Rule 29. Medical transports assigned exclusively to medical transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The obligation to respect and protect medical transports is set forth in Article 35 of the First Geneva Convention and Article 21 of the Fourth Geneva Convention.[1] Its scope was expanded in Article 21 of Additional Protocol I to cover civilian, in addition to military, means of transportation in all circumstances.[2] This extension is widely supported in State practice, which either generally refers to medical transports without distinguishing between military and civilian means of transportation or lists both as being protected.[3] It is also supported by States not, or not at the time, party to Additional Protocol I.[4]
Under the Statute of the International Criminal Court, intentionally directing attacks against “medical units and transports … using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in international armed conflicts.[5]
The rule is contained in numerous military manuals.[6] Sweden’s IHL Manual identifies the protection of medical transports as set out in Article 21 of Additional Protocol I as a codification of a pre-existing rule of customary international law.[7] It is an offence under the legislation of many States to violate this rule.[8] Furthermore, the rule is supported by official statements and reported practice.[9]
This rule is implicit in common Article 3 of the Geneva Conventions, which requires that the wounded and sick be collected and cared for, because the protection of medical transports is a subsidiary form of protection granted to ensure that the wounded and sick receive medical care.[10] The rule that medical transports must be respected and protected at all times, and must not be the object of attack, is explicitly set forth in Additional Protocol II.[11] Under the Statute of the International Criminal Court, intentionally directing attacks against “medical units and transports … using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in non-international armed conflicts.[12] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[13]
The obligation to respect and protect medical transports is set forth in military manuals which are applicable in or have been applied in non-international armed conflicts.[14] It is an offence under the legislation of many States to violate this rule in any armed conflict.[15] Furthermore, it has been invoked in official statements specifically relating to non-international armed conflicts.[16]
No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged attacks against medical transports have generally been condemned by States.[17] They have also been condemned by the United Nations and other international organizations, for example, in the context of the Iran–Iraq War and the conflicts in the Middle East, Sudan and the former Yugoslavia.[18] The ICRC has called upon parties to both international and non-international armed conflicts to respect this rule.[19]
The term “medical transports” refers to any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation under the control of a competent authority of a party to the conflict. This includes means of transportation by land, water or air, such as ambulances, hospital ships and medical aircraft.[20] These vehicles, ships and aircraft must be exclusively assigned to the conveyance of the wounded, sick and shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies. This definition is based on Article 8(f)–(g) of Additional Protocol I.[21] It is widely used in State practice.[22] In the absence of a definition of medical transports in Additional Protocol II, this term may be understood as applying in the same sense in non-international armed conflicts.[23]
With respect to medical aircraft, State practice recognizes that, in principle, medical aircraft must be respected and protected when performing their humanitarian functions. Under the Geneva Conventions medical aircraft may not be attacked while flying at altitudes, at times and on routes specifically agreed upon and flights over enemy-controlled territory are prohibited, unless otherwise agreed.[24] This is also set forth in several military manuals.[25] Pursuant to Additional Protocol I, attacks on medical aircraft, when they are recognized as such, are prohibited, even when there is no special agreement governing the flight.[26] This prohibition is also set forth in the San Remo Manual on Naval Warfare,[27] as well as in many military manuals.[28] The United States has stated that it supports the principle that “known medical aircraft be respected and protected when performing their humanitarian functions”.[29] Some military manuals list “deliberate attack” on medical aircraft as a war crime.[30]
State practice generally indicates that medical transports enjoy the same protection as mobile medical units. Hence, the meaning of the terms “respect and protection” as interpreted in the context of medical units (see commentary to Rule 28) applies mutatis mutandis to medical transports. In practice, this means that medical transports must not be attacked or their passage arbitrarily obstructed. This interpretation is explicitly stated in the military manuals of Germany, South Africa and Switzerland.[31] The military manuals of Benin, Nigeria, Senegal and Togo state that the mission, content and actual use of medical transports may be checked through inspection.[32]
State practice generally indicates that medical transports enjoy the same protection as mobile medical units. Hence, the conditions for loss of protection as interpreted in the context of medical units (see commentary to Rule 28) apply mutatis mutandis to medical transports.
According to State practice, the transport of healthy troops, arms or munitions and the collection or transmission of military intelligence are examples of uses of medical transports leading to loss of protection.[33] Hence, medical aircraft should not carry any equipment intended for the collection or transmission of intelligence.[34] Upon ratification of Additional Protocol I, France and the United Kingdom made statements with regard to Article 28 in which they recognized the practical need to use non-dedicated aircraft for medical evacuations and therefore interpreted Article 28 as not precluding the presence on board of communications equipment and encryption materials or the use thereof solely to facilitate navigation, identification or communication in support of medical transportation.[35] Article 28 of Additional Protocol I sets out other prohibited acts by medical aircraft.[36] In addition, light arms carried by medical personnel in self-defence or which have just been taken from the wounded and not yet turned over to the proper authority do not constitute prohibited equipment either (see Rule commentary to Rule 25).
[1] First Geneva Convention, Article 35 (cited in Vol. II, Ch. 7, § 650); Fourth Geneva Convention, Article 21 (ibid., § 651).
