Practice Relating to Rule 25. Medical Personnel

Hospital and ambulance personnel, including the quarter-master’s staff, the medical, administrative and transport services … shall have the benefit of the same neutrality [as military hospitals and ambulances] when on duty, and while there remain any wounded to be brought in or assisted. 

The personnel charged exclusively with the removal, transportation, and treatment of the sick and wounded, as well as with the administration of sanitary formations and establishments … shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be considered as prisoners of war. 

The personnel of volunteer aid societies, duly recognized and authorized by their own governments, who are employed in the sanitary formations and establishments of armies, are assimilated to the personnel contemplated in the preceding article, upon condition that the said personnel shall be subject to military laws and regulations. Each state shall make known to the other, either in time of peace or at the opening, or during the progress of hostilities, and in any case before actual employment, the names of the societies which it has authorized to render assistance, under its responsibility, in the official sanitary service of its armies. 

The personnel engaged exclusively in the collection, transport and treatment of the wounded and sick, and in the administration of medical formations and establishments, … shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be treated as prisoners of war. Soldiers specially trained to be employed, in case of necessity, as auxiliary nurses or stretcher-bearers for the collection, transport and treatment of the wounded and sick, and furnished with a proof of identity, shall enjoy the same treatment as the permanent medical personnel if they are taken prisoners while carrying out these functions. 

The personnel of Voluntary Aid Societies, duly recognized and authorized by their Government, who may be employed on the same duties as those of the personnel mentioned in the first paragraph of Article 9, are placed on the same footing as the personnel contemplated in that paragraph, provided that the personnel of such societies are subject to military law and regulations. Each High Contracting Party shall notify to the other, either in time of peace or at the commencement of or during the course of hostilities, but in every case before actually employing them, the names of the societies which it has authorized, under its responsibility, to render assistance to the regular medical service of its armed forces. 

Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments … shall be respected and protected in all circumstances. 

Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands. 

The staff of National Red Cross Societies and that of other Voluntary Aid Societies, duly recognized and authorized by their Governments, who may be employed on the same duties as the personnel named in Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff of such societies are subject to military laws and regulations.

Each High Contracting Party shall notify to the other, either in time of peace or at the commencement of or during the course of hostilities, but in any case before actually employing them, the names of the societies which it has authorized, under its responsibility, to render assistance to the regular medical service of its armed forces. 

Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick civilians, the infirm and maternity cases, shall be respected and protected. 

“medical personnel” means: (i) the medical personnel of the parties to the conflict, whether military or civilian, permanent or temporary, exclusively engaged in the operation or administration of medical units and means of medical transport, including their crews, and assigned inter alia to the search for, removal, treatment or transport of the wounded and sick;

(ii) the civil defence medical personnel referred to in Article 30 and the medical personnel of the National Red Cross (Red Crescent, Red Lion and Sun) Societies referred to in Article 35. 

“Medical personnel” means those persons assigned exclusively to the medical purposes enumerated in sub-paragraph (c) [the search for, collection, transportation, diagnosis or treatment – including first aid treatment – of the wounded, sick and shipwrecked, and for the prevention of disease] and also those persons assigned exclusively to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term shall include:

Persons employed in hospitals and ambulances – including the staff for superintendence, medical service, administration and transport of wounded, as well as … the members and agents of relief associations which are duly authorized to assist the regular sanitary staff – are considered as neutral while so employed, and so long as there remain any wounded to bring in or to succour. 

Medical personnel are those persons, military or civilian, assigned exclusively to medical tasks or to the administration of medical units or the operation or administration of medical transports. Such assignment may be permanent or temporary. In addition to doctors, dentists, nurses, medical orderlies and hospital administrators attached to the forces of military and civilian establishments, medical personnel include:

Medical personnel are those persons, military or civilian, assigned exclusively to medical tasks or to the administration of medical units or the operation or administration of medical transports. Such assignment may be permanent or temporary. In addition to doctors, dentists, nurses, medical orderlies and hospital administrators attached to the forces or military and civilian establishments, medical personnel include:

Identity cards are to be issued to … medical … personnel regardless of whether they are of permanent or temporary status. Under no circumstances are they to be deprived of this identification. Should circumstances prevent the issue of an identity card, a certificate may be issued temporarily until such time as a proper card can be issued. 

It is permitted to attack those who are not protected persons under the conventions while they are attempting to rescue aircrew who have crashed. However, rescuers such as medical personnel attempting to rescue injured airmen are protected. In such cases, the airman and his rescuers are protected in accordance with the Geneva Conventions. 

9.11 [Medical] personnel lose their protected status when … they engage in hostile acts, or attempt to shield military objectives from attack, other than circumstances in which:

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9.69 Military medical personnel, facilities and equipment are also entitled to general protection. However, they may lose this protection if they engage in acts harmful to the enemy. Before the protection of medical personnel and facilities is lost, a warning will normally be provided and reasonable time allowed to permit cessation of improper activities. In extreme cases, overriding military necessity may preclude such a warning. Protection will not be lost if medical members act in self-defence. Weapons may be carried. 

The protection accorded to the wounded would be illusory if the civilian and military medical services which are specifically set up to treat them could be attacked. Hence, medical services, identified by the Red Cross (or Red Crescent in certain countries), are not considered combatants or military objectives even if they wear the enemy uniform or bear its insignia. Enemy medical personnel … may not be attacked. 

The protection granted to the wounded would be illusionary if the civilian and military medical services, which are specifically designated to care for them, could be attacked.

The medical services … are therefore not considered as combatants or military objectives even if they wear the same uniform or insignia as the adversary.

Medical personnel … of the adversary may not be attacked.

They may not even be distracted from their activities if, at the moment of capture, they are busy with assisting the wounded. 

Certain categories of persons and objects benefit from special protection under the law of armed conflict and international humanitarian law, both in the civilian domain and in the military domain.

… Medical personnel are those assigned to medical units generally integrated in hospital zones and localities which are protected and can equally comprise safety zones and localities.

