Deep in the National Defense Authorization Act (NDAA), passed despite President Donald Trump’s veto, lies a modest provision, section 1299J, that provides the Biden administration with an opportunity for a foreign policy and human rights trifecta: Reforming military operational practice to be more consistent with the nation’s values and commitment to international law; providing global leadership in securing compliance with Geneva Conventions’ requirements to protect and respect health care; and advancing access to health care for people in war-torn countries in the next pandemic. Together with other straightforward policy initiatives, including excluding medical care and humanitarian aid providers from risk of counterterrorism prosecutions, strengthening the World Health Organization’s tracking of the violence, and reforming policies on arms transfers to governments that breach international law, the administration could advance the security of health care globally.
Representatives Jim McGovern (D-MA) and Chris Smith (R-NJ), the co-chairs of the Tom Lantos Human Rights Commission in the House, sponsored the amendment. It requires the Department of Defense to report to Congress on actions taken in response to a request by then-Defense Secretary Ash Carter in 2016 to review rules of engagement, directives, and practices to ensure that they conform to principles of protection of medical care in armed conflict based on the Geneva Conventions. Carter issued his memorandum in the wake of the U.S. airstrike on a Doctors Without Borders (MSF) hospital in Kunduz, Afghanistan in 2015 that killed 42 people. Other than addressing the cascade of gross targeting and operational errors that led to the Kunduz attack, it is unclear whether these reviews ever took place. If they did, they have never been disclosed. Section 1299J ordered the defense secretary to report to Congress on any reviews conducted and stated that the secretary “shall continue to ensure” that orders, rules of engagement, policies and procedures are consistent with the principles of protection of medical care.
The need for review and reform is palpable. In recent years, the health consequences of violence against hospitals, clinics, ambulances, health workers, and patients in war have become ever more evident in conflicts throughout the world. More than 1,200 incidents of violence and threats to health workers, facilities, and transport were documented in 2019. That number severely understates the scope of the problem, as only spectacular acts of violence — such as bombing or shelling of hospitals or kidnapping of health workers — tend to be reported. Yet, there is evidence that three of the five most frequent categories of violence against health care are less visible ones. For example, forced entry into health-care facilities, obstructions of ambulances and other medical vehicles, and denial of access to health care. Because these events are so routine and rarely result in immediate deaths, they are rarely reported. Moreover, they are often committed by militaries that embrace compliance with the Geneva Conventions but lack doctrine, instructions, or training to guide military operations to respect health care and those administering it, and do not hold front-line soldiers to account for breaches of the law.
The consequences of the gap are enormous. Obstructions of and interference with health care in armed conflict settings prevent supplies and personnel from reaching hospitals and clinics; lead health workers to flee; deter patients from seeking care; and, in emergencies, can lead to needless deaths. They exacerbate the strains on health services from war and undermine the capacity of health systems to function, including in the COVID-19 pandemic. Those impacts, however, have been largely invisible because COVID testing capacity is so limited in many war zones that official reports of cases bear little resemblance to the true prevalence of infection. In Afghanistan, for example, a World Health Organization model suggested last May that COVID-19 could infect more than half of the country’s population. By December, the Ministry of Public Health said 32 percent of the country’s 34 million people may have contracted the virus.
Just a few months before Carter issued his directive, the United Nations Security Council, recognized the need for review and revision of military operations in the field to harmonize them with the Geneva Conventions’ requirement to respect and protect health care. In May 2016, with U.S. co-sponsorship, the Security Council adopted Resolution 2286 that, among other requirements, called on States to “integrate practical measures for the protection of the wounded and sick and medical services into the planning and conduct of their operations.” Guidance for such a review was available through a set of recommendations developed by the International Committee of the Red Cross (ICRC), after consultation with more than two dozen militaries. Since then, the ICRC published even more detailed guidance on how militaries can protect health care in military operations. As I wrote previously, in some operations, particularly in Afghanistan, U.S. commanders did impose restrictions on armed hospital entries.
