Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 24 : Protection of permanent personnel
Text of the provision
Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances.
Reservations or declarations
None
Contents

A. Introduction
1947  Article 24 deals with the official medical and religious personnel of the armed forces, i.e. those members of the armed forces who have been assigned exclusively and permanently to certain duties of a medical or religious nature. It delineates which persons are covered by the protection it confers, what that protection entails and under what conditions they may benefit from that protection.
1948  Persons covered by Article 24 are protected because of the functions they perform: attending to the wounded and sick or meeting the spiritual needs of members of the armed forces. Thus, from the perspective of alleviating human suffering in armed conflict, Article 24 is of paramount importance: when military medical personnel are unable to assist the wounded and sick – because they are attacked or otherwise prevented from carrying out their work – the adverse consequences may be wide-ranging.[1] In the spiritual realm, the same holds true for the religious personnel of the armed forces.
1949  The symbiotic and functional nature of the relationship between medical and religious personnel and the persons they attend to informs the protection due when such personnel fall into enemy hands: they do not become prisoners of war – and may not be ‘detained’ as such – but fall under a specific ‘retention’ regime, whereby they can be ‘retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require’.[2]
1950  One of the distinctive features of Article 24 is that the High Contracting Parties have agreed to confer specific protection on certain members of the enemy’s armed forces, even when they are not in their hands. As can be deduced from the terms of Article 24, medical and religious personnel are entitled to be ‘respected and protected in all circumstances’; this protection also applies, and indeed is acutely needed, during active hostilities.
1951  Persons covered by Article 24 are one of the categories of persons protected under the First Convention.[3] With regard to their identification, see Article 40.
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B. Historical background
1952  The obligation to ‘respect and protect’ the medical and religious personnel of the enemy’s armed forces is a longstanding rule of international humanitarian law. The essence of this rule already appeared in the first Geneva Convention of 1864.[4] Largely similar provisions can be found in the Geneva Conventions of 1906[5] and 1929.[6] It eventually crystallized as Article 24 of the First Convention of 1949. The substance of Article 24 also belongs to customary international law.[7]
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C. The three categories of persons covered
1. Medical personnel engaged in the search, collection, transport or treatment of the wounded or sick, or in the prevention of disease
1953  The Convention defines the first category of persons covered by Article 24 by reference to the types of activities performed: the ‘search for’, ‘collection’, ‘transport’ or ‘treatment’ of the ‘wounded or sick’ or the ‘prevention of disease’. Therefore, the first criterion for determining if members of the armed forces fall under this category is whether they perform one or more of the activities listed.
1954  Provided all the conditions of Article 24 are fulfilled, a person can be covered by this provision without belonging, in terms of internal administrative structure, to the medical service of the armed forces.[8] Conversely, being a member of the armed forces’ medical service, or being involved in activities which professionals involved in ‘military medicine’ consider covered by that discipline, does not automatically mean a person is engaged in one or more of the activities protected by Article 24. For example, members of the armed forces’ medical service who deal both permanently and exclusively with training activities seeking to enhance the combat-related performance of able-bodied combatants are not protected under Article 24. Similarly, psychologists involved in, for example, the design of detainee interrogation techniques or in the selection of combatants who are psychologically apt to undertake certain missions are not covered by Article 24. However, ‘prevention of disease’ is included in the list of protected activities, and this activity may very well be undertaken for the benefit of all members of the armed forces (see para. 1957).
1955  Persons who perform the activities of search for, collection or transport of the wounded or sick may include, for example, hospital orderlies, nurses, auxiliary stretcher-bearers, ambulance drivers and pilots of medical aircraft. It should be noted that ‘hospital orderlies, nurses or auxiliary stretcher-bearers’ also come within the scope of application of Article 25, in which provision they constitute the only persons covered. However, their activities can equally be covered by Article 24, provided they meet all the prescribed conditions. Once they do, the regime of Article 24 applies. This has significant implications in terms of their status if they fall into enemy hands.[9]
1956  The phrase ‘treatment of the wounded or sick’ encompasses the entire spectrum of medical activities performed by medical doctors, both general practitioners and specialists, as well as by surgeons, dentists, pharmacists, nurses, and staff operating medical equipment or devices. ‘Treatment’ can be both physical and psychological. It covers diagnostic activities, first-aid treatment[10] and rehabilitation, including physiotherapy. With regard to rehabilitation – which may last for a long time and take place far from the battlefield – it is immaterial that it could result in the person regaining the ability to return to combat duty; the medical personnel involved are nonetheless protected under Article 24. This holds true more generally for all activities protected on the basis of this provision, even if they might lead to persons regaining their ability to fight.
1957  The activities of search for, collection, transport and treatment are to be undertaken for the benefit of the wounded and sick. Within the context of the First Convention, the concept of ‘wounded and sick’ has to be understood in its technical sense, i.e. as referring to the wounded and sick belonging to the categories identified in Articles 12 and 13 of the Convention. However, the fact that the medical personnel extend their activities to wounded and sick civilians does not deprive them of their entitlement to be respected and protected.[11]
1958  In 1949, ‘prevention of disease’ was added to the list of protected activities. The result is that Article 24 is not limited to curative medicine. By its nature, the prevention of disease can be undertaken for the benefit of all members of the armed forces, i.e. not only for the wounded and sick but also for able-bodied combatants. ‘Prevention of disease’ includes hygienic and prophylactic measures (for example delousing or the disinfection of the water supply; some of these activities may be undertaken by veterinarians, see para. 1958), administration of vaccines, disinfection of barracks, and training in the prevention of sexually transmitted diseases. The activities of psychologists involved in the prevention of trauma, such as combat-related stress and mental disorders, can also fall within the term ‘prevention of disease’, as well as of the term ‘treatment’ once the trauma is present.
