Treaties, States Parties and Commentaries
  • Print page
Commentary of 2016 
Article 19 : Protection of medical units and establishments
Text of the provision*
(1) Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict. Should they fall into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units.
(2) The responsible authorities shall ensure that the said medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1770  Article 19 deals with medical establishments and units of the armed forces’ medical services. The first paragraph outlines the extent of the protection granted to these facilities in international armed conflict and prescribes the treatment to be accorded to medical personnel associated with them if such establishments or units fall into enemy hands. The second paragraph sets out a specific obligation to take precautionary measures to protect these establishments and units from the effects of attacks against military objectives.
1771  For details on how such facilities are protected in non-international armed conflicts, see the commentary on common Article 3, section I.
1772  The fundamental rationale for the protection of military medical establishments and units is the same as for medical personnel, material and transports of the armed forces’ medical services: they are protected on account of the functions they perform, i.e. providing medical care to the military wounded and sick, which is the central aim of the First Convention.[1] Wounded and sick civilians, as well as civilian hospitals, their personnel and specific types of transports for wounded and sick civilians, are protected on the basis of the Fourth Convention, as well as of Additional Protocol I.[2]
Back to top
B. Historical background
1773  The obligation to respect and protect military medical establishments and units is among the oldest rules of international humanitarian law. It was first set out in the Geneva Convention of 1864 in relation to military hospitals. However, at the time the hospitals’ protection was conditioned upon the presence of the wounded and sick within them.[3] With the adoption of the Geneva Convention of 1906, such presence was no longer a requirement for protection. Moreover, that Convention for the first time introduced the distinction between ‘mobile sanitary formations’ and ‘fixed establishments’ of the ‘sanitary service’, which is relevant in that, when these establishments or units fall into enemy hands, they are treated differently depending on whether they belong to one category or the other.[4] The Geneva Convention of 1929 contains provisions virtually identical to those of the 1906 Geneva Convention.[5]
Back to top
C. Paragraph 1: Respect for and protection of medical units
1. First sentence: Basic rule
a. Fixed establishments and mobile medical units
1774  While the two categories of ‘fixed establishments’ and ‘mobile medical units’ generally enjoy the same protection under this article, the distinction between them is relevant since they will be treated differently if they fall into enemy hands, in accordance with Chapter V, Articles 33 and 34, of the First Convention.
1775  The Convention does not define the notions of ‘fixed establishments’ and ‘mobile medical units’. However, in accordance with their ordinary meaning, ‘fixed’ can be understood as attached or positioned securely,[6] and ‘establishments’ as something ‘set up on a firm or permanent basis’.[7] Because buildings such as hospitals are immovable, they would undoubtedly fall within this category.
1776  In contrast, the term ‘mobile’ means ‘able to move or be moved freely or easily’.[8] For instance, field hospitals accommodated in tents or containers, as well as other open-air installations which can be set up and taken down in accordance with medical needs, would qualify as mobile medical units.
1777  The text of Article 19 provides no guidance on what medical purposes fixed establishments and mobile medical units are to fulfil. However, the activities in which military medical personnel engage, as spelled out in Article 24 of the First Convention, form the context for the interpretation of Article 19, i.e. the search for, or the collection, transport or treatment of the wounded or sick, or the prevention of disease. The relevance of the medical purposes set out in Article 24 has also been confirmed by their subsequent inclusion in the definition of ‘medical units’ in Additional Protocol I, which also encompasses military medical establishments and units covered by the present article.[9]
1778  Clearly, the medical purpose of treatment of the wounded and sick will be fulfilled in fixed establishments, such as hospital buildings, as well as in mobile medical units. The degree of treatment is not important and could, for instance, range from first aid and triage, which may be performed at a first-aid post, to psychological care, such as relieving combat-induced stress, or it could also include general surgery performed in field hospitals. It could also encompass more specialized surgery, such as cardiac or neurosurgery, and rehabilitative care, including physiotherapy, which may be performed in fixed establishments such as general military hospitals, sometimes far from the battlefield.
1779  Also, a medical or pharmaceutical depot or a laboratory attached to a field hospital would fall within the category of ‘mobile medical units’, since such units may either be free-standing or constitute an integral part of the field hospital which serves to treat the wounded and sick. In addition, mobile medical units or fixed establishments dedicated to dental care are recognized as fulfilling the medical purpose of treatment.[10]
1780  Collection of the wounded and sick is also a relevant medical purpose, e.g. for first-aid stations. Such stations may be either fixed or mobile. The latter may be inflatable and transported to the battlefield in or attached to a vehicle. At times, first-aid stations perform the dual functions of collection and treatment. But even if the wounded and sick are merely collected and not actually cared for by the first-aid station, this would not hinder their qualification for protection under Article 19.