Reform of U.S. doctrine and practice could also become a model for other militaries and governments to follow. For five years, despite repeated calls by States and NGOs to review operational protocols and practice as called for in Resolution 2286, State militaries have ignored their governments’ pledges, with only a few, rare exceptions. The inaction was likely a product of some combination of militaries’ indifference to the U.N. resolution, resistance to reforming military practices, and the low priority militaries assigned to protection of health care beyond not directly targeting hospitals. Humanitarian, human rights, and medical and nursing organizations have despaired or became cynical at the lack of even modest follow-through on the resolution. The NDAA’s section 1299J represents the first action by a legislative body to require a military to comply with the Security Council resolution. It has the potential to stimulate other countries to follow.
Vigorous action in response to the NDAA amendment should just be the first step for the Biden administration to better protect health care in conflict. A second step would be to address the long-festering use of counterterrorism law to deny health care to suffering populations. In the years after 9/11, counterterrorism laws have been interpreted so broadly as to criminalize medical care to a person designated a terrorist or working with a terrorist organization. As troubling, these laws often impose tough restrictions on humanitarian aid to populations living in areas controlled by designated terrorist groups. As they contradict the obligation under the Geneva Conventions and human rights law to provide or permit others to offer health care to all wounded and sick, Agnes Callamard, the U.N. special rapporteur on extrajudicial, summary or arbitrary executions, has said that counterterrorism law has become a “a monster that is devouring international law.” They also devour people in need, as well as opportunities to resolve conflicts. In its final days, the Trump administration’s designation of the Houthis in Yemen as a terrorist group raised alarm that it would impede efforts to end the war and catastrophically worsen what is already the world’s largest humanitarian crisis.
Recognizing the seriousness of the concerns raised, President Joe Biden quickly notified Congress that he intended to reverse that designation because of its humanitarian consequences. But the severity of counterterrorism restrictions on humanitarian response and medical care requires further action. European and other governments have tried to gain international consensus toward harmonizing counterterrorism law with humanitarian and human rights law to permit aid to flow and to facilitate medical care without risk of prosecution. In 2019, though, the Trump administration, furiously condemned language in a U.N. General Assembly resolution that called for exclusion of medical and humanitarian activities from the reach of counterterrorism law. The next year it threatened to veto a Security Council resolution with similar language, which led to such watered-down language that it became meaningless. There is, however, bipartisan support in Congress for reform of counterterrorism policy. Moreover, there are means of ameliorating harms to people in need in fraught environments short of amending the law. U.S. counterterrorism laws, for example, do not compel the criminalization of medical care, as they contain an exception for medicine. It logically should apply to those who provide or administer medicine and other forms of care.
A third step should accompany Biden’s first-day executive order to rejoin the World Health Organization. The Obama administration played a central role in establishing a global reporting system on violence against health care by pressing a resolution passed at the WHO’s governing body in 2012 for WHO to track incidents of violence against health care in emergencies. Although the system got off to a good start, in the past year it has withered, as with reporting of attacks in some major conflicts almost entirely absent. Any leadership to repair the program appears to be absent. Pressure from the United States would help restore the integrity of the system and force violence against health care to remain on the global health agenda.
A final set of steps, and one which was part of Biden’s campaign, is needed to protect health care as well as civilians generally: limiting sales of weapons to entities that use them to commit violations of the Geneva Conventions. The President has paused arms sales for offensive operations in Yemen by Saudi Arabia, which has used American-made weapons to bomb hospitals as well as other infrastructure in Yemen, acts a U.N. panel found likely constitutes war crimes. The 2020 Democratic Platform also called for joining the global Arms Trade Treaty, which strengthens restrictions on sales of weapons and provision of military support to entities that breach the Geneva Conventions and human rights law. Biden’s administration should carry out this commitment.
The administration of course has a lot on its plate. But Section 1299J requires a report to Congress within 180 days, so there is reason to move expeditiously, while linking the Pentagon review with other straightforward and complementary actions to protect health care in war.
Image: A member of the Syrian Civil Defence (The White Helmet) checks the rubble and debris at a medical centre following reported shelling by the Syrian government, in the Syrian town of Hbeit in the southern countryside of the rebel-held Idlib province on April 30, 2019. Photo by OMAR HAJ KADOUR/AFP via Getty Images