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The legislation is identical to that regarding military medical services. Nonetheless, one of the following conditions must [also] be fulfilled:

Medical and religious personnel must fulfil their tasks under the special protection of the belligerents; amongst other things, they must provide assistance in the various combat zones and when circumstances require.

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Medical personnel must be respected and protected in order to be able to act in favour of the wounded. Since they exercise their medical activities in the interest of the wounded, they must be able to do so without any doubt or constraint. 

Medical personnel of captured units and medical transports must be free to pursue their tasks in situations when the capturing force is not yet able to provide for the care for the wounded and sick in these units or transports. 

The evacuation of enemy medical military personnel is to be carried out via a medical channel and only when those personnel are no longer needed by the wounded and shipwrecked. They may be called upon to carry out medical tasks during the evacuation. 

These personnel are not prisoners of war, but they benefit from all provisions of the Third Geneva Convention [1949 Geneva Convention III] regarding the treatment of prisoners of war.

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But the temporary medical military personnel, being deployed to their missions, will be prisoners of war. 

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Every soldier must:

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respect medical units, establishments and transports, hospital zones and localities, places where the wounded and sick, civilian or military, are collected, the emblems of the Red Cross, the Red Crescent and national Red Cross and Red Crescent societies, which are protective signs as such, as well as medical personnel;

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For the application of the rules addressed in the two preceding paragraphs,

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the medical and religious personnel, apart from their distinctive emblem, must carry the special identity card defined by the Geneva Conventions.

These rules apply to the extent possible to operations undertaken by airplanes and navy ships against targets on land or at sea. 

“Medical personnel” are those persons, military or civilian, assigned exclusively to medical purposes or to the administration of medical units, or the operation or administration of medical transports. Such assignment may be permanent or temporary. In addition to doctors, dentists, nurses, medical orderlies, and hospital administrators, “medical personnel” includes personnel of national Red Cross and other voluntary aid societies recognized and authorized by a party to the conflict. The term also includes medical personnel attached to civil defence units, any persons made available for humanitarian purposes by a neutral state, a recognized and authorized aid society of such a state, or an impartial international humanitarian organization. 

There are two categories of medical personnel: permanent and temporary. Permanent medical personnel include doctors, nurses and medical assistants who are engaged exclusively in the collection, transport or treatment of the sick or wounded, or in the prevention of disease; staff exclusively engaged in the administration of medical units and establishments; and chaplains attached to the armed forces. These people shall be respected and protected. They must not be attacked. … If captured, permanent medical personnel and chaplains, although detained, will continue to care for their sick and wounded. If there is no such medical requirement, they are to be released and returned to their own forces. Temporary medical personnel may be employed on a part-time basis as hospital orderlies or temporary stretcher bearers in the search for and collection, transport and treatment of the sick and wounded. Part-time medical personnel are protected when they are carrying out those duties and shall not be the object of attack … Captured temporary medical personnel who are detained may be employed on medical duties. Unlike permanent medical personnel, temporary medical personnel do not have to be released to their side even if there is no medical requirement for their services.

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Under the Law of Armed Conflict, the International Committee of the Red Cross (ICRC) has a special role and status. The ICRC may undertake to care for the wounded and sick. The ICRC is an independent humanitarian institution. As a neutral intermediary in the event of armed conflict it endeavours, on its own initiative or on the basis of the Geneva Conventions, to bring protection and assistance to the victims of armed conflict. Members of the ICRC wear the distinctive emblem. As such, they must be protected at all times.

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NGOs such as CARE and Médecins Sans Frontières (Doctors Without Borders) might wear other recognizable symbols. The symbols used by CARE, MSF and other NGOs do not benefit from international legal protection, although their work in favour of the victims of armed conflict must be respected. Upon recognition that they are providing care to the sick and wounded, NGOs are also to be respected. 

1. Personnel of the armed forces permanently assigned to medical activities, to the administration of medical units and to medical transport (“medical duties”) are non-combatants. They may not be attacked. If captured, permanent medical personnel will be returned to their own armed forces unless they are retained by the detaining power to assist PWs [prisoners of war].

2. Personnel of the armed forces temporarily assigned to medical duties during a limited period of time, such as stretcher-bearers, are non-combatants when engaged in such duties. They may not be attacked while engaged in medical duties. If captured, temporary medical personnel become PWs. 

Medical and religious personnel, both military and civilian, have protected status and thus shall not be attacked. These persons wear the Red Cross or Red Crescent … and carry identity cards which identify them as protected persons. 

Humanitarian aid societies, such as the Red Cross or Red Crescent Societies, who on their own initiative, collect and care for the wounded, sick and shipwrecked, even in invaded or occupied areas, shall not be made the object of attack. 

“Medical personnel” are those persons, military or civilian, assigned exclusively to medical purposes or to the administration of medical units, or the operation or administration of medical transports. Such assignment may be permanent or temporary. In addition to doctors, dentists, nurses, medical orderlies, and hospital administrators, “medical personnel” includes personnel of national Red Cross and other voluntary aid societies recognized and authorized by a party to the conflict. The term also includes medical personnel attached to civil defence units, any persons made available for humanitarian purposes by a neutral state, a recognized and authorized aid society of such a state, or an impartial international humanitarian organization. 

3. Protection and respect must be extended to persons regularly and solely engaged in the operation and administration of civilian hospitals. Included in this category are persons engaged in the search for, removal, transport and care of wounded and sick civilians. In occupied territory and in zones of military operations such personnel must carry an identity card certifying their status, bearing the photograph of the holder and stamped by the responsible authority. The belligerents must also issue to them special armlets (bearing the Red Cross or equivalent emblem), to be worn while they are carrying out their duties.

4. Other persons, engaged in the operation and administration of civilian hospitals, are entitled to protection, and to wear the armlet while employed on their duties. Their identity cards must state what those duties are. The management of each hospital must hold at the disposal of the competent national or occupying authorities an up-to-date list of the personnel employed in the hospital. 

a. the search for the wounded, sick and shipwrecked;

b. the collection, transportation, diagnosis or treatment (including first aid treatment) of the wounded, sick and shipwrecked; and

c. medical activities for the prevention of disease. 

