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A human rights approach to health care in conflict

  • Katherine H. A. Footer and Leonard S. Rubenstein
Abstract

Attacks on and interference with health care services, providers, facilities, transports, and patients in situations of armed conflict, civil disturbance, and state repression pose enormous challenges to health care delivery in circumstances where it is most needed. In times of armed conflict, international humanitarian law (IHL) provides robust protection to health care services, but it also contains gaps. Moreover, IHL does not cover situations where an armed conflict does not exist. This paper focuses on the importance of a human rights approach to addressing these challenges, relying on the highest attainable standard of health as well as to civil and political rights. In particular we take the Committee on Economic, Social and Cultural Rights General Comment No. 14 (on Article 12 of the International Covenant on Economic, Social and Cultural Rights) as a normative framework from which states' obligations to respect, protect and fulfil the right to health across all conflict settings can be further developed.

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1 Merlin, A Grave New World, 2010, p. 6, available at: www.who.int/workforcealliance/news/agravenewworld_report.pdf (last visited 22 August 2012).

2 Physicians for Human Rights, Do No Harm: A Call for Bahrain to End Systematic Attacks on Doctors and Patients, April 2011, available at: https://s3.amazonaws.com/PHR_Reports/bahrain-do-no-harm-2011.pdf (last visited 19 August 2012), and Human Rights Watch, Targets of Retribution Attacks against Medics, Injured Protestors, and Health Facilities, July 2011, available at: www.hrw.org/sites/default/files/reports/bahrain0711webwcover.pd (last visited 27 August 2012).

3 See inter alia International Committee of the Red Cross (ICRC), ‘Syria: ICRC and Syrian Arab Red Crescent maintain aid effort amid increased fighting’, Operational Update, 17 July 2012, available at: www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm; see also Geneva Academy, ‘Syria’, in Rulac Project, available at: www.geneva-academy.ch/RULAC/applicable_international_law.php?id_state=211 (last visited 27 August 2012).

4 Physicians for Human Rights, Syria : Attacks on Doctors, Patients, and Hospitals, December 2011, p. 8, available at: https://s3.amazonaws.com/PHR_Reports/syria-attacks-on-drs-patients-hospitals-final-2011.pdf (last visited 12 June 2012).

5 Donald G. McNeil Jr., ‘Gunmen kill Nigerian polio vaccine workers in echo of Pakistan attacks’, in New York Times, 8 February 2013, available at: http://www.nytimes.com/2013/02/09/world/africa/in-nigeria-polio-vaccine-workers-are-killed-by-gunmen.html?_r=0 (last visited 27 May 2013).

6 Burnham, Gilbert M., Lafta, Riyadh, and Doocy, Shannon, ‘Doctors leaving 12 tertiary hospitals in Iraq, 2004–2007′, in Social Science & Medicine, Vol. 69, 2009, pp. 172177.

7 UN Secretary-General, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, 31 March 2011, pp. ii–iii, available at: www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf (last visited 24 August 2012).

8 Mayan Vije and Dr Suppiah Ratneswaren, Enduring War and Health Inequity in Sri Lanka, Tamil Information Centre, 2009, p. 22, available at: www.tamilinfo.org/healthreport.pdf (last visited 24 June 2012).

9 Nagai, Mari, Abraham, Sandirasegaram, Okamoto, Miyoko, Kita, Etsuko, and Aoyama, Atsuko, ‘Reconstruction of health service systems in the post-conflict Northern Province in Sri Lanka’, in Health Policy, Vol. 84, 2007, pp. 8493.

10 See Art. 56 of Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (hereafter ‘GC IV’). Art. 56 GC IV provides that ‘the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventative measures necessary to combat the spread of contagious diseases and epidemics'.

11 Tiwari, S. K., et al. , ‘Prevalence of TB and service utilization in conflict affected areas of Nepal’, in Journal of Nepal Health Research Council, Vol. 3, No. 1, 2005, pp. 4557.

12 GC IV, Art. 56.

13 United Nations Human Rights Office of the High Commissioner for Human Rights, International Legal Protection of Human Rights in Armed Conflict, New York and Geneva, 2011, p. 7.

