By Prof. Brigit Toebes, Director of Global Health Law Groningen, b.c.a.toebes(at)rug.nl
While there is no global system for reporting attacks, recent reports from Human Rights Watch (HRW) and the International Committee of the red Cross (ICRC) suggest that health workers and their facilities are frequently targeted. The ICRC reports that attacks, which include the bombing, shelling, looting and shooting into hospitals, clinics, first-aid posts, and pharmacies, have become common in conflicts all over the world. In Syria, these attacks have been extraordinary in ferocity and scale, according to HRW.
During armed conflicts, healthcare workers (or medical personnel) do not operate in a moral or legal vacuum. As I argued in a paper on medical ethics, international humanitarian law (IHL), and human rights law (HRL) hold that all sides of the conflict should respect, protect and guarantee the safety, impartiality and neutrality of medical personnel during armed conflicts.
The so-called principle of ‘medical neutrality’ is a key concept of medical ethics, but also finds explicit recognition in IHL and HRL standards. It dictates that all healthcare workers should be able to carry out their duties and use their hospitals and medical equipment in an undisturbed fashion. According to Rule 25 of Customary International Law “[m]edical personnel exclusively assigned to medical duties must be respected and protected in all circumstances”. Based on the human right to health the parties involved in an armed conflict should guarantee the availability, accessibility, acceptability and quality of medical services during armed conflicts. We may assume that these commitments apply to States as well as non-state actors exercising de facto authority over a population.
Specific problems in the context of ‘medical neutrality’ arise when the health care professionals’ duty to preserve life is not in conformity with their professional duty towards their employer (eg. the military). For example, they may be asked to declare an entire troop fit for engagement when they are not; or they may be compelled to prepare a sick soldier as quickly as possible for a new battle situation.
This dimension of ‘medical neutrality’ is also at stake when it comes to the legal protection of doctors who are prosecuted for treating terrorists. Lewis et al explain that these matters are cause for concern. The judgment in De La Cruz-Flores v. Peru (2004) of the Inter-American Court of Human Rights sets an important example by ruling that Peru violated several human rights by prosecuting a physician who had provided medical care to members of Sendero Luminoso.
The medical neutrality of healthcare personnel during armed conflict deserves our ongoing attention. Much work is still to be done when it comes to the implementation and enforcement of the rules, and the prosecution of those responsible for the attacks on healthcare facilities (see also the remarks by Coppens and Daccord from the Netherlands Red Cross in NRC Handelsblad).