A recently published report examines the ways in which domestic legal frameworks are negatively affecting medical impartiality around the world. Under the auspices of the United Nations Special Rapporteur on the enjoyment of the right to the highest attainable standard of physical and mental health, researchers at the University of Essex and John’s Hopkins University completed a comprehensive study into the issue, publishing their findings in June 2018. The report, entitled The Criminalization of Healthcare, identifies three principle ways in which domestic legal frameworks are being abused to target medical professionals: through counterterrorism legislation, through general law, and through administrative sanctions or other mechanisms that operate outside of conventional legal frameworks.
The report’s chief finding is that the rapid emergence of counterterrorism legislation in the wake of the 11 September 2001 attacks on the US has significantly changed the terrain on which medical professionals operate. Principally, counterterror legislation often includes broad, loosely worded definitions of terrorism, allowing authorities to prosecute medical professionals as terrorists for simply doing their jobs.
In an effort to prevent and deter terrorist attacks, such legislation typically criminalizes the provision of any support to terrorist organizations. However, the criteria used to determine what constitutes a ‘terrorist organization’ or ‘provision of support’ are often vague and politicized. The report finds that counterterror legislation almost always fails to make special provisions to ensure that medical impartiality is protected, which has led to attacks on medical professionals being both justified and enacted through legal means.
In Iraq, for example, legislation that prohibits the provision of assistance to terrorists has led to charges being brought against numerous medical professionals who continued to work in areas that were occupied by the so-called Islamic State group, or IS. Similarly in Syria, a string of legislative decrees passed since the outbreak of the civil war has effectively classified any group that opposes the regime as a terrorist organization and criminalized the provision of support to such groups by any means – including healthcare. Medical facilities and staff operating in opposition-held areas are thus interpreted as legitimate targets for pro-regime forces.
Such poorly formulated counterterror laws force medical professionals into a dilemma: should they uphold the moral standards enshrined in international humanitarian law and which they have been trained to follow, or abide by domestic laws that forbid such action?
The report goes on to detail how the punitive anti-terrorism climate has also affected understandings of general criminal law, with authorities tending increasingly to interpret legislation in a way that leads to the punishment of medical professionals. So-called security interests are increasingly being given primacy over medial impartiality. On-duty healthcare workers in numerous contexts have been charged with breaching laws relating to illegal assembly or illegal association. Some 48 medical professionals who treated protestors during the 2011 pro-democracy uprising in Bahrain and its aftermath faced criminal charges, for example, with some receiving prison sentences of up to 15 years.
The report also notes that administrative sanctions and various other extrajudicial methods are used to punish medical professionals. These methods include pay cuts, the revocation of licenses, dismissals, suspensions, intimidation and physical violence. The Turkish government has reportedly dismissed as many as 20,000 physicians who provided care to members of the outlawed Kurdistan Worker’s Party (PKK). The report also sites the extrajudicial execution of doctors in Aleppo who had treated opposition fighters during the Syrian conflict.
The report concludes by recommending that states review counterterrorism legislation, adding clauses that offer special protection to medical workers and re-train police, army and security officials accordingly. The UN Special Rapporteur stated that he hopes the report will encourage individual nation states and the UN to reflect on ways to improve domestic legislation so as to continue serving public security interests while also safeguarding healthcare.