1959  The activities of veterinarians – even when they are members of the armed forces’ medical service – will, in principle, fall outside those listed in Article 24, particularly when they exclusively involve animal health care.[12] Indeed, a veterinarian who, as a member of the armed forces, takes care of animals that are deployed to assist combat activities would, for example, be deemed a combatant. Historically, this has been the dominant paradigm. However, when a veterinarian engages exclusively in the protected activity of ‘prevention of disease’ vis-à-vis human beings, for example when inspecting the hygiene of food supplies for able-bodied combatants, as more and more veterinarians who are members of the armed forces do, this person qualifies to be ‘respected and protected’ in the sense of Article 24.
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2. Staff engaged in the administration of medical units and establishments
1960  Protection is not only accorded to those in direct contact with the wounded and sick. It is also accorded to members of the armed forces whose work is necessary for the functioning of the medical units and establishments in which the wounded and sick are treated. These members of the armed forces may, but need not, be part of the armed forces’ medical service. Provided they are serving exclusively in support of medical units, for example the procurement of medical supplies or other administrative functions, or, for example, as cooks or cleaners, they fulfil the conditions for protection under Article 24.
1961  As can be deduced from the words ‘of medical units and establishments’, the protection accorded to administrative staff on the basis of Article 24 does not extend to those providing administrative support to religious personnel (dealt with below). Based on humanitarian considerations, it can only be hoped that, as long as they are exclusively engaged in such tasks, they will nevertheless be treated as being protected.
1962  The notion of ‘medical units and establishments’ has to be understood in the technical sense of Article 19 of the First Convention. Staff engaged in similar activities for civilian hospitals may be covered by Article 20 of the Fourth Convention.
1963  Of note in this context is Article 8(c) of Additional Protocol I, which has adopted in this respect a wider scope than Article 24 of the First Convention. This provision includes, within the definition of ‘medical personnel’ in the sense of the Protocol, those assigned exclusively not only to ‘the administration of medical units’ but also to ‘the operation or administration of medical transports’. This could be the case, for example, for a member of the armed forces exclusively assigned to the maintenance of medical aircraft.[13]
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3. Religious personnel attached to the armed forces
1964  By virtue of Article 24, ‘chaplains attached to the armed forces’ are entitled to the same protection as the two categories of medical personnel described above. As with those two categories, Article 24 only deals with members of the armed forces who are permanently and exclusively assigned to meeting the spiritual needs of the armed forces as a whole.[14] Members of the armed forces who have prior qualifications in this field without having been exclusively assigned to perform religious duties are not covered by Article 24. They are combatants, and if they fall into enemy hands, will be prisoners of war.[15]
1965  Article 24 only applies to persons who are members of the armed forces and who serve in religious functions. By contrast, Article 8(d) of Additional Protocol I defines ‘religious personnel’ more broadly to include civilian religious personnel.[16] See, moreover, the additional possibility created by Article 8(d) and (k) of the Protocol of having religious personnel assigned on a temporary basis.
1966  The scope of beneficiaries for whom ‘chaplains attached to the armed forces’ may exercise their services is different to that of the two categories of medical personnel referred to above. While military medical personnel may only work for the benefit of the wounded or sick (except when they are engaged in the ‘prevention of disease’), religious personnel may extend their activities to the armed forces as a whole, be they wounded, sick or able-bodied.[17]
1967  The term ‘chaplains’ as used in this provision is dated. The notion is not confined to religious personnel of the Christian faith, who are but one example of religious personnel.[18] Therefore, as a practical matter, the reference to ‘chaplains attached to the armed forces’ should be understood as referring to all religious personnel attached to the armed forces.
1968  The Geneva Conventions do not provide any criteria for who qualifies as ‘religious’ personnel. It is left to the discretion of each High Contracting Party to designate such personnel as it sees fit. The reference to ‘religious’ does not presuppose the traditional understanding of the term. Some High Contracting Parties have appointed humanist, non-confessional counsellors,[19] who are equally protected by Article 24.[20]
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D. Conditions for coverage by Article 24
1969  While Article 24 does not explicitly state it, only members of the armed forces of a Party to a conflict fall within its scope of application.[21] While they are members of the armed forces, persons covered by Article 24 are not combatants.[22]
1970  When it comes to a State’s regular armed forces, Article 24 has a broad scope of application. Provided its requirements are met, it can cover medical and/or religious personnel of all branches of a State’s armed forces (army, navy, air force or other), regardless of the terminology actually used and where they are deployed. Thus, medical personnel on board a medical aircraft will be covered by Article 24.
1971  For the purposes of Article 24, the term ‘armed forces’ does not need to be understood as being confined to the regular armed forces of a Party to the conflict. All groups referred to in Article 13(1)–(3) of the First Convention are entitled to assign some of their members to the functions described in Article 24.[23] While not explicit in Article 24, this interpretation is justified for two reasons. First, members of these groups are among the persons who can qualify as ‘wounded and sick’ in the sense of Article 13. Thus, the functional nature of the protection accorded to medical and religious personnel entails that – for humanitarian reasons – these groups be able to resort to the services of those personnel. Second, when they fall into enemy hands, members of the groups covered by Article 13(1)–(3) are entitled to prisoner-of-war status. Therefore, the medical and religious personnel of all groups referred to in Article 13(1)–(3) of the First Convention deserve protection equal to that of similar personnel of the regular armed forces of a Party to the conflict.
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1. Assignment to medical or religious duties
1972  Article 24 requires that the persons covered by this provision be ‘engaged in’ a given range of activities. The equally authentic French text requires them to be ‘affecté à’ (‘assigned to’) such activities. The difference is not just semantic: one can be ‘engaged in’ a given activity without having been ‘assigned to’ it. Over time, it has come to be widely understood that the requirement is one of ‘assignment’: mere ‘engagement’ in certain activities does not suffice as such. Article 8(c) of Additional Protocol I reflects this understanding: for all categories of ‘medical personnel’ there is a requirement to be exclusively ‘assigned, by a Party to the conflict’ to medical or religious duties.
