Special Guest Post By Dustin A. Lewis, Senior Researcher, Harvard Law School Program on International Law and Armed Conflict
In armed conflicts involving terrorists, should we consider medical assistance to those terrorists a form of impermissible support to the enemy? Or should we consider impartial medical care “above” the conflict? Does the rationale first established in international humanitarian law (IHL) in 1864—that once hors de combat (out of the battle) all wounded fighters, even (indeed, especially) the enemy, should be provided all feasible medical care based on medical need—still hold for contemporary conflicts involving terrorists? Where the IHL protections for medical care are predicated (at least in part) on the caregiver complying with “medical ethics,” what exactly are those ethics? And should “medical ethics”—whether concerning the treatment of terrorists in particular or of the population in general—be the same in wartime as in (relative) peacetime?
In a recent research briefing for the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), my co-authors (Professor Gabriella Blum and Naz K. Modirzadeh) and I raise these and other issues. Titled “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” the report evaluates IHL protections for wartime medical assistance concerning terrorists. In addition, we examine how the United Nations Security Council has imposed numerous binding counterterrorism measures, but, in doing so, the Council has not fully exempted medical care, even where those counterterrorism measures may implicate medical care protected under IHL. We also analyze the practice of three states—Colombia, Peru, and the United States—regarding domestic prosecutions of wartime medical treatment for terrorists. Continue reading