CYIL vol. 12 (2021)

peter klanduch

CYIL 12 (2021)

3.5 Attacks on hospitals Hospitals are regarded as critical infrastructure for the realization of children’s human rights, in particular the right to health. 75 Yet, it is not rare that they are targeted by military forces. In November 2016, an air raid hit a children’s hospital in Syria’s rebel-held east Aleppo, forcing medical staff to evacuate patients, including several newborn babies still in incubators. The World Health Organization informed that it had recorded 126 attacks on health facilities in Syria in 2016, a common tactic in the Syrian conflict. 76 In 2019, the United Nations verified 433 attacks on hospitals, including on protected persons. 77 “Medical units” enjoy special legal protection in international conflict. 78 They are entitled to legal protection “unless they are used to commit, outside their humanitarian function, acts harmful to the enemy.” Even under those circumstances the protection ceases only after a warning has been given. 79 The IHL principles of distinction, proportionality and precaution are highly relevant in this context. Some scholars even argue that as objects “indispensable to the survival of the civilian population,” they also enjoy special protection in both international and non-international armed conflict. 80 Although the MRM treats attacks on hospitals and schools as one category of grave violations of international law, I decided to disaggregate them due to their different nature and qualitatively different rights they protect. While attacks on hospitals violate the fundamental right of the child to health, attacks aimed at educational infrastructure a have long-term negative impact on children’s right to education. Without diminishing the importance of education even in difficult times of armed conflict, I acknowledge that, unlike medical facilities, schools, in principle, do not necessarily meet the characteristics of “indispensability.” There is no definition of the word “hospital” in international law. Under the existing rules of IHL, hospitals are examples of protected “medical units.” 81 The Guidance Note on Security Council Resolution 1998 (Guidance Note) defines hospitals as “all health care facilities, including medical units [emphasis added] and services, whether military or civilian, fixed or mobile, permanent, ad hoc or temporary, aiming at the delivery of preventive and/or curative medical care.” 82 Despite these inconsistencies between the wording of the Additional Protocol I and the Guidance Note, there is a broad consensus on interpretation which covers hospitals in traditional sense as well as medical depots, maternity wards, medical transports, blood transfusion centers, and mobile vaccination and community-based services regardless of whether they are marked with the distinctive emblem of the Geneva Conventions or other context-specific identification. 75 Fatima, Protecting Children , p. 324. 76 “Syria war: Air raid hits children’s hospital in Aleppo,” Al Jazeera , 19 November 2016, https://www.aljazeera.com/ news/2016/11/air-strike-hits-children-hospital-syria-aleppo-161118163200380.html (Accessed on 24 May 2021). 77 UN Doc. A/74/845-S/2020/525 of 9 June 2020, para. 8. 78 Additional Protocol I, Article 12. 79 Ibid. , Article 13. 80 See Additional Protocol I, Article 54(2); Additional Protocol II, Article 14. 81 Additional Protocol I, Article 8(e). 82 Office of the Special Representative of the Secretary-General for Children and Armed Conflict. Protect Schools and Hospitals: Guidance Note on Security Council Resolution 1998 (May 2014), 29, https://childrenandarmedconflict. un.org/publications/AttacksonSchoolsHospitals.pdf (Accessed on 24 May 2021).

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