1973  The requirement of ‘assignment’ means that members of the armed forces can only fall within the scope of application of this provision if they have been assigned – by the authority on whom they depend – to one or more of the medical activities (exhaustively referred to in Article 24) and/or to the functions of religious personnel attached to the armed forces. Article 24 defers the practical details of this assignment (who takes the decision, in what form, etc.) to the domestic level. In all cases, the essential requirement is that the person assigned is subject to the control of that authority. This is important in view of the other aspects of the law applicable to them, such as the ‘retention’ regime and the rules regarding the wearing of the distinctive emblem.[24]
1974  Members of the armed forces cannot assign themselves to the medical or religious service.[25] Training or special qualifications, for example as a surgeon or priest, do not do away with the need to be assigned to those functions by the relevant authorities. Members of the armed forces who have specific qualifications in the medical or religious field but who have not been assigned to the functions described in Article 24 remain combatants and are not covered by this provision.[26] Similarly, combatants who have not been ‘assigned’ in the sense of Article 24 but who, on their own initiative, care for fellow combatants who are wounded or sick are not entitled to the protection of Article 24. While this holds true as a matter of law, it is hoped that the enemy – prompted by humanitarian considerations – will nevertheless refrain from attacking combatants while engaged in such activities.
1975  The Geneva Conventions do not specify the level of medical training or other qualifications which members of the armed forces must have in order to be eligible to be ‘assigned’ as medical personnel. The same is true for religious personnel. Yet, in line with the obligation to implement all treaty obligations in good faith, the assignment must be genuine, i.e. the person needs to have the required degree and/or qualifications.
1976  The requirement that a person be ‘assigned’ by the competent domestic authorities does not imply that those covered by Article 24 necessarily become part of the military chain of command or carry military rank, nor that they would be subject to the military justice system. The Geneva Conventions leave that choice to each High Contracting Party. Thus, a High Contracting Party can decide how to organize its armed forces’ medical and religious services. The same applies to whether or not these persons wear the uniform of the armed forces and, if so, whether the uniform is identical to that worn by combatants.[27]
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2. The exclusive nature of the assignment
1977  The assignment to the activities referred to in Article 24 needs to be ‘exclusive’. While a narrow reading of the provision would seem to suggest that the requirement of ‘exclusivity’ only applies to medical personnel, logic dictates that this requirement applies to all three categories of personnel covered by Article 24.
1978  The importance of this requirement is significant. It entails that, once assigned, a person can only undertake one or more of the prescribed activities. As indicated by the words ‘one or more’, a person may be assigned, for example, to both the treatment of the wounded and sick and the prevention of disease. Conversely, the assignment cannot cover activities that are not mentioned in Article 24. An activity not listed in Article 24 may even, depending on the circumstances, amount to an ‘act harmful to the enemy outside their humanitarian duties’ which could entail a loss of protection (see section F).
1979  Once a member of the armed forces has been assigned on an exclusive basis to one or more of the activities explicitly referred to in Article 24, the entitlement to be ‘respected and protected’ exists regardless of whether or not the person is actually carrying out those activities at any given time. The protection conferred by Article 24 (and by the related ‘retention’ regime) is status-based, i.e. based on the permanent and exclusive nature of the assignment. This feature distinguishes Article 24 from Article 25 on auxiliary medical personnel; the latter is conduct-based, i.e. it only grants protection when medical activities are actually being carried out.
1980  In the logic of Article 24, as it was understood in 1949, the exclusivity of the assignment implies that it has to be not only of an exclusive but also of a permanent nature. As regards the interpretation of the term ‘permanent’, no definition exists in the Geneva Conventions. For the purposes of Additional Protocol I, Article 8(k) thereof refers to ‘an indeterminate period’ in order to delineate the concept of ‘permanent’. While Article 24 does not mention the concept of ‘permanent’, it has traditionally been read into this provision by contrasting this Article with the logic of Article 25.[28]
1981  Article 24 is silent as to the way in which persons covered by this provision need to exercise the activities referred to. In this respect, Article 12 is of paramount importance, including its paragraph 3, whereby ‘only urgent medical reasons will authorize priority in the order of treatment to be administered’. This may require treating the wounded and sick of the adverse Party first. Of further importance are the rules of international humanitarian law dealing with medical ethics.[29]
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E. The obligation to respect and protect in all circumstances
1982  The obligation to ‘respect and protect’ is a term of art that appears frequently in the Geneva Conventions and their Additional Protocols. It was first introduced in treaty law in the 1906 Geneva Convention, replacing earlier terms such as ‘immunity’, ‘inviolability’ and ‘neutrality’. While those terms may still be used to describe the status of persons covered by Article 24, they are no longer used in contemporary treaties.
1983  The requirement to respect and protect ‘in all circumstances’ implies that the obligation is not subject to a yardstick of feasibility. It can only be deviated from if the behaviour of the person in question amounts to an ‘act harmful to the enemy outside [his or her] humanitarian duties’ (see below). Thus, operational reasons or military necessity do not, as such, create any ground to deviate from the obligation to respect and protect.
1984  The requirement to respect and protect triggers obligations of a dual nature. First, to ‘respect’ implies a series of obligations of a negative nature, i.e. to refrain from engaging in certain types of behaviour, such as attacks, vis-à-vis the protected persons. Second, to ‘protect’ implies a series of obligations of a positive nature, i.e. to take certain steps to the benefit of those persons, such as reacting against third parties seeking to interfere with their ability to carry out their work.
