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Lessons from International Courts for documenters of attacks on medical facilities in Syria

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INTRODUCTION

THE LAW ON HEALTH CARE IN CONFLICT

The law of armed conflict, or international humanitarian law (“IHL”), has long protected medical personnel and facilities. The first article of the 1864 Geneva Convention protected the neutrality of ambulances and hospitals. The 1907 Hague Convention directs that “in sieges and bombardments all necessary steps must be taken to spare, as far as possible,… hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes...” More recently, attacks on hospitals have been identified as one of six “grave violations” which particularly impact children.

Contemporary IHL’s protections for medical care can be broken down into two principles:

  • First, medical workers exclusively assigned to medical duties and medical facilities are protected. They are entitled to be treated as neutral; spared from direct attack; and to have their work facilitated where possible.

  • Second, if medical workers participate in hostilities or medical facilities are used for military purposes, they lose their protection and may be attacked.

As such, attacks and threats of attack against hospitals and against protected persons in relation to hospitals (such as medical workers and patients) are violations of IHL unless that legal protection has been forfeited. These core principles have been further defined through trials and written judgments at international courts.

International organizations have applied these principles to allegations of violations in Syria. Among others, the United Nations Security Council has demanded warring parties “allow the delivery of… medical assistance”, “respect the principle of medical neutrality and facilitate” medical assistance, and “demilitarize medical facilities” to avoid having military targets located in or near them such that lawful strikes might impact them. The Secretary-General has included both ISIS and Syrian governmentaligned forces on his list of shame for perpetrators of violations related to children and armed conflict as a result of actions including “attacks on schools and/or hospitals”.

While not all IHL violations are war crimes, IHL principles are essential to assessing war crimes allegations and violations of these particular provisions have been criminalized, as set forth below.

we outline those lessons and review one case study, in which a Trial Chamber at ICTY analyzed evidence related to the use of a “modified air bomb” which hit a medical facility in Sarajevo, Bosnia and Herzegovina, on 16 June 1995. The report relies upon publicly available information, such as analysis and findings contained in public versions of trial judgements from international courts. Professionals who have worked on such cases in various capacities at various international courts were informally consulted in the preparation of this report. No court or branch thereof has any involvement in or responsibility for the contents of this report. Quantitative data regarding attacks on health in Syria came from SAMS archive covering the period between 2015-2021.