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Syria, International Humanitarian Law, and Access to Health Care in Non-International Armed Conflict

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Source Courtesy of Wikimedia

Courtesy of Wikimedia

This previous Wednesday, The New York Review of Books published on their blog a recent call to the Syrian Government, all armed parties in the conflict, the United Nations, and international donors by doctors and medical professionals to allow and support their “medical colleagues in Syria to … treat patients, save lives, and alleviate suffering without fear of attacks or reprisals.” They detail incredible devastation to Syria’s health system, including “[s]ystematic assaults on medical professionals, facilities, and patients” including statistics that “an estimate 469 health workers are currently imprisoned, and about 15,000 doctors have been forced to flee abroad.”

Their powerful piece highlights the grave importance of access to health care in internal armed conflicts, and the critical health impacts the lack of access to care can have on the populations affected in the future well after the conflict ends, including the potential for epidemics due to the lack of access to vaccinations for children during the conflict. Other organizations, like Physicians for Human Rights, have also spoken out on the assaults on medical care in the Syrian conflict, and called for action to alleviate the distressing level of destruction of the health system. The International Committee of the Red Cross (ICRC) has developed a global campaign, Health Care in Danger, aiming to improve security and delivery of health care in conflict in the face of violence. This current health crisis caused by armed conflict gives health and human rights lawyers a chance to consider how international humanitarian law (IHL) could be influential and hold violating parties accountable for this incredible risk to an entire population’s health, the destruction to a country’s health system, and its ability to legitimately attain a reasonable standard of health in the future.

Syria is a party to the Geneva Conventions (1949, ratified by Syria in 1953) and to Protocol I (1977, ratified in 1983).  Convention (IV) obligates Syria to “general protections of populations against certain consequences of war.” Common Article 3 holds that this includes “armed conflict not of an international character occurring in the territory” of a Party to the convention – an important development in international humanitarian law to broaden the Convention to include internal armed conflicts. Articles 16-22 deal with the general protection obligations towards toward the wounded and sick, with Article 16 establishing that “[t]he wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.” Part II (Articles 8-34) of Protocol I “extends the protection of the Conventions to civilian medical personnel, equipment, and supplies and to civilian units and transports.” Protocol I also obligates Syria to co-operate with the United Nations in situations of serious violations of the Protocol or of the Convention, which we are now seeing in action with the UN inspections of the use of chemical weapons in August. In general, the discussion of war crimes falls under these IHL treaties and obligations.

The ICRC, the international NGO established to direct and coordinate humanitarian assistance during armed conflicts or situations of violence, is the typically the focal point of IHL assistance during such conflicts. The ICRC has a “right of initiative” that allows it to offer its services or to “take any action it considers appropriate to help victims of conflict.” Still, it is difficult to know what the ICRC has accomplished, or is working to accomplish, in relation to the Syrian conflict, as a key to their work is confidentiality. The ICRC has not shared any detailed information on its role negotiating agreements between parties in the conflict towards hospitals and neutral zones, but it has released a statement in regards to its position on the protection of health care personnel and aid workers.

Unfortunately those affected in Syria by the alleged breaches of the Geneva Convention cannot simply call a timeout and adjudicate their claims and be provided with any sort of immediate relief. This summary from the ICRC helps to explain the enforcement of the Convention, noting that in general the enforcement mechanism is exercised in step with criminal jurisdiction in national courts. Other options include trial before the International Criminal Court (ICC) or the forming of an International Criminal Tribunal. The former is a less likely option because Syria has only signed, but not ratified, the Rome Statute obligating it to the jurisdiction of the ICC, and would only be in play if the United Nations Security Council refers the conflict to the ICC. The latter is a possibility, which similarly would need to be established by a resolution from the Security Council, and could happen in the future, though unlikely to pass through the Council until well after the dust has settled on the conflict (and even then it’s not a certainty, given the politics of the Council, though it hasn’t stopped advocates from trying). The difference between an ad hoc tribunal and a case before the ICC will likely depend upon politics and the international community’s assessment of which avenue is better solution will depend upon the end of the conflict and how Syria is best likely to recover.

Ultimately I don’t believe IHL is a panacea for the humanitarian crisis in Syria, but it does provide additional reference points for those interested in the intersection of health and human rights and affecting progress toward international commitment to the right to health.

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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