Yale Symposium on Holocaust and Genocide: Heinrich

Transcript

• 00:06I want to introduce our next speaker please.
• 00:08And our next speaker is Andrew Heinrich.
• 00:12And Andrew is actually a mutual friend
• 00:15of of Jacob Lindenthal and mine.
• 00:18So Jacob said if you're doing something
• 00:19like this you should really speak to Andrew.
• 00:21And I spoke to Andrew before we did
• 00:23this the first time and he helped me
• 00:25organize some things and find some
• 00:27superb speakers last year and this year.
• 00:29And so we kind of plan a lot of this
• 00:31stuff together and you're currently
• 00:33works for the federal government.
• 00:35And so before we say anything else,
• 00:36you have to say that.
• 00:37Opinions are not necessarily those.
• 00:38Is there something I'm supposed to say?
• 00:40The views expressed are his own and do not
• 00:42reflect the views of the US government.
• 00:44So, Andrew, you just to be clear,
• 00:45you do not speak for the
• 00:46United States government
• 00:47here. All right, we got that. OK. I'm Andrew
• 00:50as a as a remarkably Andrew Heinrich JD,
• 00:53a Master of philosophy.
• 00:56Is currently the special policy and Projects
• 00:58Coordinator at the office of Senator
• 01:00Robert Menendez and he's the founder
• 01:02of something called Project Rousseau.
• 01:04And this is a US based charity that
• 01:06empowers youth and communities with the
• 01:08greatest need to reach their full potential
• 01:10and pursue and excel in higher education.
• 01:12Since then, he's gone on to expand his
• 01:15portfolio with an emphasis on improving
• 01:16the lives of others in the greatest need,
• 01:18focusing on refugees,
• 01:20Native Americans and homeless youth.
• 01:23Andrews areas of research include
• 01:25post conflict reconstruction,
• 01:27public international law
• 01:28and regulatory affairs.
• 01:30His work has been published
• 01:31by Oxford University of Press,
• 01:32Foreign Affairs and the New England
• 01:34Journal of Medicine, among others.
• 01:36Andrew received his JD from Harvard Law
• 01:38School in his M Phil and international
• 01:41relationships at the University of Oxford,
• 01:43and his bachelor's degree is from
• 01:46my alma mater, Columbia University.
• 01:49It's a pleasure to have you here, Andrew.
• 01:51The our symposium, as you've seen,
• 01:54as you saw from the agenda,
• 01:55we want to address issues related to
• 01:57physicians in the Holocaust of the Nazi era.
• 01:59But of course we we look beyond that as well.
• 02:02And so Andrew's talk is entitled
• 02:04healthcare professionals in conflict
• 02:06zones and humanitarian emergencies.
• 02:08Welcome, Andrew Heineman.
• 02:11Thank you mark.
• 02:12Such a pleasure to be here.
• 02:14You do a phenomenal job with this
• 02:16every year and so fortunate to call
• 02:18you a friend and and colleague.
• 02:20Thank you also to Karen.
• 02:22I think we all need to Karen in our lives.
• 02:24Karen has been an amazing organizer
• 02:25of this and and has put up with my
• 02:28frenetic emails and I'm sure many others.
• 02:30So many Many thanks to her as well.
• 02:32Thanks to Ruth for joining us.
• 02:34A good friend of mine for over a decade
• 02:36now who I know taught me so much.
• 02:38The stopper Steiner was something
• 02:40I learned about through personal.
• 02:41Narrative first with my own family,
• 02:43so it's been great to learn about
• 02:44it from a scholarly perspective.
• 02:46You already heard the views of my own,
• 02:47so I don't have to repeat it,
• 02:49but I just did.
• 02:50And those are informed by the
• 02:52amazing Teaching, scholarship,
• 02:54mentorship of so many people,
• 02:56but especially Gabby Bloom and Ben Saul,
• 02:59who have really shaped my
• 03:01thinking in this space.
• 03:02Medical ethics during times of war
• 03:05are approximately 200 years in the
• 03:07making in their formal existence,
• 03:09though, as we'll talk about,
• 03:10they have informal routes
• 03:12that go back much further.
• 03:14I think it's important to look at
• 03:15some of the earliest antecedents to
• 03:17what we have today to understand the
• 03:19evolution to where we stand currently
• 03:20with what's on paper currently,
• 03:22what's normatively accepted currently,
• 03:25but also to ask ourselves some
• 03:27of the questions about what's
• 03:28changed since and how maybe current
• 03:30realities might pose questions to.
• 03:32Health care providers that are more
• 03:34difficult than some of our existing
• 03:37frameworks suggest they might be.
• 03:39And I think that the Second World
• 03:41War is a very obvious inflection
• 03:43point that existed at for codifying
• 03:46in international humanitarian law,
• 03:48as we call it today.
• 03:50But it's possible that we could argue
• 03:53that both 911 and what Caldor likes
• 03:56called the emergence of new wars,
• 03:58wars that are fought very
• 04:00differently than one army,
• 04:01lines up on one side,
• 04:02the other lines up on the other
• 04:03side of the battlefield.
• 04:04They run at each other and instead
• 04:06we have wars fought in cities,
• 04:08Wars fought in densely populated areas,
• 04:10wars fought with folks who might not be
• 04:13in formal militaries where we have to
• 04:15problematize a lot of the question or
• 04:17a lot of the norms that we've come to accept.
• 04:20So I'll proceed in four parts,
• 04:22and 1st I want to run us through some of
• 04:25the history of international mandarins,
• 04:27laws,
• 04:28antecedents,
• 04:28and how some of the questions around law
• 04:32of war and medical ethics during war.
• 04:35Evolved from,
• 04:35let's call it the earliest times
• 04:37of recorded history through
• 04:39the middle of the 19th century.
• 04:41Then I'll talk a little bit about some
• 04:43of the inflection points in the 19th century.
• 04:45I'll bring a secondly towards
• 04:47World War Two itself,
• 04:49running through some of the ways
• 04:51in which the progress that had
• 04:53been made in the 19th century
• 04:54regressed significantly
• 04:55and what that prompted the
• 04:57international community to do,
• 04:58namely the Geneva Conventions.
• 05:013rd I want to discuss about some of the
• 05:06conventions themselves and the way that I,
• 05:08HL, formed in medical ethics formed as a
• 05:11body right after World War Two, which is.
• 05:13Functionally the latest and most
• 05:15recent normative framework we have,
• 05:17on paper at least. And then finally,
• 05:20I'll pose those contemporary questions,
• 05:22questions that might be practical for some
• 05:24of you in the room as healthcare providers,
• 05:26about ways that the post 9/11 world,
• 05:30the way that new wars are
• 05:32challenging some of those doctrines.
• 05:34Some of those norms.
• 05:34And the way that we might think about
• 05:36some of the things that are currently
• 05:38both normally normatively accepted
• 05:40in our international community,
• 05:42such as counterterrorism law and
• 05:45international Unitarian law,
• 05:47and how they conflict and how we
• 05:49may or may not want to. Resolve it.
• 05:51So first a little bit on the
• 05:53origins of the idea of law of war.
• 05:55And you know I think that war as we know
• 05:59since the beginning of human history has
• 06:01largely until recently been indiscriminate.
• 06:03It was a very much you know as many
• 06:06thinkers of nationalism would tell you
• 06:07in the 19th and 20th century it was
• 06:10very much an US against the other concept.
• 06:12So anyone on the other side was an other,
• 06:14be it a civilian or non civilian.
• 06:15The idea of of of distinction meaning
• 06:18you distinguish between a civilian
• 06:20and a combatant.
• 06:21There's not really done.
• 06:23But there were areas of law,
• 06:27of religious teaching where that's
• 06:29where you see some of the the
• 06:31bubbling up of antecedents of today's
• 06:34international humanitarian law,
• 06:35the Mahabharata says.
