Norma relacionada
United States of America
Practice Relating to Rule 25. Medical Personnel
Section A. Respect for and protection of medical personnel
The US Field Manual (1956) grants respect and protection to both permanent and temporary medical personnel as provided for in Articles 24–25 of the 1949 Geneva Convention I. The manual states:
The respect and protection accorded personnel by Articles 19, 24, and 25 [of the 1949 Geneva Convention I] mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper functions. The accidental killing or wounding of such personnel, due to their presence among or in proximity to combatant elements actually engaged, by fire directed at the latter, gives no just cause for complaint.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 225–226.
Protection is also granted to the personnel of aid societies by reference to Article 26 of the 1949 Geneva Convention I.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 227.
The US Air Force Pamphlet (1976) refers to the protection of medical personnel as set out in the 1949 Geneva Convention I.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 12-2(b).
The Pamphlet further states: “In addition to grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: (1) deliberate attack on … medical … personnel”.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(1).
The US Air Force Commander’s Handbook (1980) provides that medical personnel, civilian or military, “should not be deliberately attacked, fired upon, or unnecessarily prevented from performing their medical duties. The same protection should also be given to any civilian or group of civilians trying to aid the sick and wounded after combat”.
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 3-2.
The US Naval Handbook (1995) states:
Medical personnel, including medical and dental officers, technicians and corpsmen, nurses, and medical service personnel, have special protected status when engaged exclusively in medical duties and may not be attacked.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.5.
The manual qualifies “deliberate attack upon … medical personnel” as a war crime.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.
The Annotated Supplement to the US Naval Handbook (1997) notes: “The United States supports the principle in [Article 15 of the 1977 Additional Protocol I] that civilian medical … personnel be respected and protected and not be made the objects of attack”.
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 11.5, footnote 31.
The US Naval Handbook (2007) states:
Medical personnel of the armed forces, including medical and dental officers, technicians and corpsmen, nurses, and medical service personnel, have special protected status when engaged exclusively in medical duties. In exchange for this protection, medical personnel must not commit acts harmful to the enemy. If they do, they risk losing their protection as noncombatants and could be attacked.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.2.4.1.
The Handbook also states:
Noncombatants [§ 5.4.2. – “Noncombatants are those members of the armed forces who do not take direct part in hostilities because of their status as medical personnel and chaplains”] may not be deliberately or indiscriminately attacked, unless they forgo their protection by taking a direct part in hostilities.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.
The Handbook further states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include: “Deliberate attacks upon … medical personnel.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6(7).
The Handbook also states:
Medical personnel … falling into enemy hands … unless their retention by the enemy is required to provide for the medical … needs of prisoners of war, … must be repatriated at the earliest opportunity.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.4.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, states: “The term ‘protected person’ means any person entitled to protection under one or more of the [1949] Geneva Conventions, including … military medical … personnel.”
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 1(a)(2)(C), p. IV-1.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
(a) DEFINITIONS AND CONSTRUCTION. – In this section:
…
(2) PROTECTED PERSON. – The term “protected person” means any person entitled to protection under one or more of the Geneva Conventions, including –
…
(C) military medical or religious personnel.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2625, § 950v(a)(2)(C).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950p. Definitions; construction of certain offenses; common circumstances
“(a) DEFINITIONS.—In this subchapter:
“ …
“(2) The term “protected person” means any person entitled to protection under one or more of the [1949] Geneva Conventions, including … military medical … personnel.
United States, Military Commissions Act, 2009, § 950p(a)(2).
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge defined various terms contained in the charge to which the accused had pleaded guilty:
“Protected person” means any person entitled to protection under one or more of the Geneva Conventions, including: (a) civilians not taking part in hostilities; (b) military personnel placed hors de combat by sickness, wounds, or detention; and (c) military medical or religious personnel.
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
At the CDDH, the United States stated that Committee II of the CDDH “was not competent to take a decision to apply to the 1949 Geneva Conventions the terms defined in Article 8”.
United States, Statement at the CDDH, Official Records, Vol. XI, CDDH/II/SR.4, 12 March 1974, p. 25, § 4.
Upon signature of the 1977 Additional Protocols I and II, the United States declared:
It is the understanding of the United States of America that the terms used in Part III of [the 1977 Additional Protocol II] which are the same as the terms defined in Article 8 [of the 1977 Additional Protocol I] shall so far as relevant be construed in the same sense as those definitions.
United States, Declaration made upon signature of the 1977 Additional Protocol I and the 1977 Additional Protocol II, 12 December 1977, § B.
In 1987, in submitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, the US President expressed the view that
the obligations in Additional Protocol II are no more than a restatement of the rules of conduct with which US military forces would almost certainly comply as a matter of national policy, constitutional and legal protections, and common decency.
United States, Message from the US President transmitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, Treaty Doc. 100-2, 29 January 1987, Comment on Article 10.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed that “we support the principle that medical and religious personnel must be respected and protected” as provided in Article 15 of the 1977 Additional Protocol I.
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, pp. 423–424.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated that medical personnel must be respected and protected at all times.
United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, Annex I, p. 2.
In 1996, the US Department of State qualified the killing of six ICRC medical aid workers in Chechnya as a “barbaric act” and condemned it “in the strongest possible terms”.
United States, Department of State, Daily Press Briefing, 17 December 1996.
In 1998, the Office of General Counsel of the US Department of Defence issued a memorandum on the subject of whether radio operators assigned to an air force medical unit could be issued with identification cards bearing the red cross and documenting their status as personnel “exclusively engaged in supporting a medical unit or establishment in performance of its medical mission” under Article 24 of the 1949 Geneva Convention I. The memorandum concluded that “the administrative staff category would appear to be broad enough to cover radio operators, so long as they are exclusively engaged in supporting a medical unit or establishment in the performance of its medical mission”.
United States, Department of Defence, Office of General Counsel, Memorandum for Defence Resources Activity, Subject: Geneva Convention Cards for Medical Personnel, 4 August 1998, Yearbook of International Humanitarian Law, Vol. 2, 1999, p. 422.
According to the Report on US Practice, it is the opinio juris of the United States that medical personnel are not to be knowingly attacked or unnecessarily prevented from performing their duties in either international or non-international armed conflicts. It adds: “Customary practice has proceeded little beyond the specific rules of the Geneva Conventions, with a few exceptions.” The report notes that there is no practice of incorporating medical staff in combat units in the armed forces.
Report on US Practice, 1997, Chapter 2.7.
