Photo credit: U.S. Naval Forces Central Command/U.S. Fifth Fleet, "USS Carl Vinson (CVN 70)_150101-N-UW005-035," Flickr, CC BY 2.0.
Credits
About the authors
Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum wrote this Legal Briefing. Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School, as well as the Faculty Director of the Harvard Law School Program on International Law and Armed Conflict. Naz K. Modirzadeh is the Director of the Program and has been designated as a Lecturer on Law at Harvard Law School. And Dustin A. Lewis is a Senior Researcher at the Program.
Acknowledgements
We extend our thanks to 2015 Harvard Law School LL.M. graduates Elizabeth Carthy and Jiawei He for research assistance; to Jennifer Allison, PILAC Liaison to the Harvard Law School Library (HLSL), and the staff of the HLSL for research support; to Jessica Burniske for editorial assistance; to June Casey of the HLSL for open-access support; and to the Senior Law and Policy Working Group of the Counterterrorism and Humanitarian Engagement Project (CHE Project) for their insights and engagement around medical care in armed conflict.
License
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license (CC BY-NC-SA 4.0).
Disclaimer
The research and analysis in this report were undertaken as part of the “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism” Project at the Harvard Law School Program on International Law and Armed Conflict. The views and opinions reflected in this report are solely those of the authors. And the authors alone are responsible for any errors.
Suggested citation
Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum, “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” Legal Briefing, Harvard Law School Program on International Law and Armed Conflict, September 2015.
Design
Dustin A. Lewis
Photo credits
Cover
Army Medicine, “U.S. Soldiers transport patients,” Flickr, CC BY 2.0 license
Section 1 Cover
Marines, “No Marine Left Behind,” Flickr, CC BY-NC 2.0 license
Section 2 Cover
Heather Paul, “Thurgood Marshall U.S. Courthouse,” Flickr, CC BY-ND 2.0 license
Section 3 Cover
USMC Archives, “Navy Corpsman Rendering Aid, Tarawa, November 1943,” Flickr, CC BY 2.0 license
Section 4 Cover
ResoluteSupportMedia, “101219-F-3682S-296,” Flickr, CC BY 2.0 license
Section 5 Cover
United Nations Photo, “Permanent Home of the United Nations,” Flickr, CC BY-NC-ND 2.0 license
Section 6 Cover
U.S. Naval Forces Central Command/U.S. Fifth Fleet, “USS NIMITZ (CVN 68)_130718-N-AZ866-394,” Flickr, CC BY 2.0 license
Compendium Cover
British Red Cross, “Geneva Conventions - signing in 1949,” Flickr, CC BY 2.0 license
Table
Table 1: Fragmentation under IHL of Key Impartial Wartime Medical Care Norms [section 4]
Map
Map 1: Listed Locations of Security Council-designated Terrorist Organizations [section 5]
Web
This report is available free of charge online at http://pilac.law.harvard.edu/mcac.
Abbreviations
Treaties
ACHR: American Convention on Human Rights, November 22, 1969, 1144 U.N.T.S. 123
AP I: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3
AP II: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609
AP III: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, December 8, 2005, 2404 U.N.T.S 261
GC 1864: Convention for the Amelioration of the Wounded in Armies in the Field, August 22, 1864, 22 Stat. 940
GC 1906: Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, July 6, 1906, 35 Stat. 1885
GC I: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31
GC II: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85
GC III: Convention (III) Relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135
GC IV: Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287
GC POW 1929: Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021
GC W&S 1929: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, July 27, 1929, 47 Stat. 2074
HC (X) 1907: Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, October 18, 1907, 36 Stat. 2371
ICC RS: Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90
ICCPR: International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171
UN Charter: Charter of the United Nations, June 26, 1945, 59 Stat. 1031
International Courts, Tribunals, and
Other (quasi-) Judicial Bodies
ICC: International Criminal Court
ICTY: International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
ICJ: International Court of Justice
IACtHR: Inter-American Court of Human Rights
Official Records
O.R.: Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Genera, 1974–1977, Volumes I–XVII (Swiss Federal Political Department, Bern, 1978)
CDDH: Conference diplomatique sur la reaffirmation et le developpement du droit international humanitaire applicable dans les conflits armes [Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts], 1974-1977
ICRC Commentaries, Studies, and Submissions
ICRC, CE/7b: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May - 12 June 1971, Document CE/7b, Vol. VII, Protection of the Wounded and Sick Geneva, January 1971, submitted by the International Committee of the Red Cross
ICRC, CIHLS: Customary International Humanitarian Law, Henckaerts and Doswald-Beck eds. (2005) [Volume I: Rules; Volume II: Practice – Parts 1 and 2] (Also denominated ICRC, Customary IHL Study)
