Soon after the Geneva Conventions of 1949 came into force, there was a push to further develop and expand their protections. In the eyes of many, the Conventions did not go far enough. In the GCs, for instance, “the position of civilian medical personnel had been dealt with in a somewhat incomplete fashion.”84 And, as noted by the ICRC in 1971, while Common Article 3 “has already rendered signal service […] it cannot be denied that it has loopholes and shortcomings. Its promoters themselves considered it only as the first step.”85 The article is silent on “the protection to be
82. That paragraph also provides that “[t]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.” Common Article 3(2) GCs I–IV.
83. ICRC Commentary on the APs, paras. 670–674.
84. ICRC, CE/7b, p. 1.
85. Id. at p. 30 [italics added].
granted to doctors and other medical personnel, on medical establishments and transports and on the respect due to the sign of the red cross.”86 While those protections may be implied in Common Article 3, “it must be admitted that there would be considerable advantage in stating expressly, among the provisions to be confirmed, principles which have never been contested.”87
In part to strengthen the protective regime for medical care, from the 1950s through the early 1970s states and the ICRC took a series of steps at International Conferences of the Red Cross and elsewhere. Those efforts culminated in a series of events in Geneva: Conferences of Government Experts, in 1971 and 1972, and a Diplomatic Conference, in 1974 –1977.88
Ultimately, out of the Diplomatic Conference two new treaties emerged.
Additional Protocol I applies to IACs, as well as a particular type of NIAC: so-called wars of national liberation, which are treated as IACs for purposes of AP I.89 And Additional Protocol II applies to certain NIACs.
International armed conflicts
AP I significantly strengthens protections for impartial wartime medical care. For instance, it broadens the legal protections to include expressly all wartime wounded, sick, and shipwrecked persons, whether military or civilian.90 AP I also extends
86. Id.
87. Id.
88. Issues relating to medical care discussed in the lead up to the Diplomatic Conference included the possibility of extending the use of the distinctive emblems of the Geneva Conventions to civilian medical personnel; elaborating additional regulations concerning medical aircraft; and the potential introduction of a new emblem (a red staff of Aesculapius on a white background) as a means to identify doctors and nurses who are not members of the state medical service (a proposal that was ultimately rejected). Id. at pp. 2, 17, 25–26.
89. The scope of material application of AP I also expressly includes “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” Article 1(4), AP I. Regarding the temporal scope of AP I, see article 3 AP I.
90. See, e.g., Kleffner, “Protection of the Wounded, Sick, and Shipwrecked,” supra note 14, at p. 322; Mehring, Medical Ethics in IHL, supra note 1, at pp. 90–91 (calling the inclusion of both combatants and civilians a “significant development as it closes the gap between the protection of wounded and sick combatants and wounded and sick
medical-attention protections to mental-health aspects of care.91 AP I further supplements GCs I–IV by defining, for purposes of the protocol, wounded and sick persons,92 as well as a host of other medically related personnel and objects.93 The Protocol maintains the requirement that the status of medical personnel, transports, and units—even so-called civilian medical personnel—be predicated on the recognition and authorization of a party to the conflict.94 (Even though AP I retains the authorization requirement to obtain that special status, unassigned caregivers benefit from important protections—though fewer than their medical-personnel counterparts—under the Protocol.)
AP I introduces the concept of, but does not define, “medical ethics” as a bulwark against illegitimate compulsion.95 For instance, the Protocol prohibits the
civilians.”) Id. at 91.
