Introduction
Since 2001, the “global war against terrorism” has entered the international vocabulary,Footnote 1 and has challenged long-standing rules established by international humanitarian law (IHL).Footnote 2 It should be noted that this concept of a global war against terrorism had already been invoked in 1999 by the Russian authorities in the context of the second Chechen war.Footnote 3
The fight against terrorism is largely referred to today to describe the use of armed force against non-State armed groups that are fighting for a new political–religious national order.Footnote 4
Terrorism offences are governed by a specific set of rules in international lawFootnote 5 as well as in domestic criminal law. However, they do not belong to a legal category under IHL. The lack of agreement on an international definition for the concept of terrorismFootnote 6 contributes to blurring the right of individuals (labelled as terrorists), who are part of a non-State armed group in a non-international armed conflict (NIAC), to the legal protections afforded by IHL in the course of the conduct of hostilities. Indeed, these individuals will usually fall under domestic terrorism laws, the application of which, in several cases of observed practice, supersedes IHL and subtracts them from a protection that they would normally benefit as a non-State party to a conflict. Conflation of IHL and domestic criminal terminology has become inherent to the effective implementation of IHL in these situations.
This confusion is even more aggravated by the ambiguity created by the choice to use terms such as “war” or “combat” to refer to the fight against individuals and groups labelled as terrorists at the national and international level.Footnote 7 It also contributes to blurring the lines between criminal law and the legal framework applicable to armed conflict. Recent reference to “armed terrorist groups” by State military representativesFootnote 8 further crystalizes this risk. Indeed, in determining if the commission of certain acts meets the threshold of an armed conflict, the labelling of individual or non-State armed groups as being terrorist is irrelevant. What matters is the intensity of the violence used between the opposing State and non-State parties to the conflict – government forces against the non-State armed group.Footnote 9
Terrorism is a broad criminal qualification that materializes in two different and intertwined ways: special criminal procedure in front of tribunals and special military operations in the battlefield. It has also been broadly used by governments in many NIACs to qualify groups and individuals affiliated to non-State armed groups and to deprive them of IHL provisions, notably about detention and interrogationFootnote 10 but also in connection with the provision of impartial medical care. Indeed, beyond international designation of terrorist individuals and groups, each country takes its own decision regarding such designation. While attention has been given to attacks on medical care as a generic issue, more elaboration on their typology and triggers is necessary to identify effective leverage. Better acknowledgement of the adverse effects of counterterrorism (CT) measures on the humanitarian action and the way the fight against terrorism is conducted is needed to shield IHL's legitimacy and its legal protection from pervasive CT criminal frameworks.
These practices are a direct challenge to the rules of IHL applicable in situations of NIACs. IHL is meant to apply equally to all Parties to the conflict including non-State parties in today's most common situation of NIACs. IHL also recognizes the status of “Party to the conflict” to non-State armed groups under the condition that they are sufficiently organized and under responsible command capable to carry out sustained and concerted military operations.Footnote 11 All parties, including non-State armed groups, are thus bound to respect IHL during the conduct of hostilities and to respect the right to medical assistance and care for victims of armed conflict. It should not be forgotten that individuals affiliated with non-State armed groups are liable to prosecution for war crimes under IHL for any acts amounting to it while also being liable to national criminal prosecution for the mere participation in hostilities. Indeed, they do not benefit from the “combatant privilege” that is afforded solely to members of a State armed group according to the Third Geneva Convention. Therefore, non-State armed group members can be so prosecuted, regardless of the labelling of the offence they are accused of committing (terrorism or not). However, any violation of IHL committed by members of non-State armed groups does not deprive these non-State armed groups of their status of Party to the conflict and the ensuing IHL protections, nor do they release States Parties to the conflict from their obligations – in case of detention, hors de combat, etc. – under IHL in the conduct of their military operations.Footnote 12
Article 3 common to the four Geneva Conventions acknowledges the specificity of NIACs and takes into account the legal asymmetry between the State and the non-State party to such conflicts. It specifies, in sub-article 2, that application of IHL provisions shall not affect the legal status of the Parties to the armed conflict. The primary purpose of that last sentence at the end of common Article 3 was to emphasize that the application of IHL – rights and obligations – to non-State armed groups does not grant them a “legal status” that would shield them from prosecution under domestic law for taking up arms against the de jure government.Footnote 13 This concretely means that the legal status of the non-State party to the armed conflict remains defined by domestic law as a criminal one – which has been widened by new CT regulations and practices.
As this article will demonstrate, the layering of IHL and the CT criminal framework in most armed conflicts involving non-State actors has been made at the expense of the integrity of IHL essence and rules, including the most ancient ones regarding medical care to wounded combatants whichever nation they belong to.Footnote 14 Two main factors may be identified. The first is the special nature of CT criminal law that challenges the judicial protection system with regard to investigation, arrest, detention and prosecution. The second is the absence of explicit reference in domestic law to the medical and humanitarian immunity provided by IHL.Footnote 15 This omission exposes humanitarian and impartial medical assistance to the suspicion and threats stemming from the current wide definitionFootnote 16 (and application)Footnote 17 of complicity, association with, and support to terrorism offences.
IHL applies in situations of armed conflict regardless of the criminal classification done by States of the status of individuals or armed groups. Conversely, the qualification of non-State armed group fighters as “terrorists”, including when they are wounded and sick, contaminates the legitimacy of the series of IHL provisions that protects medical and humanitarian assistance in armed conflicts.
Beside the duty to collect and care for wounded and sick without discrimination as provided in common Article 3, the medical missionFootnote 18 – broadly speaking – itself is defined and protected as such under IHL since 1864 in international armed conflict (IAC) and since 1977 in NIAC. This protection covers the specific status of wounded and sick, medical personnel as well as medical facilities and transport.Footnote 19 It was drawn for military and later extended to civilians.Footnote 20 In 1977, the Additional Protocols to the Geneva Conventions have merged the protection for the military and civilian categories of the medical mission. However, domestic criminal law still frames and limits the way wounded and sick from non-State armed groups can receive medical care which leads to “mistake” attacks and incidental damage on the medical mission.Footnote 21
At the international level, the scale of the attacks committed against the medical mission in armed conflicts such as those of Afghanistan, Syria and Yemen led the Member States of the United Nations Security Council (UNSC), in 2016, to reaffirm the protection of this mission in the framework of its resolution 2286.Footnote 22 During this process, it became apparent that the violence perpetrated against the medical mission was systemic and that it significantly involved armed State actors that were carrying action in the course of their global fight against terrorism.Footnote 23
The United Nations General Assembly (UNGA) has developed for several years a strategy to fight terrorism that relies on the prerogatives of the UNSC under Chapter VII of the United Nations Charter, adopting international sanctions against specific countries but also against non-State armed groups and individuals listed as terrorists.Footnote 24 In addition to international treaties prohibiting terrorism, the UNSC passed international sanctions against designated groups and individuals and required all States to adopt criminal measures that demonstrate their good faith commitment to the fight against terrorism.Footnote 25 For a while, such resolutions only intended to remind States of their obligation, while fighting terrorism, to respect international law, including human rights law, refugee law and IHL.Footnote 26 However, recent UNSC and UNGA resolutions have scaled up their concerns of ensuring the respect of IHL while combatting terrorism.Footnote 27 These resolutions call on all States to take into account the impact of their CT legislations on exclusively humanitarian actions, including medical activities carried out by impartial humanitarian organizations in accordance with IHL.Footnote 28 These renewed concerns from the United Nations have been fuelled by the worrying trends of attacks on the medical mission in numerous situations of armed conflict.