1985  The multi-faceted nature of what it means to ‘respect and protect’ cannot be reduced to a checklist of measures to take or actions from which to abstain. Furthermore, it is frequently impossible to clearly separate the obligation to ‘respect’ from the obligation to ‘protect’. The same behaviour may reflect an expression of both obligations. The following paragraphs, therefore, merely serve to highlight, by way of example, some of the dimensions inherent in the practical implementation of the requirement to ‘respect and protect in all circumstances’. Depending on the circumstances, additional steps may be required in order to come to a meaningful implementation of this obligation. Conversely, some of the steps outlined in what follows may be irrelevant in certain situations.
1986  The obligation to ‘respect’ and the obligation to ‘protect’ both apply in two different types of relationships. First, they apply in the relationship between a Party to the conflict and the medical and religious personnel of the enemy’s armed forces. Second, they apply in the relationship between a High Contracting Party and the medical and religious personnel of its own armed forces. The latter dimension may be particularly relevant when it comes to the duty to ‘protect’.
1987  At a minimum, ‘respect’ requires compliance with the duties of abstention, such as not to attack medical and religious personnel (be it directly, indiscriminately or in violation of the principle of proportionality),[30] kill them if they fall into one’s hands, or ill-treat, harm in any way, injure, kidnap, threaten, intimidate, physically assault, or subject them to arbitrary arrest.[31] Respect for the legal framework protecting the medical ethics under which they operate is also required. In this regard, Article 16 of Additional Protocol I contains the rule that i.e. medical personnel may not be forced to act contrary to the applicable ethics. Thus, for example, medical personnel are not to be harassed or threatened with punishment in order to obtain information about the wounded and sick they may have treated.[32]
1988  Furthermore, medical and religious personnel may not be made to renounce the rights secured to them by the applicable law.[33]
1989  For all of the foregoing acts, the mere threat of such action is equally unlawful, even if the threat is not carried out. Thus, for example, it is prohibited to threaten to attack medical personnel in order to discourage them from carrying out their work.[34] The obligation to ‘respect’ applies both to the State and to its organs, each of which may bear responsibility under applicable international law, be it State responsibility or individual criminal or disciplinary responsibility. Lastly, the fact that persons covered by Article 24 may be retained only under certain conditions (see Articles 28 and 30) can be seen as flowing directly from the requirement to ‘respect’ them ‘in all circumstances’.
1990  It should be kept in mind that medical and religious personnel are required to wear the distinctive emblem.[35] Under the ICC Statute it is a war crime in both international and non-international armed conflict to ‘intentionally direc[t] attacks against … personnel using the distinctive emblem of the Geneva Conventions in conformity with international law’.[36] Similarly, the obligation to respect will be violated if the personnel are made the object of belligerent reprisals.[37] In this context, it bears recalling that persons covered by Article 24 are persons protected under the First Convention. Therefore, the acts listed in Article 50 of the First Convention, if committed against them, may qualify as grave breaches of the Convention.
1991  The obligation to ‘protect’ medical and religious personnel entails, at a minimum, an obligation to take steps to ensure that they can carry out their work and to refrain from unduly interfering with their work, such as by arresting them simply for performing their assigned duties.[38] As with the obligation to ‘respect’, the obligation to ‘protect’ applies both to the State and to its organs, each of which may bear responsibility under applicable international law, i.e. be it State responsibility or individual criminal or disciplinary responsibility. The overarching objective of the obligation to protect is to ensure that the persons entitled to such treatment can reach those in need – that is, in the case of medical personnel, the wounded and sick.
1992  Depending on the circumstances, the obligation to ‘protect’ may equally entail an obligation to ‘ensure respect’ by third parties. This may be relevant where looters or marauders seek to interfere with the ability of medical or religious personnel to carry out their work. In such cases, practical steps must be taken to put a stop to the interference. In short, one needs to come to the defence, assistance or rescue of medical and religious personnel.
1993  Without prejudice to the absolute nature of both the obligation to ‘respect’ and the obligation to ‘protect’, it must be acknowledged that the practical implementation of the obligation to allow them to fulfil their medical duties may, in some circumstances, have to be temporarily delayed for reasons of military necessity.[39] In this regard, the obligation to ‘respect’ is different from the obligation to ‘protect’ because it suffers no exception whatsoever, not even in case of urgent military necessity.
1994  The phrase ‘in all circumstances’ serves not only to underscore the stringent nature of the substantive obligation contained in Article 24, but also to highlight that it applies at all times and in all places, both on the battlefield and behind the lines, and whether the medical or religious personnel are retained only temporarily by the enemy or for a lengthy period. Lastly, the phrase emphasizes the argument that the obligation exists for a Party to the armed conflict regardless of whether or not the enemy complies with it. The term ‘in all circumstances’ is without prejudice, however, to the possibility that the entitlement to be ‘respected and protected’ can be lost in certain specific and limited circumstances.
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F. Loss of protection: acts harmful to the enemy outside humanitarian duties
1995  Article 24 is silent on the question of whether or not the entitlement to be ‘respected and protected in all circumstances’ can be lost in certain circumstances. Despite this silence, the logic of the protective regime for medical and religious personnel entails that, under certain circumstances, protection can be lost. The reasons for this position are that on the basis of Article 24, the High Contracting Parties confer protection on certain members of the enemy armed forces. Such a privileged position comes with corresponding duties that preclude abuse of that protection. The repeated use of the word ‘exclusively’ in Article 24 underscores this point.
1996  The entitlement to be ‘respected and protected’ can be lost only if the persons in question commit an ‘act harmful to the enemy’ and if the commission of that act takes place ‘outside their humanitarian duties’. It bears emphasis that an ‘act harmful to the enemy outside their humanitarian duties’ is the sole legal criterion whereby the said entitlement can be lost. No other reasons, such as military necessity, may be invoked to justify the loss of protection.
