Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism

Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), September 2015

236 Pages Posted: 8 Sep 2015

See all articles by Dustin A. Lewis

Dustin A. Lewis

Harvard Law School Program on International Law and Armed Conflict (HLS PILAC)

Naz K. Modirzadeh

HLS Program on International Law and Armed Conflict

Gabriella Blum

Harvard Law School

Date Written: September 8, 2015

Abstract

The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate international humanitarian law (IHL) protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly.

In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge. These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats. The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for designating those who facilitate such care as terrorists themselves.

The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness - or, at least, the indeterminateness and variability - of the normative framework.

Keywords: medical care, armed conflict, international humanitarian law, terrorism, United Nations Security Council

Suggested Citation

Lewis, Dustin A. and Modirzadeh, Naz K. and Blum, Gabriella, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism (September 8, 2015). Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), September 2015, Available at SSRN: https://ssrn.com/abstract=2657036

Dustin A. Lewis (Contact Author)

Harvard Law School Program on International Law and Armed Conflict (HLS PILAC) ( email )

Langdell 175-J
1545 Massachusetts Ave.
Cambridge, MA 02138
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HOME PAGE: http://pilac.law.harvard.edu/dustin-a-lewis

Naz K. Modirzadeh

HLS Program on International Law and Armed Conflict ( email )

1545 Massachusetts Avenue
Langdell 175-J
Cambridge, MA 02138
United States

Gabriella Blum

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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