Photo credit: Marines, “No Marine Left Behind,” Flickr, CC BY-NC 2.0.

For over 150 years, international humanitarian law (IHL) has protected medical care for wounded combatants, whether friend or foe.[1] These protections inject a vital dose of humanity into the devastation of war. The global fight against terrorism has taken a turn that threatens to erode this foundational ethic of IHL.[2] At the same time, aggressive state responses to terrorism illuminate how IHL medical-care protections, while extensive, are often fragmented and non-comprehensive.

In 1864, states agreed to a pioneering IHL treaty on medical care. It required that the wounded and sick combatants of the warring states who are rendered hors de combat (out of the battle) be protected and cared for. Over time, those safeguards were extended to all wounded fighters hors de combat of all parties in all armed conflicts. So long as they refrain from any act of hostility and do not attempt to escape, those fighters must be given all feasible medical attention.[3] And the parties must provide that care impartially: that is, as required by the condition of the wounded, on the basis of medical need, and without any adverse distinction based on grounds other than medical ones.[4]

Protections for the wounded would be largely meaningless without access to medical personnel and supplies. So IHL also shields those engaged in medical care and the means they need to do so. Where assigned by a party to the conflict exclusively to provide such care, medical personnel, transports, and units benefit from a special status (beyond that conferred on combatants, civilians, and civilian objects) under IHL.[5] They may not be knowingly attacked, fired upon, or unnecessarily prevented from discharging their proper functions. That protection may not cease unless those personnel commit or those transports or units are used to commit—outside their humanitarian function—acts harmful to the enemy. Even then, that special protection for units and transports may cease only after a warning has been given, setting, whenever appropriate, a reasonable time limit, and where that warning has gone unheeded. Moreover, at least in conflicts between states, certain medical personnel may not be detained but rather only retained—and then only if the condition and numbers of prisoners of war merit it. Nor may medical personnel be punished for having provided medical care, even to the enemy wounded.

The rationale underlying these norms arose out of the experience of interstate wars in Europe in the mid-nineteenth century. States have reaffirmed the basic reasoning fairly regularly since. The short version is that as legally recognized participants in hostilities, able combatants may be targeted at anytime during an armed conflict. Yet once incapacitated—such as through wounds, sickness, or capture—they are considered hors de combat and thus no longer present an active threat. So long as they refrain from any act of hostility, they may not knowingly be attacked, fired upon, or unnecessarily interfered with. Not only that, they must also be cared for impartially and to the greatest extent feasible. States thereby struck a balance—part practical, part moral—to keep medical care for the wounded and sick above the conflict.

A lynchpin of this normative structure is that the warring parties need to assign, recognize, and authorize—in a word, control—their medical personnel, transports, and units. That is because states were willing to opt in to protections for the enemy wounded in part by requiring that all parties effectively oversee their respective medical personnel and objects. Feigning the special legal status gravely undermines the protections for the wounded. Falsely claiming that protection is therefore a serious breach of the law.

Strikingly, since 1864, states have also established legal protections for unassigned medical caregivers (those not authorized and controlled by a party to the conflict).[6] Those caregivers may, on their own initiative, assist the wounded and sick. And while doing so the warring parties may not knowingly direct attacks against them, either. Moreover, at least in conflicts between states, these caregivers may never be convicted or mistreated for having nursed the wounded of any party. Yet in keeping with the system of control underlying the balance struck by states, the protections for these unassigned caregivers are more limited than those for the authorized medical personnel of a party to the conflict.

Today, some state responses to terrorism reject two of the premises underlying the IHL protections for medical care.

First, counterterrorism policies recast medical care as a form of illegitimate support to the enemy. In comparison, according to the International Committee of the Red Cross (ICRC), the “dominant idea behind” the First Geneva Convention of 1949 is that “medical treatment, even where given to enemies, is always legitimate, and does not constitute a hostile act. Medical personnel are placed above the conflict.”[7]

Second, counterterrorism policies reject the corollary proposition that a terrorist organization may assign a medical corps to work under its authority. Thus, domestic anti-terrorism legislations often prohibit medical caregivers from acting under the direction and control of terrorist groups. In comparison, the IHL system of protection of medical care hinges partly on mutual trust between the warring parties. The display of the Geneva Conventions’ distinctive emblems is perhaps the most visible manifestation of that trust. Displaying those emblems notifies the opposing side that the personnel and objects bearing them claim to benefit from special protections. IHL requires the warring parties—including non-state organized armed groups (OAGs)—to safeguard that trust by overseeing and controlling their own medical personnel, transports, and units.[8]

These IHL protections are deeply rooted. Yet despite their lineage they do not fully cohere across all states and all conflicts. Nor are those IHL protections exhaustive.