1781  Prevention of disease is another recognized function of medical personnel. It is relevant for fixed establishments and mobile medical units providing, for example, vaccinations, carrying out awareness-raising or training with regard to communicable diseases (such as Ebola, cholera, dysentery or sexually transmitted diseases), or performing activities for the prevention of psychological trauma, including for the benefit of able-bodied combatants.[11]
1782  The search for and transport of the wounded and sick would primarily be relevant for military medical personnel and/or military medical transports. However, mobile medical units may, for instance, also include vehicles, and by that nature may also serve to transport wounded and sick or medical personnel alongside the functions of collection, treatment, or prevention of disease.[12] This raises the question as to the difference between the ‘mobile medical units’ examined here and ‘transports’ protected under Article 35. Indeed, medical transports will usually also contain at least rudimentary equipment for providing first aid to the wounded and sick being conveyed. While these two categories generally enjoy the same protection on the battlefield, the difference becomes relevant when they fall into enemy hands. Whereas the ‘mobile medical units’ of the armed forces’ medical services remain reserved for the wounded and sick within them and may not be converted to other purposes, including military ones, by the Party into whose hands they fall,[13] military ‘medical transports’ may be converted to other uses, as long as the wounded and sick within them are taken care of elsewhere.[14] A way of differentiating between the two categories is to determine which medical purpose is more dominant: the transport function in principle prevails in the case of ‘transports’, while the possibility of administering care prevails in the case of ‘mobile medical units’.
Back to top
b. Part of the medical service
1783  Fixed establishments and mobile medical units are entitled to protection under this provision only if they are ‘of the Medical Service’. However, this does not mean that they have to be owned by the medical service. Rather, for their conduct to be attributable to the armed forces, they must form an integral part of those forces, be empowered to exercise medical functions on their behalf or be under their control. In this regard, the term ‘Medical Service’ denotes the section of the armed forces, or of other militias or volunteer corps, dealing with their medical needs. In addition, the fixed establishments and mobile medical units of a National Red Cross or Red Crescent Society, or of another voluntary aid society, which is assisting the medical service on the basis of Article 26 or 27 of the First Convention, short of thereby themselves becoming military organs, are also covered.[15]
1784  Also, it is for each Power to decide on the composition of its medical service. There are no requirements as to the form of this decision nor when it has to be taken; it can range from a law, a regulation or a decree to a simple declaration in the midst of hostilities that a given object will henceforth form part of the medical service. This gives the authorities the flexibility to designate fixed establishments and mobile medical units before an armed conflict occurs, as well as to decide, as the need arises, to transform objects serving a non-medical purpose into a medical establishment or unit during an armed conflict: for example, to use a military barracks, a tent where ammunition has been stored in the past, or a school or religious building henceforth as a makeshift medical establishment or unit.[16]
1785  Such flexibility means that there are no requirements as to the level of sophistication or organization of the medical capacity that a medical establishment or unit needs to have in order to qualify for protection under Article 19. Any establishment or unit serving at least one of the medical purposes detailed above is covered.[17]
1786  The only substantive restriction on the authorities’ discretion as to which fixed establishments and mobile medical units form part of the medical service is that the establishments or units must be exclusively assigned to one or more of the aforementioned medical purposes.
1787  While Article 19 does not expressly state that the criterion of ‘assignment’ must be met because, as military medical establishments or units, they are assigned ex officio by the competent authorities, this interpretation results again from the relevant context of Article 24 of the First Convention.[18] It must also be emphasized that this restriction on the authorities’ discretion as to what forms part of the military medical service is necessary, as establishments or units of that service may be assigned to a purpose which is considered military medicine, but which does not fall under one or more of the specified medical purposes, such as health examinations in the selection of combatants for a mission. Importantly, this restriction is also necessary to prevent misuse of the distinctive emblems by limiting the establishments and units entitled to use them.[19]
1788  Further, by analogy with Article 24, once military medical establishments and units have been so assigned, their assignment must also be ‘exclusive’, i.e. they may not serve any purpose other than one or more of the permitted medical purposes.[20] This does not mean that the establishments or units must actually be used for such purposes at all times: a given establishment or unit may qualify for protection under Article 19 even if it has not yet received any wounded or sick people or no longer has any wounded or sick people within it, or if no doctors or other medical personnel are present at a certain time, as long as its assignment does not extend to any other, non-medical purposes.
