Humanitarian and Medical Services
What they are and how the law protects them.
The Basics
Humanitarian activities in armed conflicts
Humanitarian activities aim primarily to provide relief to and protection for people affected by the conflict. Beneficiaries include the civilian population as well as certain members of the armed forces and other fighters (such as those who have laid down their arms or who have been placed hors de combat by sickness, wounds, detention, or another cause). In practice, humanitarian activities are performed by an entity — such as a State, an international agency, or a private humanitarian organization — or by one or more unaffiliated individuals.
Medical activities in armed conflicts
Medical activities aim primarily to provide medical care and attention for the wounded and sick, whether they are members of armed forces (including the adversary) or civilians. In practice, medical activities are performed by an entity — such as the medical personnel of a party to an armed conflict or a private medical organization — or by one or more unaffiliated individuals.
The law
States have developed international humanitarian law (IHL) — also known as the law of armed conflict and the jus in bello — as the primary body of international law applicable to acts and omissions connected with an armed conflict. IHL lays down several rights and obligations relating to a broad spectrum of humanitarian and medical activities pertaining to armed conflicts.
Preconditions
In addition to needing secure access to affected persons, humanitarian and medical actors must be able to take sufficient preparatory steps to offer and provide services and must possess the knowledge, training, means, and facilities necessary to engage in humanitarian and medical services for affected persons. Further, engaging in humanitarian and medical activities must not give rise to legal endangerment for the people, means, or facilities involved in those activities.
Types of humanitarian activities
At least two distinct types of humanitarian activities may be identified.
Relief activities
Aim to provide supplies essential to the survival of affected persons (such as food, water, medical supplies, means of shelter, and bedding) and objects necessary for religious worship.
Protection activities
May be conceptualized as encompassing actions that aim to ensure that the authorities and other relevant actors satisfy their obligations to uphold the rights — under IHL and other applicable frameworks — of the individuals concerned.
IHL in a nutshell
IHL is often conceptualized as reflecting a kind of normative and operational balance that States and other international actors have reached between military and humanitarian considerations. Some IHL provisions are applicable in peacetime, but the bulk of them are applicable during armed conflicts. Under IHL, there are two generally recognized categories or classifications of armed conflicts: international armed conflicts (including military occupations) and non-international armed conflicts.
Digging into some specifics
A diverse array of rules
IHL lays down several rights and obligations relating to a broad spectrum of humanitarian and medical activities pertaining to armed conflicts. It bears emphasis that IHL rules concerning humanitarian and medical activities involve various distinctions concerning these activities. That is because IHL provides a combination of general and specific rights and obligations in relation to various aspects of humanitarian and medical activities, the beneficiaries of those activities, and the people, objects, and facilities involved in those activities. Further, the (in)applicability of a particular provision may depend not only on the type of activity involved (be it humanitarian or medical) but also on the classification of the armed conflict (as international or non-international in character), whether a party to the conflict has agreed to be bound by a particular IHL instrument, or the status and content of a rule of customary IHL.
Some key protections
IHL provisions pertaining to humanitarian and medical activities are too numerous to summarize here. Yet even a short outline of some of the key aspects suffices to illustrate the significant extent to which States and other international actors have developed IHL to safeguard humanitarian and medical activities in a manner that takes military considerations into account.
Foundational IHL instruments lay down rights and obligations concerning humanitarian and medical activities, including in respect of the wounded and sick in armed forces in the field; the wounded, sick, and shipwrecked members of the armed forces at sea; prisoners of war; others who no longer participate actively in hostilities, including other fighters rendered hors de combat; and civilians. Regarding humanitarian activities, in broad terms IHL principles, rules, and standards concern ensuring — for people who are not, or are no longer, actively participating in hostilities and whose needs are unmet — certain essential supplies (such as food, water, medical supplies, means of shelter, and bedding) and objects necessary for religious worship as well as upholding the rights of those people. As for medical activities, in broad terms IHL provisions pertain to providing medical care for the wounded and sick (as defined in IHL) irrespective of the party, if any, to which the affected persons are affiliated and irrespective of whether the wounded and sick are members of an armed force, other fighters, or civilians.
IHL rights and obligations also relate to allowing the passage of, searching, and prescribing technical arrangements for certain humanitarian consignments; protecting and facilitating the distribution of certain relief consignments; and receiving relief shipments. Further, a major IHL treaty lays down an obligation on encouraging and facilitating effective international coordination of certain relief actions.
Protections for the involved people and means
As corollaries to help secure those primary sets of protections covering such humanitarian and medical activities, general and specific IHL rules provide a kind of collateral protection in respect of certain people, objects, and facilities involved in those activities.
Legal guidance and requirements
Many of the relevant IHL provisions entail requirements or at least guidance concerning permissible and impermissible bases for the prioritization of persons for the indicated humanitarian and medical services, as well as the conditions under which those services are to be provided. For example, numerous IHL rules require that humanitarian aid and medical care be provided on an impartial basis, in the sense that the needs of the persons affected by the conflict — and not, for example, the person’s affiliation (if any) to a party to the conflict — inspire and guide the allocation and provision of services.
Primary responsibility
Under IHL, the party concerned bears the primary responsibility for meeting the humanitarian needs of the people affected by an armed conflict and providing medical care to the wounded and sick.
Offering services
Where those needs remain unmet or where such care is not provided, IHL lays down several legal bases for humanitarian and medical activities to be offered and provided by other actors. For example, each of the four Geneva Conventions of 1949 contains a provision laying down a legal basis for impartial humanitarian bodies to offer their services to the parties to a non-international armed conflict, whether the particular entity is a State party or a non-state party. Concerning an international armed conflict, each of those four foundational IHL treaties also expressly confirms that none of its respective provisions constitutes an obstacle for any impartial humanitarian organization, subject to the consent of the parties to the conflict concerned, to undertake humanitarian activities to provide protection to and relief for the persons covered by that instrument. Further, several IHL instruments provide a legal basis for civilians (even if they are not affiliated with either a party to the conflict or an impartial humanitarian organization) and civilian institutions (such as civilian hospitals) to undertake, or at least offer to undertake, certain humanitarian and medical activities.
Prohibitions on punishment
IHL instruments lay down prohibitions on the punishment of people involved in certain humanitarian and medical activities.
Who is legally responsible?
Depending partly on the character and content of the underlying rule, a violation of an applicable IHL provision related to humanitarian or medical activities may engage the international legal responsibility of a State or an individual.
State responsibility
Regarding State responsibility, in general, as explained by the International Law Commission (ILC), acts or omissions of a State that constitute a breach of an obligation of the State — including IHL obligations related to humanitarian and medical activities — entail the international legal responsibility of the State (provided that the wrongfulness of that breach is not precluded) and give rise to legal consequences. Those consequences may include obligations on the State to cease the act, offer appropriate assurances and guarantees of non-repetition, and make full reparation for the injury caused.
Individual criminal responsibility
Individual criminal responsibility may arise when an individual engages in conduct related to humanitarian or medical activities proscribed as an international crime. For example, the Statute of the International Criminal Court (ICC) prohibits as war crimes acts related to depriving civilians of objects indispensable to their survival, including by willfully impeding relief supplies as provided for under the Geneva Conventions, and intentionally directing attacks against certain people and objects involved in humanitarian and medical activities.
