International Humanitarian Law (IHL), also known as “law of the armed conflicts”, consists of a set of provisions intended to protect those who do not take part into hostilities and to establish some limits to the methods and means of fighting. These rules are not unlimited, as they do not operate in a vacuum and have to coexist with the military goal of winning the war. However, the International Committee of the Red Cross’ Report (ICRC) on the respect and protection of health care in armed conflicts and in other situations not covered by IHL recalls the pivotal role of the laws of war meant to guarantee the safeguard of the physical and psychological conditions of the victims of war, as to mitigate the dire suffering of people affected by conflicts. Against this backdrop, the four Geneva Conventions of 1949 (GC) and the two Additional Protocols of 1977 (AP) represent the pillars of the protection of people’s health in armed conflict. Furthermore, the Report emphasizes how this legal framework is not limited to the Geneva documents: indeed, the rules contained in the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are applicable in any circumstance, being consequently able to embrace wartime situations too.
Starting with the first category specifically dealing with hostilities, article 12 of GC I establishes that wounded and sick shall be protected in all circumstances, and any grave violation of this obligation amounts to a war crime. So does the denial of medical treatment, provided that the nature of the denial is grave enough to constitute cruel or inhumane treatment, or even torture. Additionally, warring parties have the duty to search for wounded timely, so as to make sure they can receive the proper treatment without any delay. It is worth remembering that, when it comes to ensure medical treatment to sick and wounded, there is a general prohibition of discrimination amongst people in need, as they all must be treated equally. It goes without saying that, in order for these rules to be actually respected, it is paramount that also the medical personnel and health care professionals enjoy the full protection from enemies’ attacks. Relatedly, Parties to an armed conflict cannot use protected emblems to carry out harmful activities, so not to take improper advantage of the protection reserved to medical units and transports.
Shifting to the provisions covering both peacetime and wartime, article 25 of the UDHR and article 12 of the ICESCR establish that States must take steps to ensure everyone the right to health, by providing people with the access to a “variety of facilities, goods and services necessary for the realization of the highest attainable standard of physical and mental health”.
Conclusively, it is important to bear in mind that both the Geneva documents and the ICESCR are applicable only to those States which ratified them. Additionally, the UDHR is a declaration and, as such, is not legally binding. However, rules protecting people’s health are nowadays generally recognized as part of customary law. Subsequently, they shall be respected regardless of the ratification of the aforementioned documents. This approach paves the way to the general application of these provisions, contributing to a more satisfying safeguard of vulnerable people.
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Author: Gianpaolo Mascaro; Editor: Jasmina Saric