It is important to recall that the criminal and terrorist characterization of non-State armed groups active on a territory depends on the policy of each country and the content of its criminal law. This qualification therefore goes far beyond the groups and individuals listed as terrorists by the UNSC resolutionsFootnote 29 and puts humanitarian and medical personnel under additional pressure and criminal threats. At the national level, few States have already taken legal action to rectify this by including specific humanitarian exemptions in their criminal CT regulations. These legislative evolutions reflect lucid and responsible acknowledgement by the concerned States of the current weakening of IHL protections which is due to the criminalization of medical and humanitarian activities under CT criminal law measures.Footnote 30
This article will examine how the CT criminal framework is virtually destroying the fragile balance between IHL and the already existing criminal status of non-State armed groups under domestic law, notably by obliterating the medical duties in situations of armed conflict toward the wounded and sick affiliated to non-State armed groups as provided by IHL. The success of Henry Dunant after the Solferino battle to ensure that wounded enemies receive impartial medical care in IAC, extended to NIACs in 1949 through common Article 3, needs to be put back on track. Indeed, this should be done so that wounded fighters receive this impartial medical care and also to allow the civilian population living in disputed areas or under the control of non-State armed groups, labelled as terrorist, to benefit from unimpeded humanitarian assistance.
From the historical consensus on medical care to the military wounded and sick on the battlefield
The international consensus surrounding the duty to care for the wounded and sick on the battlefield emerged from the direct witnessing of their fate in Solferino by Henry Dunant, a civilian from a neutral country who published his book “A Memory of Solferino”. In 1864, the very first of the Geneva Conventions established the IHL framework providing impartial medical care for the military wounded and sick and protecting them as well as those assisting them. Wartime impartial medical care is therefore the starting point and at the heart of the oldest protections laid out in contemporary IHL.
Although this right may be seen as self-evident, it is important to understand the difficulties that had to be overcome in 1864 before it could make its appearance in the law of IAC. These difficulties can shed light on underlying factors of the multiple violations observed today, particularly in the context of NIACs.
Claiming that providing medical care to wounded and sick from the armed forces was mandatory, military neutral and not a support given to the adverse Party to the armed conflict was a new assumption that required a solid legal framework. From the outset, legal and practical difficulties had to be overcome for the principle, that the wounded and sick must be collected and cared for without discrimination, to be enshrined in IHL.
The first legal difficulty was the legal “neutralization” of the enemy's wounded and sick – belonging to the armed forces – so that care would not be assimilated with a contribution to the war effort or with any form of participation in the hostilities. The wounded and sick benefit from the protections of IHL, as long as they do not participate to the hostilities.Footnote 31 This status offers a protection that has a dual component which includes the obligation of the Parties to the armed conflict to facilitate medical care, as well as the prohibition on attacking the wounded and sick and the medical facilities, transport and personnel that care for them.
The 1864 Geneva Convention based the protection of the wounded and sick on the fact that they were no longer taking an active part into the hostilities. Therefore, those combatants would be considered as legally protected in the armed conflict and could not be attacked. Indeed, as the wounded and sick combatants no longer pose a military threat, there was no military necessity to attack them. Moreover, from a humanitarian perspective,Footnote 32 as these persons are suffering, they needed to be treated. Furthermore, States Parties were to collect, treat and care for the wounded and sick combatants without any adverse distinction, i.e. of whichever nation they may belong to.Footnote 33 This obviously created an incentive for all parties to the armed conflict, as with it, they were given the same guarantee regarding their own wounded and sick. The protection of medical personnel, facilities and transport was also built on the medical neutrality agreement stipulating that ambulance and military hospitals shall be recognized as neutral and protected against any attacks.Footnote 34 The personnel performing medical, administrative and transportation duties of those hospitals as well as ambulances were to benefit from the same neutrality.Footnote 35 It also specified that acting in the name of humanity conferred neutrality to the people bringing assistance to the wounded and sick.Footnote 36 Interestingly, while the issue of capture and arrest of wounded and sick enemy is a contentious practice, the very first Geneva Convention, in 1864, did not mention the right to capture or arrest wounded and sick from the enemy but rather provided that they could be directly rendered at the front line.Footnote 37
Another practical issue to which health personnel were confronted was the pressures from State security agents and military forces with regard to provision of medical care to some wounded and sick in armed conflict contexts. Therefore, IHL provided a secured and protective legal framework of action to health and relief personnel based on international recognition of medical ethics. IHL enhanced the mandatory respect of medical ethics by medical personnel against other dual security obligations imposed by States Parties to an armed conflict. To fully protect the autonomy of medical personnel and their professional ethics, IHL upholds immunity under domestic law for medical personnel acting according to medical ethics. This was necessary to secure their protection which derived from the neutrality of the medical activities they performed, and which are also in line with medical ethics.
The First Geneva Convention of 1949, for the first time, enshrined a specific IHL obligation that no one, including health personnel, shall be “molested” or “punished”Footnote 38 for treating the wounded and sick, including enemies, as required by medical ethics.Footnote 39 Subsequently, IHL in the 1977 Additional Protocols also affirmed that medical ethics is the imperative framework for medical assistance and that it is binding on all parties in situations of armed conflict and that no discrimination can be made between wounded and sick (including enemies) except if done based on medical criteria.Footnote 40
The current IHL framework protecting the medical duties, personnel and facilities is a functional one aimed at ensuring that medical care is provided without discrimination. It is rooted in the 1864 conventional agreement that medical care to wounded and sick enemy is of a neutral nature and that it encompasses the status of hospital and ambulances as well as medical and administrative personnel. Recalling this initial agreement is useful to overcome difficulties of IHL implementation in NIACs that are evolving in contexts of CT. Under IHL, civilians are entitled to the general protection under their civilian status as long as they do not make a direct participation in hostilities (DPH),Footnote 41 while wounded and sick, medical personnel, facilities and transports as well as medical duties benefit from a distinct and special protection on the basis of ensuring the performance of vital medical functions in their civilian and military components to satisfy the need for medical care.
Who are the protected wounded and sick?
In an IAC there is an obvious distinction between the military and civilian wounded and sick. The first two Geneva Conventions of 1949 developed rules for care and protection of the wounded and sick of the armed forces.Footnote 42 The definition of armed forces was later extended by Additional Protocol I. However, it only covers individuals from a State Party to the armed conflict which encompasses their armed forces or other individuals, groups and units affiliated to it,Footnote 43 as long as they are under a command responsible for the conduct of its subordinates to a State Party. Although they benefit from the general protection offered by common Article 3, a confusion is created as wounded and sick fighters belonging to non-State armed groups are not explicitly included in the historical core of the protection of the wounded and sick – which used to designate solely combatants from a State armed force. The Fourth Geneva Convention of 1949 extended this protection to wounded and sick civilians, notably in situations of occupationFootnote 44 but made no explicit mention of members of non-State armed groups (or other civilians taking a DPH in the course of a NIAC) who become wounded and sick. They remain only covered by the general protection offered by common Article 3(2).