91. Article 8(a) AP I.
92. Id.
93. Article 8(c), (e)–(j) AP I.
94. ICRC Commentary on the APs, para. 349 (noting generally that “civilian medical personnel are also covered [under article 8(c) AP I, defining “medical personnel”], provided that they are assigned to medical tasks by a Party to the conflict, in order to ensure in a better way the protection of all the wounded and sick, whether civilian or military.”) [italics added]; id. at para. 354 (clarifying that “[n]ot every civilian doctor is protected by the Conventions. Indeed, there is no a priori reason why a plastic surgeon, for example, should be protected. On the other hand, if the Party to the conflict in the territory in which he works assigns him to tasks mentioned above, i.e., if he becomes useful for the protection of the wounded and sick, he deserves to be protected. This is an example of the derivative character of the protection of medical personnel, which is relevant only when such personnel is engaged in the protection of the wounded and sick. Moreover, it is essential that the Party to the conflict, which is responsible for preventing the misuse of the protective emblem, retains the power to decide who is entitled to the protection reserved for medical personnel.”) [italics added]; id. at para. 610 (confirming, with respect to article 15(1) AP I, that “it should be remembered that not all civilian medical and nursing personnel is covered here, but only those who have been assigned to medical tasks by the Party to the conflict on which they depend.”) [italics added; citation omitted].
95. The ICRC Commentary on the APs states that medical ethics “refers to the moral duties incumbent upon the medical profession. Such duties are generally decreed by the medical corps of each State in the form of professional duties.” ICRC, Commentary on APs, p. 200, para. 655. See generally Mehring, Medical Ethics in IHL, supra note 1, at pp. 306 –344. For a recent (non-legally-binding) list of ethical principles of health care in armed conflict and other emergency situations to which five major NGOs subscribe, International Committee of the Red Cross, International Pharmaceutical Federation, World Medical Association, ICMM, and International Council of Nurses,
“Ethical Principles of Health Care in Times of Armed Conflict and Other Emergencies,” June 2015, available at https://www.icrc.org/en/document/common-ethical-principles-health-care-conflict-and-other-emergencies. See infra Section 4: “Corollary Protections for Medical Caregivers, Transports, Units, and Supplies — Prohibition on illegitimate compulsion” and “Prohibition on punishment.”
punishment of anyone who carries out medical activities compatible with medical ethics.96 It also prohibits compelling physicians to act in a way that does not conform with medical ethics or with other medical rules designed for the benefit of the wounded and sick.97
AP I expands the grave breaches regime introduced in GCs I –IV and expressly regards grave breaches as war crimes.98 Many of the grave breaches laid down in AP I relate to medical care. For instance, AP I stipulates that certain willful acts or omissions99 that seriously endanger the physical or mental health or integrity of a person in the power of a party other than the one on which she depends constitute grave breaches.100 AP I also includes the wounded and sick—including civilians—protected by the Protocol as persons against whom grave breaches may be committed.101 The Protocol expressly recognizes that certain acts committed against medical personnel, units, and transports may constitute grave breaches.102 And under certain conditions a number of additional acts related to medical care also constitute grave breaches under AP I.103 Those acts include making a person the object of attack in the knowledge that she is hors de combat, as well as the perfidious use of the distinctive emblems or other protective signs of GCs I–IV and AP I.104 Non-international armed conflicts
Earlier drafts of AP II included far more provisions than the version that states ultimately agreed to at the end of the Diplomatic Conference in 1977. The 28 articles
96. Article 16(1).
97. Article 16(2) AP I. See also article 11(3) AP I.
98. Article 85 AP I; see also article 11(4) AP I.
99. Those that violate article 11(1) or (2) AP I or that fail to comply with the requirements of article 11(3) AP I.
100. Article 11(4) AP I.
101. Article 85(5) AP I.
102. So long as they are under the control of the adverse party and are protected by the Protocol. Article 85(5) AP I.
103. When committed willfully, in violation of the relevant provision of AP I, and where they cause death or serious injury to body or health. Article 85(3) AP I.
104. Article 85(3)(e) and (f) AP I. The perfidious use must be in violation of article 37 AP I to constitute a grave breach under the Protocol.
of AP II nonetheless expand the treaty provisions—including those related to medical care—applicable to NIACs meeting the Protocol’s threshold of application.
