In the October EuroISME Blog contribution, Daniel Messelken comments on the recent destruction of an MSF trauma center in Kunduz/Afghanistan. He takes this event as a point of departure to further reflections on the protection of healthcare during armed conflict.

Daniel Messelken has studied Philosophy and Political Science in Leipzig and Paris (1998-2004). He finished his doctoral thesis on “The Notion of Interpersonal Violence and its Moral Evaluation“ in 2010. From 2004-2009 he worked as an assistant to Prof. G. Meggle at the Institute for Philosophy at the University of Leipzig.
Since 2009 he is a Researcher on “Military Medical Ethics” at the Centre for Ethics of Zurich University and Scientific Coordinator at the ICMM Centre of Reference for Education of International Humanitarian Law and Ethics (www.melac.ch). Since 2012, he is also member of the Board of Directors of EuroISME.


 

Protection of Health Care During Conflict. A neglected moral imperative

The recent bombing on 3 October 2015 of a trauma centre of Médecins Sans Frontières (MSF) in Kunduz, during which 22 people (MSF staff and patients) were killed and dozens of people injured,[1] shocked the world. It is certainly not the first time a health care facility in a conflict area has been attacked, and unfortunately, it will not be the last. These attacks, whether the facility was mistakenly targeted or not all have a moral common denominator: people became victims of the conflict who were not part of the fighting but tried to help reduce the suffering of others. A nurse from the Kunduz hospital described it in the following way:

“These are people who had been working hard for months, non-stop for the past week. They had not gone home, they had not seen their families, they had just been working in the hospital to help people… and now they are dead.“ Lajos Zoltan Jecs of MSF[2]

The bombing also illustrates a larger issue–the lack of respect for health care personnel in contemporary conflict, and the misunderstanding of their protected roles. Both the ICRC’s Health care in Danger[3] and MSF’s Medical Care under Fire[4] programmes’ figures prove the relevance of this problem .

At present it remains unclear whether the medical facility in Kunduz was directly targeted (because fighters would hide in it) or whether the bombs were misdirected resulting in so called “collateral damage”. Given the media’s and MSF’s reports, the bombing of the hospital seems to be a combination of both, or, more likely a case of negligence where the target was selected by relying on inaccurate and incomplete intelligence. As U.S. Army General John F. Campbell (Commander, ISAF and United States Forces-Afghanistan) put it “A hospital was mistakenly struck.”[5] Against the background that (i) the complex was known to be a medical facility, (ii) that the bombing is said to have lasted more than one hour, and (iii) also allegedly continued 30 minutes after MSF had reportedly[6] informed US and Afghan military officials about their terrible mistake, the level of negligence and thus moral responsibility is however rather considerable.[7]

Military planners have a moral and legal obligation to respect and protect medical and humanitarian facilities. Both Afghan and U.S. officials had been informed of the hospital’s exact GPS location only days before the bombing. Under International Humanitarian Law (IHL), the civilian population, medical personnel, ambulances and medical facilities must be respected and protected in all circumstances, and the work of medical personnel must be facilitated. This is one of the most important principles of IHL since its earliest foundations more than 150 years ago. It was the absence of medical aid that shocked Henri Dunant on the battlefields of Solferino and motivated him to promote the now codified ius in bello. According to today’s Customary International Humanitarian Law, this protection is also extended to civilian humanitarian relief actors.[8]

On the other hand, IHL also stipulates the neutral and impartial provision of medical aid. This principle needs to be emphasized in the general context of conflict even though it is not a question in the case of MSF who clearly follow this principle. However, the separation of the wounding role and healing role is not always clearly and fully implemented by fighting forces. For example, front-line medical personnel whose task is to guarantee quick medical support in line with their task will obviously more often find themselves in the line of fire and, as a result, may be pushed into a fighting role. It is at least questionable that they will still be able to care for wounded enemy soldiers “without any adverse distinction” (Geneva Conventions, several articles[9]; Customary IHL, Rules 55, 88 and 109[10]). Due to such developments the distinction between fighting combatants and impartial non-combatant medical personnel erodes, and it becomes less evident why the latter shall be granted immunity because of their role. Direct and deliberate attacks on health care personnel, mostly by irregular forces, are other clear offenses against the principle of neutrality.

The impartiality and resulting non-combatant status of medical personnel has recently been questioned even by philosophers, within the so called “revisionist just war theory”. The argument can be found in the literature that by providing care to all sides of the war “the medics of the Red Cross contribute to the unjust threats posed by unjust combatants” and therefore it looks “as if Red Cross medics (and those performing similar roles in war) are morally responsible for unjust indirect lethal threats, and, […] are therefore liable to defensive killing by just combatants”. (Frowe 2014, 202) Even though such an account is not (yet) a justification of what happened in Kunduz, it surely (and seemingly without much worries) paves the way for arguments in that direction. Against such arguments, it must be clearly stated that neutral and impartial humanitarian assistance can morally never count as a wrongful contribution to the war effort for which medical personnel could be held accountable. Walzer’s classical argument–that those who are not directly producing “what soldiers need to fight [… but] what they need to live, like all the rest of us” (Walzer 1977, 146) do not contribute to a war effort–remains valid. Thus, impartially providing medical aid can never render medical personnel morally responsible of being part of a threat. An extensive analysis of what legally constitutes a “direct participation in hostilities” resulting in a (temporary or permanent) loss of protection has been presented by Melzer (2009) who came to the same conclusion–emphasizing the necessarily hostile nature of acts of direct participation that can clearly not be attributed to the provision of medical aid.

