Photo credit: USMC Archives, “Navy Corpsman Rendering Aid, Tarawa, November 1943,” Flickr, CC BY 2.0.
In this section, we trace how—beginning a century before the first anti-terrorism treaty came into force—states developed international instruments protecting wartime medical care. Over time, states established that wounded and sick combatants, then prisoners of war, and then civilians must be protected and cared for.[1] States also established that those providing medical care must be respected and protected.[2] Today, certain key IHL medical-care obligations are incumbent on all parties to all armed conflicts. But seen in aggregate, the current legal regime is somewhat fragmented and marked by protective gaps.
IHL Treaties
Antecedents to the Geneva Conventions of 1949
The international legal framework governing armed conflict is frequently couched in terms of reflecting states’ attempts to balance military necessity with concerns for humanity.[3] At its inception, IHL primarily created obligations of states in relation to other states.[4] Nationality largely determined whether a person was considered a friend, foe, or neutral.
States intentionally designed IHL in part to infuse humanitarian concern into the cruelty of war. It was the horrifying images of the languishing wounded soldiers on the battlefield of Solferino that prompted a chance traveler, the Swiss businessman Henri Dunant, to envision the creation of what would become the ICRC.[5]
Medical care for enemy forces was the subject of one of the first modern international instruments on war: the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 1864 (GC 1864).[6] Prompted by the forerunner to the ICRC to convene in Geneva, states were animated in part by self-interest: they wanted their own wounded or sick soldiers to be treated humanely. As a condition for taking the somewhat radical step of ensuring medical care to the enemy, states were keen to maintain control over the terms and conditions of such care.
The regime pivoted in part on mutual trust between the parties. A practical manifestation of that trust was the introduction of the distinctive sign that each party was responsible for controlling. Hospitals and ambulances adopted a uniform flag, which was to be accompanied in all circumstances by the national flag.[7] And military medical personnel could wear an armlet, which could be assigned only by military authorities.[8] Both the uniform flag and the armlet featured a red cross on a white background.[9]
Applicable to IACs, GC 1864 rested on three broad sets of principles. First, it established the fundamental obligation of states to collect and care for wounded or sick combatants irrespective of their nationality.[10] Second, it regulated the “neutrality” of certain medical personnel, establishments, units, and equipment, as well as inhabitants of the country who bring help to the wounded.[11] “Neutrality,” in this context, meant a form of inviolability: states party to GC 1864 could not take adverse action against such medical personnel or inhabitants bringing help to the wounded.[12] And third, it introduced the distinctive and uniform sign of the red cross on a white background.[13]
In sum, GC 1864 established the responsibilities of states parties to wounded and sick enemy soldiers in their care. It thus laid down the principles of relief to the wounded without adverse distinction between enemy and ally and of the “neutrality” of medical personnel.
In The Hague in 1899 and 1907 and in Geneva in 1906, states convened again to further develop international law applicable to war. The 1899 Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, for instance, clarified some of the provisions of GC 1864 and adapted its principles to sea warfare.[14]
The 33 articles of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 6 July 1906 (GC 1906) replaced the ten articles of GC 1864 in relations among the contracting states.[15] GC 1906 broadened the scope of application to include, in addition to combatants, other persons who were officially attached to the armies and who were wounded or sick.[16]
GC 1906 also discarded the principle of “neutrality” of medical personnel and units, and replaced it with the broader and more onerous duty of “respect and protection.”[17] That two-fold duty remains the term of art today—though one that appears, to a certain extent, to lack a definitional consensus[18]—not only for medical personnel, transports, and units but also for the wounded and sick hors de combat. Thus this “respect and protection” duty seems to entail slightly different sets of obligations for the respective categories of persons and objects to which it applies. The respect prong appears to mean that both the wounded and sick hors de combat and medical personnel, transports, and units may not knowingly be attacked or fired upon. The protection prong differs slightly between these sets of persons and objects: the wounded and sick hors de combat may not knowingly be unnecessarily interfered with, while medical personnel, transports, and units may not knowingly be unnecessarily prevented from discharging their proper functions.[19] The “respect and protection” duty does not exempt the wounded and sick hors de combat nor medical personnel from capture, detention, or search. Moreover, this special status is forfeited when the wounded and sick engage in a hostile act or when medical personnel commit, or medical units or transports are used to commit, outside their humanitarian duties, acts harmful to the enemy.[20] (A subsequent IHL treaty exempts certain medical personnel in IAC from detention and instead contemplates that the adverse party may retain them if the number and condition of prisoners of war so require.[21])
GC 1906 also expressly recognized, for the first time in an international treaty, volunteer aid societies.[22] So long as they were subject to military laws and regulations and were duly recognized and authorized by their own government, the personnel of those societies would fall under the same type of protection as military medical personnel.[23] These requirements were part of the system of mutual trust between the warring parties. Again, states were willing to take on obligations to respect and protect medical personnel partly if the other party was willing to exercise sufficient control over their medical personnel, too.
The Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, The Hague, 18 October 1907 (HC (X) 1907) adapted the protective regime entailed in GC 1906 concerning armed conflicts on land to maritime warfare.[24] And the 1907 Hague Convention (V) on Rights and Duties of Neutral Powers and Persons in Case of War on Land extended the protective principles to neutral states.[25]
A decade after the end of World War I, in 1929, states developed two additional conventions relating to medical care in armed conflict. The Geneva Convention for the Amelioration of the Wounded and Sick in Armies in the Field, 27 July 1929 (GC W&S 1929) represented the third version of the Geneva Convention, following GC 1864 and GC 1906.[26] GC W&S 1929 established the protection of medical aircraft and recognized the use of the emblems of the red crescent and of the red lion and sun (thus expanding the options beyond the red cross for certain states).[27] Building on instruments developed decades earlier, states also developed a treaty on the treatment of prisoners of war: the Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929 (GC POW 1929).[28] The new instrument required that “[e]ach camp shall posses an infirmary, where prisoners of war shall receive attention of any kind of which they may be in need.”[29]
The Geneva Conventions of 1949
During World War II (WWII), the existing legal protections for medical assistance proved drastically insufficient.
Fragmentation in the legal landscape contributed to protection gaps. Two of the major parties—Japan and the Union of Soviet Socialist Republics (U.S.S.R.)—had not ratified GC POW 1929. Among many others, prisoners of war of the Soviet Union in Germany and German POWs captured or detained in the Soviet Union suffered.[30]
During the war, “[m]en were killed or molested for having taken care of partisans or parachutists.”[31] Along the same lines, “doctors and orderlies who had worked in the Medical Service or Red Cross Society of an occupying country were subjected at the close of hostilities to laws which treated any form of service in an enemy army as high treason.”[32] They “were regarded purely and simply as individuals who had taken up arms against their country.”[33]
In addition, without any international legal protection addressing them, thousands of civilians in the hands of parties to the conflict died.[34]
To help ameliorate these and other problems, on August 12, 1949 states signed the four Geneva Conventions.
International armed conflicts
GC I supersedes GC W&S 1929[35] and extensively elaborates obligations concerning wounded and sick members of the armed forces in the field.
