Protection of Medical Units and Personnel

In situations of armed conflict, international rules concerning medical units, including field hospitals, are long established and well developed. Forming part of the body of law known as IHL,³ such rules are primarily concerned with the protection of medical units from the effects of war. Medical units must be protected and respected in all⁴ circumstances,⁵ and only lose their protection if they are used to commit acts harmful to the enemy, outside of their humanitarian function.⁶

The rules of IHL also set out, in broad terms, the level of care owed to the sick and wounded in armed conflicts. In particular, they must be treated humanely, on the basis of medical need alone, and must receive the medical care required by their condition, to the fullest extent possible and with the least possible delay.⁷ In treating the wounded and sick, medical personnel must not be compelled to carry out work that is contrary to the rules of medical ethics, and may not be punished for carrying out activities compatible with medical ethics.⁸ Further, medical personnel may not be forced to share information about patients where this would be harmful to the patients or their families.⁹

Facilitation of Humanitarian Assistance

In addition to medical units belonging to or authorized by the parties to the conflict, field hospitals may be deployed in conflict situations as part of wider international humanitarian assistance efforts, including by the UN, international NGOs, governments, and other bodies. IHL contains a number of provisions regulating the delivery and control of humanitarian relief, which vary depending upon whether a territory is under occupation, is affected by an international armed conflict, or by a noninternational armed conflict.

In occupied territory, it is the primary responsibility of the state in control of the territory (also known as the occupying power) to ensure that the civilian population is adequately supplied and that its material needs are met.¹⁰ Where unable to do so, it has the duty to agree to relief schemes, which may include the provision of medical supplies.¹¹ Such assistance must be humanitarian in nature (that is, it must meet the sole aim of alleviating suffering) and must be provided without adverse distinction.¹² The occupying power must not hamper the delivery of assistance, but may implement necessary measures of control.

In international armed conflicts (those involving two or more states), parties to the conflict shall agree to assistance that is humanitarian and impartial in nature, where the needs of the civilian population are not met. While this obligation is qualified by the need to secure the consent of the affected state, such consent may only be withheld for valid reasons[1]. Starvation of the civilian population as a method of warfare is strictly prohibited.¹³ Relief personnel may take part in assistance schemes subject to the approval of the controlling state, and must be respected and protected.¹⁴

The situation in noninternational armed conflicts depends on, first of all, the nature of the conflict, and second, the relevant treaties agreed by the state upon whose territory the conflict is taking place. According to the treaty law, in most situations of noninternational armed conflict, while relevant organizations may offer their services, there is no explicit obligation on the affected state to accept such an offer.¹⁵

There is growing support for the application of a general rule in all types of conflicts that consent to humanitarian assistance may not be refused on arbitrary grounds.¹⁶ However, the parameters of what may be considered as arbitrary reasons for refusal are not necessarily settled, and there may be considerable discretion afforded to the affected party.¹⁷ In addition, even if a basis for intervention could be found in law, in practical terms invoking such a rule would not necessarily ensure the safety of relief operations or of populations in need. For organizations providing humanitarian assistance, the consent of all parties concerned is normally vital to ensuring the safety of their operations[2].

Consent to Offers of Disaster Relief and Access to Those in Need

Timely access to medical care in the immediate aftermath of a disaster can be critical to saving large numbers of lives, depending upon the nature of the event. However, such access may be hampered by both practical and political factors. Practical obstacles may include damage to infrastructure, communication, and supply routes, leading to delays in the delivery and distribution of assistance. In terms of political challenges, an affected state may be unwilling to give its consent to the provision of external relief even where the impact of a disaster on its population is severe, if such assistance is perceived as interference in its domestic affairs.

In simple terms, in the provision of international disaster relief, the consent of the affected state to such actions is vital. Such consent is viewed as a necessary corollary of the corresponding responsibility on states to respond to disasters occurring on their own territory, within the overriding framework of state sovereignty. This position is also compounded by the absence of an existing explicit right of individuals to receive humanitarian assistance under international law[4].²¹

There have been periodic attempts to establish a positive duty on states to allow external assistance where their domestic capacity is overwhelmed, in particular in circumstances where such refusal may result in violations of existing international obligations, such as those under international human rights law. One such approach has advocated for the invocation of the “responsibility to protect” doctrine in the aftermath of a disaster causing serious harm to the affected population.²² However, this assertion is subject to significant controversy. Seeking to provide relief in the absence of express consent by the affected state will give rise to a host of practical and operational difficulties. Assistance delivered in such a way may also no longer fulfill the requirements of generally accepted principles governing humanitarian aid, in particular that the assistance be impartial and neutral.²³

