Summary The conflict in Syria presents new and unprecedented challenges that undermine the principles and practice of medical neutrality in armed conflict. With direct and repeated targeting of ...health workers, health facilities, and ambulances, Syria has become the most dangerous place on earth for health-care providers. The weaponisation of health care—a strategy of using people's need for health care as a weapon against them by violently depriving them of it—has translated into hundreds of health workers killed, hundreds more incarcerated or tortured, and hundreds of health facilities deliberately and systematically attacked. Evidence shows use of this strategy on an unprecedented scale by the Syrian Government and allied forces, in what human rights organisations described as a war-crime strategy, although all parties seem to have committed violations. Attacks on health care have sparked a large-scale exodus of experienced health workers. Formidable challenges face health workers who have stayed behind, and with no health care a major factor in the flight of refugees, the effect extends well beyond Syria. The international community has left these violations of international humanitarian and human rights law largely unanswered, despite their enormous consequences. There have been repudiated denunciations, but little action on bringing the perpetrators to justice. This inadequate response challenges the foundation of medical neutrality needed to sustain the operations of global health and humanitarian agencies in situations of armed conflict. In this Health Policy, we analyse the situation of health workers facing such systematic and serious violations of international humanitarian law. We describe the tremendous pressures that health workers have been under and continue to endure, and the remarkable resilience and resourcefulness they have displayed in response to this crisis. We propose policy imperatives to protect and support health workers working in armed conflict zones.
The American presidency has long tested the capacity of the system of checks and balances to constrain executive power, especially in times of war. While scholars have examined presidents starting ...military conflicts without congressional authorization or infringing on civil liberties in the name of national security, Stuart Streichler focuses on the conduct of hostilities. Using the treatment of war-on-terror detainees under President George W. Bush as a case study, he integrates international humanitarian law into a constitutional analysis of the repercussions of presidential war powers for human rights around the world. Putting President Bush’s actions in a wider context, Presidential Accountability in Wartime begins with a historical survey of the laws of war, with particular emphasis on the 1949 Geneva Conventions and the Nuremberg Tribunal. Streichler then reconstructs the decision-making process that led to the president’s approval of interrogation methods that violated Geneva’s mandate to treat wartime captives humanely. While taking note of various accountability options—from within the executive branch to the International Criminal Court—the book illustrates the challenge in holding presidents personally responsible for violating the laws of war through an in-depth analysis of the actions taken by Congress, the Supreme Court, and the public in response. In doing so, this book not only raises questions about whether international humanitarian law can moderate wartime presidential behavior but also about the character of the presidency and the American constitutional system of government.
The Geneva Convention relative to the Protection of Civilian Persons in Time of War provides a practical and effective framework for the protection of civilians in international armed conflicts that ...has retained its relevance for 75 years since its adoption. As with all treaties, its ‘object and purpose’ has a concrete impact on how its terms are interpreted, giving insights into the ordinary meaning of the text and allowing the aim of the Convention to be fully realized. This article asks and answers a series of questions to elucidate the role of the object and purpose in treaty interpretation and how to identify the object and purpose of a given treaty before focusing on the specificities of international humanitarian law treaties. On that basis, it determines that the overall ‘object and purpose’ of the Convention is to protect civilians during armed conflict, including in circumstances where they are subject to permissible measures of control and security. The article then demonstrates how that ‘object and purpose’ assists with the resolution of specific, well-known interpretive dilemmas including the determination of protected status under the Convention and the application of provisions premised on the existence of a Protecting Power.
This article suggests a new interpretative framework for Article 27(2) of the Fourth Geneva Convention, which prohibits sexual violence against women in armed conflict. One specific aspect of this ...norm is particularly controversial: the notion of ‘honour’ has often been criticised as an obsolete concept linked to an outdated view of female morality. In the absence of a definition of the term, this article examines whether the gendered limitations of the norm can be overcome and the extent to which an evolutive interpretation of the concept is feasible. It argues that the concept of ‘honour’ can be treated as a generic term that is subject to evolutive interpretation, allowing for a renewed and gender-sensitive understanding to be developed, aligned with the concept of human dignity.
