By Brigit Toebes

Several sources have reported attacks on healthcare facilities in Ukraine, including a children’s hospital, causing numerous deaths and injuries. "Attacks on healthcare facilities or workers breach medical neutrality and are violations of international humanitarian law," said WHO Director-General Tedros Adhanom Ghebreyesus on Twitter on Sunday. In this post I argue that such attacks constitute violations of human rights, international humanitarian law, and medical ethical standards.

Generally, healthcare workers should be able to carry out their duties and to use their hospitals and medical equipment in an undisturbed fashion, under all circumstances. During armed conflicts healthcare workers or medical personnel often work under extremely difficult and dangerous circumstances. In such situations doctors and nurses, hospitals and medical units are at a serious risk of being attacked, as we also witness in the current conflict in Ukraine.

It is important to note that the standards of medical ethics continue to apply during armed conflicts. A core notion around which this analysis revolves is the so-called principle of ‘medical neutrality’. Based on this principle, all parties involved in the conflict have ethical duties to respect and protect healthcare workers in the exercise of their duties. This means that healthcare  providers must not be attacked nor persecuted for performing their professional duties.

Both international humanitarian law (IHL) and human rights law (HRL) give clear cognizance of the principles of medical ethics, and of the principle of medical neutrality specifically. Under IHL, Additional Protocol II to the Geneva Conventions explicitly refers to medical ethics, stating that “[u]nder no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom”. As such, the body of IHL affirms that medical ethics offer authoritative standards during armed conflicts. Specifically, Rule 25 of the rules on customary law of the International Committee of the Red Cross (ICRC) affirms that “[m]edical personnel exclusively assigned to medical duties must be respected and protected in all circumstances”. Geneva Conventions I, II, and IV and Protocol I, applicable during International Armed Conflicts (IACs) like in Ukraine, contain similar rules, protecting medical personnel under all circumstances.

As to to HRL, the right to health is key and offers protection that is complementary to IHL. While primarily a peacetime norm, there are strong reasons to assume that the right to health also applies to some extent during armed conflicts. In particular, General Comment 14 on the Right to Health stipulates that ‘All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned’ (para 12c). Despite the possibility of ‘progressive realization’, there is a minimum level of protection inherent in economic, social and cultural rights that should remain intact under all circumstances, including during humanitarian emergencies. Hence the core obligations recognized under the right to health continue to apply during armed conflict. Based on the right to health framework, as reinforced by medical ethics and IHL, belligerent parties have ‘negative’ legal duties to respect the right to health (e.g. refraining from attacks on medical units); and ‘positive’ legal duties to protect and fulfill the right to health (protect medical personnel), as well as to ensure access to basic health-related services.

All in all, while ‘medical neutrality’ is a key concept of medical ethics, it also finds explicit recognition in IHL and HRL. During armed conflicts, medical ethics, ihl and hrl are mutually reinforcing and provide a normative framework for healthcare provision on and around the battlefield and other emergency situations.

This integrated legal framework sends a clear message: attacks on hospitals, ambulances or other attacks on healthcare personnel or their patients during an armed conflict are not allowed and constitute fragrant violations of authoritative international standards.

Sources

• ICRC, Protecting Wounded Persons and Medical Care on the battlefield, https://casebook.icrc.org/highlight/protecting-wounded-persons-and-medical-care-battlefield
• Brigit Toebes, Healthcare on the Battlefield: in Search of a Legal and Ethical Framework, Journal of International Humanitarian Legal Studies, 2013, 4, 197-219.
• Brigit Toebes, Health and Humanitarian Assistance: Towards an Integrated Norm under International Law, Tilburg Law Review, 2013, 18, 133-151.
• WHO, Ukraine Emergency, https://www.who.int/emergencies/situations/ukraine-emergency