1789  Article 19 is silent about whether military medical establishments and units must be assigned exclusively to medical purposes on a permanent basis, or whether they can be so assigned on a temporary basis while still being protected under this provision. In the context of Article 19, it must be emphasized that, both for personnel (by virtue of the specific category of auxiliary personnel covered under Article 25) and for transports (including all vehicles employed, temporarily or permanently), the possibility of temporary assignment to medical purposes is recognized under the First Convention.[21] Moreover, the purpose of this provision is to ensure the care of the military wounded and sick. The recognition of temporarily assigned establishments or units increases the likelihood that the wounded and sick receive the necessary treatment where permanent establishments or units are not available. For instance, this leaves enough flexibility to spontaneously convert a building to medical purposes, and to so assign it only for a limited period of time. After this period, if there is no indication that the assignment has been renewed, the facility returns to its initial, non-medical purpose.
1790  While the preparatory work suggests that military medical establishments and units intended only temporarily to serve medical purposes are excluded from protection under Article 19,[22] this reflects the dominant view at the time, i.e. that an exclusive assignment implies that it has to be permanent. However, this paradigm has shifted with subsequent State practice. In the context of the preparatory work for Additional Protocol I, State representatives, including those of States which have, since the Diplomatic Conference of Geneva of 1974–1977, not become party to Additional Protocol I, agreed at an early stage that the definition of ‘medical units’ contained in Article 8(e) of the Protocol, a definition that includes military medical establishments or units falling under Article 19, would extend to temporary establishments and units.[23]
1791  Neither the term ‘permanent’ nor its opposite, ‘temporary’, is defined in the Geneva Conventions. Article 8(k) of Additional Protocol I generally defines ‘permanent medical units’ as ‘those assigned exclusively to medical purposes for an indeterminate period’. The standard of assignment for an indeterminate period is met where, at the outset, the idea is to make the assignment of units to medical purposes definitive (i.e. without imposing any time limit). ‘Temporary medical units’ are defined in Article 8(k) as ‘those devoted exclusively to medical purposes for limited periods during the whole of such periods’.
Back to top
2. Obligation to respect and protect
1792  The obligation to respect and protect fixed establishments and mobile medical units dates from the 1864 Geneva Convention, where it was enshrined in relation to military hospitals. This obligation is also set out in the specific provisions relating to the wounded and sick and to medical personnel and transports. In this regard, ‘to respect’ entails obligations of a negative nature, i.e. to refrain from engaging in certain conduct, while ‘to protect’ implies obligations of a positive nature, i.e. to take certain active measures.
Back to top
a. Prohibition of attack
1793  The wording ‘may in no circumstances be attacked’, which precedes the obligation to respect and protect, was added in 1947, following the Conference of Government Experts, to reflect the increasing scale of aerial bombardment,[24] then a recent development. While from a contemporary perspective this is no longer a new development, the specific mention of a prohibition of attack is important within the framework of the codification, in Additional Protocol I, of the rule of distinction between civilian objects and military objectives in the conduct of hostilities.
1794  Furthermore, for an object to qualify as a ‘military objective’ in accordance with Additional Protocol I (Article 52(2)) and its customary law equivalent, it is not sufficient that it belongs to, or is used by, armed forces. In order to so qualify, it must also be shown that it makes an ‘effective contribution to military action’ and that its ‘total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’. In principle, military medical units do not fulfil any of these criteria. Therefore, for the purpose of the law regulating the conduct of hostilities, military medical objects are civilian objects.
1795  Therefore, the prohibition on attacking[25] fixed establishments and mobile medical units of the military medical services confirms that these are civilian objects.
1796  The proposition that military medical objects are not military objectives is furthermore supported by Additional Protocol I, which requires attackers to take all feasible precautions to verify, inter alia, that objectives to be attacked are not subject to special protection but are military objectives.[26] Undoubtedly, military medical establishments and units qualify as objects entitled to special protection for the purposes of the conduct of hostilities.[27]
1797  The prohibition on attacking military medical establishments and units means, first, that attacks must not be directed against them. Moreover, indiscriminate attacks affecting such establishments and units, as well as attacks that may be expected to cause excessive incidental damage to them in relation to the concrete and direct military advantage anticipated, may be deemed prohibited.[28] This view is supported by the stringent character of the obligations to respect and protect which form the immediate context in which the prohibition on attacking military medical establishments and units is embedded. It results, moreover, from the aforementioned determination that these establishments and units in principle constitute civilian objects.[29] Besides, the view that these establishments or units are also protected from attacks that may be expected to cause excessive incidental damage to them in relation to the concrete and direct military advantage anticipated is supported by certain States,[30] as well as by a number of leading commentators.[31] However, according to other views, the expected incidental harm to these establishments or units is not to be included as relevant harm under the principles of proportionality and precautions for the purposes of the conduct of hostilities, since medical units positioned near military objectives are deemed to have accepted the risk of death or injury due to their proximity to military operations.[32]
Back to top
b. Respect and protection
1798  Both obligations – to respect and to protect – apply to a Party to the conflict’s own medical establishments and units as well as to those of the enemy.[33]
1799  As regards the obligation to respect, the explicit mention of the prohibition of attack before the obligation is stated implies that it encompasses broader commitments than simply to refrain from attack in the context of the conduct of hostilities. To respect medical units also means not interfering with their work in order to allow them to continue to treat the wounded and sick in their care.
