Specific protection for medical personnel, units and transport under IHL, but not under IHRL

From the very first IHL convention, the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, IHL has enshrined specific protections not only for the wounded and sick, but also for medical personnel, units and transports. The protection of medical personnel, units and transports is derived from the fact that they are used for ensuring medical care and attention to the wounded and sick in armed conflicts.Footnote ²⁷ This is in line with the general rationale of IHL to provide protection to categories of persons on the basis of their specific status or function.Footnote ²⁸

In contrast, IHRL protects all individuals under a state's jurisdiction on a non-discriminatory basis.Footnote ²⁹ Therefore, health-care personnel would generally enjoy IHRL protection as would everybody else under a state's jurisdiction, including from arbitrary deprivations of their right to life, from torture, cruel, inhuman, or degrading treatment or punishment, from arbitrary arrest and detention, or from arbitrary interferences with their freedom of movement.Footnote ³⁰ However, they are not specifically protected on account of their function of providing health care, as opposed to their protection under IHL. Similarly, health-care facilities and medical transports as objects are not specifically protected under IHRL on account of their medical function.Footnote ³¹ Therefore, in armed conflicts, IHL constitutes the lex specialis to IHRL especially with regard to those specific protections of medical personnel, units and transports.

Complementarity between IHL on the protection of the wounded and sick, and medical activities, and IHRL on the right to health in armed conflicts

It results from the above that IHL generally is more specific and better equipped than IHRL to prevent individual violent incidents against, and direct interferences with the delivery of, impartial health-care in armed conflicts because it enshrines specific protections for medical personnel, units and transports. As will be seen in more detail later in the article, these direct incidents against and interferences with access of the wounded and sick to health-care services are addressed in particular by the fundamental obligations under IHL to respect and protect the wounded and sick and medical personnel, units and transports.

Meeting the immediate needs of the wounded and sick requires parties to the conflict to provide them with the medical care and attention required by their condition on a non-discriminatory basis.Footnote ³² This, however, is an obligation of means which entails that where a party to the conflict is not itself able to provide such medical care and attention due to its own limited capacities, discharging this obligation includes permitting the ICRC or other impartial humanitarian organisations to provide medical care and attention.Footnote ³³ A more general legal basis for meeting the immediate medical needs of wounded and sick civilians during armed conflicts is the obligations of parties to the conflict relating to humanitarian assistance (which may involve – apart from medical supplies – food, clothing, bedding, shelter, or other supplies essential for the survival of the civilian population) if a party to the conflict's own resources are inadequate.Footnote ³⁴

On the other hand, the question arises as to where IHRL has an added value to IHL with regard to the provision of health-care services during armed conflicts. It is argued here that IHRL may complement IHL rules in relation to the more indirect effects of insecurity and violence, such as the massive flight of doctors, the large-scale closure of health facilities, or the interruption or termination of preventive health-care programmes as a result of individual violent incidents or generalised insecurity.

IHRL, drawing from the foundations laid in the Universal Declaration of Human Rights (UDHR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) – the main instrument in this areaFootnote ³⁵ – enshrines the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. This right, like other economic, social and cultural rights, must be seen in a long-term perspective which is evident from the general obligation under Article 2(1) that each state party ‘undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant’. Specifically, Article 12(2) of the ICESCR spells out, in a non-exhaustive manner, some of the long-term objectives to be progressively achieved under the right to health, including ‘(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child’; ‘(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases’; and ‘(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.’

In this regard, the Committee on Economic, Social and Cultural Rights (CESCR), the treaty monitoring body of the ICESCR, interpreted in great detail the nature of the general obligation under Article 2(1) of the ICESCR in its General Comment No. 3,Footnote ³⁶ and the various components of the right to health as well as the specific obligations arising from Article 12 of the ICESCR in its General Comment No. 14.Footnote ³⁷

One of the fundamental contributions of the CESCR has been to recognise that even if the ICESCR provides for progressive realisation of economic, social and cultural rights and takes resource constraints of states into account, there are certain obligations which are of immediate application, including the guarantee that the right to health will be exercised without discrimination and the obligation to take deliberate, concrete and targeted steps towards fulfilment of the right to health.Footnote ³⁸

The CESCR also emphasised that despite the fact that obligations other than immediate ones are to be implemented progressively, taking into account available resources, there are so-called ‘core obligations’ to ensure the satisfaction of minimum essential levels of each right, including essential primary health care.Footnote ³⁹ With regard to the core obligations relating to the rights to health and water, the CESCR stated that a state party cannot under any circumstances justify non-compliance with these obligations.Footnote ⁴⁰ For the right to health, these core obligations include the obligations to ensure the right of access to essential health facilities, goods and services on a non-discriminatory basis; to provide essential drugs; to ensure equitable distribution of all health facilities, goods and services; and to adopt and implement a national public health strategy and plan of action.Footnote ⁴¹

In addition, the CESCR indicated that other obligations are of a comparable priority, notably the obligations to ensure reproductive, maternal and child health; to provide immunisation against major infectious diseases; to take measures to prevent, treat and control epidemic and endemic diseases; to provide education and access to information concerning the main health problems in the community; and to provide appropriate training for health personnel.Footnote ⁴²

The CESCR also fleshed out certain components in relation to the right to health, the precise application of which would depend notably on the prevailing capacities of a state: the availability of functioning public health and health-care facilities, goods and services; the accessibility of such health-care facilities, goods and services on a non-discriminatory basis, within safe physical reach of all sections of the population and affordable for all; the acceptability of health facilities, goods and services in terms of being respectful of medical ethics and cultural appropriateness; and a sufficient quality of health facilities, goods and services that are scientifically and medically appropriate.Footnote ⁴³

Finally, the CESCR specified that the obligations under the right to health may be divided into obligations to respect, to protect and to fulfil. The obligation to respect the right to health requires states to refrain from interfering directly or indirectly with the enjoyment of the right to health, including to refrain from denying or limiting equal access for all persons to health-care services; the obligation to protect requires states to take measures that prevent third persons from interfering with the enjoyment of the right to health by, inter alia, adopting measures to ensure equal access to health care provided by third persons; and the obligation to fulfil requires states, inter alia, to give sufficient recognition to the right to health in their national legal and political systems and to take positive measures that enable and assist individuals and communities to enjoy this right.Footnote ⁴⁴

