Соответствующая норма
United States of America
Practice Relating to Rule 28. Medical Units
The US Field Manual (1956) restates Article 19 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, § 220(a).
The US Field Manual (1976) restates Articles 21–22 of the 1949 Geneva Convention I and notes:
The presence of such arms and ammunition in a medical unit or establishment is not of itself cause for denying the protection to be accorded to such organisations under [the 1949 Geneva Convention I]. However, such arms and ammunition should be turned in as soon as practicable and, in any event, are subject to confiscation.
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, §§ 222–223.
The manual further states: “In addition to the ‘grave breaches’ of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (“war crimes”): … h. Improper use of privileged buildings for military purposes”.
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, § 504(h).
The US Air Force Pamphlet (1976) refers to the protection of medical units 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 also provides:
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 establishments [and] units,
…
(7) wilful and improper use of privileged buildings or localities for military purposes.
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) and (7).
The US Air Force Commander’s Handbook (1980) provides that hospitals and aid stations “should not be deliberately attacked, fired upon, or unnecessarily prevented from performing their medical duties”.
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 handbook further states:
Hospitals … lose their special status under the Geneva Conventions if they commit, or are used to commit, acts harmful to the enemy outside their humanitarian functions.
For example, using a hospital as an observation post, or to store nonmedical military supplies, or firing at the enemy from an ambulance, would deprive the hospital and the ambulance of protected status … Both the Geneva Conventions and the rules of engagement may impose additional restrictions on actually attacking medical activities that are improperly used. Thus, hospitals and mobile medical units may not be attacked until after a warning has been given setting, in proper cases, a reasonable time limit to correct past abuses.
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(d).
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … firing on facilities which are undefended and without military significance such as … hospitals … [and] improperly using privileged buildings for military purposes.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
The US Rules of Engagement for Operation Desert Storm (1991) states:
Hospitals will be given special protection.
…
Do not engage hospitals unless the enemy uses the hospital to commits acts harmful to US forces, and then only after giving a warning and allowing a reasonable time to expire before engaging, if the tactical situation permits.
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § D.
The US Naval Handbook (1995) states:
Medical establishments and units (both mobile and fixed), … and medical equipment and stores may not be deliberately bombarded. Belligerents are required to ensure that such medical facilities are, as far as possible, situated in such manner that attacks against military targets in the vicinity do not imperil their safety.
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), § 8.5.1.4.
The manual further states:
If medical facilities are used for military purposes inconsistent with their humanitarian mission, and if appropriate warnings that continuation of such use will result in loss of protected status are unheeded, the facilities become subject to attack.
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), § 8.5.1.4.
The manual qualifies “deliberate attack upon medical facilities” 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 US Manual for Military Commissions (2007), Part IV, Crimes and Elements, defines protected property as follows:
The term “protected property” means property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, or places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(a)(3), p. IV-3.
The manual includes in the list of crimes triable by military commissions:
ATTACKING PROTECTED PROPERTY.
a. Text. “Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused engaged in an attack;
(2) The object of the attack was protected property;
(3) The accused intended such protected property to be an object of the attack;
(4) The accused knew or should have known of the factual circumstances that established the property’s protected status; and
(5) The attack took place in the context of and was associated with armed conflict.
c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
d. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(4), p. IV-5.
Also included in the list of crimes is:
USING PROTECTED PROPERTY AS A SHIELD.
a. Text. “Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused positioned or otherwise took advantage of the location of protected property;
(2) The accused did so with the intent to shield a military objective from attack, or to shield, favor, or impede military operations; and
(3) The act took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for life.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(10), p. IV-8.
The US Naval Handbook (2007) states:
Medical establishments and units (both mobile and fixed), … and medical equipment and stores may not be deliberately bombarded. Belligerents are required to ensure that such medical facilities are, as far as possible, situated in such a manner that attacks against military targets in the vicinity do not imperil their safety. If medical facilities are used for military purposes inconsistent with their humanitarian mission, and if appropriate warnings that continuation of such use will result in loss of protected status are unheeded, the facilities become subject to attack.
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, § 8.9.1.4.
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 facilities.”
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 US Manual for Military Commissions (2010), Part IV, Crimes and Elements, defines protected property as follows:
The term “protected property” means any property specifically protected by the law of war (including … hospitals, and places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
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)(3), p. IV-1.
The manual includes in the list of crimes triable by military commissions:
ATTACKING PROTECTED PROPERTY.
a. Text. “Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused engaged in an attack;
(2) The object of the attack was protected property;
(3) The accused intended such protected property to be an object of the attack;
(4) The accused knew or should have known of the factual circumstances that established the property’s protected status; and
(5) The attack took place in the context of and was associated with hostilities.
c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
d. Maximum punishment. Confinement for 20 years.
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, § 5(4), p. IV-5.
Also included in the list of crimes is:
USING PROTECTED PROPERTY AS A SHIELD.
a. Text. “Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused positioned or otherwise took advantage of the location of protected property;
(2) The accused did so with the intent to shield a military objective from attack, or to shield, favor, or impede military operations; and
(3) The act took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for life.
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, § 5(10), p. IV-8.
Under the US War Crimes Act (1996), violations of Article 27 of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
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:
Ҥ 950v. Crimes triable by military commissions
“(a) DEFINITIONS AND CONSTRUCTION.—In this section:
“ …
“(3) PROTECTED PROPERTY.—The term “protected property” means property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, or places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“(4) ATTACKING PROTECTED PROPERTY.—Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.
“…
“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.
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. 2626, § 950v(a)(3) and (b)(4) and (10).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(4) ATTACKING PROTECTED PROPERTY.—Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.
“ …
“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(4) and (10).
The Act also states:
Ҥ 950p. Definitions; construction of certain offenses; common circumstances
“(a) DEFINITIONS.—In this subchapter:
“…
“(3) The term ‘protected property’ means any property specifically protected by the law of war, including … hospitals, and places where the sick and wounded are collected, but only if and to the extent such property is not being used for military purposes or is not otherwise a military objective. The term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
United States, Military Commissions Act, 2009, § 950p(a)(3).
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 Protocols I and II, 12 December 1977, § B.
In 1980, during a debate in the UN Security Council concerning an attack on UNIFIL headquarters in southern Lebanon, the United States stated: “On 12 April UNIFIL headquarters and the hospital at Naqoura were heavily shelled by militia artillery … These attacks must be brought to an end, once and for all.”
United States, Statement before the UN Security Council, UN Doc. S/PV.2218, 24 April 1980, § 77.
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 contained in the Protocol were “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: “We also support the principle that medical units, including properly authorized civilian medical units, be respected and protected at all times and not be the object of attacks.”
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, p. 423.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Contrary to the admonishment against such conduct contained in [the 1949 Geneva Conventions I and IV] and certain principles of customary law codified in [the 1977 Additional Protocol I], the Government of Iraq placed military assets (personnel, weapons, and equipment) … next to protected objects (mosques, medical facilities, …) in an effort to protect them from attack. For this purpose, military supplies were stored in mosques … and hospitals in Iraq and Kuwait.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 624.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated that medical facilities and hospital ships 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.
