Chapter 8: Protection of the Wounded and Sick

1. Chapter 8: Protection of the Wounded and Sick

2. GWS Applicability • In IACs, only “protected person”hors de combat are covered by the GWS • “Protected persons” include members of regular armed forces (whether or not fighting for a recognized nation), members of militias that are organized in a similar manner to a regular army, and members of a levee en masse • GWS does not protect civilians – they are protected by Common Article 3 and the 4th Convention • Certain offenses against protected persons constitute grave breaches of GWS

3. Organization of Irregular Forces • For non-regular forces to be protected by GWS, they must be organized as a regular army: • Commanded by a person responsible for his subordinates • Have a fixed and recognizable insignia which can be recognized at a distance • Carry arms openly • Conduct operations in accordance with the laws and customs of war • Members of a levee en masse need only abide by the last two elements to receive GWS protection

4. Obligations – Respect & Protect • Respect: must not harm the wounded & sick • Protect: must defend the wounded & sick • The CA3 humane treatment standard is repeated in GWS • No reprisals against personnel or property • No adverse distinctions may be made • Provide medical care (based on triage principles) and shelter • Tie-ins with the 3rd Convention related to the treatment of POWs

5. Order of Care - Triage • Priority of medical care must be made solely on medical factors • A commander who orders his own men to always be treated before captured enemies has committed a war crime • Military and political considerations can play no role in triage • Doctors must determine how best to allocate scarce medical resources, considering only their medical ethics and expert knowledge

6. Casualties • Parties are required to search for and collect the wounded, sick, and dead • A Party must collect both friendly and enemy casualties • Feasibility – a commander need not force his troops to engage in unnecessary risk in searching or collection • Parties must examine each body to identify the dead • Forwarded to ICRC Information Bureau to be turned over to the Party which represents the casualty

7. Casualties • Requires even civilians to treat the wounded, sick, and dead with same respect that military care-providers must • Civilians may spontaneously volunteer to help with the wounded & sick • Article 12 is the only part of GWS that applies to civilian conduct • Adverse parties who take control of an area must continue to provide for any wounded or sick left behind

8. The Distinctive Emblem • The distinctive emblem marks a person, place, or thing as humanitarian in nature and protects it from attack by an adverse Party • Red Cross • Red Lion and Sun (formerly Persia) • Red Crescent (Muslin nations) • Red Crystal (Israel under AP III)

9. The Distinctive Emblem • Wearing the distinctive emblem entitles most personnel to retained person (RP) status • People or equipment bearing a distinctive emblem may not be targeted by intentional attack on the battlefield • Medical equipment may never be destroyed if abandoned – it must be left intact

10. The Distinctive Emblem • Misuse of a distinctive emblem is a breach of the Geneva Conventions • Only people, places, or equipment exclusively engaged in the amelioration of suffering of the wounded & sick may legally display a distinctive emblem

11. Exclusive Engagement • A person, vehicle, or facility must be exclusively engaged in humanitarian action when displaying a distinctive emblem • If a marked vehicle is to be used in a non-exclusive function, the emblem must be removed while that function is being performed • I.E. a truck takes ammunition to the front lines and carries the wounded back • All efforts must be made to prevent erosion in the confidence of the emblem – the result would be to invite attack on otherwise protected assets

12. Protection • Contingent on: • Wearing the distinctive emblem • Not acting in a manner that abrogates protection • Cannot be intentionally targeted • May carry light weapons but cannot carry heavy weapons • Can only fire light weapons in personal defense and to protect the wounded & sick under their care from marauders or LOAC violators

13. Protected Medical Personnel • Exclusively-engaged/permanent personnel • Always protected – cannot be made the lawful target of attack unless protection is abrogated • Entitled to RP status if captured • Military medical personnel • Chaplains • Staff of national volunteer aid organizations (i.e. the American Red Cross, the Pakistani Red Crescent Society) which are recognized and authorized by their governments • Must be repatriated; cannot be detained • Members of relief societies from neutral countries

14. Protected Medical Personnel • Auxiliary medical support personnel • Primarily perform non-medical duties and take up medical duties as the need arises • Only entitled to protection when engaged in their medical capacity • Never entitled to RP status – if captured, they are POWs • Heightened protection when performing medical duties but not entitled to repatriation

15. Retained Personnel • Retained to provide medical or spiritual care for captured enemy personnel • Must be repatriated in the chronological order of capture if there is no further need to retain them • May not be forced to perform work outside their medical or religious duties • Must have access to POWs and detainment authorities • Compare to POWs, who: (1) may be detained until the conflict ends to prevent them from returning to hostilities; and (2) may be forced to work

16. Captured Medical Facilities • Mobile medical units, if not returned, must be used to care for the wounded & sick • Fixed medical units must be used for care so long as a need exists • Any wounded & sick in a captured asset must be cared for

17. Captured Medical Vehicles • Medical vehicles have the same protection as a facility • Temporary medical vehicles must be fixed with an emblem while on a medical mission to be protected • Captured vehicles are “booty of war” and can be used for any purpose, but the emblem must be removed if not put to medical use

18. Medical Aircraft • Must land and submit to inspection if ordered to do so • Parties to a conflict should share the routes and times of scheduled medical aircraft flights to provide notice • No notice = the aircraft flies at its own risk • A medical aircraft cannot divert from its medical mission to search for enemies – if so, it loses its protection

19. Abrogation of Protection • Medical facilities which commit “acts harmful to the enemy” may lose their protected status • However, an attacker must warn the facility to correct its action before an attack can be made • Certain situations may waive the warning requirement, i.e. personnel taking fire from a medical facility may be able to return fire without first warning that they will do so • While few actions cause abrogation, commanders should be mindful not to place offensive equipment (lawful targets) near medical facilities; doing so in order to protect the military equipment is a breach of the GWS

20. Non-International Armed Conflicts • Common Article 3 requires humane treatment of wounded, sick, hors de combat, and noncombatants in all armed conflicts • Prevents any adverse distinction based on factors like race, sex, or nationality, and prohibits the torture or murder of hors de combat • Designed to protect revolutionaries and dissidents from the harshest punishments

21. Collection Requirement • Both Common Article 3 and the specific provisions of GWS require the collection of the wounded and dead following the end of combat activity • This is tempered by the military necessity doctrine • However, Geneva Convention protections cannot be waived by protected persons

22. The Wounded & Sick • No explicit definition – use common sense • Broadly includes all members of armed forces rendered hors de combat by wounds or sickness • Anyone capable of continuing military action is not an hors de combat • No protection is given to wounded soldiers that choose to carry on fighting despite their wounds – they are not hors de combat if still engaging in hostilities • A former combatant falling under the term “wounded & sick” is rendered into a “protected person” and protected by GWS

23. Violations • Simple breach: any breach that is not a grave breach • I.E. mistreatment of the dead, misuse of a distinctive emblem • Grave breach: certain acts against protected persons • Willful killing, torture, or inhuman treatment • Willfully causing great suffering or serious bodily injury

24. Grave Breaches • All Parties must search for those who committed or ordered grave breaches • All Parties must either criminally charge grave breach offenders or turn the offender over to another Party who has made a prima facie case of grave breach

25. GWS and Additional Protocol II • Additional protections beyond CA 3 for hors de combat in NIACs • Conduct in NIACs, traditionally less regulated out of respect for the Westphalian system, now is held to a standard closer to GWS • Medical personnel may not be punished for treating wounded & sick or for refusing to disclose information regarding the wounded & sick they cared for • Designed to protect doctors who treated injured members of dissident groups

28. Questions?