Additional Protocol I unified the definition of protected wounded and sick persons by specifying that it refers to all military or civilian persons in need of medical care and who refrain from any act of hostility.Footnote 45 It is thus clear that under IHL, impartial medical care should be provided to any wounded or sick person regardless of the label assigned to them as terrorist, or as a member of a non-State armed group – either a fighter or a civilian taking a direct part into hostilities.
The obligation to search, collect, evacuate and care for the wounded and sick without delay and without adverse distinction is a strong rule of customary IHL that clearly prohibits the abandonment of those people who are specifically at risk.Footnote 46 The rule applies to every wounded and sick person – civilian or military – as long as he is not directly participating in the hostilities when receiving the impartial medical care. This formulation allows the inclusion of wounded and sick from non-State armed groups in the protected status without entering into debate about their military or civilian nature. This is in line with the minimum regime established for NIACs by common Article 3. However, if the unified definition allows for the minimum protection of the wounded and sick, it has not abolished the different civilian and military special protection regimes applicable to medical duties, staff and facilities as we will see later.
Protection of medical duties under IHL contains two separate provisions: the right for the wounded to be collected and cared for on the one hand, and on the other hand, for the related protection against an attack. The prohibition of attacks protects persons hors de combat in particular because of their wounds and sickness.Footnote 47 Concerning the wounded and sick, while the obligation to collect and care for them is clearly stated, common Article 3 does not explicitly include specific requirements and protection for medical personnel, facilities or transports, or the military or civilian status of the personnel and the medical structures involved in such duty.Footnote 48
Additional Protocol II complemented the sobriety of common Article 3 with a set of provisions very similar to those found in Additional Protocol I for IACs.Footnote 49 The obligation to protect, collect and care covers all wounded, sick and shipwrecked persons whether or not they took part in the armed conflict.Footnote 50 This new formulation therefore imposes an absence of distinction, based on criteria other than medical ones, for the care of these personsFootnote 51 as demonstrated by several international instrumentsFootnote 52 and the practice of many States which included it in their military manuals applicable in NIACs.Footnote 53
Does it mean that belonging to either the armed forces of a State or to non-State armed groups is no longer relevant with regard to the access to and conditions of medical care? The answer is no for two main reasons, the first one being the variation in the degree of application of the precaution and proportionality duties; the second is related to the loss of protection of wounded and sick fighters.
The extension of protection to civilian wounded and sick and the unification of the terminology contained in the Additional Protocols to the Geneva Conventions have not abolished the specific rules applicable to military or civilian health personnelFootnote 54 as well as military or civilian medical facilities.Footnote 55 It has not abolished as well the original distinction between combatant or civilian wounded and sick and its impact on the protected status of military or civilian medical facilities and personnel.
From a humanitarian point of view, the major differences between the military and civilian protection regimes for the wounded and sick, for medical personnel, facilities and transports relates to the protection against attacks and the right of capture or arrest of any wounded and sick person. The protection against indiscriminate attacks includes, of course, the prohibition to attack intentionally any wounded and sick, medical personnel, facility and transport whether or not they are considered as military or civilian.Footnote 56 The military or civilian categorization of wounded and sick and of medical unit and personnel is irrelevant for direct attacks. However, such categorization matters with regard to the duty of precaution and proportionality regarding incidental damage suffered by wounded and sick, medical personnel facilities and transports in the conduct of hostilities.Footnote 57 In such situations, the assessment of proportionality and precaution is based only or mostly on the civilian nature of the incidental damage.Footnote 58 The military or civilian characterization of such wounded and sick from non-State armed groups as well as the medical personnel and units involved in their care may lead to the exclusion of their loss and casualties from the calculation of the civilian damage. This changes the level of incidental protection that may be expected in cases of a medical facility and its personnel providing medical care without discrimination to wounded and sick from non-State armed groups.
The drafters of Additional Protocol I felt necessary to specify that the presence of the armed forces of a State or other combatant in a civilian medical facility for medical reasons shall not be considered as an act harmful to the enemy (AHTTE) and therefore shall not deprive civilian medical facilities of their IHL protection from attacks.Footnote 59 This clarification, provided only for IAC, shed light on the risks remaining in NIAC concerning the various possible interpretations and legal impacts of the presence of wounded and sick from non-State armed groups in a medical facility either as potential non civilian “acceptable” incidental damage, or as “acceptable” targets under their potential continuous hostile activity or under other AHTTE. Navigating the various IHL criteria related to the loss of protected status for wounded and sick in NIAC requires scrutiny of the various domestic doctrines and practices.Footnote 60 AHTTE differs from acts of hostility and from DPH. Although acts of hostility do not have a clear definition under IHL, they are interpreted by analogy with the rather strict definition of “hostile act”.Footnote 61 However, some countries also refer to a hostile intent rather than a hostile act in their determination of DPH, thereby creating more uncertainty as to the effective status of protection of wounded and sick.Footnote 62 The scope of AHTTE is broader than the above-mentioned two concepts as it may encompass indirect effects, attempts, and not only acts deliberately committed to harm the military operation of the adverse party, not intended to support a specific party to the armed conflict (some acts could be committed by inattentiveness or by error). AHTTE are mainly appreciated based on the caused harm and possible contribution to military operations without having to be strictly connected to hostilities (which are defined as all the direct engagements in specific means and methods of injuring the enemy).Footnote 63 For example, an AHTTE could be the sheltering, inside a civilian medical facility, of fit and healthy non-State armed group fighters or the transportation, in an ambulance, of these same fighters so that they are not attacked due to the special protection afforded to the medical mission. These acts, carried inside protected medical objects, would thus confer a military advantage to one of the parties to the armed conflict as they would be performed by medical personnel outside of their humanitarian duties and outside of the function of medical objects.
Additional precaution is also required when involving the CT legal framework in the equation. Indeed, various militarized security operations taking place in CT contexts risk blurring concepts related to law enforcement and to the law of armed conflict.
Under IHL, the capture of an enemy, even wounded and sick, is a military operation that cannot amount to an attack on the wounded and sick or on the medical facility and personnel and it must comply with medical duties. It is not subject to formal judicial procedure.Footnote 64 Moreover, the arrest of a wounded and sick alleged criminal must respect official procedure and judicial guarantees.
Losing the wounded and sick protected status?
Under IHL the protected status of wounded and sick covers persons, whether military or civilian, who because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.Footnote 65 This definition, from the 1977 Additional Protocol I to the Geneva Conventions, complements the protected status of persons hors de combat.Footnote 66
The protected status of the wounded and sick and therefore the risk of losing it depends on two basic components: the person's medical condition as well as the person's conduct. However, IHL provides no clear definition of what an act of hostility isFootnote 67 or a hostile act.Footnote 68 Nor does it clarify the difference between those two terms. While good faith interpretation and implementation are expected, the case-by-case determination of wounded and sick status creates uncertainty. The loss of wounded and sick protected status may also weaken the special protection provided by IHL to medical personnel, units and transports.Footnote 69 Indeed, IHL provides that this special protection will cease if, outside its humanitarian function, the personnel commit, or the unit is used to commit AHTTE.Footnote 70 IHL officially excludes four specific situations from the scope of definition of AHTTE,Footnote 71 leaving space for broad case-by-case interpretation, challenging the wounded and sick and the medical duties protected status.Footnote 72
Without calling into question the customary character of the rules of IHL concerning the protection for the wounded and sick and medical duties in times of armed conflict, it is clear that the distinction between military and civilian wounded and sick remains a structural component of conventional IHL (reflected in numerous domestic military manuals).Footnote 73 It creates practical interpretation and implementation challenges in NIAC where members of non-State armed groups are considered criminals or terrorists under domestic law.
