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Published online by Cambridge University Press: 12 March 2014
Armed conflicts have numerous adverse health consequences for the affected populations, many of which occur in the long-term. This article analyses in detail how international humanitarian law (IHL) and the right to health complement each other in obliging states to mitigate the direct and indirect health consequences of non-international armed conflicts. With its historical origin and purpose of protecting wounded and sick combatants of standing governmental armies, IHL focuses on the protection of the wounded and sick suffering from the direct health consequences of armed conflicts, such as injuries resulting from ongoing hostilities. The right to health is more expansive: it obliges states to prioritise the provision of primary health care through creating and maintaining an accessible basic health system. This focus enables it to highlight and address the indirect health consequences of armed conflicts, such as the spreading of epidemic and endemic diseases and rising child and maternal mortality and morbidity.
1 Nils Petter Gleditsch, Bethany Lacina und, ‘Monitoring trends in global combat: a new dataset of battle deaths’, in European Journal of Population, Vol. 21, 2005, pp. 158Google Scholar ff.
2 See e.g. ibid., p. 159; Geneva Declaration, Global Burden of Armed Violence, Report, September 2008, available at: www.genevadeclaration.org/fileadmin/docs/Global-Burden-of-Armed-Violence-full-report.pdf (last visited 15 June 2013); Ghobarah, Hazem Adam, Huth, Paul, and Russett, Bruce, ‘Civil wars kill and maim people – long after the shooting stops’, in American Political Science Review, Vol. 97, No. 2, 2003CrossRefGoogle Scholar; and the findings of the reports of the International Rescue Committee on Mortality in the Democratic Republic of the Congo between 1998 and 2007, available at: www.rescue.org/special-reports/congo-forgotten-crisis (last visited 15 June 2013).
3 Other questions, for example whether obligations flowing from the right to health have to be factored into the process of making military targeting decisions, cannot be discussed here. The question of the circumstances under which parties to a conflict are obliged under IHL and the right to health to accept humanitarian and impartial assistance are also beyond the scope of this study. For an analysis of these and other questions concerning the parallel application of IHL and the right to health, see Müller, Amrei, The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law: An Analysis of Health-Related Issues in Non-International Armed Conflicts, Martinus Nijhoff, Leiden, 2013CrossRefGoogle Scholar.
4 Themner, Lotta and Wallensteen, Peter, ‘Armed conflict – 1946–2011’, in Journal for Peace Research, Vol. 49, No. 4, 2012CrossRefGoogle Scholar.
5 This does not imply that the present author is of the view that IHRL does not apply to international armed conflicts. On the contrary, many of the findings of this article are as relevant for international armed conflicts as they are for non-international armed conflicts.
6 For a recent study on this matter, see Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012CrossRefGoogle Scholar, covering non-state armed groups’ obligations under IHL, including in relation to the protection of the wounded and sick (pp. 273–277), medical personnel (pp. 277–280), and medical units and transports (pp. 373–375). Also see below for some further initial observations on the scope of non-state armed groups’ obligations under IHL and possibly IHRL.
7 For a recent overview of the practice of states and UN Charter bodies, including the International Court of Justice, see Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, Oxford, 2011CrossRefGoogle Scholar, chapter I; see also S. Sivakumaran, above note 6, p. 83.
8 ICJ, Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, paras. 106 and 112.
9 United States of America, Fourth Periodic Report to the United Nations Human Rights Committee, UN Doc. CCPR/C/USA/4, 22 May 2012, paras. 506–509.
10 HRC, Concluding Observations – Israel, UN Doc. CCPR/C/ISR/CO/3, 3 September 2010, para. 5; CESCR, Concluding Observations – Israel, UN Doc. E/C.12/ISR/CO/3, 16 December 2011, para. 8; and HRC, Concluding Observations – United States of America, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, para. 10.
11 As set out, for example, in ICESCR, Arts. 6, 7, and 8(1).
12 See an analysis in Müller, Amrei, ‘Limitations to and derogations from economic, social and cultural rights’, in Human Rights Law Review, Vol. 9, 2009, pp. 594–597CrossRefGoogle Scholar, examining inter alia the practice of the UN Committee on Economic, Social and Cultural Rights and the opinions of states in the reports to the same Committee, and of the International Labour Organization, on this question.
13 Ibid., pp. 595–597. ICCPR, Art. 4, allows for derogations of some rights set out in the ICCPR in times of ‘public emergency which threatens the life of the nation and the existence of which is officially proclaimed’. Derogations are only permitted ‘to the extent strictly required by the exigencies of the situation’; they shall not be ‘inconsistent with’ states’ ‘other obligations under international law’ and shall ‘not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.
14 See ibid., p. 599; Rosas, Allan and Sandvik-Nylund, Monika, ‘Armed conflicts’, in Eide, Asbjørn, Krause, Catarina, and Rosas, Allan (eds), Economic, Social and Cultural Rights: A Textbook, Martinus Nijhoff, Dordrecht, 2001, p. 414Google Scholar; and Alston, Philip and Quinn, Gerard, ‘The nature and scope of States Parties’ obligations under the International Covenant on Economic, Social and Cultural Rights’, in Human Rights Quarterly, Vol. 9, 1987, p. 217CrossRefGoogle Scholar. These sources also contain more detailed discussions of the possibility of derogating from ESC rights in times of armed conflict.
15 ICESCR, Art. 4, reads: ‘The States Parties to the present Covenant recognise that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’
19 See, among others, Lindroos, Anja, ‘Addressing norm conflicts in a fragmented legal system: the doctrine of lex specialis’, in Nordic Journal of Human Rights, Vol. 74, 2005Google Scholar; Milanovic, Marko, ‘A norm-conflict perspective on the relationship between international humanitarian law and human rights law’, in Journal of Conflict and Security Law, Vol. 14, No. 3, pp. 473–476Google Scholar; and Prud'homme, Nancie, ‘Lex specialis: oversimplifying a more complex and multifaceted relationship?’, in Israel Law Review, Vol. 40, No. 2, 2007CrossRefGoogle Scholar.