1997  The criterion of ‘acts harmful to the enemy outside their humanitarian duties’ is also used in Article 21 of the First Convention, in connection with the loss of protection of fixed establishments and mobile medical units of the medical service.[40] Article 22 of the Convention provides, also in connection with those establishments and units, a non-exhaustive list of ‘conditions’ which may not be considered as leading to a loss of protection. While both provisions have been written from the perspective of the loss of protection of medical establishments and units, the same criteria should be applied mutatis mutandis to persons providing medical or religious services. Thus, for example, the fact that they carry ‘small arms and ammunition taken from the wounded and sick and [which are] not yet handed to the proper service’ and the fact that their ‘humanitarian activities … extend to the care of civilian wounded and sick’ cannot be considered as acts harmful to the enemy.[41]
1998  In practice, it is of critical importance to know what exactly amounts to an ‘act harmful to the enemy outside their humanitarian duties’. At the level of treaty law, outside the list of ‘conditions’ in Article 22, no definition exists and little work has been undertaken to clarify the notion. The absence of a treaty-based definition may lead to some uncertainty. Therefore, in view of the humanitarian values at stake, in case of doubt as to whether a particular type of behaviour qualifies as an act harmful to the enemy, it ought not to be considered as such.
1999  During the negotiation of the Geneva Conventions, the ICRC proposed the following definition of the term ‘acts harmful to the enemy’: ‘acts the purpose or the effect of which is to harm the adverse Party, by facilitating or impeding military operations’.[42] While this proposal was not incorporated into the text of the Conventions, it remains useful to gain a better understanding of the notion. The following examples were provided by the ICRC in the initial commentary, albeit in relation to objects: ‘the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack’.[43]
2000  As is clear from the words ‘purpose or effect’ in the ICRC proposal, the criterion of ‘acts harmful to the enemy’ is to be understood broadly: every form of behaviour – outside the humanitarian duties of medical or religious personnel – which harms the enemy may be considered as an act harmful to the enemy. Depending on the particular circumstances of the case, this criterion may be fulfilled in such cases where a person covered by Article 24 takes up arms against the enemy (other than in self-defence),[44] assists in the operation of a weapon system or in the planning of a military operation, or transmits intelligence of military value.[45] Another scenario which may amount to an act harmful to the enemy is when medical personnel help able-bodied combatants of their State to hide for a while in a hospital. Depending on the circumstances, and provided the constitutive requirements have been met, engaging in any of the foregoing may also qualify as prohibited perfidy and/or, separately, as an improper use of the distinctive emblem.[46]
2001  The phrase ‘outside their humanitarian duties’ makes clear that certain acts may fulfil the criterion of ‘acts harmful to the enemy’ without entailing a loss of protection.[47] As explained earlier, persons covered by Article 24 are entitled to carry out certain activities, such as disease prevention and provision of religious services, to the benefit of able-bodied combatants. Such activities fall within the humanitarian duties of medical and religious personnel, even if their effect may be harmful to the enemy. Hence, these activities do not lead to a loss of protection. Even if a particular act may be considered as an ‘act harmful to the enemy’, it will still not lead to a loss of protection if it was committed as part, or as a result of, the exercise of the said ‘humanitarian duties’. This nuance is important in that the work of medical and religious personnel may at times temporarily inconvenience military operations, for example when they perform their duties close to military operations or when the collection of the wounded and sick impedes the enemy’s advances. Provided they remain within the boundaries of the prescribed ‘humanitarian duties’, the acts in question do not lead to a loss of protection.
2002  The criterion of ‘acts harmful to the enemy outside their humanitarian duties’ bears some similarity to the criterion of ‘taking a direct part in the hostilities’. However, both notions are separate, have their own scope of applicability and engender different consequences. The criterion of ‘taking a direct part in the hostilities’ only applies to civilians and not to persons covered by Article 24. Thus, these notions are not to be conflated.[48]
2003  In terms of acts covered, the scope of application of the notion of ‘acts harmful to the enemy’ is broader than that of ‘direct participation in hostilities’.[49] Thus, every single act, if committed by civilians, which qualifies as ‘taking a direct part in hostilities’, will qualify as an ‘act harmful to the enemy outside their humanitarian duties’ if it is committed by a person entitled to respect and protection under Article 24. The opposite is not the case, however, as not every ‘act harmful to the enemy’ would constitute a ‘direct participation in hostilities’ if committed by a civilian.
2004  While the notion of ‘acts harmful to the enemy’ is broad, it is not open-ended. Frequently, medical personnel of the armed forces may be near combatants and travel in the same vehicles as them. The mere fact that medical personnel of the armed forces travel in the same vehicle as combatants, or that they may even be incorporated into a unit of combatants, must not be considered an ‘act harmful to the enemy outside their humanitarian duties’.[50] This very proximity may serve to facilitate access to the wounded and sick. However, the prohibition on using the presence of medical or religious personnel in an attempt to shield military objectives from attack needs to be respected.[51] Similarly, the mere fact that such personnel wear the uniform of the enemy armed forces cannot be considered, as such, to be an ‘act harmful to the enemy outside their humanitarian duties’.[52]
2005  In line with the conditions listed in Article 22(1), all medical and religious personnel of the armed forces can be equipped with light individual weapons without losing their protection.[53] It is the sole remit of the national authorities to decide whether or not such personnel are entitled to be armed.[54] If it is decided at the domestic level to authorize (or compel)[55] medical and religious personnel to carry permitted types of weapons, the mere fact of their being so armed cannot be considered an ‘act harmful to the enemy outside their humanitarian duties’. The weapons in question, however, can only be used for two specific purposes: for the persons’ ‘own defence’ or for the defence of the ‘wounded and sick in their charge’. Thus, even when the use of the weapons is defensive in nature, they may not be used for the defence of other persons, let alone for the defence of military objectives.[56] If this were allowed to occur, the line dividing medical and religious personnel from combatants would become all too easily blurred. Further, such personnel may not take up arms on their own initiative, for example for offensive purposes, or in a defensive military operation in which the ‘defensive’ element would go beyond the bounds of the two permitted purposes.[57] When they take up arms for offensive or for non-recognized defensive purposes, that action may be considered as an ‘act harmful to the enemy outside their humanitarian duties’, but in any case it will depend on the circumstances.
