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International Law

DMCA Abuse: How corporations are using US copyright law to harass and silence individuals

Prof. Murray Hunter

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The Digital Millennium Copyright Act (DMCA) was unanimously passed by the United States Senate on 12th October 1998, and signed into law by President Clinton on 28th October the same year. The Act was put into law to interpret and enact two 1996 World Intellectual Property Organization (WIPO) treaties which dealt with copyright circumvention and providing Internet service providers (ISP) and online service providers (OSP) safe harbour against copyright liability, provided they meet specific requirements.

The DMCA criminalizes the production and dissemination of technology, devices, or services intended to circumvent measures (commonly called digital rights management) that control access to copyrighted works. Further, the DMCA also criminalizes the act of circumventing any access control, even if there is no actual infringement of the copyrighted material itself, i.e., providing a mere link to a third site where suspected copyright material exists is criminal.

The Act has extended the reach of US law beyond its traditional geographical jurisdiction. Moreover, the Act has given copyright right holders a “lethal weapon” to utilize against parties who allegedly breach their claimed copyright. That is, the ability to claim copyright breach directly against any individual. Further, the Act enables copyright holders to force ISPs and OSPs to take down any identified alleged infringing material immediately from any internet site.

However the Act doesn’t give respondents any recourse against a DMCA takedown notice before any material is taken down by the ISPs and OSPs.

Through the DMCA takedown notice procedure a copyright holder becomes a prosecuting judge. A copyright holder need only serve a takedown notice on an ISP or OSP to take down any third party’s material from the internet to have it instantly removed.

The rules and procedures of this process are prescribed under section 512 of the Act. ISPs and OSPs are given immunity from prosecution from both the copyright holders and respondents to takedown notices, if they strictly adhere to the takedown and counter-takedown notice procedures prescribed in Section 512.

This ‘safe harbor’ provision gives ISPs and OSPs incentive to cooperate with copyright holders who are in the majority corporations. Section 512 even exempts ISPs and OSPs from ‘good faith’ in the removal of any material, i.e., they may know the takedown notice is flawed in some way, providing the procedures are followed. In effect ISPs and OSPs become the agents of the copyright holders and aren’t obliged to consider the interests of their users, except through facilitating the counter-takedown notice procedure.

As mentioned above, the material identified in any takedown notice must be removed from the site identified. The respondent can only respond to the copyright holder through issuing a counter notice which identifies the person who put up the material, submits to the jurisdiction of a US court, and subjects the respondent to the laws of perjury in the response. It is the responsibility of the ISP or OSP to pass on the counter notice to the copyright holder and if legal action hasn’t been taken against the respondent in the takedown notice within 10-14 days, the ISP/OSP may reinstate the original material to their website.

The DMCA takedown notice procedure deems a respondent of a takedown notice guilty. There is no provision for a hearing from the respondent to either the purported copyright holder or ISP/OSP before the material is removed. At a minimum any material subject to a takedown notice cannot reappear for at least 14 days.

The takedown notice procedure is dreadfully biased towards the purported copyright holder. Section 512 gives copyright holders protection and power over respondents to takedown notices. For example, unlike respondents who decide to file a counter notice, the copyright holder issuing the takedown notice in the first place, need not submit itself to the jurisdiction of the US legal system. The issuer of a DMCA takedown notice may be, and is in many cases, a foreign corporation with no intention to submit itself to the jurisdiction of US law. The corporation can use the DMCA for convenience to rid the internet of some material at its own whim, where it is almost practically impossible by a respondent to make legal claim for issuing a false takedown notice.

If a respondent of a DMCA takedown notice takes a copyright holder to court, there is no guarantee that the issuer of the notice will submit itself to US law, unless it is already a US legal entity. Even within the US itself, some issuers of takedown notices have escaped jurisdiction of the US court system.

Sadly, US case law has tended to protect the issuers of false takedown notices. In 2004, the decision in Rossi V. the Motion Picture Association of America found that the DMCA takedown notice issuer had to actually know their claim was false and not merely lazy or mistaken for a respondent to succeed in their claim against a party who issued a false takedown notice.

Further, the issuer of a DMCA takedown notice bears little responsibility for false notices. Although Section 512 (f) makes the issuer of any false notice liable for damages, the cost, time and effort to take a copyright holder to court for issuing a false notice according to current case law in the United States would most likely only compensate the respondent for his or her legal costs in direct relation to the takedown notice and minimal damages.

There is nothing within Section 512 that restrains copyright holders from issuing DMCA takedown notices through the principle of fair use. The legally enshrined principle of fair use allows for the copying of small amounts of material for comment, criticism, or parody. Such use can be done without the need to get permission from the copyright holder. Section 1201 (c) states the underlying substantive copyright infringement rights, remedies, and defences, doesn’t allow the use of fair use for defence of a DMCA takedown notice. Fair use is not exempted as a circumvention action and has thus not exempted from criminality under DMCA.