20 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the ILC's Study Group on Fragmentation, A/CN.4/L.682, 13 April 2006 (hereinafter ILC Report), paras. 56–58.
22 See ILC Report, paras. 102–103; and A. Müller, above note 3, pp. 28–29 for more details.
23 ILC Report, paras. 36, 106–107, 112, and 119–120; A. Müller, above note 3, pp. 25–33.
24 See also ibid., pp. 192–194.
25 In the affirmative, see e.g. Clapham, Andrew, ‘Human rights obligations of non-state actors in conflict situations’, in International Review of the Red Cross, Vol. 88, No. 863, September 2006, pp. 491–523CrossRefGoogle Scholar; for a rejection, see Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, pp. 38–54CrossRefGoogle Scholar.
26 Several resolutions of the UN Security Council suggest that non-state armed groups are bound by IHRL. See e.g. the Report of the UN Secretary-General's Panel of Experts on the Accountability in Sri Lanka, 31 March 2011, para. 188, available at: www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf (last visited 16 June 2013); the discussion by A. Clapham, above note 25, pp. 500–508; and S. Sivakumaran, above note 6, pp. 96–98.
28 As contemplated by Sassòli, Marco, ‘Taking armed groups seriously: ways to improve their compliance with international humanitarian law’, in International Humanitarian Legal Studies, Vol. 1, 2010, p. 20Google Scholar.
29 At Solferino, wounded soldiers roused Henry Dunant's compassion, and it was for their protection that the first Geneva Convention was adopted in 1864: the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. The civilian population in and around Solferino had not been directly affected by the battle.
30 As most clearly expressed in Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (hereinafter AP I), Art. 8, which refers to ‘the “wounded” and “sick”, whether military or civilian’.
31 AP II, Art. 7(1); GC I–IV, Common Art. 3(1) includes protection of those placed hors de combat by sickness or wounds; GC I–IV, Art. 3(2) provides for the collection and care for the wounded and sick; see also ICRC, Customary International Humanitarian Law, Vol. I: Rules, Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), ICRC and Cambridge University Press, Cambridge, 2005 (hereinafter ICRC Study), Rule 109, pp. 396–399.
32 GC IV introduced some provisions aimed at the amelioration of the condition of wounded and sick civilians in international armed conflicts (in particular Arts. 14–22), but these provisions lagged behind the detailed regulation in GC I and GC II on the protection of wounded, sick, and shipwrecked members of armed forces.
33 Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, para. 4638 (hereinafter ICRC Commentary to AP I/AP II); Kleffner, Jann, ‘Protection of the wounded, sick and shipwrecked’, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, Oxford University Press, Oxford, 2nd edition, 2008, pp. 328–329Google Scholar.
34 AP I, Art. 8(a).
35 ICRC Commentary to AP II, above note 33, para. 4637; Bothe, Michael, Josef Partsch, Karl, and Solf, Waldemar, New Rules for Victims of Armed Conflict, Martinus Nijhoff, The Hague, 1982, p. 656Google Scholar.
36 ICRC Study, Vol. I, Rules 109–111, pp. 396–405. It is not clear why the ICRC Study does not comment on the customary status of this definition. The present author assumes that this is because the ‘practice’ cited in Vol. II of the Study (mainly military manuals) does usually refer to the ‘wounded and sick’ without restating the definition of AP I, Art. 8(a) (see ICRC Study, Vol. II, chapter 34, pp. 2590–2654).
37 ICRC Commentary to AP I, Art. 8(a), para. 304 (emphasis added). This is reiterated for situations of non-international armed conflicts in the ICRC Commentary to AP II, Art. 7(1), para. 4639, holding that ‘[a]ny person, military or civilian, fulfilling these two conditions is included amongst the wounded or sick’. See also Pictet, Jean, Commentary to the Geneva Conventions of 12 August 1949, Geneva, ICRC, 1952–1959Google Scholar (hereinafter ICRC Commentary to GC I–IV) on GC IV, Art.16, p. 134. AP I, Art. 9(1) should not be understood as limiting the definition of the ‘wounded and sick’ to those who are in this condition for reasons directly related to the armed conflict. The ICRC Commentary to AP I, Art. 9(1) sets out the complex drafting history of this Article, and concludes in para. 417 that ‘[t]he expression “all those who are affected by a situation referred to in Article 1” is … insufficiently precise to determine exactly the field of application “ratione personae” of Part II [of AP I]. Only an examination, article by article, of the whole of this Part, makes it possible to provide a more precise list of the persons to whom it applies in various circumstances.’ In any event, even if it was meant to limit the definition of the ‘wounded and sick’ to those who are in this condition because they are directly affected by the hostilities, it is not clear whether AP I, Art. 9(1) applies to non-international armed conflicts – the types of conflict that are of interest to us here – as a matter of custom. The ICRC Study does not contain a provision in this regard.
38 ICRC Commentary to AP I, Art. 8(a), paras. 305–306. See also ICRC Commentary to AP II, Art. 7, para. 6439.
39 ICESCR, Art. 12(1); and Universal Declaration of Human Rights, Art. 25(1). In its ‘jurisprudence’ the CESCR made clear that this includes an obligation to give nationals and non-nationals access to the health system on an equal footing; see e.g. CESCR, Concluding Observations – Sweden, UN Doc. E/C.12/SWE/CO/5, 1 December 2008, para.10; Cyprus, UN Doc. E/C.12/CYP/CO/5, 12 June 2009, para.18; UK, UN Doc. E/C.12/GBR/CO/5, 2 June 2009, para. 27; and France, UN Doc. E/C.12/CO/FRA/CO/3, 9 June 2008, paras. 26 and 46.
40 Emphasis added.
41 CESCR, General Comment 14 – The Right to the Highest Attainable Standard of Health (ICESCR, Art. 12), E/C.12/2000/4, 11 August 2000, para. 12.