It would appear that during active hostilities in an armed conflict, due to the severe resource constraints that such a situation poses to the health system as a whole, it would not seem realistic to expect that any actions by the state would go much beyond the immediate concerns that IHL would already require it to address. Thus, there would be a substantial overlap between IHL obligations to respect and protect the wounded and sick and medical personnel, units and transports, and to provide medical care and assistance to the wounded and sick, and the core state obligations under IHRL to respect, protect and fulfil the right of access to health facilities, goods and services. In terms of the obligation to fulfil the right to health, the CESCR has specifically emphasised the importance of cooperation in providing humanitarian assistance in times of emergency and that each state should contribute to this task to the maximum of its capacities.Footnote ⁴⁵

During active hostilities, a state party to the conflict may not have the ability to deal with the more indirect and long-term effects of insecurity and violence affecting health care, like the massive flight of qualified health-care personnel or the lack of available vital health-care services, such as vaccination campaigns, that have been suspended or terminated.

On the other hand, the right to health as interpreted by the CESCR may be of particular significance in armed conflicts where the state's capacity to adopt measures to deal with such indirect consequences of insecurity and violence is not impaired by active hostilities; this may be the case, for instance, in prolonged calm occupations where control of the occupying power over the occupied territory has stabilised. In such scenarios, IHRL has value in complementing IHL when it comes to such indirect effects.Footnote ⁴⁶

It must be emphasised that beyond obligations applicable in all types of armed conflicts, the law of occupation does contain specific obligations to preserve the existing public health-care system in occupied territories. Thus, the occupying power must ensure, to the fullest extent of the means available to it, the medical supplies of the population of an occupied territory, as well as ensure and maintain, with the cooperation of national and local authorities, the medical and hospital establishments and services, and public health and hygiene in the occupied territory.Footnote ⁴⁷ In particular, the occupying power is responsible for taking the necessary measures to combat contagious diseases and epidemics.Footnote ⁴⁸ Despite these obligations under the law of occupation, this IHL regime remains vague when it comes to defining a long-term normative framework to address shortcomings in the availability of health-care personnel and services.Footnote ⁴⁹ This becomes an issue precisely in prolonged occupations in which the occupying power exercises stable control over the occupied territory and which are characterised by the absence or low level of intensity of hostilities, where a more forward-looking approach to the availability of health-care services may be desirable.

Aside from situations of occupation, in other instances of armed conflicts IHL does not contain any specific obligations to address the availability and quality of public health-care services. It is true that the availability of some services is implicit in the IHL obligations in relation to the wounded and sick, but IHL does not provide any further guidance on the quantity and quality of health-care services. In situations where the state's capacity to adopt more far-reaching measures related to the availability and quality of the public health-care system is not impaired by active hostilities, the immediate IHRL obligations to ensure respect for non-discriminatory access to health care and to take deliberate, concrete and targeted steps towards full realisation of the right to health, including the availability and quality of health-care services, take on additional importance; this is because these requirements would generally not allow a state to wait until the situation could no longer be regarded as an armed conflict to adopt such steps.Footnote ⁵⁰

More concretely, in such situations, one practical measure to address major shortcomings in the availability of qualified health-care personnel who have fled due to violent incidents or general insecurity would be to comply with the core obligation under the right to health to adopt and implement a national public health strategy and plan of action. Such a strategy must be drawn up with the participation of, and on the basis of the particular health concerns of, the local population, bearing in mind the specific needs of vulnerable people.Footnote ⁵¹ For instance, a health strategy and plan of action could specifically tackle the massive exodus of health-care personnel by foreseeing incentives to return, or by specifically training members of the local community (or providing support for such training) to ensure certain vital health-care services.Footnote ⁵²

A health strategy and plan of action could also prioritise the fight against endemic diseases and potential epidemics, such as by scaling up efforts to ensure the resumption of interrupted or terminated vaccination campaigns. This should include strategies to address the underlying security issues preventing such campaigns; for instance, it may involve comprehensive communication strategies developed in collaboration with religious and other community leaders to educate the population on the necessity of such campaigns, in order to counteract anti-vaccination propaganda by those who target health-care personnel providing such services.Footnote ⁵³ Moreover, it should address the perception by weapon-bearers that vaccination campaigns are used for purposes other than those of health care; in this regard, it bears emphasis that states parties to the ICESCR have to ensure that all health facilities, goods and services are respectful of medical ethics, subject to the conditions prevailing in the respective state, and that medical practitioners and other health professionals meet appropriate ethical codes of conduct.Footnote ⁵⁴ Appropriate training on medical ethics – and more generally on health and human rights, which is comparable in priority to the core obligations under the right to healthFootnote ⁵⁵ – would be an essential strategy to tackle this issue.

The underlying security issue is also generally addressed by the IHL obligation, as applicable to the state, to ensure respect for its norms in all circumstances by its agents – that is, by its armed forces, including military medical personnel, and other persons or groups acting in fact on its instructions, or under its direction and control, as well as the civilian population, including civilian health-care personnel.Footnote ⁵⁶ Discharging this obligation more specifically requires instruction in IHL for states' armed forces, including military medical personnel, and efforts to disseminate IHL to the civilian population, including civilian health-care personnel over which a state exercises authority.Footnote ⁵⁷ In this context, this means once again ensuring that health-care personnel themselves comply with IHL and medical ethics, as well as affirming the necessity of respecting those medical personnel carrying out vaccination campaigns when training state armed forces and the civilian population on the obligations to respect and protect medical personnel, units and transports and the rights and responsibilities of medical personnel under IHL.

