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UN, Security Council Resolution 2286 on Attacks on Hospitals

Case prepared by Alexandra Hansen, BLaw, student at the Universities of Basel and Geneva (Switzerland), under the supervision of Professor Marco Sassòli and Ms. Yvette Issar, research assistant, both at the University of Geneva.

N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.

 

Security Council, Resolution 2286 (2016)

[Source: UN Security CouncilResolution 2286 (2016), Adopted by the Security Council at its 7685th meeting, on 3 May 2016, UN Doc. S/RES/2286 (2016), available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2286(2016)]
 
[1] The Security Council,
 
[2] Reiterating its primary responsibility for the maintenance of international peace and security and, in this context, the need to promote and ensure respect for the principles and rules of international humanitarian law, […]
 
[...]
 
[7] Recognizing the particular challenges faced by humanitarian personnel exclusively engaged in medical duties and medical personnel and reaffirming that all humanitarian personnel are entitled to respect and protection under international humanitarian law,
 
[8] Stressing that identification of medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities may enhance their protection, and in this regard, recalling also the obligations, in situations of armed conflict, pertaining to the use and the protection of the distinctive emblems under the Geneva Conventions of 1949 and where applicable, their Additional Protocols,
 
[9] Recalling further the specific obligations under international humanitarian law to respect and protect, in situations of armed conflict, medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, and hospitals and other medical facilities, which must not be attacked, and to ensure that the wounded and sick receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required,
 
[10] Recalling also the obligation under international humanitarian law to distinguish between civilian populations and combatants, and the prohibition against indiscriminate attacks, and the obligations to do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection, including medical personnel their means of transport and equipment, and hospitals and other medical facilities, and recalling further the obligation to take all feasible precautions with a view to avoiding and in any event minimizing harm to civilians and civilian objects,
 
[11] Deeply concerned that despite these obligations, acts of violence, attacks and threats against medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities, are being perpetrated in situations of armed conflicts and that the number of such acts is increasing,
 
[12] Recalling that locally recruited medical personnel and humanitarian personnel exclusively engaged in medical duties account for the majority of casualties among such personnel in situations of armed conflict,
 
[13] Further concerned that the delivery of humanitarian assistance, including medical assistance, to populations in need is being obstructed by parties to armed conflicts in many conflict situations,
 
[14] Recalling that under international humanitarian law, persons engaged in medical activities shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics or to other medical rules designed for the benefit of the wounded and the sick,
 
[15] Convinced that acts of violence, attacks and threats against medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities, and obstructing the delivery of humanitarian assistance, including medical assistance, may exacerbate ongoing armed conflicts and undermine the efforts of the Security Council to maintain international peace and security under the Charter of the United Nations,
 
[16] Reaffirming the need for all parties to armed conflict to respect the humanitarian principles of humanity, neutrality, impartiality and independence in the provision of humanitarian assistance, including medical assistance, and reaffirming also the need for all actors engaged in the provision of such assistance in situations of armed conflict to promote and fully respect these principles,
 
[17] Urging States to ensure that violations of international humanitarian law related to the protection of the wounded and sick, medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities in armed conflicts do not remain unpunished, affirming the need for States to ensure that those responsible do not operate with impunity, and that they are brought to justice, as provided for by national laws and obligations under international law,
 
[18] Recalling that, under international law, attacks intentionally directed against hospitals and places where the sick and wounded are collected, provided that they are not military objectives, as well as attacks intentionally directed against buildings, material, medical units and transport and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law are war crimes,
 
[19] Stressing that the fight against impunity and to ensure accountability for war crimes and other serious violations of international humanitarian law has been strengthened through the work on and prosecution of these crimes in the international criminal justice system, and in this regard reiterating the importance of State cooperation with international courts and tribunals in accordance with States’ respective obligations,
 
[20] Noting that medical personnel, and humanitarian personnel exclusively engaged in medical duties, in an armed conflict situation, continue to be under a duty to provide competent medical service in full professional and moral independence, with compassion and respect for human dignity, and always to bear in mind human life and to act in the patient’s best interest and stressing the need to uphold their respective professional codes of ethics, and further noting the applicable rules of international humanitarian law relating to the non-punishment of any person for carrying out medical activities compatible with medical ethics,
 
[21] Reaffirming the primary responsibility of States to protect the population throughout their whole territory and recalling in this regard that all parties to armed conflict must comply fully with the obligations applicable to them under international humanitarian law related to the protection of civilians in armed conflict and medical personnel,
 
1. Strongly condemns acts of violence, attacks and threats against the wounded and sick, medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities, and deplores the long-term consequences of such attacks for the civilian population and the health-care systems of the countries concerned;
 
2. Demands that all parties to armed conflicts fully comply with their obligations under international law, including international human rights law, as applicable, and international humanitarian law, in particular their obligations under the Geneva Conventions of 1949 and the obligations applicable to them under the Additional Protocols thereto of 1977 and 2005, to ensure the respect and protection of all medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities;
 
3. Demands that all parties to armed conflicts facilitate safe and unimpeded passage for medical personnel and humanitarian personnel exclusively engaged in medical duties, their equipment, transport and supplies, including surgical items, to all people in need, consistent with international humanitarian law;
 
4. Strongly urges States and all parties to armed conflict to develop effective measures to prevent and address acts of violence, attacks and threats against medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities in armed conflict, including, as appropriate, through the development of domestic legal frameworks to ensure respect for their relevant international legal obligations, the collection of data on obstruction, threats and physical attacks on medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and medical facilities, and to share challenges and good practice in this regard;
 