ICRC, Commentary on GC I : Commentary on the Geneva Conventions of 12 August 1949, Vol. I, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Pictet ed. (1952)
ICRC, Commentary on GC II: Commentary on the Geneva Conventions of 12 August 1949, Vol. II, Geneva Convention for the for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Pictet ed. (1960)
ICRC, Commentary on GC III: Commentary on the Geneva Conventions of 12 August 1949, Vol. III, Geneva Convention Relative to the Treatment of Prisoners of War, Pictet ed. (1960)
ICRC, Commentary on GC IV Commentary on the Geneva Conventions of 12 August 1949, Vol. IV, Geneva Convention Relative to the Treatment of Civilians, Pictet ed. (1958)
ICRC, Commentary on the APs: Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Sandoz, Swinarski, and Zimmermann eds. (1987)
Journals and Yearbooks
AJIL: American Journal of International Law
IRRC: International Review of the Red Cross
HSNJ: Harvard National Security Journal
RCADI: Recueil des Cours de l'Academie de Droit International
ILS: International Law Studies (Blue Book Series)
IYHR: Israel Yearbook of Human Rights
JICJ: Journal of International Criminal Justice
JNSLP: Journal of National Security Law and Policy
NYUJILP: New York University Journal of International Law and Politics
VJIL: Virginia Journal of International Law
YHIL: Yearbook of International Humanitarian Law
YILC: Yearbook of the International Law Commission
Fields of International Law
ICL: International criminal law
IHL: International humanitarian law (also known as the laws of armed conflict or the jus in bello)
IHRL: International human rights law
IRL: International refugee law
Types of Armed Conflict
IAC: International armed conflict
NIAC: Non-international armed conflict
Types of Non-state Parties to an Armed Conflict
OAG: Non-state organized armed group
Designated Terrorist Groups
FARC: Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia)
GRF: Global Relief Foundation
ISIS: Islamic State of Iraq and Syria (also known as the Islamic State of Iraq and the Levant [ISIL]; the Islamic State [IS]; and al-Dawla al-Islamiya fi al-Iraq wa al-Sham [Daesh])
LeT/JuD: Lakshar-e-Tayyiba/Jamaat-ud-Dawa
LTTE: Liberation Tigers of Tamil Eelam
Glossary[1]
Civilian medical personnel:
Anyone who is not a member of the military medical service and who meets the criteria laid down for medical personnel.[2] (See medical personnel; distinguish in part with military medical personnel; distinguish with medical caregiver.)
Denunciation:
Compulsory communication to national authorities of medical confidentiality in relation to information—not only health-related information but also other information such as on the activities, connections, position, or even the existence of the wounded—that caregivers may have obtained on the wounded and sick in their charge.[3]
Distinctive emblem:
The distinctive emblem of the red cross, the red crescent, the red lion and sun, and the red crystal on a white ground when used for the protection of medical equipment, personnel, supplies, or transports.[4]
Hors de combat:
A French locution for “out of the battle”: a person is hors de combat if (i) she is in a power of an adverse party, (ii) she clearly expresses an intention to surrender, or (iii) she has been rendered unconscious or is otherwise incapable of defending herself, provided that in any of these cases she abstains from any hostile act and does not attempt to escape; shipwrecked persons cannot be excluded from the construct of hors de combat.[5]
Humanity:
A principle of humanitarian action dictating that organizations focus on alleviating human suffering.[6]
Impartial:
With respect to medical care: provided as required by the condition of the wounded, sick, and shipwrecked and on the basis of medical need, without any adverse distinction based on grounds other than medical ones. (See medical care; distinguish with neutral.)[7]
Impartiality:
A principle of humanitarian action dictating that organizations be guided by needs, prioritizing those with the greatest need, and not discriminating adversely against those in need.[8] (Distinguish with neutrality.)
Independence:
A principle of humanitarian action dictating that an organization be sufficiently autonomous from government(s) so that the organization can act in accordance with humanitarian principles.[9]
Independent:
Conforming to the humanitarian principle of independence. (See independence.)
Legislation:
The constitutions of states, the enactments of their legislative organs, and the regulations and declarations promulgated by executive and administrative bodies. No form of regulatory disposition effected by a public authority is excluded.[10]
Lex lata:
The law as it currently stands.
Lex scripta:
Law codified in treaties (written law).
Medical care:
The search for, collection, transportation, diagnosis, or treatment, including first-aid treatment, of the wounded, sick, and shipwrecked, or the prevention of disease of such persons. Unless expressly indicated otherwise, in this report we assume that such care is provided on an impartial basis. (See impartial.)