2. There are two categories of medical personnel: permanent and temporary. Permanent medical personnel include doctors, nurses and medical assistants who are engaged exclusively in the collection, transport or treatment of the sick or wounded, or in the prevention of disease; staff exclusively engaged in the administration of medical units and establishments; and chaplains attached to the armed forces. These people shall be respected and protected. They must not be attacked … If captured permanent medical personnel and chaplains although detained, will continue to care for their sick and wounded. If there is no such medical requirement, they are to be released and returned to their own forces.

3. Temporary medical personnel may be employed on a part-time basis as hospital orderlies or temporary stretcher bearers in the search for and collection, transport and treatment of the sick and wounded. Part-time medical personnel are protected when they are carrying out those duties and shall not be the object of attack … Captured temporary medical personnel who are detained may be employed on medical duties. Unlike permanent medical personnel, temporary medical personnel do not have to be released to their side even if there is no medical requirement for their services.

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7. Under the Law of Armed Conflict, the International Committee of the Red Cross (ICRC) has a special role and status. The ICRC may undertake to care for the wounded and sick. The ICRC is an independent humanitarian institution. As a neutral intermediary in the event of armed conflict it endeavours, on its own initiative or on the basis of the Geneva Conventions, to bring protection and assistance to the victims of armed conflict. Members of the ICRC wear the distinctive emblem. As such, they must be protected at all times.

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9. NGOs such as CARE and Médecins Sans Frontières (Doctors Without Borders) might wear other recognizable symbols. The symbols used by CARE, MSF and other NGOs do not benefit from international legal protection, although their work in favour of the victims of armed conflict must be respected. Upon recognition that they are providing care to the sick and wounded, NGOs are also to be respected. 

Specially protected personnel [military and civilian medical services, as identified in Volume 1 of this manual] are authorized to carry out their tasks unless the tactical situation does not allow it. The mission and actual activities of such personnel may be checked. 

Lesson 1. Basic notions of IHL

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The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.

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- Who and what must be protected?

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Lesson 2. Identification

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II.2 Persons and objects under special protection

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Lesson 3. Rules of behaviour in combat

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15. Respect medical personnel, material and establishments. 

I.3. Protection of military medical and religious personnel

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The law gives civilian medical and religious personnel the same status as military medical and religious personnel. Both must be respected and protected. It is appropriate to do everything to allow them to carry out their activities.

Combatants, temporarily used as nursing auxiliaries, from the legal point of view remain combatants. In fact, it can, for example, be urgently necessary to have stretcher-bearers to take the wounded from the frontline. They are therefore clearly combatants entrusted with a temporary mission, and not medical personnel in the sense described above. Nevertheless, they must be respected and protected while they fulfil their medical functions. If they are captured, they are prisoners of war. 

Doctors, nurses and other medical … personnel who serve in hospitals or work for the Red Cross … shall be specially protected because they relieve, aid and comfort all victims without distinction between friend and foe. 

Medical personnel engaged in the search for, or the collection, transport, or treatment of the wounded or sick must be respected and protected in all circumstances. …

Medical … personnel include:

If medical … personnel fall into “enemy” hands, they shall be allowed to continue their duties towards the wounded and sick. 

It is prohibited to interfere with the administration of medical aid … In fact, this prohibition also covers the attack on medical personnel, paramedics and doctors in the battlefield itself. According to the Geneva Convention, medical teams are not part of the armed conflict. They are marked with distinctive identification signs, they do not carry arms, they do not cause injury and it is forbidden to harm them. It is prohibited to shoot a paramedic in the battlefield or to take him prisoner. The medical team is also restricted in that it does not take part in the hostilities, does not carry any weapons and is committed to administering medical aid also to the enemy’s wounded. In actuality, this provision is not observed in the wars and confrontations waged in the Middle East, at least not in regard to medical teams in the field. They are not immune to harm, they are not identified by special identification symbols, they bear arms and take part in the fighting. This situation also exists in many other armies around the world, including the American army. 

It is absolutely forbidden to attack the medical facilities of the enemy including military medical facilities and it is forbidden to attack the enemy’s wounded. This ban also applies to attacks on medical personnel, paramedics and doctors in the battlefield. According to the Geneva Convention medical teams are not part of the fighting force, they are marked with recognised insignia and do not carry arms. They do not attack and it is forbidden to attack them. It is forbidden to open fire on a medic on the battlefield and he/she must not be taken into captivity, providing the medical team is not participating directly in the war and does not carry arms. … In wars and confrontations in the Middle East, the medical teams have not worn special insignia; they participate in the fighting, consequently they are not protected from being attacked. 

Medical personnel are those exclusively assigned to medical units and engaged in the search for, or the collection, transport or treatment of the wounded and sick, or in the prevention of disease. They are to be respected, protected and not attacked. Military medical personnel who are captured during an international armed conflict are not prisoners of war. They may be “retained” for the sole purpose of providing medical care for POWs [prisoners of war] of their own forces … Military medical personnel who may have medical duties to perform on a temporary basis, e.g. stretcher bearers, may not be attacked while performing medical duties. On capture, they become POWs but are to be employed on medical duties if the need arises. 

Medical personnel engaged temporarily or permanently in the care of the wounded and the sick must be able to fulfil their humanitarian tasks under all circumstances. Persons in charge of the administration and operation of medical units and material (for example administrative personnel, cooks and drivers) belong to the medical personnel. This personnel may not be attacked. 

Rendering humanitarian assistance never means involvement in the conflict.

Examples:

[Medical and religious personnel] may be held by the adversary only as long as the state of health, spiritual needs and numbers of prisoners of war require. During the time of detention of medical personnel by the adversary, they must at least enjoy the benefits of the Prisoner of War Convention [1949 Geneva Convention III]. They must be returned if the medical or religious activities are not necessary and military circumstances make a return possible. The exception is that medical auxiliaries are treated as prisoners of war. 

