Open Access Research Article
“SAFEGUARDING MEDICAL SERVICES DURING WAR”
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Article Details
“SAFEGUARDING
MEDICAL SERVICES DURING WAR”
AUTHORED BY
- KHUSHI KATRE
“War does not
determine who is right - only who is left.”~ Bertrand Russel
ABSTRACT
Attacks on health-care workers,
facilities, patients, and transporters during armed conflict are major
violations of human rights and international humanitarian law. The delivery of
health care under times of armed conflict, civil unrest, and governmental repression
has great problems due to attacks on and interference with health care
services, providers, facilities, transporters, and patients. International
humanitarian law (IHL) offers strong protection to health care providers during
armed conflict, but it also has flaws. IHL also doesn't apply in circumstances
when there isn't an armed conflict. This study examine the study on
health-related attacks to determine what data is used, what issues are covered,
and what gaps exist in order to propose a future research agenda. The
specifically cover the International humanitarian approach and measures of ICRC
as a normative foundation from which to further develop states' obligations to
respect, protect, and fulfil the right to health in all contexts of armed conflict.
Keywords: Attacks on health, right to
health, conflict, violence, Red Cross.
INTRODUCTION
During armed conflicts and other
emergencies, humanitarian aid is crucial for saving lives, alleviating
suffering, and preserving human dignity. It focuses on giving material aid
(such as food, water, and clothing) and facilitating logistical aid to those in
need (e.g., providing shelters, safe transportation). In contemporary armed
conflicts in Asia, Africa, Europe, the Middle East, and Latin America, denials
and obstructions of humanitarian aid by combatants have unfortunately become a
common occurrence[1].
“International humanitarian law”
(IHL) – sometimes known as the "law of war" or the "law of armed
conflict" – is a body of principles that seeks to restrict the impacts of
armed conflict for humanitarian reasons. It safeguards people who are not, or
are no longer, engaged in combat and limits the means and techniques of battle.
IHL is a set of universal rules. It consists of international treaties and customary
standards intended to settle humanitarian difficulties resulting directly from
international and non-international armed conflicts.[2]
Its primary accords are “the Geneva Conventions of 1949 and their Additional
Protocols of 1977 and 2005”. All states have recognized the Geneva Conventions,
and ratification of the Additional Protocols is expanding. Various other
treaties supplement these essential instruments. Becoming a party to these
agreements is a preliminary but essential step. To apply the rules included in
these instruments – to make the law – additional effort is required.
International humanitarian law has
its roots in the responsibility to treat the injured and ill, as well as the
protection of medical personnel and facilities (IHL). This was reinforced by
the Two Additional Protocols of 1977 and the Four Geneva Conventions of 1949.
Every country on earth has domestic legislation and a military code that
reflect the International Humanitarian Customary Guidelines, which include the
protection of medical services in conflict zones. The paper provide the quick
overview of the fundamental principles governing the protection of medical
services under international humanitarian law and also highlight the origin and
importance of international committee of red cross.
RESEARCH OBJECTIVE
·
To
analyze the fundamental principles governing the protection of medical
services.
·
To
be aware of the origin and importance of “International committee of Red
Cross”.
·
To
examines the role of ICRC and other international humanitarian organizations’
role in the protection, promotion and implementation of international
humanitarian law in international armed conflicts as protecting powers.
RESEARCH METHDOLOGY
In the processing of this work the
doctrinal method has been adopted. There is no fieldwork involved in this
project. It is a normative examination of rules the application of humanitarian
law to armed conflicts. It requires a comprehensive examination of source
materials, textual analyses, international conventions, treaties, and
resolutions. The researcher relies on textbooks, the Geneva Conventions,
Protocols, and data acquired from numerous national and international
institutions and organizations.
RIGHT TO HEALTH DURING CONFLICTS
Access to health services is
regarded to be the right to health. However, good health is not an absolute
right in and of itself. “The World Health Organization” defines ‘health
services’ as those actions designed to restore and preserve health. Right to
health, must include immunizations, medical treatment, sanitary services
relating to water and hygiene, a clean environment, and any actions that ensure
access to food resources.[3]
In reality, wars result in
human catastrophes that effect entire populations. The repercussions of war on
health are diverse and range from the obvious, such as the injured, the dead,
diseases, and famine, to the less obvious, such as the disorganization and, in
some cases, utter destruction of health facilities. So safeguarding the medical
services during the war is important.