All possible measures shall be taken to provide and facilitate essential health care on a non-discriminatory basis to the wounded and sick

Under IHL, all parties to armed conflicts, including non-state parties, have the basic obligation to provide the wounded and sick with medical care and attention as far as practicable and with the least possible delay. Medical care and attention must be provided in an impartial manner – that is, without any adverse distinction based on grounds other than medical ones.Footnote ⁹⁷ The qualification of ‘as far as practicable and with the least possible delay’ means that this obligation is not absolute, but rather requires parties to take all possible measures subject to their resources and to the feasibility of such measures in the midst of hostilities.Footnote ⁹⁸ However, nobody may wilfully be left without medical assistance.Footnote ⁹⁹

As has been mentioned, beyond those obligations applicable in all types of armed conflicts, the law of occupation contains broader obligations to preserve the existing public health-care system in occupied territories, while IHL other than the law of occupation does not enshrine such far-reaching obligations. For addressing the most pressing needs – for instance, the shortage of essential supplies and services for the civilian population – parties to the conflict concerned must discharge their obligations relating to humanitarian assistance. Thus, in all situations of armed conflict, if the civilian population is inadequately supplied with items essential to its survival, humanitarian relief actions must be undertaken, subject to the consent of the parties concerned, in particular the territorial state.Footnote ¹⁰⁰ However, such consent must not be withheld arbitrarily.Footnote ¹⁰¹

IHL is also very specific in operationalising the facilitation of the provision of medical care, bearing in mind that the wounded and sick will be left on the battlefield after the fighting. In this regard, IHL prescribes that, whenever circumstances permit and particularly after an engagement, parties to armed conflicts must, without delay, take all possible measures to search for, collect and evacuate the wounded and sick without adverse distinction.Footnote ¹⁰²

In terms of IHRL, the immediate obligations and the core obligations emanating from the right to health provide the most obvious basis to argue for a fundamental obligation to take all possible measures to provide and facilitate essential health care to the wounded and sick in a non-discriminatory manner.

Furthermore, the obligation to ensure the provision of essential health care can also be based on the right to life under IHRL. In this regard, the Human Rights Committee, the treaty monitoring body of the ICCPR, in its General Comment No. 6 on the right to life, emphasised that ‘the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot be properly understood in a restrictive manner, and the protection of this right requires that states adopt positive measures.’Footnote ¹⁰³ In connection to this, the Human Rights Committee noted, inter alia, the desirability for states parties to take all possible measures to increase life expectancy, including by adopting measures to eliminate epidemics.Footnote ¹⁰⁴ Thus, the Human Rights Committee interprets the scope of the general obligation to ensure the right to life under Article 6 of the ICCPR as going beyond the protection against arbitrary killing and extending to other threats to human life, such as life-threatening illness.Footnote ¹⁰⁵

This scope of the positive obligations under the right to life has also been recognised by the European Court of Human Rights (ECtHR).Footnote ¹⁰⁶ Specifically, in Cyprus v. Turkey, Greek Cypriots living in the occupied northern part of the island claimed that restrictions on the ability to receive medical treatment and the failure to provide or permit receipt of adequate medical services gave rise to a violation of their right to life.Footnote ¹⁰⁷ The ECtHR recognised that ‘an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual's life at risk through the denial of health care which they have undertaken to make available to the population generally’.Footnote ¹⁰⁸ The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, a soft-law instrument that constitutes an authoritative interpretation on the modalities of the use of force, also confirm the inter-relation between the provision of essential health care and the protection of the right to life by emphasising that whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.Footnote ¹⁰⁹

International criminal law, especially on crimes against humanity, provides another basis on which to argue that the denial of life-saving health care may constitute a violation of the right to life. This is because it is now widely recognised that the underlying offences of crimes against humanity can be committed outside of an armed conflict and are thus linked to IHRL, as is apparent from the most elaborate codification of these crimes in Article 7 of the International Criminal Court (ICC) Statute. Particularly interesting for the present purposes are the underlying offences of murder and extermination, which are specific manifestations of violations of the right to life. Apart from the general constitutive elements for crimes against humanity,Footnote ¹¹⁰ for murder it is necessary to show the causation of death through an act or an omission with the intention to kill or to cause serious bodily harm where the perpetrator was aware that death would occur in the ordinary course of events.Footnote ¹¹¹ Thus, the deliberate denial of life-saving health care may constitute murder by omission. Even more interestingly, extermination involves mass killings, including by inflicting conditions of life calculated to bring about the destruction of part of a population. In this regard, the ICC Elements of Crimes on the crime against humanity of extermination expressly give the example of deprivation of access to food and medicine as inflicting such conditions of life.Footnote ¹¹²

Unlike IHL, IHRL does not enshrine specific obligations to search for and collect the wounded and sick. However, the CESCR has emphasised that health facilities, goods, and services must be within safe physical reach for all sections of the population.Footnote ¹¹³ Further, it may be derived from the general obligations under the right to health and the right to life that states must take positive measures to facilitate access to health care on a non-discriminatory basis, especially in cases where persons are injured or affected by the prior use of force by law enforcement officials, as seen above.

These basic obligations to facilitate the provision of essential health care to the wounded and sick provide the basis for more specific conduct required for the benefit of the wounded and sick and health-care personnel, facilities and medical transports under IHL and IHRL.

The wounded and sick and health-care personnel that pursue their exclusively medical function shall not be attacked, arbitrarily deprived of their lives or ill-treated. The use of force against health-care personnel is only justified in exceptional circumstances

Under IHL, the basic obligation to respect the wounded and sick entails, in particular, not attacking, killing, ill-treating or harming them in any way.Footnote ¹¹⁴ By definition under IHL, persons must refrain from acts of hostility in order to benefit from the protected status of wounded and sick.Footnote ¹¹⁵

From the basic obligations in relation to the wounded and sick flow the specific IHL protections of medical personnel, units and transports exclusively assigned to medical purposes by a competent authority of a party to the conflict.Footnote ¹¹⁶ In this regard, the obligation to respect medical personnel, units and transports pursuing their exclusively humanitarian task, whether military or civilian, means that they may not be attacked or harmed, even if no wounded and sick are contained in a medical unit or transport or even if medical personnel momentarily do not treat any wounded and sick at a given point in time.Footnote ¹¹⁷ The obligations to respect and to protect them further entail, in the context of the conduct of hostilities, that not only direct and indiscriminate attacks but also attacks which may be expected to cause excessive harm to medical personnel, units and transports, as persons and objects entitled to specific protection, are prohibited on account of the medical, non-combatant function of these persons and objects.Footnote ¹¹⁸

