Subject to Rule 74, medical and religious personnel, fixed or mobile medical units (including hospitals) and medical transports by air, land, at sea or on other waters must be respected and protected at all times, and must not be the object of attack.
[Commentary]
- Rule 71 is an introductory provision to Section K reiterating, in simple terms, the general obligation to respect and protect at all times medical and religious personnel, medical units and medical transports. This general obligation encompasses subsidiary protection granted to ensure that wounded and sick receive medical care.
2. The obligation to respect and to protect military medical and religious personnel (who are members of the armed forces) is based on Art. 24[380] and Art. 25 of GC/I;[381] Art. 36 of GC/II[382] and on the first paragraph of Art. 20 of GC/IV.[383] Art. 15 of AP/I extended the scope of the protection to cover civilian medical and religious personnel.[384]
3. The obligation to respect and to protect medical units and medical means of transport is based on Art. 19[385] and Art. 35 of GC/I;[386] Art. 18[387] and Art. 21 of GC/IV;[388] as well as on Art. 12 (1),[389] Art. 21,[390] and Art. 24 of AP/I.[391]
4. A breach of Rule 71 may qualify as a war crime under the Rome Statute of the ICC in both international[392] and in non-international armed conflict.[393]
5. The term “medical personnel” covers persons assigned exclusively to medical purposes by a Belligerent Party. In this context, the notion of “medical purposes” includes the search for, collection, transportation, diagnosis or treatment (including first-aid treatment) of the wounded, sick and shipwrecked, or the prevention of disease. The personnel assigned by a Belligerent Party to the administration of medical units or to the operation or administration of medical transports are also included under the definition of “medical personnel”. For the purposes of this definition, administrative staff includes office staff, ambulance drivers, janitors, cooks, etc.
6. The term “medical personnel” encompasses: (i) medical personnel of a Belligerent Party, whether military or civilian, including those assigned to civil defence organizations; (ii) medical personnel of National Red Cross, Red Crescent, or Red Crystal Societies and other national voluntary aid societies duly recognized and authorized by a Belligerent Party; (iii) medical personnel made available to a Belligerent Party for humanitarian purposes by a Neutral — or a recognized and authorized aid society of such a Neutral — or by an impartial humanitarian organization such as the ICRC. The term “medical personnel” has been defined in Art. 8 (c) of AP/I.[394]
7. “Religious personnel” means military or civilian persons exclusively engaged in the work of their ministry and attached: (i) to the armed forces of a Belligerent Party; (ii) to medical units or medical transports of a Belligerent Party; (iii) to civil defence organizations of a Belligerent Party; or (iv) to medical units or medical transports made available to a Belligerent Party for humanitarian purpose by a Neutral — or a recognized and authorized aid society of a Neutral — or by an impartial humanitarian organization. The specific attachment of religious personnel to one of the four categories listed above presumes the agreement of the Belligerent Party. The term “religious personnel” has been defined in Art. 8 (d) of AP/I.[395]
8. “Medical personnel” and “religious personnel” have to be exclusively assigned to medical or religious duties in order to enjoy respect and protection under Rule 71. Their exclusive assignment to medical or religious duties may be either permanent or temporary. If the assignment is permanent, respect and protection are due at all times; if the assignment is only temporary, respect and protection are only due during the time of that assignment.
9. Persons performing medical or religious duties without assignment (or agreement) to such functions by a Belligerent Party do not qualify as medical or religious personnel respectively. While they benefit from the general protection granted to civilians (see Rule 11), they are not entitled to display a distinctive emblem (see Rule 72 (a)).
10. “Medical units” are defined as establishments and other units organized for medical purposes. For the expression “medical purposes”, see paragraph 5 of the Commentary on Rule 71. Medical units enjoy specific protection regardless of whether they are military or civilian, permanent or temporary, fixed or mobile. Examples of medical units are hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, in particular vaccination centres, casualty collection points and triage facilities, rehabilitation centres providing medical treatment, medical depots, and the medical and pharmaceutical stores of such units. The expression “medical units” has been defined in Art. 8 (e) of AP/I.[396]
11. “Medical transports” are defined as any means of transportation — placed under the control of a competent authority of a Belligerent Party — exclusively assigned to medical transportation. They can be military or civilian, permanent or temporary. The expression “medical transports” has been defined in Art. 8 (g) of AP/I.[397]
12. The obligation “to respect” medical and religious personnel as well as medical units and transports entails not only a prohibition against attacking or harming such persons and objects in any way, but also prohibits unnecessarily preventing them from discharging their functions (e.g., by blocking medical supplies for medical units or transports).