Medical caregiver:
A person who provides, or attempts to provide, medical care or attention to a wounded, sick, shipwrecked, or otherwise hors de combat person in an armed conflict. (See medical care.)
Medical confidentiality:
As a general rule, the discretion that a physician must observe with respect to third parties regarding the state of health of her patients and the treatment she has administered or prescribed for them.[11]
Medical ethics:
A set of rules and moral duties incumbent on those in the medical profession and on others engaged in medical care (even if the latter are not, strictly defined, members of the former); such rules and duties are typically defined by municipal authorities or by professional medical bodies (or by both).[12] In general, medical ethical duties are inspired by the overarching concern for the best interests of the wounded and sick.[13] (See medical care.)
Medical personnel:
Those persons assigned, by a party to an armed conflict, exclusively to provide medical care, or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary.[14] Unassigned persons do not qualify as medical personnel; they may qualify for other protections (such as those pertaining to civilians). (See civilian medical personnel, medical care, medical transport, medical unit, military medical personnel, and wounded and sick; partially distinguish with medical caregiver.)
Medical transports:
Any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a party to an armed conflict.[15]
Medical unit:
Establishments and other units, whether military or civilian, organized to provide medical care and authorized by a party to the conflict to do so. The term includes, for example, hospitals and other similar units, blood-transfusion centers, preventive-medicine centers and institutes, medical depots, and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary.[16] (See medical care.)
Military medical personnel:
Members of the military service meeting the criteria laid down for medical personnel. (See medical personnel; distinguish in part with civilian medical personnel; distinguish with medical caregiver.)
Neutral:
Conforming to the humanitarian principle of neutrality. (See neutrality; distinguish with impartial.)
Neutrality:
A principle of humanitarian action dictating generally that an organization not take sides in hostilities or in ideological, racial, religious, or political controversies.[17]
Offenses:
Crimes at common law or enacted through legislative organs, as well as particularly serious violations of regulations and declarations promulgated by executive and administrative bodies.
Terrorist:
Those persons, entities, or conduct meeting a relevant legal definition of terrorist. That definition must be found in domestic law or international law.[18]
(Act of) Terrorism:
An act meeting a relevant legal definition of terroristic conduct. That definition must be found in domestic law or international law.[19]
Wartime:
The period during which an armed conflict (though not necessarily a “war” in the technical sense) exists as defined in international law.
Wounded and sick:
Persons, whether military or civilian, who—because of trauma, disease, or other physical or mental disorder or disability—are in need of medical assistance or care and who refrain from any act of hostility; these terms also cover maternity cases, new-born babies, and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility.[20]
Glossary Footnotes
[1] The definitions in this Glossary were crafted for, and are meant for use solely in, this report.
[2] This definition is wider than the one set down in article 8(c) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 (AP I). Note that this definition does not apply to all relevant IHL treaties. See infra Section 4: “Entitlement to and Protection of Medical Care for the Wounded and Sick Hors de Combat — Definition of the wounded and sick.”
[3] Derived from 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) 119 [citations omitted; hereinafter, Breitegger, “The legal framework”].
[4] Derived from articles 8(l) AP I and 2(1) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, December 8, 2005, 2404 U.N.T.S 261 (AP III). See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Display of the distinctive emblems.”
[5] Derived from article 41(2) AP I; see also, e.g., Yoram Dinstein, Non-International Armed Conflicts in International Law 164 (2014).
[6] Derived 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.
[7] Impartial, in this context, does not mean “neutral” (in the sense of not taking sides in controversies of a political nature) but rather generally means that medical care is provided on a non-discriminatory basis—in other words, “without any adverse distinction based on grounds other than medical ones.” See, e.g., Alexander Breitegger, “The legal framework,” supra note 3, at p. 105 [citations omitted]. See also articles 3(2) and 12 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31 (GC I), 3(2) and 12 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85 (GC II), 3(2) Convention (III) Relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135 (GC III), 3(2) Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287 (GC IV), 10(2) AP I, and 7(2) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 (AP II). Note that, throughout this report, despite the lack of express enumeration of the paragraphs in the relevant articles of GCs I–IV, we indicate the particular paragraph(s) of those articles by enumerating that paragraph or those paragraphs.
[8] Derived 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.
[9] Id.
[10] Derived from Ways and Means for Making the Evidence of Customary International Law More Readily Available, Report of the International Law Commission on its Second Session, UN doc. A/CN.4/34, YILC 1950, Vol. II, p. 370, para. 60.
[11] Derived from ICRC, Commentary on the APs, para. 670 fn 21 (referring to CE/7b, p. 22).
