International humanitarian law purports to regulate the conduct of armed conflict in two key respects. First, it imposes minimum standards of protection for victims of armed conflict, whether they are injured combatants, prisoners of war, or civilians who happen to be caught up in the conduct of armed hostility. The key instruments dealing with this area of the law are the four Geneva Conventions of 1949, which have among the highest number of states parties of all multilateral treaties and the two Additional Protocols of 1977. Secondly, International Humanitarian Law restricts the permissible means and methods of warfare, including the types of weapons that can be deployed and the targets they can be deployed against, and limits the amount of force used to what is proportionate to the legitimate military necessity.
The Geneva Conventions 1949 are only applicable to international armed conflicts, and common article 3 alone extends some of the basic principles to internal armed conflicts. In the 1970s, as the international community was negotiating new instruments to extend and develop further the rules of international humanitarian law, it was recognized that internal armed conflicts posed a particular challenge to the application of these rules. The two Additional Protocols of 1977 were created to extend the minimum standards of humanitarian protection for victims of armed conflict, and the scope of the rules dealing with means and methods of warfare. Somewhat controversially, Additional Protocol I applies to international armed conflicts, including struggles for self determination against ‘colonial domination and alien occupation and against racist regimes’. Additional Protocol II extends some of the rules of international humanitarian law to internal armed conflicts not otherwise covered by Additional Protocol I. However, a number of problems have arisen among states’ reactions to this approach.
Who Is Entitled To Take Part In Hostilities?
A central feature of the laws of armed conflict ever since the eighteenth century has been the distinction between combatants and civilians. The distinction is important for two reasons. First, combatants are legitimate targets, civilians are not. Secondly, lawful combatants are entitled to participate in hostilities and if captured, to be treated as prisoners of war, whereas civilians who take a direct part in hostilities and who thereby become unlawful combatants are largely unprotected by the laws of armed conflict. They have no claim to prisoners of war status and can be tried and punished for their belligerent acts. It is therefore of the utmost importance that combatants should be distinguishable from civilians. That is no easy task, however, when one party to a conflict relies on irregular combatants rather than uniformed soldiers.
Articles 1 and 2 of the 1907 Hague Regulations on Land Warfare and Article 4 of the Geneva POW Convention, 1949, laid down different standards for members of the regular armed forces and irregular combatants. Under their provisions, members of the regular armed forces a term which includes conscripts as well as professional soldiers of a State are automatically entitled to combatant and, therefore, prisoners of war status. They forfeit that entitlement, however, if they engage in hostilities while disguised as civilians. Thus, the Privy Council held that two Indonesian soldiers who blew up a bank in Singapore during an armed conflict were not entitled to be treated as prisoners of War and had properly been convicted of murder, because they had been disguised in civilian clothes when they planted the explosive. It has also frequently been held that a person who takes up arms against the State of which he is a national is not a lawful combatant and has no entitlement to prisoner of war status, even though he may be a member of the regular armed forces of the enemy State. Irregulars, on the other hand are lawful combatants under the 1907-49 provisions only if:
(1) They are members of an organized force;
(2) That force belongs to a party to the conflict;
(3) The force is under the command of a person responsible for his subordinates;
(4) The members of the force wear a fixed, distinctive sign, recognizable at a distance;
(5) They carry arms openly; and
(6) They conduct operations in accordance with the laws and customs of war.
Although Article 4 of the Geneva prisoner of war Convention specifies that members of organized resistance groups in occupied territories may qualify as lawful combatants, this provision is almost entirely symbolic as they are still required to comply with the above conditions. In general, this is impossible, few members of the resistance in France during the Second World War, for example, could have complied with the requirement of wearing a ‘fixed, distinctive sign’. The 1958 British Manual of Military Law, while conceding that ‘something less than a complete uniform’ is sufficient to meet this requirement states: it is reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline should be at once distinguishable from the outline of a peaceful inhabitant, and this by the naked eye of an ordinary individual at a distance from which the form of an individual can be determined. The life expectancy of such an irregular would be short. In practice, therefore, almost all irregulars fall outside the test laid down by the Hague Regulations and the Geneva Convention. Additional Protocol I attempts to alter this position, Article 44 of the Protocol largely assimilates regular and irregular forces. The first sentence of Article 44(3) lays down the basic requirement for both groups: In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.
