“One of the first victims of war is the healthcare system itself,” Marco Balden, ICRC Chief War Surgeon
It has been more than 150 years since Henry Dunant saw the devastation of the battle at Solferino and broke his business trip to join other volunteers in attending to the injured. Appalled by the lack of arrangements to care for the wounded in conflict, he later wrote with two suggestions: the establishment of relief societies and an international treaty as the basis for the relief of the wounded. These events led to the establishment of the International Committee of the Red Cross (ICRC), as well as the birth of Geneva law. This area of law, at the heart of modern International Humanitarian Law (IHL), was created to protect, respect and care for the sick and wounded during conflict, and the healthcare workers and facilities providing care.
IHL forms its protective obligations on the basis that the wounded, sick, and shipwrecked must be ‘respected’ and ‘protected’. Respecting the sick and wounded means that they are prohibited from being the target of an attack, and obliges parties to the conflict to “…abstain from acts, which would endanger a wounded, sick, or shipwrecked person or inflict (further) injury on him or her.” To this is added the duty to protect which creates positive obligations and requires parties to the conflict to take active measures to safeguard the protection of the sick and wounded. These two requirements are at the heart of the protective regime established by the Geneva Conventions. All the other obligations established within IHL concerning the sick and wounded, including the duty to treat humanely and without discrimination, are concrete manifestations of the primary principles.
However, despite the comprehensive legal protections attacks on healthcare remain a devastating feature of modern conflict. In 2020, 162 healthcare workers were killed as a result of violence, with a further 253 injured or kidnapped. Medecins sans Frontieres (MSF) reported the loss of 26 workers since 2015, with the largest single event taking the lives of 42 people, including 14 workers. The protections have been eroded by a number of features of modern warfare. These include the use of domestic counter terrorism legislation that prevents any support for terrorist organisations, as well as the use of so-called ‘hospital shields’ where combatants use hospitals for military purposes. However, perhaps the most damning evidence of the failure of IHL to protect healthcare during armed conflict comes from Syria.
It is suggested that the conflict in Syria has weaponized healthcare, and is said to be the “most dangerous place on earth for health-care providers.” A study by The Lancet suggests that since 2015 50% of Syria’s doctors have fled, with 814 medical personnel killed between 2011 and 2017. This loss of medical expertise has significant ramifications for the civilian population, with the recent earthquake in the region demonstrating how important the respect for the maintenance of healthcare is during armed conflict.
The ‘weaponization’ argument arises from the evidence of the systematic targeting of healthcare workers and facilities which has been used as a deliberate strategy “using people’s need for health care as a weapon against them by violently depriving them of it.” The deliberate targeting of healthcare is clearly in violation of IHL, and the ICRC, the UN, and the World Health Organisation have denounced the violence and called for greater compliance with IHL.
In 2011, the ICRC established a specific programme to tackle violence against healthcare, and in 2016 the UN Security Council passed resolution 2286, which reaffirms respect for IHL. However, to date little progress has been made. It is evident that more needs to be done to protect patients and healthcare during armed conflict, with an increasing focus over the past decade on legal implementation and compliance by both states and non-state armed groups. My research into this area focusses on the limited prosecutions for violence against medical facilities and personnel through International Criminal Law and investigates the relationship and potential weaknesses in the current enforcement regime for IHL.
This piece is part of a larger chapter which features in: Research Handbook: Patient Safety and the Law, edited by John Tingle, University of Birmingham, Ross Millar, University of Birmingham, Caterina Milo, University of Cambridge, Gladys Msiska, Kamuzu University of Health Sciences, Malawi. Edward Elgar Publishing. Forthcoming. https://www.e-elgar.com/
 Jann K. Kleffner, ‘Protection of the Wounded, Sick, and Shipwrecked’ in Fleck D (ed), The Handbook of International Humanitarian Law (3rd edn CUP, 2017) 325