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Evaluating Mechanisms for Investigating Attacks on Healthcare

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Evaluating Mechanisms for Investigating Attacks on Healthcare DECEMBER 2017 Evaluating Mechanisms for Investigating Attacks on Healthcare ELS DEBUF Cover Photo: An ambulance is on fire ABOUT THE AUTHORS after a vacuum bomb attack in the town of Jisr al-Shughur near Idlib, Syria ELS DEBUF was Head of Humanitarian Affairs at IPI until on April 25, 2015. Getty Images/Salih September 2017, where she headed this research project. Mahmud Leyla. Disclaimer: The views expressed in this paper represent those of the author ACKNOWLEDGEMENTS and not necessarily those of the International Peace Institute. IPI IPI is thankful to the member state representatives, UN welcomes consideration of a wide officials, representatives of humanitarian organizations, and range of perspectives in the pursuit of other experts who have served on or worked with the a well-informed debate on critical investigative mechanisms evaluated for the purpose of this policies and issues in international affairs. research, and who contributed significantly to the research and its findings through bilateral interviews or participation IPI Publications in an expert meeting held at IPI’s offices in New York on Adam Lupel, Vice President June 28, 2017. All errors and opinions expressed are those Albert Trithart, Associate Editor of IPI alone. The author also wishes to thank Aïssata Athie Madeline Brennan, Assistant Production and Alice Debarre for their valuable research assistance. Editor IPI owes a debt of gratitude to its many donors for their Suggested Citation: generous support. IPI is particularly grateful to the Bill & Els Debuf, “Evaluating Mechanisms for Investigating Attacks on Healthcare,” Melinda Gates Foundation for making this publication New York: International Peace Institute, possible. December 2017. © by International Peace Institute, 2017 All Rights Reserved www.ipinst.org CONTENTS Abbreviations . iii Executive Summary . 1 Introduction . 2 ATTACKS ON HEALTHCARE ON THE RISE INVESTIGATING ATTACKS ON HEALTHCARE AIM AND FOCUS OF THE RESEARCH PROJECT Evaluating International Mechanisms to Investigate Attacks on Healthcare . 7 SUBSTANTIVE AND GEOGRAPHIC SCOPE OF MECHANISMS’ MANDATES PURPOSE OF INVESTIGATIONS TYPES OF INVESTIGATIVE ACTIVITIES MANDATING AUTHORITY AND PROCEDURE TO ESTABLISH OR ACTIVATE THE MECHANISM CONFIDENTIAL VERSUS PUBLIC REPORTING PERMANENT VERSUS AD HOC MECHANISMS Common Challenges in Investigating Violations of International Law in Armed Conflict . 20 ACCESS CONSENT AND COOPERATION PUBLIC COMMUNICATION TIME LIMITS AND RESOURCES METHODOLOGY COORDINATION AND INTEROPERABILITY Conclusion and Recommendations . 26 iii Abbreviations HCHR-FFM Fact-finding mission mandated by the UN high commissioner for human rights HRC-CoI Commission of inquiry mandated by the UN Human Rights Council ICC International Criminal Court ICRC International Committee of the Red Cross IHFFC International Humanitarian Fact-Finding Commission IIIM-SY International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic MRM-CAAC UN Security Council’s Monitoring and Reporting Mechanism on Grave Violations Committed against Children in Times of Armed Conflict MSF Médecins Sans Frontières OHCHR Office of the UN High Commissioner for Human Rights OPCW Organisation for the Prohibition of Chemical Weapons UN-CoI Commission of inquiry mandated by the UN Security Council, General Assembly, or secretary-general UNGA-CoI Commission of inquiry mandated by the UN General Assembly UNRWA UN Relief and Works Agency for Palestine Refugees in the Near East UNSC-CoI Commission of inquiry mandated by the UN Security Council UNSC-PoE Panel of experts supporting UN Security Council sanctions regimes UNSG-BoI Board of inquiry mandated by the UN secretary-general UNSG-CoI Commission of inquiry mandated by the UN secretary-general UNSG-MICBW UN secretary-general’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons WHO World Health Organization 1 Executive Summary to investigate attacks on healthcare. It discusses their respective advantages and disadvantages by On May 3, 2016, the UN Security Council adopted comparing their composition or membership, the a landmark resolution on the protection of medical procedures for creating or activating them, the care in situations of armed conflict. By adopting resources required to operationalize them, the Resolution 2286, the council heeded an urgent call extent to which their mandates allow or enable from medical and humanitarian organizations to them to investigate attacks on healthcare, the address a recent spike in brutal violence against nature of their investigative activities, possible healthcare personnel and facilities in