International humanitarian law (IHL) is “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.” As set out in the United Nations Charter of 1945, IHL does not dictate the conditions under which States may resort to armed force. Instead, it regulates the conduct of combatants during armed conflict. IHL applies to belligerents irrespective of the justness of the causes for which they are fighting. It governs international armed conflicts (IACs) and non-international armed conflicts (NIACs). Common Article 2 of the 1949 Geneva Conventions stipulates that IACs are “cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties [States], even if the state of war is not recognized by one of them.” Article 3 common to all four Geneva Conventions represents the first attempt to lay down rules governing NIACs. It contains rules that apply during an armed conflict “occurring in the territory of one of the High Contracting Parties.” Different scenarios trigger different rules. The four Geneva Conventions and Additional Protocol I apply in IACs. Common Article 3 and Additional Protocol II apply in NIACs.

Depending on the type of conflict, different sets of laws will be applied that have unalike protections for medical personnel. The laws protecting medics and hospitals in IACs are substantially more encompassing than those in NIACs. This paper will utilize the case study of an attack on Al-Quds hospital in Syria to argue that the international community should adopt IAC protections for medical personnel in both international and non-international armed conflict.

Al-Quds Hospital Attack

At 10 p.m. on 27 April, an airstrike hit al-Quds hospital assisted by Doctors Without Borders (MSF) and the International Committee of the Red Cross (ICRC) in Aleppo’s rebel-held Sukkari neighborhood. The 34-bed hospital was the main referral center for pediatric care and offered services including an emergency room, intensive care unit, and operating theatre. Eight doctors and 28 nurses worked full time in al-Quds hospital. The airstrike completely destroyed the hospital’s emergency room and laboratory and almost entirely destroyed the pediatric unit. According to MSF, it will be at least two weeks before the hospital will be able to reopen. Neither the ICRC nor MSF assigned blame for the attack on al-Quds hospital, but the Syrian and Russian air forces have carried out the vast majority of the aerial strikes on the rebel-controlled part of Aleppo.  Soon after the attack, Russia’s Defense Minister issued a statement denying that its warplanes carried out the strike. Further, a U.S. military official told CNN that U.S. forces’ closest strike had been 20 kilometers to the north of the hospital area. Pablo Marco, Operating Manager for MSF in the Middle East, described that two barrel bombs hit buildings near the hospital. Then, a third barrel bomb landed at the hospital’s gate after the injured were rushed to al-Quds. “We cannot be certain who is responsible for this attack,” he said, “What we know is it is the Syrian government that has been usually using these barrel bombs in the past.”

Marco’s testimony is very important. First, it reveals that the al-Quds attack was carried out in a double-tap manner, “where one area is bombed and then a second bombing hits the paramedic response teams or the nearest hospital providing care.” Second, Marco identifies the weapon that was used in the strike: barrel bomb.

Healthcare: A Weapon of War

The Syrian government is well known for its double-tap barrel bomb strikes on medical units in opposition-controlled neighborhoods of Syria. On 28 November 2015, a double-tap barrel bombing on an MSF-supported hospital in Al Zafarana took place. At around 9:40 a.m. local time, a barrel bomb was dropped from a helicopter onto a populated area of the town. Two people were killed and sixteen were injured and taken to the Al Zafarana hospital for treatment. Shortly after, a second barrel bomb landed next to the hospital, damaging the kidney dialysis unit. Forty minutes later, as the wounded from the first bomb were being treated in the hospital, two more barrel bombs were dropped by the front entrance. These bombs killed one person, wounded 31 patients and medical staff, and partially destroyed the hospital. In early February 2016, consecutive days of air raids led to the destruction and subsequent closure of the Future Hospital in the town of al-Gharbiya. On 4 February 2016, the hospital posted photos on its Facebook page of the damage to the hospital caused by barrel bombs, which had been dropped by helicopters. On 5 February, the hospital made another post on its Facebook page stating that Russian planes had hit the hospital again that morning, leading to further damage. On 28 February 2016, a government helicopter struck an MSF supported hospital in East Ghouta with a barrel bomb. Bombs hit other areas of the town at the same time, and doctors were unable to properly treat those who came to the hospital given the damage that had been done to the building.

Barrel Bombs:

The Syrian government used barrel bombs on multiple occasions in attacks near or on medical facilities. These improvised weapons are cheaply made, locally produced and filled with high explosives and scrap metal to enhance fragmentation. Barrel bombs are dropped from helicopters usually flying at high altitude. Residents from rebel-held territory in Daraa and Aleppo told Human Rights Watch that barrel bombs account for majority of aerial attacks. On 22 February 2014, U.N. Security Council passed Resolution 2139, which demanded that all parties to the conflict in Syria end the indiscriminate use of barrel bombs and other weapons in populated areas. However, evidence suggests that the Syrian government continued to use these weapons after the passage of Resolution 2139. On 22 February 2015, the Syrian Network for Human Rights reported that 6,163 civilians, including 1,892 children and 1,720 women, have been killed in government barrel bomb attacks since 22 February 2014.