• 06:36And I I love how it's framed.
• 06:40One should not assail someone in distress,
• 06:42neither to scare him nor to defeat him.
• 06:45We should be war should be
• 06:47waged for the sake of conquest.
• 06:49One should not be enraged toward an enemy.
• 06:52Who is trying to kill him?
• 06:53I think you see early principles against
• 06:56torture in that perhaps you might
• 06:58see other early principles against.
• 07:00If you think of when they're,
• 07:02they're probably using the concept of the
• 07:04term enemy as the broader concept of enemy,
• 07:06because distinction hadn't occurred yet.
• 07:08So they're probably thinking a little
• 07:10bit about non combatants as well.
• 07:12And we can look to Torah.
• 07:14Deuteronomy 2019 tells us that when
• 07:17you besiege a city for a long time,
• 07:20making a war against it in order
• 07:22to take it you.
• 07:23Shall not destroy its trees by
• 07:26wielding an axe against them,
• 07:28and many an Amtrak ride can be spent
• 07:31looking at Talmudic scriptures and
• 07:33trying to help figure this out.
• 07:36And what you learn is that there's
• 07:38there's an early belief in the
• 07:40protection of civilians in this piece,
• 07:43the idea that Egyptians would cut
• 07:45down trees of their enemies as
• 07:46a way to starve civilians,
• 07:48trees perhaps more broadly, meaning crops.
• 07:51And so Deuteronomy is instructing
• 07:53those who follow it.
• 07:54To not damage the livelihood of civilians,
• 07:57not to ravage a city,
• 07:58but instead to siege it,
• 07:59to take it for a strategic purpose.
• 08:01So you can see these early attempts
• 08:05at international humanitarian
• 08:07law as we might call it today.
• 08:09Come to the 19th century,
• 08:12we often say in a lot of areas
• 08:15of international law that we we
• 08:17innovated our way to destruction.
• 08:19You know, the the weapons of the
• 08:2119th century and then obviously
• 08:23those of the 20th century and
• 08:24beyond mean that the capacity for
• 08:27destruction got infinitely more
• 08:28industrialized and large scale.
• 08:30And so law and norms had
• 08:32to catch up with that.
• 08:35And I'll give just two brief
• 08:36pre World War Two examples.
• 08:38The first is the Lieber code.
• 08:40It's a very early example.
• 08:42It's from the Civil War,
• 08:43it's in the 1860s, the US Civil War,
• 08:45sorry to the international audience and
• 08:47it was promulgated unilaterally by the Union.
• 08:50So it is not multilateral in any way.
• 08:52No one else is agreeing to this.
• 08:53It's just a rule for Union soldiers
• 08:56and it's set forth certain rules.
• 08:58It protected medical personnel and protected.
• 09:01Non combatants.
• 09:02So we have distinction.
• 09:03And it gave the right to medical care,
• 09:05to prisoners of war.
• 09:06And perhaps this was because there
• 09:08was a realization that if the war
• 09:09resolved the way the Union wanted,
• 09:11which of course it did,
• 09:12these folks might be your fellow
• 09:14citizens if they survived the war.
• 09:16And that is an interesting step
• 09:19in that direction now almost
• 09:21simultaneously in Europe.
• 09:24You have the founding of the Red Cross,
• 09:25as you may know,
• 09:26in the 1860s,
• 09:27but also the first Geneva Convention.
• 09:30And the first Geneva Convention
• 09:31grew out of Alki DuMont,
• 09:33the founder of the Red Cross.
• 09:35Seeing the horrors of Napoleon.
• 09:38The third campaigns in Italy and saying
• 09:39that there are certain things that
• 09:41need to be done to protect civilians,
• 09:43to protect prisoners of war and crucially,
• 09:45crucially,
• 09:46to declare the neutrality of healthcare
• 09:49workers and healthcare facilities.
• 09:51The now seemingly simplistic but
• 09:53then perhaps revolutionary idea
• 09:56that if I participate in war
• 09:58by providing medical care to.
• 10:00Combatants on my side of the war.
• 10:03I am not myself a combatant,
• 10:05and I should be protected.
• 10:08Now many of these norms and these
• 10:10pre norms are those that we've
• 10:12said we've come to accept today.
• 10:14They're part of international
• 10:15humanitarian law,
• 10:16but of course we had quite a bit of
• 10:19backsliding in the Second World War.
• 10:21World War Two was the largest and
• 10:23deadliest war in human history in
• 10:25terms of absolute number of deaths.
• 10:27The battlefields were virtually
• 10:30international and in every continent,
• 10:33almost every continent,
• 10:34and and created an awareness that
• 10:36there were new institutions that
• 10:38were needed and new norms that were
• 10:40needed in order to uphold what is now
• 10:42known as international humanitarian law.
• 10:44Of course,
• 10:45we have many other areas of
• 10:46international law that grow
• 10:48out of the Second World War,
• 10:49like International Criminal law.
• 10:51As many of you may know,
• 10:53the term genocide only occurs
• 10:54or is first used in
• 10:56the Nuremberg trials.
• 10:57Uh and so we international
• 11:00humanitarian law is no exception.
• 11:02And I want to just start with one area
• 11:06of international Unitarian law from the
• 11:08first Geneva Convention from 1864 that
• 11:11I think we probably don't need to cite
• 11:13examples to show how egregiously it
• 11:15was violated in the Second World War.
• 11:17It states that wounded or sick combatants,
• 11:21and I quote to whatever
• 11:23nation they may belong,
• 11:24should be collected and cared for.
• 11:26I think we all know that didn't
• 11:28happen in the Second World War.
• 11:30And indeed you can look at pretty much any
• 11:32side of the conflict and know that that
• 11:34was not obeyed in the Second World War,
• 11:36but certainly on the part of the Axis.
• 11:39Many prisoners of war were deported
• 11:41to concentration camps and killed
• 11:43alongside victims of the Holocaust.
• 11:46They were often tortured.
• 11:47They were given no right to
• 11:49medical care whatsoever.
• 11:51Again, the Holocaust goes without saying
• 11:54as the greatest violation of every.
• 11:57Area of international law,
• 11:58particularly the fact that there
• 11:59was no distinction at all,
• 12:01but also civilian casualties on
• 12:02the other side of the conflict.
• 12:04The Tokyo fire bombings,
• 12:05of course,
• 12:06the nuclear bombs in Hiroshima and Nagasaki.
• 12:08And I always point to Hitchcock's
• 12:10book in this space on a bitter Rd.
• 12:12to freedom,
• 12:13knowing that the way that Europe
• 12:15was taken wasn't always respectful
• 12:18of civilian rights either.
• 12:20And.
• 12:21What I think is most striking,
• 12:23and I'll just dwell on it for a moment,
• 12:25with the Holocaust,
• 12:26was also the failure of some of
• 12:28the institutions that came out
• 12:29of the 19th century.
• 12:30I mentioned the Red Cross already,
• 12:32and I know there's a I think there should be.
• 12:35And there is rightfully much debate
• 12:37about the contribution of the Red
• 12:39Cross in the Second World War,
• 12:41particularly with respect to
• 12:42those in the concentration camps.
• 12:44I didn't know this before.
• 12:45I was preparing for this talk,
• 12:46but the ICRC,
• 12:48the International Commission
• 12:49on the Red Cross,
• 12:50is official statement on how
• 12:51they aided and proved that.
• 12:53Like an aid proved that they
• 12:55aided victims of the Holocaust,
• 12:57was that they sent food parcels to
• 12:59the concentration camps and they
• 13:00knew that they were working because,
• 13:02and I quote,
• 13:03the receipts were countersigned by
• 13:06the addresses provided by the access.
• 13:08I did not know that until I prepared
• 13:11for this and I I must say I found that
• 13:13quite alarming and and quite shocking.
• 13:19So what happened after the Second World War?