The Wounded and Sick
The First and Second Geneva Conventions contain detailed legal regimes for the treatment of the wounded, sick and shipwrecked. This regime may be summarized, in the language of the Red Cross Movement, as a duty to ‘respect and protect’, i.e., a negative duty not to do harm and a positive obligation to take certain steps to assist the wounded, sick, and shipwrecked. Thus, there is a duty to collect and care for enemy wounded. They must be given the same access to medical treatment as the State’s own wounded and sick, priority between wounded persons being determined solely by considerations of medical need and not by nationality, allegiance, or status.
Medical transports, hospitals, and dressing stations used by the enemy’s armed forces are not to be attacked a protection extended to civilian medical facilities by the Fourth Convention and Additional Protocol I unless they forfeit their protection in one of the ways set out in the Convention. Even then, there is an obligation to issue a warning before attacking them, except in the case of medical aircraft. Such units should be marked with the protective emblems of the Geneva Conventions, the Red Cross or Red Crescent which there is a strict obligation to respect. Contrary to popular belief, these are not simply medical emblems which may be affixed to anything connected with the provision of medical services from a hospital ship to a school first aid box. The use of the emblems is restricted to the International Committee of the Red Cross, the medical services of the armed forces, and other medical bodies such as national Red Cross societies expressly authorized by the military authorities to use the emblems. Medical personnel are also entitled to protection, so long as they are not used to commit, outside their humanitarian duties, acts harmful to the enemy. Medical personnel are entitled to carry arms for their own defense and that of the wounded in their care. Reprisals against the wounded, sick, shipwrecked, or members of medical units are prohibited.
The modern law of armed conflict, since its birth on the field at Solferino, has been preoccupied by the fate of wounded, sick and shipwrecked combatants or other military personnel. The law of armed conflict, in particular Geneva Conventions I and II, contains a series of norms protecting these personnel and requiring belligerents to grant them assistance. The paramount duty with respect to the wounded, sick and shipwrecked is not to target injured personnel or engage in hostile action directed towards them: as soon as they are hors de combat, such persons may no longer be made the object of any attack or assault whatsoever. Further important duties require adverse belligerents to: (i) respect, (ii) protect and (iii) care for hors de combat wounded and/or sick and/or shipwrecked military personnel once they are under the control of that belligerent.
The requirement to ‘respect’ the hors de combat military personnel connotes the idea of abstention. Belligerents must not engage in hostile acts against such persons, which includes a requirement to abstain from threats, intimidation and harassment directed against those placed hors de combat. If the concept underlying the duty of respect could be summed up in one word, it is that wounded, sick and shipwrecked persons should be spared. The duty of ‘protection’ connotes an active preservation of the hors de combat personnel from evils and dangers. The requirement extends to dangers that are a result of the armed conflict and those that are the result of other external causes, such as illness or the elements. The wounded, sick and shipwrecked personnel should be sheltered and treated humanely.
Finally, the obligation to ‘care’ for the hors de combat personnel requires each belligerent to search for and collect the wounded and sick without discrimination based on nationality or on other irrelevant criteria, such as sex, religion or political opinions. Moreover, it requires the wounded and sick to be cared for medically, according to the practical possibilities and the material available. These fundamental duties are spelled out in Geneva Conventions I and II, the first of which applies to land warfare and the second of which relates to warfare at sea and thus includes provisions concerning the protection of the shipwrecked military personnel. These conventions do not cover injured and sick civilians, where Geneva Convention IV applies.
The most relevant provisions in Geneva Convention I are Article 12 and 15, which are extracted below: Art. 12. Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not willfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created. Only urgent medical reasons will authorize priority in the order of treatment to be administered. Women shall be treated with all consideration due to their sex. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care. Art. 15. At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled. Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield. Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area.
The position is recapitulated in Article 10 of Additional Protocol I, which is reproduced below:
Protection and care:
1. All the wounded, sick and shipwrecked, to whichever Party they belong shall be respected and protected.
2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones. Similar obligations apply to the parties in non-international armed conflict. These duties are set out, in a much more succinct and less detailed fashion, in Article 3 common to the Geneva Conventions and in Article 7 of Additional Protocol II. These provisions reduce the obligations contained in Geneva Conventions I and II to their minimum common core.
