Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward.

Despite the long-standing and widespread norm to the contrary, intentional attacks against medical facilities and their personnel in conflicts around the world have increased over the past decade. In Sudan, for example, the government army was accused of deliberately bombing hospitals—including one of the few remaining hospitals in rebel-held territory during the civil war—and schools. In Central African Republic, over 40 medical facilities operated by Médicines Sans Frontièrs (MSF) were intentionally attacked in 2017, and the attacks continued into the following year. Perhaps nowhere have attacks been more rampant than in Syria, where over the course of the ten-year conflict, at least 923 medical workers have been killed in at least 595 documented attacks on medical facilities. Such deliberate attacks contribute to the “humanitarian catastrophe” that Beth Van Schaack describes befalling Syria in her recent and powerful book, Imagining Justice for Syria.

These attacks pose major challenges to the operation of Humanitarian Notification Systems (HNSs), which were set up in various conflicts to share information with warring parties about the locations and movements of both humanitarian sites and workers. These systems are rooted in the assumption that the warring parties will use the information they receive to assist in complying with their duty not to attack humanitarians. We identify a number of challenges such deliberate targeting poses for HNSs—including issues concerning the systems’ purposes, list distribution, and vetting of humanitarian entities. Ultimately, we believe that improvement in the operation of HNSs is possible, but it will require collaborative engagement of humanitarians, international organizations, policymakers, and military leaders, as well as a willingness to re-examine long-held assumptions about how to safeguard humanitarians in times of war.

The Protection of Medical Facilities Under International Humanitarian Law

The protection of medical workers and their facilities is one of the oldest principles of the law of war. It dates back to the first Hague Regulations of 1899 and serves as a bedrock for modern international humanitarian law (IHL). Its purpose was then, as it is now, to protect field medics who care for the wounded and pose no immediate tactical threat. The immunity of medical workers also reflects the belief that medical care preserves dignity in death and suffering, regardless of which side a person fights on. Under modern law, it is a war crime to deliberately target or recklessly strike or attack medical workers and identifiable medical facilities in wartime.

Notwithstanding this clear-cut norm, as mentioned above, attacks on medical personnel and facilities have been rampant. Former U.N. Secretary-General Ban Ki-Moon decried the rising number of attacks in a U.N. Security Council meeting in May 2016. Speaking alongside him, former MSF President Joanne Liu fittingly referred to the situation as “an epidemic of attacks.”

There are different theories for why warring parties attack medical facilities and their personnel. Scholars have pointed to a broader wartime strategy of punishing civilians for their presumed political affiliations, dissuading medical workers and humanitarians from treating perceived enemies, ridding territory held by opposing forces of civilian infrastructure, or depriving civilians of the means to survive, thereby forcing them to flee or accept that party’s dominance.

Humanitarian Notification Systems  

To help warring parties avoid striking medical facilities and their personnel, humanitarian notification systems emerged from military deconfliction processes to notify warring parties of humanitarian “locations, activities, movements, and personnel.” With use dating back to at least the early 2000s, HNSs are now deployed in various conflicts to provide warring parties with necessary data of medical facilities and their personnel, often in the form of GPS coordinates. Participation in the system is voluntary on the part of both warring parties and humanitarians, however, and critically, the systems do not guarantee humanitarian protection.

There are varying models of HNSs administered by different entities. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA), for example, runs centralized humanitarian notification systems in both Yemen and Syria, collecting fixed location and movement coordinates from humanitarian entities and disseminating them to some participating parties. In Yemen, recipients include the Saudi-led coalition; in Syria, they include the United States, Turkey, and Russia (though Russia recently backed out of the system). Importantly, OCHA does not verify the site submissions—including whether or not a site is indeed humanitarian and therefore protected under IHL. Instead, vetting a site’s status is the responsibility of warring parties, who are responsible for their own IHL compliance.

Beyond OCHA, several other entities also run HNSs. These include States, which rely on national humanitarian agencies to collect location data from humanitarian sites and disseminate it to the armed forces of that State, as well as often allied States operating in the area. Humanitarian groups such as the International Committee for the Red Cross (ICRC) and MSF also operate their own HNSs. In these ad-hoc systems, the ICRC and MSF work directly with warring groups in areas where they operate. The ICRC and MSF notify the warring groups of their humanitarian activities with a view towards ensuring protection. These systems often involve face-to-face meetings and can include non-State actors.

The Challenges Posed to Humanitarian Notification Systems

The increase in deliberate attacks against medical facilities over the past decade presents significant challenges to HNSs. HNSs are only as effective as the warring parties’ willingness to comply with IHL. Without compliance, HNSs are ineffective at best; at worst, they provide target lists for parties intent on attacking medical sites and personnel. This phenomenon demands a full understanding of the challenges posed by the rise in intentional attacks. We have identified a non-exhaustive list of these challenges below and grouped them into three categories: definition of purpose, list distribution, and humanitarian entity vetting.

Problem Area One: What Are the Purposes of an HNS?

The first set of challenges concerns whether the purpose of HNSs should change depending on a warring party’s (un)willingness to comply with IHL. In Syria, for example, the purpose of OCHA’s notification system as publicly stated is to “mitigate the risks, to the extent possible, of [humanitarian entities] being targeted / hit by an air strike.” But the persistence of strikes on humanitarian sites like hospitals—despite OCHA’s implementation of its HNS—highlights questions about the intended purpose. What functions should an HNS serve in the face of a warring party’s disregard for the law? And how could an HNS be redesigned to better advance those functions?

Protection of Humanitarian Entities?