Medical and religious personnel must be respected, protected and helped in fulfilling their duties. They may not be forced to carry out tasks incompatible with their humanitarian mission. 

Medical personnel are those persons, military or civilian, assigned exclusively to medical purposes or to the administration of medical units or the operation or administration of medical transports, and such assignment may be permanent or temporary. In addition to doctors, dentists, nurses, medical orderlies, hospital administrators and the like, attached to the forces or military and civilian establishments, there are included the personnel of national Red Cross and other voluntary aid societies recognised and authorized by a Party to the conflict, medical personnel attached to civil defence units, and any persons made available for humanitarian purposes by a neutral State, a recognised and authorised aid society of such State, or an impartial international humanitarian organisation.

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Protection and respect must be extended to persons regularly and solely engaged in the operation and administration of civilian hospitals. Included in this category are persons engaged in the search for, removal, transport and care of wounded and sick civilians, the infirm, and maternity cases.

Other persons engaged in the operation and administration of civilian hospitals are entitled to protection … while employed on their duties. 

Medical personnel engaged exclusively in the search and collection of the wounded and sick and the prevention of disease, the staff engaged in the administration of hospitals and medical units … are also entitled to protection. 

[A]ll medical personnel performing their duties in armed conflicts must be respected and protected. This means that they must not be attacked and must be defended, assisted and supported when necessary. This right applies in all circumstances, and the obligation that it entails is binding on everyone, particularly combatants, regardless of which side they belong to. 

b. The protection to which medical personnel are entitled is not an individual privilege granted to them, but rather a natural corollary to the requirement to respect and protect the victims of armed conflict.

c. Medical personnel must refrain from any act of hostility. They are protected because they must remain neutral towards the armed conflict in which they are performing their duties. If they cease to be neutral, they lose this protection.

“Neutrality”, in respect of medical personnel, is the obligation to refrain from any hostile act or, in general, any involvement in military operations. If they meet this requirement, they are granted special protection. 

(1) When permanent military medical personnel fall into the hands of the enemy, they do not become prisoners of war, although they can be retained to provide assistance to wounded and sick members of their own armed forces who have been captured.

(2) Captured military medical personnel can only be retained for as long as there are medical duties for them to perform. When this is not the case, they must be repatriated.

(3) Civilian medical personnel who fall into the hands of the enemy cannot be detained and must be allowed to continue performing their medical duties. If security measures have to be taken, civilian medical personnel are entitled to all the protection granted to protected persons.  

The norms of international humanitarian law provide that medical personnel performing their duties in armed conflict must be respected and protected. This means that they must not be attacked and must be defended, assisted and supported when necessary. This right applies in all circumstances, and the obligation that it entails is binding on everyone, particularly soldiers, regardless of which side they belong to. 

b. The protection of medical personnel is not an individual privilege granted to them, but rather a natural corollary to the requirement to respect and protect the victims of armed conflict.

c. Medical personnel must refrain from any act of hostility. Members of the medical personnel are protected because they must remain neutral towards the armed conflict in which they are performing their duties. If they cease to be neutral, they lose this protection.

“Neutrality”, in respect of medical personnel, is the obligation to refrain from any hostile act or, in general, any involvement in military operations. If they meet this requirement, they are granted special protection. 

(1) When permanent military medical personnel fall into the hands of the enemy … they can be retained to provide assistance to wounded and sick members of their own armed forces who have been captured.

(2) Captured military medical personnel can only be retained for as long as there are medical duties for them to perform. When this is not the case, they must be repatriated.

(3) Civilian medical personnel who fall into the hands of the enemy cannot be detained and must be allowed to continue performing their medical duties. If security measures have to be taken, civilian medical personnel are entitled to all the protection granted to protected persons. 

1-6.3. The 1949 Geneva Convention includes the doctrine of proportionality – a concept which provides foundation for LOAC … It also embodies the protection of the various classes of people affected by the hostilities.

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1-6.5. In addition to the conventions, Additional Protocols are incorporated which deal with people and their claim to protection under defined circumstances, such as medical and religious personnel. Additional Protocol One includes international conflicts and wars of national liberation. In effect, it defines the protection of the civilian population in times of international conflict.

1-6.6. Additional Protocol Two defines two things: limitations in the conduct of operations and principles relating to the protection of civilians in a non-international conflict. Thus, every combatant should understand the consequences of this Protocol. 

Enemy medical and religious personnel shall be respected and protected and shall not be made the object of attack, unless such personnel, when checked, have committed acts which go beyond their professional (medical or religious) duties and if they refrain from taking part in hostilities; if the said persons observe the established identification rules … Protection may cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit and after such warning has remained unheeded. 

Medical … personnel of the parties to a conflict, whether military or civilian, are to be respected and protected. This protection is not a personal privilege but rather a natural consequence of the rules designed to ensure respect and protection for the victims of armed conflict. Protection is accorded to medical personnel to facilitate the humanitarian tasks assigned to them; the protection is therefore limited to those circumstances in which they are carrying out these tasks exclusively.

62. Medical … Personnel. Medical … personnel of the parties to a conflict, whether military or civilian, are to be respected and protected. This protection is not a personal privilege but rather a natural consequence of the rules designed to ensure respect and protection for the victims of armed conflict. Protection is accorded to medical personnel to facilitate the humanitarian tasks assigned to them; the protection is therefore limited to those circumstances in which they are carrying out these tasks exclusively.

63. Two types of medical personnel are involved in military operations. They can be categorised as follows:

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The following persons and objects fall within the specifically protected category under the LOAC:

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Civilian persons, medical personnel and chaplains present in a military object or in the immediate vicinity of such an object share the risk of possible attacks.

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The LOAC grants particular protection to specific categories of persons and objects[.] The reason for this special protection corresponds with the general aim of the LOAC, to wit, to allow commanders to wage war against the enemy with maximum effect, but at the same time to minimise the suffering of those who are caught up in a war without being any threat to the warring parties.