Many of the conventions and
declarations deals with this, like, of Article 25 of the Universal Declaration
of Human Rights, the International Covenant on Economic, Social and Cultural
Rights (Articles 12, 24), the International Convention on the Elimination of
All Forms of Racial Discrimination (Article 5), the Convention on the
Elimination of All Forms of Discrimination Against Women (Articles 10, 12, and
14), the Convention on the Rights of the Child (Article 24).
In fact, a number of clauses
in the Additional Protocols to the Geneva Conventions and those of those
Conventions protect medical facilities and medical staff. Hospitals cannot be
attacked, and medical workers must be able to do their jobs without any sort of
discrimination. The protection of the right to health in times of armed
conflict is addressed in a number of areas of international humanitarian law;
these include the protection of the right to care and the protection of basic
services for maintaining health. Moreover, protection is needed for the
resources necessary to maintain health, such as food, water for drinking,
hygiene practises, and habitat. It is prohibited to assault, disable, or make
these services unusable in order to ensure such protection. Attacks on food
supplies, agricultural areas, harvests, herds of animals, and irrigation
systems are prohibited since they restrict access to food.
HEALTH
PROTECTION UNDER IHL
“In international and
non-international armed conflicts”, the Geneva Conventions and Additional
Protocols, as well as the CIL, stipulate that medical personnel, facilities,
and transports, as well as the wounded and sick, may not be attacked or harmed,
and that the provision of health care may not be unduly impeded.[4]
GRAVE
VIOLATION OF INTERNATIONAL HUMANITARIAN LAW
A targeted attack on a
medical facility is a violation of IHL and may constitute a war crime if it was
carried out-
·
Intentionally
or purposeful,
·
as
a result of negligence resulting from a failure to properly verify the military
or civilian character of the target,
·
a
disproportionate response to the perceived military threat,
·
or
carried out without advance warning of an impending attack.
MEDICAL
PERSONNEL
Whether military or
civilian, medical workers performing their solely humanitarian mission must be
respected and safeguarded from attack and harm, unless they engage hostile acts
outside of their humanitarian activity[5].
"Medical personnel" is a term used in the Geneva Conventions and
Additional Protocols to describe individuals, whether temporary or permanent,
who are solely assigned to perform medical tasks by a party to a conflict, as
well as medical professionals who are members of the Red Cross and Red Crescent
societies or specific humanitarian organisations.
Other people providing
medical care, however, are typically safe from harm and intervention.
Regardless of whether they fall under the category of "medical personnel,"
the two Additional Protocols provide protection to all healthcare providers who
uphold their professional ethical requirements, such as the duty to provide
impartial care to everyone. People cannot be punished for abiding by medical
ethics' rules, forced to forego actions that are required by medical ethics, or
forced to go against its dictates. Health care professionals have been
threatened, imprisoned, charged with crimes, or even killed for upholding their
ethical duty to provide care impartially, regardless of the patient's
affiliation or political ideology, in a number of different countries around
the world, including Chechnya, Kosovo, Burma, and Syria. The only limitation is
to medical secrecy, where it is illegal under national law to disclose information
on ill or injured patients who are receiving care from a health worker. Insofar
as they are civilians, CIL stipulates that medical staff are immune from
attack, unless and until they take part in hostilities directly.
THE
WOUNDED AND SICK
Parties to a war are
required under the Geneva Conventions and Additional Protocols to respect the
injured and sick by providing them with medical care and attention as soon as
feasible and with the least possible delay. In the midst of hostilities,
parties are required to adopt all feasible measures, subject to the
availability of resources and practicality.
Moreover, nondiscrimination is a core concept of international
humanitarian law. “The Geneva Conventions and Additional Protocols” require,
among other things, that the injured and sick must be treated humanely and
cared for without discrimination by a party to the conflict, with decisions
based solely on medical reasons. By definition, the injured and sick do not
engage in hostilities, but like civilians, they may lose their protection
against attack if and when they engage in hostilities directly.[6]
Both the First and Fourth
Geneva Conventions safeguard civilians from the effects of conflict. This
involves the formation of hospital safety zones and the protection of civilian
hospitals and their personnel, without regard to race, nationality, or religion
in particular. These provisions have
been incorporated into CIL.
