law and Armed Conflict
In armed conflicts involving terrorists, should we consider medical assistance to those terrorists a form of impermissible support to the enemy? Or should we consider impartial medical care “above” the conflict? Does the rationale first established in international humanitarian law (IHL) in 1864—that once hors de combat (out of the battle) all wounded fighters, even (indeed, especially) the enemy, should be provided all feasible medical care based on medical need—still hold for contemporary conflicts involving terrorists? Where the IHL protections for medical care are predicated (at least in part) on the caregiver complying with “medical ethics,” what exactly are those ethics? And should “medical ethics”—whether concerning the treatment of terrorists in particular or of the population in general—be the same in wartime as in (relative) peacetime?
In a recent research briefing for the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), my co-authors (Professor Gabriella Blum and Naz K. Modirzadeh) and I raise these and other issues. Titled “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” the report evaluates IHL protections for wartime medical assistance concerning terrorists. In addition, we examine how the United Nations Security Council has imposed numerous binding counterterrorism measures, but, in doing so, the Council has not fully exempted medical care, even where those counterterrorism measures may implicate medical care protected under IHL. We also analyze the practice of three states—Colombia, Peru, and the United States—regarding domestic prosecutions of wartime medical treatment for terrorists.
What’s the upshot of our analysis? As noted in the Executive Summary, we think that the global fight against terrorism—including at the level of the U.N. Security Council—has taken a turn that threatens to erode a foundational ethic of IHL: the protection of medical care for all wounded combatants, whether friend or foe. At the same time, aggressive state responses to terrorism illuminate how IHL medical-care protections, while extensive, are often fragmented and non-comprehensive. In short, contemporary counterterrorism policies contradict some of these IHL protections and expose the weakness of key others.
Consider the issue of punishing medical caregivers. With respect to international armed conflicts (that is, armed conflicts between two or more states or situations of belligerent occupation), the First Geneva Convention of 1949 prohibits convicting or ill-treating any person who nurses wounded combatants—even if the wounded are from the enemy party. (The only other type of armed conflict recognized under IHL is non-international armed conflict: that is, those conflicts with sufficiently protracted and intense hostilities between a state and an organized armed group, or between such groups.) In the 1970s, states developed an additional treaty provision requiring non-punishment of medical caregivers—this one predicated in part on the concept of “medical ethics”: “Under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.” (The treaty drafters did not set the definitional contours of such “medical ethics.”) States included that “medical ethics”-based non-punishment provision in two treaties—one treaty on international armed conflicts (Additional Protocol I to the Geneva Conventions), and another treaty on non-international armed conflicts meeting a certain threshold (Additional Protocol II to the Geneva Conventions).
Yet numerous states have not contracted into one or both of those Additional Protocols. The U.S., for instance, is not a party to AP I or to AP II. In its 2015 Law of War Manual, the U.S. Department of Defense did not include that “medical ethics”-based non-punishment provision in the rules for international armed conflicts or for non-international armed conflicts. (The Manual did retain the provision from the First Geneva Convention of 1949 requiring that the parties not convict or ill-treat those who provide medical care to wounded combatants in an international armed conflict.) Complicating the normative framework further, no IHL treaty imposes the “medical ethics”-based prohibition on punishment of medical caregivers in non-international armed conflicts that do not meet the AP II threshold. Meanwhile, a number of states criminalize in their domestic legislation various forms of medical support to terrorists, and those laws may apply irrespective of whether the situation is an armed conflict to which IHL (also) applies. As we note in the report, the U.S. federal statute criminalizing the provision of material support or resources to a designated Foreign Terrorist Organization exempts medicine (and religious materials). But courts have interpreted that medicine exemption quite narrowly: it applies only to those persons providing medical substances to designated terrorists. Certain other forms of material support in the form of medical care are proscribed.
We conclude that the overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness—or, at least, the indeterminateness and variability—of the normative framework.