posted on Mon 2 May 2016 3:25 PM
Briefing and Resolution on Healthcare in Armed Conflict

Tomorrow (3 May), the Security Council will hold a briefing and adopt a resolution on health care in armed conflict. Briefers will include the UN Secretary-General Ban Ki-moon; Peter Maurer, the President of the ICRC; and Joanne Liu, the President of Médecins Sans Frontières (MSF). The draft resolution, which condemns attacks on health care workers and facilities and demands compliance with international humanitarian law in this regard, has been in blue since last Wednesday (27 April).

During the briefing, it seems that the Secretary-General will focus broadly on the issue, highlighting his concern over attacks on healthcare personnel, facilities, and transport, and the impact of these attacks on civilians. He may also underscore the obligations of parties in conflict situations to respect and protect healthcare.

Content and Negotiations on the Resolution

The drafting and negotiations on the resolution were spearheaded by Egypt, Japan, New Zealand, Spain, and Uruguay—a mix of elected members that reflects the regional diversity of the Council. At press time, it appeared that the penholders were attempting to garner co-sponsorship from the broader UN membership.

The draft resolution to be adopted tomorrow communicates a strong political signal about the unacceptability of violations of international humanitarian law arising from attacks against medical and humanitarian workers exclusively engaged in medical duties in conflict situations. It seeks to reinforce existing humanitarian law on this issue, rather than to create new obligations. The draft text strongly condemns attacks against medical and humanitarian personnel, their means of transport and equipment, and hospitals and other medical facilities. It further deplores the impact of such attacks on the civilian population and healthcare systems.

The negotiations were described as constructive and cordial. However, there were some differences of view and criticisms of the draft that required changes to be made and compromises to be struck. References to war crimes, accountability issues, and the legal responsibilities of parties in conflict zones were among the main issues discussed.

The draft text recalls the types of activities that are war crimes, employing language from article 8 of the Rome statute. These include intentional attacks on hospitals and other places where the sick and wounded are collected, provided that they are not military objectives, as well as attacks intentionally directed at buildings, material, medical units, and transport and personnel using the emblems of the Geneva conventions in conformity with international law. The issue of whether these acts “are” or “may constitute” war crimes was a matter of some discussion during the negotiations. It appears that China and Russia would have preferred the weaker formulation of “may constitute”, but agreed to accept the use of “are” in the final draft.

There were different views from the start of the process on how to couch the language on accountability for crimes related to attacks on medical personnel. While the five penholders were negotiating among themselves, Egypt apparently indicated its opposition to including a direct reference to the ICC in the draft. It appears that the compromise among the group of five penholders was to use language from article 8 of the Rome statute on war crimes but not to directly reference the ICC.

During the negotiations among all 15 members, different views on the language on accountability persisted, with the France and the UK reportedly suggesting more robust language on accountability, while Angola, China and Russia apparently preferred less strong text. The final version stresses that fighting impunity and ensuring accountability for war crimes and other serious violations have been strengthened through the international criminal justice system; in this regard, it reiterates the importance of state cooperation with international courts and tribunals in accordance with their respective obligations. Furthermore, the text condemns impunity for violations and abuses against medical and humanitarian personnel, urges states to investigate violations of international humanitarian law, and where appropriate, to take action against responsible parties in keeping with domestic and international law.

One controversial issue was the notion of adherence to domestic laws by medical personnel. Language to this effect had been in an earlier version of the draft, but was removed due to the concerns of some members. It appears that the objection to this language was that it could require foreign military forces, which include medical personnel, to adhere to the national laws of the country in which they were serving. As a compromise, it appears that the importance of professional ethics of humanitarian and medical personnel in situations of armed conflict is emphasised in the draft.

In addition, the text refers to applicable rules of international humanitarian law related to non-punishment of any person carrying out medical activities in keeping with medical ethics. It appears that the addition of “applicable rules” was inserted as a compromise to one permanent member.

One of the more notable features of the draft is the strong reporting requirements it establishes on this issue. It requests the Secretary-General to include in country-specific reports, and other relevant reports on the protection of civilians, detailed information on the protection of the wounded and sick, as well as medical and humanitarian personnel and their related means of transport, equipment and facilities (e.g., hospitals). The draft further requests the Secretary-General to promptly provide the Council with recommendations on measures to prevent violence against medical and humanitarian personnel and the sick and wounded.

Perhaps most significantly, it requests the Secretary-General to brief the Council every year on the implementation of the resolution, thus ensuring a continuing focus on the issue of medical neutrality. An earlier version of the draft had called for other relevant stakeholders to brief as well, but this was removed, apparently at the request of Russia.

Working Methods

The development of this resolution was notable in terms of Council working methods. The process was led by five elected members, a departure from the standard practice in recent years, during which the permanent members, particularly the P3, have held the pen on most resolutions. Furthermore, the drafting and negotiating process was marked by significant outreach to different constituencies over an extended period of time.

The process of drafting and negotiating the text took several months. During the 19 January debate on the protection of civilians under the Uruguayan presidency, New Zealand and Spain announced that they, along with other elected members, would be launching an initiative aimed at protecting the provision of health care in conflict situations. During the debate, several permanent and elected members, as well as Deputy Secretary-General Jan Eliasson and ICRC, expressed concerns about attacks on medical workers and/or facilities.

While negotiating the text amongst themselves, the five penholders kept Council members and various stakeholders informed. On 3 March, they convened an “any other business” session in an effort to be transparent about the initiative. They told their colleagues on the Council that the five of them were in the process of drafting the text, shared the objectives of the draft, and indicated that they would be circulating the draft to the rest of the Council when they had agreed on a text. Furthermore, the penholders consulted closely with ICRC, MSF, and several UN entities to get their input and advice on the substance of the draft.

By the end of March, when the five penholders had agreed on a text, they reached out separately to different Council members to answer their questions and ascertain what their redlines might be. Starting in early April, there were three negotiating sessions involving all Council members, with the location of these meetings rotating among the penholders: the first was held at the Egyptian mission, the second at the Uruguayan mission, and the third at the Japanese mission. Two of the five penholders co-chaired (i.e., led) the negotiations at each session.

Looking ahead regarding the protection of civilians agenda more broadly, the Council is expecting to receive the Secretary-General’s report on the protection of civilians later this month. However, it is unclear when it will be taken up by the Council.