Although the Syrian government denied responsibility for the al-Quds attack, the evidence suggests that the Syrian army was behind the attack on al-Quds. If this is true, and the strike on al-Quds hospital was perpetuated by the government armed forces, it can be assumed that the event, at a minimum, unfolded in a NIAC setting, and its legality can therefore be properly analyzed.

Jurisdictional Concerns

Common Article 3 does not define NIACs. However, the International Criminal Tribunal for the former Yugoslavia stated in paragraph 70 of Prosecutor v. Dusko Tadić that an armed conflict exists when there is “a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” This standard contains two key criteria: the intensity of the fighting and the level of organization of the warring sides. Therefore, internal disturbances and tensions do not trigger the applicability of Common Article 3. Instead, violence must reach the lower threshold of an armed conflict in order for Common Article 3 and Additional Protocol II to apply. The ICRC assumed the existence of an armed conflict in May 2012 and publicly confirmed the commencement of IHL jurisdiction in an operational update in July 2012. The Independent International Commission of Inquiry on Syria went on to say that the NIAC threshold was crossed as early as February 2012. Determining the precise point in time from which an armed conflict exists is beyond the scope of this study; it is sufficient for present purposes to say that an NIAC exists today. Syria did not ratify Additional Protocol II, which expressly applies to NIACs. Therefore, only Common Article 3 and customary international law (CIL) can be presently applied to the attack on al-Quds hospital.

Common Article 3 Violations

In a NIAC, each warring party is bound by the basic humanitarian rules and obligations set out in Article 3 common to all four Geneva Conventions of 1949. Unlike Geneva Convention I and IV, the article does not explicitly afford protections to medical units, medical staff and transport. Nonetheless, the attack on al-Quds hospital violates the key provisions of the article. Common Article 3 provides that civilians, members of the armed forces who are no longer participating in the hostilities, and those placed hors de combat by sickness, wounds, detentions, or any other cause be treated humanely. The attack on al-Quds hospital indirectly violates this protection as it deprived 55 people including four children who were being treated at the hospital and six staff members of their right to life. Common Article 3 also mandates that an impartial humanitarian body (i.e. the ICRC and MSF) collects and cares for the wounded and sick. Both MSF and ICRC supported al-Quds field hospital. MSF has been donating medical supplies to the hospital since 2012 and has built close working ties with al-Quds staff. Bombing al-Quds violates Common Article 3 since it deprives both of these organizations of their right to care for the wounded and sick in rebel-held neighborhoods of Aleppo.

Customary International Law Violations

Given the limited jurisdiction of Common Article 3, the rules of customary international law (CIL) do fill some gaps. Many of the provisions of Additional Protocol II, which Syria did not ratify, are considered to be part of customary international law. These rules include the prohibition of attacks on civilians, the obligation to respect and protect medical personnel, medical units and transports, and the prohibition on the forced movement of civilians. The attack on al-Quds hospital violates Rule 25 of CIL: “Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances.” This rule is explicitly stated in Article 11 of Additional Protocol II and under the Statute of the International Criminal Court (ICC) “intentionally directing attacks against … personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in NIACs. The al-Quds attack also violates Rule 28 that mandates protections for medical units: “Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances.” Rule 28 of CIL is explicitly mentioned in Article 11 of Additional Protocol II and under the Statute of the ICC: intentionally directing attacks against “hospitals and places where the sick and the wounded are collected, provided they are not military objectives” and against “medical units … using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in NIACs. Bombing al-Quds hospital is a war crime under CIL. Protections afforded to medical personnel and units only cease when medics are committing acts outside their humanitarian duty or when units are used outside their humanitarian function. There is no indication that doctors at al-Quds were carrying acts outside their life-saving mission. Moreover, nothing indicates that the hospital was used to commit acts “harmful to the enemy.” Despite this, the hospital was still attacked. Assuming that the hospital was used in a manner that is not in line with its humanitarian duty. Under CIL, the hospital would lose IHL protection only after a due warning has been given. Presuming that the rebels had used al-Quds hospital in direct support of a military operation, the attack on al-Quds hospital would still violate IHL because no warning was given prior to the assault. Of course, this argument is moot, as the hospital was not being used for combat-related purposes.

The bombing of yet another medical facility appears to be the government’s military strategy to drive civilians out of rebel-held areas. As early as 2013, the UN Independent International Commission on Syria investigating alleged war crimes said attacks on medical facilities were being used systematically as a weapon of war by the Assad regime. Roughly 95% of doctors in rebel-held Aleppo have fled or killed, leaving around 80 doctors to treat 250,000 people.  Because of repeated attacks on medical facilities and workers, hospitals in these parts of Syria are refusing to share GPS coordinates with Syrian authorities, fearing that sharing the locations would make the hospitals targets. Destroying Aleppo’s hospitals violates Rule 129(B) of CIL, which states that forcibly displacing civilians is a war crime (a prohibition originally set forth in NIACs in Article 17 of Additional Protocol II).

