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PASSED LL.B. FROM LAW SCHOOL, BANARAS HINDU UNIVERSITY
Health Care During Armed Conflict – A Legal and Social Perspective
“War does not determine who is right - only who is left.”~ Bertrand Russell
The meaning of armed conflict is to open and declared conflict between the armed forces of two or more states or nations. Wars and conflicts have rage around the world. Our world has already faced two world wars. The hunger of power makes some of the capable nations to get indulged in the wars against the poor countries or rival countries. After First World War the League of Nations tried to control this hunger but it also got failed which results to Second World War. In Second World War the world has seen the most dangerous form of wars when Hiroshima and Nagasaki got destroyed by the Atom bombs.
We often used to say that this particular nation attacked on that particular nation, or this powerful nation going to overpower that nation, but while this discussion we always forget the pivot of the wars, i.e., common mass that is totally innocent but have to face the problems. The common people of any nation always wants to lead there life peacefully, but due to some handful people, who are in the power, they never able to lead there life prosperously.
Robert E. Lee, letter to his wife, 1864 has wrote “What a cruel thing is war: to separate and destroy families and friends, and mar the purest joys and happiness God has granted us in this world; to fill our hearts with hatred instead of love for our neighbors, and to devastate the fair face of this beautiful world.”.
I dream of giving birth to a child who will ask, "Mother, what was war?" ~Eve Merriam
These lines show the real pain of wars and armed conflict. Not a single person wants to be a victim of the wars…but the cruel world has left no option but to face it. It is really a pity situation where in our world most of the countries are in developing or under developed stage, where most of the people are not getting the basic infrastructure to lead there life, many of the threatening diseases still need to be cured and many of the children are not able to go school because of poverty, the powerful countries are discussing about how to overpower other nations, how to get more petroleum for their nations to run their tin boxes i.e., Cars and Industries relating to it.
“Give me the money that has been spent in war and I will clothe every man, woman, and child in an attire of which kings and queens will be proud. I will build a schoolhouse in every valley over the whole earth. I will crown every hillside with a place of worship consecrated to peace.” ~Charles Sumner
During armed conflict the statistics indicate more men and more women died than during World War II. Children are the least responsible for conflict; yet suffer disproportionately from its excess. The proportion of civilians among the dead, in some instances, was as high as 90%. Women and girls predominantly experience armed conflict as civilians and as such, are often exposed to acts of violence including: -
· Death and injury from indiscriminate military attacks and the prevalence of mines;
· Lack of the basic means of survival and health care;
· Limitations on their means of support themselves and their families.
So, for protection of civilians and medical and religious military personnel the International Humanitarian Law came into existence. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick combatants and prisoners of war.
Here we have to understand one thing that there are mainly two types of armed conflict. :
1. International armed conflict
2. Non international armed conflict.
The International humanitarian law also distinguishes between international and non-international armed conflict.
International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I.
Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II.
International Humanitarian Law
Now we should understand the international humanitarian law. International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It is also known as the law of war or the law of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. It is part of international law, which is the body of rules governing relations between States. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.
International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs. Universal codification of international humanitarian law began in the nineteenth century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States, and today it is international body of law. A major part of international humanitarian law is contained in the four Geneva Conventions of 1949. Nearly every State in the world has agreed to be bound by them. The conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Other agreements prohibit the use of certain weapons and military tactics and protect certain categories of people and goods.
These agreements include:
# the 1954 Convention for the protection of Cultural Property in the Event of Armed Conflict, Plus its two protocols;
# the 1972 Biological Weapons Convention;
# the 1980 Conventional Weapons Convention and its five protocols;
# the 1993 Chemical Weapons Convention;
# the 1997 Ottawa Convention on anti-personnel mines;
# The 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
Many provisions of international humanitarian law are now accepted as customary law – that is, as general rules by which all States are bound. It is to be noted down that the International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting. It covers mainly two areas:
Ø the protection of those who are not, or no longer, taking part in fighting;
Ø Restrictions on the means of warfare – in particular weapons – and the methods of warfare, such as military tactics. Prohibits all means and methods of warfare which:
Ø fail to discriminate between those taking part in the fighting and those, such as civilians, who are not, the purpose being to protect the civilian population, individual civilians and civilian property;
Ø cause superfluous injury or unnecessary suffering;
Ø Cause severe or long-term damage to the environment.
It has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.
The topic is mainly concerned with right to health during armed conflict. So it is to be discussed now.
Right to health during armed conflict
The right to health is understood as the right to have access to health services. However, it is not an absolute right, as such, to be in good health. The WHO defines health services as all activities intended to restore and maintain health. One therefore has to include vaccinations, medical care, but also sanitary services related to water and hygiene, and a clean environment under this heading, as well as all activities ensuring access to food resources.
Actually, Wars results the in humanitarian tragedies which affect whole populations. The effects of war on health are multifaceted and range from striking effects such as the wounded, the dead, the epidemics and famine, to less visible ones including the disorganization of health services and, in some cases, their total annihilation.
Many of the conventions and declarations deals with this, like, of Article 25 of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (Articles 12, 24), the International Convention on the Elimination of All Forms of Racial Discrimination (Article 5), the Convention on the Elimination of All Forms of Discrimination Against Women (Articles 10, 12, and 14), the Convention on the Rights of the Child (Article 24).
In fact, several articles in the Geneva Conventions and their Additional Protocols protect medical structures and medical personnel. It is forbidden to attack hospitals, and medical staff must be able to perform their work without any discrimination whatsoever.