More recently, the issue has been addressed in a set of new draft articles on the protection of persons in the event of disasters, adopted by the International Law Commission[5].²⁴ The draft articles establish a duty on the affected state to seek assistance where domestic capacity is overwhelmed. While state consent to international assistance is required, the draft articles maintain that such consent should not be withheld arbitrarily.²⁵ However, these clauses have received criticism from some states insofar as they attempt to develop what are perceived as new international obligations.²⁶ It is also worth noting that the need to obtain the consent of the affected state is reflected in nonbinding guidelines relating generally to disaster response,²⁷ as well as those specifically addressing the use of FFHs.²⁸

Practical Issues in the Delivery of Assistance

International relief efforts may also be undermined by deficiencies in the aid provided. A great many organizations and actors of varying abilities and experience will respond to large-scale disasters, in particular those that are sudden-onset in nature, and receive considerable global attention. Regarding FFHs, deficiencies that have been highlighted in previous response efforts include the following: a lack of registration of field hospital teams entering disaster zones; a lack of coordination with local authorities when on the ground; a lack of self-sufficiency; a lack of appropriately trained staff, appropriate equipment, and medicines; little understanding of or adherence to national and internationally acceptable medical practices; human rights violations and other criminal conduct. In addition, FFHs operating in post-disaster environments have been criticized for being too focused on emergency trauma care, while neglecting to address the secondary effects of such care, as well as the ongoing ordinary health-care needs of the affected population.²⁹ Similar to concerns raised about the effectiveness of humanitarian assistance more generally, the relevance, timing and cost effectiveness of some FFHs have also been questioned.²⁹

To address the above challenges, a growing body of principles, guidelines, models of “good practice,” and self-regulation frameworks have emerged, all of which are essentially nonbinding in nature. The growth of such soft-law instruments has advantages and disadvantages. On the one hand, the use of nonbinding guidelines can result in operational challenges being dealt with in a more timely manner. Further, self-regulation by the humanitarian sector may in turn foster greater willingness of affected states to allow international disaster relief[6]. However, it can be difficult to enforce the wide use of standards and criteria that are essentially voluntary. It may also be challenging for the affected state to ensure adherence by assisting actors to nonbinding guidelines, in particular if its institutions are weakened and resources stretched following an emergency. In such a situation there is a risk that international relief activities will be carried out in parallel: some within acceptable guidelines, and others potentially outside of them.

While an examination of all general guidelines, principles, and models applicable to disaster assistance is beyond the scope of this chapter, the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief, adopted in 2007, are of particular note. Informally known as the IDRL guidelines, their development was led by the International Federation of Red Cross and Red Crescent Societies (IFRC).³⁰ The guidelines set out the responsibilities of “assisting actors,” including the need to adhere to the humanitarian principles, the need to be adequate to meet anticipated needs and to be in line with international standards of quality, the need to coordinate with other actors, and to engage adequately trained personnel.³¹ They also encourage states to adopt comprehensive legal, policy, and institutional frameworks to address disaster risk reduction and disaster response matters.³² A growing number of states have reportedly made changes to their domestic disaster management frameworks in line with the IDRL guidelines.³³ However, progress is slow, and there are many states that still lack comprehensive laws and procedures for managing international disaster relief. Meanwhile, regulatory issues continue to impact the timeliness and effectiveness of international disaster response operations.³³

Other guidelines that are of particular relevance to the use of FFHs include those aimed at managing the deployment of military assets in disaster response. A number of national militaries routinely deploy field hospitals and other medical units as part of international relief efforts.³⁴ From 1997 to 2006 it was reported that medical assistance, including field hospitals and personnel, constituted the second most commonly contributed military asset to international disaster relief operations, surpassed only by air transport[7]. The Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief (Oslo guidelines), a revised version of which was published in 2007, aim to improve the effectiveness of the use of foreign military and civil defense assets in disasters occurring outside of armed conflicts[8]. Additional guidelines address the use of such assets in complex emergencies[9].