42 See the observations above.
43 This obligation forms part of customary IHL, as is clear from Rules 109–111 of the ICRC Study, Vol. I, pp. 396–405. These rules – and Rules 25–26 and 28–30 relating to the protection of medical personnel, medical units, and medical transports – are backed by extensive state practice collected in Vol. II of the ICRC Study, and their customary status is therefore undisputed in most aspects; see also Breau, Susan, ‘Protected persons and objects’, in Wilmshurst, E. and Breau, S. (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, pp. 175–179Google Scholar.
44 ICRC Commentary to AP II, above note 33, para. 4635; ICRC Study, Vol. I, Rule 111, pp. 403–405; J. Kleffner, above note 33, p. 330; Green, Leslie, The Contemporary Law of Armed Conflict, Manchester University Press, Manchester, 3rd edition, 2008, pp. 358–359Google Scholar.
46 See also ICRC Study, Vol. I, Rules 52 and 111, pp. 182 and 403.
48 CESCR, General Comment 14, above note 41, para. 34, where the CESCR directly observes that such interference would also amount to a violation of IHL. This is also reiterated in its Concluding Observations – Sri Lanka, UN Doc. E/C.12/LKA/CO/2-4, 9 December 2010, para. 28. See also the examples from national case law given in International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experience of Justiciability, Human Rights and Rule of Law Series No. 2, 2008, p. 43, available at: www.icj.org/dwn/database/ESCR.pdf (last visited 26 July 2012). States’ direct threats to or interference with the health of individuals or health care given to them can also amount to inhuman or degrading treatment or a violation of the right to life. See the remarks below on ICCPR, Art. 6, and jurisprudence of the ECtHR, below note 108.
49 See below note 54.
50 AP II, Art. 8, corresponds to GC I, Art. 15(1) and GC II, Art. 18(1), and introduced the explicit duty to search for the wounded and sick into IHL of non-international armed conflicts for the first time; see M. Bothe, K. J. Partsch, and W. Solf, above note 35, p. 659; ICRC Study, Vol. I, Rule 109, pp. 396–399; ICRC Commentary to AP II, above note 33, para. 4635; J. Kleffner, above note 33, p. 330; and L. Green, above note 44, pp. 358–359.
52 CESCR, General Comment 14, above note 41, para. 43(a); Report of the UN Special Rapporteur on the Right to Health, UN Doc. A/HRC/7/11, 31 January 2008, para. 42.
53 CESCR, General Comment 14, above note 41, para. 37.
54 HRC, General Comment No. 6 – The Right to Life, 30 April 1982, para. 5; and HRC, Concluding Observations – Israel, UN Doc. CCPR/ISR/CO/3, 3 September 2010, para. 8; UN Doc. CCPR/CO/78/ISR, 21 August 2003, para. 19; HRC, Concluding Observations – United States of America, UN Doc. CCPR/C/USA/3/Rev.1, 18 December 2006, para. 26. This is also reiterated by the HRC's Concluding Observations that do not directly concern armed conflict situations, see e.g. HRC, Concluding Observations – Mali, UN Doc. CCPR/CO/77/MLI, 16 April 2003, para. 14; HRC, Concluding Observations – Uganda, UN Doc. CCPR/CO/80/UGA, 4 May 2004, para. 14; HRC, Concluding Observations – Kenya, UN Doc. CCPR/CO/83/KEN, 29 April 2005, paras. 14, 15, and 19; HRC, Concluding Observations – Mauritius, UN Doc. CCPR/CO/83/MUS, 27 April 2005, para. 9. See also Nowak, Manfred, UN Covenant on Civil and Political Rights – CCPR Commentary, Kehl am Rhein, N. P. Engel, 2nd edition, 2005, pp. 123–124Google Scholar. And see the Inter-American Court of Human Rights’ jurisprudence on ‘the right to a dignified life’, encompassing many aspects of the right to health, as discussed by Keener, Steven and Vasquez, Javier, ‘A life worth living: enforcement of the right to health through the right to life in the Inter-American Court of Human Rights’, in Columbia Human Rights Law Review, Vol. 40, 2009, pp. 595–624Google Scholar.
55 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, available at: www.unrol.org/files/BASICP~3.PDF (last visited 18 June 2013). The Principles are inter alia designed to give effect to the right to life in domestic law.
56 ‘Positive’ obligations to safeguard the right to life are a well-established part of the ECtHR's jurisprudence, see e.g. ECtHR, Cyprus v. Turkey, Appl. No. 25781/94, Judgement (Grand Chamber), 10 May 2001, para. 219; ECtHR, L.C.B. v. UK, Appl. No. 23413/94, Judgement, 9 June 1998, para. 36; Osman v. UK, Appl. No. 23452/94, Judgement (Grand Chamber), 28 October 1998, para. 115; discussed in more detail in , Harris et al. (eds.), Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, Oxford University Press, Oxford, 2nd edition, 2009, pp. 42–46Google Scholar.
57 ECtHR, Cyprus v. Turkey, Appl. No. 25781/94, Judgement (Grand Chamber), 10 May 2001, para. 219.
58 The ECtHR did not, however, find a violation of the right to life since it ‘was unable to establish on the evidence that the “TRNC” authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south’ (ibid., paras. 219–221). Instead, it took the TRNC's interference with access to medical facilities into account as one factor in its finding that the overall living conditions of enclaved Greek Cypriots in northern Cyprus amounted to a violation of Art. 8 (right to private and family life) (paras. 299–301).
59 ECtHR, Albekov and Others v. Russia, Appl. No. 68216/01, Judgement, 6 April 2009, para. 90.
60 Ibid., para. 90.
61 Ibid., paras. 18, 19, and 21.
62 The CESCR also points to this direction in its Concluding Observations – Colombia, UN Doc. E/C.12/COL/CO/5, 7 June 2010, para. 16; Angola, UN Doc. E/C.12/AGO/CO/3, 1 December 2008, para. 33; and Bosnia and Herzegovina, UN Doc. E/C.12/BIH/CO/1, 24 January 2006, para. 48.
