Engaging Armed Non-State Actors on the Protection of Health Care: Some Promising Steps

About the author(s):

Ezequiel Heffes

Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York. Prior to joining Watchlist, Ezequiel worked for Geneva Call as a Senior Policy and Legal Advisor and for the ICRC in various operational positions in Colombia, Afghanistan and the Democratic Republic of the Congo. He holds a PhD from the University of Leiden, an LLM in IHL and Human Rights from the Geneva Academy, and a law degree from the University of Buenos Aires School of Law. He has widely published on different international law issues. Ezequiel is the author of Detention by Non-State Armed Groups under International Law (Cambridge University Press, 2022) and the co-editor of International Humanitarian Law and Non-State Actors. Debates, Law and Practice (Springer/Asser Press, 2020).

Attacks against health care in armed conflicts represent one of the greatest humanitarian challenges of our days. In a number of ongoing situations, medical workers are kidnapped, injured or killed, medical facilities and transports are bombed, shelled or looted, wounded fighters and patients are often under attacked and fighting takes place within or near health care facilities. Access to medical services has also been obstructed in a number of places. While the legal obligations of parties to armed conflicts seem to be straight-forward (although some deserve further analysis), implementing strategies specifically aimed at improving their compliance is still a challenge. This piece highlights three important and complementary steps now in place to address this situation, particularly with respect to armed non-State actors (ANSAs): i) the UN Security Council’s Resolution 2286, together with the UN Secretary General’s list of recommendations pursuant this Resolution; ii) the UN Secretary General’s list of actors that commit grave violations of children’s rights, which includes amongst them those perpetrating attacks against hospitals; iii) the new Deed of Commitment by Geneva Call on the protection of health care.

The Humanitarian Context

One of the latest ICRC reports recorded 2,398 incidents of violence against health care in 11 countries, from the beginning of 2012 to the end of 2014. In total, more than 4,000 people were victims of this type of violence. According to the ICRC, ANSAs were responsible for more than 700 of those incidents. Although many of these consisted of mere threats, ANSAs have also killed health care personnel and patients. Additionally, they have looted health care facilities and forced medical staff to provide free treatment and treat their own members before others (here, at 7-8). By occupying or using medical facilities, ANSAs have also put them at risk of attacks by other parties.

These behaviours have entailed different consequences, such as loss of life, injury, destruction, and deprivation of vital care. Besides their immediate impact, attacks against health care personnel and facilities can also paralyse the delivery of emergency services and disrupt access to health care for the wider civilian population, and even for wounded fighters. Attacks may also lead to health care staff leaving conflict areas, thus further exacerbating the trend. Finally, in the long term this could certainly affect the provision of medical care even after the fighting has stopped.

Conversely, ANSAs sometimes act as providers of health care, including treating their own wounded fighters. Some ANSAs have even developed their own ways to care for the populations living in areas under their control. Some examples include the EPLF in Eritrea, POLISARIO in Western Sahara, FARC-EP in Colombia, the LTTE in Sri Lanka and Hezbollah in Lebanon (Murray, at 258). Similarly, it has been reported that members of the Free Syrian Army have set up a secret hospital to care for individuals.

As can be seen, ANSAs’ policies on health care can be varied, and while some of them have attacked health facilities, workers and patients, other groups have actively provided for health care. Interestingly, the consultation process carried out by the ICRC between 2012 and 2014 with 36 ANSAs indicates that there is generally a strong potential for ANSAs’ engagement on this issue. It is indeed affirmed that “[t]he vast majority of armed groups consulted agree with the need to respect and protect health care [and] [s]ome have acted on this commitment by integrating their obligations towards health care in their doctrine, education, training and sanctions” (at 15).

Compliance with International Law by ANSAs: Some Reflections

In order to understand the variation of ANSAs’ behaviours with respect to health care, it is important to briefly address their reasons to comply or not with international law. Generally, compliance has been defined as “behavioural conformity with existing norms and regulations”. In the context of ANSAs, “this means the observed match between behaviours of non-state armed groups and rules of IHL” (Jo, 65). Importantly, compliance should be seen as a spectrum, rather than as a two-way switch that is either on or off.  ANSAs, in this sense, are not entities that either violate or respect the whole international legal framework, but they may instead follow certain rules while disregarding others.