Moreover, the obligations to respect and protect require parties to the conflict to take feasible precautions to spare the wounded and sick, as well as medical personnel, units and transports, in attacks and from the effects of attacks.Footnote ¹¹⁹ These obligations are also based on the general obligations under the rules on the conduct of hostilities. In this regard, parties to the conflict are required to do everything feasible to verify that objectives to be attacked are military objectives and are neither civilians nor civilian objects, nor entitled to special protection, such as medical personnel, units and transports. Furthermore, they are obliged to cancel or suspend an attack when it becomes apparent that the objective is not a military one or is subject to special protection.Footnote ¹²⁰ Parties to the conflict must also take all feasible precautions in the choice of means (weapons) and methods of attack (the way in which weapons are used) with a view to avoiding, or in any event minimising, incidental civilian harm, which can also be applied, mutatis mutandis, to all medical personnel, units and transports, whether civilian or military.Footnote ¹²¹

These obligations are of particular importance in situations where first-aid personnel, who may or may not fall under the IHL category of medical personnel, rush to the scene of an attack or attacks to collect and evacuate wounded persons. In these circumstances, the importance of compliance with the obligation to do everything feasible to verify whether the object to be again attacked remains a military objective or whether it has effectively been destroyed or neutralised cannot be overemphasised. The fact that health-care personnel arrive on the scene after an attack or several attacks also inevitably influences the way attackers must discharge their precautionary obligations to choose methods of attack with a view to avoiding or at least minimising incidental harm to such personnel in a subsequent attack on the same military objective. This would call for restraint in particular with regard to the timing of an attack.Footnote ¹²² Consequently, an attacker should wait until first-aid personnel have collected and evacuated the wounded and sick from the scene of a prior attack. The presence of medical personnel must also be factored into the proportionality assessment of whether the harm expected from a follow-up attack to civilians and medical personnel, as well as medical units and transports, would be excessive in relation to the direct and concrete military advantage anticipated.

Unfortunately, several expert workshops convened in the Health Care in Danger project as well as the recent ICRC publication on violent incidents in 2012 have identified an emerging worrisome pattern by attackers that shows a manifest disregard for these precautionary obligations. It was observed that attackers, belonging to both states and non-states party to the conflict, rapidly directed unlawful intentional follow-up attacks against those coming to the aid of victims of a prior attack or attacks.Footnote ¹²³ This severely restricts the circumstances and possibilities for a defending party to the conflict to discharge its obligation to search for and collect the wounded and sick without delay after an engagement. In the same vein, first-aid personnel from National Red Cross and Red Crescent Societies or other impartial health-care providers may be prevented from assisting a party to the conflict in the search for and collection of the wounded and sick. When faced with these practices, first-aid personnel may become reluctant to quickly search for, collect and evacuate the wounded and sick from the battlefield after a prior attack out of concern for their own safety. This would be detrimental to the wounded and sick and to entire communities who depend on effective and rapid assistance. Thus, in such situations, there is a heightened dilemma for health-care personnel regarding how to find an acceptable balance between ensuring their own safety and providing rapid, life-saving health-care services on the spot.

One particular precautionary obligation against the effects of attacks contained in IHL treaty law applicable in international armed conflicts is that parties to the conflict shall, as far as possible, ensure that medical units are situated in such a manner that attacks against military objectives do not endanger their safety.Footnote ¹²⁴ While this obligation would naturally best be complied with if medical units were situated far away from any military objective, the caveat of ‘as far as possible’ makes it clear that it may be realistic in some circumstances but unrealistic in others that medical units would not operate in the vicinity of a military objective; in this regard, it is stressed that this precautionary obligation has its value especially in the context of aerial bombardment.Footnote ¹²⁵ However, remoteness from military objectives may be unrealistic where, for instance, existing medical units are already located in the vicinity of military objectives, in the case of mobile medical units such as field hospitals or first-aid stations which may frequently operate in proximity to the battlefield, or where urban fighting comes close to a medical unit.Footnote ¹²⁶

Medical personnel, units and transports may lose their specific protection if they commit, outside their humanitarian functions, acts harmful to the enemy. ‘Acts harmful to the enemy’ may be understood as acts the purpose or effect of which is to harm the adverse party, by facilitating or impeding military operations.Footnote ¹²⁷ The rationale for such a loss of protection is clear: medical personnel, units and transports should not become involved, in any way, in military operations in support of a party to the conflict. Such acts may engender a general climate of mistrust that also affects other health-care providers, who may face increased levels of insecurity and violence in their work. Ultimately this will have a negative impact on the wounded and sick, who may not receive the required medical care and attention.

The phrase ‘outside of their humanitarian functions' as an additional requirement makes it clear that even if a certain conduct may appear to constitute an ‘act harmful to the enemy’, it will still not lead to a loss of protection where it remains within the humanitarian tasks of medical personnel, units and transport. This would preclude an interpretation of ‘acts harmful to the enemy’ based on the mere presence of, for instance, mobile medical units on or near military objectives, as such presence could be due to purely humanitarian reasons.Footnote ¹²⁸

Examples of ‘acts harmful to the enemy, outside their humanitarian functions' include the use of a medical unit as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, as a military observation post, as a centre for liaison with fighting troops, or as a shield for a military objective;Footnote ¹²⁹ the transport of able-bodied soldiers or weaponry and the collection or transmission of military information;Footnote ¹³⁰ or firing at a military objective in combat.Footnote ¹³¹

On the other hand, certain acts are not considered as acts harmful to the enemy – for instance, carrying or using light individual weapons for self-defence or defence of the wounded and sick; the presence of, or escort by, military personnel;Footnote ¹³² the possession of small arms and ammunition taken from the wounded and sick and not yet handed over to the proper authority; merely caring for enemy wounded and sick military personnel; or the mere wearing of the enemy's military uniforms or bearing of its insignia.Footnote ¹³³

With regard to the notion of ‘light individual weapons’ whose use in self-defence or defence of the wounded and sick in one's charge would not give rise to a loss of specific protection, this refers to weapons which are generally carried and used by a single individual. Thus not only hand weapons such as pistols are permitted, but also rifles or even sub-machine guns; however, machine guns and other heavy arms which cannot easily be transported by an individual and which have to be operated by a number of people are not covered by the notion of ‘light individual weapons’. Hence their use would give rise to a loss of specific protection.Footnote ¹³⁴