In short, the lex lata (the law as it currently stands), while extensive, is fragmented and non-comprehensive. Some important IHL medical-care protections apply only to some states or to some categories of armed conflict. And certain aspects of the contemporary practice of wartime medical care have little to no effective protection under IHL whatsoever.

This fragmentation and these gaps would exist irrespective of whether the relevant armed conflict involves terrorism. But prosecutions of physicians for wartime medical care to terrorists—coupled with an expanding United Nations Security Council counterterrorism framework—cast a spotlight on these issues.

Mixing Counterterrorism Frameworks with Varying Applicability and Non-comprehensive Coverage of IHL

The U.N. Security Council anti-terrorism framework marks a growing worldwide effort to standardize the fight against terrorism. Powerful states have elevated the suppression of support to terrorism at home and abroad, as well as sanctions based on terrorist group membership or affiliation, to the status of essential international goals.

Since 1999, the Council has adopted a growing set of counterterrorism decisions. Through them, states are required to impose sanctions against hundreds of individuals and dozens of groups as well as to suppress and prevent terrorism more generally. These Security Council counterterrorism obligations and the domestic measures implementing them efface the line—already often difficult to draw—between peacetime and wartime. They also graft additional complexity onto the intricate international law regime applicable to armed conflict.

To fulfill these Council obligations and to safeguard their national-security interests, states are implementing increasingly forceful and multi-faceted approaches to preventing, disrupting, and punishing terrorism. In general, neither these Council resolutions nor many of the domestic legislations implementing them fully exempt impartial wartime medical care—even in circumstances where such care would be protected under IHL.

For their part, none of those IHL protections is weakened for an enemy if she is defined as a terrorist. For instance, under IHL no wounded fighter may be denied medical care due to a terrorist designation.

Yet state responses to terrorism highlight already existing fault lines in the IHL landscape of medical-care measures. A threshold problem is that some states refuse to recognize the existence of an armed conflict involving terrorists at all. Or, where they do recognize one, states may not indicate when they consider the conflict to have begun, by what criteria it will end, its geographic scope, and whom it encompasses.

Moreover, not all IHL medical-care measures are universally applicable to all armed conflicts. The oldest fault line is the disparate extent to which the legal regime protects medical care in the two types of armed conflict recognized under IHL: international armed conflicts (IACs) and non-international armed conflicts (NIACs). Traditionally, IHL imposed many more medical-care obligations in IACs than in NIACs. In the 1970s, states attempted to create a more uniform and comprehensive regime. Those efforts met success insofar as states opted into the resulting treaties flattening many of those distinctions. But because numerous states did not contract into the new conventions, those efforts simultaneously exacerbated the fragmentation between states and across conflicts. Over all, selective participation in the legal regime has led to significant variance in states’ medical-care obligations.

Meanwhile, an array of medical-care rules has crystallized into customary IHL (which binds all states, regardless of whether the state is a party to a relevant treaty[9]). But a number of important customary IHL medical-care rules identified by the ICRC in a pioneering study lack, in our view, sufficient evidence of states’ buy-in. Nor do developments in international human rights law (IHRL) or international criminal law (ICL) fully resolve the fragmentation or fill the gaps in the IHL protections for medical care.

The upshot is that, even in the same conflict, different parties may be subject to different medical-care obligations. Consider the following examples. Both parties in an IAC are obliged to care for the enemy wounded and sick hors de combat. Yet one party may be obliged additionally to care for all wounded and sick civilians, while the other party may be required only to facilitate steps to assist civilian authorities in doing so.[10] Moreover, in one NIAC the state may be prohibited from punishing anyone who provided medical care compatible with medical ethics to the enemy. While in a separate NIAC even that same state could have no IHL obligation that would preclude such punishment. Finally, in an IAC a state party may retain certain captured medical personnel only in limited circumstances. Yet in a NIAC IHL imposes no such limitations on the detention or retention of medical personnel.

Furthermore, even the most extensive IAC and NIAC treaties do not exhaustively protect all facets of contemporary wartime medical-care practices. To date, for instance, IHL does not address independent caregivers seeking to travel to conflict areas to treat the wounded and sick in terrorist-controlled territory where the needs of civilians and fighters hors de combat are often greatest.