To strengthen the respect and protection due to military medical units and establishments, the drafters added a warning requirement. GC W&S 1929 had laid down that the protection against attack for medical units could not cease unless the units were used to commit, outside their humanitarian duties, acts harmful to the enemy.[36] GC I requires, in addition, that even then such protection could not cease for those units unless the adverse party had given a due warning, setting, in all appropriate cases, a reasonable time limit, and that warning had gone unheeded.[37]
In GC I, states also regulated the position of auxiliary and permanent medical personnel of a party to the conflict.[38] Included in the former are members of the armed forces trained for employment (if the need arose) as hospital orderlies, nurses, or auxiliary stretcher-bearers. In the latter are military medical service members, as well as recognized and authorized members of National Red Cross Societies and voluntary aid agencies (including those of neutral states).
In addition, GC I extends (albeit in a more limited fashion) the protections, which first emerged in GC 1864, for unassigned caregivers. For instance, under GC I military authorities must “permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for the wounded or sick whatever their nationality.”[39] And, in response to the “painful problems” of ill-treatment against medical caregivers in WWII,[40] the drafters of GC I promulgated a rule stipulating that “[n]o one may ever be molested or convicted for having nursed the wounded or sick.”[41]
GC I also helps clear up the confusion that arose during WWII concerning the situation of captured medical personnel. Under GC W&S 1929, medical personnel falling into the hands of the enemy could not be retained.[42] In the absence of an agreement between the parties, they had to be sent back to the belligerent to which they belonged as soon as a route for their return opened up and military considerations permitted.[43] Pending their return, they were to carry out their medical duties under the enemy’s direction. While they were “preferably” to be engaged in the care of the wounded and sick of their party, fulfilling that preference was not a legal obligation under GC W&S 1929.[44] GC I puts matters on a different footing. It provides that, while they may not be detained, certain medical personnel may be retained by the adverse party—but only if the number and condition of POWs require it.[45]
Perhaps the most innovative aspect of GC I was the establishment of a “grave breaches” regime for certain acts committed against particular persons or certain property.[46] States parties undertake to give effect to this regime through various suppression and punitive measures. One key element is the requirement to enact necessary legislation to provide penal sanctions for persons committing, or ordering to be committed, grave breaches.[47] Among the persons against whom such breaches could be committed are the wounded and sick as well as medical personnel protected under GC I.[48] Acts constituting grave breaches against protected persons include (among others) willful killing; torture or inhuman treatment, including biological experiments; and willfully causing great suffering or serious injury to body or health.[49]
GC II, which replaced HC (X) 1907, further extends the protective regime to wounded, sick, and shipwrecked members of the armed forces at sea.[50] And GC III, which replaced GC POW 1929, extensively regulates the status and treatment of—including the medical care and attention due to—prisoners of war.[51]
Finally, GC IV deals unevenly with the protection of civilians, including in occupied territories.[52] As outlined below, the bulk of GC IV relates to “protected persons” and civilians in occupied territory. Yet a key part of the convention applies to the whole population of the countries in conflict.[53] In that part, GC IV establishes protections for (among other things) civilian hospitals organized to give care to the wounded and sick, the infirm, and maternity cases.[54] Those hospitals must be respected and protected by the parties at all times.[55] As with military medical units and establishments protected in GC I, under GC IV the protections for these civilian hospitals may not cease unless they are used to commit, outside their humanitarian functions, acts harmful to the enemy.[56] Also as with their military analogues, that protection for civilian hospitals may not cease until after due warning is given, setting, in all appropriate circumstances, a reasonable time limit, and only after that warning remains unheeded.[57] The personnel of civilian hospitals have similar protections.[58] As do civilian transports on land or sea conveying the wounded and sick, the infirm, and maternity cases.[59]
Moreover, each state party to GC IV shall, subject to certain control measures, “allow the free passage of all consignments of medical and hospital stores […] intended only for civilians of another [state party], even if the latter is its adversary.”[60] Likewise, it shall “permit the free passage of all consignments of essential […] tonics [that is, pharmaceutical products] intended for children under fifteen, expectant mothers and maternity cases.”[61]
In its section that applies to the whole population of the countries in conflict, GC IV also expressly makes the wounded and sick—as well as the “infirm” and expectant mothers—the object of “particular protection and respect.”[62] In addition, each party is obliged to facilitate steps to search for the killed and wounded, to assist the shipwrecked and others exposed to grave danger, and to protect them against pillage and ill-treatment.[63] Yet—unlike the analogous provisions in GCs I–III covering combatants and prisoners of war—these GC IV obligations generally have been interpreted not to require the military parties to provide medical care to wounded and sick civilians. In the words of the ICRC, “saving civilians is the responsibility of the civilian authorities rather than of the military.”[64] Similarly, the obligations to evacuate the wounded and sick from besieged or encircled areas and to allow medical personnel and equipment into those areas are couched in GC IV in relatively hortatory terms: the parties “shall endeavour” to conclude such local agreements.[65]
Much of the rest of GC IV relates to the protection for a relatively narrow category of civilians, namely “protected persons.” They are defined as “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”[66] GC IV stipulates that, in general, such persons “shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State concerned.”[67] Where a protected person is interned due to security concerns,[68] the interning party is bound to (among other things) grant her the medical attention required by her state of health.[69] Medical inspections of those internees must occur at least once a month.[70]
GC IV also elaborates a detailed protective regime concerning medical attention for civilians in occupied territory. For example, the occupying power has the duty—to the fullest extent of the means available to it—of “ensuring the […] medical supplies of the population.”[71] The occupying power also has the duty of ensuring and maintaining—again, to the fullest extent of the means available to it, but this time also with the cooperation of national and local authorities—“the medical and hospital establishments and services, public health and hygiene in the occupied territory […].”[72] Moreover, in occupied territory, “[m]edical personnel of all categories shall be allowed to carry out their duties.”[73]
GC IV anticipates that the competent organs of the occupied state may not be operating in a particular part of occupied territory. Where that occurs, the occupying authorities shall, if necessary, grant new hospitals set up in those territories the recognition provided to civilian hospitals, hospital personnel, and transport vehicles under the part of GC IV applicable to the whole population.[74] Finally with respect to medical attention in occupied territories, GC IV establishes a number of obligations concerning relief schemes[75] and relief societies.[76]
Non-international armed conflicts
After WWII, states began in earnest to allow the veil of sovereignty to be pierced in armed conflicts involving a government’s armed forces fighting an armed opposition group.[77] In adopting Common Article 3, states agreed to subject NIACs to international treaty law. They did not, however, confer legal status on non-state armed groups in NIACs.[78] The resulting scope of Common Article 3—the so-called “Convention in miniature”[79]—is significantly narrower than the web of treaty laws binding states parties in IACs governed by the rest of the Geneva Conventions of 1949.
Nonetheless, Common Article 3 expressly requires, in general terms, that “[t]he wounded and sick shall be collected and cared for.”[80] In addition, it imposes humane-treatment obligations concerning all persons hors de combat.[81] And Common Article 3 also expressly provides a basis for “[a]n impartial humanitarian body, such as the International Committee of the Red Cross,” to offer its services to all of the parties to the conflict.[82]
Review
With respect to IACs, GCs I–IV reaffirm and expand legal protections for impartial wartime medical care for wounded and sick combatants and prisoners of war and establish important similar protections for wounded and sick civilians. But the drafters also left some areas of significant concern arising from WWII totally unregulated under IHL. One example was the experience of occupying forces ordering “inhabitants, including doctors, to denounce the presence of any presumed enemy, under the threat of grave punishment.”[83] States did not agree to extend international legal protections to those who conceal the wounded from authorities.
