Red Lines and Red Crosses
International law fails to protect healthcare facilities in armed conflict. They need specific protection from harm.
If there is one thing that the whole world could be said to have agreed on and united around, surely it is International Humanitarian Law (IHL), as encapsulated in the Geneva Conventions. They were signed by every single state, a feat only replicated a handful of times, mostly around another world-unifying issue: climate change. Even the Convention on the Rights of the Child and the Chemical Weapons Convention have not reached that milestone.
Yet, despite this universal rejection of attacks on civilians and civilian infrastructure – especially, in the context of this Commentary, hospitals and healthcare workers – they occur daily. The World Health Organization monitors the extent of the problem, and at the time of writing, its dashboard stands at 855 attacks in 18 countries this year. This is almost certainly a gross underestimate, and only paints a broad-brush picture – while documenting 1,180 such attacks in Ukraine since January 2022, it does not convey that 190 of those facilities were completely destroyed. The vast majority of these attacks are intentional. During a period of analysis of attacks in Syria, 22% of all infrastructure damaged was healthcare-related, compared with only 3% for schools. This has led some to assert that the Red Cross is now the ‘Dread Cross’ – a target rather than a protection – and that protecting hospitals requires a different approach.
An important question is whether this is a problem for the international community at all. After all, the Geneva Conventions do not rule out an attack on a hospital. The law itself is simple – hospitals are protected – but this is caveated by ‘provided they are not military objectives’. The Conventions do not define all the circumstances in which hospitals lose their protection, but the International Committee of the Red Cross commentaries give illustrations: combatants setting up a firing position there; storing ammunition; sheltering troops; or using it as a ‘human shield’. This last is especially problematic. It is the nature of hospitals, when surrounded by fighting, to occupy a liminal space; they serve the health needs of anyone in need. Critically, they also have no power to reject combatants – so they can lose their protection because of an action over which they have no agency. This is something that current legal frameworks struggle to manage. Even when there are prosecutions, they are rarely successful. Indeed, some argue that focusing on accountability for war crimes through International Criminal Law may even be weakening some elements of the harder-to-prove IHL.
Indeed, some argue that focusing on accountability for war crimes through International Criminal Law may even be weakening some elements of the harder-to-prove International Humanitarian Law
Consider also the realities of military necessity. Close quarters fighting to rid a hospital of a prepared enemy force will be extremely challenging and costs many soldiers’ lives. It may significantly slow an advance (that may itself be time critical). It may allow the enemy to escape, regroup and attack elsewhere. These specific dangers may be overcome by a heavy bombardment that simply destroys the facility – but they are not the only relevant risks. The tactical advantage of an overwhelming attack comes with long-term operational and strategic costs that may be far greater.
The commander may legally strike the hospital that has lost its protection only if the military advantage achieved will outweigh the expected collateral damage. But how well-informed are commanders about the extent of that collateral damage? They know of course that it will involve civilian casualties, as hospitals in conflict-affected areas are typically overcrowded with the most vulnerable sections of society, seeking either treatment or refuge. There will also be the staff tending to them. These represent the direct harm of the attack. But is that it? Hospitals take years to build, require enormous resources to stock, and replacement staff for those who have been killed, injured or driven away by the violence take time to train or recruit. The health economy loses a critical node and so, for years after, those who seek care may not be able to access it effectively. People will sicken and die from perfectly treatable conditions, for lack of ongoing management of their long-term health conditions and for loss of capacity to treat their new ones. This is the indirect harm and it is vast; for every one killed by the attack itself, at least 11 die of these indirect harms. The groups most affected by both are the children, women, elderly and ill – the same groups least able to flee to access healthcare elsewhere.
