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.
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.
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”.
The US Air Force Pamphlet (1976) refers to the protection of medical units as set out in the 1949 Geneva Convention I.
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.
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”.
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.
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.”
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.
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.
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.
The manual qualifies “deliberate attack upon medical facilities” as a war crime.
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.
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.
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.
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.
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.”
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.
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.
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.
Under the US War Crimes Act (1996), violations of Article 27 of the 1907 Hague Regulations are war crimes.
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:
“ …
“(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.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
“§ 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.
The Act also states:
“§ 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.
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.
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.”
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”.
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.”
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.
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.