With respect to NIACs, Common Article 3 represents a vital step in expanding protections for wartime medical assistance. Yet, as states quickly recognized, that step was relatively modest.
The 1977 and 2005 Additional Protocols to the Geneva Conventions
Soon after the Geneva Conventions of 1949 came into force, there was a push to further develop and expand their protections. In the eyes of many, the Conventions did not go far enough. In the GCs, for instance, “the position of civilian medical personnel had been dealt with in a somewhat incomplete fashion.”[84] And, as noted by the ICRC in 1971, while Common Article 3 “has already rendered signal service […] it cannot be denied that it has loopholes and shortcomings. Its promoters themselves considered it only as the first step.”[85] The article is silent on “the protection to be granted to doctors and other medical personnel, on medical establishments and transports and on the respect due to the sign of the red cross.”[86] While those protections may be implied in Common Article 3, “it must be admitted that there would be considerable advantage in stating expressly, among the provisions to be confirmed, principles which have never been contested.”[87]
In part to strengthen the protective regime for medical care, from the 1950s through the early 1970s states and the ICRC took a series of steps at International Conferences of the Red Cross and elsewhere. Those efforts culminated in a series of events in Geneva: Conferences of Government Experts, in 1971 and 1972, and a Diplomatic Conference, in 1974–1977.[88]
Ultimately, out of the Diplomatic Conference two new treaties emerged. Additional Protocol I applies to IACs, as well as a particular type of NIAC: so-called wars of national liberation, which are treated as IACs for purposes of AP I.[89] And Additional Protocol II applies to certain NIACs.
International armed conflicts
AP I significantly strengthens protections for impartial wartime medical care. For instance, it broadens the legal protections to include expressly all wartime wounded, sick, and shipwrecked persons, whether military or civilian.[90] AP I also extends medical-attention protections to mental-health aspects of care.[91] AP I further supplements GCs I–IV by defining, for purposes of the protocol, wounded and sick persons,[92] as well as a host of other medically related personnel and objects.[93] The Protocol maintains the requirement that the status of medical personnel, transports, and units—even so-called civilian medical personnel—be predicated on the recognition and authorization of a party to the conflict.[94] (Even though AP I retains the authorization requirement to obtain that special status, unassigned caregivers benefit from important protections—though fewer than their medical-personnel counterparts—under the Protocol.)
AP I introduces the concept of, but does not define, “medical ethics” as a bulwark against illegitimate compulsion.[95] For instance, the Protocol prohibits the punishment of anyone who carries out medical activities compatible with medical ethics.[96] It also prohibits compelling physicians to act in a way that does not conform with medical ethics or with other medical rules designed for the benefit of the wounded and sick.[97]
AP I expands the grave breaches regime introduced in GCs I–IV and expressly regards grave breaches as war crimes.[98] Many of the grave breaches laid down in AP I relate to medical care. For instance, AP I stipulates that certain willful acts or omissions[99] that seriously endanger the physical or mental health or integrity of a person in the power of a party other than the one on which she depends constitute grave breaches.[100] AP I also includes the wounded and sick—including civilians—protected by the Protocol as persons against whom grave breaches may be committed.[101] The Protocol expressly recognizes that certain acts committed against medical personnel, units, and transports may constitute grave breaches.[102] And under certain conditions a number of additional acts related to medical care also constitute grave breaches under AP I.[103] Those acts include making a person the object of attack in the knowledge that she is hors de combat, as well as the perfidious use of the distinctive emblems or other protective signs of GCs I–IV and AP I.[104]
Non-international armed conflicts
Earlier drafts of AP II included far more provisions than the version that states ultimately agreed to at the end of the Diplomatic Conference in 1977. The 28 articles of AP II nonetheless expand the treaty provisions—including those related to medical care—applicable to NIACs meeting the Protocol’s threshold of application.
AP II mirrors many of the medical-care provisions laid down in AP I. For instance, AP II imposes obligations to search for, collect, and care for wounded or sick—whether military or civilian.[105] It regulates the use of the distinctive emblems.[106] It stipulates respect for and protection of medical personnel and requires they be granted all available help.[107] And it lays down the same type of respect-and-protect obligations—and the corresponding protections against attack—for medical transports and units that previously applied to such objects only in IACs.[108] As does AP I, AP II also prohibits punishing anyone who carries out medical activities compatible with medical ethics, regardless of who benefits.[109]
Yet some medical-care measures are less exhaustive in AP II than in AP I. For instance, AP I and AP II both prohibit subjecting certain persons to any medical procedure that is not indicated by the state of health of the person concerned and that is not consistent with generally accepted medical standards.[110] Yet unlike AP II, AP I also expressly prohibits—with certain exceptions—carrying out on such persons, even with their consent, physical mutilations, medical or scientific experiments, or removal of tissue or organs for transplantation.[111]
Finally, AP II—like Common Article 3—contains no grave breaches regime.
Review
Both Additional Protocols increase the amount and breadth of protections for medical care. But AP I contains more such measures than AP II. Perhaps more importantly, AP II does not make up for the relatively fewer combined set of medical-care measures across all relevant treaties for NIAC compared to IAC.
Adding to the fragmented character of the legal regime is the fact that, unlike the Geneva Conventions of 1949, the Additional Protocols have not been universally ratified. Indeed, it was with the Additional Protocols that the “Great Schism” was born.[112] Today, over two-dozen states are not party to AP I nor to AP II. Some states engaged in armed conflicts involving terrorists are party to neither Protocol, such as Israel, Pakistan, Somalia, Turkey, and the United States.[113]
The thumbnail version of this dissonance is that some states think key provisions of the Protocols, especially AP I, do not reflect good law or sound policy. Even more, the thinking goes, AP I could potentially subvert foundational IHL norms. Some non-contracting states are especially concerned that AP I could operate in a way that supports terrorism. Part of the reason the United States, for instance, has declined to become a party was its concern that AP I weakens the distinction between combatants and noncombatants and thereby supports a rationale underlying terrorist violence.[114]
Zooming out, the results are fragmentation in the lex scripta: between the medical-care treaty protections for states party to the Protocols and those not party to them; between those protections for IAC versus those for NIAC; and between those protections across different types of NIACs.
In principle, customary IHL could resolve that fragmentation and fill in the corresponding gaps in the lex scripta. Our research suggests that, so far, it has not—at least not fully.
Customary IHL
In the words of Special Rapporteur Michael Wood, as noted above, customary law comprises those rules of international law deriving from and reflecting a general practice accepted as law.[115] There is no universally agreed-upon quantitative formula or mathematical equation to discern customary international law. But, in general, to be established, a customary rule needs to reflect (1) sufficiently uniform, extensive, and representative state practice alongside (2) dense enough evidence of such practice being undertaken due to a legal conviction (so-called opinio juris sive necessitatis, or opinio juris).[116]
Potential scope
Discerning the scope of customary IHL may be especially important for wartime medical care—including for terrorists—for three reasons.
First, in principle, customary IHL could fill gaps in the lex scripta between contracting states to the respective Additional Protocols and non-contracting states. In this way, customary IHL has the potential to help address the lack of universal ratification of AP I and AP II. If the medical-care provisions of AP I and AP II reflect customary IHL, then states would be bound—irrespective of whether they were party to the relevant treaty—to adhere in IACs to those rules flowing from AP I and in NIACs to those rules flowing from AP II.[117]
Second, in principle, customary IHL could help fill gaps in the lex scripta between medical-care measures for IAC and those for NIAC. Customary IHL may be particularly salient in this respect due to the much denser cluster of such measures applicable in IAC treaties compared to the thinner set of provisions found in NIAC treaties.