Persons who are specifically protected are persons who do not participate in hostilities and objects specifically protected are those that are not used for combat purposes. Such persons and objects are not used in attacks and cannot properly defend themselves against attacks.

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- Medical personnel and chaplains (Geneva Conventions 3 article 33 and Additional Protocol I article 43). Medical personnel are:

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- Specific Provisions. Apart from the abovementioned general principles, the LOAC also contains specific provisions relating to the respective categories of protected persons and objects, which must be complied with.

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- The LOAC is aimed at allowing the tasks of the following specifically protected persons and objects within the armed forces (in the widest sense) to continue independently of any military operations[:]

Providing for this specific protection is:

- The special protection regarding protection of civilians and civilian objects is aimed at[:]

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- Persons who enjoy protection in terms of the LOAC are combatants who are hors de combat, civilians, medical and religious personnel and the dead.

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According to Additional Protocol I article 8(c), read with Geneva Convention I article 24 and Geneva Convention II articles 36 and 37, the following personnel fall under the definition of “medical personnel”:

The staff of the National Red Cross Societies and that of other legal and recognised Voluntary Aid Societies and their transportation and equipment (Geneva Convention I article 26) [a]re placed on the same footing as military medical personnel, provided that they shall be subject to military laws and regulations. Personnel of these organisations may be employed on the same duties as military medical personnel, as set out above.

Recognised societies of neutral countries may lend the assistance of their medical personnel and units to a Party to a conflict, with the prior consent of its government. Such personnel and units must be placed under the control of that Party to the conflict. The neutral Government must notify the adversary of the Party to whom the neutral State is providing the assistance and the Party who is making use of such assistance must also notify the adverse Party thereof. Such medical assistance may not be regarded [as] interference of the neutral State in the conflict. (Geneva Convention I article 27.)

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Additional Protocol [I] Article 43.2 states that medical personnel and chaplains are not “combatants” even though they are members of an armed force of a Party to a conflict.

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- Military medical and religious personnel mentioned above are at all times entitled to protection from the use of force against them, provided that they themselves refrain from any participation in combat or hostile military action, excluding private defence. (Geneva Convention I article 24.)

Medical auxiliary personnel are only protected while actually carrying out their medical duties. (Geneva Convention I article 25.)

- Military medical and religious personnel[] are non-combatants, therefore they do not become POW [prisoners of war] when falling into the power of the enemy Party. However:

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- Non-International Armed Conflicts. Article 9 of [the 1977] Additional Protocol II determines that in non-international armed conflicts, medical and religious personnel shall[:]

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Military medical personnel and chaplains of the armed forces are specifically protected by the LOAC.

Military and civilian religious personnel are both specially protected by the LOAC, but are protected differently in that military religious personnel have the same status as military medical personnel and civilian religious personnel enjoy the same protection as civilians.

Military medical personnel are those persons who are exclusively (permanently or temporarily) employed in the medical tasks and support personnel such as those exclusively employed in the administration of medical units and establishments. Medical auxiliary personnel are also specifically protected while engaged in their duties.

The staff of the National Red Cross Societies and that of other legal and recognised Voluntary Aid Societies are treated the same as military medical personnel, provided that they shall be subject to the same laws and regulations. The same applies to recognised societies of neutral countries that may lend medical assistance to a Party to a conflict, with the prior consent of its government. Such personnel and units must be placed under the control of that Party to the conflict. However, their property remains private property.

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Members of the medical personnel and chaplains may not renounce the rights that they have under LOAC.

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Military medical personnel and religious personnel mentioned above are at all times entitled to protection from the use of force against them as long as they refrain from any hostile military action. Medical and religious personnel are non-combatants, therefore they do not become POW when falling into the power of the enemy Party. They may be retained by the capturing party for the purpose of providing medical and religious services to POW. While they are retained, they are entitled to support and assistance by the retaining Power. If such services are not required anymore, they must be released, according to specific prescripts, to return to their own forces.

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Captured military medical establishments, units or vehicles are the responsibility of the captor who must care for the wounded and sick therein. The captor must also allow the captured medical personnel to continue with their duties until such time as the capturing Party assumes the responsibility therefore.

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Before military medical establishments, units or transport can forfeit their protection, due warning must be given to that institution or unit that it is to lose its protection and render it liable to attack, a reasonable time limit must be given for the institution or unit to put an end to its harmful acts; and the warning must remain unheeded.

Medical and religious personnel are also protected during non-international armed conflicts where they shall be respected and protected, granted all available help for the performance of their duties and not be compelled to carry out tasks which are not compatible with their humanitarian mission.

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As seen above, it is allowed for civilian hospitals[] (and therefore also civilian medical personnel) to deal with civilian as well as military wounded, sick and shipwrecked. However, it must be remembered that the civilian and military status of the persons and objects concerned are not affected thereby. Wounded, sick and shipwrecked combatants will be protected as hors de combat personnel, while such civilians will remain protected as civilians.

It is prohibited for civilian medical personnel to renounce in part or in entirety the rights that they have under this Convention. (Article 7 of Geneva Convention I.)

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Non-International Armed Conflicts. Article 9 of Additional Protocol II also applies to civilian medical and religious personnel. They shall therefore also:

The LOAC extends special protection to civilian medical services and religious personnel.

The provisions governing military medical personnel, establishments and transport apply equally to civilian medical services.

Civilian medical and religious personnel are all medical and religious personnel that are not military medical personnel or chaplains of the armed forces.

Staff of civilian hospitals are those who are regularly and solely engaged in the operation and administration of civilian hospitals. They must always be respected and protected.

Civilian medical personnel shall be respected and protected. All available help must be given to them where civilian medical services are disrupted by war. Occupying Powers must assist them with the performance of their functions and may not require from them to give priority to the treatment of any person, except on medical grounds.

Civilian medical personnel shall have access to any place where their services are essential, but the relevant Party to the conflict may introduce supervisory and safety measures.

…

Civilian medical personnel may not renounce any of their rights under Geneva Convention I.