2006  The entitlement to use arms for the two permitted purposes – self-defence and defence of the wounded and sick – may result in these persons becoming actively engaged in the fighting, not only against marauders but also in situations that may resemble combat. Medical and religious personnel therefore need to be aware at all times of the potential danger inherent in using their weapons in self-defence and defence of the wounded and sick in their charge. Doing so too quickly – even when for permitted purposes – may engender widespread distrust of their position as persons protected under the First Convention.
2007  In practice, questions have arisen as to whether the assignment of medical and religious personnel to sentry or picket duty constitutes, in and of itself, an ‘act harmful to the enemy outside their humanitarian duties’. As this is a borderline case, it is recommended that commanders avoid assignment of medical and religious personnel to such duties in order not to compromise the protection of such personnel.[58] Whether persons assigned as sentries or pickets can be considered to be engaged in an ‘act harmful to the enemy outside their humanitarian duties’ depends on the circumstances. Of particular relevance is the nature of the facility which the person has been assigned to guard. If it is a military objective, such assignment (especially as picket, because it enables intelligence about advancing troops to be passed on, for example) could be considered an ‘act harmful to the enemy outside their humanitarian duties’. If it is a medical unit, however, the assignment ought not to be considered as an ‘act harmful to the enemy outside their humanitarian duties’. In this context, reference can be made to Article 22(2), which prohibits considering as an ‘act harmful to the enemy’ the fact that ‘in the absence of armed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort’. Thus, serving as sentry or picket for a medical unit does not lead, in and of itself, to a loss of protection.
2008  The consequences of medical or religious personnel committing an ‘act harmful to the enemy outside their humanitarian duties’ need to be measured in a nuanced way. On the battlefield, the commission of such an act will in any event lead to the loss of the entitlement to be ‘protected’. This means, for example, that the enemy can no longer be expected to facilitate that person’s work. That said, when it comes to the loss of the entitlement to be ‘respected’, the commission of an ‘act harmful to the enemy’ does not, in and of itself, mean that the person automatically becomes a lawful target. In practice, however, it is hard to conceive of circumstances in which it would not do so, i.e. generally, engaging in an act harmful to the enemy will lead to the loss of the entitlement to be protected. However, when this happens, the requirements of Article 21 apply above and beyond the general provisions of the law on the conduct of hostilities: ‘Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.’[59] Thus, in accordance with the conditions discussed in the commentary on Article 21, the person needs to be given an opportunity to cease the behaviour in question. At all times, medical and religious personnel of the armed forces need to be aware of the dangers inherent in committing acts harmful to the enemy. These may quickly taint other protected personnel, resulting in a weakening of the overall protection regime.
2009  If just one act harmful to the enemy has been committed, the loss of protection is arguably only temporary, i.e. the protection provided for in Article 24 is regained once that act has ceased to produce its effects.[60] In other words, the commission of a single act harmful to the enemy would not lead to a permanent loss of protection for that person for the remainder of the armed conflict.
2010  Independent of the battlefield status of medical or religious personnel who commit one or more acts harmful to the enemy, the question arises as to what happens to such persons when they fall into enemy hands. In particular, do they forfeit their entitlement to return on the basis of Article 30 or, if retained on the basis of Article 28, their entitlement to work only on medical or spiritual duties? If they have been instructed by their commander to conduct the act(s) in question, the assignment to medical duties has been withdrawn. Thus, they become combatants and are no longer entitled to display the distinctive emblem. Upon falling into enemy hands, they would become prisoners of war entitled to combatant immunity for the lawful acts committed after the initial instruction. However, if they were to commit one or more acts harmful to the enemy on their own initiative, there is no agreed rule settling the question.[61] In the case of a single act harmful to the enemy, one might argue that the status remains unchanged, and the provisions of Articles 28 and 30 would remain applicable. However, this logic may be harder to defend when that person has committed several acts harmful to the enemy. In practice, a competent tribunal in the sense of Article 5 of the Third Convention would be the appropriate, and arguably required, authority to decide upon the person’s status, taking into account all the circumstances of the case.
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1 - This reality is one of the factors which prompted the International Red Cross and Red Crescent Movement to initiate its ‘Health Care in Danger’ campaign in 2011; for details of this campaign and associated publications, see http://www.icrc.org/eng/what-we-do/safeguarding-health-care/index.jsp. See also World Health Organization, Resolution 55.13, ‘Protection of Medical Missions during Armed Conflict’, adopted by the 55th World Health Assembly, 18 May 2002, and Resolution 46.39, ‘Health and Medical Services in Times of Armed Conflict’, adopted by the 46th World Health Assembly, 14 May 1993.
2 - Article 28(1). For full details, see Articles 28, 30 and 31 of the First Convention and Articles 4(C) and 33 of the Third Convention.
3 - For the relevant provisions in Additional Protocol I, see Articles 8(c)(i) and 43(2).
4 - Geneva Convention (1864), Article 2.
5 - Geneva Convention (1906), Article 9.
6 - Geneva Convention on the Wounded and Sick (1929), Article 9(1).
7 - See ICRC Study on Customary International Humanitarian Law (2005), Rules 25 and 27.
8 - The term ‘medical service’ is used in both Article 19 and Article 21 of the First Convention. A High Contracting Party is at liberty to use a different term. It is, in any event, for each Power to decide the composition of its medical service and to say who shall be employed in it.
9 - Personnel covered by Article 24 would fall under the ‘retention’ regime provided for in Articles 28, 30 and 31, while personnel covered by Article 25 would fall under the regime provided for in Article 29.