Practical Stakes

As part of their response to terrorist threats, some states attack medical caregivers and some abuse, withhold, prevent, or punish medical care. Attacks directed at health-care facilities in terrorist-controlled areas and the use of health-care professionals in the abusive treatment of alleged terrorists have been widely condemned.[11] So, too, have denials of medicine to populations under the control of terrorist groups.[12] Our inquiry focuses on another element: how, often with the legal force and political backing of the U.N. Security Council, some states penalize—during wartime (as well as peacetime)—diverse forms of support, including medical care, to terrorist organizations.[13]

Across recent and current armed conflicts, state responses to terrorism have cast a spotlight on the scope and implementation of IHL protections for medical care:

  • During its internal armed conflict, Peru prosecuted physicians for providing medical assistance to members of Sendero Luminoso (the Shining Path);[14]
  • Colombia penalized a medical professional who managed the longer-term specialized care of members of the Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia, or FARC);[15]
  • Syria detained physicians who gave medical care to wounded opposition fighters designated as terrorists,[16] and it attacked health-care facilities in terrorist-controlled areas;[17]
  • The United States prosecuted an American physician for agreeing to be an “on call” doctor for wounded members of al-Qaeda the next time he travelled to Saudi Arabia;[18] it penalized a different American seeking to travel to Iraq and Syria to provide medical care to wounded members of the Islamic State of Iraq and al-Sham (ISIS) and in hospitals in ISIS-held territory;[19] and it prosecuted a Canadian in part for providing English lessons in an al-Qaeda clinic in Afghanistan in order to assist nurses in reading medicine labels;[20] and
  • Australia and the United Kingdom are evaluating whether to penalize, upon their return, medics who have reportedly provided medical care in ISIS-held territory, including, potentially, to members of ISIS.[21]

Over the last quarter-century, terrorists and other non-state actors have controlled access to civilian populations in a variety of armed conflicts. Consider Afghanistan, Chechnya, Colombia, Gaza, Iraq, Lebanon, Mali, Nepal, Nigeria, Pakistan, Peru, the Philippines, Somalia, Syria, and Yemen (among others). The number and effects of terrorist attacks are reportedly increasing around the world. And states are designating more organized armed groups as terrorists. We therefore expect that these questions will become more salient and more urgent in a growing number of theaters.[22]

Normative Inquiries

To better understand contemporary practices and controversies, we explore IHL and potential trends in state responses to terrorist threats. Five sets of normative questions frame our inquiry:

  • Most fundamentally, in an armed conflict involving terrorism, should impartial medical care remain “above” the conflict, or should such care be seen as an impermissible form of support to terrorism? Is there something different about situations of armed conflict involving terrorism and “traditional” interstate wars for which the key humanitarian protections were first legally enshrined? What about the notion of a “global” war on terrorism in comparison to internal civil wars?
  • Should the position on punishment matter if the medical caregiver takes sides in the hostilities? What if she aligns with the terrorist group’s ideology or swears an oath of allegiance to the group but still impartially provides care to all in need of medical attention? How much should membership in or affiliation with the adverse party matter, if at all, for protections for medical caregivers in war?
  • Does the calculus shift where a terrorist group controls access to a civilian population? What if the health-care facilities available to the former are the same as those available to the latter?
  • In light of modern developments, such as the relative ease of international travel and the proliferation of large multinational humanitarian organizations, do the theories underlying legal distinctions crafted in earlier eras—especially on assigned versus unassigned medical caregivers—retain their normative salience today?
  • What costs are inflicted on the normative regime when a state focuses on punishing their citizens and foreign nationals who have travelled to conflict areas to provide impartial medical care upon their return? What about when a state focuses on preventing them from doing so in the first place?

Humanitarian Principles in a Counterterrorism World

IHL treaties lay down extensive protections for military and civilian personnel assigned exclusively to medical duties by a party to the conflict. Those conventions also provide protections (though far fewer) for medical caregivers who are not assigned by a party. International and local humanitarian non-governmental organizations (NGOs), as well as unaffiliated individuals, may thus be at greater risk.[23] Yet due to the nature of many armed conflicts involving terrorists, it is precisely those unassigned humanitarian NGOs and individuals who are often most likely to provide medical assistance to terrorists.

Generally, engaging in “principled” humanitarian action—including where it encompasses providing medical care to the wounded and sick hors de combat in armed conflict—means adhering to the principles of humanity, impartiality, and independence.[24] The principle of humanity dictates that organizations must focus on alleviating human suffering.[25] The principle of impartiality means being guided by needs, prioritizing those with the greatest need, and not discriminating adversely against those in need.[26] And the principle of independence means being sufficiently autonomous from governments so that the organization can act in accordance with humanitarian principles. Many humanitarian organizations are also guided by a fourth principle: neutrality. That principle generally means not taking sides in hostilities or in ideological, racial, religious, or political controversies.