In this context, it shall not come as a surprise that while some of them have deliberately attacked medical personnel and facilities, others have attempted to evacuate and treat wounded fighters and civilians in an attempt to respect international law.  Generally, in non-international armed conflicts (NIACs), ANSAs’ respect can be linked to several factors, such as their lack of knowledge of the law, or the absence of an incentive to abide by the applicable rules. They may also deliberately decide to breach their international obligations. As affirmed by Krieger, “[a]ctual decisions to obey a legal norm result from a complex mixture of diverse motivations. Power relations as well as historical, political, social and anthropological conditions determine these motivations is that compliance is context-dependent” (at 4-5). ANSAs’ fragmented structures, their lack of a centralized command authority and their capacity to implement the law can also present important challenges for compliance (2017 Garance Talks Report, at 15). Furthermore, ANSAs may have different approaches to specific legal provisions throughout the conflict – a group going through a peace process, possibly looking for political legitimacy, may adopt a different attitude than a group whose main goal is to control the civilian population or to show its strength.

Some Promising Examples of Engagement

When dealing with engaging ANSAs on the protection of health care, an important step has been the UN Security Council Resolution 2286 (2016), the first-ever resolution to address attacks on health services in armed conflict. The UN Secretary General published a list of recommendations pursuant this Resolution, including some “measures to enhance the protection of and prevent acts of violence against the wounded and sick, medical and humanitarian personnel exclusively engaged in medical duties, and their means of transport and equipment, as well as hospitals and other medical facilities, and to better ensure accountability for such acts” (at 1). In particular, Recommendation 7, entitled “Promoting awareness and compliance”, affirms that in order to promote a culture of respect for IHL and human rights law, with a focus on the right to health care and the protection of medical care in armed conflict, member States and parties to conflict, with the support from the UN and relevant organizations, “should undertake training programmes for military personnel and members of non-State armed groups on the protection of medical care in armed conflict” (at 6). Recommendation 9 also encourages parties to take and enforce internal measures, such as command orders, dissemination activities, sanctions, etc., aimed at enhancing the protection of medical care in armed conflict (at 6-8).

Two complementary examples can be identified on engaging ANSAs on this issue. The first one leads us to examine ANSAs’ signing of so-called “Action Plans” established by the UN, and leading to the groups being successfully delisted from the UN Secretary General’s list of actors that commit one or more of five grave violations of children’s rights (as denial of humanitarian access to children does not trigger the listing process). Although these are mostly oriented to the protection of children, one specifically relates to attacks against schools and hospitals, and the UN Secretary General has been listing and examining parties’ behaviours, including ANSAs, that carried out attacks against health care facilities (here for the last report). Even though no listed parties have yet put in place measures specifically on this topic, there is nothing to prevent an “Action Plan” concluded between the UN and an ANSA on the protection of health care, in particular considering that several groups have signed these with respect to other violations (at 40-41).

The second example can be found in Geneva Call’s new Deed of Commitment for the protection of health care in armed conflict, launched in November 2018. This tool adds to the other three declarations already implemented on the prohibition of sexual violence and gender discrimination, the protection of children and the ban of anti-personnel mines. They all allow ANSAs to pledge to respect specific humanitarian norms and be held publicly accountable for their commitments.

The new Deed includes obligations for ANSAs not to attack health care personnel, facilities and medical transports (arts. 3, 4 and 5), and to give due warning in case they are “used outside their humanitarian functions to commit harmful acts, allowing them necessary time to remedy the situation or to safely evacuate” (art. 6). ANSAs also commit to “[e]nsure, maintain and provide access for affected populations to essential health care facilities, goods and services, without adverse distinction” in areas where they exercise authority (art. 8). Finally, a common provision to all Deeds affirms that ANSAs agree to take necessary measures in order to enforce their commitments (through internal orders, training, and sanctions) as well as to cooperate with Geneva Call to verify their compliance with them. Considering the success Geneva Call has had with respect to other thematic areas there are reasons to hope that it will be widely adopted.