• 13:21There was a realization as the
• 13:23war across many institutions,
• 13:25that we needed a new normative structure
• 13:27and a new legal framework to protect
• 13:29the rights of those involved and to
• 13:32guide us into an into a new stage of war
• 13:35where war was increasingly mechanized,
• 13:37where we could protect civilians
• 13:39and protect noncombatants.
• 13:40And that's where the modern
• 13:42Geneva Conventions,
• 13:43the ones that are still the,
• 13:45you know, when someone refers
• 13:46to the Geneva Conventions today,
• 13:47these are what they're talking about,
• 13:49started to get promulgated.
• 13:50And I, I can go through a few of them,
• 13:53but I want to highlight some that I think
• 13:55we're going to problematize in just a few
• 13:57moments and we'll we'll focus on those.
• 13:59The first is that in the first
• 14:01Geneva Convention we focus on
• 14:02the wounded and the sick.
• 14:04And Article 3 says that persons
• 14:06taking no active part in the
• 14:09hostilities should be cared for
• 14:11no matter what functionally.
• 14:13And this is something that we will
• 14:15problematize because I'm going to ask
• 14:16you what does it mean to take part
• 14:18in hostilities in a in a little bit.
• 14:19And we'll see that maybe with new
• 14:21wars and with counter terrorism we
• 14:23might not know exactly what that means.
• 14:25And then the wounded insect shall
• 14:28be cared for also can.
• 14:32Expand in Article 13 to include
• 14:34a number of other categories,
• 14:37and that can be militias,
• 14:38that can be resistance movements,
• 14:40and that can even be volunteer corps
• 14:42who enter the the battlefield or
• 14:44areas tangential to the battlefield.
• 14:46Again, I think it's very important
• 14:48to remember that these were
• 14:49written with the kind of Napoleonic
• 14:51conception of the battlefield,
• 14:52that there's a field of grass,
• 14:53and that there are militaries
• 14:55lined up on either side.
• 14:56Article 14 of the of the first conceiving
• 14:59of Geneva Convention says that.
• 15:03All international law regarding
• 15:05prisoners of war must be applied to all
• 15:09prisoners taken in war who are combatants,
• 15:12including those who are wounded
• 15:13and sick of the other side,
• 15:14meaning that many would have
• 15:15a right to medical care.
• 15:19It upholds the idea of medical neutrality
• 15:22and so forth and and buildings
• 15:24you used to provide medical care.
• 15:27The third Geneva Convention is what
• 15:29protects the treatment of prisoner of wars,
• 15:31the prisoners of war, specifically it,
• 15:34you know, does things with respect to
• 15:37their their labor as as prisoners,
• 15:40other forms of release they have their
• 15:42entitlement to judicial proceedings.
• 15:44It also establishes that at the end of a war,
• 15:48prisoners of war must be released
• 15:50immediately and repatriated and that that
• 15:52both the repatriating prisoners of war,
• 15:54those going back to their home
• 15:56country and those helping them.
• 15:57Be repatriated are are neutral
• 16:00for the purposes of war.
• 16:04Now, this all feels probably
• 16:06very familiar to many of us,
• 16:09and indeed much of it feels aligned
• 16:12with medical biomedical ethics
• 16:15as they exist most broadly.
• 16:17But what I think we're about to do
• 16:19is see that some of these norms
• 16:21that are held up as if they're,
• 16:24you know, they cascaded,
• 16:25they're kind of universal now and.
• 16:27We might realize that some of them
• 16:29currently are being challenged in ways,
• 16:31some of which are very explicitly challenged.
• 16:33And we realize that many of which I think
• 16:36kind of had growth on the other side,
• 16:38meaning on the counterterrorism
• 16:40side in particular,
• 16:41that grew into a direction that maybe
• 16:42we didn't realize was happening.
• 16:44We being the kind of broad
• 16:46personified international community,
• 16:47didn't realize was going to run
• 16:49into conflict with DHL, but it has.
• 16:52And then a question about medical
• 16:54neutrality from the perspective of
• 16:56healthcare providers, by which I mean.
• 16:59What you all might think of as the duty
• 17:01of care to anyone who comes into your care,
• 17:04regardless of many
• 17:05identifying features of them.
• 17:08So I'd like to start first with
• 17:10the the wrench thrown in the IHL
• 17:13framework by IH by counter terrorism.
• 17:15After 911,
• 17:16the United Nations Security
• 17:19Council started to promulgate a
• 17:21series of resolutions that.
• 17:23Criminalize certain activities related
• 17:25to terrorism, and broadly speaking,
• 17:28they went in three directions,
• 17:31and they encouraged national
• 17:33legislation to criminalize terrorist
• 17:35activity in three directions.
• 17:371, which I will not address at all today,
• 17:39is pre and cohete offenses,
• 17:41meaning that if you go backwards
• 17:43from the actual terrorist act,
• 17:44that preparatory acts towards the
• 17:46terrorist act might itself be criminal.
• 17:49A second,
• 17:50which I will address tangentially,
• 17:52is criminalizing.
• 17:53Membership in terrorist organizations.
• 17:55Because we'll ask a little bit about
• 17:57what membership might mean and what
• 17:59that might mean for biomedical ethics.
• 18:01But third,
• 18:02there's this concept of of material support
• 18:05that is going to become very central here.
• 18:09So the UN Security Council starts
• 18:13with Resolution 1617 in 2005,
• 18:16and it says that any form of
• 18:19activity that supports at that
• 18:21point al Qaeda and a lot of these,
• 18:25the the terms of 1617 and the general
• 18:29counterterrorism regime expand about
• 18:31a decade later in response to ISIS
• 18:33or ISIL or the Islamic State,
• 18:35whatever you might call them,
• 18:37and.
• 18:38They.
• 18:38Criminalize under international law
• 18:42and encourage national legislation
• 18:45to be created to mirror this on the
• 18:48domestic levels that criminalize any form
• 18:51of assistance to a terrorist organization.
• 18:54Again initially Al Qaeda and then
• 18:56and then eventually broadened.
• 18:58And what it says and what it creates
• 19:02is a regime in which anything that,
• 19:06as the US law starts to call
• 19:08it material support,
• 19:09anything that that is material
• 19:11support for a terrorist organization
• 19:13would be considered criminal.
• 19:15And there have been cases that have focused
• 19:19precisely on the question of material
• 19:22source support in the form of medical care.
• 19:25And I focus on medical care
• 19:27rather than medicine because at
• 19:28least in the domestic U.S.
• 19:30law, there's a carve out that if
• 19:32you send medicine to a war zone that
• 19:35it might be terrorist controlled.
• 19:36The sending of medicine alone
• 19:39is not a material support,
• 19:41though there actually was such a case
• 19:44about someone who sent medicine bought.
• 19:46By someone else, the carve out is
• 19:48for the purchasing of the medicine,
• 19:49not necessarily for the transporting
• 19:50of it to the terrorist organization.
• 19:52That case,
• 19:53I believe is out of Scandinavia and I
• 19:55think Sweden specifically that that that
• 19:58asks that important question as well.
• 20:00There was a case in Peru in the 90s of a.
• 20:08Of of a member of the Proving
• 20:09Communist Party who was convicted
• 20:11under a similar statute before 9/11,
• 20:13of course because he provided medicines
• 20:15and medical instruments and care to those
• 20:18who the Peruvians consider to be terrorists.
• 20:21And more recently,
• 20:22and I think this is a phenomenal
• 20:24case from the US that we can use to
• 20:28problematize and and motivate some
• 20:30of our discussion is US versus severe.
• 20:34The the accused I should say at
• 20:37the outset were I,
• 20:39I believe,
• 20:39self stated,
• 20:40but certainly found to be in court
• 20:42to be jihadist in their ideology.
• 20:45But.
• 20:45The legal rationale of their
• 20:48conviction was purely done in
• 20:51the Senate under the logic that.