[2] Additional Protocol I, Article 21 (adopted by consensus) (ibid., § 652).
[3] See, e.g., the practice of Argentina (ibid., § 661), Australia (ibid., §§ 662–663), Belgium (ibid., §§ 664–665), Benin (ibid., § 666), Burkina Faso (ibid., § 667), Cameroon (ibid., §§ 668–669), Canada (ibid., §§ 670–671), Colombia (ibid., §§ 672–673), Congo (ibid., § 674), Croatia (ibid., §§ 675–676), Dominican Republic (ibid., § 677), Ecuador (ibid., § 678), France (ibid., §§ 679–681), Germany (ibid., §§ 682–683), Hungary (ibid., § 684), Italy (ibid., § 685), Kenya (ibid., § 686), Lebanon ( ibid., § 687), Mali (ibid., § 688), Morocco (ibid., § 689), Netherlands (ibid., §§ 690–691), New Zealand (ibid., § 692), Nicaragua (ibid., § 693), Nigeria (ibid., §§ 694–695), Romania (ibid., § 696), Russian Federation (ibid., § 697), Senegal (ibid., §§ 698–699), South Africa (ibid., § 700), Spain (ibid., § 701), Sweden (ibid., § 702), Switzerland (ibid., § 703), Togo (ibid., § 704), United Kingdom (ibid., §§ 705–706), United States (ibid., §§ 708–710) and Yugoslavia (ibid., § 711).
[4] See, e.g., the practice of the United Kingdom (ibid., § 740).
[5] ICC Statute, Article 8(2)(b)( xxiv) (ibid., § 832).
[6] See, e.g., the military manuals of Argentina (ibid., § 661), Australia (ibid., §§ 662–663), Belgium (ibid., §§ 664–665), Benin (ibid., § 666), Burkina Faso (ibid., § 667), Cameroon (ibid., §§ 668–669), Canada (ibid., §§ 670–671), Colombia (ibid., §§ 672–673), Congo (ibid., § 674), Croatia (ibid., §§ 675–676), Dominican Republic (ibid., § 677), Ecuador (ibid., § 678), France (ibid., §§ 679–681), Germany (ibid., §§ 682–683), Hungary (ibid., § 684), Italy (ibid., § 685), Kenya (ibid., § 686), Lebanon (ibid., § 687), Mali (ibid., § 688), Morocco (ibid., § 689), Netherlands (ibid., §§ 690–691), New Zealand (ibid., § 692), Nicaragua (ibid., § 693), Nigeria (ibid., §§ 694–695), Romania (ibid., § 696), Russian Federation (ibid., § 697), Senegal (ibid., §§ 698–699), South Africa (ibid., § 700), Spain (ibid., § 701), Sweden (ibid., § 702), Switzerland (ibid., § 703), Togo (ibid., § 704), United Kingdom (ibid., §§ 705–706), United States (ibid., §§ 707–710) and Yugoslavia (ibid., § 711).
[7] Sweden, IHL Manual (ibid., § 702).
[8] See, e.g., the legislation of Bangladesh (ibid., § 713), Colombia (ibid., § 714), Estonia (ibid., § 716), Georgia (ibid., § 717), Germany (ibid., § 718), Ireland (ibid., § 719), Italy (ibid., § 720), Lithuania (ibid., § 721), Nicaragua (ibid., § 722), Norway (ibid., § 724), Romania (ibid., § 725), Spain (ibid., §§ 726–727), Tajikistan (ibid., § 728) and Bolivarian Republic of Venezuela(ibid., § 729); see also the draft legislation of Argentina (ibid., § 712), El Salvador (ibid., § 715) and Nicaragua (ibid., § 723).
[9] See, e.g., the practice of Argentina (ibid., § 731), Egypt (ibid., §§ 732–733), France (ibid., § 734), Germany (ibid., § 735), Hungary (ibid., § 736), Lebanon (ibid., § 738), United Kingdom (ibid., §§ 739–740) and Yugoslavia (ibid., § 742).
[10] This reasoning is put forward in the military manuals of Belgium (ibid., § 665), Colombia (ibid., § 672) and Nicaragua (ibid., § 693).
[11] Additional Protocol II, Article 11(1) (adopted by consensus) (ibid., § 653).
[12] ICC Statute, Article 8(2)(e)(ii) (ibid., § 832).
[13] See, e.g., Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina (ibid., § 657).
[14] See, e.g., the military manuals of Argentina (ibid., § 661), Australia (ibid., §§ 662–663), Benin (ibid., § 666), Cameroon (ibid., § 669), Canada (ibid., §§ 670–671), Colombia (ibid., §§ 672–673), Croatia (ibid., §§ 675–676), Ecuador (ibid., § 678), Germany (ibid., §§ 682–683), Hungary (ibid., § 684), Italy (ibid., § 685), Kenya (ibid., § 686), Lebanon (ibid., § 687), Netherlands (ibid., § 690), New Zealand (ibid., § 692), Nigeria (ibid., § 695), Russian Federation (ibid., § 697), Senegal (ibid., § 699), South Africa (ibid., § 700) and Togo (ibid., § 704).