63 ICRC Study, Vol. I, Rule 109, p. 396.
64 CESCR, General Comment 14, above note 41, paras. 16 and 37.
65 As suggested in the commentary to ICRC Study, Vol. I, Rule 109, pp. 398–399.
67 For more details, see A. Müller, above note 3, pp. 243–245.
68 See also ICRC Study, Vol. I, Rule 110, pp. 400–403.
69 J. Kleffner, above note 33, p. 331.
71 ICRC Commentary to AP II, above note 33, para. 4655.
72 Most sources do not comment on what constitutes ‘medical care and attention required’ (AP II, Art. 7(2)) or ‘adequate care’ (AP II, Art. 8), e.g. J. Kleffner, above note 33, p. 330. The ICRC Study's comment on Rule 110 does not clarify the extent of this obligation either.
73 See also the section below, further analysing the question of the extent to which IHL obligations also include the provision of health care aiming to mitigate the indirect public health impact of armed conflicts.
74 See S. Sivakumaran, above note 6, pp. 275 and 333–334 for accounts of non-state armed groups’ practice in this regard. The assumption is also supported by the ICRC Commentary to AP II, above note 33, para. 4878. On states’ and non-state armed groups’ obligations to give consent to the delivery of humanitarian assistance by humanitarian organisations, see also A. Müller, above note 3, chapter VIII.
75 ICRC Commentary to AP II, para. 4492.
76 See the observations by S. Sivakumaran, above note 6, p. 252.
77 ICTY, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, para. 70; and Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Judgement (Trial Chamber), IT-04-84-T, 3 April 2008, para. 100.
78 AP II, Art. 2(2); GC I and GC III, Art. 5; GC IV, Art. 6; and ICTY, Tadić, Decision on Interlocutory Appeal on Jurisdiction, para. 67.
79 S. Sivakumaran, above note 6, pp. 253–254; cp. also ICTY, Prosecutor v. Ante Gotovina, Ivan Čermak, Miladen Markač, Judgement (Trial Chamber), IT-06-90-T, 15 April 2011, para. 1694.
80 E.g. the 1997 Ottawa Convention, 2056 UNTS 211, entered into force on 1 March 1999; the 2003 Protocol V to Conventional Weapons Convention, 2399 UNTS 100, entered into force on 12 November 2006; and the 2008 Convention on Cluster Munitions (CCM).
81 See e.g. CCM, Arts. 1 and 4; Ottawa Convention, Arts. 1 and 5; Protocol V to Conventional Weapons Convention, Art. 1(3).
82 Entered into force on 1 August 2010, reprinted by the ICRC, with a foreword by Jakob Kellenberger, p. 7, available at: www.icrc.org/eng/assets/files/other/icrc_002_0961.pdf (last visited 26 July 2012).
83 E.g. in the preamble, paras. 6 and 22 and Art. 5(1) of the CCM; it should be recalled, however, that these obligations are subject to ‘progressive realisation’ in accordance with available resources; see also below text accompanying notes 116–118.
84 As outlined in the section ‘The applicability of ESC rights …’, above.
85 CESCR, General Comment 3 – The Nature of States Parties’ Obligations, contained in document E/1991/23, 14 December 1990, para. 10; and General Comment 14, above note 41, para. 43; see also CESCR, Concluding Observations – Bolivia, UN Doc. E/C.12/BOL/CO/2, 8 August 2008, para. 34.
86 WHO, World Health Report 2008 – Primary Health Care (Now More Than Ever), p. 55, including figure 3.5, available at: www.who.int/whr/2008/en/index.html (last visited 26 July 2012); see also the definition of ‘primary health care’ in Last, John M. (ed.), A Dictionary of Public Health, Oxford University Press, Oxford, 2007Google Scholar, accessed via Oxford Reference Online at: www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t235.e3639 (last visited 26 July 2012).
87 The Declaration of Alma-Ata was adopted by the International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978, available at: www.searo.who.int/LinkFiles/Health_Systems_declaration_almaata.pdf (last visited 26 July 2012).
88 CESCR, General Comment 14, above note 41, para. 43.
89 Declaration of Alma-Ata, above note 87, para. IV(3); the CESCR's understanding of states’ minimum core obligations set out in paras. 43 and 44 of General Comment 14 follow this definition; see also Report of the UN Special Rapporteur on the Right to Health, UN Doc. A/HRC/7/11, 31 January 2008, para. 51; and WHO, World Health Report 2008, above note 86, pp. 55–56.
90 Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response, 2011, available at: www.sphereproject.org/handbook/ (last visited 26 July 2012), p. 291, holds that: ‘The Minimum Standards … are not a full expression of the right to health. However, the Sphere standards reflect the core content of the right to health and contribute to the progressive realisation of this right globally.’
91 Ibid., pp. 292, 311, and 331–333. See also the table on p. 293, indicating the public health impact of selected disasters; and the sources cited in above notes 1 and 2.
92 See, e.g. Backman, Gunilla et al. , ‘Health systems and the right to health: an assessment of 194 countries’, in The Lancet, 10 December 2008, p. 6Google ScholarPubMed; and Report of the UN Special Rapporteur on the Right to Health, UN Doc. A/HRC/7/11, 31 January 2008, paras. 22(e), 55, and 66. See also WHO, World Health Report 2008, above note 86, pp. 55–56.
93 See Backman et al., above note 92; and WHO, World Health Report 2000 – Health Systems: Improving Performance, available at: www.who.int/whr/2000/en/ (last visited 26 July 2012). In addition, even if not mentioned as part of the international minimum core of the right to health, General Comment 14, above note 41, holds that the right to treatment in ICESCR, Art.12(2)(c), para. 16, includes ‘the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and humanitarian assistance in emergency situations’.
94 WHO, World Health Report 2008, above note 86, pp. 55–56.
95 Ibid., p. xvii, box 2, warns that ‘what has been considered primary care in well-resourced contexts has been dangerously oversimplified in resource-constrained settings’.