The protected status of the wounded and sick from non-State armed groups is even more problematic in a NIAC for countries that have not ratified Additional Protocol II.Footnote 74 In such contexts, common Article 3, as well as Customary IHL Rule 110, requires that the sick and wounded shall be collected and cared for without distinction, but it is silent on the actors and the means of such missions.Footnote 75 Some countries have used this silence to insist and put forward a difficult interpretation that the wounded and sick from a non-State armed group be treated only in State hospitals or State military medical units and not in other civilian or humanitarian medical facilities. This pattern was noticed in the wake of civil unrest and demonstrations during the Arab Spring, notably in Bahrein, Turkey and Syria. It has been maintained and reinforced when the situation of violence reached the threshold of a NIAC.Footnote 76 It is also significant that in the context of the global war against terrorism launched by the United States in 2001, even the application of common Article 3 to non-State armed groups involved in the territories where the United States was militarily engaged has been contested.Footnote 77
The elephant in the (medical emergency) room: the “criminal” wounded and sick from non-State armed groups
As previously presented, the coherence of the international protection of the wounded and sick is historically and legally based on their combatant versus civilian status stirring the neutrality challenge of medical duties. Historically, the legal protection for the wounded and sick combatants of State armed forces has been obtained on the battlefield, based on a clear international definition of such combatant, and of their neutralized military status when out of combat due to wounds and sickness.Footnote 78 There is no such clarity regarding the wounded and sick members of non-State armed groups. Under IHL they are excluded from the treaty definition of a combatant. They may only be considered as civilians taking a DPH.Footnote 79 Undeniably, the concept of DPH is highly debated among States and even between States and the International Committee of the Red Cross (ICRC).Footnote 80
The affirmation of the special protected status of wounded and sick from non-State armed groups is tainted by certain ambiguities that work against them when it comes to making case-by-case determination and articulating their medical status with the conditions required for hors de combat (implying that they are abstaining from hostile acts) in concrete and real-time field cases. The hors de combat notion was designed for the special protection of wounded and sick combatants, and it must be distinguished from the later ones applicable to civilians taking a DPH and their potential continuous combat functionFootnote 81 and from the concept of AHTTE, which is used for the special protection of the medical mission (personnel, facilities and transports).Footnote 82
The principle of distinction between civilian and combatant remains the fundamental basis of IHL that cannot survive any third categorization of “unlawful” fighter or “criminal” civilian.
The explicit reference to the hors de combat status appears in common Article 3 in the context of a NIAC. This reference grants a protected status to wounded and sick who are affiliated to non-State armed group(s) party to the armed conflict.
It is agreed that civilians lose their protection as civilians for the duration of their DPH.Footnote 83 This category may efficiently cover occasional civilian participation in hostilities, but it has been expanded by doctrine and jurisprudence of some StatesFootnote 84 to include a continuous combat functionFootnote 85 by members of non-State armed groups.Footnote 86
With regard to the continuous combat function, the interpretive guidance from the ICRC requires the element of a “lasting integration into an organized armed group” which is acting as the armed forces of a non-State party to an armed conflict and it also “involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities”.Footnote 87 The function assumed must be continuous rather than a spontaneous, sporadic or temporary role assumed for the duration of a particular operation.Footnote 88 However, under IHL and the ICRC interpretive guidance, the protected status of wounded and sick remains an individual one, triggered by the need of medical care at a given moment and the abstention of hostile act at this same time without consideration of previous continuous combat function.
The commentaries to Additional Protocols I and II demonstrate that States did not consider it necessary to define the concept of “hostile acts”.Footnote 89 This allows arguing on a case-by-case basis the potential loss of protection of a given person. However, discussions around so-called continuous combat functions can trigger the loss of the special protected status for wounded and sick affiliated to non-State armed groups. Some States’ doctrines have also started to challenge the hors de combat and non-hostile status of alleged terrorists or of “unlawful” criminal fighters when they are wounded and sick. Indeed, these States developed a broad interpretation of the continuous combat function in connection with the concept of AHTTE.Footnote 90 Rather than demonstrating the occurrence of effective hostile acts as required by IHL, they rely on hostile intentFootnote 91 or on a presumed permanent hostile function or nature of such wounded and sick. These States claim a case-by-case determination of the wounded and sick remaining capacities interfering with the autonomy of medical duties. Thus, the mere ability to think (“plan”) or to communicate (“command”) may preclude the protective status to be afforded to those wounded and sick. Such loss of special protection is not only detrimental for the wounded and sick, it also leads to military interference with the work of medical services and suspends the military duty to protect and respect the medical mission.Footnote 92 For “wounded and sick” fighters of a non-State armed group a “lasting disengagement from combat functions” cannot be the legal criterion imposed, as being a wounded and sick fighter does not mean that the individual needs to become a civilian in order to benefit from IHL protections. However, it can and often will be a temporary/transitory status which is triggered by de facto refraining from any act of hostility, for as long as the individual will be specifically protected as a wounded and sick person.
The good faith case-by-case determination of wounded and sick which provides them a protected status is a fundamental element of a correct interpretation of IHL where medical personnel should not be excluded. This is even more important because the standard regarding the nature of hostile acts and evidence required are not clear in practice, notably toward wounded and sick having a so-called continuous combat function or having remaining physical capacity to carry out hostile acts – even though they are not in fact performing hostile acts. When such determination is based on a State's military and security intelligence, which is classified information, it is almost impossible for humanitarian and medical personnel to foresee at the time of the incident and to challenge it afterwards. It creates a loss of objective predictability regarding the protected status for wounded and sick as well as to medical and humanitarian personnel and facilities involved in their medical care. This unsafe legal environment is conducive at least to mistakes, if not, to intentional abuse of IHL.Footnote 93
Furthermore, the good faith interpretation of the various IHL concepts allowing the granting or the loss of the protected status to wounded and sick may easily be defeated and somehow substituted by the straight and self-executing domestic criminal framework. Indeed, the national criminal status of non-State armed group fighters threatens a fair determination of their international special protection when wounded and sick as well as their potential loss of protection with regard to committing hostile acts while being wounded and sick.Footnote 94
Under IHL, an injury or illness halts the targetability of a person out of combat, providing that this person abstains from committing any hostile act. This last condition is a standard one regulating the loss of the special protection of medical duties provided by IHL. Therefore, there is no justification to take away the protection from a wounded member of a non-State armed group on the basis of his alleged terrorist or criminal activities committed in the course of an armed conflict. However, under domestic criminal law, members of non-State armed groups fall under multiple criminal offences such as crimes against national security and safety as well as terrorism acts. These crimes are, by definition, hostile acts against the State. Wounds and sickness do not alter or stop their criminal status. However, the hostile component of their criminal status may be confused with the criteria leading to the loss of IHL special protection.