And third, in principle, customary IHL could bind parties to rules and principles even if states had not codified those protections in treaties. Medical care is one of the most highly regulated aspects of the lex scripta. But that does not foreclose the possibility that additional binding medical-care rules of international law could arise outside of those treaties. This type of customary IHL formation may be most useful in this context regarding internationally recognized legal protections for wartime medical care that states have not (yet) inked in international agreements.
But does customary IHL concerning medical care fill any of the gaps in the lex scripta or impose any rules that have not been codified in IHL treaties?
We do not aim to answer those specific questions. Instead, we raise two related sets of considerations. First, we discuss the medical-care aspects of the most extensive (though, on its terms, non-comprehensive) attempt to date to discern the scope of customary IHL: the ICRC’s Customary IHL Study. And second, we highlight five aspects of the contemporary practice of impartial wartime medical care that are not—at least not yet—captured in treaties or, in our view, in customary IHL.
ICRC’s Customary IHL Study
In 1995, the International Conference of State Parties requested the ICRC to undertake a study on customary IHL.[118] A decade later, the ICRC published its Customary IHL Study, which identifies an array of purported rules, the vast majority of which it said applied in both IAC and NIAC.[119]
By design, the Customary IHL Study was ambitious but not comprehensive. The authors did not seek to “to determine the customary nature of each treaty rule” of IHL.[120] As a result, the Customary IHL Study “does not necessarily follow the structure of existing treaties.”[121] Instead, it “sought to analyse issues in order to establish what rules of customary international law can be found inductively on the basis of State practice in relation to these issues.”[122] Thirteen of the rules identified in this way relate, at least in part, to impartial wartime medical care for the wounded and sick hors de combat.[123]
In its attempt to establish the existence of the customary IHL rules on medical care, the ICRC had to overcome two main challenges.[124] The first was that some of the rules purportedly applicable in both IAC and NIAC are based in the lex scripta set down primarily—or, at times, exclusively[125]—in IAC treaties. To establish those rules in both types of conflict, the ICRC would therefore need to demonstrate a sufficient alternative basis of state practice and opinio juris.
The second (and, at times, related) challenge is that a large amount of the putative rules are rooted in the lex scripta set down more exhaustively in AP I and less comprehensively in AP II. In principle, therefore, with respect to those rules the ICRC would need to demonstrate that states not party to the relevant Protocol(s) nonetheless consider the relevant rules in those treaties binding: in respect of IACs for those rules deriving from AP I, and in respect of NIACs for those rules deriving from AP II. Where the rule purportedly applied in both IAC and NIAC but the rules in AP I and AP II on which the putative norm are based differed, the authors would need to demonstrate states’ buy-in for how the ICRC fashioned the resulting hybrid rule.
Despite these challenges, commentators have argued that at least some of the Customary IHL Study rules on medical care reflect customary IHL applicable in both IAC and NIAC. These include the rules requiring respect and protection—and governing the loss of protection—for medical personnel, units, and transports of a party to the conflict.[126]
However, the identified challenges proved insurmountable, in our view, for some putative medical-care rules put forward in the Customary IHL Study.[127] An example is Rule 26, which the ICRC submits to apply in both IAC and NIAC: “Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.”[128] This rule derives in important part from both AP I and AP II, as no provision of GCs I–IV nor of Common Article 3 references medical ethics for these (or other) purposes.[129] Thus, in order to establish this rule for both IAC and NIAC, the Customary IHL Study authors would need to show sufficient buy-in for the putative norms from states that are not party to the Protocols. Yet all of the relevant cited military manuals and national legislations for this rule are from states parties—or states that would become party—to AP I and/or AP II.[130]
Practical gaps in the law
Despite imposing extensive obligations on the parties, IHL treaties and customary IHL do not cover all facets of impartial wartime medical care. Here we raise five areas of current practice that IHL does not regulate or that IHL regulates non-comprehensively.
First, with respect to NIACs to which AP II does not apply, IHL lays down, in Common Article 3 and customary IHL applicable to NIAC, relatively few medical-care measures. (Where applicable, the Rome Statute of the ICC may supplement these provisions for NIACs meeting that instrument’s threshold of application.[131])
Second, so far, states have been unwilling to extend all of the types of protections to medical personnel in NIACs—even under AP II—that they have established for certain medical personnel in IACs. IHL treaties do not regulate the capture or retention of medical personnel in former, but they do—at least for certain personnel—in the latter.[132]
Third, neither AP I nor AP II defines medical ethics. Contracting states thus have a wide (and potentially overbroad) margin of discretion to implement a concept on which many protections—including those against punishment for care to the enemy—pivot.
Fourth, where they exist, IHL protections against being compelled to denounce (that is, communicate information about) patients to authorities are weak. Those protections subject the international legal norm to varying domestic legislations.[133]
And fifth, extant IHL contains no explicit safeguards for a key set of contemporary caregivers: those seeking to travel to conflict areas to provide impartial wartime care to all wounded and sick persons—fighters hors de combat and civilians alike.
Related Fields of International Law
IHL establishes the most highly regulated set of international legal provisions concerning medical care in armed conflict. Yet two additional international law fields—IHRL and ICL—may apply alongside of, or in an otherwise complementary manner to, those IHL provisions.[134]
International human rights law
While IHL traces its roots to the regulation of interstate wars, IHRL arose out of an attempt to regulate, as a matter of international law and policy, the relationship between the state—through its governmental authority—and its population. Unlike the relatively narrow war-related field of IHL, IHRL spans a seemingly ever-growing range of dealings an individual, community, or nation may have with the state.
In recent decades, the connection between IHL and IHRL has been the subject of increased jurisprudential treatment and interpretation by states. The precise links between the two branches of public international law have also merited extensive academic commentary.
The debate on this relationship is largely over three issues. First, whether IHRL applies extraterritorially such that states bring all, some, or none of their obligations with them when they fight wars under IHL outside of their territories. Second, whether OAGs have IHRL obligations (or, at least, responsibilities). And third, what is the apposite interpretive procedure or principle to use when discerning the content of a particular right under the relevant framework(s).
Few, if any, of these questions, however, significantly affect the practical scope of international law protections for wartime medical care for terrorists. That is because in general the protections for the two main sets of elements of medical care (discussed in the next section) are regulated much more specifically and comprehensively under IHL than IHRL. Unlike with IHRL, moreover, there is no meaningful disagreement with the view that at least some IHL applies in armed conflicts involving terrorism.
