As far back as the 1980s human rights organizations documented human rights and international humanitarian law violations against patients, health workers, and health facilities in war and political conflict. But global human rights accountability machinery, from UN review committees to domestic and international investigative mechanisms, mostly ignored the abuses until momentum for protection and accountability began to build in the second decade of this century. As a result of lobbying from newly-emerging advocacy for protection and respect of health care in conflict, in 2011 the Security Council voted to include the names of parties that attack schools and hospitals in the annex of persistent perpetrators of grave violations in the annual report of the Secretary General’s Special Representative on Children and Armed Conflict. The following year, the World Health Assembly directed the WHO to begin collecting and disseminating data on attacks on health care in emergencies. In 2013, the UN Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health explicated the scope and application of the right to health in conflict, including protection from violence.
UN governing bodies soon took up the issue. In 2015, the General Assembly passed a resolution demanding compliance with protection mandates. The following year, the Security Council adopted resolution 2286, condemning attacks and committing to prevent them and hold perpetrators to account domestically and internationally. Although it made no new law, the resolution nevertheless represented a political breakthrough. It recognized that the violence not only creates enormous harm in the moment but undermines the capacity to meet people’s health needs in the intermediate and longer terms. It acknowledged that the local health workers, who previously had received little attention compared to international aid workers, suffer the most violence and must be a focus of prevention measures. It reinforced the requirements of the Additional Protocols to the Geneva Conventions not to punish health workers for conduct consistent with medical ethics, thus undermining the basis for the proliferation of counterterrorism laws that criminalize provision of care to alleged terrorists. It called upon states to reform domestic laws, adopt measures to protect heath care in military operations, and strengthen domestic and international investigations and procedures to hold perpetrators to account. The Secretary General, asked by the Council for additional recommendations, produced a slew of them, including ceasing arms sales to perpetrators of attacks on health care.
Five years have now passed since the resolution’s adoption. During its anniversary month in May 2021, there was much stock-taking in the Security Council, the World Health Assembly, and other forums. The unhappy consensus was that the resolution had made little difference on the ground. The Safeguarding Health in Conflict Coalition identified more than 4,000 individually recorded acts of violence against health care in conflict between 2016 and 2020. That translates to, on average, a health facility destroyed or severely damaged by violence every other day. Every two days a health worker was kidnapped or injured by violence. And every three days a health worker was killed. In 2020, there was a decrease in the overall number of reported attacks, but the number of health workers killed increased by 25% over 2019.
These data do not, of themselves, signify that the resolution was ineffectual. What was more indicative of failure was the paucity of steps states took that had been called for in the resolution and Secretary General’s recommendations. Worse, there was ample evidence of acts that sabotaged the purposes of the resolution. The Secretary General repeatedly succumbed to pressure from powerful states to omit their names from the list of perpetrators of grave violations against schools and hospitals in armed conflict. Security Council referral of Syria to the International Criminal Court was stymied by repeated Russian vetoes. The United States and the UK found excuses to sell massive amounts of arms to Saudi Arabia despite evidence that its conduct in the war in Yemen may have amounted to war crimes. The World Health Organization’s surveillance system declined to name perpetrators of attacks.
It is naïve, of course, to believe that mere adoption of a resolution will transform domestic and international policy, law, and action. Yet one would expect that states’ fervent condemnations of the violence would be accompanied by an acknowledgment of the record of global inaction and consideration of new strategies. These were absent from the debate.
Accountability is needed
What would such steps be? Some of the obstacles to implementation of resolution 2286 are structural, particularly the veto authority of permanent members of the Security Council. Others, however, can be more straightforwardly addressed. The most critical step is for states to be accountable for the commitments they have already made. Toward that end, the Safeguarding Health in Conflict Coalition has promoted the appointment by the Secretary General of a Special Representative on violence against health care. The representative’s charge would be to advise and consult with states on implementation, but also to report publicly what they have and have not done to implement resolution 2286 as a means of holding them to account for fulfilling their duty. There is distaste for new Special Representatives and Special Rapporteurs in the UN system, but it is the only way to hold states to account for their commitment.
At the same time, there must be greater mobilization at the national level by health worker organizations, civil society, and human rights groups. Almost all the advocacy on protection of health care has been in New York and Geneva. That must shift to the national level, where civil society organizations engage with their own governments.
Second, new sources of leadership are needed. One, seemingly unlikely, source could be ministers of health. These ministers traditionally have a weak hand in government and rarely address the conduct of state security forces, much less non-state armed groups, or take other proactive steps toward protection. There are, however, recent impressive examples of productive engagement. In the Central African Republic, Colombia, and elsewhere, ministers have acted as as interlocutors with state security forces to reduce threats from their troops, offered guidance and support to health workers, launched educational campaigns, or in some cases negotiated directly with non-state armed groups. The larger global health community, active in liaison with ministries, should support these efforts.
Finally, there is no substitute for accountability for perpetrators. Expert groups and investigative bodies appointed by the Human Rights Council and the General Assembly, along with human rights organizations and the High Commissioner for Human Rights, have laid ample groundwork for criminal investigations and prosecutions. Germany has launched prosecutions under principles of universal jurisdiction for war crimes in Syria. The UN established a special criminal court in the Central African Republic. These initiatives must expand and also ensure that violence against health care is included as a priority subject, even as states and their militaries are pressured to conduct more domestic investigations. At the same time, tolerance for political decisions by organs of the UN that do not disclose evidence about perpetrators or, worse, omit naming them because of their power, must end.
There is evidence that leadership, prevention measures, and accountability can reduce the violence. Resolution 2286 retains its potential importance. States should not be let off the hook in celebrating their commitments to human rights and international humanitarian law and must instead be judged by whether they act to protect and respect health care.
The author thanks Joseph Amon for comments on an earlier draft of this Viewpoint.
Leonard Rubenstein, JD, LLM, is Professor of the Practice, Johns Hopkins Bloomberg School of Public Health, Baltimore, USA, and Chair, Safeguarding Health in Conflict Coalition. Email: email@example.com.
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