13. The obligation “to protect” refers to the duty to take appropriate precautions to ensure respect by non-State actors for medical and religious personnel, medical units and transports (e.g., in order to prevent looting by marauders or rioting mobs).
14. Rule 71 emphasizes that respect and protection is due to medical units, medical transports and medical or religious personnel “at all times”. Nevertheless, protection may be lost in certain circumstances. See Rule 74. As to the loss of protection of medical aircraft, see Rule 83.
- Art. 24 of GC/I: “Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances.”
- Art. 25 of GC/I: “Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands.”
- Art. 36 of GC/II: “The religious, medical and hospital personnel of hospital ships and their crews shall be respected and protected; they may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board.”
- First paragraph of Art. 20 of C/IV: “Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick civilians, the infirm and maternity cases shall be respected and protected.”
- Art. 15 of AP/I (“Protection of civilian medical and religious personnel”): “(1) Civilian medical personnel shall be respected and protected. (2) If needed, all available help shall be afforded to civilian medical personnel in an area where civilian medical services are disrupted by reason of combat activity. (3) The Occupying Power shall afford civilian medical personnel in occupied territories every assistance to enable them to perform, to the best of their ability, their humanitarian functions. The Occupying Power may not require that, in the performance of those functions, such personnel shall give priority to the treatment of any person except on medical grounds. They shall not be compelled to carry out tasks which are not compatible with their humanitarian mission. (4) Civilian medical personnel shall have access to any place where their services are essential, subject to such supervisory and safety measures as the relevant Party to the conflict may deem necessary. (5) Civilian religious personnel shall be respected and protected. The provisions of the Conventions and of this Protocol concerning the protection and identification of medical personnel shall apply equally to such persons.”
- First sentence of Art. 19 of GC/I: “Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict.”
- First sentence of Art. 35 of GC/I: “Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units.”
- First sentence of Art. 18 of GC/IV: “Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict.”
- First sentence of Art. 21 of GC/IV: “Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as the hospitals provided for in Art. 18.”
- Art. 12 (1) of AP/I: “Medical units shall be respected and protected at all times and shall not be the object of attack.”
- Art. 21 of AP/I: “Medical vehicles shall be respected and protected in the same way as mobile medical units under the Convention and this Protocol.” See also Art. 22 of AP/I pertaining to “Hospital ships and coastal rescue craft.”
- Art. 24 of AP/I, see fn. 433.
- Art. 8 (2) (b) (ix) of the Rome Statute of the ICC: “Intentionally directing attacks against … hospitals and places where the sick and wounded are collected, provided they are not military objectives.”
Art. 8 (2) (b) (xxiv): “Intentionally directing attacks against buildings, material, medical units and transports, and personnel using the distinctive emblem of the Geneva Conventions in conformity with international law.”
- Art. 8 (2) (e) (ii): “Intentionally directing attacks against buildings, material, medical units and transports, and personnel using the distinctive emblem of the Geneva Conventions in conformity with international law.”
Art. 8 (2) (e) (iv): “Intentionally directing attacks against … hospitals and places where the sick and wounded are collected, provided they are not military objectives.”
- Art. 8 (c) of AP/I: “‘Medical personnel’ means those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated under (e) or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term includes (i) medical personnel of a Party to the conflict, whether military or civilian, including those described in the First and Second Conventions, and those assigned to civil defence organizations; (ii) medical personnel of national Red Cross (Red Crescent, Red Lion and Sun) Societies and other national voluntary aid societies duly recognized and authorized by a Party to the conflict; (iii) medical personnel or medical units or medical transports described in Article 9, paragraph 2.”
- Art. 8 (d) of AP/I: “‘Religious personnel’ means military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached: (i) to the armed forces of a Party to the conflict; (ii) to medical units or medical transports of a Party to the conflict; (iii) to medical units or medical transports described in Article 9, paragraph 2; or (iv) to civil defence organizations of a Party to the conflict. The attachment of religious personnel may be either permanent or temporary, and the relevant provisions mentioned under k) apply to them.”
- Art. 8 (e) of AP/I: “‘Medical units’ means establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment — including first-aid treatment — of the wounded, sick and shipwrecked, or for the prevention of disease. The term includes for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary.”
- Art. 8 (g) of AP/I, see fn. 73.