Nonetheless, IHRL may buttress IHL safeguards for impartial wartime medical assistance. IHRL may do so, for instance, by helping support the normative framework for medical care in conflicts involving terrorism where IHL is seemingly weakest: in armed conflicts where the state is not a party to the relevant Additional Protocol and where the state contests the applicability of customary IHL. For example, commentators have argued that the IHRL rights to life and health may strengthen cognate IHL provisions.[135] In addition, the IHRL principle of legality may help shield medical caregivers from abuses flowing from unlawfully ambiguous definitions of terrorism-related offenses.[136] Finally, human rights-based safeguards may provide normative points of reference concerning medical ethics, including in relation to non-denunciation and medical confidentiality.[137]
International criminal law
As part of a broader post-WWII trend, internal affairs traditionally thought to be solely the prerogative of the state increasingly became matters of international concern. In addition to developing treaty provisions on NIAC though Common Article 3, for instance, this shift was reflected, initially, in the jurisprudence of international criminal tribunals in Germany and Japan and in the rise of IHRL. Later, in the 1990s, these developments were complemented by the revival of ICL mechanisms. In general, ICL imposes individual liability—not state responsibility—for international crimes, such as war crimes, crimes against humanity, and genocide.
While it is not designed to fill substantive gaps in the legal regime, ICL helps fortify IHL protections for impartial wartime medical care.[138] It does so by imposing individual criminal responsibility for certain especially serious violations of IHL related to medical activities and abuses. Those include violations laid down in the grave breaches regime introduced in GCs I–IV and subsequently strengthened in AP I.
Footnotes
[1] Concerning medical care for wounded and sick combatants under treaty-based IHL, see, e.g., Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law 91–94 (2015) [hereinafter Mehring, Medical Ethics in IHL]; concerning medical care for prisoners of war under treaty-based IHL, see, e.g., id. at pp. 94–98; concerning medical care for the civilian population under treaty-based IHL, see, e.g., id. at pp. 98–102.
[2] Regarding protection of physicians and other medical care providers under treaty-based IHL, see, e.g., id. at 106–118.
[3] Michael N. Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance,” 50 VJIL No. 4 (2010) 795.
[4] Reparation claims, for instance, are addressed not by the individual harmed but rather by her government to the other sovereign. Silja Vöneky, “Implementation and Enforcement of International Humanitarian Law,” in The Handbook of International Humanitarian Law 683–85 (3d ed., ed. Fleck, 2014).
[5] Baptiste Rolle and Edith Lafontaine, “The emblem that cried wolf: ICRC study on the use of the emblems,” 91 IRRC No. 876 (2009) 760.
[6] Convention for the Amelioration of the Wounded in Armies in the Field, August 22, 1864, 22 Stat. 940 (GC 1864).
[7] Article 7(1) GC 1864.
[8] Article 7(2) GC 1864.
[9] Article 7(3) GC 1864.
[10] Article 6 GC 1864.
[11] Articles 1–5 GC 1864.
[12] GC 1864. The notion of neutrality entailed in articles 2 and 5 GC 1864 (concerning medical personnel and inhabitants) is not synonymous with the modern humanitarian principle of neutrality, discussed supra (Introduction: “Humanitarian Principles in a Counterterrorism World”) and defined in the Glossary. Rather, the notion of neutrality as used in articles 2 and 5 GC 1864 relates to the concept of what would later be phrased “protect and respect.” Mehring, Medical Ethics in IHL, supra note 1, at p. 84.
[13] Article 7 GC 1864.
[14] 1899 Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864, 32 Stat. 1827. See Jann K. Kleffner, “Protection of the Wounded, Sick, and Shipwrecked,” in The Handbook of International Humanitarian Law 322 (3d ed., ed. Fleck, 2014) [hereinafter, Kleffner, “Protection of the Wounded, Sick, and Shipwrecked”].
[15] Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, July 6, 1906, 35 Stat. 1885.
[16] Article 1 GC 1906. Whereas GC 1864 entailed the notion of protection, GC 1906 added the notion of respect.
[17] Articles 6 and 9(1) GC 1906. The concept of “protection and respect” [“protégés et respectés”]—note the inverse order of the terms—was already included in article 1(1) GC 1864, which, as mentioned above, couched the protection due to ambulances and military hospitals in terms of “neutrality.” (The only authentic language of the 1864–1929 treaties discussed in this report is French, and thus where relevant we reference the authoritative language.) In the authentic text, the phrasing used in article 6 GC 1906 is “Les formations sanitaires mobiles (c’est-à-dire celles qui sont destinées à accompagner les armées en campagne) et les établissements fixes du service de santé seront respectés et protégés par les belligérants.” The authentic text phrasing used in article 9(1) GC 1906 is
Le personnel exclusivement affecté à l'enlèvement, au transport et au traitement des blessés et es malades, ainsi qu'à l’administration des formations et établissements sanitaires, les aumôniers attachés aux armées, seront respectés et protégés en toute circonstance ; s’ils tombent entre les mains de l’ennemi, ils ne seront pas traités comme prisonniers de guerre.
[18] According to an ICRC Commentary on a subsequent treaty, the concept of “protection” is broader: it purportedly imposes an obligation (of means) to come to the qualifying person’s aid and give her any care of which she stands in need. See generally ICRC, Commentary on GC IV, at p. 134; see also id. at pp. 133–134 (explaining, in relation to the development of the concept of respect and protection—as entailed, for example, in articles 6 and 9 GC 1906, article 12(1) GC I, articles 12(1), 22(1), 27(1), 36 and 37(1) GC II, and articles 16(1), 18(1), 20(1) and (3), and 21 GC IV—that
[t]he word ‘respect’ ‘(respecter)’ means according to the Dictionary of the French Academy, ‘to spare, not to attack’ (épargner, ne point attaquer), whereas ‘protect’ (protéger) means ‘to come to someone’s defence, to give help and support’. These words make it unlawful to kill, ill-treat or in any way injure an unarmed enemy, while at the same time they impose an obligation to come to his aid and give him any care of which he stands in need.
Id.
[19] U.S. Department of Defense, Law of War Manual §§ 7.3.3, 7.8.2, 17.14.1.2, and 17.15.1.2 (2015). The section of the Manual on civilian hospital personnel—who, under article 20 GC IV, also are entitled to respect and protection—does not define “respect and protection” in that context, though it can be reasonably assumed that it has the same definition as used elsewhere in the Manual. Id. at § 7.17.4.2.
[20] 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.”
[21] See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Capture, detention, and retention.”
[22] Article 10(1) GC 1906.
[23] Id.
[24] Thereby broadening the protections entailed in 1899 Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864, 32 Stat. 1827. Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, October 18, 1907, 36 Stat. 2371 (HC (X) 1907).
[25] See, e.g., Articles 14–15 Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, October 18, 1907, 36 Stat. 2310.
[26] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, July 27, 1929, 47 Stat. 2074 (GC W&S 1929).
[27] Articles 18 and 19(2) GC W&S 1929. Note that article 19(2) GC W&S 1929 restricts the use of the red crescent and the red lion and sun on a white background to states that already used one of those two emblems before the adoption of the treaty. See generally Jean-François Quéguiner, “Commentary on the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III),” 89 IRRC 865 (2007) 177.
[28] Articles 14–15 Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021 (GC POW 1929).
[29] Article 14(1) GC POW 1929 [italics added]. In the authentic text: “Chaque camp possédera une infirmerie, où les prisonniers de guerre recevront les soins de toute nature dont ils pourront avoir besoin.”
[30] Mehring, Medical Ethics in IHL, supra note 1, at p. 87 [citations omitted].
[31] ICRC, Commentary on GC I, p. 192.
[32] Id.
[33] Id.
[34] Mehring, Medical Ethics in IHL, supra note 1, at p. 87 [citations omitted].
[35] Preamble GC I (stating that “[t]he undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Geneva Convention for the Relief of the Wounded and Sick in Armies in the Field of July 27, 1929, have agreed as follows”) [italics added].