…

During non-international armed conflicts, civilian medical and religious personnel shall be respected, protected, granted all available help for the performance of their duties and not be compelled to carry out tasks which are not compatible with their humanitarian mission.

…

…

Members of the medical services and religious personnel who have been captured are not regarded as POW but enjoy nevertheless, as a minimum, all the advantages of Geneva Convention III.

Medical personnel of hospital ships and their crews shall be respected and protected and they shall not be captured as long as they serve on the hospital ships, irrespective of whether there are wounded and sick on board or not.  [emphasis in original]

- Targeting Prohibitions. It is prohibited to specifically target those possible targets which are specially protected under the Geneva Conventions and Additional Protocol I such as:

It must be underlined that the protection of medical personnel is not a personal privilege but rather a corollary of the respect and protection due to the wounded and sick, who must be treated humanely in all circumstances. This means that the protection of medical personnel is not permanent but is only granted when such personnel are carrying out their humanitarian tasks. Medical personnel lose the special protection to which they are entitled if they commit acts of hostility. Such behaviour might even constitute perfidy if in so doing they take advantage of their medical position and the distinctive emblems. 

It should be emphasized that the protection to which medical personnel are entitled is not an individual privilege granted to them, but rather a natural corollary to the obligations to respect and protect the wounded and sick, who must be treated humanely in all circumstances.

This means that such protection is not permanent; it is granted when and for as long as medical personnel are performing humanitarian duties. If medical personnel commit acts of hostility, they lose this special protection, and their conduct could be considered an act of perfidy if they take advantage of their medical status or the protective emblems to commit such acts. 

- Personnel, installations, material and means of transport of the medical services as well as carriers

of signs or objects marked with distinctive signs must be respected and spared;

… 

159 Hostilities must be directed exclusively against combatants and military objectives. …

…

3 Protected persons are persons who are not or no longer taking part in combat or enjoy specially protected status, such as medical and religious personnel, civil protection or cultural property protection personnel, as well as wounded persons and prisoners of war.

…

…

176 Medical personnel, equipment and means of transport as well as localities used by the military service must be spared and must not be hindered in the fulfilment of their mission.

177 The red cross and the red crescent on a white ground represent a distinctive emblem. Civilian and military medical personnel must be enabled to carry out their duties at all times. Civilian and military medical personnel who do not participate in hostilities must be protected at all times, even when wearing no distinctive emblem or no distinctive emblem that has been officially recognized by the Conventions.

178 For their own protection, medical personnel may be armed with a personal weapon (e.g. assault rifle, submachine gun, pistol). Explosive weapons and collective weapons are prohibited. Medical personnel do not participate in hostilities, except for their own protection or for the protection of the patients in their care. Nor must they be engaged in other harmful acts (e.g. intelligence services).

179 Enemy medical personnel may be retained for as long as they are needed for the care of patients. Superiors make the necessary arrangements.

…

…

…

225 Indiscriminate attacks, i.e. attacks which cannot distinguish between protected persons/objects and military objectives, as well as attacks directed against protected persons/objects or acts of revenge are prohibited in any place and at any time.

…

…

237 The following in particular are criminal offences: … harmful acts against internationally protected persons and objects[.] 

1.2.24. Non-combatants (those who do not fight) are members of the armed forces who provide assistance to them but take no direct part in hostilities. These [include] medical personnel … Weapons shall not be employed against such persons while they are engaged in the performance of their direct duties.

Such persons become combatants in case of their direct participation in hostilities.

…

1.2.34. “Medical personnel” (both military and civilian) means members of medical units assigned (permanently or temporarily):

must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper functions. The pure accidental killing or wounding of protected personnel when in or near the area of combat is not a legitimate cause for complaint. 

7.11. “Medical personnel” means “those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated in paragraph 7.10 [relating to medical units] or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary’.

7.11.1. The term embraces not only doctors and nurses but also a wide range of specialists, technicians, maintenance staff, drivers, cooks and administrators. It expressly includes military and civilian personnel and those assigned to civil defence organizations as well as medical personnel of national Red Cross or Red Crescent or other duly authorized and recognized national voluntary aid societies. Personnel of medical units and transports of neutral and other states not parties to the conflict, national aid societies of such states and impartial international humanitarian organizations are also included within the definition if made available to a party to the conflict for humanitarian purposes. While the expression includes dental personnel and chaplains in medical units and part-time medical personnel while engaged on medical duties, it excludes qualified medical and dental practitioners who are not assigned exclusively to medical purposes.

…

7.26. Service medical personnel must be clearly identifiable as such so that they receive the protection and respect due to them. To achieve this, all service medical personnel must, in addition to normal service identity discs, wear on the left arm a water-resistant armlet (brassard) bearing the appropriate distinctive emblem. The armlet should be issued and stamped by the military authority. Service medical personnel must also carry a special identity card bearing the distinctive emblem. This card is embossed with the stamp of the military authority. These service identity cards must be uniform throughout the same armed forces and, as far as possible, of a similar type in the armed forces of all parties to Geneva Conventions I and II. Parties to a conflict must inform each other at the outbreak of hostilities which model identity card they are using. Identity cards should be made out, if possible, at least in duplicate, one copy being kept by the home country. In no circumstances may service medical personnel be deprived of their armlets (or the right to wear them) or of their identity cards. In the case of loss they are entitled to receive duplicates of the cards and to have the insignia replaced.

…

7.27. In the event of capture, medical personnel do not become prisoners of war but are “retained personnel”.

7.28. Auxiliary medical personnel are members of the armed forces who are specifically trained for employment, when the need arises, as hospital orderlies, nurses or auxiliary stretcher-bearers in the search for or the collection, transport or treatment of the wounded and sick. Auxiliary medical personnel are issued with a special identity card. Auxiliary medical personnel become prisoners of war on capture. They may be required to exercise their medical functions in the interests of prisoners of war of their own state. In that case, they are exempt from any other work.

