Author: Yoseph Genene
The dramatic scene that went viral on the media in 2019, as some compared it with ‘Like Moses parting the Red Sea’, showing thousands of demonstrators protesting a controversial extradition bill in Hong Kong; letting an ambulance passing through a sea of people as the crowd parts way for the medical emergency. This video for sure will restore your faith in humanity. Even though IHL is to be applied during an armed conflict, humanity is the common denominator here. Because in IHL, the ultimate purpose is to protect the victims of armed conflicts and regulate hostilities based on a balance between military necessity and humanity.
The right to health was first articulated in the WHO Constitution (1946) which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.
The 1948 UDHR article 25 mentioned health as part of the right to an adequate standard of living. In 1966, years after passage of the UDHR, the UN proposed another treaty that includes health care: the Covenant on Economic, Social and Cultural and Rights (CESCR). Article 12 of the CESCR further clarified “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” “Health” in this context is understood as not just the right to be healthy and have health care, but as a right to control one’s own body, including reproduction. Article 12 goes on to require that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition, and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all.” The right to health framework is set forth in general comment No. 14 of the Committee on Economic, Social and Cultural Rights, which interprets the right to health and mandates States to respect, protect and fulfill the right to health of everyone, including persons affected by and/or involved in conflicts.
Armed conflict is one of the circumstances in which health care delivery is most needed. Despite this fact, attacks on and interference with health care services, providers, facilities, transports, and patients in situations of armed conflict pose huge challenges to health care delivery.
In the world`s youngest nation South Sudan, not only hundreds of thousands of people have been effectively denied lifesaving assistance; but also, patients murdered in their beds in the town of Malakal, upper Nile state. A hospital in Leer, Unity state, was “thoroughly looted, burned and vandalized”. The MSF compound in Bentiu, capital of Unity state was also looted amid heavy fighting.
In the neighbor Ethiopia, in the recent situation in Tigray region, health facilities have been looted, vandalized, and destroyed in a deliberate and widespread attack on health care, ambulances have been seized by armed groups, and many health facilities have few or no remaining staff. Some have fled in fear; others no longer come to work because they have not been paid in months.
In Libya, on 18 February 2018, a woman in labor and her unborn child died on their way to the Wehda hospital, after armed men affiliated with the Libyan National Army at the Kirsa checkpoint, west of Derna, delayed their passage. Such acts are in breach of the obligation of parties to the conflict under IHL to ensure that adequate medical care is provided to the wounded and sick as far as practicable and with the least possible delay.
Also in Libya, in 2011 uprising discriminatory practices were frequently employed. Cars were stopped to prevent patients belonging to opposing ethnic groups reaching hospitals. IHL focuses on impartiality in responding to individuals in immediate need of care rather than on the structure and availability of services. IHL would forbid turning away a woman in labor based on her ethnic or political affiliation, it does not address entrenched practices that limit the availability, accessibility, and quality of facilities and services to members of her group and may make it dangerous for her to seek care. International Human Rights Law (IHRL) can assist in powerfully addressing these infringements.
The application of the general International Human Rights Law (IHRL) in an armed conflict is no more a debate. As settled by the ICJ, it will play a vital role protecting the right to health of individuals by complementing IHL which is the special law which applies in an armed conflict.
IHL has provided a framework for assuring protection and respect for medical personnel, medical facilities, and ambulances, as well as the wounded and sick, in IAC and NIAC.
The right to health has been interpreted as consisting of key entitlements and state responsibilities, including the interrelated and essential elements of availability, accessibility, acceptability, and quality of health care services, facilities, and goods.
Only in recent years has the importance of the right to health in war and other situations of political violence begun to develop. The first breakthrough likely came in a 2013 report by the Special Rapporteur on the Right to Health, Anand Grover. The report recognized that insecurity often limited states’ ability to ensure the resources needed to maintain access to health but explained that the requirement of progressive realization remained in place, requiring “concrete steps towards the full realization of the right to health to all, without discrimination and regardless of the status of persons as combatants or civilians.” His report was soon followed by another report by the OHCHR on economic, social and cultural rights in armed conflict, with a specific focus on the rights to health and to education. In which requires states to pay particular attention to persons rendered vulnerable by conflict, including internally displaced, women, children, older persons and persons with disabilities, among others. Further, to address marginalization arising from social, political and economic exclusion and discrimination.
IHL remains a critically important set of rules through which to address obligations with respect to health in armed conflict, with IHRL acting as a powerful complement to it. In circumstances where no armed conflict exists, but where health workers, facilities, patients, and ambulances are subject to threats, attacks, and other forms of interference and denial, IHRL fills an important gap.
As IHRL has been contributing to ensure the interests and needs of the powerless and the vulnerable, also in time of armed conflict and in time where there`s a debate whether the situation is an armed conflict or law enforcement, the application of IHRL will address the powerlessness experienced by those seeking care and those trying to provide it, across all conflict settings.
Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address geneneyoseph@gmail.com or twitter @geneneyoseph
Addis Ababa University IHL Clinic 