A HEALTH NURTURED WAR

This article was written by Shubhang Gomasta Tamil Nadu National Law School

Abstract

War and health care go hand in hand. Whenever a war takes place causalities happen and then the role of health personnel comes into play. It is the responsibly of the government to make sure that the health personnel should be given adequate safety and funds during war time. Medical personnel should not be in shortage of funds for medicine nor should they be subject to any type of injuries in the war zone. They should also provide best health care for the injured soldier without any discrimination of sex, age, community or caste.  In times of armed conflict, international humanitarian law (IHL) provides robust protection to health care services. Various conventions and protocols also govern the responsibility and the rights of the soldier in the war as well as the health care personnel .  In times of armed conflict, international humanitarian law (IHL) provides rules to protect access to health care. These rules bind States and non-State armed groups. In situations that do not reach the threshold of armed conflict only international human rights law (IHRL) and domestic law apply. In principle, IHRL applies at all times, unless States decide to derogate from it. Though less specific than IHL, IHRL contains several rules protecting access to health care.

  A HEALTH NURTURED WAR

[1]War one of the most distraoeus event ever made by mankind. War and human civilization co existed together since the inception of human mankind war used to take place. The very base of human civilization was accruing the territory and growing in power. One ruler wages a war against another wins and gains power and expand this power and territory. Basically war was considered as a means to be powerful the more you win more powerful you become. In the older days wars used to be destructive the reason been the weapon been more old and less powerful the quantum of damage which each weapon used to do was less and the number of casualties as a result of war used to be less. In turn the number of death was also low in number. As the world progressed to the 21 st century which was dominated by science and technology new weapons came up causing heavy death tools at the war front 1000s and lakhs of soldier are been killed on both side of the border. In the older times wars were fought for capturing territory and growing in power. In the younger times or the modern times wars are fight to show their respective powers, too show how much and how powerful weapons or arsenal each country has. In any armed conflict, the common people who live near the border and villages become wounded or they become sick. This requires for an immediate healthcare the healthcare need is more required in those areas where the violence is intense and more widespread. the part of job become tougher where the still the war is going on and that insecure environment the health care need to given to those who are injured in the war . The people who are injured in the war are given a number of rights with them.  Once they are injured or sick they cannot be further attacked or be under any subject of violence .it is a right which every human should get. It is always a rule in battlefield that an injured person will not be attacked. They also have a right to proper health care. To settle various political, social and economic differences people and government turn to hostility, aggression, and armed conflict. All this truly reflect the failure of international community and government to fulfill its objective of keeping peace and maintaining harmony. All the preventive measure adopted by various agencies under the united nation have failed to keep its objectives

 .It seems a long forgotten principal that –the wounded and the sick are the object of particular protection and respect. the concept of armed conflict is as such not defined  in any of  the Geneva conventions or protocols  ‘an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a state’.. world health organization defines health as a “a state of complete physical, mental and social well being and not merely the absence of disease or infirmity and it defines health services as “all activities intended to restore not only basic health care amenities but also sanitary related services such as water and hygiene, proper sanitary method and a clean environment it also includes well off food resources. Hence, it can be clearly apprehended that health care involves not only freedom from illness but also the availability of appropriate social, political, ethical and cultural environment for the subsistence of human society. Thus an act of war and Aggression lead to the disruption of health and value thereby diminishing the delivery of health care and services. Health care services take a deep set back during the times of emergency and armed conflict. Taking into consideration the example of U.S. invasion of Iraq in 2005, more than 100,000 Iraqi civilians died in the attack while Iraqi civilian casualties were over 600,000 5. This shows how the right to health in armed conflict is disregarded the Law of War violated in times of aggression. The right to health is an inclusive right it includes all and a wide variety of factors that help us to lead a healthy life   . The right to health contains freedom such as the right to be free from non – consensual medical treatment and to be free from in human of degrading treatment. One of the major problems faced in this world wide is discrimination. In the basic element when health care comes into play a very important point which needs to keep in mind is the avoidance of discrimination in it. There should be absolute no discrimination while and when providing health care all should be treated equally and should be given same amount of health care  to everyone . Another point which needs to take care is that services, goods and facilities must be available, accessible and should be of good quality. The Right to Health was recognized as a fundamental part of our human rights in 1948 by the Universal Declaration of Human Rights. Article 25 of the Declaration mentioned health as a part of the right to an adequate standard of living. The right to health was again recognized as a human right in the 1996 Covenant on Economic, Social and Cultural Rights. The article 5 of the declaration also specially states that no shall be subject to torture, cruel or punishment. . The rights of the wounded must be respected in all circumstances willfully killing them or causing great suffering or serious injury to their bodies or to their health constitutes war crimes as grave breaches of the Geneva Conventions. Sometimes denial of medical treatment may constitute cruel or inhuman treatment. It is a violation of human dignity   . It’s a duty of the health care personnel that in an armed conflict it must take care all possible measures to search for and collect the sick and the wounded people without any delay. It should make sure that these wounded people should be removed and exchange of the wounded and sick.