• 20:54Providing medical support to known jihadists.
• 20:57Medical care to known jihadists is material
• 21:00support of a terrorist organization.
• 21:03And the case.
• 21:04Is very narrow in that it thinks
• 21:07only of a member of the organization
• 21:10or a adherent of the organization.
• 21:13She had this ideology providing care
• 21:16to advance that ideology with that
• 21:18stated purpose to people who they know
• 21:21are actively engaging in activities
• 21:24of that jihadist organization
• 21:25with the goal of advancing that
• 21:28ideology and that their wounds came
• 21:30from those specific activities.
• 21:32So it's very narrowly written. Umm.
• 21:35What isn't addressed by the case?
• 21:39Is when if medical care were
• 21:43given to a perpetrator,
• 21:45let's say in a way that is
• 21:48compatible with medical ethics.
• 21:50So let's envision,
• 21:51heaven forbid,
• 21:52a terrorist attack in a place
• 21:54where most people who were victims
• 21:55might not be affiliated with the
• 21:58terrorist organization in any way.
• 21:59Say even it happened near a hospital
• 22:02in a country where some of you may
• 22:04work and the injured are brought
• 22:06to the hospital indiscriminately.
• 22:09Would it be criminal?
• 22:10Would it be,
• 22:10would it be material support
• 22:12of terrorism
• 22:13if you provided medical care to that person?
• 22:17I actually was thinking in this moment of,
• 22:18for example, those who care for
• 22:20and I I don't know their names,
• 22:23but those who conducted,
• 22:24I guess only one survived the the
• 22:27terrorist attacks at the Boston Marathon
• 22:29and I assume that person was wounded
• 22:31before that person was apprehended.
• 22:33I I don't know the exact story,
• 22:35but would caring for that person
• 22:37be material support of terrorism?
• 22:39In a way that's compatible.
• 22:40Now, there was no such prosecution.
• 22:42It's a hypothetical,
• 22:43but the way that the the precedent
• 22:46is set suggests that it would be.
• 22:49In fact, and I'll get to this a bit later,
• 22:51the US Supreme Court has has
• 22:52thought about this and has posited
• 22:54that that would be the case,
• 22:56particularly under international law,
• 22:57maybe more so than US domestic law,
• 23:00which is no less a problem for us,
• 23:02even if many of us are American,
• 23:03because of course it's the international
• 23:05norms that maybe contribute to U.S. law.
• 23:07That's a bigger debate, but certainly.
• 23:09Contribute to those around the world.
• 23:11So my question to you is,
• 23:13what is material support?
• 23:14What is material support of
• 23:16a terrorist organization?
• 23:18As I said,
• 23:19medicine itself is excluded as a
• 23:21matter of parenthetical statement.
• 23:23So are religious materials.
• 23:25So you could send religious
• 23:27materials as well,
• 23:27but you couldn't even provide expert advice.
• 23:31So I know that with the advent of
• 23:33zoom and other things that were
• 23:35how I lived my life for two years,
• 23:37and you probably all did too,
• 23:39that there are many consultations
• 23:41that occur via zoom.
• 23:43And so if a doctor in location
• 23:46X needs to seek the advice of
• 23:49a specialist in New Haven.
• 23:52And they have a zoom call and
• 23:54that specialist provides expert
• 23:56advice on how to handle.
• 23:58The whatever the case may be of the
• 24:01diagnosis of the patient, of the person,
• 24:04and of the foot doctor and location act.
• 24:07That would be material support
• 24:08under the Statute,
• 24:09under the US code, under U.S.
• 24:11Federal law.
• 24:12The question is, of course,
• 24:14prosecutorial discretion,
• 24:15would it be prosecuted in the US?
• 24:17But I think there's a more fundamental
• 24:19ethical question of do we want it to be?
• 24:22Is that a criminal activity in our eyes?
• 24:24Is that material support of terrorism,
• 24:26as you might define it?
• 24:28Is that in line with other
• 24:30biomedical ethical considerations
• 24:32that you all make in your work,
• 24:34in your clinical work, and in,
• 24:35in, in,
• 24:36day in and day out?
• 24:38I imagine there are people who many
• 24:39folks here have had to care for,
• 24:41and I'm sure if we had,
• 24:42we might have emergency medicine
• 24:44specialists in the room.
• 24:45But I bet you if we had more,
• 24:46I'm sure many may even have known that
• 24:48someone coming into their emergency room
• 24:50had just some done something egregious,
• 24:52maybe even done something that today
• 24:54might be called domestic terrorism,
• 24:56and that person was cared for.
• 24:58Is that what we want?
• 25:00Should medical care be treated differently
• 25:02than other forms of material support?
• 25:04If person A sends a wire of a large sum
• 25:07of money to a terrorist organization and
• 25:10person B provides expert consultations
• 25:12for folks who have been injured,
• 25:15are those the same?
• 25:16Are those do we want them to
• 25:18be treated the same?
• 25:19Do we normatively and ethically
• 25:20think they're the same?
• 25:22Now I think there's a counter
• 25:23argument to be had to show I'm not.
• 25:25Giving only one answer that maybe
• 25:27even medical that providing medical
• 25:29assistance isn't more egregious
• 25:30than just providing money.
• 25:32Because of course the health and
• 25:35ability to fight of the terrorists in a
• 25:38terrorist organization is the lifeblood
• 25:41by which they conduct terrorist activities.
• 25:44So perhaps it's even more
• 25:46essential than financial support.
• 25:48But I think it's a question
• 25:50that's worth asking.
• 25:52The idea that medical care
• 25:55being provided to an enemy,
• 25:58and specifically I say enemy.
• 26:00Is not profoundly new that
• 26:02it should be criminalized.
• 26:04The idea that it should be
• 26:05criminalized is not new.
• 26:06And in fact we know this because
• 26:08in our code of treason in the
• 26:10US our our federal code that
• 26:12that criminalizes treason,
• 26:14there is language that is quite
• 26:16broad about providing aid and comfort
• 26:18to enemies of the United States.
• 26:20Aid and comfort,
• 26:21I think could safely be considered
• 26:23medical care or to medical care
• 26:25could safely be considered to
• 26:26be included in that space,
• 26:28in that in that definition.
• 26:30And that would that would suggest that
• 26:34we already find this to be treasonous
• 26:36against the United States in some way.
• 26:38When of course the terrorist organization
• 26:41is a stated enemy of the United States,
• 26:44which in some cases they are,
• 26:46in some cases they aren't.
• 26:46We'll get to that in a little bit.
• 26:51I think, though, the question
• 26:53we need to ask ourselves is.
• 26:57What is unique about
• 26:59counterterrorism specifically,
• 27:01that might raise challenges with
• 27:03drawing that direct analogy?
• 27:05Indeed, I've already proposed some,
• 27:08because we have seen that there are
• 27:11some criminal offenses in the in
• 27:13the space of counterterrorism that
• 27:16are that go well beyond treason.
• 27:18But I'd like to give us three
• 27:22questions to consider to see if.
• 27:24We think that they're that different.
• 27:28The first is about aid to the citizenry, so.
• 27:32There's a hypothetical in the
• 27:34Supreme Court case that I'd like to,
• 27:37as it, were anonymized and abstract
• 27:39because it's it could be politically
• 27:41charged for other reasons.
• 27:43So I'm instead just going to
• 27:45say that in this hypothetical,
• 27:48which is the same hypothetical as
• 27:49the one used by the Supreme Court,
• 27:51suppose that nation A.
• 27:55Conducts a military strike
• 27:58against terrorist organization B.
• 28:02And. As a result of the strike,
• 28:05there are a number of wounded people.