This weakness in the DMCA has allowed for the exponential growth of DMCA takedown notices since the Act became law almost 18 years ago.

Twitter receives about 10,000 DMCA takedown notices per month which has grown 58% from the year before. WordPress receives about 700-800 DMCA takedown notices per month, up 55% from the year before. Google receives about 80,000 DMCA takedown notices per month, which has grown also around 50% in volume from the previous year. If the fair use provision was upheld in section 512, the number of takedown notices would be far less and more manageable by ISPs and OSPs to handle. Instead we are reaching a situation where free speech, expression, and even creativity are being stifled by the DMCA.

Earlier this year Jennifer Urban and Brianna Schofield from University of California, with Joe Karaganis of Columbia University found in a 160 page in-depth study looking at 100 million notices, that more than 32% of DMCA takedown notices were either flawed or had characteristics which raised questions about their validity. This equates to more than 35 million notices. This somewhat agrees with Twitter’s own data indicating that around 33% of notices it receives are ineffective. WordPress found 60% of the DMCA takedown notices it receives as being ineffective.

One very recent case that illustrates the above issues and highlights several sinister aspects of DMCA abusers’ behaviour relates to the International Olympic Committee (IOC) and its Legal Director Howard Stupp. Howard Stupp is well known for his vigilance in protecting IOC intellectual property, and even made a ban on the use of short GIFs on social media during the recent Olympic Games.

Stupp instituted an automated system which systematically searched the internet for key words. The system was so sophisticated that winners’ names were added as key words to pick out new postings during the games. However what was apparently absent was any human interface to ensure that the system didn’t mistakenly highlight postings that didn’t breach IOC copyright. As a result in one such case, a DMCA takedown notice was sent to Twitter claiming a posting had breached IOC copyright by showing a GIF of the recent games, when in fact the Tweet was posted weeks before the games and GIF was of another sporting event not under the jurisdiction of the IOC.

DMCA1

The Tweet subject to an IOC DMCA takedown notice issues by Howard Stupp

DMCA2

A partial screen shot of the DMCA takedown notice issued by Howard Stupp

Like the example above, the use of automated systems leads to questions about accuracy and fairness in due process of copyright holders issuing DMCA takedown notices. Human interface is required to ensure copyright holders exercise a duty of care. Automated search systems have turned the DMCA takedown system into a massive fishing expedition where individuals who breach copyright may be caught along with a large group of innocent individuals.

In the case above, the recipient of the DMCA takedown notice issued by the IOC attempted to contact the organization through the email given in the takedown notice (The issuer of a DMCA notice doesn’t have to state their address like the requirement for respondents to do so) to point out their mistake, but this was to no avail. Repeated emails were just left with silence.

The fact that the IOC refuses to enter into any correspondence with respondents indicates the principle of ‘good faith’ is not being adhered to.

The IOC, like many other corporations not registered in the United States are difficult to actually locate and thus beyond the jurisdiction of US law. This makes it extremely difficult to take any legal action against parties who issue false DMCA takedown notices. The DMCA takedown notice system is allowing people like Howard Stupp to act without any duty of care and legal responsibility. The IOC must be aware that some of its DMCA are false through mistaken identification of content (i.e., no one has checked the links the automated system has identified).

Organizations like the IOC will continue to issue frivolous takedown notices in a contemptuous and arrogant manner, and ISP/OSPs like Twitter will continue to support large corporations against their own users because of the nature of the current takedown and counter notice procedures in section 512. These are all massive abuses of the system which must be corrected.

There are numerous other well reported abuses which indicate the DMCA is being used by corporations for other motives than seeking out copyright infringement. Warner Bros filed DMCA takedown notices with Google as a tool to takedown websites which would lead to possible infringing content, rather than infringing content on websites as the DMCA specifies. Sony has been trying to obtain license fees on the fair use of their copyrighted material. A web security firm used the DMCA takedown system to silence a vocal critic of its services in the guise of copyright infringement. The London Sunday Times sent a DMCA takedown notice to eliminate a critical article written in The Intercept. Some organizations have issued DMCA takedown notices against bloggers just to find out their identity. The DMCA takedown notice procedure is cheaper to utilize against critics than using defamation laws, which many corporations are taking advantage of. People with a grudge use the DMCA takedown notice procedure to attack and force suspension of their social media accounts.

The safe harbour provision of Section 512 makes the ISP and OSP willing collaborators with organizations which use DMCA takedown notices as a tool for other agenda that the Act was not intended for.

DMCA takedown notices only allege breaches of copyright infringement. DMCA takedown notices do not prove cases of copyright infringement.

This is a denial of natural justice where the takedown and counter notice procedure assumes guilt before innocence, contrary to common law.

With the large number of DMCA takedown notices coming in to ISP/OSPs, it is time consuming and costly for these organizations to deal with each individual notice. They are doing the work of copyright holders and bearing all the costs involved.