[12] Drawn in part from Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law 4 (2015); ICRC, Commentary on the APs, para. 4688. The term medical ethics is introduced, but not defined, in AP I and AP II. While they do not have force under international law, certain guidelines adopted by the World Medical Association have been said by Alexander Breitegger, an ICRC Legal Adviser, to “constitute an important point of reference for interpretation what the notion of medical ethics entails.” Breitegger, “The legal framework,” supra note iv, at p. 119 (citing to World Medical Association (WMA), International Code of Medical Ethics, adopted by the 3rd General Assembly of the WMA, London, England, 1949 (last revised by the 57th WMA General Assembly, Pilanesberg, South Africa, October 2006); WMA, Declaration of Geneva, adopted by the 2nd General Assembly of the WMA, Geneva, Switzerland, 1948 (last revised by the 173rd WMA Council Session, Divonne-les-Bains, France, 2006); WMA, Regulations in Times of Armed Conflict, adopted by the 10th World Medical Assembly, Havana, Cuba, 1956 (last editorially revised by the 173rd WMA Council Session, Divonne-les-Bains, France). Note that the views expressed by Breitegger in that article do not necessarily reflect the position of the ICRC. Id. at 83. For a more recent (but also non-legally-binding) set of ethical principles concerning health care in armed conflict and other emergencies agreed to by five major non-governmental organizations, 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.
[13] Breitegger, “The legal framework,” supra note 3, p. 119. Breitegger submits that medical ethics therefore
would require medical personnel to strive to use health-care resources in the best way to benefit the wounded and sick; to respect the rights and preferences of the wounded and sick, including the right to accept or refuse treatment and the right to confidentiality of health-related information, unless there is a real and imminent threat of harm to the patient or others and this threat can only be removed by a breach of confidentiality; and not to allow their professional judgement to be influenced by personal profit or discrimination.
Id. [citations omitted]. At the same time, again according to Breitegger, “medical ethics also require medical personnel to observe IHL and IHRL;” thus, medical personnel should not “condone, facilitate or participate in practices of torture or other ill-treatment.” Id. [citation omitted].
[14] Derived from article 8(c) and (e) AP I. Note that this definition does not apply to all relevant IHL treaties. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Definition of caregivers, transports, and units.”
[15] Derived from article 8(g) AP I. Note that this definition does not apply to all relevant IHL treaties. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Definition of caregivers, transports, and units.”
[16] Derived from articles 8(e) and 12(2) AP I. Note that this definition does not apply to all relevant IHL treaties. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Definition of caregivers, transports, and units.”
[17] Derived 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.
[18] Our use of the term terrorist is not meant to weigh in on the validity of those definitions; nor do we mean to characterize the actual legal status of any particular individual or entity.
[19] Our use of the terms acts of terrorism and terrorist act is not meant to weigh in on the validity of those definitions; nor do we mean to characterize the actual legal status of any particular individual or entity.
[20] Derived from article 8(a) AP I. See also International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict with Commentary para. 3.1.2 (2006). Note that this definition does not apply with respect to the wounded and sick protected in all relevant IHL treaties. See infra Section 4: “Entitlement to and Protection of Medical Care for the Wounded and Sick Hors de Combat — Definition of the wounded and sick.”
Epigraphs
Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for.
—Geneva Convention (1864), Article 6(1)
No one may ever be molested or convicted for having nursed the wounded or sick.
—Geneva Contention I (1949), Article 18(3)
Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.
—Additional Protocol I (1977), Article 16(1), and Additional Protocol II (1977), Article 10(1)
[The defendants] were members of the Peruvian Community Party [a terrorist organization], and had provided medical attention, treatment and operations, supply of medicines and medical instruments for the care of criminal terrorist[s][;] acts [that] constitute the crime established and penalized in Article 4 of Decree Law No. 25,475 [crime of terrorism in the category of acts of collaboration].
— Fourteenth Criminal Court of Lima, File No. 94-95, Peru (Sept. 16, 1995)
[The U.N. Security Council] [d]ecides […] that all States shall [...] [e]nsure that any person who participates [...] in supporting terrorist acts is brought to justice […].
— U.N. Security Council Resolution 1373 (2001), para. 2(e) (Sept. 28, 2001)
[Dr.] Sabir is not charged merely for being a doctor or for performing medical services. Here, [Dr.] Sabir is alleged essentially to have volunteered as a medic for the al Qaeda military, offering to make himself available specifically to attend to the wounds of injured fighters. Much as a military force needs weapons, ammunition, trucks, food, and shelter, it needs medical personnel to tend to its wounded.
— U.S. v. Shah, 474 F.Supp.2d 492, 498–499 (2007)
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?’”
— Aryn Baker, “Syria’s Health Crisis Spirals As Doctors Flee,” Time Blog (Feb. 4, 2014)
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