• 28:09These people,
• 28:09and I call them people purposely,
• 28:11are probably some combination of known
• 28:14combatants for this terrorist organization,
• 28:16presumed combatants for this
• 28:18terrorist organization,
• 28:20terrorist affiliated noncombatants of
• 28:22the of the terrorist organization,
• 28:24meaning perhaps a cook who cooks
• 28:26for the terrorists,
• 28:27or whatever the case may be, a driver.
• 28:30And civilians.
• 28:32And presume that it's known or
• 28:35informed publicly or by nation A.
• 28:39That the existing medical
• 28:41infrastructure at the location of.
• 28:44The victims in location B is
• 28:47insufficient to care for everybody there.
• 28:51And so pick your favorite NGO that does
• 28:54medical work in this type of situation.
• 28:57That NGO runs in, saves the day,
• 29:00and provides emergency medical
• 29:02medical care in that space.
• 29:05Now, given the location of the attack,
• 29:08it would be fairly obvious to
• 29:11that NGO that many of the victims,
• 29:13the wounded individuals at location B,
• 29:17are terrorist combatants or are very
• 29:19likely to be terrorist combatants
• 29:21or terrorist members in other ways,
• 29:23and the Supreme Court asks itself
• 29:26under international law.
• 29:27Or under U.S.
• 29:29law,
• 29:29would that violate our concept of
• 29:31prohibiting military material support
• 29:34to terrorist organizations and the
• 29:37Supreme Court says under international law,
• 29:40absolutely,
• 29:41that would violate international law.
• 29:44The idea that the organization,
• 29:46the NGO, would know.
• 29:48That it was providing medical care to
• 29:51terrorists ahead of time would violate
• 29:54the UN Security Council resolutions
• 29:56to which I've referred today.
• 29:58It was not as convinced that it would
• 30:00be a violation of material support.
• 30:03But the question has been left
• 30:04open in other areas of U.S.
• 30:06law.
• 30:06And it this was a dictum, it wasn't a
• 30:07holding as a central area of this ruling.
• 30:10But the Supreme Court put,
• 30:11the US Supreme Court put this
• 30:14important question forward.
• 30:15This scenario might sound abstract
• 30:17because I've used A's and B's,
• 30:20but it's not abstract.
• 30:22Indeed,
• 30:22as many of you probably know,
• 30:24this is this is a very common scenario for
• 30:27how terrorist organizations are struck.
• 30:30So it's a question that's very
• 30:32lively and should be treated as
• 30:35an urgent one to address both for
• 30:38the sake of understanding where
• 30:41our ethics should delineate.
• 30:43The distinction between that which
• 30:46is material support and that which
• 30:48is not so the ethical question,
• 30:50but of course the practical question,
• 30:52because there are injured people and
• 30:54people whose lives are at stake in question,
• 30:57some of which we may morally wish to see.
• 31:03Protected and their medical rights
• 31:05to medical care upheld, and others
• 31:07where we may have differing opinions.
• 31:10This scenario will be increasingly likely
• 31:13as urban warfare continues to grow indeed,
• 31:16and some of these have been declassified
• 31:18and released where you you can see
• 31:20videos from the Iraq war that are
• 31:22often quite gruesome and harrowing.
• 31:24Where these calculations are
• 31:25made quite regularly, you know,
• 31:27are those injured people over there enemies,
• 31:29not enemies.
• 31:30And that's a that's a difficult question.
• 31:32When there was a strike on a building in
• 31:34a crowded complex near Baghdad in a way
• 31:36that it may not have been a difficult
• 31:39question when two aircraft carriers
• 31:41were approaching each other or, you know,
• 31:43battleships in in a different time.
• 31:46So that's our our our first question is.
• 31:50Does this expansion of our
• 31:53restrictions of our ability to?
• 31:56Provide medical care to,
• 31:58in this case, terrorist enemies.
• 32:02Unnecessarily and unfortunately,
• 32:03restrict our ability to provide
• 32:06care to citizens who are nearby,
• 32:09who are hapless victims.
• 32:13The second question.
• 32:15Is the membership one I raised earlier,
• 32:17who is a terrorist?
• 32:19UN Security Council resolutions
• 32:20have been very firm on this.
• 32:22You are a terrorist if you are a
• 32:24member of the organization by doing
• 32:25whatever it is the organization
• 32:27requires you to do to be a member.
• 32:29If you need to sign up for a card,
• 32:30signing up for that membership
• 32:32card makes you a terrorist.
• 32:33If you need to pledge some sort
• 32:35of allegiance, pledging that
• 32:36allegiance makes you a terrorist.
• 32:39And the question I think should be.
• 32:43To compare that.
• 32:44To what we think of when we
• 32:47think of traditional warfare.
• 32:49A cook in a barracks who cooks for his
• 32:54soldiers is not an enemy combatant.
• 32:57In fact he's a non combatant.
• 32:59But as a cook for,
• 33:01say, al Qaeda,
• 33:02who makes the pledge because perhaps
• 33:04he has to in order to join Al Qaeda.
• 33:07Is he an enemy combatant who's
• 33:08not entitled to medical care?
• 33:10Is a set of citizens.
• 33:14Of a certain country or a certain region
• 33:16of a country where that terrorist
• 33:19organization has effective control.
• 33:21Thinks perhaps of Kandahar province,
• 33:23even before the tragic events in
• 33:25Afghanistan a little over a year ago.
• 33:29Are they terrorists who aren't
• 33:31entitled to medical care?
• 33:33Our NGO's not allowed to provide
• 33:34service because it would be material
• 33:36support to a terrorist organization.
• 33:39I want to give two hypotheticals that I
• 33:42think will push this envelope even further.
• 33:45The first. Imagine something that exists.
• 33:49A refugee camp or a camp or a detention site,
• 33:54depending on your politics.
• 33:56Of women who are colloquially
• 33:59referred to as ISIS brides.
• 34:01Let's call that, you know,
• 34:02broadly speaking,
• 34:03Europeans and N Americans and many,
• 34:05probably many other nationalities who moved
• 34:08illegally to Syria during the peak of ISIS,
• 34:12married an ISIS fighter,
• 34:13had perhaps a child with ISIS and that
• 34:17bride and any such children that she
• 34:19may have had with the ISIS fighter
• 34:21are now in this detention camp.
• 34:25These are, as many of you may know there.
• 34:27There's a great many of them run
• 34:29by the Kurds at the moment in
• 34:31predominantly Kurdish held territory.
• 34:33And there is great public debate
• 34:34about what to do, especially about
• 34:36repatriating because many of them,
• 34:38because the mothers are often citizens
• 34:41of countries other than Syria.
• 34:43And the children, of course, if they,
• 34:45the mothers are from a country,
• 34:46say the United States,
• 34:47the child is entitled to US
• 34:49citizenship as well.
• 34:50So the question of repatriating
• 34:51these folks is, is 1 very,
• 34:53very large question,
• 34:54but I'm going to create a different.
• 34:56Pathetical,
• 34:56which is say that you are on the board
• 34:59of an NGO that has been approached by
• 35:02the Kurdish authorities and asked to
• 35:04provide medical care in this situation,
• 35:07and you're in a situation where
• 35:09you're board is voting on.
• 35:10Do you want to allocate funds,
• 35:11volunteers,
• 35:12all the other resources you need
• 35:14in order to make this possible?
• 35:16And you ask your organization's
• 35:19general counsel to consider any risk
• 35:22for liability under either material
• 35:24support doctrine if you're an American NGO,
• 35:26international law if you're
• 35:27anywhere in the world,
• 35:28or the equivalent statutes in your
• 35:31country if you are not an American NGO.
• 35:34Would you find that you have liability
• 35:37under those counterterrorism
• 35:38statutes and under international
• 35:40law because the ISIS brides are
• 35:43members of an organization that
• 35:45is still recognized to exist,
• 35:47though we don't talk about it in the
• 35:49same way in the public media anymore?
• 35:52And.