MEDICAL
TRANSPORTATION AND UNITS
Under international
humanitarian law, the hospitals, clinics, and pharmacies, whether military or
civilian, fixed or mobile, permanent or temporary, must be respected and
defended in all situations. Similarly, medical transports designated solely for
the transportation of wounded and sick individuals, medical professionals,
equipment, and supplies must be recognised and protected.
According to military
regulations, the term'respect and protect' mandates that medical units not be
attacked, shot upon, or otherwise harmed. They should not be utilised to shield
military objectives from attack either. Medical transporters generally have the
same level of protection as mobile medical units, according to official
practise. If they are used in ways that are harmful to the enemy, such as using
a hospital for military operations or transporting weapons in an ambulance,
they both lose their protection.
Attacks against hospitals,
clinics, or other locations housing sick or injured people are classified as
war crimes under the Statute of the International Criminal Court, just as
attacks on ambulances bearing the Geneva Conventions' emblem are, provided the
target is not a military target. A party must give notice before an attack and
take precautions to minimise harm to civilians inside the institution if
medical facilities or transports are utilised for military reasons, such as
hospitals that serve as military outposts or ambulances that transport weapons.
UTILIZATION OF DISTINGUISHING
EMBLEMS SAFEGUARDED UNDER THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS
The emblem—the red cross, the red crescent, or the red
crystal—when used as a protective measure serves as a conspicuous reminder of
the protection medical personnel, medical units, and medical transports are
afforded by the Geneva Conventions and their Additional Protocols. This covers
military medical personnel, units, and transports during an armed conflict as
well as medical personnel, units, and transports of National Red Cross and Red
Crescent Societies authorised to assist the armed forces' medical services by
the State, State-certified civilian medical units permitted to display the
emblem, and medical personnel in occupied territory. The protective device's
symbol should be visible and large enough to assure protection. Moreover,
special signals may be used by medical units and transporters (such as light
and radio signals). When employed as a signifier, the logo links an object or
person to a member of the International Red Cross and Red Crescent Movement.[7]
In this instance, the size of the sign should be modest. It is a war crime to
attack structures, materials, medical units, transporters, or personnel
exhibiting unique symbols.
MISUES OF THE EMBLEM
Any use of the insignia not specified by the IHL is
deemed improper. When it leads in death or serious injury, perfidious use of
the symbol, such as to shield or conceal combatants, constitutes a war crime.
THE RED CROSS
AND RED CROSS MANDATE
The Red Cross
Movement consists of –
·
“The International Committee of the Red Cross(ICRC)”,
·
“The International Federation of the Red Cross(IFRC)”,
and
·
“National societies”.
The ICRC and
IFRC have their headquarters in Geneva, whereas the National Societies are
headquartered in their respective states. The ICRC's mandate, derived from the
Four Geneva Conventions, is to offer humanitarian protection and support during
international and non-international armed conflicts. At the crossroads of human
needs, state sovereignty, and international organisations, the ICRC operates.
It has access to governmental authorities and the local population and is
rooted in its values. It has influence within nations and on the world stage,
especially thanks to the International Conference and its observer status at
the United Nations General Assembly.[8] The
ICRC has the authority to take action with force of law and broaden its global
reach. The ICRC is able to provide people in need with food, medical care,
shelter, and water thanks to the current legal system and methods for
humanitarian protection and support.
THE RED CROSS
MOVEMENT
The Red Cross
Movement began in 1864, but with the passage of the Geneva Conventions I–IV at
the end of the Second World War, it fully came into its own. States have
granted permission for the Red Cross to be present on their sovereign territory
through a number of international agreements, including the Geneva Conventions
I–IV, the Statutes of the Red Cross and Red Crescent Movement, the Statutes of
the ICRC, and individual Headquarters Agreements drafted by the ICRC and
governments.[9] The Red Cross is
able to respond independently to humanitarian crises because to these
international agreements and the Red Cross Movement's governance structure
(from Geneva via National Societies to the field). This means, for instance,
that while the WHO may have the authority to command and coordinate global
health initiatives and policy, The Red Cross is able to act on its own: States
can directly request its assistance, it can do so through National Societies of
States, and its International Conference can create specialised programmes like
the Health Care in Danger project 2011-2015.
