A Critique of the Icrc's Updated Commentary to the First Geneva Convention: Arming Medical Personnel and the Loss of Protected Status

• Publication year: 2017
• Citation: Vol. 45 No. 3

A CRITIQUE OF THE ICRC'S UPDATED COMMENTARY TO THE FIRST GENEVA CONVENTION: ARMING MEDICAL PERSONNEL AND THE LOSS OF PROTECTED STATUS

Nicholas W. Mull^*

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................496

II. ACTS HARMFUL TO THE ENEMY .....................................................496

III. ARMING OF MEDICAL PERSONNEL .................................................498

IV. MEDICAL ESTABLISHMENTS IN PROXIMITY TO MILITARY OBJECTIVES .....................................................................................503

V. THE TEMPORAL SCOPE OF THE LOSS OF PROTECTED STATES FOR MEDICAL PERSONNEL OR ESTABLISHMENTS AFTER COMMITTING AN ACT HARMFUL TO THE ENEMY ...........................507

VI. CONCLUSION ...................................................................................510

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I. INTRODUCTION

When addressed by commentators, the protected status of medical personnel and their units, transports and establishments is typically focused on the affirmative duties of combatants not to target medically protected persons and objects. Equally important to these, however, are the affirmative duties of medical personnel to refrain from "acts harmful to the enemy" in order to maintain their protected status, and the extent of the correlative rights of self-defense.¹ These are the concerns of military medical providers in the field at the tactical level that are typically ignored, but they are nevertheless concerns that must be discussed. This is especially true in light of some of the opinions of the International Committee of the Red Cross (ICRC) in the 2016 updated commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.²

There are three particular suggestions in the commentary that are in error. First is the conclusion that medical personnel may only carry "light individual weapons" without losing their protected status.³ The second assertion is that a medical establishment loses its protected status solely by being placed in proximity to a valid military objective.⁴ Finally, the third assertion that the commentary makes is that once medically protected persons or objects commit an "act harmful to the enemy" their protected status may not be regained even if exclusive humanitarian duties are resumed.⁵

II. ACTS HARMFUL TO THE ENEMY

As a preliminary matter in analyzing the first two issues, it is vital to interpret Article 21 of Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (GC I), which provides that the sole reason by which protected medical personnel, units and establishments may lose protected status is the commission, "outside their humanitarian duties, [of] acts harmful to the enemy."⁶ Though the text of Article 21 explicitly applies only to mobile

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medical units and fixed establishments, in light of the extension of protection specifically to medical personnel in Article 24 and the fact that units are composed of medical persons, the only reasonable interpretation would apply the same standard to individual persons in the military medical service.⁷ Further, reading Article 21 and 24 together logically requires an extension of Article 21 to medical personnel and a narrowing of the seemingly absolute protections for medical personnel discussed in Article 24. though Article 24 states that medical personnel must be "protected in all circumstances," this protection is predicated upon a given individual's being within the definition of "medical personnel," which only includes those persons "exclusively engaged" in the humanitarian mission of medical operations.⁸ Thus, if medical personnel commit "acts harmful to the enemy," they do not satisfy the conditions required by Article 24 for protection.

The operative condition of "harmful to the enemy" requires a purposeful act that in and of itself has caused harm to the enemy's ability to conduct legitimate military operations.⁹ This is not a high threshold, it merely requires a definable present harm to the enemy, committed with the intent to cause such harm.¹⁰ The specific intent element may seem difficult to determine in the fog of war, but this is one of the purposes of the "due warning" requirement.¹¹ According to Article 21 of the Geneva Convention For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), "[p]rotection 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."¹² The drafters understood that "[i]t is possible for a humane act to be harmful to the enemy, or for it to be wrongly interpreted as so," simply as a result of the presence of military medical units in an active theatre of operations.¹³ Such innocent humane acts that may cause harm—like

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medical equipment affecting electronic communications signals in its vicinity—do not, however, result in a loss of protected status.¹⁴ This is because they are not only not intended to inflict harm, but also are not "committed outside [the] humanitarian duties" of the personnel.¹⁵ The "due warning" requirement provides medical units the opportunity to explain that such interference is not intentional and is directly related to the execution of humanitarian duties before the enemy may rule their protected status forfeited. In the event such action is an "act harmful to the enemy," it also gives personnel a chance to cease such activity.

This standard should also be understood as more expansive than the direct participation in hostilities (DPH) standard used for determining the loss of protected status of civilians, as it includes both direct and indirect actions.¹⁶ As mentioned, however, the expansive interpretation of "acts harmful to the enemy" includes the "due warning" requirement to help resolve any possible confusion. So, on its face it may appear that medical personnel, units, and establishments have more protection than civilians, but with the "due warning" requirement it is balanced by the fact that many more actions can result ultimately in the loss of protection. If there is "doubt as to whether a particular type of conduct amounts to an 'act harmful to the enemy,' it should not be considered as such."¹⁷ The generally expansive nature of this standard also necessitated the drafting of Article 22 of GC I, which covers actions that may not be considered "acts harmful to the enemy"—such as, inter alia, arming medical personnel.¹⁸

III. ARMING OF MEDICAL PERSONNEL

Turning to the issue of arming medical personnel, the updated commentary opines that medical personnel are only authorized to carry "light individual weapons," and that to possess crew-served weapons (CSW) results in the "loss of specific protection of the military medical unit."¹⁹ Admittedly this is a view expressed by some scholars, and by several states in their military manuals, but it is far from a universal view.²⁰ The

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qualification of "light" and "individual" is a noticeable addition in the 2016 Commentary that is absent from the 1952 Pictet Commentary. This addition presents unnecessary danger to medical personnel in contemporary conflicts, in which reciprocity can no longer be presumed. Further, it is an erroneous interpretation of Article 22, which seeks to qualify unambiguous text and which is contrary to standard military planning.

By its text, Article 22 does not condition the quality or quantity of the arms that medical personnel may possess; it only limits the use of weapons by such personnel to self-defense.²¹ The 1952 Pictet Commentary focuses exclusively on the purpose and permissible use of the arms without ever opining upon the acceptable level of armament.²²

Despite the clear meaning of the text of Article 22, which is free from ambiguity, the 2016 Commentary draws a grossly inappropriate analogy to Article 13 of Additional Protocol I (AP I), which states that the equipping of civilian medical personnel with "light individual weapons" would not be considered an act harmful to the enemy.²³ Article 13 of AP I was not an attempt to clarify any ambiguity of Article 22, but instead pertained to a completely different class of personnel: civilian medical units. It is a highly illogical, inferential leap to assume that states would want civilians to be armed to the same degree as military medical personnel who are subject to the high standards of discipline of a uniformed service. Civilian medical personnel cannot be presumed to have the weapons and general military training associated with military medical personnel. Military medical personnel have also presumably been trained to a higher degree of specificity regarding acceptable actions, and, unlike civilian medical personnel, they are subject to the military discipline system. The U.S. Navy, for example, requires medical personnel to receive more advanced training on the law of

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armed conflict than general members of the force who serve in duties not involving direct combat operations.²⁴

The 2016 Commentary also opines that Article 22 of GC I limits the arming of medical personnel to portable light individual weapons through citation to Pictet's Commentary on the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (GC II).²⁵ The first item of interest with respect to this citation is the fact that the ICRC did not cite the Pictet Commentary for GC I, which is the actual commentary on point. Admittedly, the Pictet Commentary of GC II does state that the personnel on hospital ships will only need "individual portable weapons," despite the fact that the text of GC II itself did not qualify arming in this way.²⁶ But, it is interesting that Pictet made no such...