[15] See, e.g., the legislation of Bangladesh (ibid., § 713), Colombia (ibid., § 714), Estonia (ibid., § 716), Georgia (ibid., § 717), Germany (ibid., § 718), Ireland (ibid., § 719), Lithuania (ibid., § 721), Nicaragua (ibid., § 722), Norway (ibid., § 724), Spain (ibid., §§ 726–727), Tajikistan (ibid., § 728) and Bolivarian Republic of Venezuela(ibid., § 729); see also the legislation of Italy (ibid., § 720) and Romania (ibid., § 725), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 712), El Salvador (ibid., § 715) and Nicaragua (ibid., § 723).
[16] See, e.g., the statements of Argentina (ibid., § 731), Hungary (ibid., § 736) and Yugoslavia (ibid., § 742).
[17] See, e.g., the statements of Argentina (ibid., § 731), Egypt (ibid., § 732), Hungary (ibid., § 736), Lebanon (ibid., § 738) and Yugoslavia (ibid., § 742) and the reported practice of The Islamic Republic of Iran (ibid., § 737).
[18] See, e.g., UN Security Council, Res. 771 (ibid., § 743); UN Commission on Human Rights, Res. 1992/S-1/1 (ibid., § 744); UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic report (ibid., § 745); Director of MINUGUA, First report (ibid., § 746); UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Sudan, Report (ibid., § 747).
[19] See the practice of the ICRC (ibid., §§ 752–755 and 757–759).
[20] The protection of hospital ships is governed by the Second Geneva Convention, Articles 22–35, and by Additional Protocol I, Articles 22–23. Medical aircraft are dealt with in the next section.
[21] Additional Protocol I, Article 8(f)–(g).
[22] See, e.g., the practice of Australia (cited in Vol. II, Ch. 7, § 663), Cameroon (ibid., § 669), New Zealand (ibid., § 692), South Africa (ibid., § 700), Spain (ibid., § 701) and Romania (ibid., § 725).
[23] See the declaration to this effect by the United States (ibid., § 654); see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4712.
[24] First Geneva Convention, Article 36 (cited in Vol. II, Ch. 7, § 768); Fourth Geneva Convention, Article 22 (ibid., § 769).
[25] See, e.g., the military manuals of Belgium (ibid., § 780), Indonesia (ibid., 789), Switzerland (ibid., § 800), United Kingdom (ibid., § 801) and United States (ibid., § 803).
[26] Additional Protocol I, Articles 25–27 (adopted by consensus) (ibid., §§ 770–772).
[27] San Remo Manual, § 53(a) (ibid., § 776).
[28] See, e.g., the military manuals of Australia (ibid., § 779), Belgium (ibid., § 780), Canada (ibid., § 781), Hungary (ibid., § 788), Netherlands (ibid., § 793), New Zealand (ibid., § 794), South Africa (ibid., § 797), Spain (ibid., § 798), Sweden (ibid., § 799), United States (ibid., §§ 804–805) and Yugoslavia (ibid., § 807); see also the military manuals of Croatia (ibid., § 783), Lebanon (ibid., § 792) and Russian Federation (ibid., § 796) (requiring respect for aircraft displaying the distinctive emblem) and the military manuals of the Dominican Republic (ibid., § 784) (soldiers may not attack military aircraft) and Italy (ibid., § 791) (medical aircraft must be “respected and protected”).
[29] United States, Department of State, Remarks of the Deputy Legal Adviser (ibid., § 819).
[30] See, e.g., the military manuals of Ecuador (ibid., § 785) and United States (ibid., §§ 804 and 806).
[31] See the military manuals of Germany (ibid., § 683) (“their unhampered employment shall be ensured at all times”), South Africa (ibid., § 700) (“they may not be attacked or damaged, nor may their passage be obstructed”) and Switzerland (ibid., § 703) (“they shall not be attacked, nor harmed in any way, nor their functioning be impeded”).
[32] See, e.g., the military manuals of Benin (ibid., § 666), Nigeria (ibid., § 695), Senegal (ibid., § 699) and Togo (ibid., § 704).
[33] See the practice referred to supra in footnote 117; see also the practice of Argentina (ibid., § 661), Canada (ibid., §§ 670–671), Croatia (ibid., § 675), France (ibid., § 680), Italy (ibid., § 685), Netherlands (ibid., § 691) and South Africa (ibid., § 700).
[34] Additional Protocol I, Article 28(2) (adopted by consensus) (ibid., § 773); San Remo Manual (ibid., § 777); the military manuals of Australia (ibid., § 779), Canada (ibid., § 781), Croatia (ibid., § 782), France (ibid., § 786), Germany (ibid., § 787), Italy (ibid., § 790), Netherlands (ibid., § 793), Spain (ibid., § 798), Sweden (ibid., § 799) and Yugoslavia (ibid., § 807).
[35] France, Reservations and declarations made upon ratification of Additional Protocol I (ibid., § 774); United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I (ibid., § 775).
[36] Additional Protocol I, Article 28 (adopted by consensus) (ibid., § 773).