 All parties to an armed conflict must protect the wounded and sick from pillage and ill-treatment. They must also ensure that adequate medical care is provided to them as far as practicable and with the least possible delay. The personnel who are engaged in medical tasks must always be respected and protected useless and until they commit outside of their humanitarian function acts that are harmful to the enemy

 When they carry and use weapons to defend themselves or to protect the wounded and sick in their charge, medical personnel do not lose the protection to which they are entitled. The wounded and sick under their care remain protected even if the medical personnel themselves lose their protection. The medical personnel at any cost should not be punished and subject to any type of penalty for providing any type of immaterial care

 Parties to an armed conflict may not impede the provision of care by preventing the passage of medical personnel. They must facilitate access to the wounded and sick, and provide the necessary assistance and protection to medical personnel. Medical personnel and medical units such as hospitals and other facilities that have been set up in the war zone and in all circumstances. The medical units shall not be attacked and access to them may not be limited. Both the parties who are engaged in the war should make sure that the medical units should not be attacked and be protected at all cost because they are the ones who will take care of the injured soldier at a later stage.    Medical units will lose the protection to which they are entitled if they are used, outside their humanitarian function, to  commit acts harmful to the enemy, such as sheltering able-bodied combatants or storing arms and ammunition. However, this protection can be withdrawn only after due warning has been given with a reasonable time limit and only after that warning has gone unheeded. One more matter which should be kept in mind is there should be enough transportation for the medical personnel for the travelling of injured soldier to the relief camps and medicines and important material of relief from the major cities nearby the war zone to the relief camps During armed conflicts and internal disturbances such as political protests, civil rioting or state repression, health care facilities are often subjected to violent attacks, obstructed access, interference with operations, and looting. Health care workers may be arrested or intimidated for offering care impartially to those in greatest need. Many who provide care in conflict-affected regions of the world, where the risk of attack is becoming a daily occurrence, have begun to see violence as an occupational hazard. International humanitarian law (IHL) has provided a framework for

Assuring protection and respect for medical personnel, medical facilities, and Ambulances, as well as the wounded and sick, in international and non –international armed conflicts. Over the 150 years since the original 1864 Geneva Convention, these protections have become more extensive and detailed, for example, by prohibiting interference with practices required by medical ethics. Nevertheless, the legal framework for protection under IHL does not comprehensively address the problem of attacks or interference with health services. In some circumstances of political volatility or violence, attacks on health care providers, facilities, transports, and patients take place, but IHL does not apply at all, because no armed conflict exists. For example, during political protests in the Kingdom of Bahrain in 2011,state forces responded by obstructing the capital’s main hospital, and arresting ,torturing, and prosecuting doctors and nurses for allegedly using their medical rolesto commit hostile acts against the state.2 In Syria, before the threshold of a non international armed conflict was reached,3 attacks on patients, the medical community ,and medical institutions by state forces created a climate of fear in which patients would not attend hospitals, leading instead to an underground network of make shift clinics that could not replace the sophisticated medical services needed.4In volatile regions in Nigeria, vaccination workers have been attacked and killed, severely disrupting vaccination programmes.5

Under IHL, medical units such as hospitals, clinics, and pharmacies, whether military or civilian, fixed or mobile, permanent or temporary, must be respected and protected in all circumstances.[2] In the same way, medical transports assigned exclusively to the conveyance of the wounded and sick or of medical personnel, equipment, or supplies must be respected and protected.[3] The meaning of the term ‘respect and protect’ according to military manuals requires that medical units must not be attacked, fired upon, or harmed in any way.[4] Nor should they be used to shield military objectives from attack.[5] State practice generally indicates that medical transports enjoy the same protection as mobile medical units.[6]They both lose their protection if they are being used, outside of their humanitarian function, to commit acts harmful to the enemy, such as by using a hospital for a military purpose or transporting weapons in ambulances.[7] A deliberate attack on a hospital or other place where there are sick and wounded people, provided the location is not a military objective, is a war crime under the Statute of the International Criminal Court,[8] as is an attack on an ambulance displaying the distinctive emblem of the Geneva Conventions.[9]

Medical personnel and the wounded and sick are protected from violence by Article 6 of the International Covenant on Civil and Political Rights (ICCPR), under which states have a non-derogable obligation not to subject any individuals under their jurisdiction or control to arbitrary deprivation of life. A prohibition of torture and cruel, inhuman, or degrading treatment or punishment is found in Article 7 of the ICCPR and specific treaties that address the problems of torture and disappearances.[10] These treaties outlaw the killings, beatings and other forms of torture, and abductions of health workers and patients such as those documented in recent human rights reports.[11] In certain circumstances, the denial of medical treatment might also constitute cruel, inhuman, and degrading treatment, or eventorture.[12] Arrests of medical personnel for providing impartial care can also constitute a violation of the protection against arbitrary arrest and detention.[13]

[1] This was reprinted in the report of the US Sub-Commission, 1995 and UN Commission on

Human Rights and resolution 1995

[2] See CIL, Rule 35.

[3] See GC I, Art. 19; GC IV, Art. 18; AP I, Art. 12; AP II, Art. 11(1), CIL, Rule 28.

[4] See ICRC Customary Law Study, Vol. I, commentary of Rule 28.

[5] Art. 12 (4) AP I.

[6] See ICRC Customary Law Study, Vol. I, commentary of Rule 29.

[7] See Rome Statute of the International Criminal Court, Arts. 8(2)(b)(xxiv) and 8(2)(b)(e)(ii).

[8] See Rome Statute of the International Criminal Court, Arts. 8(2)(b)(ix) and 8(2)(e)(iv).

[9] See Rome Statute of the International Criminal Court, Arts. 8(2)(b)(xxiv) and 8(2)(b)(e)(ii).

[10] See ICCPR, Art. 7; and CAT.

[11] See GC IV, Arts. 55–57.

[12] Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or

punishment, Juan E. Mendez, 1 February 2013, A/HRC/22/53.

[13] See UDHR, Art. 9; and ICCPR, Art. 9.