• 35:53Alright,
• 35:53do you treat the mothers who made a
• 35:56conscious decision differently than a child?
• 35:59Do you treat a child who did take
• 36:01the oath at age 7 differently
• 36:03than a child who didn't?
• 36:05And you might hear some
• 36:08very let's call it ISIS.
• 36:12Propagating propaganda in the in the,
• 36:17in the camps.
• 36:19Particularly preached by mothers,
• 36:21ISIS brides.
• 36:22And so does that mean that
• 36:24you have more reason to know?
• 36:26So I think that's our first hypothetical
• 36:30and that isolates solely those in
• 36:33receipt of potential medical care
• 36:35who are known members and who you
• 36:37have reason to know, our Members.
• 36:39So in criminal law,
• 36:40we often talk about the men's
• 36:41Rea and the actus Reyes,
• 36:43the actus Reyes being what you did,
• 36:44the men's Rea being what was
• 36:45in your head when you did it.
• 36:47That would clearly be probably.
• 36:49Purposeful you would not.
• 36:50You would be purposely providing medical
• 36:53care to ISIS members of ISIS.
• 36:57Who have not renounced their membership.
• 37:00That might lead you to
• 37:02one set of conclusions.
• 37:03I'd like you to compare your
• 37:06conclusions to the second hypothetical.
• 37:09Same board, same NGO,
• 37:11same international and national
• 37:13laws of your choice applying.
• 37:15And you've been asked to
• 37:17provide medical care.
• 37:18To a refugee camp.
• 37:21Where there are some refugees who
• 37:23are not ISIS brides and some who are.
• 37:28And you're asked to, in the first instance,
• 37:31provide medical care to everybody
• 37:33who needs it in the camp,
• 37:35indiscriminately, neutrally,
• 37:36in ways that might be most comfortable
• 37:39to those of you who are physicians
• 37:40and have taken the Hippocratic Oath.
• 37:42Umm. So you at least have
• 37:45knowledge that they're there.
• 37:46It might not be purposeful,
• 37:48but you should know that that's the case.
• 37:51Very much like the hypothetical
• 37:52of the Supreme Court,
• 37:53you're not maybe you,
• 37:54that NGO that rushed into after
• 37:55that terrorist attack wasn't
• 37:57trying to take care of terrorists,
• 37:59but knew that they likely would if they
• 38:02took took in everybody who was at the scene.
• 38:05Or or do you even have liability
• 38:07if there's something less than
• 38:09that and there's just that,
• 38:10that you're being reckless by not
• 38:13ensuring that there would be no
• 38:15terrorists receiving your care.
• 38:16In other words, are we,
• 38:17should we set the bar even higher and
• 38:19there's an affirmative obligation
• 38:21to know almost like a bank has
• 38:22to do know your customer type and
• 38:24anti money laundering type things
• 38:26to ensure that a wire is not being
• 38:28used to advance terrorist cause
• 38:30through financing of terrorists.
• 38:31Are we going to ask medical professionals
• 38:33to do that now in that situation?
• 38:35Is that what your?
• 38:36The board would instruct the general
• 38:37counsel to consider the bar that
• 38:39you would suspect your General
• 38:40Counsel to bring back to you.
• 38:42So I ask you to think of
• 38:43those two hypotheticals again,
• 38:44because they're very real.
• 38:45Some of you may sit on boards
• 38:47or may provide care.
• 38:48In context,
• 38:49it's very similar to what
• 38:50I've just described.
• 38:51Unless we think that this is some
• 38:54abstract ethical question that
• 38:55has no practical consequence,
• 38:57I'll bring the the the constitutional
• 38:59doctrine to the the concept of
• 39:02using constitutional law a lot
• 39:04in US constitutional law to the
• 39:06forefront of a chilling effect.
• 39:08And the idea is used often, say,
• 39:10in the cases of libel cases
• 39:12or defamation cases,
• 39:13where maybe the argument
• 39:14is if you're in doubt,
• 39:16you're one of the things you'd be worried
• 39:19about when a newspaper is being sued for,
• 39:21let's say,
• 39:22defamation of a of a public
• 39:24official of of some kind.
• 39:25You'd be worried that if you
• 39:27hold newspapers liable to
• 39:29often that there's this little,
• 39:31you know,
• 39:31boundary between what might be
• 39:33defamation and what might be not defamation.
• 39:35That might be helpful for the public to know.
• 39:38And it won't get published,
• 39:39the theory goes,
• 39:41because your enforcement of
• 39:42defamation law in this case creates
• 39:44a chilling effect that strikes
• 39:46fear in people who might want to
• 39:49do something that's not defamation.
• 39:51But they can't tell.
• 39:52And that might be something that could
• 39:54occur here if your rules are too expansive.
• 39:59And, crucially, going back to Article
• 40:01three of the Geneva Convention about
• 40:03the wounded shall be cared for
• 40:05regardless of their nationality.
• 40:06That's clearly not something
• 40:08we believe in this context.
• 40:09And even if it feels morally right
• 40:11to you that someone who's made a
• 40:13statement of affiliation to ISIS
• 40:15disqualifies them from medical care,
• 40:17anyone who feels that's entitled
• 40:19to that view.
• 40:20I I would ask you to to the question
• 40:22of would you want a refugee camp
• 40:24where some people may have made
• 40:26that pledge and many others didn't?
• 40:28Would you want those other people
• 40:30to not be entitled to medical
• 40:31care because of the few who did?
• 40:36The third question is who gets labeled as
• 40:38a terrorist organization to begin with.
• 40:40And the UN Counterterrorism Center
• 40:42is one such authority that does
• 40:45that on the international level.
• 40:47It was founded, as some of you may know,
• 40:50by a gift from the Kingdom of Saudi Arabia.
• 40:53The Kingdom of Saudi Arabia
• 40:55chairs its Advisory Board,
• 40:56which puts out advisory documents
• 40:58regarding who is and is not a
• 41:01terrorist and what should be done
• 41:03in terms of counterterrorism.
• 41:05Some of you may hold different
• 41:07views than the Kingdom of Saudi
• 41:09Arabia of who is a terrorist.
• 41:10And if you do, that might make
• 41:13you question this just the same,
• 41:15and I posed the hypothetical.
• 41:17Again, I'll anonymize the version
• 41:19I have in my notes that let's take
• 41:22country A calls ethnic minority B in
• 41:25their country a terrorist organization.
• 41:28And you are from a country where Group
• 41:31B is not really considered anything
• 41:34other than an oppressed minority group,
• 41:37and maybe you don't even think
• 41:39what they're doing should be
• 41:40considered terrorist at all,
• 41:42such as peaceful demonstrations.
• 41:45Would you want a third country to be
• 41:47able to consider that material support?
• 41:53Now. The difficulty in caring
• 41:57for the wounded in new wars,
• 42:00including those with terrorist organizations,
• 42:02is not just the fault of the framework.
• 42:04Again, I I probably raised some scenarios
• 42:06where you might not have been that
• 42:08concerned about the ethical implications.
• 42:09Maybe others you were.
• 42:12Much of this also comes from the very
• 42:15urgent concern that the neutrality
• 42:17of healthcare workers is not being
• 42:19respected in the battlefield of new wars.
• 42:21Both because of the practical
• 42:24difficulties that it's harder to
• 42:26differentiate when you know that
• 42:28there is a more urban battlefield
• 42:30or other environments that are more
• 42:32difficult to make differentiation in.
• 42:34And for the reason of course that many folks
• 42:37conducting things that we now call war,
• 42:39even if they're not nation states,
• 42:41particularly non state.
• 42:42Actors have no respect for the
• 42:44Geneva Conventions and will
• 42:46attack healthcare workers.
• 42:47In fact, as some of you may know,
• 42:49some of those captured and killed by
• 42:52ISIS were indeed healthcare workers.