[36] Article 7 GC W&S 1929.
[37] Article 21 GC I. See generally ICRC, Commentary on GC I, pp. 201–202.
[38] Articles 24–27 GC I.
[39] Article 18(2) GC I.
[40] Id.
[41] Article 18(3) GC I [italics added].
[42] Article 12(1) GC W&S 1929.
[43] Id. at 12(2).
[44] Id. at 12(3).
[45] Article 28(1) GC I.
[46] Articles 50–51 GC I, 50–51 GC II, 129–30 GC III, and 146–47 GC IV.
[47] Article 49(1) GC I.
[48] ICRC, Commentary on GC I, p. 371.
[49] Article 50 GC I.
[50] See, e.g., Kleffner, “Protection of the Wounded, Sick, and Shipwrecked,” supra note 14, at p. 322. GC I applies with respect to wounded and sick (while GC II applies with respect to wounded, sick, and shipwrecked) persons who are entitled to prisoner-of-war status in accordance with article 4(A) GC III. Common Article 13 GC I and GC II.
[51] E.g., articles 15 and 30 GC III.
[52] Kleffner, “Protection of the Wounded, Sick, and Shipwrecked,” supra note 14, at p. 322.
[53] Articles 13–26 (Part II) GC IV.
[54] Article 18(1) GC IV.
[55] Id.
[56] Article 19(1) GC IV.
[57] Id.
[58] Article 20 GC IV.
[59] Article 21 GC IV. On the protections for certain medical aircraft, see article 22 GC IV.
[60] Article 23 GC IV.
[61] Article 23(1) GC IV. See also ICRC, Commentary on GC IV, p. 181 (“The term ‘tonics’ covers any pharmaceutical products which are intended to restore normal vitality to the human organism.”) [citation omitted].
[62] Article 16(1) GC IV.
[63] Article 16(2) GC IV.
[64] ICRC, Commentary on GC IV, p. 135.
[65] Article 17 GC IV.
[66] Article 4(1) GC IV. The ICTY Appeals Chamber purported to expand the definition of “protected persons” by reference to the object and purpose of the treaties, whereby nationality or affiliation is irrelevant. ICTY, Prosecutor v. Tadić, Appeals Chamber, Judgment, Case No IT-94-1-A, July 15, 1999, paras. 163–166.
[67] Article 38(2) GC IV. Note that this provision is in the section on aliens in the territory of a party to the conflict. Article 40 GC IV lays down provisions concerning compelling protected persons to work, including, potentially, medical caregivers. Pursuant to article 40(2) GC IV, “[i]f protected persons are of enemy nationality, they may only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations.” In that case, “protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers in particular as regards wages, hours of labour, clothing and equipment, previous training and compensation for occupational accidents and diseases.” Article 40(3) GC IV.
[68] Articles 41–43 GC IV. See also ICRC, Commentary on GC IV, p. 256 (noting that “[i]nternment is also a form of assigned residence, since internees are detained in a place other than their normal place of residence. Internment is the more severe, however, as it generally implies an obligation to live in a camp with other internees.”).
[69] Article 81(1) GC IV. See also, e.g., articles 81(2), 85(1), 91–92, 109(1), and 127(2)–(3) GC IV. Article 109(1) GC IV pertains in part to medical relief supplies.
[70] Article 92 GC IV.
[71] Article 55(1) GC IV. In particular, the occupying power should “bring in the necessary [...] medical stores [...] if the resources of the occupied territory are inadequate.” Id. The occupying power may requisition medical supplies available in the occupied territory only “for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account.” Article 55(2) GC IV. The occupying power shall make—subject to the provisions of other international conventions—arrangements to ensure that fair value is paid for any requisitioned goods. Id. Furthermore, “[t]he Protecting Power shall, at any time, be at liberty to verify the state of the [...] medical supplies in occupied territories, except where temporary restrictions are made necessary by imperative military requirements.” Article 55(3) GC IV. In addition, the occupying power—in adopting health and hygiene measures and in implementing them—“shall take into consideration the moral and ethical susceptibilities of the population of the occupied territory.” Article 56(3) GC IV.
[72] Article 56(1) GC IV. In that connection, GC IV makes a “particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.” Id. Moreover, “[t]he Occupying Power shall not hinder the application of any preferential measures in regard to [...] medical care [...] which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years.” Article 50(5) GC IV.
[73] Article 56(1) GC IV. Note, however, that such personnel are distinct from (and do not benefit from the special status provided to) those medical personnel assigned by a party to the conflict pursuant, for example, to articles 24, 26–27 GC I or to hospital staff pursuant to article 20 GC IV. See ICRC, Commentary on GC IV, p. 314 (“‘Medical personnel of all categories’ should be taken to mean all people engaged in a branch of medical work: doctors, surgeons, dentists, pharmacists, midwives, medical orderlies and nurses, stretcher bearers, ambulance drivers, etc., whether such persons are or are not attached to a hospital. On that point the provision differs from Article 20 of [GC IV], which refers only to hospital staff, who are alone authorized to wear the armlet bearing the red cross emblem.”).
[74] Article 56(2) GC IV.
[75] Articles 59–62 GC IV.
[76] Article 63 GC IV.
[77] Or between such groups, in line with the Tadić formulation. Tadić, Interlocutory Appeal, supra note 27, at para. 70.
[78] Common Article 3(2). See generally Sandesh Sivakumaran, The Law of Non-International Armed Conflict 205–207 (2012). As noted in the ICRC’s Commentary on GC IV, Common Article 3 “is strictly humanitarian in character. It does not limit in any way a State’s essential right to suppress an insurrection, nor its powers of trial and sentence, nor, again, its right to appraise aggravating or attenuating circumstances.” ICRC, Commentary on GC I, p. 56.
[79] ICRC, Commentary on GC IV, p. 34.
[80] Common Article 3(2) [italics added].
[81] Common Article 3(1).
[82] That paragraph also provides that “[t]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.” Common Article 3(2) GCs I–IV.
[83] ICRC Commentary on the APs, paras. 670–674.
[84] ICRC, CE/7b, p. 1.
[85] Id. at p. 30 [italics added].
[86] Id.
[87] Id.
[88] Issues relating to medical care discussed in the lead up to the Diplomatic Conference included the possibility of extending the use of the distinctive emblems of the Geneva Conventions to civilian medical personnel; elaborating additional regulations concerning medical aircraft; and the potential introduction of a new emblem (a red staff of Aesculapius on a white background) as a means to identify doctors and nurses who are not members of the state medical service (a proposal that was ultimately rejected). Id. at pp. 2, 17, 25–26.
[89] The scope of material application of AP I also expressly includes “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” Article 1(4), AP I. Regarding the temporal scope of AP I, see article 3 AP I.
[90] See, e.g., Kleffner, “Protection of the Wounded, Sick, and Shipwrecked,” supra note 14, at p. 322; Mehring, Medical Ethics in IHL, supra note 1, at pp. 90–91 (calling the inclusion of both combatants and civilians a “significant development as it closes the gap between the protection of wounded and sick combatants and wounded and sick civilians.”) Id. at 91.
[91] Article 8(a) AP I.
[92] Id.
[93] Article 8(c), (e)–(j) AP I.
