Crisis of Command
America’s Broken Civil-Military Relationship Imperils National Security
“Seeking or providing healthcare must not be a death sentence,” stressed Joanne Liu, president of Doctors without Borders, during a speech to the UN Security Council on May 3. A few days earlier, bombs had blasted through the Al Quds hospital in Aleppo, killing the city’s last pediatrician, and then at a Syrian government maternity hospital. The Security Council voted unanimously in favor of a resolution demanding heightened protection for healthcare workers, their patients, and hospitals. “All too often, attacks on health facilities and medical workers are not just isolated or incidental battlefield fallout, but rather the intended objective of the combatants,” stated UN Secretary General Ban Ki-moon. “This is shameful and inexcusable.”
The intentional targeting of hospitals and medical staff is not unique to the Syrian war; they’ve been hit in the wars in Yemen, South Sudan, and Sri Lanka as well. In fact, the problem is so grave that the International Committee for the Red Cross (ICRC) has launched a new project called Health Care in Danger to raise awareness of the systemic problem.
But the situation in Syria is, in some ways, unprecedented. According to Physicians for Human Rights, a U.S.-based advocacy group, “the scale and brutality of the attacks on Syrian medical facilities and health professionals is unparalleled” in its 30-year history of documenting attacks on medical care. Michael Van Rooyen, director of Harvard Humanitarian Initiative, has concurred that “Syria’s been the most notable and notorious example” of a growing trend of intentional attacks on healthcare institutions. The situation has gotten so dire that medical professionals and NGOs there have been forced to provide care in the most unlikely of places, including factories, caves, and chicken coops.
The immediate deaths and injuries caused by attacks on hospitals is a tragedy. But the long-term effects might be even more devastating, as routine care for manageable diseases becomes unavailable. It is thus no wonder that targeting medical infrastructure is a war crime under international humanitarian law.
So why does it still bear the brunt of violence? Apart from many other conflict-related factors involved, international humanitarian law may itself play a role. In fact, medical care during conflict is intimately tied to the history of codified international humanitarian law. Henri Dunant, founder of the ICRC, was so taken by the plight of wounded soldiers that he launched a movement to create international laws to protect them. The list of protected persons was soon expanded to include medical professionals and hospitals providing impartial care to all wounded fighters and civilians.
But the protection regime remains vague on some key concepts. For instance, the law is not entirely clear on the rules that make medical units eligible for the protection it offers. According to the Additional Protocol II to the Geneva Conventions, medical units are protected “unless they are used to commit, outside their humanitarian function, acts harmful to the enemy.” Yet as the ICRC has noted, “IHL does not define the concept of ‘acts harmful to the enemy,’ nor the precise consequences of a loss of specific protection or how long this lasts.” For example, if a hospital does engage in “acts harmful to the enemy,” does it automatically become a legitimate military target or does it retain its civilian status?
Additional Protocol I, which regulates international armed conflicts, does provide some help by listing which activities would not remove such protection, including arming personnel for their own defense, maintaining guards, and treating members of the armed forces or other combatants. But the Additional Protocol II, which governs non-international armed conflicts, as some legal scholars classify Syria’s, does not contain such provisions.
This kind of fuzzy language is not simply fodder for academic intellectual games; it has real-world consequences. For instance, after the attack on the Al Quds hospital, the Syrian regime released a statement arguing that, “large parts of the east are held by jihadist rebels, including al Qaeda-linked Jabhat al-Nusra… Hospitals under their control are therefore considered legitimate targets.” This position is consistent with a decree issued by the regime in the early days of the conflict that criminalized the provision of medical care in areas controlled by those it considered terrorists.
In an unrelated 2015 report, noted legal scholars Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum concluded that UN policy also considered medical care for al Qaeda members impermissible, despite the law’s call for medical impartiality: “These references suggest that the Sanctions Committee and, by extension, its supervisory body—the Security Council itself—view medical care and medical supplies as forms of impermissible support to al-Qaeda and its associates (emphasis in the original).”
So what can be done apart from ending the conflict, or at a minimum, creating humanitarian safe zones? The international community has a few options. It needs to continue strongly condemning these acts, as the United Nations and a number of states and NGOs did after the strikes on hospitals and medical staff in Syria. Although the main groups working on the issue have spoken out, Liu and Peter Mauer, president of the ICRC, have expressed alarm at what they see as the new normal: “A dangerous complacency is developing whereby such attacks are starting to be regarded as the norm. They are part of the tapestry of today’s armed conflicts where civilians and civilian infrastructure are targeted... and health facilities are ‘fair game.’” They note that between 2012 and 2014 the ICRC documented 2400 attacks against healthcare facilities in just 11 countries. Most of these went unremarked. And even the United Nations was late to the game. It wasn’t until 2014 that the UN General Assembly recognized for the first time the severity of attacks against medical institutions and personnel occurring in conflicts around the world. Better late than never; silence in the face of the violation of norms not only weakens those norms, but also creates the space for new, potentially more dangerous ones to emerge.
Second, the international community needs to hold those who violate laws and norms to account. Doctors without Borders recently withdrew from the World Humanitarian Summit, which it called a “fig leaf of good intentions,” because it did not have a serious plan in place to deal with both state and non-state violators of international humanitarian law. Condemnations, while important and necessary, can only go so far in preserving this protection regime.
Third, in the long run, the international community needs to clarify the ambiguities in the law to prevent some would-be perpetrators from hiding their crimes under a cloak of legality. The legal regime regulating non-international armed conflicts needs particular attention: it is comparatively less developed than the regime regulating international armed conflicts. This is partly because sovereignty took precedent over civilian protections in internal conflicts.
Fourth, scholars and practitioners need to devote more time to researching humanitarian law violations. According to Leonard S. Rubenstein, from the Johns Hopkins Bloomberg School of Public Health, and Melanie D. Bittle, from the U.S. Institute of Peace, “no systematic reporting of assaults on medical functions in armed conflicts is in place, and no comprehensive review of the scope of the problem” has been conducted in years. Without appreciating what is happening on the ground, observers cannot begin to understand the magnitude and causes of such war crimes. This kind of research can also aid in determining how best to improve international humanitarian law. Efforts along the lines of the ICRC’s Health Care in Danger are a necessary step in the right direction, but far more needs to be done.
The importance of protecting medical facilities and personnel cannot be overstated. Syrian pediatrician Muhammad Wassim Mo’az, who remained in a conflict zone to provide life-saving care, should have been safe. His death, and other war crimes like it around the world, should come with consequences. Acting meaningfully in Syria now could send a powerful signal to perpetrators in other conflicts. As Mauer noted at the United Nations, “attacking a hospital, threatening a doctor, coercing a nurse to give preferential treatment to armed fighters, hijacking ambulances, using patients as human shields—these are not collateral damage. These are not sad realities we have to get used to. They are abominations to fight and trends to roll back.” It is time for the world to heed his call.