Wounded Combatants,military Medical Personnel, and the Dilemma of Collateral Risk

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

WOUNDED COMBATANTS,MILITARY MEDICAL PERSONNEL, AND THE DILEMMA OF COLLATERAL RISK

Geoffrey Corn^* & Andrew Culliver^**

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................446

II. AN OVERVIEW OF THE IHL PROPORTIONALITY OBLIGATION ........447

A. The Concept of Lawful Military Objective...............................447
B. Explaining IHL Proportionality...............................................450

III. THE PROPORTIONALITY DEBATE ....................................................452

A. Approach of the ICRC's 2016 Commentary to the GWS.........452
B. The 2015 DoD Law of War Manual.........................................459

IV. THE HUMANITARIAN BASIS FOR A MIDDLE-GROUND APPROACH ......................................................................................464

V. THE 2016 LAW OF WAR MANUAL REVISION: EMBRACING THE PRECAUTIONS APPROACH ...............................................................467

VI. CONCLUSION ...................................................................................472

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I. INTRODUCTION

International Humanitarian Law (IHL)¹ unquestionably obligates parties to a conflict to "respect and protect" wounded and sick members of the armed forces, as well as the military personnel, facilities, and transportation exclusively engaged in their collection and care (non-combatant members of the armed forces and their equipment and facilities). However, what seems less certain is how this obligation translates into protection from the harmful effects of actual combat operations—and furthermore, what the legal source and extent of such protection is. While it is axiomatic that the wounded and sick and those who care for them are protected from deliberate attack, it is equally axiomatic that significant harm may be inflicted on them as an incidental consequence of an attack on an otherwise lawful target. Is the attacking commander required to conduct a proportionality assessment based on this risk? If so, are these individuals and assets to be accorded the same weight as civilians and civilian objects?² Must an attacking commander consider feasible precautions to mitigate the risk to these individuals and objects? Probing these questions exposes a rift in IHL interpretations of great potential significance for the protection of the wounded and sick and their caretakers.

A number of provisions of the U.S. Department of Defense (DoD) Law of War Manual indicate that military medical personnel, facilities, equipment, and military wounded and sick are not included within the scope of the IHL proportionality rule.³ However, the International Committee of the Red Cross's (ICRC) new 2016 Commentary to the First Geneva Convention (GWS) takes a contrary view, indicating that both proportionality and precautions obligations extend to these people and objects.⁴ This Article

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proposes that both of these interpretations are patently flawed.⁵ The DoD Manual's approach is preemptively dismissive of the obligation to protect the wounded and sick members of the armed forces, as well as those involved in their treatment.⁶ On the other hand, the ICRC's 2016 Commentary fails to contemplate the adverse effects of its asserted blanket extension of proportionality and precautionary obligations.⁷ Ultimately, it is the nearly century and a quarter year-old Martens Clause that sheds thoughtful direction on this topic.

II. AN OVERVIEW OF THE IHL PROPORTIONALITY OBLIGATION

At its core, IHL compliance is built upon several foundational principles: military necessity, humanity, distinction, and proportionality.⁸ Additionally, there is increasing recognition that the obligation to implement feasible precautions to mitigate civilian risk should also be included in this principles category.⁹ Though no treaty provides a dispositive definition of these principles, they are universally recognized as the baseline framework for regulating all armed conflicts.¹⁰ These principles function to ensure the employment of an efficient use of force that both accomplishes military objectives and minimizes the suffering associated with all armed conflict.

A. The Concept of Lawful Military Objective

while each of these cardinal principles is of irrevocable importance to the regulation of armed conflict, the principle central to the issue raised in this Article is IHL proportionality. However, to properly understand the function

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of proportionality, it is first necessary to begin with a discussion of proportionality's relationship to the principle of distinction, and more specifically, to the IHL concept of lawful military objective. The reason for this is because proportionality considerations arise only after the determination that an intended object of attack is a military objective: that a person, place, or thing qualifies as a lawful military target (or objective).¹¹ It is only after such determination that proportionality demands assessment of potential incidental death, injury, or destruction to civilians and civilian objects.¹²

Pursuant to the principle of distinction, lethal combat power may only be directed at lawful targets.¹³ Targets can generally be broken down into "persons" and "things," the latter of which need not be explained for purposes of this Article. With regard to persons, most of the international community recognizes two categories: "combatants," and "civilians" (frequently referred to as "non-combatants," a term that is technically inaccurate as it instead denotes non-combatant members of the armed forces: medical personnel and chaplains exclusively engaged in the collection and care of the wounded and sick).¹⁴ The rule regarding civilians is clear: civilians are not to be made the deliberate object of attack, unless and only for such time as they take a direct part in hostilities.¹⁵ On the other hand, combatants—as defined through a complex interrelationship of treaty

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provisions culminating with Article 43 of Additional Protocol I, are targetable at all times because of their combatant status.¹⁶

The legal authority to attack combatants terminates, however, when the combatant is rendered wounded or sick within the meaning of IHL.¹⁷ Specifically, pursuant to Article 12 of the GWS, wounded and sick members of the armed forces are to be respected and protected in all circumstances, and therefore deemed unlawful targets.¹⁸ However, not every illness or injury results in vesting the combatant with this cloak of protection. The 2016 Commentary explains that the term wounded and sick is best understood through the following two conditions:

[1] The decisive criterion for determining when a person is wounded or sick in the sense of Article 12 . . . is that of being in need of medical care. It is this particular need, and the specific vulnerability that comes with it, that the legal regime protecting the wounded and sick aims to address.

. . .

[2] In addition to being in need of medical care, in order to qualify as wounded or sick in the sense of Article 12, a person must also refrain from any act of hostility. Thus, contrary to the ordinary meanings of the terms 'wounded' and 'sick', persons who continue to engage in hostilities do not qualify as wounded or sick under humanitarian law, no matter how severe their medical condition may be.¹⁹

Wounded and sick members of the armed forces do not lose their status as combatants.²⁰ Instead, their condition is better understood as vesting them with a cloak of protection for the time that they are wounded and sick. Once recovered, that protection terminates and they are again subject to deliberate attack.²¹ If captured, they are prisoners of war for the entire duration of

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captivity, with special protections derived from being wounded and sick.²² Most importantly, the protection afforded to wounded and sick combatants in no way transforms them into civilians, or transforms their status into that of a civilian, while they are wounded and sick.²³ Instead, they exist as a special category of members of an armed force that, for the duration of their tenure as wounded or sick, are protected from being made the object of attack.²⁴

Distinct from both combatants and civilians are what IHL classifies as non-combatant members of the armed forces. These are members of the armed forces—military personnel—who are exclusively engaged in the humanitarian function of search for, collection, and care of the wounded and sick.²⁵ This category of non-combatants is defined by Article 24 of the GWS, which provides:

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.²⁶

Like wounded and sick combatants, non-combatant members of the armed forces must be respected and protected at all times, so long as they do not commit an "act harmful to the enemy" that is inconsistent with their exclusive "humanitarian duties."²⁷ This same protection extends to their facilities and equipment.²⁸

B. Explaining IHL Proportionality

With this basic understanding of lawful targets in mind, the relevance and application of the proportionality obligation vis-à-vis the wounded and sick and non-combatant members of the armed forces can be more accurately

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understood. The DoD Law of War Manual describes the "proportionality rule" in the following manner: "[c]ombatants must refrain from attacks in which the expected loss of life or injury to civilians, and damage to civilian objects incidental to the attack, would be excessive in relation to the concrete and direct military advantage expected to be gained."²⁹ The United Kingdom's Law of Armed Conflict Manual from the Ministry of Defence offers a...