It needs to be emphasised that even light individual weapons can strictly only be used where necessary for self-defence or defence of the wounded and sick. This includes defence against violence by looters or marauders or unlawful attacks directed against the wounded and sick or medical personnel by enemy combatants or fighters, and actions aimed at the maintenance of order inside a medical unit, for instance to defend against violence among convalescent wounded and sick. In a similar vein, where civilians are involved in medical activities, the use of force in individual self-defence against unlawful attack or looting, rape and murder by marauding soldiers would not entail a loss of protection against direct attack, as such defence lacks a belligerent nexus and thus does not constitute a direct participation in hostilities.Footnote ¹³⁵ However, the use of light individual weapons for purposes such as resisting a military advance by the enemy into territory where a medical unit is located or opposing the capture of such a unit by the adverse party would not be in line with this restrictive understanding of ‘defence’; hence, this would amount to facilitating or impeding military operations by an adverse party to the conflict and would thus constitute an act harmful to the enemy.Footnote ¹³⁶

Similar considerations as to the permissible limits of carrying of weapons for medical personnel apply to the scenario of mounting weapons on medical units or transports. Thus, no armaments could be mounted that could potentially be used in an offensive fashion. On the other hand, purely deflective means of defence, such as chaff, infrared flares or jammers, may be permissible.Footnote ¹³⁷ In a similar vein, the mere use by medical personnel or civilians involved in providing health care of personal protective equipment such as helmets, bulletproof vests or gas masks, or the use of armoured vehicles, would not go beyond the permissible limits of individual defence, as such items serve the exclusively defensive purpose of absorbing the impact of explosive devices or reducing exposure to chemicals or hazardous material.Footnote ¹³⁸

A loss of specific protection of medical personnel, units and transports is subject to further conditions under IHL before it becomes effective – namely, non-compliance with a due warning that is accompanied, in all appropriate cases, by a reasonable time limit.Footnote ¹³⁹ The purpose of this specific warning is to allow those committing an act harmful to the enemy to terminate such conduct, or – if they persist – to ultimately enable the safe evacuation of the wounded and sick who are not responsible for such conduct and who should not become the innocent victims of such acts.Footnote ¹⁴⁰ Compared to the general protection of civilians and civilian objects in the conduct of hostilities, the condition of a ‘due warning’ for the purpose of a loss of specific protection of medical personnel, units and transports is not subject to the broad caveat ‘unless circumstances do not permit’, which would, for instance, permit a party to the conflict to dispense with a warning where surprise is of the essence in a particular attack.Footnote ¹⁴¹

However, even in a situation where medical personnel, units or transports have lost their specific protection and may become liable to attack, the obligation to respect and protect the wounded and sick in their charge still requires that efforts are made to spare them and that active measures for their safety are taken.Footnote ¹⁴² Thus, attacks against medical personnel, units or transports that have lost their protection must comply with the principle of proportionality and the obligation to take all feasible precautions to avoid, or at least minimise, incidental loss of life and (further) injury to the wounded and sick.Footnote ¹⁴³

The commission of an act harmful to the enemy does not automatically amount to a violation of IHL, as there is no general prohibition under IHL against committing acts harmful to the enemy. However, depending on the circumstances, certain acts harmful to the enemy may, in addition to leading to a loss of protection of medical personnel, units or transports, amount to a violation of precautionary obligations to protect the wounded and sick, as well as health-care personnel and objects under their control, against the effects of attacks. Furthermore, such conduct may give rise to other IHL violations or even serious IHL violations – that is, war crimes. For instance, if medical personnel display one of the emblems as a protective device while committing acts harmful to the enemy, this constitutes a violation of the IHL prohibition against improper use of the distinctive emblem.Footnote ¹⁴⁴ Moreover, where a protective emblem is displayed to invite the confidence of an adversary and lead him/her to believe that one is protected as medical personnel in order to kill or injure him/her, and this results in the death or injury of that adversary, this amounts to the war crime of perfidious killing or wounding of an adversary.Footnote ¹⁴⁵

Under IHRL, states have the obligation not to subject any individuals under their jurisdiction, including the wounded and sick and health-care personnel, to arbitrary deprivations of life.Footnote ¹⁴⁶ The use of force by state agents against health-care personnel is justified only in law enforcement operations where it is absolutely necessary to defend a person from an imminent threat to their life or bodily integrity; to prevent the perpetration of a particularly serious crime involving grave threat to life; to arrest a person presenting such a danger and resisting authority or to prevent his or her escape; or to quell a riot or insurrection.Footnote ¹⁴⁷ The ‘absolute necessity’ standard implies that force may only be used where less extreme means, especially an arrest, are insufficient to achieve these objectives.Footnote ¹⁴⁸ Generally, neither the wounded and sick nor health-care personnel would pose such an imminent threat that warrants the use of force against them. Even when they perpetrate acts of violence other than for their own self-defence or the defence of others, law enforcement officials must issue a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would create a risk of death or serious harm to the police officer concerned or third persons.Footnote ¹⁴⁹ In contrast to the notion of proportionality under IHL, under IHRL this concept is used not to justify incidental harm to the people and objects surrounding the target of the use of force but rather to minimise the effect of the use of force against the person targeted.Footnote ¹⁵⁰

Finally, under IHRL, where the use of force inflicts severe pain or suffering and is out of proportion in relation to a legitimate purpose – for example, to counter an imminent threat to the life or bodily integrity of another person or to quell a riot or an insurrection – it may also offend the obligation of states not to subject any individuals under their jurisdiction to cruel, inhuman or degrading treatment (CIDT). This is because the prohibition on CIDT, as opposed to the prohibition on torture, may also come into play in cases of the use of police force outside detention.Footnote ¹⁵¹ Even if less severe pain or suffering is inflicted by such force in a humiliating manner, this may constitute degrading treatment.Footnote ¹⁵² However, as soon as a wounded or sick person or health-care professional is under the direct physical control of the police by being arrested or detained, no use of force whatsoever is permissible against him or her.Footnote ¹⁵³