As previously mentioned, wounded and sick enemy fighters are not immune from arrest for their criminal acts. However, while they are wounded and sick, their capture, arrest, transfer, and detention by judicial authorities or security forces should be done in conformity with the continuity of their care and in respect of the protected status of medical personnel, facilities and transport. In numerous instances, civilian medical and humanitarian personnel have experienced special military operations to capture, arrest or kill, inside medical facilities or transports, wounded or sick enemy fighters labelled as terrorist. The military tactic was presented by the authorities as a “militarized” law enforcement operation against a patient and not as an attack on the medical facility itself.Footnote 95
Such practices and argument illustrate the thin line existing in practice between the use of armed force under IHL or under law enforcement. This narrow division is made even more porous by CT special criminal law that departs from usual judicial guarantees and involves armed forces in militarized law enforcement operations.Footnote 96 State lawfulness arguments cannot silence the practical reality: the use of armed force inside medical facilities and against wounded and sick individuals labelled as terrorists is close to an abolition of the IHL protections. In such a context, the IHL special protection for medical duties associated with wounded and sick is put at odds and corrupted by the far-reaching impact of a patient's criminal status under criminal and CT legislation.
From protected medical duties to support of terrorism
The absence of an international definition of terrorism does not preclude each country from including these offences in the definition of crimes over which their courts have jurisdiction. It is therefore a matter of sovereignty for each country to determine which individuals and groups fall into this category.
Starting from 2001, terrorism has been qualified as a threat to international peace and security by many UNSC resolutions passed under chapter VII of the United Nations Charter. They requested all countries to contribute to the international fight against terrorism and to adopt domestic criminal law for the effective prosecution of terrorism activities.Footnote 97 These UNSC resolutions are also considered suitable for many countries as they represent an opportunity to provide a consensual security instrument that they might use against domestic political and armed opposition groups.Footnote 98 As CT is attached to national security, international law allows restrictions to some human rights. The imperative to deter such acts and facilitate their prosecution have created at national and international level a special CT criminal framework that derogates from the usual criminal system.Footnote 99
The first specificity of CT criminal law is the broad range and many definitions of the various terrorism offences in most national criminal codes.Footnote 100 Historically, the international focus has been put on limiting the financing of terrorism. However, in domestic criminal law, this is more widely defined to include all forms of direct or indirect material support and assistance. Aiding and abetting terrorists as well as associating with terrorists are usual CT offences that may include almost all kind of factual interaction, contact and communication. Other offences have been added more recently to complement the legal arsenal against terrorism such as entering a territory under terrorists’ control. The second specificity is that the proof of criminal intent is widely replaced by the plain knowledge of the criminal nature of certain individuals or groups involved.Footnote 101 Such wide criminal definitions lead to wide criminal accusations impacting the legitimacy of humanitarian actors and activities during long periods of time. This specificity brings medical and humanitarian activities from impartial humanitarian organizations de jure into the criminal arena. This issue has raised criticism that such legislative techniques may conflict with the right to a fair trial, in particular the respect for the presumption of innocence which is a non-derogable human right.Footnote 102 Due to these derogations from the usual due process, CT has been described as a new form of criminal law called the “criminal law of the enemy”.Footnote 103
The negative impact of CT on impartial humanitarian actors raises major legal and humanitarian concerns.Footnote 104 Indeed, medical and humanitarian personnel face certain recurring accusations in armed conflicts involving non-State armed groups. A non-exhaustive list of the most common accusations includes facilitating communication, facilitating the transport or escape of criminals, concealing criminal information, hiding, and providing support to criminals by various ways including by providing food, drugs, shelter and medical care. The payment of salaries to medical and humanitarian personnel in territories controlled by armed opposition groups adds to the list of potential material support or financing of terrorism.
This impact has recently been acknowledged by the UNSC resolution 2462 passed under chapter VII of the United Nations Charter which urges States, when designing and applying measures to counter the financing of terrorism, to “take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law”.Footnote 105 However, little has been done at State level to ensure compatibility of CT with IHL rules, notably by enacting proper humanitarian exemptions.Footnote 106 This was done under the pressure of the UNSC resolutions, which required all countries to actively contribute to the international fight against terrorism. Furthermore, these offences are defined in many countries without the requirement of a specific intent.
As already mentioned, in numerous criminal codes, what is required to incur criminal responsibility in relation to a terrorist offence is a proof of a material and moral element. As for the material element, it consists of all kinds of direct or indirect material assistance, contact or association. Regarding the moral element, what is required is either the intention to commit the crime or the mere knowledge of the terrorist nature of an individual or group, and of their actions. Humanitarian and medical actors engaged in situations of armed conflict according to IHL can hardly be accused of criminal intention but their knowledge of the terrorist context, and the medical and humanitarian assistance they provide to all wounded and sick and population living in areas under the control of non-State armed groups are sufficient to incur criminal responsibility for contact and direct or indirect assistance.Footnote 107 The vagueness and wideness of these criteria lay grounds for criminal accusations against humanitarian and medical personnel. An exhaustive review is not available, but cases have been documented in Iraq, Nigeria, Pakistan, Syria, Colombia, Turkey, the United States and also Australia and the United Kingdom.Footnote 108 The negative impact of CT legislation from Western donor countries on humanitarian assistance abroad has also been established.Footnote 109
In Syria, the CT laws issued in July 2012 refer to a wide definition of terrorism and allow any State officials to arrest and prosecute a person for any act considered as a disturbance to public security committed by any means.Footnote 110 According to the Independent International Commission of Enquiry on the Syrian Arab Republic, these laws have effectively made it a crime to provide medical care to anyone suspected of supporting the rebels.Footnote 111
The Iraqi law on combatting terrorism (13/2005) allows judges to bring charges against a wide range of suspects, including in practice against doctors who continued working in hospitals in Islamic State in Iraq and Syria (ISIS)-held territories.Footnote 112 In Nigeria, cases of doctors arrested for providing medical care to Boko Haram wounded and sick members have also been documented. Their arrest was possible due to the broad definitions of terrorism offences in Nigerian law. The ensuing release of these doctors was possible based on the fact that they did not know that the wounded they were treating were militants.Footnote 113 The trend was also made clear in Pakistan where doctors have been arrested as the result of providing medical care to suspected terrorists without informing authorities. However, as previously mentioned, in many domestic criminal laws or practices, it is accepted that the simple proof of knowledge of the criminal nature of a group or an individual can be inferred from the material circumstances. Therefore, situations where medical personnel provide impartial medical care to a gunshot- or other violence-related wounded person may arguably trigger criminal charges but also heavy risks of harassment, administrative sanctions, disappearances, illegal detention and extrajudicial killings.Footnote 114
The removal of subjective elements of criminal intent leaves little legal protection to humanitarian and medical personnel as they must have contact with such individuals and groups in order to provide humanitarian assistance to populations in disputed areas or areas under their control. With regard to medical assistance to any wounded and sick, humanitarian and medical personnel dealing with a gunshot-wounded patient are legally considered as presenting flagrant evidence of criminal activities incurring accusation of complicity and facilitation of terrorism activities if the patient is not immediately reported to the authorities.