• 42:56So it's not to say that the it's
• 42:57all the norms fault and it's
• 42:59all international laws fault,
• 43:00but that's the side we can discuss
• 43:03and can control reasonably.
• 43:04And I think that some of the
• 43:06questions we ask today are are
• 43:09quite important towards that end.
• 43:11Counterterrorism notwithstanding,
• 43:12I want to raise one other challenge that
• 43:16we are facing with respect to conventional
• 43:19medical ethics in the modern era.
• 43:22And again,
• 43:23I will anonymize this scenario,
• 43:25a particular NGO that is known for
• 43:28providing medical care to individuals
• 43:30in need in places that they would not
• 43:34have access to medical care otherwise.
• 43:37Uh.
• 43:37Wanted to enter a particular country
• 43:41with a particular healthcare need.
• 43:45And this country said absolutely.
• 43:49On the condition that you only care
• 43:50for people who support the government.
• 43:55And we'll enforce that.
• 43:58And the NGO said in this particular case.
• 44:04No, we provide medical care to everybody.
• 44:10And. What is interesting is.
• 44:16The country could have said,
• 44:17well, they're terrorists,
• 44:18we've designated them as terrorists.
• 44:21And when you're in our country,
• 44:22you obey domestic law,
• 44:23our criminal statutes,
• 44:24so you can't provide material
• 44:25support to terrorism.
• 44:26They're terrorists.
• 44:27That didn't happen in this particular case,
• 44:30though.
• 44:30There's actually one I'm I'm tangentially,
• 44:33though not personally, aware of,
• 44:34where a very similar conversation took place.
• 44:38And So what you're finding is,
• 44:40as you would expect, NGO's taking
• 44:41different opinions on this question,
• 44:43some saying that the principles of
• 44:47medicine depend on caring for anyone in
• 44:51need when they enter your care facility.
• 44:54Others saying.
• 44:55For any number of reasons,
• 44:58some perhaps machiavellians,
• 45:00some perhaps altruistic.
• 45:03If no one else is going to do this,
• 45:04someone needs to provide medical
• 45:06care to someone in this area,
• 45:08in this territory, in this nation.
• 45:10And better someone cared for than nobody
• 45:13cared for in this given territory.
• 45:15And this dilemma,
• 45:17just like the counterterrorism dilemma,
• 45:20is proliferating at a rapid pace.
• 45:24In fact,
• 45:25there is one very significant
• 45:27emergency situation where I do
• 45:30have direct awareness where.
• 45:32A particular type of medical care.
• 45:35Was not allowed to be provided
• 45:37to those who were perceived to
• 45:39be enemies of the government,
• 45:41but to folks who were non combatants,
• 45:43particularly regarding the care of
• 45:46women and feminine health needs.
• 45:51What does that do to our concept
• 45:54of biomedical ethics?
• 45:55What decision would you make?
• 45:56Again,
• 45:57you're in the boardroom and you
• 45:58have to make a decision about
• 45:59whether your organization moves
• 46:00forward in providing care your your
• 46:02physician maybe on the ground or
• 46:03who wants to be on the ground there?
• 46:06That is challenging how we
• 46:09think about these questions.
• 46:11There has also been.
• 46:15One instance I'm aware of it and
• 46:16among others that I've read about,
• 46:18where a group of internally displaced
• 46:21persons and refugees were in a given
• 46:23camp and the NGO in question wanted
• 46:26to go provide medical care to those
• 46:28refugees and internally displaced
• 46:30persons and the country said sure,
• 46:32you just have to check their documents
• 46:34to see they have valid asylum in our
• 46:36country before you provide medical care.
• 46:38Again, that wouldn't be a principle
• 46:40that you would uphold here.
• 46:42In fact, as many of you probably know,
• 46:44you can apply for state health benefits
• 46:48prior to receiving asylum if you
• 46:50are a refugee or if you're otherwise
• 46:53undocumented in some states in the US.
• 46:56And.
• 46:58That would be a you would have
• 47:00a different experience in these
• 47:02countries and your question would be,
• 47:03do you obey that principle or not?
• 47:07So what I'd like to close with and
• 47:10hopefully keeping with my rough
• 47:13allotted time from Mark is just
• 47:15some conclusions and some questions
• 47:17that I hope we've motivated today
• 47:19that we might want to think about.
• 47:24And we know that international
• 47:28humanitarian law, as we now call it,
• 47:30laws of war and medical ethics in
• 47:32times of war, predate World War Two
• 47:35is the instigating event that causes
• 47:38a normative cascade globally, the.
• 47:41Codification of the Geneva Conventions
• 47:43as we know them today, and so forth.
• 47:47And they're the norms that we
• 47:48hold most sacred in this space.
• 47:50That much is clear.
• 47:51Care for prisoners of war and
• 47:53for the wounded.
• 47:54Differentiation, medical neutrality,
• 47:55all of these things that are considered
• 47:58central to our way of thinking about.
• 48:01International military and law.
• 48:03But as we've just discussed,
• 48:06World War Two may not be a good model for
• 48:09the types of conflicts that occur today.
• 48:12Both because.
• 48:13Counter there are terrorist
• 48:15organizations and non state actors
• 48:17who engage in things that we
• 48:20would have called something like
• 48:22war that occurs between nations.
• 48:24And because there are questions of
• 48:27providing care in contexts that might
• 48:30not have been envisioned in the same
• 48:32way or might not have been thought of
• 48:35as a problem in the same way before,
• 48:39before the the new War
• 48:41era and the post 911 era.
• 48:43Thinking,
• 48:43for example,
• 48:44of that NGO told they can only
• 48:46provide services in a country
• 48:48if they only provide them to
• 48:50supporters of the government.
• 48:52So.
• 48:52With these challenges come questions
• 48:55of where we'll go from here,
• 48:58and we have many unanswered questions
• 49:00that will probably want to address.
• 49:05Is the way we think of.
• 49:08Biomedical ethics and the ethics
• 49:10around medical care in times of war.
• 49:13Still suitable for today's world?
• 49:15Can they handle? Can they?
• 49:17Can they just absorb our
• 49:20counterterrorism law framework?
• 49:21Can they just absorb questions of when
• 49:24a country says you can only provide
• 49:26medical services in our country if you
• 49:28only help supporters of our government?
• 49:31Or do we need something different?
• 49:34Do we need to just?
• 49:36Narrow the scope of of material support.
• 49:39Do we like the scope of material
• 49:41support and counterterrorism law?
• 49:42We wish to keep it as it is.
• 49:45Are if even if we address our
• 49:47material support questions,
• 49:48are there other questions that we still
• 49:51need to to address that we're not sure of?
• 49:54Is there scope,
• 49:55and I think this is an open
• 49:57research question,
• 49:58for a healthcare version of the R2P doctrine.
• 50:02The responsibility to protect doctrine,
• 50:04responsibility to protect is a
• 50:07international norm that suggests that
• 50:10if a government is unwilling or unable
• 50:13to protect its own people from harm,
• 50:16either because they are.
• 50:18Making the harm themselves or because
• 50:21there is another entity that is harming
• 50:23the citizens of their country and
• 50:25they are unable or unwilling to do so.
• 50:28Think,
• 50:28for example,
• 50:29of the Assad regime being Bashar al-Assad,
• 50:32the head of state of Syria
• 50:34during the ISIS era.
• 50:36Then there is a then that responsibility
• 50:40from that government is clearly not met.
• 50:43And it entitles intervention by
• 50:45the international community and
• 50:47responsibility to protect came out
• 50:49of a need for an understanding of
• 50:51when it's right to intervene and
• 50:53what might look like a domestic
• 50:56conflict in another country.
• 50:58Is there a scope for some sort of
• 51:01healthcare responsibility to protect that?
• 51:02Maybe you could help that NGO who
• 51:05can only help people if they only
• 51:07help supporters of the regime
• 51:09make the decision that they can,
• 51:11can or can't provide healthcare?
