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Treating Terrorists

[A hospital supported by MSF was destroyed by an aerial bombing in the Idlib Governorate of Syria on 6 August 2016, killing four hospital staff and nine others, including five children. Source: MSF.] [A hospital supported by MSF was destroyed by an aerial bombing in the Idlib Governorate of Syria on 6 August 2016, killing four hospital staff and nine others, including five children. Source: MSF.]

On 15 August 2016, a Saudi-led coalition airstrike hit the Abs hospital in the Hajjah governorate of northwestern Yemen, killing nineteen people. The hospital, whose GPS coordinates were known by all parties to the conflict, was full of patients and staff at the time of the airstrike. This is the latest in a string of attacks on health facilities run and supported by Médecins Sans Frontières (MSF). In the past year, MSF hospitals and supported facilities have been attacked in Afghanistan, Syria and Yemen. In each of these countries, international military coalitions are supporting the local state in a battle against a criminalized or terrorist-designated enemy. The majority of MSF hospitals and supported facilities that have been hit have been operating in areas controlled by these “enemy” groups.

Hospitals are the quintessential humanitarian arena in conflict environments because of their role in providing care to those injured or otherwise afflicted by war. Under the rules of international humanitarian law (IHL), war-makers are obligated to minimize “unnecessary” suffering and to avoid deliberately attacking civilians and other categories of non-combatants. This includes hospitals, medical service providers including ambulance drivers and emergency aid workers, and patients—including injured combatants who, when hors d’combat, are not legitimate targets. The fact that hospitals exist and function in the proximity of “legitimate targets,” and provide humanitarian assistance to sick or injured “enemy” patients does not obviate the obligation on war-makers to avoid bombing them.

However, bombing hospitals has become tragically common in the multiple counterterrorism wars that have morphed out of the “war on terror.”  While medical facilities often have been targeted in times of war, the nature of armed conflict is constantly evolving, and so too is the way in which the provision of healthcare interacts with military objectives. In the various “war on terror”-inspired conflicts, the turning of hospitals into targets and battlefields has been enabled through the criminalization of entire communities and, by extension, their healthcare providers. This “with us or against us” logic of militarized counterterrorism is fundamentally contradictory to IHL, which impels a recognition of the distinction between civilians and combatants. The implication is that humanitarian aid has fused into an enemy landscape.

The targeting of healthcare workers and facilities has occurred through both direct attacks as well as indirect and sustained means including sieges and sanctions. In other instances, attacks on healthcare facilities are justified ex post facto as a “mistake”—an unfortunate but unavoidable consequence of fighting a war against an enemy that allegedly is indistinguishable from its civilian surroundings.

In each instance, the parties waging counterterror wars either dispute or disregard the core principle of humanitarian medical ethics which is impartiality. Under this principle, the provision of healthcare and emergency treatment are not contingent on the status or affiliations of those needing care and services. Rather, the provision of medical treatment should be based on need and not forced to become an extension of political and military interests.

For an organization like MSF, stepping over the frontline to provide healthcare and other forms of humanitarian assistance in an impartial manner carries potentially deadly consequences. In these counterterrorism conflicts, aiding people across the line is considered by the state and its international military backers as an unacceptable form of humanitarian assistance.

Within these environments, defending the ability of health workers to treat those classified as “terrorists” is about defending medical ethics from being eroded by those who seek to subjugate all acts of humanity to the political and military interests of the most powerful. Indeed, as the “war on terror” expands and the casualties continue to climb, defending the principle of impartial treatment may well be the defining struggle of contemporary medical humanitarianism.

State Support or Benefitting the Enemy?

Humanitarian aid often is aligned to the political and military interests of major donor states. This sets the tone for what kind of aid provision is considered acceptable. Afghanistan offers a good case in point. The beginning phases of the war in Afghanistan pitted a highly mobile and fluid insurgency against a large number of international boots on the ground. When the aims of the conflict shifted toward the goal of building the legitimacy of the state, one means was through the provision of social services in the form of humanitarian assistance. However, the current phase of the war in Afghanistan is characterized by highly mobile international and Afghan Special Forces up against a local insurgency that is gaining control over more territory. In this context, humanitarian aid is seen by the state and its backers as an unacceptable form of benefit to the enemy.

This trend is not unique to Afghanistan. ISIS, Boko Haram, the Pakistani Taliban, Al-Shabaab and other groups designated by the United States and its allies as “terrorist organizations” are controlling territory to varying degrees around the world and are being battled through airstrikes, drone strikes and Special Forces operations. In Yemen, for example, the Saudi government sent letters to aid agencies asking them to leave areas under Houthi control in order to be safe from the coalition bombing campaign.

In these contexts, humanitarian aid is coming up against a growing counterterrorism legal infrastructure that seeks to criminalize a broad notion of “material support for terrorism.” These legal frameworks enforce the limits to what is considered acceptable forms of humanitarian assistance. These limits are often at odds with the impartial provision of assistance based on needs alone.

What does this look like on the ground? In Afghanistan as well as in other contexts, hospitals are raided and patients are arrested under a law enforcement justification. This often is done without a warrant and without following due process after arrest. In times of conflict, such as in Afghanistan, making the hospital an extension of a law enforcement operation by arresting wounded combatants who are designated as “criminal” under domestic law erodes the neutrality of medical facilities.