1800  This precludes the intentional destruction of medical establishments and units,[34] as well as practices such as plunder of their medical equipment. Moreover, using such establishments or units for military purposes is subject to stringent restrictions, in particular the principle – in line with the requirement to ensure continued medical care for the wounded and sick found therein – as enshrined in Article 33(2) of the First Convention.[35] In this vein, absent any arrangements for the continued care of the wounded and sick in a medical establishment or unit, the seizure of an entire medical facility by an opposing Party with a view to using it for military purposes, such as for the storage of weapons, the setting up of a military command and control centre or the launch of military operations, or for interrogations or detention,[36] raises issues under the obligation to respect. This is because such seizure may impede the functioning of the facility and the continued provision of medical care for the wounded and sick. In addition, it will lead to the loss of the facility’s specific protection and moreover, upon fulfilling the relevant criteria under humanitarian law, to its also becoming a military objective, thus endangering any wounded or sick people and medical personnel within it.[37]
1801  That said, temporary entry by armed forces or law enforcement officials that falls short of taking control of the medical establishment or unit may be conducted for legitimate purposes based on military necessity. Such purposes include interrogating or detaining wounded or sick military personnel, verifying that a medical unit is not used for military purposes, or searching for suspects alleged to have committed a crime in relation to an armed conflict.[38]
1802  However, the obligation to respect requires that such activities be avoided before completion of the necessary treatment of the wounded and sick or, at the very least, that their continued treatment be ensured. Similarly, a good-faith interpretation of the obligation to respect medical establishments and units, i.e. not to unduly impede the treatment of the wounded and sick, leads to the conclusion that the possibility of inspecting a medical unit must not be abused.[39] Assessing whether an inspection constitutes an abuse will inevitably depend on the circumstances, but one that would result in the wounded and sick no longer being able to receive the necessary medical treatment would not be in keeping with the said obligation.[40]
1803  Therefore, entry into a military medical establishment or unit for any of the aforementioned purposes – given that such operations may disrupt its functioning and therefore its ability to provide the wounded and sick with medical care they need – must strike a reasonable balance between military necessity and the potential humanitarian impact. Specific procedures could assist in achieving this balance so that non-medical personnel do not remain for longer than necessary within the establishment or unit.[41]
1804  Lastly, the obligation to respect means that an intentional disruption of these units’ ability to communicate for medical purposes with other components of the armed forces is also prohibited.
1805  The obligation to protect means taking feasible measures, depending on the circumstances, to facilitate the functioning of military medical establishments and units and to prevent their being harmed.[42] While the wording of this obligation does not per se suggest an obligation of conduct, its practical implementation, which would depend on a Party’s capacity to implement such measures and on the prevailing security situation, makes such nuancing necessary.
1806  It is not specified which Party to the conflict has the obligation to protect military medical establishments and units from harm – the adverse Party or the Party to which the establishments or units are attached. Given that the discharge of this obligation is dependent on what is feasible in the circumstances, the obligation may apply to one or the other. The determination of which Party that would be hinges on a variety of factors, such as who controls the territory where the facility is located, the Party’s influence over the potential perpetrators of harm, geographical proximity and humanitarian and military considerations.
1807  As regards the content of the obligation to protect, the taking of feasible measures to support the functioning of medical establishments and units means that a Party must actively help to ensure the delivery of medical supplies or equipment or ensure more generally that the medical units are not deprived of other vital resources such as electricity or water.[43]
1808  The obligation to prevent medical establishments and units from being harmed entails taking all feasible measures to ensure that such establishments and units are respected. Thus, preventive measures may be called for to ensure that their mission is not jeopardized by third parties, for example private persons such as looters or rioters who are not attributable to a Party to the conflict. Moreover, where the functioning of a medical establishment or unit is already impeded by looters or rioters, the fulfilment of this obligation may require coming to the aid of the affected facility.