There are other costs that are harder to quantify, but militarily may be even more apposite. It could conceivably be the best military solution, if the objective is to win the war, but it makes no sense at all if the objective is to win the peace. Victory achieved by destroying the capacity or will of the enemy to continue the fight only brings negative peace: the absence of fighting. It rarely lasts, because the capacity and will to fight can be regrown. As US counterinsurgency doctrine notes, ‘Kill[ing] 5 insurgents is counterproductive if collateral damage leads to the recruitment of 50 more, and loss of local support’. The rubble of a hospital is guaranteed to alienate the population, engendering a lasting sense of grievance that will fuel the will to fight again. Positive peace, where the factions share a sense of social justice such that neither wants nor needs to fight, is far more likely to persist. Access to healthcare is a key component of positive peace. If the commander knew that cumulative harms and grievance resulting from the hospital attack would also inspire their enemy to rise up again in five years and attack them even harder, would they still call in an airstrike? Or would they take the harder option and target the enemy at close quarters?
Can you still bomb a hospital, while somehow mitigating these problems? We often hear that IHL-compliant warnings are given to evacuate areas before they are attacked. The reality is that this is a normally a facade. A UK hospital, such as the one in which the author works, could undoubtedly be evacuated completely – for example if there was a major fire – but patients would come to harm. New patients would die waiting for ambulances, as frontline vehicles were diverted to moving existing patients. The frail or critically ill may well die from interruption of their care. The entire regional health system would have to slash routine and emergency care to cope, which would severely degrade it for weeks or months. And all of this in a stable, developed, interoperable health system. If it were the only functioning hospital in a region, where would the patients go? If the ambulance system were weak and overwhelmed by conflict casualties, who would move them? For a significant number, these notifications will simply give advance warning of their death – either in the hospital, or without adequate care nearby. No one should ever believe that you can bomb a hospital in a way that does not have extensive, enduring impacts on the population served by it.
Nor is this simply about influencing tactical decision-making. Degrading the health of a population has international consequences too
Nor is this simply about influencing tactical decision-making. Degrading the health of a population has international consequences too. People who are unsafe and cannot access basic services will try to move. Mass refugee flows negatively impact health and stability in surrounding countries and so are generally detrimental to the interests of the wider international community.
Ironically, it may be the approach of the international community that lies at the root of this problem. Evaluation of the ICRC Healthcare in Danger project suggests progress against its objectives of engagement, preparation and legislation; this is not a failure of advocacy on the part of such organisations. Nor is it (generally) the result of malfunctioning munitions, or human error. As then Médecins Sans Frontières International President Joanne Liu told the UN Security Council in 2016:
On the third of May, this council unanimously passed Resolution 2286. You, the Council Members, pledged to protect civilians and the medical services they need to survive. You passed the resolution in the wake of the obliteration of Al Quds Hospital, in Aleppo by the Syrian government and its allies ... Five months later, the resolution has plainly failed to change anything on the ground. This failure reflects a lack of political will.
Accepting international laws that allow commanders to determine military necessity for themselves, using ill-informed collateral risk assessments to decide what is subjectively proportionate, may be facilitating attacks on healthcare rather than stopping them. Increasingly it seems more likely to be used as a framework for the subsequent justification of an attack, than as a protection to prevent one.
So as conflicts affecting healthcare rage in 18 countries this year, what can be done to break this pattern? First, the international community can acknowledge the reality: healthcare is openly attacked during wars, and IHL does not currently offer meaningful protection to hospitals in high intensity conflict. Then it can ask how that can be changed. Perhaps the clue to one simple measure lies in the Chemical Weapons Convention, itself so close to complete international agreement. There are some weapons that must not be used. An additional protocol to the Geneva Conventions could, at the stroke of a pen, simply preclude the use of explosive weapons on hospitals. Hospitals could still be targeted if there was military necessity – and their use as command posts or ammunition dumps could still justify that – but it would have to be done by small arms, and line of sight. It would be bloody, but it would be the blood of combatants, not civilians. The infrastructure would remain, to treat the population afterwards. The staff will be alive to undertake their duties. Perhaps most importantly, it would not harden the will of the entire population against the attackers; it would leave space for lasting peace, rather than sowing the seeds of the next generation of conflict.
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