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01.09.20

What does International Humanitarian Law has to Offer to Public Health in Situations of Armed Conflict?

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In Global Health Law, it is clear that we are used to thinking about health-related problems, seeing them in the eyes of laws and know whether such laws could bring or have already brought any favorable changes to peoples’ lives in any way.

Conflicts and wars cause catastrophic effects on overall human health. When hearing about the crises happening in places like Syria, Yemen, and DRC, we all would understand why diseases in such settings could actually be more than just diseases. In a humanitarian crisis, public health challenges get worse; interventions would have limited effects in preventing/ controlling the spread of diseases. While public health responses cannot solve political instabilities or armed conflicts, they would significantly be disrupted due to factors such as insecurity, terrorism, internal displacement and migration, rights violations, etc. This blog will touch on the roles of international humanitarian law (IHL) and international human rights law (IHRL) in advancing human health needs in international and non-international armed conflict settings.

IHL (also called Law of Armed Conflicts/ Law of War) is a type of international law governing conducts of States and non-State actors as well as situations of both international and non-international armed conflicts. Although IHL and IHRL are interrelated with the protections they confer to human health and wellbeing, IHRL is applicable in all kinds of situations (with the exception of rights subject to the rule of derogation) while IHL comes in to play only when situations reach the level of armed conflict. It, therefore, can be argued that state and non-state actors in armed conflict situations are obliged to respect the human right to health protected under the International Convention on Economic, Social and Cultural Rights. Although IHL does not provide for special regulations for migrants in humanitarian settings, it protects them as civilians in armed conflicts. This leads to the next question – does IHL, being the law governing armed conflicts, cover issues of healthcare services in humanitarian settings and if so, who are the beneficiaries?

IHL tries to protect health in armed conflicts by requiring parties to an armed conflict to “ensure that adequate medical care is provided [without discrimination] to [the wounded and sick] as far as practicable and with the least possible delay”[1]. It demands parties to refrain from causing serious injuries to the bodies or health of the wounded and sick (which otherwise would constitute a war crime) and from denial of medical treatment (constitutes cruel or inhuman treatment).  Parties to an armed conflict are also required to refrain from impeding the provision of care and to facilitate access to the wounded and sick and protect medical personnel.

States are required to maintain a functioning healthcare system in place as part of their obligation to fulfill the right to health, including in situations of armed conflicts. Similarly, IHL requires States, “to the fullest extent of the means available, ensure and maintain medical and hospital establishments and services and public health and hygiene, and adopt the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics”.[2] One great advantage for public health, under both IHL and IHRL, is the fact that States cannot justify their failure to fulfill their obligations due to lack of resources. Interestingly, “[even] in cases where resources are extremely limited, [IHL requires States to] adopt low-cost programs that target the most disadvantaged and marginalized members of the population”.[3] For protecting the civilian population, parties to an armed conflict are required to ensure that the necessary humanitarian assistance is provided.

Although IHL has made these important stipulations to make healthcare available in armed conflicts, it is important to keep in mind that due to the very existence of conflicts in such settings, States’ commitment in fulfilling their obligations is likely to be restrained by several factors. Perhaps, this should be where public health law needs to meaningfully step in as many important issues considered within it (such as primary healthcare, human rights, equity, nutrition, food supply, etc.) are significantly impacted by the situations in arm

[1] ICRC – Factsheet, Respecting and protecting health care in armed conflicts and in situations not covered by international humanitarian law, at 1.   https://www.icrc.org/en/document/respecting-and-protecting-health-care-armed-conflicts-and-situations-not-covered

[2] Ibid, at 3.

[3] Id.

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