Medical and humanitarian personnel from Médecins sans Frontières (MSF; Doctors without Borders) – exclusively engaged in medical and relief activities to populations in territories under the control of non-State armed groups – have faced official accusations and investigations in northern Nigeria, northern Syria but also in Cameron, Turkey and in the Democratic Republic of the Congo. Accusations range from communication and facilitation of communication with terrorists, material and financial support to terrorism, association with terrorists, complicity, facilitation of transport and sheltering of terrorist individuals when wounded and sick.Footnote 115
At field level there is a frequent overlapping between the characterization of domestic terrorism offences and that of the participation in a NIAC. Nevertheless, it remains that the simultaneous application of the two distinct lex specialis of IHL and criminal law leads to a deadlock for medical assistance and relief activities.
Medical activities and personnel as well as facilities and transports are caught in the domestic legal network of wide criminal offences such as association, complicity and support to terrorists and other criminals.Footnote 116 These criminal suspicions against them have an impact on the entire medical relief chain, even though it is protected by IHL.
A humanitarian and medical actor such as MSF is witnessing an increase in accusations by the authorities, as well as military and security investigations, into its activities. Even if these investigations rarely result in trials and convictions, they may last for many years without any official decision on the closure of the case being made. During that time, they weaken or halt relief efforts by creating a dangerous medium to long-term suspected status for impartial humanitarian personnel and activities stigmatizing individuals for, at times, many years.
From medical care to wounded and sick to accusations of material support to terrorists
Even if under IHL medical care to all wounded and sick without discrimination is a legal imperative, in practice, this obligation is challenged when the wounded and sick fall within the category of alleged criminals and terrorists, as this section will show.
The offence of material support to terrorism is so widely defined in its redaction that the provision of medical care as well as the provision of medical supplies become constitutive of such support to terrorism in most domestic legislation. A survey conducted on the question of criminalization of medical assistance suggested that authorities interpret support to terrorism to include the provision of health care in ten out of the sixteen countries surveyed.Footnote 117 This tendency was made explicit in a court ruling on the grounds of “provision or attempt to provide material support to terrorists in the form of medical support to wounded jihadists”.Footnote 118 Humanitarian organizations have since raised this concern in various fora to obtain humanitarian exemptions in international resolutions and domestic terrorism legislation.Footnote 119
It is interesting to note that the United States court ruling mentioned above found that medical care given on an individual basis should be criminalized as material support to wounded Al-Qaeda terrorists. The judge found that the same medical care would not be criminalized if provided by an impartial humanitarian organization such as MSF since it was clear that such an organization was not acting under the control or direction of a designated foreign terrorist organization with the knowledge that the organization was engaged in terrorism activities.Footnote 120 The thin line drawn by the judge does not solve and rather exacerbates the issue of medical care by agreeing that provision of medical care to the wounded is not a mandatory duty but can amount to criminal material support. Furthermore, consolidated case law is not available in most war-affected countries where humanitarian and medical personnel remain under constant threats of accusations pursuant to national criminal law as interpreted by security and military forces before a potential court ruling.
In these contexts, the mere fact that some people have gunshot wounds is considered as an objective proof of their criminal activities. Therefore, their medical treatment by medical and humanitarian personnel is often construed by authorities as a direct support to criminal militants or terrorists.Footnote 121 If it is agreed that wounded and sick enemies shall be treated, the question of where and by whom is not solved.Footnote 122
Under IHL, medical care to any wounded and sick, including member of non-State armed groups labelled as terrorist, is mandatory for all parties to the conflict and is part of the medical duties of impartial humanitarian and medical personnel.
Syrian authorities decided to impose that the wounded and sick from opposition groups should only be treated in governmental military hospitals. They thus criminalized any other form of medical care to wounded and sick from the armed opposition groups labelled as terrorist by the government.Footnote 123 They considered, along with other war-affected countries, that medical care and supplies in areas outside of government control were material support to terrorists.Footnote 124
Without going to such extremes, delineating the material support from the legitimate medical duties requires renewed IHL dialogue with all stakeholders of the State and non-State Parties to the armed conflict. Since criminal and CT specialists are not the same person as those who master the technicalities of IHL, there is a need to turn back to the very essence of the IHL message, which is: The wounded enemy is no longer a threat. The Doctor of my enemy is not my enemy.Footnote 125 This giant step of IHL remains a permanent challenge for those confronted with domestic criminal law while providing impartial humanitarian and medical assistance in situations of armed conflict.Footnote 126 The criminal status of fighters of non-State armed groups under domestic law has a spill-over effect that contaminates the protected status of medical activities carried out by impartial humanitarian and medical personnel for such wounded and sick.Footnote 127 Official accusations against humanitarian and medical impartial organizations for providing medical care to members of non-State armed groups labelled as criminal can force the closure of medical activities or initiate criminal proceedings. Accusations brought by governmental authorities may explicitly refer to the provision of medical care to fighters.Footnote 128 This creates a mindset where tacit deprivation of access to impartial medical care to the wounded belonging to non-State armed groups would appear as acceptable. This is in itself a slippery slope that may end up with recent trends of attacks on medical facilities providing medical care to non-State wounded enemies that have occurred in Syria, Yemen and Afghanistan over the last years.Footnote 129
From protected medical facilities to shelter of criminals: A legitimate military target
The fact that some of the wounded and sick are considered potential criminals puts pressure on the protective status of the medical facilities that treat them in accordance with IHL. Providing medical care to gunshot-wounded patients always goes with several legal and practical discussions at field level (see above). What is new is that terrorist crimes are defined so broadly in the criminal law of most countries that usual humanitarian and medical activities are falling within these definitions, which can lead to accusations such as concealing or providing assistance, transport, shelter or haven to terrorists. Based on these definitions, it is not necessary to prove a specific criminal intention; the simple knowledge of the criminal activities of those wounded and sick suffices to trigger complicity. In some criminal procedures this knowledge can also be derived from the facts.
In most national jurisdictions, these criminal qualifications are not mitigated by any medical exemption and immunity such as the ones drawn by IHL.Footnote 130
In such circumstances, medical activities by impartial humanitarian and medical organizations such as MSF can easily fall under such widely defined crime such as the one of complicity. The mere fact of giving medical care to patient victims and/or authors of violence becomes a factual knowledge of their criminal activities. The nature of the wounds of some patients is often considered as sufficient evidence of their criminal status which triggers criminal responsibility to those providing them with medical care according to medical ethics. This criminal responsibility is framed under different possible offences such as: assistance, complicity, and concealment of crime. In addition, the mandatory reporting of crimes, put in place under the CT regime, goes far beyond the protective provisions of IHL and medical ethics (see above).