The unbalanced onuses placed upon the recipient in filing a counter notice, and fear of the costs of defending any potential action in a court of law is the probable reason why there are very few counter notices. DMCA takedown notices, as can be seen by the example above are intimidating to many people who receive them. Further, liability is unbalanced and favours copyright holders. Many corporations don’t fear suits as they aren’t within the jurisdiction of a US court unlike the respondents who must formally put themselves under US court jurisdiction in filing a counter notice.

Large corporations like Sony, Disney, Comcast, Viacom, and others used automated systems to issue DMCA takedown notices which often misidentify material. This is an injustice upon innocent parties who are at risk of having their social media accounts closed if they receive three takedown notices under the multiple offender provision of the DMCA.

The DMCA takedown notice procedure has harassed many internet and social media users, silenced critics of corporations, and disrupted people running blogs. Section 512 (f) is toothless in restraining corporations using automated software and takedown notices go on ‘fishing expeditions’ to seek out copyright infringers. Innocent peoples’ rights are being violated and in some cases damage done to them where no practical recourses exist to remedy the injustice. The Howard Stupps of the corporations are free to run their agendas disregarding the principles of ‘good faith’ and fairness. They appear immune from responsibility for their reckless actions.

Section 512 has failed to protect people from false takedown notices and allowed the DMCA to be abused by corporations for their own ends. The use of the DMCA to silence critics and eliminate articles written by journalists in all probability if challenged in a US court could even be found unconstitutional due to its incongruence with the 1st Amendment that guarantees freedom of speech and the press.

Let’s hope the US Copyright Office corrects these shortfalls of the DMCA in its current review of the legislation and considers the introduction of statutory damages and/or bonds to decrease the issuing of false notices.

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International Law

Whatever Happened To Due Process In International Relations?

Rahul D. Manchanda, Esq.

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It seems that recent events across the globe have further revealed a glaring hole within the framework and structure of international relations, law, and diplomacy – the complete and total lack of Due Process.

In each and every country around the world, from the local level all the way to the federal, there exists in criminal and civil jurisprudence the concept of Due Process – a concept which has been defined as the legal requirement that the state must respect all legal rights that are owed to a person.

Due process balances the power of law of the land and protects the individual person from it.

When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty.

Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.

Due process developed from clause 39 of Magna Carta in England.

Reference to due process first appeared in a statutory rendition of clause 39 in 1354 AD: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”

When English and American law gradually diverged, due process was not upheld in England but became incorporated in the U.S. Constitution.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly (July 3, 1903 – March 11, 1986), a prominent judge in the United States, who sat on the United States Court of Appeals for the Second Circuit from 1959 through 1974, generated a list that remains highly influential, as to both content and relative priority:

(1) An unbiased tribunal;

(2) Notice of the proposed action and the grounds asserted for it;

(3) Opportunity to present reasons why the proposed action should not be taken;

(4) The right to present evidence, including the right to call witnesses;

(5) The right to know opposing evidence;

(6) The right to cross-examine adverse witnesses;

(7) A decision based exclusively on the evidence presented;

(8) Opportunity to be represented by counsel;

(9) Requirement that the tribunal prepare a record of the evidence presented; and

(10) Requirement that the tribunal prepare written findings of fact and reasons for its decision.

The international news media, on behalf of various governmental agencies, intelligence organizations, private deep state oligarch run businesses, has been blasting from time to time, allegations and accusations leveled by one country or empire versus another, most notably by the Western NATO powers against the Eurasian ones, that of Russia, Syria, Iran, and North Korea, China and others, while the converse has not occurred at all.

This should tell us something.

Lately, the Skripal poisoning attempts, the multiple alleged Bashar Assad Syrian government chemical weapons attacks, and countless others have dominated the headlines.

Russia has been screaming from the rooftops that their greatest concern is that the USA or West will manufacture some type of false flag attack to blame it on them.

The only solution then is that both the United Nations and the International Criminal Court must be given the power, funding, and support by countries that are being victimized by false flag allegations to be empowered to put a stop to these irresponsible lobbings and accusations of criminal conduct by one set of nations versus the others.

When Due Process is absent from our nations’ courts, police departments, law enforcement agencies, then innocent people get thrown into jail in criminal cases or bankrupted in civil matters.

But when nations are not afforded Due Process in the course of international relations, terrorism breaks out, and so does the possibility of nuclear annihilation of all the worlds’ people.

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International Law

Assessing failures of “Humanitarian Intervention”: Finding a “non-traditional”approach

Anant Mishra

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Within the context of traditional theory of international relations humanitarian intervention is referred as “intervention-from-above”, highlighting the “tactics of intervention” by various states, international institutions, government sponsored think tanks and international aid organizations. At the global level, flow of international aid is unidirectional (traditionally flowing from North to South); although, intervention is not only limited to North, but may occur regionally in the South too. Historically, the world has witnessed tensions highlighting “certain drawbacks” in the global legal system particularly within the context of a donor country “crossing humanitarian boundaries, sovereignty, the principle of non-intervention, while purposefully meddling in the regional affairs of the host”, violating every nomenclature of humanitarian assistance and instigating dilemma among probable future host economies.