(a) Medical and religious personnel ought to wear a water-resistant armlet bearing a distinctive emblem provided by the law of international armed conflict (the Red Cross, Red Crescent or the Red Crystal). Medical units and medical transports ought to be clearly marked with the same emblem to indicate their status as such; when appropriate, other means of identification may be employed.
[Commentary]
(b) As far as possible, the distinctive emblem ought to be made of materials which make it recognizable by technical means of detection used in air or missile operations.
[Commentary]
(c) The distinctive emblem and other means of identification are intended only to facilitate identification and do not, of themselves, confer protected status.
[Commentary]
(d) The failure of medical and religious personnel, medical units and medical transports to display the distinctive emblem does not deprive them of their protected status.
[Commentary]
- Rule 72 (a) lays down the principle of marking with a distinctive emblem of medical and religious personnel, medical units and medical transports. This principle is based, as far as international armed conflicts are concerned, on Art. 39,[398] Art. 40,[399] Art. 41[400] and Art. 42 of GC/I;[401] as well as on Art. 18 (4) of AP/I.[402] As far as non-international armed conflict is concerned, it is based on Art. 12 of AP/II.[403]
- The Red Cross and the Red Crescent (as well as the Red Lion and Sun, now in disuse),[404] have been recognized as distinctive emblems for a long time. AP/III, which entered into force on 14 January 2007, established the Red Crystal as an additional distinctive emblem with equal status.
- In the great majority of cases, it will be in the interest of Belligerent Parties to mark medical and religious personnel, medical units and transports in order to facilitate their identification as such by the enemy. However, Belligerent Parties may desist from marking where the distinctive emblem could be detrimental to military exigencies, for example when the localization of an identified medical unit or medical transport may call the enemy’s attention to troop deployment (see Rule 72 (c) and Rule 72 (d)).
- In this respect, specific Rules apply to medical aircraft as contained in Section L, see [405] This authority cannot permit a unit or transport which is not recognized as medical to be marked in this way. Belligerent Parties must take all necessary measures for the prevention and repression, at all times, of any misuse of the distinctive emblems and their designations, including the perfidious use and the use of any sign or designation constituting an imitation. On perfidy, see Section Q, in particular Rule 112 (a).
- It is recommended that medical and religious personnel wear, affixed to the left arm, a “water-resistant armlet” in order to keep it in good condition. Clearly, religious and medical personnel wearing an armlet that is not waterproof and/or on their right arm must nevertheless be protected.
- Medical units and medical transports ought to be “clearly” marked as specified in Annex I to AP/I, which emphasizes the visibility of the distinctive emblem. The ideal size of the armlet is not specified but it ought to be wide and the red cross on it as large as appropriate under the circumstances. It has, whenever feasible, to be displayed in a way that it is visible from as many directions and from as far away as possible, and in particular from the air. At night or when visibility is reduced, the distinctive emblem may be lit or illuminated.[406]
- The second sentence of Rule 72 (a) points to the possibility to use additional means to facilitate identification besides the use of the distinctive emblem.[407] This development arose from concerns that solely having the distinctive emblem displayed on a medical unit or medical transport could prove insufficient for correct identification in circumstances of modern warfare that enable long-range or reduced visibility targeting. The additional means of identification referred to are set out in Annex I of AP/I (as amended in 1993). This includes, for example, a distinctive radio signal earmarked for all medical transports which can be used by digital selective calling systems, transponders or ship borne automatic identification systems. In this respect, see the Commentary on Rule 76 (b) concerning the additional means of identification of medical aircraft.
- Since a different legal regime applies to States that are and those that are not Contracting Parties to AP/I, the text refers to the use of additional means of identification “when appropriate”. However, the use of additional means of identification is certainly to be encouraged.
- Additional means of identification ought only to be used to supplement the distinctive emblem, which remains the basic element. An exception is laid down concerning temporary medical aircraft which cannot, either for lack of time or because of their characteristics, be marked with the distinctive emblem (see Rule 76 (c)).
- Art. 39 of GC/I: “Under the direction of the competent military authority, the emblem shall be displayed on the flags, armlets and on all equipment employed in the Medical Service.”