countries outcomes of and follow-up measures to their affected by armed conflict around the globe. Both investigations, and whether and how these the human and economic costs of attacks on health - mechanisms have so far been used to investigate care are extremely high. In addition to causing attacks on healthcare. It also presents some of the immediate loss of life, injury, and destruction, such inherent challenges in investigating violations of attacks also can deprive entire populations of international law in situations of armed conflict, essential healthcare services and set hard-earned including lack of full access, lack of consent and development gains in the area of public health years, cooperation from the parties to the conflict, the if not decades, back. tension between confidentiality and publicity, Many of these incidents of violence against or limited time and resources, lack of a standardized interference with the delivery of healthcare are methodology, and inadequate coordination and blatant violations of international humanitarian interoperability among different mechanisms. law; indeed, protection of the wounded and sick The paper also submits a number of concrete and those who provide them with medical care in recommendations to ensure a more systematic and situations of armed conflict is at the very origin and adequate use of existing mechanisms that could heart of international humanitarian law. However, have a positive impact on the ground: the many non-judicial mechanisms to investigate • Make more systematic use of existing these violations are not widely known or mechanisms to investigate attacks on healthcare. researched. • Systematically list parties to armed conflict who This paper is part of a research project that maps engage in attacks on healthcare in the secretary- and evaluates international mechanisms that can general’s annual report on children and armed be used to investigate attacks on healthcare. In conflict. doing so, it aims to assist the Security Council, • Include the denial of humanitarian access as a relevant UN organs, member states, and other trigger to list parties to armed conflicts violating stakeholders in operationalizing Resolution 2286 relevant violations of international law in the and the UN secretary general’s recommendations report on children and armed conflict. for its implementation by providing tools to identify the most appropriate mechanism, or set of • Establish a platform to discuss strategic use of mechanisms, for each specific context. These tools investigative mechanisms in specific situations include: a general mapping of mechanisms that can and foster synergies between different be used to investigate attacks on healthcare; an mechanisms. interactive map of the mechanisms evaluated for • Formally expand the mandate of the the project, with detailed fact sheets on each of International Humanitarian Fact-Finding these mechanisms; and a comprehensive and Commission. interactive list of investigations carried out by • Impose targeted Security Council sanctions for existing international investigative mechanisms attacks on healthcare when appropriate. that have (or have not) been used to investigate • Identify the specific human resources needed to attacks on healthcare. The present paper is a staff investigative mechanisms. supplement to this broader set of tools developed as part of the research project. • Strengthen the operational capacity of UN agencies to investigate attacks on healthcare. The paper presents the project’s general findings on whether and how these mechanisms can be used 2 Els Debuf Introduction brutal violence against healthcare personnel and facilities in countries affected by armed conflict “It is when fighting breaks out that health-care around the globe. 4 In 2016 alone the World Health services are most needed, but it is also then that Organization (WHO) recorded over 300 attacks in they are most vulnerable to attack.” 1 twenty countries or territories that killed 418 and “You, the [Security] Council Members, pledged to injured 561 healthcare providers and patients. protect civilians and the medical services they These numbers only reveal the tip of the iceberg, as need to survive…. We appeal to you to immedi - many incidents are not reported or recorded, and ately endorse and implement the Secretary- there is no comprehensive, systematic, and consoli - General’s…call for independent and effective dated collection of global data on incidents of investigations.” 2 violence against or interference with the provision of healthcare in armed conflict. 5 On May 3, 2016, the UN Security Council adopted An even more worrying trend is that an a landmark resolution on the protection of medical increasing number of incidents intentionally
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