Today, host countries are forced to question the objectives of donor economies. Many states begin formulating an “after-effect strategy” in case the donor intends to violate, in the light of many least economic developed economies being host, fewer states respond. From the aforementioned arguments, the questions that challenge policy makers of today are: Does humanitarian intervention bring results? Does it truly assist the host economy? If it does, which is the best effective and efficient plan of action?

Policy makers must focus their attention on the “flaws in international law highlighted in the aforementioned arguments”. Furthermore, historically it has been seen that, nations ignore legal guidelines and international laws which does not benefit it while giving jurisprudence to politics than the international laws.

Today, the focus of the article will be on the three traditional pillars of humanitarian intervention, the donor’s “capability” to assist the host, the donors “interests” in providing assistance to the host, and the “after-effects” on the host; in an effort to “effectively” understand and identify factors responsible for recent “negative outcomes” from humanitarian interventions while identifying alternative non-traditional approaches of humanitarian intervention shifting the focus of political thinkers and strategic experts from military theories, while giving special emphasis on the role of non-government development agencies and civil society organizations. Keeping all relevant actors in play, it is literally impossible to predict the success of “traditional grass-root focused ”humanitarian intervention especially when the “much advanced top-down approach” continue to fail.

The quest to identify non-traditional theories of humanitarian intervention, also termed by strategic experts as “bottom to top approach”, will be the focus of this article. It will be safe to say that, such non-traditional approaches, will depend majorly, on intervention policies of humanitarian aid agencies and public works development focussed institutions of non-governmental organizations, development focussed civil society and volunteer groups from the masses, civil rights advocacy groups and organizations advocating for a specific society.

Decoding the myths

Political and Strategic experts have, classified, two types of traditional “humanitarian intervention” theories. The first theory relies on aggressive military intervention to fulfil strategic objectives of the host and is carried under the leadership of one or more host states, or by unanimously approaching the United Nations Security Council and other regional and international institutions.

The first theory comprises of intervention tactics, which could fulfil positive humanitarian objectives of great benefit for the host, however it remains secondary to the intervention objective implemented by the host. For example, repetitive acts of crimes against humanity, horrific abuses by successive regimes could come to an end through an intervention which is designed specifically by the host government. It is important to note that, such intervention is rare, especially considering the “humanitarian” view of this form of intervention, instead their long presence could result in oppression against the masses forcing the host to use all forms of excessive force.

Some historical examples include devastation of Germany during World War II, the Liberation of Bangladesh in 1971, and the invasion of Cambodia by Vietnam in 1968. Policy makers must understand that, interventions at such level involves specific military and political goals that starts with “intervention and occupation” for an indefinite time.

In this form of humanitarian intervention, genocide, crimes against humanity and violence induced on local masses are common. Such acts are destitute to walk among the strategic and military objectives of the host. However, in regions where the host intervened without any strategic objectives, for example intervention on Kurdish regions since World War I, and military confrontation against the indigenous tribes of Amazon, excessive violence induced against human life have been categorically side-lined or purposefully ignored.

In the second theory of humanitarian intervention, human rights abuses instigate an “aggressive response”, although without any strategic advantage. If the intervention does takes place, it will be implemented without a “clear sight, objective or commitment” on the host intervening state, the commitment would be largely to challenge the political structure or the authority responsible for carrying such horrific crimes. Strategic and political experts refer this scenario, which remains active in the Middle East today, “the CNN factor”, an aggressive wide scale visual representation of horrors and distress particularly depicting crimes against humanity, stressing the masses of West to force their governments to response, particularly “Americanised” nations.

If the agendas established by policy makers are restricted, and the actors tasked to “bull-work” the humanitarian intervention agendas follow strict discipline and designated guidelines, simultaneously earning the trust of the masses, humanitarian intervention in this platform could bring relief to the socio-economic havoc wretched life of the masses. This initiative has been implemented for the Kurds living in northern Iraq post-Gulf War, in the early years of relief and rehabilitation initiatives in Somalia (before invasion),and deployment of UNPROFOR aid and relief units for the then civil war-stricken masses of Croatia, the then Bosnia. In the aforementioned examples, however, the strategic objectives to eliminate the factors responsible for the crisis were absent, on larger extent, the crisis devastated the lives of millions.

If the state intervening in the crisis receives armed responses that could increase volatility in the region, then the state forces intervening could deploy evasive tactics and steer away from the confrontation. The participation of Washington has been vital with relevance to its extensive experience in humanitarian intervention. During Clinton administration, the US aggressively shifted its policy of “strategic objectives dipped humanitarian intervention” and an example to this “doctrine” was largely visible during the “initial deployment of medical and food aid workers” deployed in Somalia, eliminating the “strategic discourse” while establishing an example of “stringent and self-restraining” regime. The new established theory was a perfect example of “intended humanitarian intervention” of a state, having an edge over responses taken by globally established international institution.

