IHL: Humanitarian Considerations Over Military Activities

September 30th, 20111:01 pm @    


 “Health care is a human right, not a privilege. If you don’t believe this now, you might change your mind if and when you find yourself in need of life- saving care in a hospital emergency room.”

– Ruth Rosen

Introduction

‘The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the “Red Cross,” or of the “Red Crescent,” shall be required to be respected as the sign of protection.’ This is one of the basic rules of International Humanitarian Law (IHL). These rules have been established by the Geneva Conventions and the Hague Conventions, as well as succeeding treaties, case laws, and customary international law. States are under a duty not to infringe these rights themselves and also, to protect them from infringement by others. However, most authorities appear inadequately concerned about population that is affected by armed conflict owing to the fact that they underestimate the importance of health services to soldiers and civilians during war. Not only do they not show adequate concern for the population of the enemy, but also their own.

Right To Health under the International Humanitarian Law

The right to health is the basis of Article 25 (1) of the Universal Declaration of Human Rights which states ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’. The United Nations further defined the right to health in Article 12 and 24 of the International Covenant on Economic, Social and Cultural Rights in 1966 and guaranteed the right of everyone to the enjoyment of the highest attainable standard of health. Since the right to health can be simply said to be the right to access to health care, it applies to all people whether they are injured or not. In the year 2000, the U.N. issued the General Comment No.14 “Right to Health” which elaborated the provisions of the 1966 covenant Other legal instruments have also laid down laws in regard to the ‘right to health’ in all situations including armed conflict. Some of the organizations that take up the task of preparing and, as far as possible, implementing such health care related laws include Physicians for a National Health Program, American Medical Students Association and the PUSH/Rainbow Network.

Article 10 of First Additional Protocol to the Geneva Conventions (1977) inter alia states all the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones. Article 7 of the Declaration Alma-Ata 1978 affirms the crucial role of primary health care, which addresses the main health problems in the community, providing preventive, curative and rehabilitative services accordingly.

Other Treaties and Conventions relating to International Humanitarian Law

Other documents that contain provisions for the right to health are Vienna Convention on the Law of Treaties of May 1969, European Social Charter of 1961, The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Declaration of Commitment on HIV/AIDS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador) of 1988  and Convention on the Rights of the Child (CRC), 1989.  Those dealing specifically with health care during armed conflict involve The Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field (1949) The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1949); The Geneva Convention relative to the Treatment of Prisoners of War (1949); The Geneva Convention relative to the Protection of Civilian Persons in Times of War (1949); Additional Protocol 1 to the Geneva Conventions relating to the Protection of Victims in International Armed Conflict (1977); Additional Protocol II to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts (1977); Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974); and Protocol on Prohibitions or Restrictions on the Use of Mines.

These Organizations have also put restrictions on the means and methods of warfare. Using famines as weapons is prohibited. It has been observed that civilians suffer most from cluster munitions and therefore it is forbidden by humanitarian laws.

Health Care For Women under the International Humanitarian Law

Women are to be treated with all consideration due to their sex and also because the population becomes more feminized due to large number of male casualties during war. It is important that the women themselves are asked about the issues they face and the manner in which they would like to obtain aid. Involving women in the preparation, implementation, and assessment of psychosocial programs is vital for their success. Also, programs that seek to address psychosocial issues in a population, during and after armed conflict, need to be gender-sensitive by taking into account the condition of women, the specific problems they face, and the means in which they can deal with them.

A woman’s health is her total well-being, not determined solely by biological factors and reproduction, but also by the effects of workloads, nutrition, stress, war and migration, amongst others. By virtue of IHL the Party to the conflict which is compelled to abandon wounded or sick to the enemy must, as far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care. Among the nearly 560 articles in the Geneva Conventions of 1949 and the Additional Protocols of 1977 around 40 are of specific concern to women. Article 11, 12 and 14 of Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention) deal specifically with health care of women

Health Care For Children under the International Humanitarian Law

The United Nations Children Fund (UNICEF) has mainly concerned itself with basic requirement of children, including healthcare. It deserves credit for several major achievements as regard to children’s health care during armed conflicts. UNICEF is insistent on the need to fight atrocities against children including rape as a weapon of war, by deploying a permanent, fully empowered International Criminal Court. One of the key elements which separates UNICEF from other children welfare organizations is that it also focuses on and holds campaigns for welfare of adolescents and not just young children The United Nations High Commissioner for Refugees (UNHCR) has drafted its ‘Policy on Refugee Children’ Health of children is truly at risk during armed conflict, either by the effects of the war or their forced involvement in them. Such practices continue even though it is prohibited to recruit children less than 15 years of age into the armed forces. It is due to such unethical practices that the Geneva Convention have taken special consideration of children and laid down laws of war such as, ‘Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.’

Among the recommendations accepted by the UN General Assembly in 1996 connected to the Machel Study was the appointment of a permanent Special Representative of the Secretary-General for Children and Armed Conflict.

Conclusion

Satisfactory application of the provisions of Geneva Conventions and Additional Protocols is still appears to be a distant dream. Since, the implementations of these conventions and protocols there have been a number of violations without consequences. IHL should be made more potent such that even powerful countries should be held accountable for any violations.

Article by

Vikrant is pursuing B.L.S./LL.B. degree from Government Law College, Mumbai. Writing on legal issues is his passion and his aim in life is to be a judge. He is keen on helping people who are in need of legal-aid.

Connect with him on Facebook.

Enter your Email Address to Get Similar Articles in your Inbox Free!

  

MightyLaws is not responsible or liable for the views expressed by the authors. The articles are general information and should not be treated as legal advice. Please read the Disclaimer for further clarifications.