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Would the NHSA be a good model for International Humanitarian Law?

This is just a short musing about the duties of an emergency medical system responder under the National Highway Safety Act and what’s right and wrong between nations. In some cases the ideas are the same, but not in all. In some cases there are proposals that would make them very similar.

The regulations to which I refer are the following:

  • Battery – touching a patient without permission is considered a form of battery.
  • Duty to Act – Depending on circumstances, a responder may have a duty to act, failure to do so is dereliction of that duty.
  • Negligence – Doing things that are outside of one’s scope of practice and causing harm.
  • Abandonment – Leaving the patient without passing them on to someone else or having them sign off on treatment.

Note that technically, abandonment is a form of negligence, but it is often singled out, as it is above, because of it’s importance.

The first of these, battery, is, I think, subsumed by the U.N. Charter, which prohibits aggression. In 2010, there will also be a proposal finished to make this a prosecutable crime at the International Criminal Court.

The second, duty to act, is not part of current international humanitarian law (the laws of war) in terms of warfare itself, with the sole exception of the Convention on the Prevention and Punishment of the Crime of Genocide (which technically is human rights law), Article 8. In personal conduct, it is embodied in the universal jurisdiction articles in the Geneva Conventions, and also in human rights law in the Convention Against Torture and the ICCPR and other statutes, and by the ICC itself, to some degree. There is a movement to strengthen this duty, called the Responsibility to Protect, or R2P movement.

The third, negligence, forms much of the body of the Fourth Geneva Convention, and some of the Additional Protocols. It is also embodied in the Convention on Certain Conventional Weapons and its additional protocols. It is at the root of many allegations of crimes against humanity, of war crimes, and of the ICC and the various ICT’s. But in the NHSA, it also includes failure to perform something that was within the scope of practice, and I would argue that IHL could benefit from delineating as strong a "scope of practice" as possible. For instance, forbidding the confusing of military and police roles, and forbidding the neglect of returning soldiers whose problems from the war continue indefinitely. It might be augmented to include all the forms of ‘human shield’ misuse that go below the radar: claiming human shields as a prior to shelling civilians, using the enemy’s genuine use of human shields to commit atrocities, deliberately luring an enemy into firing on civilians, and the like.

The fourth category involves being responsible for not finishing. It means there needs to be a process for quitting if people will die from it. It means that failure to do so would be punishable, because of the inhumanity it caused. It also might include promising to commit funds and resources to reconstruction that are subsequently not delivered, or working deliberately against the stated goals. There is already a little of the commission of funds and resources for reconstruction in the Fourth Geneva Convention: an occupying power is responsible for the infrastructure they leave behind for a year after they leave. I don’t recall when it’s been enforced, however.

These things are expected when a person takes the life of another person in their hands in an emergency. It does not seem unreasonable to ask it of nation-states, when they do likewise.

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