Access to health facilities, goods and services shall not be arbitrarily limited and denials to such access must be avoided as much as possible

Under IHL, the obligation to care for the wounded and sick does not only encompass medical treatment, including first-aid treatment, but also entails, for instance, handing them over to a medical unit or ensuring their transport to a place where they can be adequately cared for.Footnote ¹⁵⁴ Therefore, arbitrarily limiting, or denying medical transports without providing any alternative for conveying the wounded and sick or medical personnel or supplies would violate this obligation. The word ‘arbitrarily’ reflects the extent of the obligation to provide care ‘as far as practicable and with the least possible delay’; this allows for considerations not only of material possibility but also of military necessity,Footnote ¹⁵⁵ such as controlling medical transports for security reasons at checkpoints, including to ensure that they are not used for committing acts harmful to the enemy. While inevitably military necessity would entail a certain degree of delay, this would then have to be balanced against the humanitarian imperative that medical evacuations imply, so as to minimise delays and avoid denials as much as possible. A prohibition on arbitrarily blocking medical transports may also be derived from the obligation to respect medical personnel, units and transports, as this requires parties to a conflict not to unduly interfere with their work, for example by preventing supplies from reaching medical units.Footnote ¹⁵⁶

Furthermore, such a prohibition results from the general obligation of parties to the conflict that whenever circumstances permit, and particularly after an engagement, they must, without delay, take all possible measures to search for, collect and evacuate the wounded and sick.Footnote ¹⁵⁷ This obligation includes permitting impartial humanitarian organisations to assist in searching for and collecting the wounded and sick; while such humanitarian organisations in practice will need permission from the parties to the conflict concerned to carry out such activities, permission must not be denied arbitrarily.Footnote ¹⁵⁸ Where wounded and sick civilians, and impartial civilian health-care providers are involved, the prohibition may also be based more generally on the obligations of parties to a conflict in relation to humanitarian assistance, already reviewed above.Footnote ¹⁵⁹

Under IHRL, the non-derogable obligation to respect the right to access health-care infrastructure, goods and services on a non-discriminatory basis as part of the right to health requires states to abstain from arbitrarily limiting, or denying such access by the wounded and sick, for instance as a punitive measure against political opponents.Footnote ¹⁶⁰ Restrictions on access by doctors to the wounded and sick on account of the fact that they are opposed to a government constitute an arbitrary limitation. This is because such restrictions would first and foremost run counter to the fundamental principle of non-discrimination of persons in need of health care. Besides, it is hardly conceivable that states parties could justify such a far-reaching limitation under the limitation clause of Article 4 of the ICESCR, as this would seem to be incompatible with the nature of the right of access to essential health care which again is closely inter-related to the obligations of states to protect the right to life.Footnote ¹⁶¹ Moreover, limitations on the grounds of national security could not be invoked where a part of the population would be deprived of urgently needed health care. This is because such a limitation would not serve the economic and social well-being of the state's general population as a whole.Footnote ¹⁶² Finally, limitations must be proportional, in the sense of seeking the least restrictive alternative where various types of limitations are available.Footnote ¹⁶³ This condition would call for avoiding outright denials of passage to health-care transports and for the minimum possible delay, for instance, of such passage at checkpoints.Footnote ¹⁶⁴

Health-care personnel shall not be hindered in the performance of their exclusive medical tasks. They shall not be harassed for the simple fact of assisting the wounded and sick, and must not be compelled to denounce wounded and sick in their care, subject to exceptions expressly provided under IHL, IHRL and national law

The IHL obligation to respect medical personnel and medical units performing their exclusively humanitarian function also means that parties to a conflict must allow medical personnel to treat the wounded and sick and not unduly impede the functioning of a medical unit.Footnote ¹⁶⁵

In this regard, IHL does not prohibit entry into medical units by security forces, armed forces or armed groups carrying weapons per se. This is a manifestation of the pragmatic approach that IHL takes, and a recognition that such armed entries may be undertaken for legitimate purposes such as searching for alleged criminals; interrogating and arresting suspects; searching for and arresting combatants or fighters posing an imperative threat to their security; or verifying that a medical unit is not used for military purposes.Footnote ¹⁶⁶ Armed entry may also occur when, for instance, already detained combatants or fighters, upon seeking medical treatment in a civilian medical unit, are accompanied by armed combatants or fighters of the detaining power. Such armed entries are not prohibited by IHL either – on the contrary, this may even be necessary to preserve the ability to effectively implement the obligation to provide medical care and attention to the wounded and sick without adverse distinction. To recall, differences in medical treatment must be based only on medical grounds, and not on whether the patient is civilian or military or whether he or she has previously directly participated in hostilities.

On the other hand, from a humanitarian perspective, a significant presence of weapon-bearers in a medical unit may contribute to a sense of insecurity of health-care personnel and the wounded and sick cared for in the unit. This relates to the fact that armed entries may have the effect of disrupting the normal functioning of a medical unit. As a result, access by doctors to patients may be obstructed, health-care personnel and the wounded and sick threatened, and vital medical treatment to the wounded and sick delayed or denied. Furthermore, a significant armed presence inside a medical unit may raise suspicion with an opposing party to the conflict. Accordingly, medical units risk being subjected to attack because of the perception by such an opposing party to the conflict that the medical unit is used to commit acts harmful to the enemy.

The problem is not the fact that armed entries are undertaken per se; in any event, as such armed entries may well be conducted for legitimate purposes, it may be unrealistic to attempt to prevent such operations altogether. The problem is the manner in which such operations may be conducted, with the consequence of unduly delaying or denying medical treatment to the wounded and sick. Where this consequence results from an armed entry, this would be incompatible with the IHL obligation to respect medical personnel and medical units. Naturally, the obligation to respect the wounded and sick would also be violated if they were to be harmed due to the delay or denial of the medical treatment that their medical condition requires. While these general IHL obligations are clear, they need to be translated into concrete procedures by state armed or security forces and non-state armed groups, so that legitimate armed entries are conducted in a manner which ensures that the work of medical personnel and the functioning of medical units are thereby not unduly impeded, and that the wounded and sick are not harmed or unduly denied the medical care they require.Footnote ¹⁶⁷

One specific challenge, which often comes to the fore with armed entries into health-care facilities for the purpose of interrogation and arrest, is that health-care personnel may be harassed and threatened with punishment in order to obtain information on wanted wounded and sick individuals that they may have come across when providing medical care to them.