[94] ICRC Commentary on the APs, para. 349 (noting generally that “civilian medical personnel are also covered [under article 8(c) AP I, defining “medical personnel”], provided that they are assigned to medical tasks by a Party to the conflict, in order to ensure in a better way the protection of all the wounded and sick, whether civilian or military.”) [italics added]; id. at para. 354 (clarifying that “[n]ot every civilian doctor is protected by the Conventions. Indeed, there is no a priori reason why a plastic surgeon, for example, should be protected. On the other hand, if the Party to the conflict in the territory in which he works assigns him to tasks mentioned above, i.e., if he becomes useful for the protection of the wounded and sick, he deserves to be protected. This is an example of the derivative character of the protection of medical personnel, which is relevant only when such personnel is engaged in the protection of the wounded and sick. Moreover, it is essential that the Party to the conflict, which is responsible for preventing the misuse of the protective emblem, retains the power to decide who is entitled to the protection reserved for medical personnel.”) [italics added]; id. at para. 610 (confirming, with respect to article 15(1) AP I, that “it should be remembered that not all civilian medical and nursing personnel is covered here, but only those who have been assigned to medical tasks by the Party to the conflict on which they depend.”) [italics added; citation omitted].
[95] The ICRC Commentary on the APs states that medical ethics “refers to the moral duties incumbent upon the medical profession. Such duties are generally decreed by the medical corps of each State in the form of professional duties.” ICRC, Commentary on APs, p. 200, para. 655. See generally Mehring, Medical Ethics in IHL, supra note 1, at pp. 306–344. For a recent (non-legally-binding) list of ethical principles of health care in armed conflict and other emergency situations to which five major NGOs subscribe, International Committee of the Red Cross, International Pharmaceutical Federation, World Medical Association, ICMM, and International Council of Nurses, “Ethical Principles of Health Care in Times of Armed Conflict and Other Emergencies,” June 2015, available at https://www.icrc.org/en/document/common-ethical-principles-health-care-conflict-and-other-emergencies. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Prohibition on illegitimate compulsion” and “Prohibition on punishment.”
[96] Article 16(1).
[97] Article 16(2) AP I. See also article 11(3) AP I.
[98] Article 85 AP I; see also article 11(4) AP I.
[99] Those that violate article 11(1) or (2) AP I or that fail to comply with the requirements of article 11(3) AP I.
[100] Article 11(4) AP I.
[101] Article 85(5) AP I.
[102] So long as they are under the control of the adverse party and are protected by the Protocol. Article 85(5) AP I.
[103] When committed willfully, in violation of the relevant provision of AP I, and where they cause death or serious injury to body or health. Article 85(3) AP I.
[104] Article 85(3)(e) and (f) AP I. The perfidious use must be in violation of article 37 AP I to constitute a grave breach under the Protocol.
[105] Article 7 AP II.
[106] Article 12 AP II.
[107] Article 9(1) AP II.
[108] Article 11 AP II.
[109] Article 10(1) AP II. During the Conference of Government Experts preceding the Diplomatic Conference, it was agreed that the purpose of this provisions “was to protect the performance of medical activities and should cover all persons who were engaged in such activities, regardless of whether they were in protected institutions or not.” Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Second Session, 3 May - 3 June 1972, Report on the Work of the Conference, Submitted by the International Committee of the Red Cross, July 1972, Geneva, Volume 1, p. 39, para. 1.49. (stating further that “[i]n order to make this clear, the words ‘medical personnel’ were changed to ‘any person engaged in medical activities’.”) [italics added]. The dispositive element regarding what falls under the broad expression “medical activities” may, in the view of the ICRC, be discerned by ascertaining whether “the activities are at improving health or alleviating the suffering of the wounded.” ICRC, Commentary on the APs, para. 652.
[110] The latter standard is framed in slightly different terms in article 11(1) AP I (“generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty”) than in article 5(2)(e) AP II (“generally accepted medical standards applied to free persons under similar medical circumstances”).
[111] Article 11(1)–(3) AP I.
[112] Yoram Dinstein, “International Humanitarian Law and Modern Warfare,” in International Expert Conference on Computer Network Attacks and the Applicability of International Humanitarian Law 17, 18–19 (ed. Boyström, 2014).
[113] Pakistan and the United States have signed but not ratified AP I and AP II.
[114] Article 44(3) is one of the grounds on which the United States has elected not to become a party to AP I. See, e.g., Letter of Transmittal from the White House to the Senate, January 29, 1987, Annexed Letter of Submittal, Washington, December 13, 1986, George Schultz, p. IX (stating that “Article 44(3) [AP I], in a single subordinate clause, sweeps away years of law by ‘recognizing’ that an armed irregular ‘cannot’ always distinguish himself from non-combatants; it would grant combatant status to such an irregular anyway. As the essence of terrorist criminality is the obliteration of the distinction between combatants and noncombatants, it would be hard to square ratification of this Protocol with the United States’ announced policy of combatting terrorism.”) The United States does consider some elements of AP I to reflect customary IHL; see, e.g., U.S. Department of Defense, Law of War Manual § 8.1.4.2 (2015) (stating that “[a]lthough not a Party to AP I, the United States has stated that the U.S. Government will choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well. This statement was intended to contribute to the crystallization of the principles contained in Article 75 as rules of customary international law applicable in international armed conflict.”) [citations omitted].
[115] 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.
[116] ICJ, North Sea Continental Shelf (West Germany v. Denmark and the Netherlands) (Merits) [1969] ICJ Rep. p. 3, pp. 42–46. On 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.
[117] Customary IHL rules may also bind non-state armed groups.
[118] 26th International Conference of the Red Cross and Red Crescent, Geneva, December 3–7, 1995, Resolution 1, International humanitarian law: From law to action; Report on the follow-up to the International Conference for the Protection of War Victims, IRRC No. 310, 1996, p. 58. The request coincided with the development of jurisprudence by international criminal tribunals that purported to flatten, largely through customary IHL, many of the legal distinctions between IAC and NIAC. Tadić, Interlocutory Appeal, supra note 27, at paras. 96–127.
[119] ICRC, CIHLS Vol. I: Rules.
[120] Id. at p. xxxvi.
[121] Id.
[122] Id.
[123] Id. at Rule 25, pp. 79–86 (“Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.”); Rule 26, id. at pp. 86–88 (“Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.”); Rule 28, id. at pp. 91–97 (“Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.”); Rule 29, id. at pp. 98–102 (“Medical transports assigned exclusively to medical transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.”); Rule 30, id. at pp. 102–104 (“Attacks directed against medical […] personnel and objects displaying the distinctive emblems of the Geneva Conventions in conformity with international law are prohibited.”); Rule 35, id. at pp. 119–120 (“Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.”); Rule 47, id. at pp. 164–170 (“Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is: [...] (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; [...] provided he or she abstains from any hostile act and does not attempt to escape.”); Rule 59, id. at pp. 207–209 (“The improper use of the distinctive emblems of the Geneva Conventions is prohibited.”); Rule 88, id. at pp. 308–311 (“Adverse distinction in the application of international humanitarian law based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria is prohibited.”); Rule 92, id. at pp. 320–323 (“Mutilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited.”); Rule 109, id. at pp. 396–399 (“Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.”); Rule 110, id. at pp. 400–403 (“The wounded, sick and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made among them founded on any grounds other than medical ones.”); Rule 111, id. at pp. 403–405 (“Each party to the conflict must take all possible measures to protect the wounded, sick and shipwrecked against ill-treatment and against pillage of their personal property.”).