• 51:12Whichever way the norm would fall
• 51:14based on an analysis of whether
• 51:16the state is unable or unwilling
• 51:18to provide healthcare to people
• 51:20in their within their borders.
• 51:22Is there another normative framework
• 51:24that would be more helpful that
• 51:26might be more consistent across
• 51:28the situations I'm describing?
• 51:30And I leave you with those questions
• 51:33knowing that there's no simple solution,
• 51:36particularly in the space of
• 51:38counter terrorism,
• 51:39where obviously there are very
• 51:42significant concerns for safety
• 51:44and well-being with respect to
• 51:47counterterrorism efforts to begin with,
• 51:49but with the realization that the that
• 51:52the consequences of our norms are
• 51:54much more complicated than they may seem.
• 51:56I particularly remember minutes
• 51:58from a UN Security Council.
• 52:00Meeting where a particular,
• 52:02I presume ambassador but might have
• 52:04been another state official from a
• 52:06from a government said something
• 52:08about the this very issue of of
• 52:11prosecution of of those providing
• 52:12medical care and terrorist circumstances
• 52:14and said something to the effect of.
• 52:16I don't really think we thought
• 52:17about that when we were writing this.
• 52:19We were thinking more of what you
• 52:21might conventionally think
• 52:22of as material support to terrorism
• 52:23particularly terrorist financing.
• 52:24In fact, there's a whole UN Security
• 52:26Council resolution about terrorist
• 52:27financing specifically because of
• 52:29what essential concern this is.
• 52:30So I think that between intended
• 52:33and unintended tensions between
• 52:34these two areas of international
• 52:36law and international norms,
• 52:37I encourage you to think about how
• 52:39this would affect your own decision
• 52:41making in a circumstance as any number
• 52:44of stakeholders and what you think
• 52:46is normatively right as as you and
• 52:48continue to ingest the debate that is
• 52:50going to continue in public spheres
• 52:52about how this should proceed and how
• 52:55our norm should proceed moving forward.
• 52:57So with that I thank you all once again,
• 52:59I think Mark once again.
• 53:00Need to take any questions and and thank
• 53:02you for for an incredible afternoon
• 53:04with amazing other speakers as well.
• 53:05Thank you.
• 53:06You want me to stay here?
• 53:10So we will, we have to,
• 53:14we can take questions from the audience.
• 53:15We have time for one or two questions before
• 53:17we get to next to David Marbles talk.
• 53:19So if anyone in the office,
• 53:21we have the microphones on each side. Yeah.
• 53:22A gentleman right here, please, Karen.
• 53:33Thank you for the interesting talk.
• 53:35Could you comment on whether there is
• 53:38any international law in dealing with
• 53:42non state terrorist actors for instance?
• 53:45I mean Israel deals with this all the time.
• 53:48There's an ambulance trying to come to a
• 53:51hospital in Jerusalem from the territories,
• 53:54and there's a suicide bomber
• 53:56that's hidden in the ambulance,
• 53:58so there's a delay for that ambulance
• 54:01and there might have been another patient
• 54:05there who suffers some medical poor outcome
• 54:09because ambulances stop for a search.
• 54:12What's the liability of the
• 54:14Israelis in that situation?
• 54:16Or on the other hand?
• 54:18If Islamic Jihad is fighting missiles
• 54:21adjacent to the large hospital in Gaza City,
• 54:26what is Israel's responsibility there?
• 54:30Great, great questions.
• 54:31So I'll take them in reverse order.
• 54:34The question of say you identify
• 54:36your you're part of IDF,
• 54:38you identify a potential target that
• 54:40you want to strike because you know
• 54:42that there's a certain military
• 54:44capacity of that target site.
• 54:46Maybe there's an imminent threat.
• 54:47You have two.
• 54:49Analysis You must conduct,
• 54:51you must do a necessity analysis is
• 54:54it necessary for you to strike this
• 54:56necessary being defined as necessary
• 54:58to advance your national interests,
• 55:00such as the safety of your own citizens?
• 55:02And is any civilian casualty or
• 55:04damage that may occur proportionate
• 55:06to what you are trying to prevent?
• 55:10And the question I think that is
• 55:13under underlying your question
• 55:15is beyond the subjective.
• 55:16How do you know when it's necessary and
• 55:18how do you know when it's proportionate?
• 55:19Is how do you determine both of those
• 55:22things and the idea of international
• 55:25laws approach to that question is one of
• 55:28obligation that scales with your capacity,
• 55:31so.
• 55:33Nation A that is very
• 55:36technologically sophisticated,
• 55:37that has all sorts of heat seeking
• 55:38and other technologies I probably
• 55:40don't know about to help you determine
• 55:42who's standing where and what the
• 55:43probability is that they would get
• 55:45struck by a strike on the site,
• 55:47including secondary damage.
• 55:48So if you know their missiles in
• 55:50there and you bomb the missiles,
• 55:52so not just your bomb explodes,
• 55:53but the missiles you're bombing explode,
• 55:55and you can calculate that because
• 55:57of the technology available to you
• 55:58and the experts available to you,
• 55:59then you do have an affirmative
• 56:01obligation to do that if you do not.
• 56:03But it's still necessary to strike the site,
• 56:05your nation be in this case, you.
• 56:07You have to strike the site as
• 56:09you determine it,
• 56:09and your ability to calculate
• 56:11proportionality is much more limited.
• 56:13International law doesn't obligate you
• 56:14to go out and find a way to get the
• 56:17excellent technology to do that much
• 56:19more sophisticated analysis before you do it.
• 56:21In other words,
• 56:22your obligation is related to your
• 56:23capacity in that moment as the state.
• 56:25So if you couldn't have
• 56:27known for some reason,
• 56:28such As for example civilians
• 56:30let's say are being held prisoner
• 56:32in the in the basement.
• 56:33Of this of this site.
• 56:35And so you're you have no way of knowing that
• 56:37because you're maybe it's some sort
• 56:39of roof over the basement that your
• 56:41technology can't see through then
• 56:43you're not obligated to consider the
• 56:44proportionality of those hypotheticals
• 56:46of what if there's such a basement.
• 56:48So that's how you handle the the second
• 56:50situation by doing the necessity
• 56:52and proportionality considerations
• 56:54the the first question of the
• 56:57ambulance headed into let's take it
• 57:00as the the Home Countries hospital.
• 57:04Carrying either someone who needs
• 57:06medical care, who is not a combatant,
• 57:09maybe someone who needs medical care who is,
• 57:11but certainly you're you're
• 57:12hypothetical someone who does
• 57:14not need medical services at all,
• 57:16who's who's a combatant,
• 57:17who's trying to use the safety of
• 57:19appearing to be a medical service
• 57:21provider in order to conduct an attack.
• 57:24This actually prompts one of the
• 57:26very challenges that I pointed to,
• 57:29which is that of course,
• 57:30a lot 1 easy rebuttal to the comment
• 57:32that the Geneva Conventions.
• 57:34Don't hold up in today's world
• 57:36is just to say,
• 57:38well that's because there's some
• 57:39actors who don't respect them.
• 57:41And so if the Red Cross symbol from
• 57:43the first Geneva Convention on your
• 57:45on your armband or on anywhere means
• 57:47that you're a medical provider,
• 57:49the moment someone starts to abuse that,
• 57:51be it a state actor or a non state actor,
• 57:54of course the whole system starts
• 57:55to break down.
• 57:56So I think what that goes to more so
• 57:58is that is that potential counter
• 58:01argument that second source of problems.
• 58:04Thank you for the great questions.
• 58:05Thanks.
• 58:06Thank you very
• 58:06much. Andrew. We're going to
• 58:08that's going to have to say that's
• 58:09it for this talk in the interest
• 58:10of time. That was terrific.
• 58:11Thank you. Thank you so much.