The change in international relations dynamics followed by acute regional, religion/ sectoral “coloured” violent conflicts has resulted into numerous debates on “humanitarian intervention as a viable tool in global politics”. The debate however, failed to separate the two theories of humanitarian intervention aforementioned discussed. This has resulted in “fragmented policies which not only failed but also became a principle factor in fuelling regional conflicts, further deteriorating an already deteriorated situation” leading to discontent and apprehension towards humanitarian intervention, while fuelling rage among the local masses and apprehensive governments towards UN actions. Clearing the “thick air” is not the purpose of this article, but many progressive steps could be taken in an effort to identify alternative theories.

Establishing outcomes from intervention

To begin with, a political tool such as an “intervention”, if introduced as a traditional mechanism in foreign policy, is troublesome even without the presence of “strategic action”, witnessed from the example of US intervention in Vietnam, or Soviet Union intervention of Afghanistan.

Using military superiority and using it to achieve desired political objectives/agendas is increasingly becoming difficult inspite of the “rightist regimes in the West”. The traditional tools of foreign policy (aggressively used by Washington during post-World War II until the end of Cold War) such as “cloak and dagger diplomacy”, “gunboat diplomacy” which elevated Washington’s position as a hegemon, benefitted many US intelligence agencies in holding many economies hostage without any resistance. In the light of globalisation, tradecraft tactics evolved and advanced weaponry, began playing a much larger role.

In 1983 when a single truck exploded inside the barracks of US soldiers, Washington which was already on an edge, withdrew the remaining stationed US forces and shifted the US foreign policy which was focussed on rebuilding and restructuring city of Beirut during post-1982 war. An aggressive President Bush Jrdid not undertake restructuring and rehabilitation initiatives in Iraq, which could have forced Washington to deploy forces in Iraq which could have instigated terror factions in targeting US soldiers. Bush understood the “careful policies implemented by Clinton administration ”particularly the actions taken by Washington in Somalia an example of “self-limiting” the objective to strictly humanitarian intervention. His objectives were very clear, turning Iraq’s fate into Bosnia was all he feared.

Since 1989, the traditional concepts of international relations have evolved. The pragmatic but traditional theories that were applicable in IR are fairly limited. This has largely been a “misconception” among traditional international relations theorists, military and political experts making their expectations uncleared:

a) Even today, traditional theorists continue to believe, that cooperation and coordination among the nations could only be effective within the UN.

b) The aforementioned notion comes from the successful restoration of Kuwaiti sovereignty after the deployment of UN forces. The resultant of the conflict created a biased approach on a half-baked truth followed by rhetorical idea that combined security initiatives would be sufficient to mobilise large troops and financial assistance to implement resolutions passed by the United Nations Security Council. The traditional theorists failed to acknowledge the presence of Washington’s “hunt for oil” and Israeli’s “security dilemma”. They also failed to foresee the lust for Middle East economies to acquire nuclear weapons.

c) Numerous severe simultaneous humanitarian crisis erupted which resulted in dictatorial regimes and failed states. The continent of Africa witnessed subsequent collapse of imperial regimes while the Central Asia witnessed the collapse of Soviet Union and the then Yugoslavia, which paved the way for ethnic conflicts, civil war and nationalist dictatorial regimes.

d) It was by now evident that, cost-efficient intervention will not be effective and even an objective focussed intervention will not bear desired results fearing which no political leadership was willing to accept the high cost of collateral damage during uninsured even in the name of “vital national interests.” Reinforced by poor political leadership in intervened states and their failure to adhere or implement any concrete domestic policy along with subsequent challenges to domestic security, decision makers “waited and watched”.

e) In colonial dominated regions particularly Africa, Latin America and Caribbean and South Asia, the concept of“ humanitarian intervention” represented the interest of traditional colonial forces in the region, paving a way to regain dominate the lost territories, particularly those with significant Muslim population. This “delusion” idea was further fuelled by the West’s retention of oil in the Gulf but refraining from taking any action against “systematic killing, ethnic cleansing” of Muslims in Serbia. Furthermore, the use of technology in the urban setting especially in the regions of Mogadishu to hunt warlord Aidid, reinforced their idea.

Strategy or Politics?

Bringing the focus back on political leadership, Bosnia was “political fore-play” which backfired. Argued by ethics professors even today, the reluctance to interfere, even after witnessing the horrors in war, mass killings, rape, gender-based violence and genocide reminding the days of World War II gripped Europe, the world has been reminded of another holocaust. It is nothing less than a betrayal to the lives of people who took a pledge “Never Again”, the pledge was disrespected by the ugly truths of international political world. When thousands of leftists were brutally murdered in Singapore, the West particularly Washington compensated the loss of lives with the fear of communist controlled Singapore. When Indonesia invaded East Timor, dismantling all trumps (sovereignty, national and territorial integrity and right to existence) of international relations, instigating a policy on mass rape, murder, extensive killing and genocide which resulted in the deaths of over half of the then population, intervention in all forms remain absent.