96 Report of the UN Special Rapporteur on the Right to Health, UN Doc. A/HRC/7/11, 31 January 2008, para. 46.
97 Chapter II, Section 27(3) of the South African Constitution reads: ‘No one may be refused emergency medical treatment.’
98 See also the Moldovan Constitution, analysed in ECtHR, Pentiacova and 48 Others v. Moldova, Appl. No. 14462/03, Decision, 4 January 2005.
99 Supreme Court of India, Paschim Banga Khet Majoor Samity v. State of West Bengal, Judgement, 6 May 1996, AIR SC 2426/ (1996) 4 SCC 37, para. 6.
100 Magdalena Sepulveda, ‘Colombia – the Constitutional Court's role in addressing social justice’, in M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, Cambridge University Press, Cambridge, 2008, p. 125.
101 Christian Courtis, ‘Argentina – some promising signs’, in M. Langford (ed.), above note 100, pp. 174–176.
102 Enrique Gonzalez, ‘Venezuela – a distinct path towards social justice’, in M. Langford (ed.), above note 100, p. 203.
103 See the discussion by Toebes, Birgit, The Right to Health as a Human Right in International Law, Intersentia, Antwerp, 1999, pp. 318–319Google Scholar; and European Committee of Social Rights (ECSR), Complaint 15/2003, European Roma Rights Centre (ERRC) v. Greece, Decision on the Merits, 8 December 2004, paras. 33–38.
104 2220 UNTS 3, entered into force on 1 July 2003.
105 To name but a few examples, see e.g. HRC, Lantsov v. Russian Federation, Communication No. 763/1997, UN Doc. CCPR/C/74/D/763/1997, 15 April 2002, para. 9.2; HRC, Fabrikant v. Canada, Communication No. 970/2001, UN Doc. CCPR/C/79/D/970/2001, 11 November 2003, para. 9.3, where Canada had provided appropriate surgery to a prisoner and the communication was therefore held inadmissible; and HRC, Concluding Observations – Portugal, UN Doc. CCPR/CO/78/PRT, 17 September 2003, para. 11. See also Joseph, Sarah, Schultz, Jenny, and Castan, Melissa, The International Covenant on Civil and Political Rights, Oxford University Press, Oxford, 2nd edition, 2004, p. 197Google Scholar.
107 See above note 55.
108 ECtHR, Cyprus v. Turkey, App. No. 25781/94, Judgement (Grand Chamber), 10 May 2001, para. 219; Calvelli and Ciglio v. Italy, Appl. No. 32967/96, Judgement, 17 January 2002, para. 49; D v. UK, Appl. No. 30240/96, Judgement, 2 May 1997, paras. 51–54; and Bensaid v. UK, Appl. No. 44599/98, Judgement, 6 February 2001, para. 40.
109 ECtHR, Nitecki v. Poland, Appl. No. 65653/01, Decision, 21 March 2002, para. 1; Pentiacova and 48 Others v. Moldova, Appl. No. 14462/03, Decision, 4 January 2005; see also the analysis by Harris et al., above note 56, p. 47. On the approach of the Inter-American Court of Human Rights, see S. Keener and J. Vasquez, above note 54, p. 617.
110 Constitutional Court of South Africa, Soobramoney v. Minister of Health (Kwazulu-Natal), Judgement, 27 November 1997, 1998 (1) SA 765 (CC), paras. 20–21. See also the discussion of the South African constitutional provisions in Marius Pieterse, ‘Enforcing the right not to be refused emergency medical treatment: towards appropriate relief’, in Stellenbosch Law Review, Vol. 18, 2007, pp. 75–90.
111 As suggested in the section ‘The applicability of ESC rights …’, above.
112 Cp. ICESCR, Art. 2(1), referring to international assistance and cooperation in the implementation of ESC rights; see also above notes 27 and 67.
113 Data collected from Kosovo, a relatively well developed country, between February 1998 and June 1999 showed that the increase in the mortality rate in this case was mainly due to an increase in deaths resulting from direct violence: see Spiegel, Paul and Salama, Peter, ‘War and mortality in Kosovo, 1998–99: an epidemiological testimony’, in The Lancet, 24 June 2004Google Scholar; Garfield, Richard, ‘The epidemiology of war’, in Levy, B. and Sidel, V. (eds), War and Public Health, Oxford University Press, New York, 2nd edition, 2008, pp. 29–32Google Scholar; and for a similar finding in regard to Lebanon's cancer care system, see Khabir Ahmad, ‘Conflict puts pressure on cancer-care resources in Lebanon’, in The Lancet, September 2006.
114 The Sphere Charter, above note 90, p. 309, also suggests that humanitarian organisations address the major causes of morbidity and mortality prevalent in a particular conflict situation.
115 Ibid., p. 332.
116 For more details on the relationship between states’ core and non-core obligations under the ICESCR, see Bilchitz, David, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights, Oxford University Press, Oxford, 2007, pp. 208–215Google Scholar; and A. Müller, above note 3, pp. 96–99.
117 CCM, Art. 5(2)(c).
118 CESCR, Concluding Observations – Bosnia and Herzegovina, UN Doc. E/C.12/BIH/CO/1, 14 January 2006, paras. 18, 19, and 39.
119 See above notes 1 and 2.
120 See Art. 3(1) common to all four Geneva Conventions; AP II, Part II; and ICRC Study, Vol. I, Rule 87, pp. 306–308.
121 ICRC Study, Vol. I, pp. 307–308.
122 ICRC Commentary to GC I–IV, above note 37, Common Art. 3, p. 53; Jean Pictet, The Fundamental Principles of the Red Cross: Commentary, 1979, ‘I – Principle of Humanity’, available at: www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm (last visited 26 July 2013).
123 See ICRC Study, comment to Rule 87, p. 308; ICRC Commentary to GC I–IV, Common Art. 3, pp. 53–54; and S. Sivakumaran, above note 3, p. 258, citing relevant ICTY jurisprudence and academic literature.