In 2012, the Syrian government passed an anti-terrorist law that outlawed the provision of humanitarian assistance—including medical care—to areas held by or working with the opposition. The result was to force most healthcare structures to go underground. While western donors sought to find ways of channeling assistance to these areas, the Syrian government’s assertion of sovereignty in restricting aid delivery was what set the limits on the provision of humanitarian assistance.

Ultimately, when those providing humanitarian aid attempt to operate in areas controlled by the enemy—or attempt to provide assistance to those designated as part of the enemy—they are vulnerable to being targeted themselves or subject to policy level access constraints. And when the enemy crosses a frontline to seek treatment, they are vulnerable to being arrested.

These are not necessarily new dilemmas in war zones. What is new is how the “war on terror” has created a legal and moral framework for justifying such conduct of warfare. It should come as no surprise that an increasing number of states are fighting domestic wars under the “war on terror” banner.

The legal and moral justifications enabled by the counterterrorism paradigm are combined with an aid system that is either entrenched in playing the role of an auxiliary to the major donors’ political and military interests or subject to the assertion of sovereignty from those states resisting those interests. Stepping over the line set by either of these dynamics carries potentially deadly consequences.

“Mistakes” in the Making

Once health workers have crossed the line of what is considered an acceptable form of humanitarian assistance, there are numerous ways in which hospitals can come under attack. Some of the most recent direct attacks on healthcare facilities have been carried out by states that are indiscriminately bombing entire neighborhoods and communities in their counterterrorism operations. In Syria, hospitals have not only been directly targeted but also hit along with schools, market places and bakeries. Other attacks, such as in Gaza, have been conducted by those who justify their targeting of hospitals within the framework of an ever-expanding legal grey zone that sees hospitals as potential human shields for “terrorists.” Another approach that we can see in a context such as Afghanistan is in a subtle combination of both patterns: a willingness to use often disproportionate force combined with a willingness to blur the distinction between combatants and civilians, which results in hospitals being “mistakenly” struck.

In October 2015, the MSF hospital in Kunduz was attacked by US Special Forces operating in support of the state, in a context where its medical facility was within an area controlled by an enemy—some of whom are designated as “terrorists.” This attack, which resulted in the biggest loss of life for the organization in a single airstrike, is an illustrative example of broader challenges facing medical humanitarianism in counterterrorism environments.

The American reaction after it was revealed that the target was a hospital was that the bombing was a mistake. This posture simultaneously allowed officials to escape any meaningful legal consequences and conveniently removed Afghan forces—who were fighting alongside US forces on the ground—from the picture. In the internal US investigation into the bombing, the Ground Forces Commander explained how he could not have imagined that any hospital could still be functioning in the zones controlled by the Taliban. That investigation also reveals how US forces assumed that most civilians had fled the town and that anyone who remained was presumed to be hostile and threatening.

In a context where entire populations are designated as hostile, the killing of “civilians” or the bombing of protected facilities is problematically justified as a mistake ex post facto. This is rooted in the “with us or against us” approach to warfare that turns entire communities into acceptable targets before a strike, and then transformed into “mistakes” and apologized for after the attack. This is a policy of “shoot first, ask questions later.” The supposed lack of “intentionality” by those ordering or carrying out strikes to target civilians becomes a key feature of the mistake narrative. If civilians were not intentionally targeted, they were “mistakenly struck”—as has become the official US excuse following their investigation of the Kunduz bombing. The lack of intentionality is used by the military to avoid having to respond to violations of the laws of war with anything more than minor administrative reprimands.

Whether intentionally bombed or mistakenly struck, humanitarian aid in counterterrorism environments risks coming under attack when it operates beyond the limits to aid delivery that are set by the state and their international backers, and where the distinction between civilian and combatant has been eroded.

Where Do We Go from Here?

What does this mean for an organization like MSF? The first scenario is one where the organization is able to obtain a negotiated agreement to operate with full impartiality in conflicts characterized as counterterrorism operations. This would include the ability to cross frontlines if they exist, or for patients to reach its facilities regardless of whether they are considered a terrorist or criminal. This would entail the unlikely exemption of hospitals from the “with us or against us” logic of counterterrorism warfare.

The second scenario is that MSF does not reach a negotiated agreement with various parties to the conflict but decides, instead, to operate with full impartiality regardless. This would mean accepting more risks for MSF staff and their patients.

The third scenario is that MSF does not reach a negotiated agreement and decides to compromise on its impartiality by adapting its projects so that they do not treat enemy combatants, opponents or armed opposition groups in counterterrorism environments. This would entail, for example, avoiding surgical or trauma projects.

The final scenario is that MSF does not reach a negotiated agreement and does not compromise, while being unwilling to accept a higher level of risk. This would result in it deciding not to work in such environments and thus depriving people in those areas of much-needed health and medical care.

If MSF does not resist the most recent forms in which health care comes under attack, it will be accepting a reality in which healthcare providers serve at the benefit of the most powerful due to the limitations set on their ability to operate outside of these interests. There are those who would resign to the historic reality that healthcare facilities always come under attack and contend that the current spate of hospital bombings is nothing new, and those who would ignore the specificities of the “war on terror” environment and its contemporary legal and humanitarian implications. If either of these positions were to prevail, this would mean that MSF will fail to challenge the very real obstacles to healthcare delivery in contemporary conflicts. Failing to resist these trends will mean giving in to being blown by the winds of prevailing political interests. The very act of impartial healthcare delivery is at stake.


[An earlier version of this article appeared on: http://msf-analysis.org/new-treating-terrorists/]

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