Perhaps evidently, inspite of genocide carried by communist regime on large scale in Cambodia, forced the West not to intervene (presence and support of China)in the Vietnam invasion of Cambodia which resulted in the end of Khmer Rouge. Policy makers must understand that, the decisions under taken by the West form a pattern: strategic objectives outweigh even the harshest and deplorable humanitarian crisis.

The aforementioned statements points towards the fact that, there is an imminent need to re-evaluate and reassess humanitarian intervention policy. Today, the masses will not accept the decision to “fight someone else’s war” irrespective of deplorable circumstances. This could come as a relief for many rightist political leadership, but it practically “chokes” the nation’s policy for humanitarian intervention.

A failed political leadership to blame?

It is important to note that, the political leadership reluctance highlights the “inadequate importance” given to the segment of humanitarian intervention in international diplomacy coupled with the “saga of failure” of global powers and international established institutions failures in the past. Coupled with the failure of political will and leadership, identifying “strategic interests” and formulating a strategy resulted in some of the worst humanitarian crisis in Haiti, Bosnia, Somalia, Rwanda. The larger responsible segment of this failure goes to liberal “appeasing” foreign policy coupled with strategic interests and domestic security preferences. Historically, Washington was pushed to take a leading role and pulled by its own masses particularly when the “stakes were too high” overseas. This “tendency” continues to thrive within power nations which is evident from the on-going Rohingya crisis in South Asia.

The fundamental issue with humanitarian intervention lies largely on “intervention” aspect rather than “humanitarian” support, the larger perception remains the same “internal violence being the only factor capable of changing the dynamics of the domestic policy of a state”. Policy makers must note that, if the nation undertakes the responsibility of providing“ clean water, food, medicine, temporary shelter for refugees and internal displaced conflict-ridden masses” limiting the action to strictly humanitarian, then nations should not consider it an “intervention” even if the host country has not acknowledged or given a formal consent. If the intervening state intents to meddle with the host state’s internal issues particularly in times of internal conflict or civil war, then the intervening state will fail even if its intentions are “humanity centred”.

It is imperative for policy makers to identify or formulate strategies of “humanitarian intervention” without instigating further violence, fuelling crimes against humanity, genocide, factors leading to further deterioration of the host state.

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International Law

Violence against Healthcare: Social and Humanitarian Implications

Alina Toporas

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Historically, medical treatment during conflict has not been taken for granted as it is nowadays. For instance, in the 16th century, soldiers were not immediately taken from the battlefield to the nearest medical treatment facility, they had to wait two or more days until their conditions stabilized. Worst case scenario, they wouldn’t make it. Their sufferings were alleviated when the first surgeon began treatment on wounded soldiers. Ambroise Pare was the one who decided to give them a chance at survival. Therefore, back in the day, the term “violence” could not be associated with “healthcare”, since there wasn’t any humanitarian assistance available in the first place.

In the 21st, violence against healthcare does very much happen. Campaigns such as “Health Care in Danger” conducted by the ICRC and reports such as the UN Special Rapporteur on the Right to Health have coined the phrase “compounded cost of violence on healthcare” as a result of this type of violence occurring.

The case of Syria is a tragic example and it might seem more relatable to the general public due to the fact that is a contemporary humanitarian disaster. In one of the reports on ‘Protecting Healthcare in Conflict’ released by the Commission of Inquiry on Syria demonstrates just how devastating is the purposeful zeroing in on the destruction of medical facilities, the targeting of health care staff and the refusal of certain ethnic groups to allow the treatment of the ill and wounded. These attacks are having consequences of paramount importance on the increasingly significant exodus of healthcare staff, the vaccination campaigns that are being sharply curtailed and the inventory that is facing a seemingly insurmountable stock-out.

Variations in Violence

The most pervasive mode of violent attacks is on the medical personnel, irrespective of the fact that they are from an INGO or belong to the local workforce.  According to Bruce Eshaya-Chauvin, medical adviser to the ICRC, “healthcare workers in conflict zones are literally being hunted down”. Through the killing by armed groups of expatriate healthcare staff, their kidnapping from the workplace, their arrests and the constant threats coming from insurgents and governments in an equal manner, not to mention the countless explosive weapons used by armed forces during combat that render medical staff collateral victims and cause them severe injuries or even death, the healthcare system is being shattered from its roots.