10 - Both ‘diagnosis’ and ‘first-aid treatment’ are listed in the definition of ‘medical purposes’ in Article 8(e) of Additional Protocol I.
11 - See also Article 22(5).
12 - The status of veterinarians who are members of the armed forces is dealt with in greater detail in the commentary on Article 22, section F.
13 - For details on the legal status of medical aircraft under the First Convention, see Article 36.
14 - See, however, the additional possibility, created under Article 8(d) and (k) of Additional Protocol I, of having religious personnel assigned on a temporary basis.
15 - Article 36 of the Third Convention deals specifically with the situation of such ‘ministers of religion’.
16 - On respect for and protection of civilian religious personnel, see Article 15(5) of Additional Protocol I.
17 - This logic is extended into the ‘retention’ regime to which religious personnel covered by Article 24 are entitled under Article 28 (and related provisions). If retained, religious personnel can look after the religious needs of all prisoners of war, i.e. not only the wounded and sick. See Articles 33 and 35 of the Third Convention.
18 - Article 8(d) of Additional Protocol I makes this point clear in its definition of ‘religious personnel’ with the words ‘such as chaplains’. For further analysis, see Claudie Barrat, Status of NGOs in International Humanitarian Law, Brill Nijhoff, Leiden, 2014, pp. 123–125.
19 - See e.g. Netherlands, Military Manual, 2005, para. 0616: Religious personnel are not considered medical personnel, but enjoy the same protection. They may be military or civilian. They include almoners, field pastors and rabbis whose sole duty is to act as ministers. They are attached to the armed forces of one party to the conflict, to medical corps or to civil defence institutions. Although less well known outside the Netherlands, humanist counsellors and life coaches also belong to the category of religious personnel.
20 - See also ICC Elements of Crimes (2002), p. 31, which, in a footnote to the war crime of murder, states that ‘[t]he term “religious personnel” includes those non-confessional non-combatant military personnel carrying out a similar function’. The same understanding exists in the context of international human rights law; see International Covenant on Civil and Political Rights (1966), Article 18. See also UN Human Rights Committee, General Comment No. 22, Article 18 (Freedom of Thought, Conscience or Religion), UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), 30 July 1993, para. 2: Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.
21 - The term ‘armed forces of a Party to a conflict’ has been defined, for States Parties, in Article 43(1) of Additional Protocol I.
22 - See Article 3 of the 1907 Hague Regulations and Article 43(2) of Additional Protocol I. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 3.
23 - In the ‘levée en masse’ scenario referred to in Article 13(6), it seems unlikely that the persons involved would have had time to assign medical personnel. However, should they do so, these persons will equally qualify for protection on the basis of Article 24.
24 - With regard to the ‘retention’ regime, see Articles 28, 30 and 31. With regard to the identification of persons covered by Article 24, see Article 40.
25 - See United States, Law of War Manual, 2015, para. 4.9.2.2.
26 - If such persons fall into enemy hands, they will become prisoners of war, who are covered by the applicable detention regime rather than the ‘retention’ regime to which persons covered by Article 24 are entitled. For their situation, Articles 32 and 36 of the Third Convention provide a specific arrangement.
27 - For identification of the persons covered by Article 24, see Article 41, which does not mention that they wear a military uniform. See also Article 21(3) of the 1929 Geneva Convention on the Wounded and Sick, which indicates that medical and religious personnel ‘who have no military uniform shall be provided with a certificate of identity’.
28 - See also Article 9(2) of the 1929 Geneva Convention on the Wounded and Sick which, for its part, explicitly uses the term ‘permanent medical personnel’.
29 - See Additional Protocol I, Article 16. See also Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law, Brill, Boston, 2014, pp. 22–26, for a discussion of what the author calls the ‘dual-loyalty’ conflict facing military physicians: ‘[A]re military physicians soldiers first and physicians second, or vice versa?’, and p. 429: ‘physicians should be physicians first and as such dedicated to those needing medical care, and soldiers second’. See also Toebes, p. 173.
30 - See Gisel. For a different view, see United States, Law of War Manual, 2015, paras 4.10.1, 7.8.2.1 and 7.8.2.1.
31 - Arbitrary arrest would cover, for example, arrests carried out unlawfully or for purposes of intimidation. That said, the arrest of medical personnel who have committed a violation of applicable law remains lawful. However, depending on the circumstances (e.g. when carried out on a wide scale or under false pretences), the latter may still amount to a violation of the obligation to ‘respect’ medical personnel.
32 - Breitegger, pp. 118–121.
33 - See Article 7.
34 - In this context, Article 18(3) is relevant: ‘No one may ever be molested or convicted for having nursed the wounded or sick.’ See also Article 16 of Additional Protocol I on the ‘General protection of medical duties’.
35 - The display of the emblem, in and of itself, does not confer protection; it is merely an outward sign indicating the protected status of the person displaying it. For details, see the commentary on Article 30, section B.4.
36 - See ICC Statute (1998), Article 8(2)(b)(xxiv) and (e)(ii).
37 - See also Article 46.
38 - More broadly, within the context of Additional Protocol I, this entails an obligation to comply with its Article 16 (General protection of medical duties). This obligation applies vis-à-vis both one’s own medical personnel and enemy medical personnel, for example when retained.
39 - See e.g. Benin, Law of Armed Conflict Manual, 1995, Fascicule III, p. 5 (‘Specially protected persons may not take a direct part in hostilities and must not be attacked. They shall be allowed to carry out their tasks as long as the tactical situation permits.’); Croatia, Commanders’ Manual, 1992, paras 7 and 12 (‘Specifically protected persons may not participate directly in hostilities and may not be attacked. They shall be allowed to perform their tasks, when the tactical situation permits.’); and Nigeria, IHL Manual, 1994, p. 45, para. (f) (‘Specifically protected persons … recognised as such must be respected. Specifically protected persons are to be allowed to fulfil their activity unless the tactical situation does not permit.’)