The Red Cross
was founded with the intention of providing medical care for wounded soldiers.
Henry Dunant envisioned a group of volunteer nurses and doctors who would
assist all wounded troops, regardless of which side they fought on. From these
beginnings, the Red Cross has expanded its healthcare goals and capacities.
The Movement is
composed of three distinct branches:
·
The International Committee of the Red Cross,
·
The International Federation of the Red Cross, and
·
The National Societies.
Generally
speaking, the International Federation of Red Cross and Red Crescent Societies
(IFRC) coordinates development efforts with relief operations to strengthen the
capacities of its member National Societies.[10] The
IFRC's activities are focused on promoting humanitarian ideals, disaster
response, disaster preparedness, and health and community care. It aims to
encourage, support, and publicise any humanitarian endeavours made on behalf of
the most disadvantaged people by its member national societies. It runs
independently, just like every other Red Cross component, therefore it is not
"governmental, political, racial, or sectarian in nature." Through
National Societies, the IFRC has access to local knowledge and skills, which
enables it to respond to disease outbreaks effectively.
In accordance
with Article 6(1) of the IRCRCM Statutes, “the International Federation of Red
Cross and Red Crescent Societies is composed of National Red Cross and Red
Crescent Societies”. It operates under its own constitution with all the powers
and responsibilities of a legal entity.
Article 6(3)
states that the “general object of the Federation is to inspire, encourage,
facilitate and promote at all times all forms of humanitarian activities by the
National Societies, with a view to preventing and alleviating human suffering
and thereby contributing to the maintenance and the promotion of peace in the
world”.
In accordance
with Article 6(4)(f) of the IRCRCM Statutes, Its duties include organising
National Societies' participation in efforts to safeguard the public's health
and advance social welfare in partnership with their respective national
authorities. Any humanitarian endeavours carried out by its member country
societies on behalf of the most disadvantaged people are encouraged,
facilitated, and promoted by it. Lastly, "in each nation, the Federation
shall function via or in collaboration with the National Society and in
accordance with that country's laws." The IFRC benefits from the National
Societies' local volunteers. It has access to local information and skills,
making it a vital resource in the event of a disease outbreak.[11]
National
Societies must first be recognised by the ICRC and then accepted by the
International Federation in order to participate in the IRCRCM. Eleven
prerequisites for National Societies' recognition are listed in Article 4 of
the IRCRCM Statutes. According to Article 4(1), National Societies must be
founded on the soil of a sovereign state that is a party to the Geneva
Convention for the Improvement of the Condition of the Wounded and Sick in
Military Forces in Field. Additionally, in accordance with Article 4.3), a
National Society must be duly acknowledged as a voluntary aid society auxiliary
to the public authorities in the humanitarian field by the legal government of
its country, in accordance with the Geneva Conventions I, II, III, and IV of
1949 and national law.
CONCLUSION
It is challenging and requires a
variety of strategies centred on safety, respect, and proactive steps to
address insecurity in order to provide the health treatment of people in armed
conflict or other violent situations. Health care professionals and their
patients are more vulnerable in times of conflict because they are either
directly targeted by state action or by the actions of armed groups, or they
suffer indirectly because states fail to uphold their commitments under the
right to health. In situations where there is no armed conflict but health
workers, facilities, patients, and ambulances are subject to threats, attacks,
and other forms of interference and denial, HRL fills an important gap. IHL
remains a crucial set of guidelines for addressing health obligations in armed
conflict, with HRL serving as a powerful complement. The protection of the
needs and interests of the weak and oppressed is one of the most important
accomplishments of human rights. The cornerstones of a human rights approach to
health care in conflict are the values of non-discrimination and equality, as
well as the rights to availability, accessibility, acceptability, and quality
in health care. A powerful approach to resolving the suffering of medical staff
and patients in tense situations is to encourage and enforce the promises to respect,
protect, and fulfil through involvement and accountability. It is true that
this provides a strong framework for addressing some of the recommendations
made during the 31st International Conference of the Red Cross and Red
Crescent, including support for the promotion and dissemination of obligations
under both IHL and HRL. Human rights organisations have also started to
contribute to improving respect for and accountability for violations of IHL
and HRL in armed conflict. If they are strictly regulated, human rights
techniques can be utilised to advance humanitarian law concepts that respect
and protect medical personnel and patients as distinct armed conflict victims.