Adhering to these principles, which are referenced in an IHL treaty,[27] is meant to distinguish humanitarians from other actors on the battlefield. The perception among warring parties of whether an organization adheres to these principles is often central, as a matter of practice, to obtaining and maintaining access to deliver humanitarian relief.[28]

States regularly endorse these humanitarian principles. The December 2014 U.N. General Assembly resolution concerning attacks on health workers is a recent example. The General Assembly reaffirmed those four humanitarian principles as well as the need for all actors engaged in providing humanitarian assistance in armed conflicts to promote and fully respect them.[29]

Yet despite states’ support for principled humanitarian action, the rationale underlying certain humanitarian principles—especially neutrality—runs into the with-us-or-against-us logic underpinning many anti-terrorism agendas. While neutrality means not taking sides, those counterterrorism approaches require it.

As a legal expert at the ICRC, Jean Pictet was an architect of the Geneva Conventions and their Protocols. In 1979, he foregrounded this dilemma from a classical humanitarian perspective:

If anyone presents the Red Cross with the well known and destructive dilemma embodied in the phrase, “whoever is not with me is against me”, may it always reply, “I am with all those who suffer, and that is sufficient”.[30]

Today, Pictet’s argument must confront counterterrorism policies head-on.

Indeed, for principled humanitarian organizations like the ICRC, counterterrorism framings present an existential threat. Amid swelling concern, in 2011, the ICRC called for states to exclude from anti-terrorism legislations activities that are exclusively humanitarian and impartial in character and are conducted without adverse distinction.[31] Otherwise, prohibitions of medical services to persons rendered hors de combat as support to terrorism would “call into question the very idea behind the creation of the ICRC—and subsequently of National Red Cross and Red Crescent Societies—over 150 years ago.”[32]

Outline

The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate IHL protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly.

In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge. These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats.

The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet, as noted above, so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for designating those who facilitate such care as terrorists themselves.

The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness—or, at least, the indeterminateness and variability—of the normative framework.

At first glimpse, the legal protections for medical care to an ISIS fighter or a member of the Shining Path may seem relatively unimportant. But those safeguards represent a fundamental thread that ties the larger tapestry of IHL protections together. Pulling that thread risks unraveling the broader wartime international law protective regime—a regime that aims, however imperfectly to date, to cover not only terrorists but all wounded people in armed conflict: military and civilian, terrorist and non-terrorist alike.

Following this Introduction, in section 2 we summarize key relevant concepts in the laws of armed conflict and state responses to terrorism. We put forward working definitions of terrorist and terrorism for purposes of the report. We also outline contemporary definitions of armed conflict found in international law. And we briefly discuss the distinctions and overlaps between IHL and the frameworks in which states respond to terrorism, including the potential statuses of terrorists under IHL.

In section 3, we trace the long history of the development of international legal protections for impartial medical assistance in armed conflict. We show how—as a corollary to the care for wounded combatants, prisoners of war, and civilians—states agreed to IHL treaties requiring respect and protection for those who provide wartime medical care. Yet we note a problem in the normative framework: not all IHL medical-care measures are universally applicable to all armed conflicts. We trace the oldest fault line: the extent to which the legal regime protects medical care in the two types of armed conflict recognized under IHL—international armed conflicts (IACs) and non-international armed conflicts (NIACs). Such protections in IAC treaties have been regulated for over a century and a half. Yet for a long time there were no international legal protections for medical care in internal conflicts or civil wars. In 1949, Common Article 3 introduced basic provisions, but those did not come close to the extensive medical-care protections found in IAC treaties. As states attempted to create a more uniform and comprehensive regime in the 1970s, the resulting treaties flattened many of those distinctions for contracting states. But because numerous states did not become party to the new treaties, those efforts simultaneously exacerbated the fragmentation between states and across conflicts. The result is that the scope of IHL protections for medical care may be vastly different between states and across types of armed conflict—or even for the same state between types of NIACs.

Next we discuss how, in principle, customary international law—those rules of international law deriving from and reflecting a general practice accepted as law[33]—could fill those gaps in the lex scripta: between states party and those not party to the Additional Protocols; between IACs and NIACs more generally; and between different types of NIACs. With respect to some elements of wartime medical care, the most extensive evidence accumulated to date (the ICRC’s pioneering Customary IHL Study) does not, in our view, meet the necessary criteria for customary law: It does not reflect sufficiently uniform, extensive, and representative state practice; nor does it reflect dense enough evidence of such practice being undertaken due to a legal conviction. Meanwhile, some important facets of the contemporary practice of wartime medical care remain lightly regulated or even unaddressed in IHL. Finally, we highlight complementary developments in the related fields of IHRL and ICL. But we note that those developments in IHRL and ICL, while buttressing protections already recognized in IHL, do not fully resolve the fragmentation or fill the gaps in the protections for medical care.

