By Maria Stange, University of Groningen, m.stange@student.rug.nl

Aspects of International Health Law, which may be found in various documents of International Human Rights Law (HRL) such as the Universal Declaration of Human Rights, the Geneva Conventions and the International Covenant on Economic, Social and Cultural Rights (much of the content of which is by now considered customary law), suggest that everyone, including terrorists, are entitled to the right to medical treatment. However, does this right still stand in times of armed conflict when the rules of war come into play? Are terrorists protected under International Humanitarian Law (IHL) and, if so, to what extent? While the relevant legal framework does suggest such a protection, harsh domestic counter-terrorism policies pose a significant obstacle to the realization of the right to medical treatment.

Armed conflicts involving terrorists fall under the laws governing Non-International Armed Conflict (NIAC) due to the lack of authority and the illegitimacy of terrorist organizations and their constituent members.[1] The question which then arises is: How may terrorists, who are party to an armed conflict, be classified? Do they fall into the category of combatants or are they rather seen as civilians, and why does this matter? A notable feature of the rules governing NIAC is that they do not establish the status of combatant. The reason for this is that no one, other than authorized state armed groups, has the right to participate in hostilities, and such groups that fail to adhere to this prohibition, face consequences under domestic law.[2]Consequently, terrorists fall under the term civilian, as covered by Geneva Convention IV and Additional Protocol II.

IHL makes a specific reference to “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”.[3] Under IHL, the latter subjects are especially protected against any dangers arising from military operations and are entitled to medical treatment and access to an impartial humanitarian body, so long as they do not take any active part in the hostilities.[4] However, IHL fails to acknowledge one specific subject group, namely civilians taking active part in the hostilities. Are active terrorists not entitled to receive medical care based on their actions during armed conflict? Are they excluded from the umbrella humanitarian protection granted by the Geneva Conventions and their Additional Protocols? IHL remains silent on this matter. However, it may be argued that although IHL appears fragmentary and incomplete, its gaps on the matter of medical treatment are filled by the aspects of the right to health contained within HRL. Therefore, it becomes apparent that all subjects in an armed conflict, including active terrorists, are entitled to medical treatment. This right is fortified through the prohibition on punishment for carrying out medical activities in accordance with the medical code. This principle entails that medical professionals cannot be prosecuted for fulfilling their medical duties, regardless of who is benefiting from them.[5] What may be concluded from this is that, on a purely international level, everyone has the right to medical treatment and that right is even bolstered by legal principles such as the prohibition on punishment for providing such treatment.

The right to medical treatment becomes problematic when assessed in light of domestic counter-terrorism policies and affiliated domestic case law. Countries largely affected by terrorism, such as the United States, have enacted counter-terrorism laws which pose a significant obstacle to the realization of the right to medical treatment of terrorists. Its case law suggests that medical professionals may be prosecuted and harshly sentenced for providing (or attempting to provide) medical assistance, services and advice to known terrorist organizations as doing so constitutes elements of material support which is prohibited by the US Criminal Code.[6] Case law such as this has considerable implications on the actions of US-based humanitarian actors. Although they are under an ethical and internationally legal obligation to provide medical services to all subjects of war, including terrorists, their humanitarian initiative is impaired by serious risk of prosecution and severe sentencing under domestic law.[7] This leads to the undermining of the right to medical treatment and the inconsistent application of HRL and IHL, which results in an overall deterioration of effectiveness of the latter.

There are possible solutions to this dilemma, such taking some power out of the hands of sovereign states and investing it in an international body which exclusively concerns itself with investigating and prosecuting acts of international terrorism. Another approach aims at penalizing states for failing to uphold the right to health or even violating it. These proposals entail various advantages as well as disadvantages and should be weighed in future research.

[1] Art 1(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Conflicts (8 June 1977) 1125 UNTS 609 (Additional Protocol II).

[2] ICRC, ‘The Law of Armed Conflict: Non-International Armed Conflict’ (June 2002) 5, 17 available at <https://www.icrc.org/eng/assets/files/other/law10_final.pdf;.

[3] Article 3 Common to Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31 (Geneva Convention I), Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) 75 UNTS 85 (Geneva Convention II), Geneva Convention Relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135 (Geneva Convention III), Geneva Convention Relative to the Protection of Civilian Persons in Times of War (12 August 1949) 75 UNTS 287 (Geneva Convention IV).

[4] See Common Article 3 (n 3); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Armed International Conflicts (8 June 1977) 1125 UNTS 3 (Additional Protocol I) Art 13(1)-(3).

[5] Additional Protocol I (n 4) Art 16(1) and (2); Additional Protocol II (n 1) Art 10(1) and (2).

[6] See to this effect 18 U.S. Code § 2339A (a); United States v. Shah, 634 F.3d 127 (2d Cir. 2011) and United States v Farhane Court of Appeals 634 F.3d 127 (2nd Cir. 2011).

[7] Justin A Fraterman, ‘Criminalizing Humanitarian Relief: Are US Material Support for Terrorism Laws Compatible with International Humanitarian Law?’ [2013] New York University Journal of International Law and Politics (JILP), Forthcoming, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750963.