Back to top
c. The terms ‘in no circumstances’ and ‘at all times’
1809  The fact that medical establishments and units may in no circumstances be attacked, and that the obligations to respect and protect must be observed at all times,[44] reaffirms the non-reciprocal character of these rules.[45] This also means that such establishments and units enjoy protection even when they contain no wounded or sick people or any medical personnel at a given time. Furthermore, the stringent character of the prohibition of attack and of the obligations to respect and protect these establishments and units, which is apparent from the terms ‘in no circumstances’ and ‘at all times’, also explains why reprisals against them are prohibited under Article 46 of the First Convention.
1810  However, the terms ‘in no circumstances’ and ‘at all times’ are without prejudice to the possibility that medical establishments and units may lose their specific protection if they are used to commit acts harmful to the enemy, outside their humanitarian duties.[46] These terms are also without prejudice to the specific rules that apply to medical establishments and units under Articles 33 and 34 of the First Convention.
Back to top
d. Criminal aspects of a violation
1811  Since military medical establishments and units constitute property protected under the First Convention, violations of the prohibition of attack and of the obligation to respect under Article 19 may give rise to the grave breach of ‘extensive destruction and appropriation, not justified by military necessity and carried out unlawfully and wantonly’, pursuant to Article 50 of the Convention.[47] Furthermore, under the ICC Statute it is a war crime to ‘[i]ntentionally direc[t] attacks against … hospitals and places where the wounded and sick are collected, provided they are not military objectives’.[48] Attacks directed against protected medical establishments and units displaying the distinctive emblem may also amount under the Statute to the war crime of ‘[i]ntentionally directing attacks against buildings, … medical units … using the distinctive emblems of the Geneva Conventions in conformity with international law’.[49]
Back to top
3. Second sentence: Medical units falling into enemy hands
1812  The second sentence of Article 19(1), which was added in 1949, deals with the scenario in which military medical establishments or units fall into enemy hands. The very existence of the sentence implies that this possibility is not per se precluded by humanitarian law and that there may be circumstances in which an enemy Power legitimately takes over such an establishment or unit, including through capture.[50] The sentence does not specify how military medical establishments or units must fall into enemy hands in order for this provision to apply. Therefore, all possible scenarios are covered, including where the enemy forcibly takes possession of a medical establishment or unit or where its personnel voluntarily surrender.
1813  This sentence provides guidance on how a Party to the conflict is to implement its obligations vis-à-vis wounded or sick enemy combatants found in medical establishments and units, given that the Power into whose hands they have fallen may not immediately be in a position to ensure their continued care. Thus, it reflects the principle that, while implicitly recalling the obligations of the Detaining Power with respect to the wounded and sick in its hands, until such time as the Detaining Power is capable of assuming these obligations, medical establishments and units of the adversary falling into its hands must be able to continue to operate.[51]
1814  The wording ‘their personnel shall be free to pursue their duties’ is actually centred on medical personnel rather than on the medical establishments or units in which they work. In this way, this provision is related to the ‘retention’ regime of medical personnel covered by Articles 24 and 26, which makes the possibility of depriving such personnel of their liberty dependent on whether this is necessary for the continued medical or spiritual care of prisoners of war.[52]
1815  The principle of continued care of wounded and sick members of the armed forces in enemy hands also informs the regulation of medical establishments and units in which they are found and their material.[53] Even where the Party into whose hands they have fallen uses such objects for non-medical purposes or requisitions property of aid societies in case of urgent necessity,[54] it may do so only after ensuring the care of the wounded and sick within them.
Back to top
D. Paragraph 2: Positioning of medical units
1816  Article 19(2) was newly included in 1949 and is one of the few provisions of the Conventions dealing explicitly with the conduct of hostilities. It precedes the inclusion of the more elaborate rules on the conduct of hostilities in Additional Protocol I. The obligation contained in this paragraph is intended essentially to benefit a belligerent’s own medical establishments and units, and ultimately its own wounded and sick personnel (or those establishments and units of the enemy that are under its control), unlike many rules in the First Convention, which address exclusively the relationship between a Party to a conflict and wounded and sick enemy personnel.