The duties of respect, protection and care primarily place obligations on the parties to the conflict. Every State must organize, either within its army, or complementary to its army, a medical service with the role of caring for wounded and sick combatants in case of armed conflict. This duty is not dependent on the existence of an armed conflict and is imposed on states in times of peace in order to ensure that there is no period of time during an armed conflict where such a service does not exist. The civilian population of a state has no direct duty of protection and care for enemy combatants. However, the civilian population has a duty to respectthe wounded, sick and shipwrecked, and this must be translated by the states into their municipal law, requiring that there shall be no attacks on the wounded or sick enemy combatants. Civilians who spontaneously care for wounded and sick enemy combatants shall not be liable to criminal prosecution for these acts. For example, such civilians shall not be prosecuted for treason. Of course, the authorities of the state, and in particular also the military authorities, can call upon the civilian population to collect and care for adverse combatants, appealing thus to their charity. However, they are under no law of armed conflict obligation to respond, but if they do they will be granted the necessary protection and facilities.
Once the wounded and sick are collected by the competent medical services of belligerent, information concerning the combatant must be gathered as soon as possible. Collected data should, if possible, include: designation of the state of origin of the combatant; army, regimental, personal or serial number; surname; first name or names; date of birth; any other particulars shown on his or her identity card or disc; date and place of capture and/or death; particulars concerning wounds or illness, or cause of death. Then, as soon as possible, the belligerent is obliged to forward this information to the Information Bureau for Prisoners of War, described in Geneva Convention III and operated by the International Committee of the Red Cross. The Information Bureau will transmit these particulars to the power of origin of the wounded or sick combatant, and in particular to his or her family.
During situations of armed conflict, it happens very often that the number of victims by far exceeds the amount that the ordinarily equipped medical service of the army can handle. For this reason, the law of armed conflict provides a four tier system in order to guarantee that adequate care can be given to the wounded and sick. First, as has been examined above, the primary duty to care for the wounded and sick, of whatever nationality, is placed upon the medical services of the army. Secondly, the National Red Cross Society of the belligerent, the medical service of which is overburdened, will be able to offer invaluable services in assistance of that medical service through its medical personnel, material and expertise. Thirdly, if the needs of the wounded and sick exceed the capacities of both the medical service of the belligerent and the National Red Cross Society of the belligerent, the International Committee of the Red Cross will request that National Red Cross Societies of neutral states render assistance to their under-resourced sister society within the territory stricken by the war. Hence, a series of Red Cross Societies will send medical personnel and material to the war zone. Thereby, they will increase considerably numbers of personnel and equipment able to assist the wounded and sick. This practice began during the Franco-Prussian War of 1870, and has been a feature of subsequent armed conflicts. Finally, the International Committee of the Red Cross itself may organize some help, for example by sending medical material or qualified personnel to locations where there is a shortage. In the past, during the Yom Kippur War in 1973 and during the Indo-Pakistani War of 1971, the International Committee of the Red Cross has hired aircraft in order to transport material to places where it is desperately needed.
To summarize, the four tiers of aid for the wounded and sick are thus:
a) The medical services of the army of the belligerent and any civilian medical services controlled by the belligerent;
b) The medical services of the National Red Cross Society of the territory of the belligerent;
c) the medical services of National Red Cross Societies from neutral states that offer their assistance, often at the request of the ICRC; and
d) The medical services of the ICRC.
The International Committee of the Red Cross plays a crucial role in protection the sick and wounded in an armed conflict. Though it plays a vital and important role at the time of armed conflict, it has got no proper authority to address the issue or compel the warring states to follow the conventions. The role played by International Committee of the Red Cross is very vast, a few important provisions of the Geneva Convention and the other related one and their compilation by the International Committee of the Red Cross will be discussed below
The cardinal rule that governs the provision of care to the wounded, sick and shipwrecked is that of non-discrimination. When deciding which wounded or sick combatant should be treated first, only medical factors, particularly the urgency of the need for treatment, may be taken into account. Thus, a heavily injured person should be treated in priority to a person with lesser injuries; a combatant who is at risk of death due to his or her injuries must receive priority over those with wounds that are not life-threatening; and so on. Conversely, it is accepted that adverse distinction on the basis of nationality, sex, race, religion, political opinion or similar criteria is prohibited. The cardinal rule remains that assistance and care must be provided equally, with distinction between the wounded and sick made only on the basis of urgency and need. It is clear that the duty of non-discrimination requires that the soldiers owing allegiance to the power of origin of the treating medical service or to the ‘enemy’ power the must be treated equally. It may not always be easy to live up to this duty in practice, since it may mean that adverse soldiers have to be treated in priority to soldiers from the country of the treating medical personnel. However, the duty is taken exceptionally seriously by members of a medical service, and may be seen as a reflection of the requirements imposed on them by medical ethics.