In order to avoid the impression that “medicine is but another form of military operation” (Gross 2006, 330) it is important to maintain the principles set by IHL and allow military health care personnel to fulfil its primary role: caring for the wounded on all sides in an impartial and neutral manner. The conception or practice must be avoided, that

„…military forces mobilize medical resources and personnel for a single express purpose: to maintain combat readiness and facilitate the ends the military finds itself authorized to achieve.“ (Gross 2006, 326, my italics)

Mottos like to “To Conserve Fighting Strength” seem to support such claims but we must not forget that International Humanitarian Law commits all parties of an armed conflict to (i) provide medical care to all wounded according to standards of medical ethics and (ii) to protect those whose task is this humanitarian mission. In a common document on Ethical Principles of Health Care During Armed Conflict, a number of important organisations including the International Committee of Military Medicine have recently reiterated this claim by stating inter alia that

“[health care personnel] shall provide the necessary care with humanity, while respecting the dignity of the person concerned, with no discrimination of any kind, whether in times of peace or of armed conflict or other emergencies.”[11]

No distinction is made between civilian or military health care personnel, all are bound to the same principles, and all are granted the same protection.

In order to prevent future “mistaken strikes” like the one that occurred in Kunduz it is first important to investigate what actually happened. On the other hand, the protection of medical facilities must (again) become a matter of course and not be questioned, especially during armed conflict. The killing of healthcare workers and the destruction of healthcare facilities have important ethical, political and strategic consequences which go far beyond the direct visible damage. The MSF facility was one of the few reasonably equipped hospitals in that region and its destruction abruptly curtailed the access to emergency medical care for thousands of people. These far-reaching consequences must be considered as they multiply the so-called “collateral damage” when health care facilities are hit. Awareness of these issues and respect for the fundamental principles of IHL and healthcare ethics are therefore needed now more than ever.

Until then can we hope that the practice of medicine will be inspired by and respected according to the Principle of Humanity in order “to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being.“[12]

Quoted References

Frowe, Helen. 2014. Defensive Killing. Oxord: OUP.
Gross, Michael. 2006. Bioethics and Armed Conflict. Cambridge MA: MIT Press.
Henckaerts, Jean-Marie/ Doswald-Beck, Louise. 2005. Customary International Humanitarian Law. Cambridge: Cambridge University Press.
Melzer, Nils. 2009. Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law. Geneva: ICRC Reference.
Walzer, Michael. 1977. Just and Unjust Wars. New York: Basic Books.

Endnotes

The author would like to thank William Dunn, Bernhard Koch, John Thomas, Ted van Baarda, and Cord von Einem for helpful suggestions and comments on earlier drafts.

[1] http://www.msf.org/article/factsheet-kunduz-hospital-attack [Last accessed 12 Oct 2015]
[2] http://www.doctorswithoutborders.org/article/unspeakable-msf-nurse-recounts-attack-msfs-kunduz-hospital [Last accessed 7 Oct 2015]
[3] https://www.icrc.org/eng/what-we-do/safeguarding-health-care/solution/2013-04-26-hcid-health-care-in-danger-project.htm [Last accessed 8 Oct 2015]
[4] http://www.msf.org/topics/medical-care-under-fire [Last accessed 8 Oct 2015]
[5] http://www.defense.gov/News-Article-View/Article/622064/carter-campbell-comment-on-tragic-kunduz-strike [Last accessed 7 Oct 2015]. My italics.
[6] http://www.msf.org.uk/kunduz-hospital-attack-msf-factsheet [Last accessed 12 Oct 2015]
[7] According to the aerial pictures on the MSF Fact Sheet page it seems, on the other hand, that no protective emblems were put on the roof of the building by MSF. As the aerial picture is not dated it is unclear what the current status was.
[8] See rules 31 and 32 of the ICRC Customary International Humanitarian Law study (Henckaerts and Doswald-Beck 2005)
[9] https://www.icrc.org/casebook/doc/glossary/discrimination-glossary.htm [Last accessed 13 Oct 2015]
[10] Henckaerts and Doswald-Beck 2005, pp. 193, pp. 308, pp. 396.
[11] https://www.icrc.org/en/download/file/9567/ethical_principles_of_health_care.pdf Quoted from the 3rd principle. [Last accessed 12 Oct 2015]
[12] https://www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm [Last accessed 7 Oct 2015]