1817  The character of the obligation to ‘ensure that medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety’ is a specific precaution against the effects of attacks on military objectives.[55] The obligation is a responsibility both for the commanders of medical units and for the commanders of combatant units.[56]
1818  The obligation under discussion here relates to the location of medical establishments and units in relation to military objectives. Inasmuch as the term ‘military objective’ was not defined in 1949, and in view of the intricate links between this obligation and the aforementioned obligations under Additional Protocol I, this term must now be understood in accordance with the definition contained in Additional Protocol I or its customary international law equivalent.[57]
1819  While the obligation would best be discharged if such establishments and units were situated far away from any military objective, such a strict interpretation does not follow from the explicit wording of this provision, nor may this always be feasible in practice. First, it is not as explicit as the comparable provision of Article 18(5) of the Fourth Convention, which stipulates that ‘such hospitals be situated as far as possible from such objectives’.[58] The preparatory work indicates that this was a deliberate choice, since it was pointed out that it was unrealistic to adopt too strict a standard requiring the remoteness of military medical establishments and units from military objectives. It was argued, during the 1949 Diplomatic Conference, that it was common practice to place military hospitals near military objectives, and that such proximity was even necessary to ensure rapid access to them by the wounded and sick.[59] This argument remains valid, as further underscored by the contemporary practice of some States of locating their military medical establishments inside military bases.[60] In this case also, the conditions set down in Article 19(2) apply. Thus, Parties locating medical establishments inside military bases must ensure they are as far away as possible from high value targets, such as an ammunition depot. In such a scenario, the need for the medical establishment to display the distinctive emblem is particularly compelling. Similarly, Parties may wish to establish a system of layered security, for example placing heavy armaments at the outside perimeter of the base. The important point is that, once the immediate perimeter of the medical facility is reached, the rules pertaining to the siting of medical establishments apply, regardless of its location within a military base.
1820  Second, the obligation is subject to the caveat ‘as far as possible’. Parties to the conflict should always situate medical establishments and units away from military objectives to the best of their ability. As in the case of the equivalent obligations under Additional Protocol I,[61] this means that this obligation should be taken into account in peacetime for military medical establishments in a State’s own territory. However, the caveat indicates that this obligation is not absolute and that there might be circumstances in which it might not be feasible, for example, to avoid the construction of a hospital next to a barracks, or vice versa.[62] Even more importantly, in the light of contemporary warfare, with frequently shifting front lines during hostilities, it may not always be feasible to keep a distance from military objectives, in particular in the case of mobile medical units, which often operate near the battlefield. Therefore, the mere fact that a medical establishment has been built, or a mobile medical unit happens to be near, a military objective cannot in and of itself be interpreted as a violation of the specific precautionary obligation discussed here, nor as an ‘act harmful to the enemy’ outside its humanitarian duties[63] leading to the loss of protection of the establishment or unit.
1821  The proximity of military medical establishments or units to military objectives may thus be a result of the impracticability, whether dictated by humanitarian considerations or by battlefield conditions, of doing otherwise. Such proximity must be distinguished from the question of whether the positioning results from an intention to shield a military objective from attack. Article 19(2) does not contain an explicit prohibition to that effect, but doing so would run counter to the purpose of this provision. An explicit prohibition exists in Article 12(4) of Additional Protocol I, which states: ‘Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.’ In addition, such conduct would amount to an ‘act harmful to the enemy’ entailing a loss of protection, in accordance with Article 21 of the First Convention.[64] This does not automatically mean that in this situation a medical establishment or unit becomes a military objective. It must also meet the requirements of a ‘military objective’ under Article 52(2) of Additional Protocol I or its customary international law equivalent.
Back to top
Select bibliography
Bart, Gregory Raymond, ‘The Ambiguous Protection of Schools Under the Law of War – Time for Parity with Hospitals and Religious Buildings’, Georgetown Journal of International Law, Vol. 40, No. 2, Winter 2009, pp. 321–358.
Gisel, Laurent, ‘Can the incidental killing of military doctors never be excessive?’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 215–230.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1, Rule 28, pp. 91–97.
Kleffner, Jann K., ‘Protection of the Wounded, Sick, and Shipwrecked’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 321–357.
Mikos-Skuza, Elżbieta, ‘Hospitals’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 207–229.
Principe, Philip R., ‘Secret Codes, Military Hospitals, and the Law of Armed Conflict: Could Military Medical Facilities’ Use of Encrypted Communications Subject Them to Attack Under International Law?’, University of Arkansas at Little Rock Law Review, Vol. 24, 2002, pp. 727–750.
Smith, Michael Sean, The Protection of Medical Units Under the Geneva Conventions in the Contemporary Operating Environment, thesis submitted in partial fulfilment of the requirements for the degree of Master of Military Art and Science, US Army Command and General Staff College, Fort Leavenworth, 2008, http://www.dtic.mil/dtic/tr/fulltext/u2/a501873.pdf.
Vollmar, Lewis C., Jr., ‘Development of the laws of war as they pertain to medical units and their personnel’, Military Medicine, Vol. 157, 1992, pp. 231–236.

1 - See Article 12.
2 - See Fourth Convention, Articles 16 and 18–22, and Additional Protocol I, Articles 8(e) and 12–13.
3 - Geneva Convention (1864), Article 1.
4 - Geneva Convention (1906), Article 6. For their respective treatment when they fall into enemy hands, see Articles 14 and 15.
