In the first installment of episode 2 in this multi-blog series on the updated Commentaries, Heather Brandon discusses the protective status of medical facilities and personnel and the appropriate responses to attacks as guided by GCI.
Heather Brandon serves as Advocacy Counsel, National Security for Human Rights First. In this role, she develops recommendations and advocates for U.S. national security policies that accord with human rights and the rule of law. She specializes in the domestic and international legal frameworks governing the use of force and has worked to reform key post-9/11 counterterrorism policies, including indefinite detention and military commissions at Guantanamo and U.S. war authorities, including the 2001 Authorization for the Use of Military Force (AUMF).
Joint Series Episode II, Part I
The recent mistaken and deliberate attacks on civilian medical facilities and personnel have rightly inspired substantial analysis on the protective status of these facilities and personnel and the appropriate responses to such attacks. While the ICRC’s 2016 updated Commentary on the First Geneva Convention (GC I), being concerned with the wounded and sick in the armed forces, does not broach such civilian objects and persons, it does provide significant additional guidance on a related category of protected persons and objects: military medical personnel, units and transports.
GC I requires parties to respect and protect military medical personnel who are “exclusively engaged” in medical functions. Protected status is similarly afforded to fixed medical establishments and units, transports and aircraft. These personnel and objects are granted the right to display an internationally recognized emblem to signal their status to adversaries.
Much as civilians can lose their protected status for directly participating in hostilities, so too can military medical personnel and objects if they undertake or are used to “commit outside their humanitarian duties, acts harmful to the enemy.” Protection will only be lost, however, following a warning, which specifies a reasonable time limit within which the harmful act must cease, and this time has elapsed.
While GC I does not define “acts harmful to the enemy,” Article 22 provides that such harmful acts do not include arming medical units or establishments, or using these arms in self-defense or in defense of those in their care. Both GC I and the 1952 Pictet Commentary are silent on the type of weapons that medical personnel may carry. However the 2016 Commentary elucidates that such personnel are restricted to holding “light individual weapons” such as “pistols and rifles.” It explicitly excludes as impermissible “man-portable missile[s],” “anti-tank missile[s],” “‘crew-served’ machine guns” that are operated by more than one person, and generally “weapons that cannot easily be transported by an individual and which have to be operated by several persons.”
The basis given for this limitation is twofold: the “strictly defensive purposes for which personnel could use ‘light individual weapons’” and the need to “avoid the perception that a military medical unit is armed in a manner beyond such defensive purposes.” The Commentary states that such perception “could lead an adversary to conclude that the unit might be used to commit ‘acts harmful to the enemy’,” putting the medical personnel, facilities, and their patients at risk of attack by such error.
In another blog series, Nicholas W. Mull criticizes the updated Commentary’s limitation permitting military medical personnel to carry only light individual weapons. He argues that the manner in which medical personnel are armed should be a policy choice, rather than a legal obligation. Mull states that carrying heavier weaponry constitutes only “a remote hypothetical harm that does not meet the standard of being harmful to the enemy.” He considers that as “reciprocity can no longer be presumed” in contemporary conflicts, medical personnel should not be restricted regarding the size of the weapons they carry or operate. Mull further posits that occasion may require heavier arms, such as a .50 caliber machine gun, to adequately “subdue [an] imminent threat to life.”
Mull notes that neither GC I nor the Pictet Commentary explicitly restrict military medical personnel to light individual weapons. He states that while the term is included in Article 13 of Additional Protocol I (AP I), it is used with regard to civilian medical personnel. Mull argues that the updated Commentary incorrectly analogizes the rules for civilian personnel to military personnel, calling this a “highly illogical inferential leap.”
However, despite this claim, a review of the evolution of the right of medical personnel and facilities to be armed during war—in both military and civilian contexts—reveal that such a leap may not be so misplaced.
While the 1864 Geneva Convention required parties to respect and protect military medical personnel, in exchange for this status, such personnel were not permitted to be armed at all. This is evidenced in state practice, such as Article 262 of the 1900 U.S. Navy Regulations, which implemented the 1864 Convention and explicitly provided that “Members of the Hospital Corps … shall not be permitted to bear arms.” Medical personnel were first permitted to use arms as defensive measures the 1906 Geneva Convention, which accorded this right to “sanitary formations and establishments.”
While the 1952 Pictet Commentary to GC I did not elaborate on the type of weapons permitted for military medical personnel, units, and transports, this was not the case for the 1960 Pictet Commentary on the corresponding provision concerning hospital ships in the second Geneva Convention (GC II). Rather, the Commentary on Article 35 GC II expressly restricted medical personnel on hospital ships to carrying “individual portable weapons.”
Finally, the Commentary on Article 13 AP I notes that in negotiating the parameters permitting civilian medical personnel to be armed, substantial guidance was taken from the rules governing military medical personnel and the extent to which they were permitted to be armed. Indeed, the negotiators eventually permitted civilian medical personnel to be armed because they “were exposed to the same dangers … as military medical personnel, [and] [t]herefore they should have the same means at their disposal for their own defence” [emphasis added].
As AP I restricts civilian military personnel to only “light individual weapons,” the AP I Commentary essentially posits that the Protocol’s drafters concluded that military medical personnel were also only authorized to carry this class of weapons. This conclusion is also supported by state practice. As such, analogizing the parameters of Article 13 of AP I to military medical personnel is manifestly appropriate, rather than illogical.
At its core, the basis for limiting the weapons available to military medical personnel is to enhance the protection of victims of armed conflict. The heavier the weaponry carried by such personnel, units, or transports the greater the chance they will be mistaken for combatants or military objectives, increasing the likelihood of attack and putting at risk their entire unit and those in their care. This could include civilians, whom Article 22(5) permits military medical facilities to care for.
Indeed, Mull even acknowledges that as U.S. military medical personnel often do not display the distinctive emblem, “[i]t may not be the best policy choice to heavily arm medical personnel for the risk of confusion that can be created as to their protected status.” Further, the use by medical personnel of .50 caliber machine guns suggested by Mull could either be seen to or actually go beyond the strictly defensive purposes permitted for medical personnel. Even inadvertently using such a weapon in defense of a combatant or military objective would constitute an act harmful to the enemy, outside their humanitarian duty, potentially stripping medical personnel and their units of their protective status.
As the Kunduz strike on a Médecins Sans Frontières hospital showed, even where medical facilities are clearly discernible, tragic mistakes can be made. Heightening the prospect of such mistakes by excessively arming military medical personnel, units, and transports, risks weakening the protective regime in its entirety. As such, the updated Commentary’s restriction on military medical personnel, units, and transports strikes the appropriate balance between permitting the defensive use of weapons to respond to attacks and ensuring that the protected status of these persons and objects is maintained.
For more on the multi-blog series, click here.