The time has come to properly appreciate the value of human rights in reversing
the powerlessness experienced by those in need of care and those trying to
provide it in all crisis situations.
BIBLIOGRAPHY
·
Mina
Radoncic and Ximena Galvez, “Humanitarian Access in Armed Conflicts: Main
Takeaways” 2021, https://www.genevacall.org/humanitarian-access-in-armed-conflicts-main-takeaways/#:~:text=It%20focuses%20on%20providing%20material,providing%20shelters%2C%20safe%
·
“Respecting
and protecting health care in armed conflicts and in situations not covered by
international humanitarian law” by ICRC
·
https://www.legalservicesindia.com/article/677/Health-Care-During-Armed-Conflict.html#:~:text=Right%20to%20health%20during%20armed%20conflict,-The%20right%20to&text
·
K.
H. A. Footer and L. S. Rubenstein, “A human rights approach to health care in
conflict”, Volume 95 Number 889 Spring 2013
·
See
AP I, Art. 8(c)
·
“Respecting
and Protecting Health Care in Armed Conflicts and in Situations Not Covered by
International Humanitarian Law”, by the Advisory Service of the ICRC
·
https://www.msf.org/primer-protection-medical-services-under-international-humanitarian-law
·
“Implementing
International Humanitarian Law: From Law to Action” the advisory service of the
ICRC
·
Council
of Delegates (ICRC), ‘Agreement on the Organisation of the International
Activities of the Components of the International Red Cross and Red Crescent
Movement—The Seville Agreement’ (Council of Delegates, ICRC, 25–27 November
1997). www.icrc.org/eng/resources/documents/misc/57jp4y.htm, preamble (Seville Agreement)
·
Statutes
of the Movement art 3(2) National Red Cross and Red Crescent Societies
·
Art
6(1) of the IRCRCM Statutes
·
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7226897/
[1]Mina
Radoncic and Ximena Galvez, “Humanitarian Access in Armed Conflicts: Main
Takeaways” 2021, https://www.genevacall.org/humanitarian-access-in-armed-conflicts-main-takeaways/#:~:text=It%20focuses%20on%20providing%20material,providing%20shelters%2C%20safe%
[2] “Respecting
and protecting health care in armed conflicts and in situations not covered by
international humanitarian law” by ICRC
[3] https://www.legalservicesindia.com/article/677/Health-Care-During-Armed-Conflict.html#:~:text=Right%20to%20health%20during%20armed%20conflict,-The%20right%20to&text
[4] K.
H. A. Footer and L. S. Rubenstein, “A human rights approach to health care in
conflict”, Volume 95 Number 889 Spring
2013
[5]
See AP I, Art. 8(c)
[6]
“Respecting and Protecting Health Care in Armed Conflicts and in Situations Not
Covered by International Humanitarian Law”, by the Advisory Service of the ICRC
[7]
“Implementing International Humanitarian Law: From Law to Action” the advisory
service of the ICRC
[8] Council
of Delegates (ICRC), ‘Agreement on the Organisation of the International
Activities of the Components of the International Red Cross and Red Crescent
Movement—The Seville Agreement’ (Council of Delegates, ICRC, 25–27 November
1997). www.icrc.org/eng/resources/documents/misc/57jp4y.htm,
preamble (Seville Agreement)
[9] Statutes
of the Movement art 3(2) National Red Cross and Red Crescent Societies
[10] Art
6(1) of the IRCRCM Statutes
[11] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7226897/
Article Information
“SAFEGUARDING MEDICAL SERVICES DURING WAR”
Authors: KHUSHI KATRE
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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