In relation to this issue, IHL contains specific rules aimed at removing fear or any compulsion of medical personnel for performing activities compatible with medical ethics, including for the benefit of wounded and sick enemies of a party to a conflict. In this regard, it is prohibited to molest or punish any person, including medical personnel, for performing medical activities compatible with medical ethics.Footnote ¹⁶⁸ While the term ‘punish’ covers not only penal but also, for instance, administrative sanctions, the term ‘molest’ is still broader in encompassing ‘any form of annoyance, threat or harassment’.Footnote ¹⁶⁹ It is also prohibited to compel medical personnel to perform activities contrary to medical ethics or to compel them to refrain from performing acts required by medical ethics, such as withholding medical care to a wounded combatant or fighter because he or she has directly participated in hostilities.Footnote ¹⁷⁰

The term ‘medical ethics’ refers to the moral duties of medical professionals, usually decreed by the professional medical associations of each state.Footnote ¹⁷¹ On the international level, the World Medical Association has adopted certain guidelines relevant to this issue, including the International Code of Medical Ethics,Footnote ¹⁷² the Declaration of Geneva, a modern version of the Hippocratic Oath,Footnote ¹⁷³ and the Regulations in Times of Armed Conflict, which proclaim that medical ethics are the same in times of armed conflict and in times of peace.Footnote ¹⁷⁴ While these guidelines have not been adopted by states and thus have no binding force under international law, they nevertheless constitute an important point of reference for interpreting what the notion of medical ethics entails.Footnote ¹⁷⁵ In essence, medical ethical duties, just like IHL, are inspired by the overarching concern for the best interests of the wounded and sick. Thus, for instance, medical ethics would require medical personnel to strive to use health-care resources in the best way to benefit the wounded and sick; to respect the rights and preferences of the wounded and sick, including the right to accept or refuse treatment and the right to confidentiality of health-related information, unless there is a real and imminent threat of harm to the patient or others and this threat can only be removed by a breach of confidentiality; and not to allow their professional judgement to be influenced by personal profit or discrimination.Footnote ¹⁷⁶ Naturally, medical ethics also require medical personnel to observe IHL and IHRL – for example, not to condone, facilitate or participate in practices of torture or other ill-treatment.Footnote ¹⁷⁷ While there are thus significant overlaps between IHL rules and medical ethics, the latter have added value, for instance, in guiding health-care personnel in difficult decisions regarding the order in which the wounded and sick will be treated (triage).Footnote ¹⁷⁸

A specific dilemma concerns the protection from compulsory denunciation to national authorities of medical confidentiality in relation to information that health-care personnel may have obtained on the wounded and sick in their charge. This relates not only to health-related information concerning the wounded and sick but also to other information such as on the activities, connections, position, or simply the existence of the wounded.Footnote ¹⁷⁹

On this question, medical ethics is in tension with IHL. Medical ethics generally require absolute confidentiality with regard to the patient's identity and other personal information as well as health-related information subject to the above-mentioned discretion of health-care personnel when there is a real and imminent threat to the patient or others and this threat can only be removed by breaching confidentiality.Footnote ¹⁸⁰

On the other hand, while IHL generally imposes the obligation to respect medical confidentiality, Article 16(3) of AP I and Article 10(3) of AP II subject this general obligation to the exception that protection of health-care personnel from such denunciation towards their own authorities is subject to national law.Footnote ¹⁸¹ This may constitute a potentially far-reaching possibility of imposing limitations under national law because the wording of these provisions does not contain any guidance on how national legislative authorities must exercise this discretion. As a result, this may lead to variations across different domestic legal orders in the regulation of this issue.Footnote ¹⁸²

However, it is important to bear in mind that the overall object and purpose of protecting information that became known to health-care personnel in the course of their medical activities from compulsory disclosure is that without such protection many of the wounded and sick would rather risk suffering and dying than being denounced and may therefore refrain from seeking access to health-care services. Moreover, it must be considered that the discretion given to national legislative authorities must not lead to the result that an obligation to systematically reveal the identity of the wounded and sick renders medical confidentiality essentially meaningless.Footnote ¹⁸³ It has also been observed that national legislation may not impose an obligation to violate the minimum standards imposed by general rules of medical ethics;Footnote ¹⁸⁴ one of these minimum requirements would certainly be not to do anything to harm a patient.

In this regard, Article 16(3) of AP I specifies for international armed conflicts that in relation to the medical personnel's authorities and the authorities of the adverse party, medical personnel may be compelled to reveal this type of information in the case of communicable diseases. This case is not explicitly mentioned in the corresponding provision of Article 10(3) of AP II applicable to non-international armed conflicts regulated by AP II, since such exceptions are usually enshrined in national legislation. In that particular case, compulsory denunciation may be justified by the fact that in the case of communicable diseases, the collective public interest takes precedence over the individual interest of the patient.Footnote ¹⁸⁵ Some countries also require the reporting of gunshot wounds for purposes of criminal investigations.Footnote ¹⁸⁶

While for humanitarian reasons it may be desirable that the scope of required denunciations under national law be limited as much as possible in order to preserve the discretion of health-care professionals on medical confidentiality, where this is not the case medical ethics would demand from health-care professionals that they are at least aware of legal requirements to report certain information to the authorities. Furthermore, medical ethics enjoin them to consider potential dilemmas in advance, and to inform the wounded and sick concerned when they must disclose information about them.Footnote ¹⁸⁷

IHRL only vaguely deals with the issues related to armed entries reviewed in this section through the non-derogable obligation to respect the right of non-discriminatory access of the wounded and sick to health facilities, goods and services. This obligation requires states to refrain from direct or indirect interferences with the enjoyment of that right.Footnote ¹⁸⁸ Armed entries resulting in delayed or denied required medical treatment for the wounded and sick; threatening, harassing or punishing health-care personnel who perform their exclusively medical tasks; or undue impediments to the functioning of health-care facilities would fall within the scope of prohibited interferences.