14 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. I: Rules, ICRC/Cambridge University Press, Cambridge, 2005 (hereafter ‘ICRC Customary Law Study’), p. 197.

15 See Art. 12 of Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949 (hereafter ‘GC I’); Art. 12 of Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Geneva, 12 August 1949 (hereafter ‘GC II’); Arts. 18, 20, and 21 of GC IV; Arts. 12(1), 15, and 21 of Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereafter ‘AP I’); Arts. 8, 10, and 11(1) of Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed conflicts, 8 June 1977 (hereafter ‘AP II’); CIL, Rules 25, 28, and 29.

16 See International Covenant Civil and Political Rights (ICCPR); African Charter on Human and People's Rights (ACHPR); Convention on the Rights of the Child (CRC); and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

17 See, inter alia, International Court of Justice (ICJ), Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 9 July 2004, para. 106.

18 ICRC Customary Law Study, Vol. 1, p. xxxvii.

19 Droege, Cordula, ‘The interplay between international humanitarian law and international human rights law in situations of armed conflict’, in Israel Law Review, Vol. 40, No. 2, December 2007, p. 340.

20 Quénivet, Noëlle, ‘The history of the relationship between international humanitarian law and human rights’, in Arnold, Roberta and Quénivet, Noëlle (eds), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law, Martinus Nijhoff, Dordrecht, 2008, p. 7.

21 ICRC, A Sixteen-Country Study: Health Care in Danger, July 2011, available at: www.icrc.org/eng/assets/files/reports/4073-002-16-country-study.pdf (last visited 28 April 2013).

22 In Nicaragua v. United States of America, Judgement of 27 June 1986, ICJ Reports 1986, para. 219, the ICJ confirmed that Common Article 3 applied directly to the non-state armed group fighting the government. With respect to AP II it should be noted that the threshold for its application is higher than for Common Article 3; for further details see Sandoz, Yves, Swinarski, Christopher, and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva/Martinus, Martinus Nijhoff, Dordrecht, 1987.

23 Bellal, Annyssa, Giacca, Gilles, and Casey-Maslen, Stuart, ‘International law and armed non-state actors in Afghanistan’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, p. 62.

24 See, inter alia, ‘Pakistan suspends polio-vaccination program after deadly attack’, in Radio Free Europe, 28 May 2013, available at: www.rferl.org/content/polio-pakistan-killing-vaccination/24999412.html; and ‘Nigerian polio vaccination centers attacked’, in Radio Free Europe, 8 February 2013, available at: www.rferl.org/content/nigerian-polio-vaccination-centers-attacked/24896626.html (last visited June 2013).

25 The Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions indicated in the context of his mission to Sri Lanka that, ‘As a non-State actor, the Liberation Tigers of Tamil does not have legal obligations under [the ICCPR], but it remains subject to the demands of the international community, first expressed in the UDHR, that every organ of society respect and promote human rights’. The Special Rapporteur further indicated that: ‘It is increasingly understood, however, that the human rights expectations of the international community operate to protect people, while not thereby affecting the legitimacy of the actors to whom they are addressed. The UN Security Council has long called upon various groups that the Member States do not recognize as having the capacity to formally assume international obligations to respect human rights’. UN Doc. E/CN.4/2006/53/Add. 5, 27 March 2006, paras. 25 and 27.

26 Human Rights Watch has reported on the human rights abuses of armed opposition groups; see Human Rights Watch, No Exit: Human Rights Abuses inside the MKO Camps, May 2005, available at: www.unhcr.org/refworld/docid/45d085002.html (last visited 3 June 2011).

27 The other grave violations are: killing or maiming of children; recruitment or use of children as soldiers; sexual violence against children; denial of humanitarian access for children, and abduction of children. See, inter alia, Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘The six grave violations’, available at: http://childrenandarmedconflict.un.org/effects-of-conflict/the-most-grave-violations/ (last visited 22 July 2013).

