After years of indifference to examining whether its rules of engagement and other operational directives and practices contribute to the scourge of violence against health workers, hospitals, ambulances, and patients, the Pentagon may finally be forced to act. On July 20, the House of Representatives adopted a seemingly obscure but potentially pathbreaking bipartisan amendment to the National Defense Authorization Act. The Senate conferees should agree to the provision, which its bill lacks.
The amendment — sponsored by the co-chairs of the Tom Lantos Human Rights Commission, Representatives Jim McGovern (D-MA) and Chris Smith (R-NJ) — would require the Department of Defense to report to Congress on its review of whether its orders and practices protect and respect hospitals, ambulances, health personnel, and the wounded and sick in armed conflict. (I provided technical assistance to Lantos Commission staff on the amendment.) Then-Secretary of Defense Ashton Carter requested this review in 2016, but it is not clear whether the review took place and, if it did, the results were never made public. The amendment would also require DOD to report on changes made toward safeguarding health care. In addition to promoting transparency, these analyses would help the United States fulfill its obligations outlined in the United Nations Security Council’s first-ever resolution on the protection of health care in conflict, which the United States supported.
Soldiers and commanders are trained not to attack health facilities, ambulances, and personnel, but there is little guidance on how to adjust routine military operations, such as management of checkpoints and hospital searches, to adhere to obligations under international humanitarian law. As a consequence, these operations all too frequently create severe delays in accessing or continuing care and even result in deaths to the wounded and sick and their caregivers. A study by the International Committee of the Red Cross found that, in a two-year period, more than half of violence against health care included obstruction of passage of medical transports and armed entries into health facilities.
The Pentagon’s encyclopedic Law of War manual is unhelpful, as it does not contain operational guidance on conducting lawful acts, such as operating checkpoints, so as to avoid violence and harm. As result of the gap, U.S. forces have been implicated in harm, including deaths of civilians. For example, one study reviewed 154 declassified detailed incident reports in cases where American soldiers killed Iraqis in the vicinity of checkpoints in 2006–07, even where there was no evidence of threatening behavior. More recently, in 2019 Afghan special forces trained and supported by the United States violently entered hospitals and killed members of their staffs.
These are solvable problems. In 2011, for example, the commander of U.S. forces in Afghanistan issued an order prohibiting armed hospital entries unless exceptional circumstances required it, subject to approval of a two-star general, and forbidding use of force except in self-defense.
A more systemic approach is required, as Carter’s memorandum requesting the review contemplated. He issued the memo in the aftermath of a U.S. airstrike on a Doctors Without Borders hospital in Kunduz, Afghanistan, that destroyed the largest trauma facility in northern Afghanistan and killed 42 people. After initial dissembling by the Pentagon, claiming that the hospital was “collateral damage” as its forces were engaging militants, it acknowledged responsibility. President Obama apologized. The Pentagon investigated and ultimately disciplined soldiers involved in the attack and initiated reform of targeting in bombing raids.
Doctors Without Borders demanded more action, which ultimately led Carter to issue a set of principles grounded in international humanitarian law for military operations and to request a review of operational instructions affecting health care. The memorandum followed by just a few months the Security Council’s resolution, one provision of which called on States “to integrate practical measures for the protection of the wounded and sick and medical services in the planning and conduct of their operations.”
Then-U.N. Secretary-General Ban Ki-Moon followed up the resolution with recommendations for implementation that, among other things, urged State militaries to “adopt, disseminate and implement rules of engagement, military manuals, tactical directives, standard operating procedures and other similar operational documents or guidelines, with specific attention to precautionary measures aimed at minimizing the consequences of hostilities on medical care.”
Neither the Security Council resolution nor the Carter memorandum appear to have resulted in the needed reviews by Pentagon — or, for that matter, other militaries around the world. Each year, current U.N. Secretary-General António Guterres issues a report on implementation of the resolution. And each year, including in 2019 and 2020, he plaintively requests that governments follow though on their unfilled commitments. To no avail.
That is why the Senate’s acceptance of the amendment, which the White House does not oppose, in the conference on the bill could be so significant, not only to follow-though on U.S. commitments, but globally. Despite political failures of global leadership in recent years, the U.S. military remains very influential. Getting the Pentagon’s own house in order, and saving lives by doing so, could inspire other militaries to do the same. The Pentagon has an opportunity to become a leader in the effort to ensure that the wounded and sick, health care providers, facilities, and ambulances remain protected from the routine and devastating violence of war.
Image: The MSF Trauma Center in Kunduz, Afghanistan, following the US airstrike on the facility in October 2015. Image by Andrew Quilty.