Interesting cases have occurred when medical staff have been threatened to provide care for specific ethnic groups during the hijacking of an ambulance. An assistant medical coordinator at the ICRC in Bangui, Central African Republic recalled an instance in which she was “threatened by armed men who insisted on getting in the car and making us take them where they wanted to go. When we tried to explain our work to them they became angry and threatened us with machetes and rifles.” (“Effects of Violence on Healthcare”, 2014)

Another way through which violence against medical staff can be seen is through the limitation imposed by armed groups on the doctors while practising their jobs. For instance, a certain Dr. Cox talked to Discovery News about the rules of war and his experiences in Congo by saying that due to mortar rounds having fallen near the hospital, he had to tap the windows of the operating room to prevent them from shattering and perform the surgery while wearing body armour. This severely limits the way they practise medicine and puts them under constant psychological terror.

Violent events that are affecting the healthcare system as a whole are also those aimed at healthcare buildings. By buildings, it is meant hospitals, blood transfusion centres, laboratories, first-aid centres and those buildings in which medication and medical equipment is stored. Healthcare infrastructure is being hit by weapons during conflict, is being entered into by police and state armed forces or is being occupied for strategic reasons by armed groups. This ultimately leads to hospitals being unable to run generators because of lack of fuel or to the same healthcare buildings running out of drugs. According to the World Health Organization, 37% of the hospitals from Syria have been destroyed, while 20% have been severely damaged. There, the hospital under MSF jurisdiction was completely destroyed together with the rest of the town. This was the only hospital with surgery capabilities and the ability to provide treatment for tuberculosis and HIV for 270,000 people. Having suffered such a high degree of destruction – medical equipment, laboratory work and blood transfusions being thoroughly dismantled – it became extremely difficult for MSF to resume its activities. Nevertheless, the MSF personnel did manage to resume its activities by treating approximately 1,600 malnourished children only in the first 3 weeks.

Violent events also affect healthcare transportation. By transportation, it is meant medical vehicles such as ambulances, medical aircrafts, medical ships and machines used for the transportation of medical equipment or medical supplies. These vehicles are being attacked while en route by armed groups or state armed forces, they are being damaged by the same groups with the help of explosive devices and, most commonly, are being delayed and harassed at checkpoints. According to the Syrian-American Medical Society, 78% of the ambulances operating on Syrian territory have been badly damaged. The most representative cases in point are the attacks on healthcare infrastructure happening in Libya, thoroughly reported by the international media and the aid organizations.

Patients are also being attacked. Some even refuse to go to the hospital for fear of being identified by their wounds. Bijan Farnoudi, from the ICRC, told Al Jazeera that “a lot of the time they die because the ambulance didn’t make it in time, because the hospital they were trying to seek shelter in was destroyed the night before, or because they were simply too scared to travel to make it to the nearest clinic”, the latter also being a type of psychological violence against patients.

Doctor Rubin Coupland, a British war surgeon from the ICRC, is also advocating for the safety and dignity of patients by encouraging for the speeding of ambulance inspections at checkpoints. “It should take maybe five minutes to inspect an ambulance, not five hours”. He goes on to say that “you don’t have to put dogs in the ambulances to run all over the patients, as we’ve seen, to check for explosives”.

Another way through which patients are suffering from violence is by being abducted. For instance, in January 2014, the police raided a Ukrainian centre of the Red Cross. This event escaladed even further and the healthcare workers soon found themselves being shot at while witnessing the abduction of their wounded patients (“Attacks on Healthcare”, 2014)

Consequences of violence against healthcare

According to the Iraq’s health ministry, 18,000 out of 34,000 doctors fled the country between the years of 2003 and 2006 due to increasing violence. That led to the breakdown of the country’s health system, according to the founder of the NGO, Doctors for Iraq. The same individual warns that there are only 11 surgeons in Mogadishu, the Somali capital, “if anyone was killed, there would be no one to replace them”.

The worst-case  scenario in this situation is the complete withdrawal of entire agencies from disease-ridden areas. Unfortunately, this is not simply a scenario. For instance, MSF decided to pull out of Somalia in 2013, after 22 years of continuous humanitarian work due to the fact that 16 of its workers had been killed since 1991 and several had been attacked.

Both the fleeing and the withdrawal of healthcare workers have preposterous implications. The skills of these workers are often irreplaceable and the ability to recruit people after all the previous attacks becomes exceedingly problematic since they all have even more reasons to be afraid of getting killed.

There seems to be a whole campaign out there that has as its main purpose the targeting of anti-polio healthcare staff. For instance, only in Pakistan, in December 2012, 9 anti-polio workers were killed by gunshots, which led the United Nations to decide against the continuation of the eradication program in that zone of conflict. Approximately 2 weeks after this unfortunate incident, other 7 more workers, assigned to do community development work, were killed only because they were associated with the anti-polio work carried out by their colleagues. In February 2013, this time in Nigeria, members of an Islamist group killed 9 other healthcare workers. Since 2012, a shocking 60 healthcare workers dealing with anti-polio vaccinations have been killed, threatening a polio “renaissance”.