Specific issues relating to FFHs, as well as foreign medical teams in general, are addressed in two sets of guidelines and standards, both developed under the auspices of the World Health Organization (WHO) in collaboration with other bodies. The first of these, the WHO–PAHO’s Guidelines for the Use of Foreign Field Hospitals in the Aftermath of Sudden-Impact Disasters, were published in 2003.²⁸ These guidelines set out essential requirements for FFHs, as well as additional optional criteria, to ensure that they benefit the affected population. Those elements considered essential include: that the hospital is operational on site within 24 hours following the impact of the disaster; that the hospital be entirely self-sufficient; that the hospital offer comparable or higher standards of medical care than were available in the affected country to the precipitating event.²⁸

In spite of the adoption of the WHO–PAHO guidelines, difficulties in ensuring professional and principled medical assistance in disaster response continued to be experienced.³⁵ Following a consultation process again established under WHO and coordinated with the global health cluster (GHC), a new framework, the Classification and Minimum Standards for Foreign Medical Teams in Sudden Onset Disasters, was adopted in 2013. The minimum standards build on the WHO–PAHO guidelines, but focus on the services provided by medical personnel (that is, FMTs), rather than the physical structure in which they work.³⁵ They introduce a classification and registration system, as well as a set of minimum standards (including foundational principles and more technical criteria) for FMTs providing trauma and surgical care in the first month following a SOD.³⁶ The minimum standards also set out benchmarks that international teams should meet to provide more standardized services.

Similar to one of the key aims of the more generally applicable IDRL guidelines, the minimum standards are intended to enable states in need of international medical assistance to choose the most appropriate and effective services offered, and to be better able to regulate such services once operating in their territory. For FMTs, adherence to the minimum standards, including classification and registration, may potentially facilitate greater access to donor funding, a greater chance of being approved for deployment by the affected state, and greater access to support services once in country.³⁵ Although still in their infancy, the minimum standards were tested during the response to Typhoon Haiyan in 2013, when the Philippines government chose to adopt the new classification and registration form.³⁷ The results of the new system in that context appear to be somewhat mixed. The classification system reportedly facilitated a more efficient and appropriate deployment of FMTs, while helping to ensure a “coordinated, timely, and credible response to the disaster.”³⁷ This being said, just under half of all FMTs responding to Typhoon Haiyan were not registered under the new system.³⁸ If the registration process is to fulfill its full potential, greater numbers of FMTs will need to take part.

Licensing of Medical Personnel

The licensing of international medical personnel in a situation of disaster is a matter regulated by domestic law.⁴⁰ States are under no international obligation to waive domestic licensing requirements for international personnel in such situations. The IDRL guidelines recommend the establishment of expedited procedures for temporary recognition of professional qualifications of foreign medical personnel, as well as other relevant professionals, such as engineers.⁴¹ However, expedited procedures should not come at the expense of quality in response (as emphasized by the IDRL guidelines). For example, following Typhoon Haiyan, the Government of the Philippines waived requirements related to the existing licensing process for foreign professionals (including medical personnel) to facilitate their quick entry and deployment to the affected zones[10]. While positive in this sense, it was also reported that the waiver and an accompanying relaxation of visa and immigration regulations may have allowed for an influx of medical teams not registered under the new FMT system.⁴²

Consent to Medical Treatment

The requirement of a medical practitioner to obtain the informed consent of the patient prior to carrying out any medical intervention or conducting medical research or clinical trials is enshrined in modern medical ethics,⁴³ and forms part of the domestic law in many countries.⁴⁴ In such jurisdictions, carrying out procedures or conducting research on patients in the absence of informed consent can lead to criminal charges being laid against the practitioner, as well as those related to professional negligence. The organization responsible for the practitioner may also find itself liable for such actions. Relevant domestic laws may make some exceptions to the need to obtain informed consent, such as for patients who are incapacitated, those suffering from communicable diseases (CDs), and those who have a mental illness.⁴⁵ While not all countries recognize informed consent as a legal right, it is a principle subject to increasing international acceptance. However, it may carry significant difficulties in application.⁴⁶

The World Medical Association recognizes that a key condition for obtaining informed consent is good communication between the medical professional and his or her patient, and that major obstacles to such communication can be language and culture[11]. This may be particularly apparent in the contexts in which FFHs operate. In such situations, it is vital that every effort is made to ensure patients are fully aware of the reasons for and possible ramifications of any proposed treatment. This may involve engaging an interpreter and ensuring consent forms are translated into the appropriate language. In terms of culture, practitioners should be aware of any specific requirements regarding family or community involvement in the consent process. In all situations, it will be preferable for consent to be communicated in writing (applicable domestic laws may require written consent).⁴⁷ The WHO Classification and Minimum Standards for Foreign Medical Teams in Sudden Onset Disasters sets out in its guiding principles that all informed consent for medical procedures should be obtained in a language and culturally appropriate fashion[12].