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Sat. June 22, 2024
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Legal Amelioration for Ukrainian Healthcare Incursions
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Abstract

Russia's recent unrelenting attacks on Ukraine's healthcare system underscores the paramount importance of protecting the right to healthcare in times of armed conflict. This paper explores the legal and historical frameworks of international human rights law (IHRL) and international humanitarian law (IHL). More specifically, the relationship between these two legal bodies establishes a contextual jurisprudence used to analyze Russia's illegal occupation of Ukraine and its targeted destruction of healthcare capabilities. Three potential policy solutions are then outlined: sanctions, litigation, and localized policies that implement the right to healthcare on a limited scale. Sanctioning and litigation are found to be effective at promoting accountability and enforcement of IHRL and IHL, but sanctioning is used as a tool for reprimand and deterrence, while litigation is considered as a means of redressing legal violations. Localized policies affirm the right to health, the right to life, and the right to access medical care through politically feasible measures. The investigation suggests localized policies, sanctioning, and litigation are most immediately effective in the short term, in the mid-term, and in the long-term respectively. Thus, this paper recommends Ukraine prioritize implementing localized policies, then sanctioning, and finally litigation. As this paper highlights, protecting the right to healthcare in conflict zones requires a multi-faceted approach that balances accountability, redress, and practicality. The solutions delineated in this paper offer a starting point for individual policymakers, along with the international community, to take action against Russia for its repeated and indiscriminate assaults on Ukrainian medical personnel, patients, and resources. 

Introduction

Russia’s war on Ukraine has illuminated the importance of protecting the right to healthcare during times of armed conflict through a prism of international human rights law (IHRL) and international humanitarian law (IHL). Here a symbiosis of two distinct law bodies emerges, contextualizing the history of materialized liberties, weight of non-state actors, and past initiatives to safeguard medical establishments from harm. Once this framework of IHRL and IHL jurisprudence is established, Russia’s illegal occupation of Ukraine and targeted destruction of healthcare can be properly scrutinized. After an initial review of contraventions, three solutions will be recognized: sanctioning, litigation, and parochial policy that centers a feasibly quick realization of relevant human rights. Ultimately, through the convergence and divergence between IHRL and IHL regarding their approach to healthcare, Ukrainian grievances are acknowledged and a path for addressing Russian harms is composed. 

Human Rights and Humanitarian Law in Protecting Healthcare during War

To clarify an analysis of the attacks on health systems during war, international human rights law (IHRL) and international humanitarian law (IHL) must be differentiated by the different contexts they work through. Both IHRL and IHL have provisions that protect healthcare systems during war that differ in approach and scope. IHRL applies in times of peace and animosity, while IHL is specific to the conduct of armed conflict and the treatment of individuals separated from hostilities, such as civilians, wounded combatants, and medical personnel (International Committee of the Red Cross, 2021). Although IHRL binds governments to individuals by creating legal obligations from ratified human-rights treaties, IHL binds all parties to an armed conflict, regardless of if they’re states or non-state actors (Cerone, 2006). Accountability for IHRL is monitored through a myriad of domestic courts, treaty and charter-based bodies, and special procedures (International Commission of Jurists, 2018). Monitoring mechanisms for IHL are largely limited to states' willingness to investigate and prosecute war crimes, often through international criminal tribunals with the help of NGOs (Rule 158: Prosecution of War Crimes, 2023). Despite all of their differences, a continued relationship between IHRL and IHL is key to the progressive realization and ongoing protection of healthcare amidst enmity. 

Convergence between IHRL and healthcare relies on the right to health, the right to life, and the right to access medical care. An intersection of these rights began with the 1948 adoption of the Universal Declaration of Human Rights, which recognized the right to health as a fundamental human right (Gostin et al., 2020). In 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) incorporated enjoyment of the highest attainable standard of physical and mental health (Gostin et al., 2020). Article 12 of the ICESCR enjoins the provision of medicine, finding that “states have obligations to prevent, treat, and control diseases” (Leyh & Gispen, 2018). Later IHRL resolutions would expand protections to those administering or receiving medical services during war. For example, the United Nations Security Council (UNSC) adopted Resolution 2286 in 2016, condemning attacks on medical personnel and facilities in armed conflict (Druce et al., 2019). State compliance with these rights during conflicts and emergencies is largely monitored through the Human Rights Council’s Universal Periodic Review and special procedures mandates (Dabney et al., 2020). Over the course of history, IHRL provisions and protections have been essential in safeguarding the right to health, especially during crises where access to healthcare and medical services is most at risk.