A traditional view—reflected in OCHA’s system in Syria—is that HNS serves to enhance the protection of humanitarian entities. If this is the purpose, one possible change in HNS operation could be to exclude any party that intentionally targets medical facilities from access to the disseminated list. Or the exact location of humanitarian sites could be obscured in some way to protect them from attack. Other changes could involve using HNS information to discourage warring parties from attacking humanitarian sites by increasing the cost for such actions; for example, HNS information could be used to increase diplomatic pressure or exert public condemnation (“naming and shaming”).

Accountability?

Yet if warring factions repeatedly intentionally target humanitarian entities, it is far from clear how HNS can possibly hope to achieve the goal of protection, given that the legal obligation lies with the parties themselves. In such circumstances, HNS could prioritize accountability rather than protection as its purpose. Enhancing accountability would focus on data tracking and storage. This includes, for example, systematic tracking and storage of confirmation that warring parties received the coordinate lists of protected locations. Such evidence could be used to counter potential claims that a given attack was inadvertent. Admittedly, it is not clear what accountability would actually mean in this context of HNS. One view of accountability contemplates formal judicial proceedings, which would take place months, if not years, after the strikes occurred. Another view is that accountability could happen in real time in the form of naming and shaming.

We must also consider possible implications for humanitarian neutrality, a key principle requiring humanitarians to avoid favoring any side in an armed conflict. If an HNS were to be used to attribute a strike to a specific party, would this undermine the neutrality of the organization administering the list? Would humanitarian organizations be hesitant to participate in a notification system that could be used in a manner that calls out warring parties’ responsibility for IHL violations? And would warring parties refuse to participate in an HNS if they feared that it would be used in this way?

Problem Area Two: Who Gets the List?

The second set of challenges involves the distribution of protected location lists to warring parties if some are suspected of violations. Regardless of the purpose of an HNS, distribution to a party that subsequently intentionally targets hospitals can undermine the system’s functionality. Such distribution could sow distrust among humanitarians in the system. In worst case scenarios, it may lead to humanitarians opting out of the system altogether.

The first issue within this set of challenges is how non-compliance is defined. Is it only when a party commits intentional strikes against humanitarian entities? And if so, how would the intention of a warring party be determined? Must multiple strikes occur before a warring party is considered “non-compliant”? Could a party gain re-entry? These parameters would need to be worked out, likely by the list administrator, its participants, and/or an international body that could set guidelines for HNSs.

A closely connected issue is who decides whether a party is non-compliant. One option would entail leaving it in the hands of the list-controller, the entity that collects and disseminates the information. However, this option could impinge the list controller’s perceived or actual neutrality. This encroachment on neutrality—perceived or otherwise—risks sowing distrust among participants, causing some to decline participation. Instead, one could envision an independent review body in which a diverse set of experts receive evidence of strikes and make determinations of non-compliance. Another option would be to empower the humanitarians to make this decision themselves. If they receive reports that a particular entity is targeting hospitals, they could opt out of sending their coordinates to that specific entity. Perceived and actual biases, information access, and scope of mandates are relevant concerns with respect to all of these options.

A final, broader issue under this set of challenges connects back to the first problem area. If non-compliant members are removed from the system, does that contradict the very purpose of HNS?

Problem Area Three: Should Sites Be Vetted?

Under IHL, a humanitarian site is no longer protected when it is used to commit an act harmful to an enemy—such as serving as a weapons storage facility or a hideout for an armed group. Assertions that a humanitarian site is being used for hostile purposes is often presented as justification for attacks against it. Both Russia and Syria, for instance, have invoked this reasoning numerous times in response to allegations of war crimes.

To prevent misuse of humanitarian sites, and to refute false claims of such misuse, should list administrators vet humanitarian entities before including them in a notification system? Doing so could help refute false allegations, but it raises concerns because legal responsibility for IHL compliance—including confirmation a purportedly humanitarian entity is a legitimate target—is the responsibility of warring parties, not list administrators. Those involved in administering the lists, such as OCHA, might also credibly contend that they lack the resources and intelligence tools that would enable them to vet proposed humanitarian sites, much less conduct continual re-assessment as conditions on the battlefield change.

There are also concerns about the decision-making process. As with the issues raised in the previous problem area, what standards would be used to vet humanitarian entities? Who would decide whether or not an entity is in compliance? How frequently must these determinations be made, given the near-constant changing nature of conflict settings?

Next Steps: Addressing These Challenges

These challenges are serious but not insoluble. Addressing them will require creative, collaborative thinking, and willingness to rethink the design of HNS processes in situations where warring parties do not comply with IHL. Making progress will require bringing together stakeholders from different HNSs—including humanitarians, international organizations, policymakers, and military leaders—whose varying perspectives and interests can present solutions, along with buy-in to those solutions.

There is a cure to the epidemic of intentional attacks against healthcare facilities. But it will require collaboration and a willingness to question long-held assumptions about how to safeguard humanitarians in times of war.

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Allen S. Weiner is Senior Lecturer in Law and Director of the Program in International and Comparative Law at Stanford Law School and serves as Director of the Stanford Center on International Conflict and Negotiation.

Bailey Ulbricht is a second-year law student at Stanford Law School, where she focuses on international humanitarian law, human rights law, and U.S. foreign policy.

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Other Posts in the Symposium

• Beth Van Schaack’s Imagining Justice for Syria by Winston Williams
• Battlefield Detention, Counterterrorism, and Future Conflicts by Dan E. Stigall
• Strengthening Atrocity Cases with Digital Open Source Investigations by Alexa Koenig & Lindsay Freeman
• The Security Council Veto in Syria: Imagining a Way Out of Deadlock by Philippa Webb
• Universal Jurisdiction Investigations and Prosecutions: Syria by Alexandra Lily Kather

See also Beth Van Schaack’s book, Imagining Justice for Syria and her earlier Articles of War post with the same title.