- Art. 40 of GC/I: “The personnel designated in Article 24 and in Articles 26 and 27 shall wear, affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority. Such personnel, in addition to wearing the identity disc mentioned in Article 16, shall also carry a special identity card bearing the distinctive emblem. This card shall be water-resistant and of such size that it can be carried in the pocket. It shall be worded in the national language, shall mention at least the surname and first names, the date of birth, the rank and the service number of the bearer, and shall state in what capacity he is entitled to the protection of the present Convention. The card shall bear the photograph of the owner and also either his signature or his fingerprints or both. It shall be embossed with the stamp of the military authority. The identity card shall be uniform throughout the same armed forces and, as far as possible, of a similar type in the armed forces of the High Contracting Parties. The Parties to the conflict may be guided by the model which is annexed, by way of example, to the present Convention. They shall inform each other, at the outbreak of hostilities, of the model they are using. Identity cards should be made out, if possible, at least in duplicate, one copy being kept by the home country. In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet. In case of loss, they shall be entitled to receive duplicates of the cards and to have the insignia replaced.”
- Art. 41 of GC/I: “The personnel designated in Article 25 shall wear, but only while carrying out medical duties, a white armlet bearing in its centre the distinctive sign in miniature; the armlet shall be issued and stamped by the military authority. Military identity documents to be carried by this type of personnel shall specify what special training they have received, the temporary character of the duties they are engaged upon, and their authority for wearing the armlet.”
- Art. 42 of GC/I: “The distinctive flag of the Convention shall be hoisted only over such medical units and establishments as are entitled to be respected under the Convention, and only with the consent of the military authorities. In mobile units, as in fixed establishments, it may be accompanied by the national flag of the Party to the conflict to which the unit or establishment belongs. Nevertheless, medical units which have fallen into the hands of the enemy shall not fly any flag other than that of the Convention. Parties to the conflict shall take the necessary steps, insofar as military considerations permit, to make the distinctive emblems indicating medical units and establishments clearly visible to the enemy land, air or naval forces, in order to obviate the possibility of any hostile action.”
- Art. 18 (4) of AP/I: “With the consent of the competent authority, medical units and transports shall be marked by the distinctive emblem. The ships and craft referred to in Article 22 of this Protocol shall be marked in accordance with the provisions of the Second Convention.”
- Art. 12 of AP/II: “Under the direction of the competent military authority concerned, the distinctive emblem of the red cross, red crescent or red lion and sun on a white ground shall be displayed by medical and religious personnel and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used improperly.”
- No State has used the emblem of the Red Lion and Sun since 1980 when the government of the Islamic Republic of Iran declared that henceforth it would use the Red Crescent as its distinctive emblem.
- For that matter, note that the Party to which they belong may also be an enemy, particularly in the case of occupied territory. A similar condition is posed by Art. 12 of AP/II in the context of non-international armed conflict: “Under the direction of the competent authority concerned, the distinctive emblem of the red cross, red crescent or red lion and sun on a white ground shall be displayed by medical and religious personnel and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used improperly.”
- Annex I to AP/I (Regulations concerning identification), Arts. 4 and 5. For the latter, see fn. 408.
- The possibility of adding to the distinctive emblem other means of identification dates back to the second paragraph of Art. 36 of GC/I which allowed Belligerent Parties to enter into ad hoc agreements upon the outbreak or during the course of hostilities: “[Medical aircraft] shall bear, clearly marked, the distinctive emblem prescribed in Article 38, together with their national colours, on their lower, upper and lateral surfaces. They shall be provided with any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities.”
At that time of GC/I it was limited to medical aircraft. Since then, Art. 18 (5) of AP/I has explicitly authorized the use of additional means of identification for any type of medical transport or unit: “In addition to the distinctive emblem, a Party to the conflict may, as provided in Chapter III of Annex I to this Protocol, authorize the use of distinctive signals to identify medical units and transports. Exceptionally, in the special cases covered in that Chapter, medical transports may use distinctive signals without displaying the distinctive emblem.”
- Rule 72 (b) is based on Art. 5 of Annex I to AP/I (as amended in 1993).[408]
- In air or missile operations, some technical means of detection which are used — such as infra-red cameras or radars — are incapable of recognizing the forms and colours of the distinctive emblem. Therefore, it is convenient to use special material to render the distinctive emblem recognizable by such means of detection. Thus, e.g., adhesive tapes with a high thermal reflection coefficient can make the distinctive emblem visible to thermal imaging cameras.
- As with any technical means of detection, the obligation set forth in Rule 72 (b) is not absolute but only applies “as far as possible”. The phrase “as far as possible” recognizes that there may be limitations upon a Belligerent Party’s ability to adopt such technical means. In this respect, the ICRC Commentary on AP/I indicates: “[t]he reason that the obligation is not absolute is also because some means of identification are very expensive or highly technical, and it is not possible to impose these on Parties to the conflict which do not have the financial or technical means to employ them.”[409] However, to the extent that Belligerent Parties can field such technologies, they ought to do so.