In section 4, we spotlight the two major sets of IHL protections for impartial wartime medical care concerning terrorists. Since IHL does not contemplate the status of terrorist as such, we explain what types of protections exist across the various statuses terrorists may have under IHL (having sketched those statuses in section 2).

We first outline the entitlement to and the protection of medical care for the wounded and sick hors de combat and for wounded and sick civilians. These protections cut across such categories as the search for, collection, and evacuation of the wounded; the provision of all feasible medical care to them impartially; respecting and protecting the wounded, including against attacks; protecting them against ill-treatment and pillage; and treating them humanely. This set of protections also encompasses prohibitions on certain medical, scientific, and biological experiments and related procedures. We include protections for civilians in our analysis for two reasons. First, certain terrorists may have civilian status under IHL. And second, attempts to curtail care specifically for terrorists may significantly diminish civilians’ access to medical attention more generally.

We then sketch the second set of protections: the most salient aspects of the corollary protections for medical caregivers, transports, units, and supplies. This category includes protections ranging from the respect and protection due to medical personnel, transports, and units—including against direct attack—as well as protections for certain medical personnel in IACs who, upon capture, may be retained but not detained. It also encompasses, under some treaties, prohibitions on punishing medical caregivers. Lastly, this subsection discusses the IHL provisions establishing the terms of use of the protective emblems of the Geneva Conventions.

Throughout, we note areas of overlap, but also areas of divergence, between various sets of IHL treaties and rules put forward in the Customary IHL Study. The resulting portrait is of a somewhat fragmented, intricate, fact-dependent normative regime—one marked by many areas of substantive agreement but also important protective gaps.

In section 5, we discuss how states are attempting to prevent, disrupt, and punish terrorist threats. We briefly note that, despite the proliferation of international anti-terrorism treaties, states have yet to agree on a general anti-terrorism convention. We also quickly outline developments concerning customary international law. We then focus in more depth on the relatively recent ascendance of the globally oriented anti-terrorism regime emanating from the U.N. Security Council. Through these Council resolutions, states are required to impose sanctions against hundreds of individuals and dozens of groups as well as to suppress and prevent terrorism more generally. In imposing these obligations, as noted above, the Security Council has not fully exempted impartial wartime medical care, even in circumstances that would render such care protected under IHL. By potentially inviting states to ignore IHL obligations regarding medical care for terrorists, the Council’s approach may indirectly jeopardize access to medical care for wounded civilians in conflict areas.

Finally, we discuss the domestic jurisprudence of three states—Colombia, Peru, and the United States of America—where legal proceedings concerning wartime medical care to terrorists have been instituted.

In the Conclusion, we emphasize that states and international organizations should more consciously and more deliberately weigh the costs and benefits of weakening medical-care protections through their counterterrorism frameworks.

Finally, in the Compendium, we provide verbatim excerpts of medical-care protections in the lex scripta of IHL.

A few caveats: The research was conducted primarily in English and thus generally does not comprehensively take into account secondary sources in other languages.[34] While it reflects research into numerous jurisdictions spanning every continent (except Antarctica), our analysis is nonetheless non-comprehensive in terms of its survey of domestic counterterrorism legislations. We do not focus on attacks on medical caregivers. Nor do we focus on the use of health-care professionals in the abusive treatment of detained (alleged) terrorists,[35] or on the role of military medical service members in providing terrorists with medical care.[36] We limit our study to those, outside of the military medical service, generally dedicated to medical care in armed conflict. We thus omit caregivers who actively participate in hostilities or who (also) knowingly and intentionally provide non-medical forms of assistance to fighters. Nor does our analysis address protections for health-care professionals in situations not arising to an armed conflict under international law. Due to the relative rarity of warfare at sea involving terrorists, we generally do not address protections for shipwrecked wounded and sick persons. Lastly, none of us is a physician (nor otherwise professionally medically trained). The report therefore does not reflect the insights of those who have faced the normative and operational dilemmas identified in this report.

One of our chief aims in this report is to provide key reference points for further exploration as well as an initial analytical framing of the main considerations. We also hope that this report will spark debate on how to safeguard impartial medical care for all wounded and sick persons in armed conflict.

Footnotes

[1] In this report, in referring to the body of international law applicable in armed conflict, we primarily use the term international humanitarian law (IHL); this body of law is also known as the laws of armed conflict and the jus in bello. See, e.g., the brief discussion in Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 13–14 (2d ed., 2004).