5. Underlines the important role that education and training in international humanitarian law can play in supporting efforts to halt and prevent acts of violence, attacks and threats against the wounded and sick, medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities;
 
6. Calls upon States to ensure that their armed forces and security forces, within their respective competencies under domestic law, make or, where relevant, continue their efforts to integrate practical measures for the protection of the wounded and sick and medical services into the planning and conduct of their operations;
 
7. Emphasizes the responsibility of States to comply with the relevant obligations under international law to end impunity and to ensure those responsible for serious violations of international humanitarian law are held to account;
 
8. Strongly condemns the prevailing impunity for violations and abuses committed against medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities in armed conflict, which in turn may contribute to the recurrence of these acts;
 
9. Strongly urges States to conduct, in an independent manner, full, prompt, impartial and effective investigations within their jurisdiction of violations of international humanitarian law related to the protection of the wounded and sick, medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities in armed conflict, and, where appropriate, take action against those responsible in accordance with domestic and international law, with a view to reinforcing preventive measures, ensuring accountability and addressing the grievances of victims;
 
10. Expresses its intention to ensure that the mandates of relevant United Nations peacekeeping operations can, where appropriate and on a case-by-case basis, help to contribute to a secure environment to enable the delivery of medical assistance, in accordance with humanitarian principles;
 
11. Encourages the Secretary-General, in accordance with his prerogatives under the Charter of the United Nations, to bring to the attention of the Security Council situations in which the delivery of medical assistance to populations in need is being obstructed by parties to the armed conflict;
 
12. Requests the Secretary-General to include in his country-specific situation reports, and other relevant reports which address the protection of civilians, the issue of the protection of the wounded and sick, medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities, including recording specific acts of violence against them, remedial actions taken by parties to the armed conflict and other relevant actors, including humanitarian agencies, to prevent similar incidents, and actions taken to identify and hold accountable those who commit such acts;
 
13. Further requests the Secretary-General to promptly provide the Security Council with recommendations on measures to prevent incidents of the kind described in the above paragraph and to better ensure accountability and enhance the protection of the wounded and sick and medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities;
 
14. Further requests the Secretary-General to brief the Security Council every twelve months on the implementation of this resolution.
 

Discussion

  1. What is the purpose of this resolution? What principles of IHL can you find reflected in this resolution?
  2. Are the operative paragraphs of this Resolution binding upon States? Armed groups? Although it does not indicate that it is based upon Chapter VII of the UN Charter?
  3. What, if anything does this resolution add to existing IHL?
  4. (Preambular Paras [7], [8]) How would you classify medical personnel? Are they protected by IHL? Why are they afforded special protection? Can they lose their protection? If they do not "exclusively engage in medical duties"? (GC I, Arts 24-25; GC II, Arts 36-37; P I, Arts 15-16; CIHL, Rules 25-30)
  5. (Preambular para. [8]) What kind of identification does paragraph [8] refer to? What are the "distinctive emblems"? What is the purpose of these emblems? Are only those persons who identify themselves by one of the distinctive signs protected as medical personnel by IHL? What about civilians who help the wounded? (GC I, Arts 18, 24-25, 38-44; GC IV, Art. 18; P II, Art. 12)
  6. What is meant by "medical duties"? What do such duties include under IHL? (P I, Art. 16; P II, Art. 10)
  7. (Preambular paras [14], [20]) What is meant by "medical ethics"? Does IHL contain any provisions on such ethics? (P I, Art. 16(1); P II, Art. 10(2); CIHL, Rule 26)
  8. What are medical objects? Are they civilian objects? Do they benefit from special protection under IHL? Why? In what respect does it go beyond that of civilian objects? Can such protection cease? Is an attack on a hospital always a violation of IHL? (GC I, Arts 19-23, 35; P I, Arts 8(e), 12-14; P II, Art. 11; CIHL, Rules 28-30)
  9. Was IHL violated if the medical workers and facilities were not deliberately targeted? Does an attacking party have to take additional precautions before attacking a hospital that is being used for military purposes? (P I, Art. 57; CIHL, Rules 15-21)
  10. (Preambular paras [18]-[19]) Are all attacks on hospitals war crimes? (GC I, Art. 50; P I, Art. 85)
  11. (Preambular para. [15]; Operative para. 9) Does the resolution require States to conduct investigations of such attacks? Is the same true under IHL? Under international criminal law? What courts could the UNSC be referring to in paragraph [15]? Why does the UNSC not specifically refer to the ICC?
  12.  (Preambular paras [13], [15], [16]; Operative paras 10, 11) What does humanitarian assistance entail? Do civilian populations affected by armed conflicts always have the right to receive humanitarian assistance? Are there any conditions that must be fulfilled before assistance is allowed to reach them? (GC IV, Arts 23, 59; P I, Arts 54(1), 70; P II, Arts 14, 18(2); CIHL, Rule 55-56)
  13. What impact does the UNSC's opinion on issues of IHL have? Is it in a position to interpret IHL? Does the UNSC's interpretation of IHL have an impact on the obligations of States Parties to the Geneva Conventions and their Additional Protocols?
  14. In your opinion, how useful or effective is such a UNSC resolution? Can it influence governments and non-state actors and prevent them from attacking hospitals in the future? Does it merely signal political will? Does it have a legal impact? Are there any practical measures that could help ensure the respect of IHL and especially ensure that hospitals are no longer targeted?