Collecting such wounded persons and transporting them to medical facilities is mandatory under IHL and must be facilitated by all parties to the armed conflict. However, under the strict lens of CT offences, medical transports and medical transfers can as well carry criminal implications such as transportation of terrorists, facilitation of movement, concealment or complicity to escape.Footnote 131 Such interpretation is obviously contrary to the essence and interpretation of IHL rules regarding protection of medical care and ethics. It reveals the difficulty of reconciling general principles agreement and concrete case implementation. The contentious interpretation of the real scope of legitimate medical care has been raised in Columbia around the prosecution of physicians because of the medical services they provided to militants. In the Quintero case,Footnote 132 the Court considered that medical activities performed by the accused strengthened the guerrilla group since healed members of the group would subsequently return to fight. It also considered that referral services to specialized care fell outside of the scope of medical activities protected by IHL. This is a debatable legal decision in most contexts of armed conflict where medical personnel, bound by the non-discrimination imperative, transfer wounded and sick to the medical place that is best equipped to deal with their medical condition. This customary practice – based on medical needs – is routinely carried out cross-line or cross-border. The potential criminal status requires legal predictability and compliance with the medical non-discrimination imperative.
The management of the wounded and sick under judicial investigation, arrest or detention follows well-established procedures under IHL and domestic criminal law. However, CT frameworks work under exceptional criminal rules and procedures. Operations are carried out without warrant in flagrant mode by special security agents or military forces. While not strictly falling under the legal definition of attacks on a medical facility, they are carried out in a very similar form of military commando raiding a medical facility to arrest or kill a presumed terrorist patient present inside medical facilities. Several documented incidentsFootnote 133 have shown that medical personnel have no room to argue about IHL rules and the medical condition of the person targeted by such operations which often result in deaths instead of the plain arrest of a patient, due to the use of violence inside the medical facility.
After the 2015 attack on MSF's hospital in Kunduz, Afghanistan, discussions between the military authorities of the United States and MSF highlighted concrete legal ambiguities. Indeed, the military authorities disputed the protected status of the MSF trauma centre as well as its civilian nature, due to the presence of large numbers of wounded and sick Taliban fighters in it.Footnote 134
The United States military authorities challenged the fact that those wounded and sick members of armed opposition groups could be all considered as hors de combat. They claimed that the medical state of those wounded fighters would still permit some of them to run some kind of command or combat functions. It also appears that these legal arguments would have made incidental harm on the hospital and medical personnel acceptable as they are supposed to accept the risk due to their presence among or in proximity to combatants or combat operation. Under the same United States Law of War Manual, such proximity gives no cause for complaint in cases of incidental harm. Therefore, the death of medical personnel would not be counted in a proportionality analysis nor would the death among the wounded and sick as, according to their interpretation, the precaution and proportionality principles apply to civilian losses only while those wounded enemy fighters are not “innocent” civilians.Footnote 135
These types of incidents are a clear indicator of the dangerous blending between the law applicable to the use of armed forces in armed conflict situations (IHL) and the use of armed force in a CT criminal context for militarized law enforcement operations – human rights.Footnote 136 In this last case, law enforcement “attacks” are becoming a practical substitute for the judicial sanction. The protections afforded by IHL to the wounded and sick are undermined because they remain considered as criminal enemies. At the same time, due process and judicial guarantees, such as fair trial rights, are also being pushed aside under the prism of the global war against terror and new derogative criminal law.Footnote 137
From protected neutral medical personnel to criminal accomplices
Medical personnel engaged pursuant to IHL in the care of all wounded and sick persons without discrimination are also de facto involved in the care of those who may be considered criminals or terrorists by the concerned State. This de facto assistance may have de jure adverse consequences. Criminal association in relation to terrorist undertaking is the legal gateway to most terrorism charges against individualsFootnote 138 including medical and humanitarian personnel. It also comes easily through the channel of material support and complicity that broaden the possibility of criminal charges against medical personnel having attended wounded and sick suspected of any terrorist offences. These specific criminal offences of complicity or association also encompass humanitarian dialogue with alleged criminal groups or individuals in view of providing medical and humanitarian assistance to populations in areas under their control. Here again, the knowledge of the terrorist context can replace the requirement of a criminal intent in supporting accusations of material assistance to terrorism against medical and humanitarian actors to incur criminal responsibility.Footnote 139 In most countries where humanitarian and medical assistance and relief have not been explicitly excluded from the material support to terrorists, the humanitarian and medical personnel present in areas of armed conflict remain vulnerable to such charges due to their activities performed pursuant to IHL in relation to members of non-State armed groups, considered to be terrorist – and criminal. It must be noted that some countries affected by armed conflict have recently amended their domestic law to remedy the negative impact on impartial medical care.Footnote 140 In 2019, Afghanistan included an explicit medical exemption in its domestic criminal law to regain coherence with the protected status of medical care under IHL.Footnote 141 Trying to mitigate the same concern, Colombia adopted in 2013 an explicit immunity for medical personnel that mirrors the ones provided by IHL. However, this immunity was not embodied in Columbia criminal law (that would give it its full force) but in a Medical Service Manual adopted by the Ministry of Health and Social Protection.Footnote 142
From medical confidentiality and ethics to criminal concealment
Accusations against medical and humanitarian personnel face yet another specific difficulty concerning the respect of medical confidentiality under IHL and the obligation to denounce crimes which are imposed and reinforced by criminal law and CT measures. The framework of the medical mission in situations of armed conflict as defined by IHL and, in particular, the two Additional Protocols to the Geneva Conventions upholds the importance of respecting medical ethics.Footnote 143 This is particularly crucial in situations where medical personnel are confronted with patients who are victims of intentional violence in situations of armed conflict and other situations of violence where the respect for the rule of law is no longer guaranteed.
IHL clearly states that in all type of armed conflict no distinction can be made among the wounded and the sick on any grounds except medical ones.Footnote 144 However, one should notice the sensitive character of medical treatment for the wounded and sick in NIAC by the fact that intentional deprivation of medical care is explicitly enunciated as being a grave breach of IHL in the context of an IACFootnote 145 while in a NIAC, the same conduct is not as explicit but may amount to inhumane treatment as a serious violation of common Article 3.
The duty to report some type of disease and injuries to national authorities is a common pattern in domestic law applicable in times of peace. It is based on legitimate concerns of public health or public security, and it is always combined with other provisions allowing medical personnel to refer to medical ethics in making their own decision. In situations of armed conflict, this reporting procedure may be instrumentalized in the course of the conduct of hostilities to restrict access to wounded and sick enemies to medical facilities. It may also create additional pressure or threats on medical personnel that will de facto deprive access to impartial medical care for some wounded and sick including victims of sexual and other organized forms of violence. A recent survey has concluded that mandatory reporting is potentially incompatible with international law and medical ethics as it can obstruct access to health care for victims of armed conflict and other emergencies and may expose victims and health-care personnel to further harm.Footnote 146
As a body of law that anticipates the complex context of armed conflict, IHL has provided a set of important provisions to allow for medical ethics to prevail over formal compliance with mandatory reporting systems provided by domestic law.
The Additional Protocols to the Geneva Conventions have adopted two specific provisions protecting the legitimate and ethical concerns of confidential medical information.Footnote 147
The first provision applies to the protection of medical ethics against mandatory reporting. Its drafting differs slightly in IAC and NIAC but carries the same logic.