Protecting health services in emergencies with IHL is based on the same agglomeration of human rights as IHRL. But IHL originated within the 1899 and 1904 Hague Conventions, the first fundamental international agreements governing the laws of war (Dabney et al., 2020). In 1864, the International Committee of the Red Cross (ICRC) was established, building on initial success by adopting the first Geneva Convention and solidifying protections for "wounded soldiers and the… institutions entrusted with caring for them" (Dabney et al., 2020). Modern Geneva Conventions were enshrined after World War II in 1949, after being reworked in 1906 and 1929. (Dabney et al., 2020). Geneva Conventions I and IV delineate tenets of philanthropic aid that include access to medicine and the protection of personnel. (Leyh & Gispen, 2018). These ideas would be elaborated by the UN General Assembly’s 1970 adoption of Resolution 2675, which states “a hospital zone or similar refuge should not be the object of military operations” (Trelles et al., 2016). Moreover, the 1977 Additional Protocols to the Geneva Conventions, particularly Protocol 1, augmented protections to civilian medical staff and conveyance of equipment (Schindler & Toman, 1982). As humanitarian law evolved, international tribunals recognized targeting healthcare as a war crime. Examples include the International Criminal Tribunal for the former Yugoslavia and Rwanda, the latter of which developed the Sphere Standards, outlining minimum humanitarian standards in the context of WASH promotion, food security and nutrition, shelter and settlement, and health (International Criminal Court, 2020) (Dabney et al., 2020). Milestones during IHL development legitimize the evolving commitment of the international community to shield healthcare from the perils of war.

Non-governmental organizations (NGOs) were crucial to the evolution of IHRL and IHL in the last century. A detailed history reveals their role in formulating the contemporary benchmarks for responding to humanitarian crises and then helping incorporate human rights into said assistance. The first notable NGO was the ICRC, which became one of the main custodians of the Geneva Conventions and the cornerstone for modern IHL implantation (Bugnion, 2004). Today, NGOs like the ICRC make up an intercontinental response network that provides humanitarian aid on a global, national, regional, and local level (Dabney et al., 2020). These organizations work “in tandem with donor states and coordination agencies” and are “often the early responders… while UN agencies and national governments engage thereafter with better-resourced responses” (Dabney et al., 2020). NGOs aren’t state actors, so their advocacy, monitoring, reporting, and litigation aren’t bound by human rights law (Alston, 2005). But many NGOs have facilitated rights-based accountability through incorporating frameworks like the Sphere Standards into their work (Dabney et al., 2020). NGOs have been key to the historic realization of humanitarian assistance, and in doing so they burned the bridge between IHRL and IHL to catalyze progress. 

Past global efforts to prevent attacks on healthcare through IHRL and IHL have been remarkably heterogeneous. As far back as the 1980s, the World Health Organization’s (WHO) “Health as a Bridge for Peace” program utilized health interventions to stimulate peace in conflict-affected areas by enhancing medical services and building partnerships between health actors and other stakeholders (Ghebreyesus, 2022). The ICRC aimed to ensure the safe delivery of care with their 2010 “Health Care in Danger" project (International Committee of the Red Cross, 2015). The WHO’s 2012 “Safeguarding Health in Conflict Coalition” built on prior campaigns by documenting attacks, providing technical assistance to improve infrastructure security, and mobilizing political and financial backing (Rubenstein, 2021). Additional monitoring mechanisms are provided by the WHO’s 2019 “Surveillance System for Attacks on Health Care” (Mason et al., 2021). Investigating previous international initiatives to protect healthcare during times of conflict unveils the diverse strategic interests of IHRL and IHL. 

Warfare and Healthcare: Ukraine's Struggle for Sovereignty and Survival

Now that a framework of IHRL and IHL has been established, the war in Ukraine can finally be scrutinized. Ukraine was once the second most populous and -powerful of the fifteen Soviet republics, so vital to the Soviet Union that “its decision to sever ties in 1991 proved to be a coup de grâce for the ailing superpower” (Masters 2022). During its 30 years of independence, Ukraine sought to consolidate sovereignty by fostering ties with the EU and NATO (Masters 2022). Russia became increasingly concerned about losing what it perceived as its most vital strategic resource, and gradually exerted influence over the new nation. 

This issue reached its apogee during Ukraine’s 2004 presidential election when ballot tampering allegations obscured the pro-Russian candidate’s win (Sullivan, 2022). Public outcry became the Orange Revolution, and the pro-democracy candidate was reinstated as president (Sullivan, 2022). But after the pro-Russian wins his next presidential bid he backs out of joining the EU (Piper, 2013). Violent protests transformed into the 2014 Maidan revolution, with tensions escalating when Russia annexed Crimea and began arming separatists in Ukraine’s Donbas region (Masters 2022). Crimea remains under Russian control to this day. In 2019, after Volodymyr Zelenskyy was elected president, he called for Ukraine's inclusion into NATO, eliminated Russian state media, and froze assets of Kremlin’s top political ally. (Masters 2022). Suddenly 100,000 Russian troops appear at Ukraine’s borders (Sullivan, 2022). Then, in February 2022, Russian President Vladimir Putin initiated a full-scale invasion of Ukraine, with the aim of deposing the Western-affiliated government and policy objectives of President Volodymyr Zelenskyy (Masters 2022).