The same issue applies in terms of non-infectious chronic diseases. Because of this “militarization of healthcare”, many refugees are more predisposed towards overcharging and exploitation since they are not in their home country. Adjacently, the surge in non-infectious chronic diseases in war zones is something to keep an eye on since they are progressively in the foreground. Proof gathered from both natural disasters and warfare points out to the excess in mortality and morbidity as caused by non-infectious diseases such as diabetes, hypertension and cancer. Moreover, not being able to access basic medical care leads to a propensity towards outbreaks of cholera, dysentery, typhoid or hepatitis.  All those seemingly routine blood tests needed for chronic diseases, such as the thyroid stimulating hormone or different types of medications like an asthma inhaler become unavailable when violence against healthcare buildings, ambulances or stores occurs. Maternal deaths are another reason why the lack of international healthcare or the lack of access to it is so sharply felt. These deaths – that can otherwise be considered preventable – happen because of mishandled home deliveries, all the missed abortions which in many cases led to sepsis and all the conflict-related impediments that constrain both patients and physicians’ access to one another.

Since many doctors are being considered “enemies of the regime” for treating protestors, for instance, they are constantly targeted which makes hospitals unsafe places to seek treatment in. That leads to an increase in the setting up of alternative places to practice “medicine” such as makeshift hospitals, underground networks of healthcare workers or, in some cases, somebody’s living room.  People choose to be treated in these parallel healthcare establishments for fear of being arrested or, even worse, tortured by their ethnic group for entrusting their health to these medical practitioners that are viewed as foes. However, these places have unsustainable and disjointed care.

Non-measured, non-existent…

“What we are surprised about is how much these incidents almost go unnoticed” said Yves Daccord, the Director-General of the ICRC. This is probably due to the fact that all of these repercussions brought by violence on the healthcare system are equally tough to measure. As Rudi Coninx from the Emergency Risk Management and Humanitarian Response department at the World Health Organization stated, “If you ask someone at WHO, ‘What is the extent of the problem?’, if they were honest, they would say, ‘I don’t know’, as nobody collects these data in a systematic way”.

Legal Provisions 

A year after the creation of the ICRC, the Geneva Convention of the 1864 set the legal basis for the neutrality and protection of medical personnel, hospitals and ambulances against violence during active combat (ICCR, 1864). However, the Geneva Conventions that are currently serving as the legal frameworks for the carrying of medical activities in armed conflicts were negotiated in 1949. They were subsequently amended with the inclusion of the Additional Protocols that were meant to take into consideration newer types of conflict. However, these violations of the law go far beyond the principles enshrined in the Geneva Protocols. According to the Special Representative of the Secretary-General for Children and Armed Conflict, Leila Zerrougui, the aftermath of conflict affects children’s right to healthcare, in terms of their ability to access healthcare services during wars and the difficulties encountered by the healthcare personnel in providing for their most basic needs. That happens in spite of the legal framework constructed by the United Nations Security Council in which the protection of children in conflict zones is rendered a priority. The denial of humanitarian access to healthcare services is situated among the other six violations classified by the UNSC as gravely affecting the wellbeing of the children. Another violation is represented by the attacks on hospitals and schools. The main idea is that all of these violations are inadequately covered in the current legal framework meant to protect healthcare in conflict zones.

Refashioning the System                              

Steps towards the remodelling of the healthcare system have already been taken starting with the mere acknowledgement of the problems posed by the violence against healthcare. For instance, in May 2011, at the World Health Assembly, the government expressed avid interest towards the matter by simply admitting violence against healthcare does happen; more than that, it is pervasive and something needs to be done about it.

Nonetheless, this is not the stage at which things should be stopped. Appropriate measures to advance the delivery of healthcare by enhancing security need to be taken both within the health community itself and in the arenas of politics, law by creating standard operating procedures within the military and enhancing humanitarian dialogue. For example, in the realm of politics, the obstruction in the manufacture and trade of light weapons and small arms could lead to less civilian deaths in active combat. Another solution to protect healthcare workers is to establish a special protection force. Furthermore, something that is already being done with leaders of rebel groups such as Charles Taylor is the prosecution of attack perpetrators on healthcare personnel at the International Criminal Court.

“One of the first victims of war is the healthcare system itself”, as Marco Balden interestingly stated. Some even believe that the legal framework is not as relevant anymore due to the urgency and importance of the matter. For instance, Paul Christopher Webster, an award-winning documentary film director who has reported from 20 countries since 1992, sustained the idea that “we need to focus on the consequences and not get bogged down in legalistic debates”. He then went on to say that “this issue [violence against healthcare] is very real and very important for huge numbers of patients”.   Regardless of differing opinions, what needs to be borne in mind is that the sick and the wounded are being denied healthcare that can make a difference between life and death when healthcare workers and killed, injured or threatened and when ambulances and hospitals are rendered non-functional.

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