[2] Throughout this report, we use the terms terrorist and terrorism as defined infra (Section 2: “Definitions and Incidence of Terrorism”). In doing so, we do not seek to weigh in on the legal status (under IHL, other fields of international law, or domestic law) of any of the individuals or groups potentially falling within those definitions.

[3] See infra Section 4: “Entitlement to and Protection of Medical Care for the Wounded and Sick Hors de Combat — All feasible medical care as soon as practicable and on an impartial basis guided by medical grounds.” See also article 41(2) AP I. Further on the hors de combat construct, see, e.g., Michael N. Schmitt, “Targeting in Operational Law,” in The Handbook of the International Law of Military Operations 268 (eds. Terry D. Gill and Dieter Fleck, 2010) (“A person is hors de combat if as a result of wounds or sickness he is no longer able to continue to fight. Merely being wounded is insufficient, for many wounded combatants can and do continue fighting. The key, therefore, is that the individual concerned be unconscious or otherwise incapacitated. The incapacitation does not have to result from hostile action. Combatants who are ill may also be incapacitated.”); Yoram Dinstein, Non-International Armed Conflicts in International Law 164 (2014).

[4] See infra Section 4: “Entitlement to and Protection of Medical Care for the Wounded and Sick Hors de Combat — All feasible medical care as soon as practicable and on an impartial basis guided by medical grounds.”

[5] For more on the technical scope of the protections outlined in this paragraph, see infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Respect and protection of medical personnel, units, and transports: prohibition on knowingly attacking, firing upon, or unnecessarily preventing them from discharging their proper functions” and id. at “Capture, detention, and retention.”

[6] For more on the technical scope of the protections outlined in this paragraph, see infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies.”

[7] ICRC, Commentary on GC I, p. 192 [italics added].

[8] ICRC, Commentary on APs, para. 736 [italics added].

[9] But see the so-called “persistent objector” rule. See, e.g., Olufemi Elias, “Persistent Objector,” Max Planck Encyclopedia of Public International Law, Online version, last updated: September 2006.

[10] On the technical scope of obligations in this paragraph, see infra Section 4.

[11] On attacks on health-care facilities, see, e.g., Ben Hubbard, “ISIS-Imposed Fuel Embargo Threatens Syria’s Medical Centers,” New York Times, June 18, 2015, available at http://www.nytimes.com/2015/06/19/world/middleeast/isis-imposed-fuel-embargo-threatens-syrias-medical-centers.html [https://perma.cc/3BVK-VPEF] (reporting that “[i]nternational aid groups sounded the alarm on Thursday about Syrian government attacks on medical facilities in opposition-controlled areas.”); on the use of health-care professionals in the abusive treatment of alleged terrorists, see, e.g., International Committee of the Red Cross, Report on the Treatment of Fourteen “High-Value Detainees” in CIA Custody, February 2007, pp. 21–23, available at http://assets.nybooks.com/media/doc/2010/04/22/icrc-report.pdf [http://perma.cc/G6MX-C7AQ]; U.N. Commission on Human Rights, Situation of Detainees at Guantánamo Bay (Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt), U.N. doc. E/CN.4/2006/120, February 27, 2006, paras. 66–82, 92–94. See also the discussion and citations in Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law 49–67 (2015) [hereinafter Mehring, Medical Ethics in IHL].

[12] U.N. Human Rights Council, Report of the independent international committee of inquiry on the Syrian Arab Republic, U.N. doc. A/HRC/28/69, Feb. 5, 2015, Annex II, “Violations documented between 15 July 2014 and 15 January 2015,” para. 264, p. 60 (stating that “Government forces instrumentalise the basic needs of civilians, including access to medical care and food, as part of a military strategy to erode civilian support in areas under non-State armed group control and punish those perceived to be affiliated with armed groups. By refusing to permit humanitarian delivery of medical supplies to the civilian population, the lives of women, men and children are put at grave risk. Civilians are indiscriminately targeted by a systematic policy to prevent access to medical assistance. [...] The denial of medicine has no military justification and is used as part of a punitive strategy.”); see also S.C. Res. 2139 (2014), para. 6 (the Security Council, in relation to the armed conflict in Syria, “[d]emands that all parties, in particular the Syrian authorities, promptly allow rapid, safe and unhindered humanitarian access for UN humanitarian agencies and their implementing partners, including across conflict lines and across borders, in order to ensure that humanitarian assistance reaches people in need through the most direct routes”).