CIL goes beyond the protections afforded in Common Article 3 and Addition Protocol II by creating additional rules related to the conduct of hostilities (i.e. the distinction between civilian objects and military objectives, and the prohibition of indiscriminate attacks). Targeting al-Quds hospital is indiscriminate and appears to be purposefully directed against a civilian object. Bibars Mish’al, a first responder with the Aleppo branch of the Syrian Civil Defense reached by Human Rights Watch said that no military targets were in or around the hospital prior to the attack. Further, eyewitnesses told Amnesty International that the nearest military installation was over a kilometer away. Bombing al-Quds hospital thus violates Rule 7 of CIL: “The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives.” A rudimentary form of the principle of distinction is also covered in Article 13(1) of Additional Protocol II, which calls that “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” The prohibition on directing attacks against civilian objects has been included in more recent treaty law applicable in NIACs, namely Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons. In addition, the Second Protocol to the Hague Convention for the Protection of Cultural Property uses the principle of distinction between civilian objects and military objectives as a basis to define the protection due to cultural property in NIACs. In contrast to Rule 15, no precautions were taken to spare the civilian population: “constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.” Here again, Additional Protocol II does not explicitly require such precautions. More recent treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Convention on Certain Conventional Weapons and the Second Protocol to the Hague Convention for the Protection of Cultural Property, does spell out the requirement of precautions in such attacks.

Medical Impartiality Violations

The attack on al-Quds hospital violates medical impartiality’s component of non-interference. The principle of non-interference means every person has the right to the highest attainable standard of living adequate for his health and well-being, including medical care. Access to medical services falls under the non-interference component, and includes medical personnel, medical facilities and transportation. Non-interference is a legal obligation on state and non-state actors alike. It prohibits any obstruction to medical services, such as temporarily stopping personnel, transportation, or supplies from reaching the sick or injured, in addition to more obvious violations such as bombing a hospital or attacking an ambulance. The principle of non-interference applies in IACs and NIACs, in times of civil unrest as well in times of peace.

Scope of Protections: NIACs vs. IACs

As the attack on al-Quds hospital unfolded in a NIAC setting, it is covered by NIAC law. However, while the protections afforded in NIACs by Common Article 3 and customary international law are strong, the al-Quds hospital would have been paradoxically better protected by international law if it had been assaulted during an IAC period. The CIL rules already discussed above, with the exception of Rule 129(B), would continue to apply. In this case, however, the al-Quds hospital attack would additionally trigger the applicability of Geneva Conventions I and IV. Additional Protocol I, which was ratified by Syria, would also apply.

The protections afforded by the Geneva Conventions are much more comprehensive. Article 19 of Geneva Convention I makes explicit reference to medical units and establishments. According to the article: “Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict.” Government forces are guilty of violating the protections afforded by Article 19, thus amounting to a war crime. Article 19 proceeds, “The responsible authorities shall ensure that the said medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.” The closest military objective was over a kilometer away from the hospital. In this case, opposition forces could bear responsibility for establishing a military objective close to the hospital. However, this is highly unlikely given that the damage to al-Quds hospital was not the result of collateral damage. Instead, it was a direct attack. Moreover, as discussed earlier, the Syrian government had previously bombed medical units in rebel-held territories on multiple occasions.

The attack on al-Quds hospital killed Pediatrician Mohammad Wassim Maaz, a dentist, two nurses, a technician, and a guard, thus violating Article 24 of the same convention:

Medical personnel exclusively engaged in the… treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments… shall be respected and protected in all circumstances.

Similarly, the attack on the hospital violated the protections set forth in Article 18 of Geneva Convention IV, “Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.” The assault on the hospital violates Article 20, which protects medics and hospital staff and Article 12, which mandates protections for medical units. Additionally, the attack violates Article 15 of the same protocol, “Civilian medical personnel shall be respected and protected.” The above analysis allows for the conclusion that the attack on al-Quds hospital constitutes a serious violation of the Geneva Conventions and amounts to war crime.

Conclusion

While the bombing of al-Quds hospital certainly constitutes a war crime under present customary international law, the protections afforded by the Geneva Conventions are much more explicit. The articles of Geneva Conventions I and IV contain several provisions on medical units and personnel that would be enough to establish that the attack on al-Quds hospital constituted a war crime. The international community should move towards universal recognition of the Geneva Conventions’ protection of medical impartiality in both IACs and NIACs.

On another note, despite IHL and CIL protections covering NIACs, there is little likelihood that the laws of war will be observed unless warring factions are trained to respect its obligations. In a complicated setting like Syria, knowing the laws that apply can be a challenge, especially after U.S. and Russian involvement and the rise of the Islamic State as a de facto state. The principle of medical impartiality provides a simpler alternative to IHL complications.

Regardless of the applicability of NIAC or IAC law, bombing al-Quds hospital violates the principle of non-interference and thus constitutes a war crime regardless of the party that launched the attack or of the setting in which the attack took place. The international community should facilitate ICRC trainings to warring factions. Further, the UN Security Council should impose an arms embargo on the Syrian government and sanctions against officials who are implicated in war crimes. Further, the council must refer the situation in Syria to the ICC. If this does not happen, an alternative tribunal should be found.

 

Photo Credit: Russian Ministry of Defense