More specifically, as has already been mentioned, the CESCR has emphasised that states parties to the ICESCR have to ensure that all health facilities, goods and services are respectful of medical ethics, subject to the conditions prevailing in the respective state, and that medical practitioners and other health professionals meet appropriate ethical codes of conduct.Footnote ¹⁸⁹ Furthermore, states have an obligation to provide appropriate training for health personnel, including education on health and human rights, which is comparable in priority to the core obligations under the right to health.Footnote ¹⁹⁰ It is worth noting that IHRL thus requires states not only to abstain from certain acts compromising medical ethics but – subject to their available resources – to take active measures to guarantee respect for medical ethics.

As regards the protection of treatment in accordance with medical ethics, it is also clear that health-care personnel who refuse to obey orders to, for instance, subject persons to medical procedures which rise to the level of torture or other ill treatment not necessitated by their condition must not be punished for such a refusal.Footnote ¹⁹¹ In relation to medical confidentiality, the right not to be subjected to arbitrary or unlawful interferences with their privacy protects persons under the jurisdiction of a state against undue disclosure of medical and other private data to persons not privy to the physician–patient relationship.Footnote ¹⁹² Thus, such disclosure cannot take place except where it is explicitly based on national law, and the protection from ‘arbitrary’ interference adds that even interference legitimised by law must be in conformity with the object and purpose of IHRL and reasonable in the particular circumstances of the case.Footnote ¹⁹³

While this would generally lead to a similar scope of protection from denunciation of information on the wounded and sick as under IHL, it must additionally be taken into account that the right to privacy as part of the right to privacy, family, home and correspondence under IHRL may be derogated from in times of public emergencies, including in armed conflicts and in emergencies falling below the threshold of armed conflicts. Even then, however, there must be adequate justification not only for the general decision to proclaim a state of emergency (as well as its duration and geographical and material scope), but also for specific measures based on the derogation of the rights in question.Footnote ¹⁹⁴

The wounded and sick, as well as health-care personnel and infrastructure, must also be protected against interferences with health care by third persons

Under IHL, the obligation of parties to a conflict to protect the wounded and sick and medical personnel, units and transports means they are also bound to ensure that these persons and objects are respected by third persons and to take measures to assist medical personnel, units and transports in the performance of their functions. This requires, for instance, removing the wounded and sick from the scene of combat and sheltering them, and ensuring the delivery of medical supplies by providing a vehicle or facilitating the supply of a medical unit with resources such as water or electricity critical to its functioning.Footnote ¹⁹⁵ In particular, the wounded and sick must be protected against ill treatment and pillage of their personal property.Footnote ¹⁹⁶

Under IHRL, the obligation of states to ensure individuals' right to access health facilities, goods and services on a non-discriminatory basis also means that they must take positive measures to enable and assist individuals to enjoy their right to health.Footnote ¹⁹⁷ Furthermore, states must take appropriate measures to prevent third persons from interfering with medical treatment given to the wounded and sick, including where third persons limit access to health services.Footnote ¹⁹⁸

The red cross, red crescent and red crystal emblems shall not be employed except to identify protected health-care personnel, facilities, medical transport, and associated medical equipment or medical supplies authorised to use them in armed conflicts or to indicate that persons or objects are linked to the Red Cross and Red Crescent Movement. All necessary measures shall be taken to prevent and repress misuse of the emblems

Under IHL, the protective use of the emblems constitutes the visible sign of protection in armed conflicts.Footnote ¹⁹⁹ In contrast, the indicative use is intended to show that persons or objects are linked to the Red Cross and Red Crescent Movement.Footnote ²⁰⁰ While the protective emblem must be identifiable from as far away as possible, and may be as large as necessary to ensure recognition,Footnote ²⁰¹ the indicative emblem shall be comparatively small in size and may not be placed on armlets or on the roofs of buildings.Footnote ²⁰²

It must be emphasised that a protective emblem is not constitutive of the protection of medical personnel, units and transports; it is applicable IHL that confers specific protection on account of their function.Footnote ²⁰³ There is also no obligation to wear or display an emblem; it is generally recognised as an option, despite the wording under various IHL provisions that medical personnel, units and transports ‘shall’ be identified by a protective emblem.Footnote ²⁰⁴

Accordingly, should a commander decide for tactical reasons – for instance, where military medical units or transports are systematically targeted or in order to conceal the presence or real strength of armed forces – that medical units or transports should remove or cover up (camouflage) the distinctive emblem, this does not take away the protection to which medical units or transports are entitled under IHL.Footnote ²⁰⁵ However, it is evident that it will then be difficult for the opposing party to the conflict to recognise that certain objects are protected as medical units or transports; given this difficulty, the existing Geneva Convention commentaries already recommended that this option should only be used when the tactical situation on the ground would make it absolutely necessary.Footnote ²⁰⁶

The distinction between protective and indicative use of the emblems is necessary to avoid any confusion as to who is entitled to bear the visible sign of protection in armed conflicts.Footnote ²⁰⁷ Therefore, the Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies stipulate that National Red Cross and Red Crescent Societies shall endeavour, even in peacetime, to take necessary measures to ensure that the indicative emblem is comparatively small.Footnote ²⁰⁸

However, the Commentary to these Regulations makes it clear that this has the character of a recommendation and that ‘the use of a large-size emblem is not excluded in certain cases, such as events where it is important for first-aid workers to be easily identifiable’.Footnote ²⁰⁹ In this regard, the ICRC Study on Operational and Commercial and other Non-operational Issues Involving the Use of the Emblems recommended that first-aid workers (and facilities) belonging to National Red Cross and Red Crescent Societies display a large-sized indicative emblem in situations of internal disturbances and tensions if (a) it might enhance their medical assistance to victims of violence, and (b) it is authorised, or at least not forbidden, by national legislation.Footnote ²¹⁰

All necessary measures, including adopting national legislation, shall be taken by competent authorities to prevent and repress – at all times – misuses,Footnote ²¹¹ including imitations,Footnote ²¹² improper use,Footnote ²¹³ or perfidious use of the emblems.Footnote ²¹⁴