Even before the war with Russia, the Ukrainian healthcare system was facing significant challenges. Decades of underinvestment, inefficiency, and corruption sequestered basic services (Olden et al., 2019). A transition from the centralized financing of the classic Soviet healthcare model to extreme decentralization during the 1990s shifted more responsibility to regional and local authorities (Lekhan et al., 2010). Existing funding was subsequently fragmented and broadened healthcare inequalities between wealthier and poorer areas (Lekhan et al., 2010). This bumpy gradation would be felt for decades. In the 2019 Global Health Security Index report, Ukraine ranked 94th among 195 countries, indicating “health security capacities needed to… respond to significant infectious disease outbreaks were suboptimal,” with notably low scores in investment and accessibility to medical care (Piven & Habicht, 2022). This complicated the fact that Ukraine has one of the greatest HIV/AIDS epidemics in Eastern Europe and close to the highest frequency of multi-drug resistant tuberculosis in the world (USAID, 2023). Between decentralized healthcare, splintered funding, unequal care, and insufficient epidemic prevention, Ukraine dealt with plenty of obstacles long before Russia’s aggravation. 

Violence that targets medical resources is a hallmark of Russian warfare tactics, as witnessed in Syria, Chechnya, and Georgia (Magazine & Zarei, 2023). Now it’s Ukraine’s turn. During Russia's unlawful annexation, the Russian military has persistently targeted healthcare as a tactical maneuver to subjugate the Ukrainian populace and its infrastructure.

From February 24 to December 31, 2022, Russia carried out 707 attacks on healthcare in Ukraine (eyeWitness to Atrocities et al., 2023). This included 292 attacks on hospitals, 65 attacks on ambulances, 181 attacks on health infrastructure such as pharmacies, blood centers, and dental clinics, and 62 health workers killed (eyeWitness to Atrocities et al., 2023). That’s equivalent to two attacks on health care every day for almost a year. In 2022, the Safeguarding Health in Conflict Coalition disclosed that over a third of all globally documented incidents of violence against healthcare facilities and personnel took place in Ukraine (Magazine & Zarei, 2023). Unsurprisingly, a survey from the International Organization for Migration uncovered that 1 in 3 Ukrainians lacked access to necessary medical services in December 2022 (International Organization for Migration, 2023). Aside from outright denial of care, Ukrainians now face “reduced vaccination rates, barriers to managing chronic diseases, and severe mental health toll” (eyeWitness to Atrocities et al., 2023). This situation will only continue to grow worse if nothing is done.  

Crafting Effective Policies to Counter Russian Aggression

Solutions to Russian attacks on Ukrainian healthcare are as easy to come by as discovering the secret to ending the war tomorrow. However, IHRL and IHL provide a framework for governments to act against countries that attack their healthcare systems. Sanctions offer punishment and deterrence, and this tool of retribution is made more enticing by its effectiveness in the medium-term (Demertzis et al., 2022). It can take some time for one actor to impose sanctions on another, so it’s helpful that the aggrieved doesn’t have to wait too long to see results (Nelson, 2022). Through the lens of IHRL, the UNSH derives the authority to apply sanctions from Article 41 of the UN Charter (Kristan, 2014). Although Article 41 of the UN Charter does not explicitly mention sanctions, it grants the authority to take "preventive" measures that are necessary to maintain international peace and security (Kristan, 2014). An applicable resolution to Ukraine is the UNSC Resolution 2286. As discussed previously in this paper, Resolution 2286 condemns attacks on medical facilities and personnel, and UNSC can authorize sanctions against Russia for violating this agreement. IHL has its own approach to sanctioning. Article 146 of Geneva Convention IV states that High Contracting Parties shall "undertake to enact any legislation necessary to provide effective penal sanctions for persons committing… any of the grave breaches of the present Convention” (Center for the Study of Human Rights in the Americas, n.d.). High Contracting Parties are countries that have ratified the Geneva Convention, and they can therefore use it as a basis for imposing sanctions on other countries that violate its provisions (International Committee of the Red Cross, 2023). Sanctions can be imposed on Russia because its targeted attacks on non-combatants in healthcare constitute a breach of the Geneva Convention. IHRL and IHL provide legal justification for sanctions as punishment for harm caused during the Russia-Ukraine conflict. 