28 See UN Security Council Resolution 1612, 26 July 2005, and UN Security Council Resolution 1998, 12 July 2011.

29 See AP I, Arts. 51(5)(b) and 57(2)(a)(iii); and CIL, Rule 14.

30 See AP I, Art. 57.

31 See AP I, Arts. 48 and 51(4), (5); and CIL, Rules 7, 11–15.

32 See the right to life as enshrined in Art. 6(1) of the ICCPR; Art. 4 of the American Convention on Human Rights (ACHR); Art. 4 of the ACHPR; and Art. 2 of the European Convention on Human Rights (ECHR). Note that the ECHR does not use the term ‘arbitrary’ but specifies a general right to life and gives an exhaustive list of circumstances under which a deprivation of the right to life may be lawful.

33 For more details, see, inter alia, Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, Oxford, 2012, pp. 163177.

34 See Art. 4(2) of the ICCPR; Art. 27(2) of the ACHR; and Art. 15(2) of the ECHR. It should be noted that Art. 15(2) of the ECHR provides for the exception of ‘lawful acts of war' in situations amounting to armed conflict.

35 C. Droege, above note 19, p. 340.

36 See GC I, Arts. 19, 18, 24–26; GC II, Art. 36; GC IV, Arts. 18 and 20; AP I, Arts. 12 and 15; 1949 GC Common Article 3; AP II, Art. 9(1); and CIL, Rules 25, 28, and 29.

37 See GC I, Art. 21; AP I, Art. 13; and AP II, Art. 11. Acts not considered ‘harmful to the enemy’ include carrying light individual weapons for self-defence or defence of the wounded and sick; the presence of, or escort by, military personnel; and the possession of small arms and ammunition taken from the wounded and sick and not yet handed over to the proper authority. See ICRC Customary Law Study, commentaries of Rules 25 and 29.

38 See AP I, Art. 8(c).

39 See AP I, Art. 16; and AP II, Art. 10.

40 See AP I, Art. 16; and AP II, Art. 10.

41 See AP I, Art. 51(3); AP II, Art. 13(3); and CIL, Rule 6.

42 See AP I, Art. 10, commentary.

43 See GC I, Art. 12; GC II, Art. 12; AP I, Art. 10(2); AP II, Art. 7(2); GC Common Article 3.

44 See AP I, Art. 8(a).

45 See GC I, Art. 23; GC IV, Art. 14; CIL, Rule 35.

46 See CIL, Rule 35.

47 See GC I, Art. 19; GC IV, Art. 18; AP I, Art. 12; AP II, Art. 11(1), CIL, Rule 28.

48 See GC I, Art. 35; GC IV, Art. 21; AP I, Art. 21; AP II, Art. 11(1); CIL, Rule 29.

49 See ICRC Customary Law Study, Vol. I, commentary of Rule 28.

50 Art. 12 (4) AP I.

51 See ICRC Customary Law Study, Vol. I, commentary of Rule 29.

52 See CIL, Rules 28 and 29.

53 See Rome Statute of the International Criminal Court, Arts. 8(2)(b)(ix) and 8(2)(e)(iv).

54 See Rome Statute of the International Criminal Court, Arts. 8(2)(b)(xxiv) and 8(2)(b)(e)(ii).

55 See GC I, Art. 21; GC IV, Art. 19; AP I, Art. 13(1); AP II, Art. 11(2).

56 See ICCPR, Art. 7; and CAT.

57 Physicians for Human Rights, above note 2.

58 Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment, Juan E. Mendez, 1 February 2013, A/HRC/22/53.

59 See UDHR, Art. 9; and ICCPR, Art. 9.

60 See UDHR, Art. 25.

61 CESCR, General Comment No. 14 on the right to the highest attainable standard of health, 11 August 2000, UN Doc. E/C.12/2000/4 (hereafter CESCR, General Comment No. 14), para. 10.

62 See, inter alia, ICJ, Legal Consequences of Construction of the Wall in Occupied Palestine Territory, Summary of Advisory Opinion, 9 July 2004, paras. 102–113.

63 Gruskin, Sofia and Tarantola, Daniel, ‘Health and Human Rights’, in Gruskin, Sofia (ed.), Perspectives on Health and Human Rights, Routledge, London, 2005, p. 8.