[13] See Leonard S. Rubenstein, “Punishing Health Care Providers for Treating Terrorists,” Hastings Center Report 45, no. 4 (2015), 13–16.

[14] De La Cruz-Flores v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 115 (Nov. 18, 2004).

[15] Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 27227, May 21, 2009, p. 3.

[16] U.N. Human Rights Council, Report of the independent international committee of inquiry on the Syrian Arab Republic, U.N. doc. A/HRC/25/65, Feb. 12, 2014, para. 111 (“Medical staff suspected of treating or providing medical supplies to the opposition were detained and tortured, as in the case of Dr. Abbas Khan, who died in government detention on 17 December.”) and Annex VII, “Assaults on Medical Care,” para. 21 (concluding that “[a]nti-terrorism laws issued on 2 July 2012 effectively criminalised medical aid to the opposition. Laws 19, 20 and 21 contravene the customary international humanitarian law rule that under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”); Aryn Baker, “Syria’s Health Crisis Spirals As Doctors Flee,” Time Blog, February 4, 2014, available at https://time.com/3968/syrias-health-crisis-spirals-as-doctors-flee/ [https://perma.cc/D3JW-98ZD] (reporting that, “In July 2012, the Syrian government passed an anti-terrorism law that effectively made it a crime to provide medical care to anyone suspected of supporting the rebels. Ahmed was caught between the Hippocratic oath—a doctor’s promise to treat every patient—and the growing pressure to take sides. “The regime said ‘Why are you helping the Free Army?’ and the Free Army said ‘Why are you helping the regime?’”).

[17] Ben Hubbard, “ISIS-Imposed Fuel Embargo Threatens Syria’s Medical Centers,” New York Times, June 18, 2015, available at http://www.nytimes.com/2015/06/19/world/middleeast/isis-imposed-fuel-embargo-threatens-syrias-medical-centers.html [https://perma.cc/3BVK-VPEF] (reporting that “[i]nternational aid groups sounded the alarm on Thursday about Syrian government attacks on medical facilities in opposition-controlled areas.”).

[18] U.S. v. Shah, 474 F.Supp.2d 492, 498–499 (2007); U.S. v. Farhane, 634 F.3d 127, 140–141 (2011); id., partial dissent of Chief District Judge Dearie, at 175, 181 fn 8.

[19] See, e.g., U.S. v. Conley, “Plea Agreement and Statement of Facts relevant to Sentencing,” Criminal Action No. 14-cr-00163-RM, D. Colo., September 10, 2014; U.S. v. Conley, Criminal Complaint and Affidavit, Case No. 14-mj-01045-KLM, D. Colo., April 9, 2014.

[20] U.S. v. Warsame, 537 F.Supp.2d 1005, 1019 (2008). See infra Section 5: “Domestic Proceedings against Medical Caregivers — United States of America.”

[21] Marga Zambrana and Emma Graham-Harrison, “American and Canadian among group of medics in Isis stronghold,” The Guardian, March 23, 2015, available at www.theguardian.com/world/2015/mar/23/american-canadian-maleeh-hamdoun-among-medics-group-isis-syria (quoting the Home Office as saying, in respect of 11 medical school students—of American, British, and Canadian nationalities—who crossed into ISIS-controlled parts of Syria and who were believed to be working in hospitals there, that “even if they were in areas under Isis [sic] control, the medics would not automatically face prosecution under anti-terror laws if they tried to return to the UK, as long as they could prove they had not been fighting.”); Tim Williams and Sheradyn Holderhead, “Former Adelaide doctor Tareq Kamleh joins terror group ISIS, releases propaganda video,” Sunday Herald Sun, April 26, 2015, available at http://www.adelaidenow.com.au/news/south-australia/former-adelaide-doctor-tareq-kamleh-joins-terror-group-isis-releases-propaganda-video/story-fni6uo1m-1227321062787 [http://perma.cc/K8M6-4U9W] (reporting that an Australian physician who travelled to Raqqa to provide medical care and who appeared in an “Islamic State video urging other medical professionals to travel to Syria and join the holy war against the West” could face up to 25 years’ imprisonment).

[22] See, e.g., Katherine H. A. Footer and Leonard S. Rubenstein, “A human rights approach to health care in conflict,” 95 IRRC No. 889 (2013) 176 (noting that “in many places around the world, including Chechnya, Kosovo, Burma, and Syria, health workers have been threatened, arrested, prosecuted, or killed for having adhered to their ethical obligation to provide care impartially, regardless of the affiliation or political belief of the patient.”).

