Rule 74

(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]
  1. 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]

  2. that a medical unit is guarded by sentries or by an escort.
    [Commentary]

  3. 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]

  4. 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]

  1. 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]

  2. 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.

  3. 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.

  4. 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).

  5. As to what must not be considered “acts harmful to the enemy”, see Rule 74 (c).

  6. For the loss of the specific protection of medical aircraft, see Rule 83.

  1. 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.”

  2. Art. 34 of GC/II, see fn. 307.

  3. Art. 19 of GC/IV, see fn. 308.

  4. 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.”

  5. Art. 21 of AP/I, see fn. 390.

  6. 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.”

  7. Para. 550 of the ICRC Commentary on AP/I, pertaining to Art. 13 of AP/I.

  1. 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.

  2. 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.

  3. 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.

  4. 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).

  1. 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.

  2. 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.

  1. 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.”

  2. 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.”

  1. Rule 74 (c) (i) is based on Art. 22 (1) of AP/I[423] and on Art. 13 (2) (a) of AP/I.[424]

  2. 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]

  3. 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.

  4. 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.

  1. 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.”

  2. Art. 13 (2) (a) of AP/I, see fn. 422.

  3. 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.”

  1. 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.

  2. 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.

  3. Sentries or escort may include civilian employees of a private security company or law-enforcement officials.[428]

  1. Art. 22 (2) of GC/I, see fn. 421.

  2. Art. 13 (2) (b) of AP/I, see fn. 422.

  3. 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

  1. Rule 74 (c) (iii) is based on Arts. 22 (3) of GC/I[429] and on Art. 13 (2) (c) of AP/I.[430]

  2. 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.

  3. 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).

  1. Art. 22 (3) of GC/I, see fn. 421.

  2. Art. 13 (2) (c) of AP/I, see fn. 422.

  1. Rule 74 (c) (iv) is based on Art. 13 (2) (d) of AP/I.[431]

  2. 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.

  3. 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.

  4. 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.

  1. Art. 13 (2) (d) of AP/I, see fn. 422.

  1. 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).

  2. 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.

  3. 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.

  4. Using medical units to shield lawful targets from attack cannot be justified under any circumstances (see Art. 12 (4) of AP/I).

  5. 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.

  1. 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.”

Categories: Section K: Specific Protection of Medical and Religious Personnel...