Another route for justice is through the courts; IHL litigation allows Ukraine to prosecute Russia directly. Unfortunately, “war crimes trials can be held a long time after the crimes occurred,” so litigation is often framed as a long-term strategy, but it can present itself to the victim(s) as a powerful recognition of harm regardless of how long success took (Weill, 2014). In the context of Ukraine, a germane option is the International Criminal Court (ICC), which investigates genocide, crimes against humanity, war crimes, and crimes of aggression. Normally the ICC’s jurisdiction extends only to parties under the Rome Statute, yet neither Ukraine nor Russia are members. However, in 2014 and 2015, Ukraine submitted declarations under Article 12(3) of the Rome Statute, which accepted the jurisdiction of the ICC over crimes committed within its territory (eyeWitness to Atrocities et al., 2023). Then, in February 2022, the Prosecutor of the ICC announced an investigation into the situation in Ukraine (Mulligan & Hart, 2023). A year later, the ICC issued arrest warrants for Russian President Vladimir Putin and Russia's Commissioner for Children's Rights for war crimes against children, increasing the possibility of the ICC also prosecuting similar attacks on medical services (Han, 2023). Furthermore, the ICC, along with establishments like the EU’s International Centre for the Prosecution of Crimes Aggression, can create special ad hoc tribunals to prosecute Russian individuals for IHL violations (Drik, 2023). Additional investigative paths at the disposal of Ukraine include the International Criminal Court, the European Court of Human Rights, and even the Criminal Code of Ukraine (Mulligan & Hart, 2023) (eyeWitness to Atrocities et al., 2023). Ukraine has an amplitude of litigative tools to pursue legal action against Russian attacks on its health sector. 

Sanctions and international tribunal courts are large multifarious structures of restitution. This paper’s final policy analysis takes a more localized approach to Ukrainian’s right to health and healthcare during prosaic warfare. Oftentimes implementing policy initiatives that are limited and specific in scope results in a more successful fulfillment of human rights (Office of the United Nations High Commissioner for Human Rights, 2012). In Ukraine, minor policy wins like this can be tailored to the protection of health. Telehealth has proliferated as a promising alternative to Ukrainians who can’t move freely or don’t have access to functional hospitals, as one study found that over 50% of Ukrainian physicians used telemedicine more during the conflict (Lee et al., 2023). Increased funding to programs like Stanford’s “Health Tech Without Borders” and “Telehelp Ukraine” ensures access to primary care and specialists through a global virtual network of over 400 healthcare professions and 40 healthtech companies (GlobalData Thematic Research, 2022). Electronic measures can’t physically protect personnel and patients, but implementing interventions like early warning systems, regular emergency drills, and the fortification of hospital basements into bomb-shelters helps lower clinical risk (Stone, 2023) (Kulidi, 2022). Individuals could also benefit from additional precautions such as training related to explosive-devices/chemical attacks/sniper fire, personal protective equipment like bulletproof vests/helmets/gas masks, communication devices like radios/mobile phones, and security measures that equip hospitals with cameras/metal detectors/secure entry-exit points (Footer et al., 2018) (Hugelius et al., 2019) (Morgan, 2021). These may not be drastic changes, but focused policy on a municipal level has the potential to successfully protect Ukrainian’s right to healthcare while sanctions and international tribunal courts get tied up in years of bureaucracy. 

Conclusion and Policy Recommendations

The horrific attacks on Ukraine’s healthcare system have galvanized the convergence and divergence between IHRL and IHL. These legal institutions frame the history, challenges, and solutions related to upholding the right to health and healthcare in times of hostility. Sanctioning and litigation both act as important tools for accountability and enforcement of IHRL and IHL; but sanctioning is analyzed as a tool for reprimand and deterrence, while litigation is considered as a means of redressing legal violations. On the contrary, parochial policy aims to directly protect the right to healthcare by implementing locally relevant directives. More localized policy can provide Ukraine with quick yet limited achievements in the short run. Sanctions are actualized within a medium-term timeline, as navigating the processes of working with IHRL and IHL outside of one's domestic government can be protracted. Litigation can be seen as a more steadfast and enduring effort towards seeking justice. Moving through the court system takes time, so most cases will finish long after this conflict is over. Due to litigation’s prolixity, this paper recommends it should be prioritized behind implementing sanctions, with localized policy being given priority due to feasibility and minimal costs. While different in scope and approach, each solution is defined by the shifting intersection between IHRL and IHL. Ultimately, they all share the same truth: Human rights and humanitarian law creates a moral obligation to act when violated, and their principles must be viewed as practical tools for protecting the vulnerable. Now all that’s left is to put these solutions into action.

Charlotte Houser is a recent graduate of the University of North Carolina at Chapel Hill, where she majored in Public Policy with concentrations in Biology and Chemistry.

 

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