- Art. 5 of Annex I to AP/I: “(1) The distinctive emblem shall, whenever possible, be displayed on a flat surface, on flags or in any other way appropriate to the lay of the land, so that it is visible from as many directions and from as far away as possible, and in particular from the air. (2) At night or when visibility is reduced, the distinctive emblem may be lighted or illuminated. (3) The distinctive emblem may be made of materials which make it recognizable by technical means of detecting. The red part should be painted on top of black primer paint in order to facilitate its identification, in particular by infrared instruments. (4) Medical and religious personnel carrying out their duties in the battle area shall, as far as possible, wear headgear and clothing bearing the distinctive emblem.”
- Para. 747 of the ICRC Commentary on AP/I, pertaining to Art. 18 (1) of AP/I.
- Protection is granted to medical units, medical transports, as well as medical and religious personnel, because of their functions. The practical value of the distinctive emblem and additional means of identification is to facilitate protection by increasing the likelihood that medical and religious personnel, medical units and transports will be identified as such.
- Rule 72 (c) reiterates the general principle of the law of international armed conflict that the distinctive emblem and other means of identification do not confer protection as such, but are merely facilitating recognition of the medical status of personnel, units or transports. This principle was emphasized in Art. 1 of Annex I of AP/I (as amended in 1993)[410] and in paragraph 4 of the Preamble to AP/III.[411]
- Art. 1 of Annex I to AP/I: “(1) The regulations concerning identification in this Annex implement the relevant provisions of the Geneva Conventions and the Protocol; they are intended to facilitate the identification of personnel, material, units, transports and installations protected under the Geneva Conventions and the Protocol. (2) These rules do not in and of themselves establish the right to protection. This right is governed by the relevant articles in the Conventions and the Protocol. (3) The competent authorities may, subject to the relevant provisions of the Geneva Conventions and the Protocol, at all times regulate the use, display, illumination and detectability of the distinctive emblems and signals. (4) The High Contracting Parties and in particular the Parties to the conflict are invited at all times to agree upon additional or other signals, means or systems which enhance the possibility of identification and take full advantage of technological developments in this field.”
- Paragraph 4 of the Preamble to AP/III: “Recalling that the obligation to respect persons and objects protected by the Geneva Conventions and the Protocols additional thereto derives from their protected status under international law and is not dependent on use of the distinctive emblems, signs or signals.”
- Rule 72 (d) is the corollary of Rule 72 (c). Since protected status is not derived from the distinctive emblem per se, medical and religious personnel are protected regardless of whether they wear the emblem.
- Medical units and transports, as well as medical and religious personnel, enjoy a protected status from the moment they have been identified as such, and shortcomings in the means of identification cannot be used as a pretext for failing to protect their status.
A Belligerent Party may inform the enemy of the position of its medical units. The absence of such notification does not exempt any of the Belligerent Parties from the obligations contained in Rule 71.
[Commentary]
- This Rule is based on Art. 12 (3) of AP/I, which invites Belligerent Parties to notify each other of the position of their fixed medical units.[412]
- Contrary to Art. 12 (3) of AP/I, the scope of application of Rule 73 is not limited to fixed medical units. Many battlefield hospitals are mobile in the sense of being deployable, and the Group of Experts considered that Rule 73 ought to be applicable to these hospitals as well. However, when notification of the future location of a mobile medical unit is given to the enemy, it does not have to include the route taken by the unit to reach its destination (although providing such details might enhance the protection of the unit).
- Rule 73 does not apply to medical transports. It would be unrealistic to expect a Belligerent Party to keep the enemy informed of their constant movement. However, nothing prevents a Belligerent Party from informing the enemy of the major movements of medical transports when doing so may enhance their protection (e.g., in the case of a hospital ship or medical aircraft in circumstances where no consent is required).
- Rule 73 entails a mere recommendation to Belligerent Parties aimed at reinforcing the security of their medical units. It is up to each Belligerent Party to decide — depending on the particular circumstances of each case — whether it wants to make the position of its medical units known to the enemy. In certain circumstances, informing the enemy could be detrimental to military operations. Mobile medical units, for instance, often operate near firing positions. Indicating their position in such circumstances may invite attacks against the military units in the vicinity of the medical units.
