IHL and Our Response to Humanitarian Needs: A Commonwealth Perspective: Joint Pledge on Respecting and Protecting Health Care in Armed Conflict or Other Emergencies

Diwaka Prakash, Assistant Director, International Legal Branch, Department of Foreign Affairs and Trade Diwaka.prakash@dfat.gov.au
AIRCDRE Chris Hanna, Director General, ADF Legal Services, Department of Defence chris.hanna@defence.gov.au


Australia is pleased to be a “key diplomatic partner” of the Health Care in Danger Project. Australia provided $27.5 million to ICRC in core unearmarked funding (2016-17) to be used in ICRC operations globally as allocated by ICRC. This core funding includes up to 15 per cent for the ICRC Headquarters Appeal, which includes work to continue to institutionalize the goals of the Health Care in Danger project and ensure that these remain on the agenda of the Movement and the wider international community.


Australia hosted and co-chaired (with the ICRC) a global workshop of government military experts in Sydney in December 2013. The workshop brought together 27 representatives of State armed forces and international organisations to discuss practical measures to help ensure that civilian and military wounded and sick have safe access to effective and impartial health care during armed conflict and other situations of violence. We also attended the Expert Workshop on Domestic Normative Frameworks in January 2014 and contributed $1.5million to help facilitate project activities (2012-13).


Australia co-sponsored UN Security Council Resolution 2286 on “The Protection of Civilians in Armed Conflict”, adopted by the Security Council on 3 May 2016. While not part of the health care in danger process, this was an important reaffirmation by the international community of the obligation to ensure respect and protection for medical and humanitarian personnel; and that intentional attacks against medical personnel and hospitals, provided that they are not military objectives, are war crimes.


Further information, contained in Australia’s report on Resolution 4, is below:

  1. i) What legislative, regulatory and practical measures have you put in place and implemented domestically to ensure the protection of the wounded and sick, health-care personnel and facilities, medical transport, as well as their identification (including through the distinctive emblems) ?


The Geneva Conventions Act 1957 (Cth) remains in force. This Act penalises the misuse of the Red Cross and other associated emblems, in order to maintain their integrity for the identification and protection of healthcare personnel and facilities.


The Australian Government also provides financial support to the Australian Red Cross through the Grants to Australian Organisations Program to assist it in monitoring the use of the Red Cross emblem, and conducting public awareness campaigns that raise community awareness about the correct use of the emblem.


Australian Defence Force (ADF) Health doctrine sets out the obligation to care for the wounded and sick in accordance with Geneva Convention requirements.


ADF International Humanitarian Law (IHL) doctrine sets out obligations with respect to the protection of health care personnel and facilities, including the use of the distinctive emblems. .


The Commonwealth Criminal Code Division 268.65 makes in an offence to use medical personnel has human shields (a person intends to use medical personnel to render a military objective immune from attack, or to shield, favour or impede military operations)


The Commonwealth Criminal Code Division 268.66 (which applies in international armed conflict) and Division 268.78 (which applies in non-international armed conflict) makes it an offence to attack a person, building, medical unit or transport or other object which is using, in conformity with the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions.


  1. ii) What about the measures to ensure the violations of international law related to the protection of health-care delivery are effectively sanctioned? Which ministry, government agency, legislative or regulator organ has been responsible for implementing these measures?


The ability to prosecute violations of the war crimes set out above.


This could be done through the military chain of command, in which case a prosecution would be brought by the statutorily independent Director of Military Prosecutions, of by a civilian, by the Commonwealth Director of Public Prosecutions.


  1. What concrete actions have you conducted to collect and analyze data related to violence against the wounded and sick, health care personnel and facilities, and medical transport? How did you use this information to develop practical measures to address such violence?


Operational reporting and analysis covers a wide range of data including that described above. These types of incidents receive heightened scrutiny. Operational planning takes into account all available information, and if it was considered necessary practical measures would be put in place to address such violence.


3i) What actions has your government undertaken to enhance the understanding by health care personnel of their rights and responsibilities resulting from applicable law?


The Australian Government has provided support through the Grants to Australian Organisations Program to the ARC to support the ARC’s work in disseminating international humanitarian law, including as it relates to health care. In the 2015/16 financial year the Australian Government’s financial support assisted the ARC to deliver a customised international humanitarian law course tailored for medical students and professionals, as well as presentations at two medical student conferences, and as part of the Monash Master of Public Health program.


The ADF conducts regular and continuous training of all its personnel, including health care personnel or their rights and responsibilities under IHL. These are also incorporated into exercises.


  1. ii) What specific measures has your government taken to ensure that health care personnel can safely fulfil their medical duties in line with their professional code of ethics?


The force protection and logistical support to health care personnel is taken into account in operational planning.


  1. How have you been cooperating across various Ministries of Government, and with other relevant stakeholders, including the Red Cross Red Crescent Societies, health-care professional associates and civil society, in your country to increase the safety of provision of and access to health care?


As described above, the Australian Government supports the ARC through the Grants to Australian Organisations Program to conduct activities that disseminate international humanitarian law principles, including as it relates to health care.


  1. How do you ensure that the protection of the wounded and sick and healthcare services is integrated into training, doctrine and operational orders and procedures for your armed and security forces whether at the national level or in the context or international operations they are contributing to?


Please see our responses to questions above.