Moreover, the requirement to make decisions on the basis of clinical need makes clear that material assistance given by, for example, the International Committee of the Red Cross need not be distributed in arithmetically equal parts to all participants in the conflict. Whilst the quality of medical supplies supplied should be the same, it would be absurd to provide the same quantity of material to both a party with a well equipped medical service who is not in need of supplies and to a party whose medical service is badly equipped, with an urgent requirement for more provisions. However, it may be politically difficult to persuade the parties to the conflict to accept such ‘distinctive’ treatment. Thus, during the Spanish Civil War, medical and humanitarian aid was distributed on the basis of strict equality, even if the needs were unequal.
Medical personnel have to operate in and be, along with their material, transported to, positions near to the front line of an armed conflict, possibly even inside the combat zone, as many of the wounded and sick suffer injuries that would not withstand transport to a place of greater safety. In order to protect these medical personnel and their material they are granted immunity from attack, with the belligerents placed under an affirmative duty not to make ‘fixed establishments and mobile medical units’ the object of attack. In order to ensure that the personnel and material entitled to protection from attack can be distinguished by the adverse belligerent, they must be visibly marked as a medical unit. To this effect, and in order to ensure uniformity amongst the medical services of state parties, a particular protective emblem was specified in Geneva Conventions I and II. It is the heraldic emblem of the red cross on white ground, or the red crescent on white ground. A new protective emblem was added to those which may be worn by medical services by Additional Protocol III to the Geneva Conventions. It is composed of a red frame in the shape of a square on edge on a white ground.
In armed conflicts at sea, covered by Geneva Convention II, special protection is granted to hospital ships. These ships are devoted to the collection and provision of care to wounded, sick and shipwrecked military personnel. The key provision with respect to these ships is Article 22 of Geneva Convention II, which reads as follows: Military hospital ships, that is to say, ships built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.
The notification that is required by article 22 before protection is granted to hospital ships may be effected either by direct contact between the belligerent parties or through the channels of the protecting power or the International Committee of the Red Cross. In order that the belligerents can satisfy themselves that the privileged status granted to hospital ships is not being abused, the warships of a belligerent can search adverse hospital ships and may exercise a control over matters such as the course taken by the hospital ship or its ability to communicate with other ships. If the privileged status of the hospital ship is abused for the purposes of hostile action, the ship may be captured as a prize, once an order to stop the hostile action has been given and a reasonable time for compliance has lapsed. The best method of guaranteeing proper use of such ships is to place a neutral observer aboard the hospital ship. Such an observer may be sourced through the protecting power or may even be sent by the International Committee of the Red Cross. Neutral states may offer hospital ships to the belligerents. In such cases, the hospital ship must be put under the command of a belligerent and be notified to opposing belligerents to benefit from protection under Geneva Convention II. Such ships will then fly the flags of both their state of origin and the belligerent with whom they are affiliated. By requiring that a ship be placed under the control of a belligerent, these provisions aim to ensure that neutrally flagged hospital ships will not hamper in any way military operations at sea, and thus put themselves in danger. The drafters of Geneva Convention II felt that only the ‘incorporation’ of neutrally flagged hospital ships within the forces of a belligerent was sufficient to guarantee the avoidance of such a danger. Whilst other entities may also charter ships to undertake philanthropic missions, devoted to the provision of care and help to the wounded, sick and shipwrecked of the armed conflict, unless the provisions of Article 25 of Geneva Convention II are complied with such ships will not be hospital ships able to avail themselves of the protection granted to such ships under Geneva Convention II. However, this does not mean that such ships are without protection. As civilian objects these ships are not liable to attack or seizure. This point is emphasized in Hague Convention XI, which codifies certain customary law restrictions on the right of capture in naval warfare, and states in Article 4 that, ‘vessels charged with religious, scientific, or philanthropic missions are exempt from capture’.
From past many decades the International Committee of the Red Cross has dominated the field of service in serving the wounded and sick, though not expecting any returns from the states at war. Many situations have arisen where certain states have not allowed the International Committee of the Red Cross to enter their territory and to provide medical care and other assistance to the wounded and sick including combatants and non combatants. The committee with its determination and dedication at the time of war where maximum bloodshed will happen and majority feel to flee away to safer places has sent its volunteers and staff t assist the needy ones. Today there is no place on this earth where we cannot see the International Committee of the Red Cross personnel or volunteers helping and aiding the most needed one not only at the times of war but also at the time of natural disaster.
About the Author
SMT. JAYASHREE M
Department of Studies in Law,
University of Mysore, Karnataka
Dr. T.R. MARUTHI
Senior Assistant Professor,
Department of Studies in Law,
University of Mysore, Karnataka