In situations of IACs, IHL sets, as an absolute principle, the confidentiality of medical information vis-a-vis the opposing Party to the conflict. It also sets a medical ethic criterion to support the medical personnel's autonomy of decision. “No person carrying out medical activities can be compelled to give out any information concerning the wounded and sick who are, or have been, under his or her care, as long as the medical person considers that such information might prove harmful to the patients concerned or to their families.” This applies whether the person requesting the information belongs to the adverse Party to the conflict or to the medical person's own Party, except in cases foreseen by the person's domestic laws. However, even in this limited scenario, only one exception is carved by IHL for such compulsory reporting: regulations concerning the compulsory notification of communicable diseases must be respected.Footnote 148
In situations of NIACs, the non-State Party to the armed conflict is not entitled to the same rights as the State. IHL recalls that restriction to confidential medical information can only be carved out by the law in opposition to any other type of executive order or security practices. Additional Protocol IIFootnote 149 specifies that: “[t]he professional obligations of persons engaged in medical activities regarding information which they may acquire concerning the wounded and sick under their care shall, subject to national law, be respected”.Footnote 150
The second IHL specific provision aims at shielding medical personnel from the sanction of failure to comply with a domestic mandatory reporting system, notably in NIAC.
In such a context, IHL affirms that: “[s]ubject to national law, no person engaged in medical activities may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care”.Footnote 151 These detailed provisions and their cross-reference to domestic law create an enormous pressure when it comes to their effective and ethical articulation with domestic law provisions regarding mandatory reporting. However, this reference to national law is not a full licence left for compliance when domestic mandatory reporting may contradict the principles of medical ethics and prove harmful to the patients concerned or to their families.
A last provision applicable in both IAC and NIAC provides clear criminal immunity for persons engaged in impartial and ethical medical activities. Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefitting therefrom.Footnote 152 The wording of this immunity is carefully chosen to cover all persons who have carried out a medical activity in accordance with professional ethics, regardless of the circumstances or the beneficiaries.Footnote 153 This immunity therefore applies to all persons engaged in these medical assistance and care activities and not only to the military or civilian assigned medical personnelFootnote 154 to this mission by the Parties to the armed conflict nor only to those exclusively engaged in these medical activities.Footnote 155 This is confirmed by customary IHL Rule 26 which states that: “[p]unishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited”. Medical ethics must therefore be remembered as the only mandatory legal framework under which sanction towards the medical personnel could be taken.
However, despite its importance, this immunity clause does not appear in a systematic and consistent way in military manuals or domestic criminal law. Considering the differences in legal systems between monist and dualist countries, the implementation of international treaties may not always require a direct incorporation into domestic legislation. However criminal matters and immunity benefit from solid domestic anchoring. This is even more worrying that in addition to legal concerns raised by mandatory reporting and potential sanction related to the breach of such obligations, CT has created a new layer of obligations and criminal offences challenging medical confidentiality. Where breach of mandatory reporting can lead to limited sanctions, concealment of terrorist information is a fully fledged crimeFootnote 156 that may be applied to medical and humanitarian personnel in the absence of any explicit exemption and in the context of existing public accusation in some sensitive areas.
Conclusion
The review of the legal context of medical care in mixed situations of CT and armed conflict involving non-State armed groups shows that we are back to pre-Solferino times. CT criminal legal framework is de facto denying wounded and sick from non-State armed groups an impartial access to medical care. Like in Solferino, impartial medical and humanitarian personnel and facilities are experiencing this reality on the front line.
Deprivation of impartial medical care to non-State armed group fighters is a tacit component of a State deterring power over armed opposition groups labelled as criminal or terrorist. In situations of armed conflict, it is weaponizing medical care in a way that destroys the neutrality and respect of medical duties built by IHL over the long history of conflict.
It is agreed that human rights (including the right to security) and IHL apply simultaneously in situations of armed conflict. However, this simultaneous application has always acknowledged the primacy of IHL as lex specialis in situations of conflict.Footnote 157 This primacy has been put in danger by CT criminal law emerging as another competing lex specialis in those situations.
In this context, the undefined status of members of non-State armed groups under IHL is wiped off by their criminal and terrorist status under national law. The criminal status that authorities assigned them has a contagious effect and turns into accomplices all those who enter in contact with members of non-State armed groups considered as terrorists including through the provision of medical assistance and relief. This article could not touch on other problematics linked to the contagious impact of the CT framework on IHL. Among them, the global right to humanitarian assistance and protection provided by IHL to population victims of armed conflict, living in areas disputed or controlled by non-State armed groups labelled as criminal or terrorist, should never be forgotten.
The relative downgrading of IHL in favour of general criminal law also stems from the fact that CT criminal law is autonomously incorporated into the national law of the different countries and without any reference to the special rights to humanitarian and medical assistance granted by IHL in situations of armed conflict. CT constitutes the strongest body of positive law directly applicable by all States’ bodies in a mix of law enforcement and security–military defence order. In situations of armed conflict, CT terminology is undermining the fundamental right of assistance and protection provided by IHL categories of protection and assistance. Where the IHL framework protects “victims” of armed conflict,Footnote 158 the newly introduced reference to “innocent civilians”Footnote 159 is a soft language that is in fact hiding the tacit agreement to exclude the “suspected” individuals and populations from their right of survival in the contemporary situation of armed conflict tainted by the fight against terrorism.
What matters today is to get States’ answer as to whether or not this legal and practical reality is an intended or unintended result of their CT agenda. As the context of CT and armed conflict continues to spread around the world, the historical challenges and dilemmas of IHL must be spoken loudly to the deaf ears of our generation regarding the global struggle against terrorism. The body and essence of IHL can still guide us through the pitfalls of the dehumanization of the enemy in armed violence.
The protection of the medical mission against current trends of attacks and abuses depends on the concrete steps taken by States in restoring the safe and fair coexistence of IHL and CT legislation. In the absence of such clarification, the temptation to weaken the non-State enemy by deprivation of medical care will become an acceptable trend. This requires restoring the primacy of IHL over CT domestic legislation to effectively protect the humanitarian and medical mission for the victims of contemporary armed conflicts.
The multiple ramifications and legal complexities embedded in national and international law leaves only one viable option open to reconcile CT legal framework with IHL duties.
Carving in the definition of CT offences an exemptionFootnote 160 for medical and humanitarian activities carried out by impartial humanitarian organizations in accordance with IHL is the safest and easiest way to exclude activities authorized by IHL from the scope of criminal law. It is also a reliable option to go beyond usual lip service and demonstrates States’ good faith in their commitment to respect IHL. Unfortunately, in the vast majority of countries, the medical mission as described in IHL remains threatened by CT laws and practices. Official discourse downplays this situation as a non-intentional consequence of the most needed fight against terrorism that must show no weakness. However, acknowledging incidental damage of CT on IHL cannot end with its acceptance.
Aside from international debate on humanitarian exemption, a handful of States have already included such provisions in their CT laws to ensure the non-criminalization and respect for humanitarian and medical activities in accordance with IHL.Footnote 161 Their decision draws viable solutions to face the legal conundrum of safeguarding the integrity of both IHL and CT. They also show that it is not legitimate to maintain national legal insecurity around activities authorized by IHL. Among them, Chad CT law adopted in 2020Footnote 162 dares to give legal strength to nice words. It made clear that activities that are exclusively humanitarian and impartial carried out by humanitarian and neutral organizations are excluded from CT offences. This demonstrates that it is not only necessary but also possible to preserve the principle of humanity in all situations even when confronted with a global phenomenon as tragic as the one of terrorism.