40 - Article 13(1) of Additional Protocol I speaks of ‘humanitarian function’ instead of ‘humanitarian duties’; Article 11(2) of Additional Protocol II speaks of ‘hostile acts’ instead of ‘acts harmful to the enemy’. These small terminological differences have no substantive implications.
41 - See Article 22(3) and (5), respectively.
42 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 59. See also Draft revision of the 1929 Geneva Convention submitted by the ICRC to National Societies in 1937, p. 3.
43 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 200-201.
44 - For a discussion of the contours of the notion of ‘self-defence’, see the commentary on Article 22(1).
45 - For example, for the US armed forces, see Religious Affairs in Joint Operations, 2013, p. I-2, stating: ‘[C]haplains must not engage directly or indirectly in combatant duties; will not conduct activities that compromise their noncombatant status; must not function as intelligence collectors or propose combat target selection; and will not advise on including or excluding specific structures on the no-strike list or target list.’
46 - As to the types of perfidious conduct which qualify as prohibited perfidy, see the first sentence of Article 37(1) of Additional Protocol I. For proper and improper use of the distinctive emblem, see Articles 40 and 44 of the First Convention and Article 38(1) of Additional Protocol I, respectively.
47 - For further details, see the commentary on Article 21, para. 1844.
48 - ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, by Nils Melzer, ICRC, Geneva, 2009, p. 20: ‘Where IHL provides persons other than civilians with immunity from direct attack, the loss and restoration of protection is governed by criteria similar to, but not necessarily identical with, direct participation in hostilities.’
49 - See United States, Law of War Manual, 2015, para. 7.8.3; See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague, 1982, p. 411; Robert W. Gehring, ‘Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I’, Military Law Review, Vol. 90, 1980, pp. 49–87; Nils Melzer, Targeted Killing in International Law, Oxford University Press, 2008, p. 329.
50 - Similarly, see Henckaerts/Doswald-Beck, commentary on Rule 25, p. 85: [T]he equipment of medical personnel with small arms to defend themselves or their patients and the use of such arms for this purpose do not lead to loss of protection. Furthermore, in analogous application of the similar rule applying to medical units, it is not to be considered a hostile act if medical personnel are escorted by military personnel or such personnel are present or if the medical personnel are in possession of small arms and ammunition taken from their patients and not yet handed over to the proper service.
51 - See Additional Protocol I, Article 12(4). See also ICC Statute (1998), Article 8(2)(b)(xxiii) and Customary International Humanitarian Law (2005), Rule 97.
52 - For a further discussion of this issue, see the commentary on Article 39(2) of Additional Protocol I.
53 - For a further discussion of this issue, including the types of permissible weapons, see the commentary on Article 22, section C. See also Breitegger, p. 112: [T]he mere use by medical personnel … 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.
54 - For an overview of the type of considerations which may inform this decision, see ICRC, Ambulance and Pre-Hospital Services in Risk Situations, ICRC, Geneva, 2013, pp. 35–38, under the heading ‘The question of personal protective equipment (PPE) should be analysed by country and/or context and proper training provided’.
55 - At the domestic level, a decision may be taken whereby medical or religious personnel are not just entitled, but compelled, to carry weapons within the limits of what is permissible under international humanitarian law. It may also happen that the personnel in question would prefer not to follow this order (for example, for religious reasons). However, as long as the order remains within the limits of international humanitarian law, they would have no legal basis under international law for not complying with it.
56 - United Kingdom, Allied Joint Doctrine for Medical Support, with UK National Elements, 2015, p. 1-98: ‘Medical personnel must not be used to support the collective protection of non-medical facilities and assets. Commanders at all levels have a responsibility to ensure that the protected status of medical personnel is maintained.’
57 - See also United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 7.16: ‘The [medical] unit may be “guarded by a picket or by sentries or by an escort” [footnote inter alia referring to Article 22(2) of the First Convention]. However, the guard also may only act in a purely defensive manner and may not oppose the occupation or control of the unit by the enemy.’
58 - See United States, Navy Regulations, 1990, para. 1063: While assigned to a combat area during a period of armed conflict, members of Medical, Dental, Chaplain, Medical Service, Nurse or Hospital Corps and Dental Technicians shall be detailed or permitted only such duties as are related to medical, dental or religious service and the administration of medical, dental or religious units and establishments. This restriction is necessary to protect the non-combatant status of these personnel under the Geneva Conventions of August 12, 1949. Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, 2010, p. 193, reports a US directive which includes the following sentence: ‘Corpsmen may not man defensive positions of checkpoint/control points.’
59 - See the commentary on Article 21, section C.2.
60 - For an overview of the same question with regard to military medical units and establishments, the considerations of which apply mutatis mutandis here too, see the commentary on Article 21, paras 1856–1859.
61 - See, however, United States, Law of War Manual, 2015, para. 4.9.2.3: military medical personnel committing acts harmful to the enemy ‘would not be entitled to military medical status’. Similarly, at para. 4.10.1: ‘Military medical and religious personnel who take actions outside their role as military medical and religious personnel forfeit the corresponding protections of their special status and may be treated as combatants or auxiliary medical personnel, as appropriate.’ Under this interpretation, the status of this person when falling into enemy hands will be that of a prisoner of war; see para. 9.3.2, including under the list of persons entitled to prisoner-of-war status that of ‘military medical and religious personnel not entitled to retained personnel status (e.g., those not exclusively engaged in medical duties at the time of their capture)’. See also United States, Medical Evacuation in a Theater of Operations, 2000, para. A-6, suggesting, in case of a violation of the Convention by military medical personnel, that there is a risk of ‘captured medical personnel becoming prisoners of war rather than retained persons. They may not be permitted to treat fellow prisoners.’ For alternative options explored in the literature, see Haeck, pp. 848–849, and Sassòli, pp. 55–57.