- Under Rule 73, notification to the enemy requires no special formalities.[413] The position of the medical units may be transmitted through any reliable and efficient means of communication with the enemy.
- The second sentence of Rule 73 reinforces the principle that the absence of notification does not create an exemption from protection. The obligations contained in Rule 71 exist irrespective of notification (which is optional). Failure to notify increases the risk of collateral damage to the medical units during an attack on military objectives (see Rule 14), but in no way impairs the obligations contained in Rule 71 when these units have been identified. Nor does failure of notification impact upon the obligation of feasible precautions required under the law of international armed conflict (see Section G, in particular Rule 32 and Rule 35).
- Art. 12 (3) of AP/I: “The Parties to the conflict are invited to notify each other of the location of their fixed medical units. The absence of such notification shall not exempt any of the Parties from the obligation to comply with the provisions of paragraph 1.”
- The notification envisaged in Rule 73 is totally different from the notification in Section V (“Aerial Blockade”) of this Manual (see Rule 148 (a) and Rule 149 (a)).
(a) The protection to which medical and religious personnel, medical units or medical transports are entitled does not cease unless they commit or are used to commit, outside their humanitarian function, acts harmful to the enemy.
[Commentary]
(b) For medical units or medical transports, protection may cease only after a warning has been given setting a reasonable time-limit, and after such warning has remained unheeded.
[Commentary]
(c) The following must not be considered as acts harmful to the enemy:
[Commentary]
- that the personnel of a medical unit are equipped with light individual weapons for their own defence or for that of the wounded, sick or shipwrecked in their charge.
[Commentary]
- that a medical unit is guarded by sentries or by an escort.
[Commentary]
- that portable arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the medical unit.
[Commentary]
- that members of the armed forces or other combatants are in the medical unit for medical or other authorized reasons, consistent with the mission of the medical unit.
[Commentary]
(d) Medical units must not be used to shield lawful targets from attack.
[Commentary]
- This Rule is, as far as international armed conflicts are concerned, based on Art. 21 of GC/I;[414] Art. 34 GC/II;[415] Art. 19 of GC/IV;[416] Art. 13 (1)[417] and Art. 21 of AP/I;[418] and, as far as non-international armed conflicts are concerned, on Art. 11 (2) of AP/II.[419]
- Rule 74 (a) states that the specific protection conferred on medical and religious personnel, as well as medical units or medical transports, does not cease except when they commit or are used to commit acts harmful to the enemy. Hence, no other reason can give rise to the termination of the obligations contained in Rule 71.
- The notion of “acts harmful to the enemy” encompasses acts whose purpose or effect is to harm the enemy by facilitating or impeding military operations.[420] Therefore, it does not only include acts inflicting harm on the enemy by direct attack, but also attempts at hindering its military operations in any way whatsoever (e.g., positioning a medical unit in a way that would impede a military attack or using a medical transport as a shelter for able-bodied combatants). “Acts harmful to the enemy” may include intelligence gathering.
- To lead to a loss of specific protection, acts harmful to the enemy must be “committed outside of the humanitarian function” of the medical and religious personnel, medical units or medical transports. This implies that certain acts harmful to the enemy may be compatible with the humanitarian function of the medical and religious personnel, medical units or transports. As such, such acts may be accomplished without entailing a loss of specific protection (e.g., the use of electronic equipment at a field hospital may interfere with the enemy’s communication system).
- As to what must not be considered “acts harmful to the enemy”, see Rule 74 (c).
- For the loss of the specific protection of medical aircraft, see Rule 83.
- Art. 21 of GC/I: “The protection to which fixed establishments and mobile medical units of the Medical Service are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.”
- Art. 34 of GC/II, see fn. 307.
- Art. 19 of GC/IV, see fn. 308.
- Art. 13 (1) of AP/I (“Discontinuance of protection of civilian medical units”): “The protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.”
- Art. 21 of AP/I, see fn. 390.
- Art. 11 (2) of AP/II: “The protection to which medical units and transports are entitled shall not cease unless they are used to commit hostile acts, outside their humanitarian function. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.”
- Para. 550 of the ICRC Commentary on AP/I, pertaining to Art. 13 of AP/I.
- Rule 74 (b) has to be read against the background of Rule 38. The requirement to issue a warning as per Rule 74 (b) is an absolute one, unlike warnings mentioned, e.g., in Rule 37, which must be issued unless circumstances do not permit.