AP II mirrors many of the medical-care provisions laid down in AP I. For instance, AP II imposes obligations to search for, collect, and care for wounded or sick—whether military or civilian.105 It regulates the use of the distinctive emblems.106 It stipulates respect for and protection of medical personnel and requires they be granted all available help.107 And it lays down the same type of respect-and-protect obligations—and the corresponding respect-and-protections against attack—for medical transports and units that previously applied to such objects only in IACs.108 As does AP I, AP II also prohibits punishing anyone who carries out medical activities compatible with medical ethics, regardless of who benefits.109
Yet some medical-care measures are less exhaustive in AP II than in AP I. For instance, AP I and AP II both prohibit subjecting certain persons to any medical procedure that is not indicated by the state of health of the person concerned and that is not consistent with generally accepted medical standards.110 Yet unlike AP II, AP I also expressly prohibits—with certain exceptions—carrying out on such persons,
105. Article 7 AP II.
106. Article 12 AP II.
107. Article 9(1) AP II.
108. Article 11 AP II.
109. Article 10(1) AP II. During the Conference of Government Experts preceding the Diplomatic Conference, it was agreed that the purpose of this provisions “was to protect the performance of medical activities and should cover all persons who were engaged in such activities, regardless of whether they were in protected institutions or not.” Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Second Session, 3 May - 3 June 1972, Report on the Work of the Conference, Submitted by the International Committee of the Red Cross, July 1972, Geneva, Volume 1, p. 39, para. 1.49. (stating further that “[i]
n order to make this clear, the words ‘medical personnel’ were changed to ‘any person engaged in medical activities’.”) [italics added]. The dispositive element regarding what falls under the broad expression “medical activities” may, in the view of the ICRC, be discerned by ascertaining whether “the activities are at improving health or alleviating the suffering of the wounded.” ICRC, Commentary on the APs, para. 652.
110. The latter standard is framed in slightly different terms in article 11(1) AP I (“generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty”) than in article 5(2)(e) AP II (“generally accepted medical standards applied to free persons under similar medical circumstances”).
even with their consent, physical mutilations, medical or scientific experiments, or removal of tissue or organs for transplantation.111
Finally, AP II—like Common Article 3—contains no grave breaches regime.
Review
Both Additional Protocols increase the amount and breadth of protections for medical care. But AP I contains more such measures than AP II. Perhaps more importantly, AP II does not make up for the relatively fewer combined set of medical-care measures across all relevant treaties for NIAC compared to IAC.
Adding to the fragmented character of the legal regime is the fact that, unlike the Geneva Conventions of 1949, the Additional Protocols have not been universally ratified. Indeed, it was with the Additional Protocols that the “Great Schism” was born.112 Today, over two-dozen states are not party to AP I nor to AP II. Some states engaged in armed conflicts involving terrorists are party to neither Protocol, such as Israel, Pakistan, Somalia, Turkey, and the United States.113
The thumbnail version of this dissonance is that some states think key provisions of the Protocols, especially AP I, do not reflect good law or sound policy. Even more, the thinking goes, AP I could potentially subvert foundational IHL norms. Some non-contracting states are especially concerned that AP I could operate in a way that supports terrorism. Part of the reason the United States, for instance, has declined to become a party was its concern that AP I weakens the distinction between combatants and noncombatants and thereby supports a rationale underlying terrorist violence.114
111. Article 11(1)–(3) AP I.
112. Yoram Dinstein, “International Humanitarian Law and Modern Warfare,” in International Expert Conference on Computer Network Attacks and the Applicability of International Humanitarian Law 17, 18–19 (ed. Boyström, 2014).
113. Pakistan and the United States have signed but not ratified AP I and AP II.
114. Article 44(3) is one of the grounds on which the United States has elected not to become a party to AP I. See, e.g., Letter of Transmittal from the White House to the Senate, January 29, 1987, Annexed Letter of Submittal, Washington, December 13, 1986, George Schultz, p. IX (stating that “Article 44(3) [AP I], in a single subordinate clause, sweeps away years of law by ‘recognizing’ that an armed irregular ‘cannot’ always distinguish himself from
non-Zooming out, the results are fragmentation in the lex scripta: between the medical-care treaty protections for states party to the Protocols and those not party to them; between those protections for IAC versus those for NIAC; and between those protections across different types of NIACs.
In principle, customary IHL could resolve that fragmentation and fill in the corresponding gaps in the lex scripta. Our research suggests that, so far, it has not—
at least not fully.