124 ICRC Commentary to GC I–IV, Common Art. 3, p. 53.
125 ICRC Commentary to AP II, above note 33, para. 4687.
126 AP I, Art. 8(c). This is also of relevance for non-international armed conflicts; see the section on ‘The IHL definition of “medical personnel” …’, below.
127 AP I, Art. 8(e). See also below note 197, on the importance of the protection of medical personnel for the mitigation of not only direct but also indirect health consequences of armed conflicts.
129 CESCR, General Comment 14, above note 41, paras. 44(a)–(c); see also the above section ‘The scope of medical attention and care …’.
130 Ibid., paras. 43(b) and (c).
131 As recognised e.g. by the CESCR in its Concluding Observations – Democratic Republic of the Congo, UN Doc. E/C.12/COD/CO/4, 20 November 2009, para. 34. See also above notes 1 and 2.
132 Checchi et al., Public Health in Crisis-Affected Populations: A Practical Guide for Decision Makers, Network Paper 61, Humanitarian Practice Network, December 2007, p. 2; Sphere Charter, above note 90, p. 311; Thoms, Oscar and Ron, James, ‘Public health, conflict and human rights: towards a collaborative research agenda’, in Conflict and Health, Vol. 1, 2007, p. 16CrossRefGoogle Scholar.
133 Sphere Charter, above note 90, p. 311; WHO, Manual on Communicable Disease Control in Emergencies, 2005, p. 1, available at: www.who.int/hac/techguidance/pht/communicable_diseases/field_manual/en/ (last visited 26 July 2012).
134 Checchi et al., above note 132, pp. 26–27.
139 See e.g. Young, Helen and Jaspars, Susanne, The Meaning and Measurement of Acute Malnutrition in Emergencies: A Primer for Decision-Makers, HPN Network Paper 56, HPN, London, 2006, pp. 23–33Google Scholar; WHO, Manual on Communicable Disease Control in Emergencies, above note 133, pp. 1, 65, and 68; and Checchi et al., above note 132, p. 23.
140 Described in detail by Checchi et al., above note 132, p. 29.
143 CESCR, General Comment 14, above note 41, paras. 11 and 43–44; Report of the UN Special Rapporteur on the Right to Health, UN Doc. E/CN.4/2003/58, 13 February 2003, para. 23; Ssenyonjo, Manisuli, Economic, Social and Cultural Rights in International Law, Hart Publishing, Oxford and Portland, Oregon, 2009, pp. 327–330Google Scholar.
146 CESCR, General Comment 14, above note 41, para. 44(b); Report of the UN Special Rapporteur on the Right to Health, UN Doc. A/HRC/7/11, 31 January 2008, para. 52.
147 CESCR, General Comment 14, above note 41, para. 44(c). It should be noted that in higher-income countries rising mortality rates due to indirect health consequences are caused by complications with the treatment of chronic diseases. Responding to this as a matter of priority in times of armed conflict is not excluded under the minimum core right to health. On this see e.g. Sphere Charter, above note 90, p. 336; and Andrew Miller and Bonnie Arquilla, ‘Chronic disease and natural hazards: impact of disasters on diabetic, renal and cardiac patients’, in Prehospital and Disaster Medicine, Vol. 23, 2008, p. 187 (analysing the context of natural disasters).
148 CESCR, General Comment 14, above note 41, paras. 11, 17, and 54.
149 See Sphere Charter, above note 90, p. 298, suggesting that interventions to address the health impact of armed conflicts shall e.g. make use of national standards and guidelines, including treatment protocols and essential drug lists, as far as these are up to date and reflect evidence-based practice.
150 This obligation has been confirmed by the CESCR in many of its concluding observations, e.g. Concluding Observations – Afghanistan, UN Doc. E/C.12/AFG/CO/2-4, 7 June 2010, paras. 26, 35, and 45; Democratic People's Republic of Korea, UN Doc. E/C.12/1/Add.95, 12 December 2003, paras. 27 and 42; Democratic Republic of the Congo, UN Doc. E/C.12/COD/CO/4, 20 November 2009, para. 16; and Sri Lanka, UN Doc. E/C.12/LKA/CO/2-4, 9 December 2010, paras. 28–29.
151 Resources ‘available’ to the state under ICESCR, Art. 2(1) regularly include those resources that are made available by international organisations and through bilateral development assistance. For more details see A. Müller, above note 3, pp. 99–102.
152 E.g. when internally displaced persons/refugees bring a disease to their host community; see WHO, Manual on Communicable Disease Control in Emergencies, above note 133, pp. 18–19, 47, 104, 110; and Elbe, Stefan, ‘HIV/AIDS and the changing landscape of war in Africa’, in International Security, Vol. 27, 2002, pp. 171–175CrossRefGoogle Scholar.
153 Sphere Charter, above note 90, pp. 55–57 and 255; WHO, Manual on Communicable Disease Control in Emergencies, above note 133, pp. 30, 46, and 88; Report of Four UN Special Rapporteurs on Their Mission to Lebanon and Israel, UN Doc. A/HRC/2/7, 2 October 2006, paras. 103(e) and 104(e); CESCR, Concluding Observations – India, UN Doc. E/C.12/IND/CO/5, 8 August 2008, para. 72. This is also recognised in other literature relating to the provision of humanitarian assistance: see e.g. Harvey, Paul and Lind, Jeremy, Dependency and Humanitarian Relief: A Critical Analysis, Humanitarian Policy Group Report 19, London, Overseas Development Institute, 2005, pp. 40–41Google Scholar; Harroff-Tavel, Marion, ‘Do wars ever end? The work of the International Committee of the Red Cross when the guns fall silent’, in International Review of the Red Cross, Vol. 58, No. 851, September 2003, pp. 482–483Google Scholar.
