The fourth post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, Wounded and Sick, Proportionality, and Armaments by Geoffrey Corn (South Texas College of Law) is now available over on Lawfare.
Here's a preview:
Protection of wounded and sick members of the armed forces, those exclusively engaged in their collection and care, facilities and equipment also exclusively engaged in these activities (what I will refer to herein as “military protected persons and equipment”) is at the very core of International humanitarian law, or the law of armed conflict. Ameliorating the suffering of these victims of war was, after all, the seed from which the entire Geneva tradition, to include the four Geneva Conventions and their three Additional Protocols blossomed. It is simply beyond question that these people, places, and things must be respected and protected during all armed conflicts.
But the 2016 International Committee of the Red Cross’ revised Commentary to the 1949 Wounded and Sick Convention has exposed an area of substantial uncertainty: does the law protect military protected persons and equipment from the collateral or incidental consequences of attacks on proximate lawful military objectives? And, if the answer is yes, what is the source of that protection and how does it apply in practice?
The Commentary provides an affirmative answer to this question, explaining that this protection derives from an a fortiori extension of the proportionality rule applicable to civilians and civilian property. While the Commentary acknowledges that the treaty enumeration of this proportionality rule in Additional Protocol I applies by its terms exclusively to civilians and civilian property, this is ultimately not considered a sufficient justification for excluding military protected personnel and equipment from the scope of the proportionality obligation. In contrast, the U.S. Department of Defense Law of War Manual expressly addresses this issue, and asserts that these protected military personnel and assets, while unquestionably protected against direct or deliberate attack, are not protected from incidental injury and/or collateral damage resulting from lawful attacks.
Read the full post over at Lawfare.
Schedule of blog posts:
- ‘The obligation to “ensure respect” for IHL: the debate continues’- Marten Zwanenburg (Legal Counsel at the ministry of Foreign Affairs, Netherlands)- Intercross
- ‘Common Article 3 and Linkages Between Non-State Armed Groups’- Ashley Deeks (University of Virginia Law School) –Lawfare
- ‘ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’- Annyssa Bellal (Geneva Academy of International Humanitarian Law and Human Rights)- EJIL:Talk!
- ‘Transatlantic Workshop on International Law and Armed Conflict Wounded and Sick, Proportionality, and Armaments’- Geoff Corn (South Texas College of Law)- Lawfare
- ‘Wounded and Sick and the Proportionality Assessment’- Jann Kleffner (Swedish Defence University)- Intercross
The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict (directed by Dapo Akande), the Individualisation of War project, European University Institute, Florence (directed by Jennifer Welsh), the Washington DC & London delegations of International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).