- Even if there is a valid reason for discontinuing the specific protection of medical units or medical transports, a warning must be issued first. The warning may take various forms. In many instances, it can simply consist of an order to cease the harmful act within a specified period.
- The time-limit must be reasonable in order to give an opportunity for the unlawful acts to be stopped, or to allow removal to a place of safety of the wounded and sick within the medical units or medical transports, prior to any attack.
- In some cases, it may be “reasonable” to insist on immediate compliance with a warning. However, even in these cases the principle of proportionality and the requirement to take feasible precautions in attack have to be observed (see Section D and Section G).
- This Rule is a corollary to Rule 74 (a), which hinges on the construct of “acts harmful to the enemy”. A list of acts that must not be considered as harmful to the enemy is also given in Arts. 22 of GC/I[421] and Art. 13 (2) of AP/I[422] on which Rule 74 (c) is based.
- The fact that acts enumerated in Rule 74 (c) are not to be considered as harmful to the enemy, does not negate the possibility that there would be other acts of that kind, depending on the circumstances. Hence, the following list of a non-exhaustive nature.
- Art. 22 of GC/I: “The following conditions shall not be considered as depriving a medical unit or establishment of the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed, and that they use the arms in their own defence, or in that of the wounded and sick in their charge. (2) That in the absence of armed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort. (3) That small arms and ammunition taken from the wounded and sick and not yet handed to the proper service, are found in the unit or establishment. (4) That personnel and material of the veterinary service are found in the unit or establishment, without forming an integral part thereof. (5) That the humanitarian activities of medical units and establishments or of their personnel extend to the care of civilian wounded or sick.”
- Art. 13 (2) of AP/I: “The following shall not be considered as acts harmful to the enemy: (a) that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge; (b) that the unit is guarded by a picket or by sentries or by an escort; (c) that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the units; (d) that members of the armed forces or other combatants are in the unit for medical reasons.”
- Rule 74 (c) (i) is based on Art. 22 (1) of AP/I[423] and on Art. 13 (2) (a) of AP/I.[424]
- The personnel of medical units (as defined in the Commentary on Rule 71) is allowed to carry light individual weapons to prevent themselves or the wounded and sick in their charge from becoming the victims of violence. The term “defence” has to be interpreted restrictively as meaning defence against, e.g., attacks by marauders, rioting mob or looters, or with regard to maintaining order amongst unruly patients (the wounded and sick). But such personnel may only resort to arms when strictly necessary for purely defensive purposes. They cannot use force to try and prevent enemy combatants from capturing the medical unit, without losing their protection.[425]
- The expression “light individual weapons” refers to weapons, which are generally carried and used by a single individual. Pistols, rifles and submachine guns are permitted. If the personnel of medical units are equipped with machine guns or any other heavy arms, which cannot be easily transported by a single individual and have to be operated by a number of people, this could be considered as an act harmful to the enemy.
- Rule 74 (c) (i) does not prevent the medical unit from possessing other purely defensive systems (such as flares, jammers or similar protective devices). Such systems must only be used for the defence of the medical personnel or medical unit. Their nature or display must not be such as to lead the enemy to believe that the medical unit is equipped with offensive weaponry.
- Art. 22 (1) of AP/I: “1. The provisions of the Conventions relating to: (a) vessels described in Articles 22, 24, 25 and 27 of the Second Convention, (b) their lifeboats and small craft, (c) their personnel and crews, and (d) the wounded, sick and shipwrecked on board, shall also apply where these vessels carry civilian wounded, sick and shipwrecked who do not belong to any of the categories mentioned in Article 13 of the Second Convention. Such civilians shall not, however, be subject to surrender to any Party which is not their own, or to capture at sea. If they find themselves in the power of a Party to the conflict other than their own they shall be covered by the Fourth Convention and by this Protocol.”
- Art. 13 (2) (a) of AP/I, see fn. 422.
- See also the second subparagraph of Para. 8.6.3 of NWP: “Traditionally, hospital ships could not be armed, although crew members could carry light individual weapons for the maintenance of order, for their own defense and that of the wounded, sick, and shipwrecked. However, due to the changing threat environment in which the red cross symbol is not recognized by various hostile groups and actors as indicating protected status, the United States views the manning of hospital ships with defensive weapons systems, such as anti-missile defense systems or crew-served weapons to defend against small boat threats as prudent AT/TP measures, analogous to armed crew members with small arms, and consistent with the humanitarian purpose of hospital ships and duty to safeguard the wounded and sick.”