[124] We focus here on medical-care rules in the Customary IHL Study. The United States and some prominent commentators have critiqued certain methodological components of, the evidence offered in, and some of the conclusions of the Customary IHL Study. See, e.g., John B. Bellinger, III and William J. Haynes, II, “A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law,” 89 IRRC No. 866 (2007); Yoram Dinsten, “The ICRC Customary International Humanitarian Law Study,” 82 ILS (2006) (originally published in 36 IYHR (2006)).
[125] For example, the primary basis in the lex scripta for Rule 35 (“Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.”) is found in treaties applicable to IAC, such as article 23 GC I and article 14 GC IV. No treaty provisions governing NIAC expressly regulate such hospital and safety zones.
[126] ICRC, CIHLS, Rules 25, 28, and 29. In support of the customary character of these rules, see Susan Breau, “Protected Persons and Objects,” in Perspectives on the ICRC Study on Customary International Humanitarian Law 175–78 (Wilmshurst and Breau eds. 2007) [hereinafter, Breau, “Protected Persons and Objects”]. See also, concurring with respect to CIHLS Rule 25 (medical personnel), Mehring, Medical Ethics in IHL, supra note 1, at pp. 231–32.
The protections in the lex scripta for those rules in NIAC are rooted in AP II, which means the ICRC would need to show evidence of sufficient buy-in from non-AP II parties. (Common Article 3 is silent regarding such personnel, units, and transports.) In this connection, recently the United States (through its Department of Defense), which is not a party to AP II, included those AP II-rooted protections for medical personnel, units, and transports in NIAC in its recently promulgated Department of Defense Law of War Manual. U.S. Department of Defense, Law of War Manual §§ 17.15.1 and 17.15.2 (2015).
[127] Benoit criticizes part of the evidence and analysis assembled to support the CIHLS rules 109–111. James P. Benoit, “Mistreatment of the Wounded, Sick and Shipwrecked by the ICRC Study on Customary International Humanitarian Law,” 11 YIHL (2008) 193–215 [hereinafter, Benoit, “Mistreatment of the Wounded, Sick and Shipwrecked”].
[128] ICRC, CIHLS Vol. I: Rules, Rule 26, p. 86. Perhaps the most important is rule 110 (“The wounded, sick and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made among them founded on any grounds other than medical ones.”); Benoit criticizes that rule for implicitly conflating protections owed to combatants versus civilian wounded, sick and shipwrecked, and for seeking to extending the obligations to care for wounded, sick, and shipwrecked in toto to NIAC. Benoit, “Mistreatment of the Wounded, Sick and Shipwrecked,” supra note 127, at p. 212. With respect to the latter ground for criticism, subsequent to Benoit’s critique, the U.S. Department of Defense Law of War Manual (2015) incorporated the AP II-based protections on which Rule 110 is based. U.S. Department of Defense Law of War Manual §§ 17.14.1 and 17.14.2 (2015).
[129] While an antecedent is found in article 18(3) GC I (prohibiting convicting any person for nursing the wounded), articles 16 AP I and 10 AP II introduce the concept of medical ethics into IHL; the concept of medical ethics is not included in any IHL treaties before 1977, yet article 28 GC I requires that retained medical personnel carry out their medical duties in accordance with “professional ethics” (among other things). CIHLS Rule 26 thus pivots chiefly on AP I and AP II.
[130] ICRC, CIHLS, Vol. II: Practice (Part 1), pp. 486–97. For its part, the U.S. Department of Defense Law of War Manual does not include either part of this rule for IAC or for NIAC. Among the things listed under “Other National Practice,” the Customary IHL Study authors cite the letter from the President transmitting AP II to the U.S. Senate for confirmation, even though the United States never became a party to AP II. ICRC, CIHLS, Vol. II: Practice (Part 1), at p. 490. Somewhat confusingly, the Customary IHL Study authors break down the cited state practice into two sections: respect for medical ethics and respect for medical secrecy. This structure does not track the logic of the Rule, however, which distinguishes between two prohibitions: one on “[p]unishing a person for performing medical duties compatible with medical ethics,” and another on “compelling a person engaged in medical activities to perform acts contrary to medical ethics” [italics added]. For her part, Mehring considers that “[g]enerally, there is so little evidenced cited, that this cannot prove the acceptance of the rule in both international and non-international armed conflicts,” and that “it clearly cannot be concluded that states accepted the respect for medical ethics and medical confidentiality as customary international law, either in international nor non-international conflicts.” Mehring, Medical Ethics in IHL, supra note 1, at pp. 232 and 233. Yet another scholar, Breau, concludes, though without additional evidence of state practice and opinio juris or analysis, that “[i]t is difficult to argue that the first part of Rule 26 [prohibiting punishment] is not customary due to long-standing treaty antecedents; however, that is not the case with the second part [prohibiting compulsion]. The Study does not contain the scope of practice needed and therefore, this part of the Rule cannot be said to be unequivocally customary.” Breau, “Protected Persons and Objects,” supra note 126, at p. 179.
[131] Articles 8(2)(d) and (f) ICC RS.
[132] See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Capture, detention, and retention.”
[133] This produces an unsatisfactory result at least from a purely legal viewpoint: the international legal norm varies according to different national legislations. ICRC, Commentary on the APs, para. 688.
[134] International refugee law (IRL) may also pertain to impartial medical care to designated terrorists in, or to those alleged to have committed terrorism in connection with, an armed conflict. We do not examine that body of law in this report.
[135] See Alexander Breitegger, “The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies,” 95 IRRC No. 889 (2013) 83–127. See also Mehring, Medical Ethics in IHL, supra note 1, at pp. 236–274. Article 72 AP I provides that “[t]he provisions of this Section are additional to the rules concerning humanitarian protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Convention, particularly Parts I and III thereof, as well as to other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict” and that part of the preamble of AP II recalls that “international instruments relating to human rights offer a basic protection to the human person.”
[136] De La Cruz-Flores v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 115, para. 102 (Nov. 18, 2004) [hereinafter IACtHR, De La Cruz-Flores v. Peru]; see also id. at para. 188(1).
[137] ICRC, Commentary on the APs, p. 204, para. 670 fn 21 (defining medical confidentiality in this context as “the discretion that a doctor must observe with respect to third parties regarding the state of health of his patients and the treatment he has administered or prescribed for them”) [citation omitted]. See generally Amrei Müller, The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law: An Analysis of Health-Related Issues in Non-International Armed Conflict 191–237 (2013). Pursuant to article 10(3) AP II, there is a corresponding obligation, which is subject to national law, to respect the confidentiality of information that may be acquired when providing medical care. See also IACtHR, De La Cruz-Flores v. Peru, Separate Opinion of Judge Sergio García-Ramírez, supra note 136, at para. 13 (“I […] consider it necessary to prohibit incriminating the conduct of a doctor who abstains from providing information to the authorities about his patient’s punishable conduct, which he is aware of through information provided to him by the patient in connection with the medical procedure. In that case, there could be an absolutory excuse similar to that which protects the next of kin of the defendant in cases of concealment owing to kinship.”)
[138] For a more extensive analysis concerning ICL and medical care in relation to armed conflict, see, e.g., Mehring, Medical Ethics in IHL, supra note 1, pp. 131–188.
PDF [link]
Web Version