…

7.29. Civilian medical personnel are to be accorded the same protection as service medical personnel and, in occupied territory and areas where fighting is taking place or is likely to take place, they should be recognizable by the distinctive emblem and carry an identity card certifying their status. This card differs from that issued to service medical personnel. Civilian medical personnel who fall into the hands of the enemy should not be detained and should be allowed to continue their medical duties. If any security measures have to be taken, civilian medical personnel have all the protection of protected persons. 

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. 

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. 

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. 

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. 

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. 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

Whoever, in violation of the rules of international law in time of war or armed conflict, orders or perpetrates in regard to … medical personnel … any of the following acts:

shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. 

medical, paramedical and aid society personnel, members of the International Red Cross and Red Crescent Movement and persons who, permanently or temporarily, provide humanitarian services and transports of medicine, food and humanitarian aid in situations of armed conflict or natural disaster. 

All authorities and persons in Colombia must protect the medical … personnel of the public forces [i.e. the armed forces and the police], the civilian medical personnel [as well as] the medical, paramedical and relief personnel who permanently or temporarily carry out humanitarian tasks in situations of armed conflict. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

(1) Whoever, in the circumstances defined above [in time of war, armed conflict or occupation] organizes, orders or engages in:

is punishable in accordance with Article 270 [with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death]. 

Combatants must respect and treat with humanity all persons protected by the applicable international conventions, as well as their objects.

… [M]edical … personnel are protected persons …

Protected persons are protected as long as they abstain from taking a direct part in hostilities.

It is prohibited for combatants to deliberately target protected persons. 

Intentionally launching attacks against medical personnel … displaying, in accordance with international law, the distinctive emblems provided for in the [1949 Geneva Conventions] or their [1977] Additional Protocols is punishable by 20 years’ imprisonment. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

375. Use of weapons against … medical … personnel. – Anyone who uses weapons … against the personnel responsible for [the sick and wounded] … when, in accordance with the law and international agreements, they must be regarded as respected and protected, shall, unless the act constitutes a more serious offence, be punished by military confinement for not less than 10 years.

…

378. Violence against medical personnel … – 1. … [A]nyone who uses violence against any of the persons regularly assigned to the medical service, when, in accordance with the law and international agreements, the said personnel must be respected and protected, shall be punished by imprisonment for 5 to 15 years.

379. Failure to release medical personnel … — Anyone who, in violation of the laws and international agreements, fails to hand over or release or otherwise detains any of the persons referred to in the preceding article when they have ceased to carry out their work in the hospitals, ambulances or other places where they were providing services, shall be punished by military confinement for one to five years. 

Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:

Subject to the provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding twenty years, or with any lighter penalty, whoever treats inhumanly any of the persons hereinafter mentioned, during wartime, by killing him/her or causing physical or moral injury or grievous suffering thereto …:

1 The present ordinance regulates:

2 For the rest, the members of the RCS have the same rights and the same duties as the military.

1 Members of the RCS are assigned to the army as specialists. They carry out their tasks within the framework of the army’s medical service.

2 Within the framework of the instruction, peace support and assistance services and within the framework of the active service, they support:

3 They are responsible for promoting the fundamental rules of international humanitarian law and the principles of the Red Cross. 

(a) DEFINITIONS AND CONSTRUCTION. – In this section:

Ҥ 950p. Definitions; construction of certain offenses; common circumstances

“(a) DEFINITIONS.—In this subchapter:

[I]nternational law provides protection for medical stations and personnel against attack by combat forces. Article 19 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of Aug. 12, 1949 … forbids, under all circumstances, attack of stations and mobile medical units of the “Medical Service,” that is to say, hospitals, medical warehouses, evacuation points for the wounded and sick, and ambulances. 

17. … Everyone agrees that the rules of customary international law – which grant protection to medical personnel … – apply to the combat operations that are being carried out in the “Cast Lead” operation and bind the actions of the IDF [Israel Defense Forces].

18. The provisions of international humanitarian law grant protection to medical … personnel from being attacked. Thus … arts. 24–25 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, prohibit any attack upon medical personnel, if they are exclusively or currently engaged in medical activities; art. 26 of the Fourth Geneva Convention extends this protection to members of the Red Cross or other international organizations that fulfil similar functions (see also art. 20 of the Fourth Geneva Convention). A detailed definition of what constitutes protected medical personnel is laid down in art. 8(c) of the First Protocol [1977 Additional Protocol I] and detailed provisions with regard to the protections that are given to medical personnel are laid down in arts. 12–16 of the First Protocol. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

…

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

“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. 

The Friends Group is pleased with the work undertaken by the Security Council, in the last few years, in progressively strengthening the protection framework for children affected by armed conflict. …

Members of the Friends Group have reliably called on the Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].

For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel.  

The Secretary General and the International Committee of the Red Cross highlight the fact that health care providers and facilities continue to come under attack in situations of conflict and violence. … Humanitarian workers, including medical volunteers, have lost their lives in the performance of their duties. 

The brutal conflict in Syria represents a stark example of how much work remains to be achieved to better protect civilians who are routinely victims of deliberate and targeted attacks, as are hospitals, medical facilities and health care workers. The result is that people in desperate need are denied lifesaving humanitarian assistance. … Canada calls on all parties to the conflict in Syria to refrain from attacking civilians and other protected persons and facilities in conformity with their obligations under international law. 

The IDF … has chosen to incorporate its front-line medical staff in its combat units. As a result, when participating in combat missions, front-line Israeli military medical personnel would not carry distinguishing marks and do not expect to be granted protected status in combat situations. 

The Friends Group is pleased with the work undertaken by the [UN] Security Council, in the last few years, in progressively strengthening the protection framework for children affected by armed conflict. …

Members of the Friends Group have reliably called on the Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].

For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel. 

In Armed conflicts recognisable emblems serve above all to protect military and civilian medical installations as well as the buildings of national relief organisations and their personnel from attack (protective function). This protection is guaranteed not by the emblems themselves but is based directly in international law.

…

…

The medical and religious personnel who administer to prisoners must not be considered prisoners of war, although they have the right to the same treatment. 