- Rule 74 (c) (ii) contains the same idea as in Art. 22 (2) of GC/I[426] and as in Art. 13 (2) (b) of AP/I.[427] Sentries or an escort may be necessary to guard a medical unit in order either to prevent looting and violence or to prevent the possible escape of enemy combatants treated within the medical unit. Sentries or an escort must not attempt to oppose the capture or control of the medical unit by the enemy.
- If the sentries or escort are members of the armed forces, they keep their combatant status, although the mere fact of their presence within a medical unit will usually — as a practical matter — shelter them from attack. In case of capture they will be accorded POW-status.
- Sentries or escort may include civilian employees of a private security company or law-enforcement officials.[428]
- Art. 22 (2) of GC/I, see fn. 421.
- Art. 13 (2) (b) of AP/I, see fn. 422.
- Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, 17 September 2008, available via http://www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/psechi.html
- Rule 74 (c) (iii) is based on Arts. 22 (3) of GC/I[429] and on Art. 13 (2) (c) of AP/I.[430]
- The arms and ammunition taken from the wounded and sick must be handed over to the proper service as soon as possible. In the meantime, the fact that these arms are kept in the medical unit does not result in a loss of protection.
- The “portable arms and ammunition taken from the wounded and sick” are not limited to light individual weapons as specified in Rule 74 (c) (i). Arms covered by Rule 74 (c) (iii) may be heavier, provided that they are portable, i.e. that they can be carried by men, even if it requires two or three soldiers (e.g., surface-to-air missile or anti-tank devices).
- Art. 22 (3) of GC/I, see fn. 421.
- Art. 13 (2) (c) of AP/I, see fn. 422.
- Rule 74 (c) (iv) is based on Art. 13 (2) (d) of AP/I.[431]
- The fact that combatants are present within a medical unit for medical reasons cannot be considered as an act harmful to the enemy. Thus, it would be unlawful to invoke the presence of military wounded and sick in a medical unit as a reason to terminate the protection to which this unit is entitled.
- In that respect, the notion of medical reasons is broader than that of medical treatment. It also encompasses cases where members of the armed forces are in the facility or unit for medical reasons without receiving treatment, e.g., for medical examination or vaccination.
- The Group of Experts departed from the wording of Art. 13 (2) (d) of AP/I on one point: according to Rule 74 (c) (iv), members of the armed forces may be authorized to visit a medical unit for reasons other than medical ones. Even if the presence of a member of the armed forces or of a combatant within the medical unit is not for medical reasons, it may not necessarily be regarded as an act harmful to the enemy. For instance: delivery of mail to patients or visiting them is not inconsistent with the mission of the medical unit.
- Art. 13 (2) (d) of AP/I, see fn. 422.
- Rule 74 (d) is based on the first sentence of Art. 12 (4) of AP/I[432] and relates to precautions by the Belligerent Party subject to attack (see Section H, especially Rule 45).
- Rule 74 (d) — a corollary to the obligations contained in Rule 71 — implies certain obligations for Belligerent Parties with regard to their own medical units and those that have fallen into their hands.
- In particular, Belligerent Parties must ensure that medical units are sited in a way that they do not shield lawful targets from attacks. For practical reasons, medical units must sometimes be located near fire-fighting zones and military objectives, with a view to providing urgent medical care to the wounded and sick. Nevertheless, it is not permissible for a Belligerent Party to intentionally place such units in those locations in order to impede enemy attacks against lawful targets, e.g., in the hope that the enemy would hesitate to attack these lawful targets in order to prevent collateral damage. Along the same lines, it is prohibited to locate lawful targets (such as combatants) within or in the vicinity of a medical unit in order to shield them from attack.
- Using medical units to shield lawful targets from attack cannot be justified under any circumstances (see Art. 12 (4) of AP/I).
- Even if medical units lose protection because they are used to shield lawful targets, the enemy is not relieved from its obligation to respect the principle of proportionality (but see the discussion in paragraph 6 of the Commentary on Rule 45) or from taking feasible precautionary measures (see Section G, as well as Rule 46). In particular, an attack may take place only after a warning has been given requiring the enemy to desist from using the medical unit as a shield and after such warning has remained unheeded (see Rule 74 (b)). This is especially important given that the intention of locating the medical units in the vicinity of military objectives in an attempt to shield the latter from attacks is rarely easy to establish. After all, medical units may be located near the troops simply because this will facilitate and accelerate the provision of care.
- Art. 12 (4) of AP/I: “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever, possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety.”
