Joint Blog Series: Medical Care in Armed Conflict, Part II – World

When do medical personnel lose their protection under IHL in an armed conflict? Specifically, what acts are considered “harmful to the enemy”? Who can medical personnel defend against what without losing their special protection? And, do medical personnel regain their former status once they have ceased to commit acts harmful to the enemy?

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The first part of this two-part article examined whether separate medical services are required under IHL, whether there is an obligation for military medical services to be ready to collect and treat wounded and sick civilians, while civilian medical personnel can be considered ‘assigned’ to a party as they enjoy special protection under IHL, and an exception for respecting medical secrecy.

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5. What are acts harmful to the enemy?

IHL contains no explicit treaty rules on when medical personnel lose their special protection. There are, however, detailed rules on when fixed medical establishments and mobile medical units lose their special protection (GC I, art 21; GC II, art 34; PA I, art 13; ICRC CIHL, rules 28 and 29) . If it is accepted to apply these rules to medical personnel by analogy, this must be done mutatis mutandis in my view. Special protection is lost when they commit acts prejudicial to the enemy outside their humanitarian duties, but only after a duly given warning and after a deadline for putting an end to these acts has remained unfulfilled (GC I, art 21; GC II, art 34; AP I, 13(1); ICRC CIHL, rules 28 and 29).[1]

What constitutes acts injurious to the enemy by medical personnel is controversial. Most consider the term to be broader than direct participation in hostilities (see, for example, here at 411, here and here at 329).[2] This is correct for medical units and transports for which the concept is specifically used in the treatises. The expression includes not only open hostilities, but also the harboring of combatants or able-bodied combatants.

In my opinion, however, people only lose their special protection if they take a direct part in hostilities. It is true that the above examples of acts injurious to the enemy do not constitute direct participation in hostilities. But this is simply because the term “acts harmful to the enemy” was developed for medical units and establishments, while “direct participation in hostilities” refers to persons. A hospital obviously cannot participate directly in hostilities, but it can be used to commit acts harmful to the enemy if it houses able-bodied combatants. Although I must admit that this interpretation remains controversial, my opinion is that this same logic does not apply to medical personnel. That is, if the medical personnel had to shelter an able-bodied combatant, this action should not be considered an act detrimental to the enemy resulting in a loss of protection. Certainly, my interpretation will raise controversy. For example, driving an ammunition truck from a port to a place where the ammunition will be stored does not constitute direct participation in hostilities (see here, p. 56), whereas most would say that, if committed by medical personnel, it would be an act harmful to the enemy. However, this finding has only limited practical impact, because whoever is driving the truck, the truck can be targeted, as a legitimate military objective. And driver status is unlikely to outweigh military advantage in the proportionality assessment.

It is important to state here that a wide range of acts can be performed by medical personnel outside of their humanitarian function – such as distributing food or building a bridge for the civilian population – without causing a loss of protection against attacks under international humanitarian law. Geneva Convention I and Additional Protocol I cite only a few examples of acts which do not entail a loss of protection, as they would otherwise be controversial (see CGA, art 22; API, art 13). In particular, the two treaties provide in particular that medical units do not lose their protected status because their personnel are armed for the purposes of their own defense or the defense of the wounded and sick. They may use these weapons in self-defense or to defend the wounded and sick, but only in response to unlawful attacks.

In this context, it is important to interpret the concept of self-defense of non-combatants in an armed conflict very restrictively (and here it should be remembered that even military medical personnel are not combatants). First of all, medical personnel can only act in self-defense against attacks, i.e. acts of violence, and not against attempts by the enemy to take control of them. themselves, their units or the wounded and sick, which are not prohibited by international humanitarian law. . Therefore, in such a case, the medical personnel would lose their special protection if they tried to prevent the enemy from taking control. Second, they must take into account the risk of generating a distorted perception when they begin to use force against enemy armed forces, even if it is in self-defence.

Also, not all unlawful attacks can result in self-defense. In my view, an unlawful attack triggering the right of self-defence is only an attack that has an unlawful objective (i.e. an attack on something that is not a legitimate military objective). On the other hand, medical personnel may not react to attacks which are unlawful because they violate the principle of proportionality, the obligation to take all possible precautionary measures, or because they use, against combatants, illegal weapons. Medical personnel would not be able to assess the legality of such an attack.

It is also questionable whether medical personnel can defend others – their colleagues and the wounded and sick – against an unlawful attack. According to the wording of the provisions, it is clear that they can defend other members of the medical personnel as well as the wounded and sick in their care. In my opinion, this should be extended to the defense of a civilian targeted by an unlawful attack, even if this is not provided for in the Conventions. It should also be added that the question of self-defense is one of the differences between medical and religious personnel. Military religious personnel cannot defend those in their spiritual care, as it is not illegal to attack them.

On a related note, it should be pointed out that IHL explicitly specifies that only acts injurious to the enemy committed by medical personnel “outside their humanitarian duties” can lead to a loss of protection. Thus, acts which form part of the humanitarian duties of medical personnel – such as caring for the wounded, the sick, the prevention of disease or the presence on the battlefield to collect the wounded and sick – never result in a loss of protection. This is the case even if the beneficiaries are soldiers and the medical procedures therefore strengthen the military capacity of those who are fighting for a party to the conflict.

Finally, civilian medical personnel who commit acts prejudicial to the enemy lose their protection as civilians only if and for the duration of their direct participation in hostilities. For military medical personnel, the consequences and duration of such a loss of protection are again controversial. Some claim that as members of the armed forces they turn into combatants who turn into prisoners of war if captured. Others maintain that they recover the special protection granted to medical personnel as soon as they no longer commit acts harmful to the enemy. This is in my opinion unrealistic as it would mean that they must be repatriated if they fall into the power of the enemy (GC I, Art 30).

Read PART I here.

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Footnotes

[1] See also CIHL, Rule 25, which does not include this last part and PA II, Art 11, which has slightly different wording.

[2] See Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflict. Commentary on the two Additional Protocols of 1977 to the Geneva Conventions of 1949, The Hague, Martinus Nijhoff, 1982, p 411, Robert W. Gehring, Loss of civil protections under the Fourth Geneva Convention and Protocol I, 90 Military Law Review, 1980, p 49, and Nils Melzer, Targeted Killings in International Law, Oxford, Oxford University Press, 2008, p 329. ).