154 Sphere Charter, above note 90, pp. 55–57, 296; see also CESCR, Concluding Observations – Sri Lanka, UN Doc. E/C.12/1/Add.24, 16 June 1998, para. 22; and Democratic People's Republic of Korea, UN Doc. E/C.12/1/Add.95, 12 December 2003, para. 42; and HRC, Concluding Observations – USA, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, para. 26 (referring to the assistance provided to people affected by Hurricane Katrina).
155 Sphere Charter, above note 90, pp. 63–64 and 294–295; M. Harroff-Tavel, above note 153, p. 471; Report of Four UN Special Rapporteurs on Their Mission to Lebanon and Israel, UN Doc. A/HRC/2/7, 2 October 2006, paras. 63, 89, and 104(d); and CESCR, Concluding Observations – Algeria, UN Doc. E/C.12/DZA/CO/4, 7 June 2010, paras. 19–20; Afghanistan, UN Doc. E/C.12/AFG/CO/2-4, 7 June 2010, paras. 40 and 42; and Sudan, UN Doc. E/C.12/1/Add.48, 1 September 2000, para. 37.
156 This is also recognised in the Report of the UN Special Rapporteur on the Right to Health, UN Doc. A/HRC/7/11, 31 January 2008, para. 63.
157 Sphere Charter, above note 90, pp. 309–310.
160 Ibid., para. 44(d). In armed conflict situations, health-related information provided should for example relate the risks posed by land mines, cluster munitions, and unexploded ordnance.
161 See the discussion above, in the text accompanying notes 75–81.
162 AP II, Art. 9(1); ICRC Study, Vol. I, Rule 25, p. 79.
163 AP II, Art. 11(1); ICRC Study, Vol. I, Rule 28, p. 91.
164 AP II, Art. 11(1); ICRC Study, Vol. I, Rule 29, p. 98. S. Breau, above note 43, p. 176, analysing the ICRC Study, does not doubt the customary status of these rules, but holds that the ICRC Study could have cited much more evidence for state practice and opinio iuris dating from the earliest military manuals and Geneva Conventions, to further support their customary status.
165 AP II, Art. 12.
166 ICRC Commentary to AP II, above note 33, paras. 4711–4712.
167 ICRC Study, Vol. I, p. 95 (medical units) and p. 100 (medical transports); see also J. Kleffner, above note 33, p. 340.
168 AP I, Art. 8(e); GC I, Art. 19, refers to ‘medical units of the Medical Service’; and GC IV, Art. 18, refers to ‘civilian hospitals organised to give care’.
169 It can be assumed that leaving out the direct reference to ‘organised for medical purposes’ reflects the possibility that even unauthorised medical units could be protected under Rule of the 28 ICRC Study, or at least that it is not to be regarded as a requirement under customary IHL that medical units must be authorised and recognised in order to benefit from protection. This is supported by the commentary to Rule 28, holding that ‘a lot of [state] practice does not expressly require medical units to be recognised and authorised by one of the parties’. This may, in particular, be the case in non-international armed conflicts, where medical units could be set up in form of makeshift hospitals or other ‘improvised’ medical establishments, including in territories under the control of non-state armed groups, and including by international and local humanitarian organisations that may not have direct links with one of the parties to the conflict. In contrast to AP I, Arts. 8(e) and 12(2)(b), Rule 28 applies to international and non-international armed conflicts. See also the discussion below, on the IHL obligation to recognise medical personnel, units and transports.
170 ICRC Commentary to AP I, Art. 8(e), above note 33, para. 379.
171 Ibid., para. 371, refers to the requirements that medical units must be both ‘“organised for medical purposes” and exclusively assigned to these purposes’. Similarly, the commentary to ICRC Study, Vol. I, Rule 28, p. 95, refers to the criterion ‘organised for medical purposes’, in addition to the criterion ‘exclusively assigned to medical purposes’ that is directly included in Rule 28.
172 AP II, Art. 11(2); ICRC Study, Rule 28; and AP I, Art. 13(1).
173 The customary status of this definition is endorsed by ICRC Study, Vol. I, Rule 28, p. 91; and is confirmed also by S. Breau, above note 43, pp. 177–178. The ICRC Commentary to AP I, Art. 8(e), above note 33, para. 378, adds that establishments where dental care is administered are also considered as ‘medical units’.
174 See in particular the commentary to ICRC Study, Rule 29, p. 100.
175 On this requirement see also the section ‘The IHL obligation to recognise medical personnel …’, below.
176 AP II, Art. 11(1).
177 ICRC Commentary to AP II, Art. 11, above note 33, para. 4716.
178 S. Sivakumaran, above note 6, p. 375.
179 See above note 92; and Report of the UN Special Rapporteur on the Right to Health on His Mission to India, UN Doc. A/HRC/14/20/Add.2, 15 April 2010, para. 54.
180 On this requirement see the section ‘The IHL obligation to recognise medical personnel …’, below.
182 AP I, Art. 8(c).
183 AP I, Art. 8(e).
184 AP I, Art. 8(c).
185 Commentary on ICRC Study, Vol. I, Rule 25, p. 83; while this seems to be a reasonable suggestion, none of the ‘practice’ collected in Vol. II, pp. 453–480 of the ICRC Study suggest that states regard this definition as customary.
186 ICRC Commentary to AP II, above note 33, para. 4667, based on the wording of the official records from the drafting conference of AP I/II; see also commentary on ICRC Study, Vol. I, Rule 25, p. 83.
187 These two differences are noted in ICRC Commentary to AP II, above note 33. To compare, in AP I the term ‘medical personnel’ includes: ‘(i) medical personnel of a Party to the conflict, whether military or civilian, including those described in the First and Second Conventions, and those assigned to civil defence organisations; (ii) medical personnel of national Red Cross or Red Crescent Societies and other national voluntary aid societies duly recognised and authorised by a Party to the conflict’ (AP I, Art. 8(c)), and ‘(iii) medical personnel of medical units or medical transports made available to a party to the conflict for humanitarian purposes by: (a) a neutral State which is not Party to that conflict; (b) by a recognised and authorised aid society of such a State; (c) by an impartial international humanitarian organisation’ (AP I, Art. 9(2)).