5 - Geneva Convention on the Wounded and Sick (1929), Article 6. The question of how these establishments and units should be dealt with when they fall into enemy hands is covered in Articles 14 and 15 of that Convention.
6 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 538.
7 - Ibid. p. 488.
8 - Ibid. p. 918.
9 - See Additional Protocol I, Article 8(e), and Henckaerts/Doswald-Beck, commentary on Rule 28, p. 95.
10 - Minutes of the Diplomatic Conference of Geneva of 1949, p. 30.
11 - For more details, see the commentary on Article 24, para. 1958.
12 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 104, and Minutes of the Diplomatic Conference of Geneva of 1949, pp. 6 and 9.
13 - See Article 33(1). This is to be distinguished from the case where the Party to a conflict that uses these ‘mobile medical units’ transforms them itself at the outset into units dedicated to non-medical, including military, purposes.
14 - See Article 35(2).
15 - Similarly, see the commentary on Article 26, para. 2080.
16 - See e.g. Israel, Manual on the Rules of Warfare, 2006, p. 27: in the case of a large military base converted into a clearing station for the wounded, ‘it must not be attacked, as it is a medical facility (on the assumption that no military activities are conducted therein, being disguised as treatment for the wounded)’.
17 - In this regard, Article 18(1) of the Fourth Convention on the protection of civilian hospitals, as well as the definition of ‘medical units’ in Article 8(e) of Additional Protocol I, require that they be ‘organized’ for the medical purposes enumerated in those paragraphs. On the interpretation given to the term ‘organized’ in those contexts, see the commentaries on those articles.
18 - See the commentary on Article 24, section D.1.
19 - The display of the distinctive emblems on military medical establishments and units is governed by Article 42.
20 - Besides exclusive assignment, the other requirements of recognition, authorization and placement under military laws and regulations must be fulfilled for establishments and units of National Red Cross or Red Crescent Societies or other voluntary aid societies auxiliary to the armed forces’ medical services, by analogy with Article 26 of the First Convention.
21 - See the commentaries on Article 35, para. 2380, and Article 36, para. 2445.
22 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 193.
23 - See Report of the Conference of Government Experts of 1972, Vol. I, p. 32 (India and the United States, among others, participated in the conference as States which have not become party to Additional Protocol I). For the negotiations, see Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, in particular pp. 22–23 and 221.
24 - See Report of the Conference of Government Experts of 1947, p. 24.
25 - The notion of attack is defined in Article 49 of Additional Protocol I as ‘acts of violence against the adversary, whether in offence or defence’.
26 - Additional Protocol I, Article 57(2)(a)(i).
27 - See the commentary on Article 21, para. 1841. There is a higher threshold for the loss of protection of medical establishments and units than for civilian objects in general. The conditions that must be fulfilled before an attack on medical establishments and units can take place include an advance warning and a time limit for the warning to be observed, compared with the general precautionary obligation under Article 57(2)(c) of Additional Protocol I for an attacker to issue an advance warning, but only ‘unless circumstances do not permit’.
28 - On the prohibition on indiscriminate and disproportionate attacks affecting military medical establishments and units, see Articles 12(4) and 48–58 of Additional Protocol I.
29 - Gisel, pp. 215–230.
30 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, para. 5.9; Canada, LOAC Manual, 2001, para. 204.5; Hungary, Military Manual, 1992, p. 45; New Zealand, Military Manual, 1992, para. 207; Philippines, Air Power Manual, 2000, paras 1-6.4 and 1-6.5; and United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 5.32.5.
31 - See 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, pp. 118–119, and Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd edition, Cambridge University Press, 2010, p. 172. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 1(l).
32 - See United Sates, Law of War Manual, 2015, p. 445, para. 7.10.1.1, and Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I, Martinus Nijhoff Publishers, Leiden, 2009, pp. 195–196.
33 - With respect to wounded and sick personnel, see the commentary on Article 12, paras 1337, 1368 and 1370. See also United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 7.3.2. Furthermore, see Mikos-Skuza, p. 213.
34 - Subject to the specific provisions of Article 33(3) of the First Convention, which does not categorically exclude the intentional destruction of buildings composing fixed medical establishments. See the commentary on that provision, section B.3.
35 - See the commentary on Article 33, section B.2.
36 - On the scenario of armed takeovers of hospitals and other health-care facilities and incidents collected by the ICRC in this regard, see ICRC, Health Care in Danger: Violent Incidents Affecting the Delivery of Health Care, January 2012 to December 2014, ICRC, Geneva, 2014, p. 13.
37 - On the loss of protection of military medical establishments and units, see Article 21.