Numerous aspects of international humanitarian law address the protection of the right to health in armed conflict; they concern the protection of the right to be given care and the protection of essential services to maintain health. Protection is also required for essential services aimed at maintaining health, namely food, drinking water, hygienic measures, and habitat. To ensure such protection, it is forbidden to attack or destroy these services, or to render them inoperable. With respect to access to food, it is forbidden to attack food stocks, agricultural zones, harvests, cattle, and irrigation installations.
Recently, several humanitarian organizations have shown that civilian populations are particularly affected by the use of cluster munitions. Cluster munitions are weapons that spread hundreds of tiny explosive devices over wide areas and leave hidden unexploded bomblets that keep on killing for many years. In modern wars, civilians pay a high price from the use of such weapons. In May 2008, 107 states adopted a draft Convention on Cluster Munitions which effectively prohibits the use, production and transfer of all existing types of cluster munitions. Further, the adoption of the Protocol on Explosive Remnants of War in 2003 obliges the parties to the conflict to remove all explosive remnants.
A new resolution that stresses the importance of health protection during armed conflict has recently been launched. This resolution is an outcome of an international health conference and is part of a wider campaign to restore and strengthen the Geneva Conventions, The International Health Protection Initiative (IHPI) is a collective movement of individuals, organisations, institutions and charities (including non-Governmental Organisations-NGOs) who have agreed to help to lobby the United Nations to act to uphold the Geneva Conventions, especially as regards safe-guarding health facilities/equipment/transport, and workers.
The IHPI Resolution compliments other impending initiatives that will help to enhance the protection of patients, health workers and health facilities during armed conflict, including efforts to create a greater role for the World Health Organization.
Supporting the IHPI resolution is the first step in a long-term campaign calling for the protection of health care during armed conflict. In order to achieve the objectives outlined in the IHPI resolution and to support the wider campaign, IHPI is calling for the majority of the world’s healthcare organisations, institutions, NGOs and civil society, especially those in conflict afflicted countries, to sign-up to the IHPI resolution, and to support the other activities of the campaign, which will be publicised in due course.
It is very much true that many conventions and international laws are being formed for protection of the right of health for armed conflict victims. Many restrictions are made for using arms in civilian places but sadly there are countless examples of violation of international humanitarian law. Increasingly, the victims of war are civilians. These bodies of laws apply during times of extreme violence, implementing the law will always be a matter of great difficulty.
If we take example of Iraq, the Human Rights violations by the occupying forces of United States have been innumerous. Such violations and degradation of Human dignity by the forces of a State which hails itself as a civilized Nation is pathetic and brings to fore the hypocrisy practiced by the International Community. More recently the attack by Israel on Lebanon, in the name of self defence, shows the excesses being made by a militarily powerful country over the weaker one. The Israel, in its so called self defence, has attacked and destroyed many undefended cities of Lebanon resulting in destruction of infrastructure and deaths of many innocent civilians.
So, Measures must be taken to ensure respect for international humanitarian law. States have an obligation to teach its rules to their armed forces and the general public. In particular, they must enact laws to punish the most serious violations of the Geneva Conventions and Additional Protocols, which are regarded as war crimes. The States must also pass laws protecting the Red Cross and Red Crescent emblems.
The protection of the right to health in armed conflict requires reliance on a legal framework that recognizes the many facets of this right. Health professionals are also responsible for participating in the elaboration of a true strategy for the prevention of conflicts. In practice, they can contribute to this goal by:
-Rationally using the epidemiological tools to promote health concerns in the context of current and future armed conflicts.
-Exercising their ability to influence political players.
-Controlling research and biotechnological work, for example through ethical committees, to ensure such research will not be applied towards developing new weapons.
-Paradoxically, one major risk may derive from medical research: The use of genetically engineered germs, or even germs produced by nanotechnology, would have effects on the population, which would extend beyond any therapeutic capacity.
Measures have also been taken at an international level: tribunals have been created to punish acts committed in two recent conflicts (the former Yugoslavia and Rwanda). An international criminal court, with the responsibility of repressing inter alia war crimes, was created by the 1998 Rome Statute.
In the present day world, where the States are sitting on a time bomb of war, which is ticking very fastly towards explosion, the International Statutory Bodies, Courts and Tribunals overlooking the justice system for prevention of any war crime or Genocide should be more impartial in its actions and transparent in its working. People should not live in a constant fear of being attacked by any other nation. Such fear and sense of enslavement makes a bad impact on young minds and push them to the brink where they are brainwashed by the radicalists and turned into terrorists or human bombs.
So according to me the world should understand and follow the principle of “vasudhaiv kutumbakam” i.e., whole world should be treated as their own family by the conflicting nations. Nations should avoid armed conflict as far as possible. Then only we would be able to take care of innocent common mass.
# Armed conflict legal definition of Armed conflict_ Armed conflict synonyms by the Free Online Law Dictionary.htm
# PROTECTION OF WOMEN AND CHILDREN DURING ARMED CONFLICTS UNDER INTERNATIONAL HUMANITARIAN LAW. By Rohan Sharma Associate ,SharmaLawCo.
# Committee on Economic, Social and CulturalRights (CESCR), General Comment No. 14 on the right to the highest attainable standard of ealth, 1 August 2000, UN Doc. E/C.12/2000/4, at paras.9 and 11.
# Posted on February 1st, 2011 by PLoS Guest Blogger Dr Rhona MacDonald, freelance editor, firstname.lastname@example.org
# The Right to Health in Armed Conflict Pierre Perrin*
The author can be reached at: email@example.com