KYIV, UKRAINE - Feb. 25, 2022: War of Russia against Ukraine. A residential building damaged by an enemy aircraft in the Ukrainian capital Kyiv.

Misplaced Skepticism on Accountability for War Crimes Against Health Care in Ukraine

By Leonard Rubenstein

Russian attacks on hospitals, ambulances, and health workers in Ukraine — including more than 180 attacks confirmed by the World Health Organization, and double that number reported by the Ministry of Health — have gained global attention. In one case, viral photos document the evacuation of pregnant women, including one on a stretcher who later died, from a maternity hospital in Mariupol destroyed by Russian shelling. It is likely that investigations will show that many of these acts are war crimes. Accountability for these crimes must be pursued.

Investigations and prosecutions of attacks on health care in war are well past due. The requirement under international law that combatants respect and protect hospitals, ambulances, and medical providers, along with an obligation to collect and care for the wounded and sick, dates back 150 years, as the very first protection for non-combatants enshrined in the Geneva Conventions. Yet ever since the law has been flouted even as humanitarian law protections for health care expanded over the decades. In recent years, sustained and devastating attacks on hospitals and health workers destroyed or severely compromised health systems in Libya, Myanmar, Syria, and elsewhere. These attacks, moreover, inflict enormous and long-lasting harms on populations, as they limit the ability to provide care for traumatic injuries, undermine chronic care and vaccinations well beyond the time of the attack, and often force massive displacement. But such war crimes have not been subject to international prosecution since the war in Bosnia more than a quarter century ago.

Yet media discussions of potential prosecutions for these recent war crimes in Ukraine, informed by conversations with international lawyers, reflect skepticism about the likelihood, or even the possibility, of prosecutions of attacks on hospitals and health workers. The New Republic, for example, suggested that prosecutions for Russian attacks on hospitals could be stymied because of the difficulty of proving intent. It told readers that the prosecution must prove that the attacker intentionally targeted what it knew to be a medical facility, which can be extraordinarily difficult. The Washington Post reported that Russian forces’ attacks on civilians in cities might be relieved of responsibility for destroying houses and killing civilians because Ukrainian fighters in urban areas put civilians “in the crosshairs.” It added that the presence of defenders makes them “potential targets for Russian forces trying to take out Ukrainian defenses” and might excuse Russian conduct.

Such reporting fails to appreciate how the law has evolved to address these very concerns.

Circumstantial evidence, including through evidence of patterns of conduct (in this case, including the fact that hundreds of hospitals have been hit), can support proof of intent. And even in the absence of evidence that a hospital was specifically targeted, it is a crime to target the civilian areas where the hospitals are located.

The Post account is also incorrect in viewing harm to civilians and hospitals as possibly acceptable by virtue of being in an area with legitimate military targets. That view was invoked to justify the killing of millions of civilians in strategic bombing in Germany, Japan, Korea, and Vietnam. Almost 50 years ago, however, the Geneva Conventions were amended to reject this rationale. The Post acknowledges in passing that the revisions, called Additional Protocols, prohibit attacks on military targets that disproportionately harm civilians, and attacks that fail to distinguish civilian and military objects.

The Post’s discussion, however, omits an equally critical protection within the Additional Protocols — the strict requirement that combatants take precautions to avoid, or at least minimize, harms to civilians, even if the target is a military one. Failure to do so can be a war crime. Additionally, warnings must be given before attacking a hospital or other civilian object even if it being used in part for military purposes.

A UN expert committee responsible for reviewing conduct in the Saudi-led coalition’s war in Yemen underlined this point. It noted that the many instances where combatants failed to distinguish military and civilian objects and used weapons that cannot be limited to military targets, can be war crimes, “regardless of whether there was a military objective in the area.

These rules have become so well accepted that they represent customary international humanitarian law, binding on combatants regardless of ratification of the Additional Protocols. Russia’s conduct to date suggests not the slightly effort to adhere to these requirements.

Other skeptics of prosecution have gone even further, questioning whether Vladimir Putin could ever be held accountable for war crimes in Ukraine. Needless to say, he would have to be apprehended, which could take years, or even decades, to accomplish. But the Economist went even further, claiming there would need to be proof that “Putin personally ordered his forces to bomb hospitals or schools.” In fact, holding commanders responsible for war crimes requires only that they knew or should have known that forces were committing or about to commit such crimes, and failed to take reasonable measures to prevent them or initiate a proper investigation.

Finally, some question whether war crimes prosecutions in Ukraine have any value. In a weekly essay at the beginning of his popular Saturday morning show on National Public Radio, Scott Simon argued that the pursuit of justice would not prevent the assaults Ukrainians are suffering every day. He ended by giving voice to Michael Ignatieff, the former director of the Carr Center for Human Rights at the Harvard Kennedy School, who contended that “just investigating war crime” amounts to nothing more than a “gesture” or “virtue signaling,” urging instead military support for Ukraine, as though the two objectives are mutually exclusive.

Both Simon and Ignatieff entirely ignored the importance of justice for the victims and the reinforcement of norms of acceptable conduct in war. From Nuremberg, to the war crimes and genocide convictions of the Bosnian Serb commander General Ratko Mladić for his role in the Srebrenica massacre, to the successful prosecution of former Liberian president Charles Taylor for war crimes and crimes against humanity, post-war prosecutions have served justice and vindicated norms.

These sentiments about the value of post-war prosecutions were repeated by Roger Cohen in a recent episode of the New York Times’ The Daily. Cohen, who covered the war in former Yugoslavia for the Times, acknowledged, of course, that war crimes prosecutions are complex and arduous, made more so by often years or decades-long delays in apprehending the accused. The institutions of international justice, he said, are “imperfect. They’re cumbersome. But what’s the alternative? Those bodies lying in Bucha, they had families, right?” The same goes for the health workers assaulted while trying to save lives, and the patients who could not live because care was undermined by violence against them and their caregivers. Attacks on them can be prosecuted as war crimes and must be.

Leonard Rubenstein is a Professor of the Practice at the Johns Hopkins Bloomberg School of Public Health and author of Perilous Medicine: The Struggle to Protect Health Care from the Violence of War (Columbia University Press 2021).

The author thanks David Tolbert for his helpful comments on an earlier version of this commentary.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.