188 Emphasis added.
189 ICRC Commentary to AP II, above note 33, para. 4666; the phrase ‘Red Cross and Red Crescent Organisations’ is also used in AP II, Art. 18(1).
190 ICRC Commentary to AP II, above note 33, para. 4667.
191 Further, see the section ‘The IHL obligation to recognise medical personnel …’, below.
192 CESCR, General Comment 14, above note 41, paras. 12(a) and (d), 36, and 44(e).
193 The importance of health professionals in the realisation of the right to health is also recognised in various reports of the UN Special Rapporteur on the Right to Health, e.g. UN Doc. E/CN.4/2003/58, 13 February 2003, para. 95; UN Doc. A/60/347, 12 September 2005, from para. 8; UN Doc. A/HRC/4/28, 17 January 2007, para. 41; and UN Doc. A/HRC/7/11, 31 January 2008, paras. 68(b) and 75–86.
194 See the section ‘Personal scope of application’, above.
195 AP II, Art. 9(1); ICRC Commentary on AP II, Art. 9(1), paras. 4673–4674; ICRC Study, Rule 25, including the commentary thereto, pp. 81–84; ICC Statute, Article 8(2)(e)(ii); see also S. Sivakumaran, above note 6, p. 278.
196 See in particular the section ‘Minimum core obligations …’, above.
197 ‘Three DPRK doctors killed in northern Nigeria: police’, in Xinhua, 10 February 2013, available at: http://news.xinhuanet.com/english/africa/2013-02/10/c_132163579.htm (last visited 27 June 2013); see also reports from e.g. Afghanistan: Reuters, ‘Thousands lack health services since attack on Afghan Red Crescent’, 28 May 2013, available at: www.trust.org/item/20130528165900-u1pb3 (last visited 27 June 2013).
198 CESCR, General Comment 14, above note 41, paras. 28 and 50.
199 Report of the UN Special Rapporteur on the Right to Health, UN Doc. E/CN.4/2003/58, 13 February 2003, para. 97.
200 See the section ‘The IHL obligation to recognise medical personnel …’, below.
201 See above notes 162–164.
202 See the section ‘Obligations to search for and collect the wounded and sick’, above.
203 AP I, Art. 5(4); and J. Kleffner, above note 33, p. 347.
204 ICRC Study, commentary to Rule 25, p. 84.
206 Ibid., p. 464.
207 Ibid., p. 551.
208 S. Sivakumaran, above note 6, pp. 227–278, 375.
209 ICRC Commentary to AP II, above note 33, para. 4714.
210 ICRC Study, Vol. I, p. 96 (units) and 101–102 (transports).
211 States are arguably obliged to allow independent humanitarian organisations to negotiate access to conflict-affected civilian populations in territories under the control of a non-state armed group. For more details see the sources cited in above notes 27, 67, and 74.
213 This is observed e.g. by Currea-Lugo, Victor, ‘Protecting the health sector in Colombia: a step to make the conflict less cruel’, in International Review of the Red Cross, Vol. 83, No. 844, December 2001, p. 1122Google Scholar.
214 CESCR, Concluding Observations – Israel, UN Doc. E/C.12/1/Add.27, 4 December 1998, para. 39.
215 CESCR, Concluding Observations – Russia, UN Doc. E/C.12/1/Add.94, 12 December 2003, paras. 10 and 39; similarly, Colombia, UN Doc. E/C.12/COL/CO/5, 7 June 2010, para. 7.
216 While AP II, Art. 11 does not – in contrast to AP I, Arts. 12(2) and 9(2) – explicitly include the requirement of authorisation and recognition by a party to the conflict, from AP II, Art. 12, it is clear that only recognised and authorised medical units and transports can display the distinctive emblem. AP II, Art. 12, holds that the distinctive emblem can only be displayed ‘under the direction of the competent authority concerned’. Moreover, the ICRC Study's commentary, Vol. I, p. 95 (on Rule 28) and p. 100 (on Rule 29), holds that authorisation and recognition remain a precondition for displaying the distinctive emblem. See also S. Sivakumaran, above note 6, p. 278.
218 For a more detailed analysis of the limited protection of international humanitarian organisations (non-ICRC, non-UN, and non-national Red Cross/Red Crescent Societies) under IHL of international and non-international armed conflict, see also Mackintosh, Kate, ‘Beyond the Red Cross: the protection of independent humanitarian organisations and their staff in international humanitarian law’, in International Review of the Red Cross, Vol. 89, No. 865, March 2007, pp. 113–123CrossRefGoogle Scholar.
219 However, it shall be noted that the recognition requirement also aims to prevent exploitation of the distinctive emblem, as is noted in the ICRC Commentary, above note 33, to AP II, Art. 9, para. 4660; see also the commentary on the ICRC Study, Vol. I, Rule 25, p. 82; and J. Kleffner, above note 33, p. 345.
220 This is not to say that it is of no relevance, since IHL protects all kind of health facilities, including primary care points at the community level which might exist in poor countries.
221 See also the discussion in Fisher, David, ‘Domestic regulation of international humanitarian relief in disasters and armed conflict: a comparative analysis’, in International Review of the Red Cross, Vol. 89, No. 866, June 2007, pp. 363–364CrossRefGoogle Scholar; and IFRC, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 30 November 2007, available at: www.ifrc.org/PageFiles/41203/introduction-guidelines-en.pdf (last visited 26 July 2012), which suggest that states adopt procedures which allow for temporary recognition of foreign medical personnel (Section 16, para. 1(c)).
222 For example see D. Fisher, above note 221, p. 363.
223 See ICRC Study, Rule 31, pp. 105–109. However, international humanitarian relief personnel have to be authorised as well before they can profit from the special protection given to them under IHL.
224 See also S. Sivakumaran, above note 6, p. 279.