This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates ...instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an a historical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.
Anthony Cullen advances an argument for a particular approach to the interpretation of non-international armed conflict in international humanitarian law. The first part examines the origins of the ...'armed conflict' concept and its development as the lower threshold for the application of international humanitarian law. Here the meaning of the term is traced from its use in the Hague Regulations of 1899 until the present day. The second part focuses on a number of contemporary developments which have affected the scope of non-international armed conflict. The case law of the International Criminal Tribunals for the former Yugoslavia has been especially influential and the definition of non-international armed conflict provided by this institution is examined in detail. It is argued that this concept represents the most authoritative definition of the threshold and that, despite differences in interpretation, there exist reasons to interpret an identical threshold of application in the Rome Statute.
In its updated Commentaries on the 1949 Geneva Conventions, the International Committee of the Red Cross (ICRC) embraces the ‘external’ interpretation of Article 1 common to the four Geneva ...Conventions, according to which States have certain negative (complicity-type) and positive (prevention/response) obligations to ‘ensure respect’ for the Conventions by other actors. This interpretation has been gaining support since the 1960s, though the ICRC's new Commentaries have served as a catalyst for some States recently to express contrary views. This article focuses on two major methodological shortcomings in the existing literature, offering a much firmer foundation for the external obligation under common Article 1. First, it demonstrates the overwhelming support in subsequent practice for external obligations. Previous studies have failed to explain the method by which this practice is taken into account, given the existence of some inconsistent practice. This article addresses this general question of treaty interpretation, critiquing the approach of the International Law Commission that relegates majority practice to supplementary means of interpretation and proposing instead a principled approach that better fits and justifies the judicial practice here. Secondly, the article challenges two common assumptions about the travaux: first, that an original, restrictive meaning was intended, and secondly that the travaux of Additional Protocol I offer no support for external obligations. Given the ubiquity of military assistance and partnering, these findings have far-reaching consequences for the liability of States.
IHL consists of a multitude of general rules recognized as customary international law and therefore binding on all states and is codified to a large extent in the 1907 Hague Convention IV Respecting ...the Laws and Customs of War on Land, along with its annexed Regulations,8 the four 1949 Geneva Conventions, including the Convention Relative to the Protection of Civilian Persons in Time of War,9 and the 1977 Additional Protocol I to the Geneva Conventions.10 The conventional wisdom requires the distinction between the ad bellum and in bello law on the theory that to collapse them would frustrate the object and purpose of IHL, which is to limit the means and methods of armed conflict and to protect persons who are not, or are no longer, directly participating in such conflict. Because of its humanitarian purpose, IHL and its application must remain agnostic as to who is legally to blame for the commencement of armed conflict under the ad bellum law. In essence, the law of occupation sets out how the civilian (or "protected") population and its property is to be treated while an occupying power maintains effective control over the occupied territory. Military occupation represents a temporary condition during which the role of the occupying power is limited merely to that of the de facto administrative authority.11 Such authority is to be exercised for the benefit of the protected population, although the occupying power is permitted in specific circumstances to take measures to protect the legitimate interests of its military in the occupied territory so long as the military advantage gained is proportionate to the harm done to the protected population.12 Because occupation is inherently temporary, the occupying power is prohibited from altering the status of the occupied territory. Regarding the Hague law, one example is Article 43 of the 1907 Hague Regulations, which provides that: "The authority of the legitimate power having in fact passed into the hands of the occupation, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
The horrific attacks on medical centres in the Gaza Strip have led numerous media outlets and public health publications to condemn these incidents as breaches of international law, some labelling ...them as war crimes.1 The idea that hospitals might legally be viewed as legitimate military targets is often rejected, with these assertions regarded as misunderstandings, misinformation, or war-related rhetoric.2 What these condemnations overlook is that international law does not categorically prohibit attacks on hospitals or other medical facilities and that these can, under some circumstances, be legitimate targets. Health care remains vulnerable under the current international legal framework. There appears to be a growing dissatisfaction and consensus in the international medical and global health community on the need for better protection of health care in conflict.
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