[23] Because they are part of the state armed forces, military medical personnel seem unlikely—or, at least, far less likely—to face these challenges; in addition, National Red Cross or Red Crescent Societies, for example, which are typically recognized and authorized by the relevant state, similarly seem to be less susceptible to anti-terrorism measures than would private humanitarian medical providers who are not so recognized and authorized.

[24] Those principles may be seen in a number of ways: as stand-alone moral concepts; as attributes of some organizations; as a quality of humanitarian assistance; as duties binding on some organizations; or as a justificatory claim for obtaining and maintaining access to populations in need.

[25] Our definitions of these principles are drawn from the Statutes of the International Red Cross and Red Crescent Movement (adopted by the 25th Int’l Conference of the Red Cross at Geneva in 1986, amended in 1995 and 2006), preamble.

[26] “Impartial,” in terms of medical ethics, has been said to mean “that health-care workers must treat patients on the basis of need and not on the basis of ethnicity, religion, gender, age, or any other factor that might lead to unfair discrimination. It also overlaps with medical neutrality, as referring to the non-involvement of health-care workers in political parties and issues related to the conflict within their workplaces.” Vivienne Nathanson, “Medical ethics in peacetime and wartime: the case for a better understanding,” 95 IRRC No. 889 (2013) 195–96. According to that author, “The ethical rule is clear and simple. Care should be offered based upon need; the person most in need is treated first. This is the basis of triage in both wartime and peacetime.” Id. at p. 196.

[27] Article 63(1)(a) GC IV (“Subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power: (a) recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able to pursue their activities in accordance with Red Cross principles, as defined by the International Red Cross Conferences. Other relief societies shall be permitted to continue their humanitarian activities under similar conditions […].”) [italics added].

[28] For a critical view of the principles from within the humanitarian community, see, e.g., Rony Brauman, “Médecins Sans Frontières and the ICRC: matters of principle,” 94 IRRC No. 888 (2012).

[29] U.N. General Assembly, “Resolution adopted by the General Assembly on 11 December 2014: Global health and foreign policy,” U.N. doc. A/RES/69/132, January 9, 2015, preamble (similarly reaffirming the need for all actors engaging in the provision of humanitarian assistance in situations of humanitarian emergencies and natural disasters, as well, to promote and fully respect these four principles); see also id. at paras. 6 and 9 (calling for member states to respect the integrity of medical personnel in carrying out their duties in line with their codes of ethics; and stressing the obligation, in accordance with IHL and applicable national laws and regulations, to respect and protect medical personnel exclusively engaged in medical duties). In a related vein, in August 2011, the ICRC launched the Health Care in Danger Project to “develop, promote and implement measures safeguarding health care delivery.” ICRC, Annual Report 2013, Volume 1, May 2014, p. 61. States parties to the Geneva Conventions expressed their support for the goals of the project. ICRC, 31st International Conference of the Red Cross and Red Crescent Movement, Geneva, Switzerland, November 28–December 1, 2011, Resolution 5.

[30] Jean Pictet, The Fundamental Principles of the Red Cross Proclaimed by the Twentieth International Conference of the Red Cross, Vienna, 1965: Commentary (1979), available at https://www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm [https://perma.cc/4XCU-UJD4].

[31] International Committee of the Red Cross, International Humanitarian Law and the challenges of contemporary armed conflicts, doc. 31IC/11/5.1.2, October 2011, Geneva, p. 53 [hereinafter, “ICRC, Challenges Report”].

[32] ICRC, Challenges Report, supra note 31, at p. 53. The ICRC and National Red Cross and Red Crescent Societies benefit from certain particular protections under IHL beyond those for unassigned international humanitarian organizations or independent caregivers. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Definition of caregivers, transports, and units” and “Display of the distinctive emblems.”

[33] Michael Wood, Special Rapporteur, “Second report on identification of customary international law,” International Law Commission, 66th Session, U.N. doc. A/CN.4/672, May 22, 2014, p. 7, para. 20; see generally id. at pp. 7–14, paras. 21–30 (discussing state practice, decisions of international courts and tribunals, and literature in arguing in favor of this “two-element” approach).

[34] PILAC Research Assistants provided some research support with respect to Arabic, Chinese, French, Russian, and Spanish materials. One of the report authors checked the translations of the only authentic (French) text of the pre-1949 IHL treaties discussed herein against his own translation of those texts.

[35] See, e.g., the discussion and citations in Mehring, Medical Ethics in IHL, supra note 11, at pp. 49–62.

[36] Concerning the so-called “dual loyalty” of members of the military medical service, who may face competing loyalties due to their dual positions—as members of the armed forces subject to command hierarchy and as health-care practitioners subject to professional ethics—see, e.g., id. at pp. 22–26.

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