64 CESCR, General Comment No. 14, para. 34.

65 Ibid., para. 35.

66 Ibid., para. 36.

67 See GC IV, Arts. 55–57.

68 Rubenstein, Leonard, ‘Defying expectations: Polio vaccination programs amid political and armed conflict’, United States Institute of Peace, PeaceBrief, Vol. 64, 3 November 2010, p. 2, available at: www.usip.org/sites/default/files/PB%2064%20%20Polio%20Vaccination%20Programs%20Amid%20Political%20and%20Armed%20Conflict.pdf (last visited 27 August 2012).

69 Ibid., p. 3.

70 CESCR, General Comment No. 14, para.12.

71 Ibid., para. 12(a).

72 Ibid., para. 12(b).

73 Ibid., para. 18.

74 Paul-Henri Arni, ‘Health care in danger: Today's Solferinos’, interview, 20 July 2012, available at: www.icrc.org/eng/resources/documents/interview/2012/health-care-in-danger-todays-solferinos-2012-07-20.htm (last visited 3 August 2012).

75 Back Pack Health Worker Team, Ten Years Report 1998–2009: Life, Liberty and the Pursuit of Health, 2009, p. 9, available at: http://www.burmalibrary.org/docs11/BPHWT10yearReport_1998-2009.pdf-red.pdf (last visited 12 August 2012).

76 Physicians for Human Rights, Life Under the Junta: Evidence of Crimes Against Humanity in Burma's Chin State, January 2011, p. 40, available at: http://s3.amazonaws.com/PHR_Reports/life-under-the-junta-burma-chin-state.pdf (last visited 28 April 2013).

77 CESCR, General Comment No. 14, para. 12(b).

78 ICRC, Violent Incidents Affecting Health Care: Health Care in Danger, January–December 2012, available at: www.icrc.org/eng/assets/files/reports/4050-002_violent-incidents-report_en_final.pdf (last visited 22 May 2013).

79 Back Pack Health Worker Team, above note 75.

80 CESCR, General Comment No. 14, para. 12(c).

81 Ibid., paras. 12(b) and 12(c).

82 Human Rights Watch, above note 2, p. 31.

83 CESCR, General Comment No. 14, para. 12(d).

84 Green, Andrew, ‘Healthcare in South Sudan at a crossroads’, in The Lancet, Vol. 379, No. 9826, April 2012, p. 1578.

85 CESCR, General Comment No. 3 on the nature of States Parties' obligations, 14 December 1990, fifth session, para. 2.

86 CESCR, General Comment No. 14, paras. 43 and 44.

87 Ibid., para. 10.

88 Ibid., para. 43.

89 States and the CESCR have allowed derogation from the ICESCR's labour rights. For an interesting discussion of derogations from economic, social, and cultural rights, see Muller, Amrei, ‘Limitations to and derogations from economic, social and cultural rights’, in Human Rights Law Review, Vol. 9, No. 4, 2009, pp. 557601.

90 CESCR, General Comment No. 14, para. 32.

91 CESCR, General Comment No. 14, para. 54.

92 Waller, Emily et al. , ‘Rights-based approaches in conflict-affected settings’, in Beracochea, Elvira et al. (eds), Rights-Based Approaches to Public Health, Springer Publishing, New York, 2011, p. 236.

93 Rubenstein, Leonard S. and Brittle, Melanie D., ‘Responsibility for protection of medical workers and facilities in armed conflict’, in The Lancet, Vol. 375, 2010, p. 336.

94 See ICESCR, Arts. 16–23.

95 United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Working Paper No 1: The Six Grave Violations Against Children During Armed Conflict – The Legal Foundation, October 2009, available at: http://www.crin.org/docs/SixGraveViolationspaper.pdf (last visited 22 August 2012).

96 See above note 28.

97 World Health Organization Executive Board, ‘WHO's response, and role as the health cluster lead, in meeting the growing demands of health in humanitarian emergencies', 21 January 2012, available at: http://apps.who.int/gb/ebwha/pdf_files/EB130/B130_R14-en.pdf (last visited 13 August 2012).

98 ICRC, Healthcare in Danger: Respecting and Protecting Healthcare in Armed Conflict and Other Situations of Violence, Resolution, adopted at the 31st International Conference of the Red Cross and Red Crescent, 28 November – 1 December 2011, Geneva, Switzerland, available at: http://www.rcrcconference.org/docs_upl/en/R5_HCiD_EN.pdf (last visited 30 August 2012).

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