38 - See the practice of some States recognizing the possibility of inspecting medical units to ascertain their contents and actual use: e.g. Nigeria, IHL Manual, 1994, p. 45, para. (f); Senegal, IHL Manual, 1999, p. 17; Togo, Military Manual, 1996, Fascicule II, p. 8; and United States, Field Manual, 1956, para. 221.
39 - At the same time, such an interpretation may also be based on the obligation to respect the wounded and sick under Article 12.
40 - In this regard, the practice of Senegal requires that such an inspection be ordered explicitly by the authority responsible for the maintenance of law and order; see Senegal, IHL Manual, 1999, p. 17.
41 - See, in this regard, also the recommendations of military experts elaborated as part of the Health Care in Danger initiative for minimizing the negative humanitarian effects of search operations in health-care facilities by State armed forces; ICRC, Promoting Military Operational Practice that Ensures Safe Access to and Delivery of Health Care, ICRC, Geneva, 2014, pp. 25–27 and 36–38.
42 - See e.g. Peru, IHL Manual, 2004, para. 88(b).
43 - See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 518. For recommendations that could be usefully taken into account (while not necessarily legally binding), see those elaborated by experts as part of consultations conducted in the context of the Health Care in Danger initiative to ensure the supply chain of health-care facilities with essential goods and equipment; ICRC, Ensuring the Preparedness and Security of Health-Care Facilities in Armed Conflict and Other Emergencies, ICRC, Geneva, 2015, pp. 49–54.
44 - In the light of this stringent formulation, the usefulness of Article 23 of the Second Convention, pursuant to which medical establishments on land must be protected from bombardment or attack from the sea, was challenged during the drafting debates on that provision. See the commentary on Article 23 of the Second Convention.
45 - This is a specific expression of this principle, which can be found in the obligation to ‘respect and ensure respect for the present Convention in all circumstances’ in common Article 1. On the interpretation of this notion, see the commentary on that article, para. 188.
46 - For further details on these notions, see Articles 21 and 22.
47 - Such actions are also included as a grave breach in the list of war crimes in Article 8(2)(a)(iv) of the 1998 ICC Statute. See also Mikos-Skuza, pp. 225–227.
48 - This is a war crime in both international and non-international armed conflict; see ICC Statute (1998), Article 8(2)(b)(ix) and (e)(iv).
49 - This, too, is a war crime in both international and non-international armed conflict; see ICC Statute (1998), Article 8(2)(b)(xxiv) and (e)(ii). Paragraph 1 of the 2002 ICC Elements of Crimes adds, in this connection, that attacks directed against buildings, medical units or other objects using another method of identification indicating protection under the Geneva Conventions are also covered by this war crime. This formulation takes into account the additional means of identification created for medical units, including those covered by Article 19 of the First Convention and by Annex I to Additional Protocol I, in particular light signals, radio signals and electronic identification. See Additional Protocol I, Annex I, Articles 6–9.
50 - Mikos-Skuza, p. 221.
51 - See Final Record of the Diplomatic Conference of 1949, Vol. II-A, p. 193.
52 - See First Convention, Articles 28 and 30–31, and Third Convention, Article 33. This is without prejudice to the fact that the primary responsibility for the medical care of prisoners of war remains with the Detaining Power, and not with the retained medical personnel. See First Convention, Article 28(4).
53 - This principle is also reflected in Articles 28, 30, 33 and 34 of the First Convention.
54 - See the commentaries on Articles 33 and 34 for an explanation of the different regimes applying to mobile medical units, fixed medical establishments and the real and personal property of aid societies.
55 - See also Article 12(4) of Additional Protocol I, which states: ‘Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety.’
56 - See United States, Law of War Manual, 2015, para. 7.10.2.2.
57 - See Additional Protocol I, Article 52(2), and ICRC Study on Customary International Humanitarian Law (2005), Rule 8.
58 - Note, however, that the wording of Article 18(5) of the Fourth Convention is purely hortatory, i.e. it is merely ‘recommended’ to do so.
59 - The UK delegation even proposed deleting this provision entirely. Furthermore, because of the range of modern explosives, it was considered physically impossible to ensure that attacks could not endanger medical units. See Minutes of the Diplomatic Conference of Geneva of 1949, pp. 26–27.
60 - United States, Law of War Manual, 2015, para. 7.10.2.1.
61 - See Additional Protocol I, Article 12(4).
62 - See United States, Law of War Manual, 2015, para. 7.10.2.1. See also Mikos-Skuza, p. 213.
63 - On the conditions governing the loss of protection of military medical establishments and units, see Article 21.
64 - For further details, see the commentary on Article 21, section C.1.