The current situation in Gaza cries out to us the importance of the issue we are discussing today. …

…

… Switzerland also wishes to recall that all the parties to the conflict are under the obligation to protect medical personnel, hospitals and other sanitary facilities. 

One of the primary concerns of humanitarian law and policy is to guarantee access to victims and to provide assistance to them. However, it frequently occurs … that it is impossible to ensure the security of humanitarian actors. This was once more clearly evident in the Gaza Strip at the end of 2008 and at the beginning of 2009. Switzerland called upon all the parties to the conflict … to protect medical personnel, hospitals and other medical units. 

Members of the Friends Group have reliably called on the [UN] Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].

For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel. 

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. 

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. 

Expresses … its deep concern at the fact that serious and numerous violations of human rights continue to take place in El Salvador owing above all to non-fulfilment of the humanitarian rules of war and therefore … recommends that the UN Special Representative [for El Salvador] should, for the duration of the armed conflict, continue to observe and to inform the General Assembly and the Commission on Human Rights of the extent to which the contending parties are respecting those rules, particularly as regards humanitarian treatment and respect for … health personnel … of either party. 

Also strongly condemns again the opening of fire by the Israeli army of occupation on ambulances and paramedical personnel and the practice of preventing ambulances and vehicles of the International Committee of the Red Cross from reaching the wounded and the dead in order to transport them to hospital, thus leaving the wounded bleeding to death in the streets. 

Also strongly condemns once more the Israeli army of occupation’s practices of opening fire on ambulances and paramedical personnel and preventing ambulances and vehicles of the International Committee of the Red Cross from reaching the wounded and the dead in order to transport them to hospital, thus leaving the wounded bleeding to death in the streets. 

Affirming that, under international humanitarian law, the medical personnel and means of transport of the Palestine Red Crescent Society must be protected and respected in all circumstances,

1. Condemns the Israeli killing of Palestinian civilians, including women and children, as well as of medics in Beit Hanoun and other Palestinian towns and villages, and calls for bringing the perpetrators thereof to justice. 

Recommends that the UN Special Representative for El Salvador inform the Commission on whether both parties accept their obligation to respect the Geneva Conventions and to what extent they are truly observing them, specially in those aspects which refer to the protection of … the medical personnel of both parties. 

It had been necessary to specify that aid societies other than Red Cross organizations must be located within the territory of the High Contracting Party in whose territory the armed conflict was taking place in order to avoid the situation of an obscure private group from outside the country establishing itself as an aid society within the territory and being recognized by the rebels. 

4666. The term “Red Cross organizations” was used in order to cover not only the assistance available on the government side, but also groups or sections of the Red Cross on the other side which already existed, and even improvised organizations which might be set up during the conflict.

4667. Such was the intention of the negotiators, and this interpretation remains in the absence of definitions in the Protocol. It is supported not only by the above-mentioned work of the Conference, but also by Article 18 (Relief societies and relief actions), paragraph 1, which uses the term “Red Cross organizations” in this sense. As regards relief societies, it was considered necessary to specify that relief societies other than Red Cross organizations should be located within the territory of the Contracting Party where the armed conflict was taking place, to avoid private groups from outside the country establishing themselves by claiming the status of a relief society and then being recognized by the insurgents.

4668. In the absence of a precise definition, the term “medical personnel” covers both permanent and temporary categories. The term “permanent medical personnel” means medical personnel exclusively assigned to medical purposes for an unspecified length of time, while “temporary medical personnel” are personnel exclusively assigned to medical purposes for limited periods.

4669. In both cases such assignment must be exclusive. It should be noted that such status is based on the functions carried out, and not on qualifications. 

64. “Medical personnel” means personnel assigned exclusively to medical activities, to the administration of medical establishments and to medical transportation.

…

78. The law of war grants the same status to civilian and military medical services … The provisions governing military medical personnel … apply equally to the corresponding categories of the civilian medical service. 

474. Specifically protected personnel … recognized as such must be respected.

475. Specifically protected personnel shall be allowed to fulfil their activity, unless the tactical situation does not permit … Their mission and genuine activity may be verified. Armed enemy personnel may be disarmed. 

Protection must be extended to health personnel in general and, in particular, to Mexican Red Cross personnel … Health personnel as well as Mexican Red Cross personnel must be deemed to be neutral and must therefore not be attacked. 

Members of the medical services must be respected and protected. They must be allowed to circulate unharmed so that they can discharge their humanitarian duties. All those who take part in the confrontations must respect the medical services, whether deployed by the armed forces, civilian facilities, the Palestine Red Crescent Society or the Magen David Adom in Israel.  

2.The protection to which medical units and transports are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the adverse Party.

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3.The following shall not be considered as harmful acts:

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3. The protection to which medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy …

4. The following are not considered “acts harmful to the enemy” and do not deprive medical units of protection:

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2. Medical transports should not be armed (i.e., crew-served weapons) because of the danger that they may be mistaken as fighting vehicles. Medical personnel in the medical transports can, however, retain their personal weapons. 

Personnel of a medical unit or establishment may be armed with small arms and may use those arms in defence of themselves or of the wounded and sick under their charge. Pickets or sentries equipped with small arms consisting of non-medical personnel, can be used without adversely affecting the protected status of the medical establishment or unit. As a general rule medical transports should not have any weapons “mounted” on them to avoid being mistaken for fighting vehicles. 

Medical personnel may carry light weapons for their own personal protection. Medical establishments and means of transport may be guarded by a person on guard duty, sentries or an escort, who are not, however, entitled to oppose the capture of the medical establishment or means of transport. They must bear distinctive signs. 

Possession of small arms for self-protection, for the protection of the wounded and sick, and for protection from marauders and others violating the law of armed conflict does not disqualify medical personnel from protected status. Medical personnel may not use such arms against enemy forces acting in conformity with the law of armed conflict. 

Medical personnel may be equipped with individual weapons for the protection of the wounded, sick and shipwrecked in their charge as well as for their own protection. Individual weapons are pistols, submachine guns and rifles. 

Medical personnel may be armed with pistols, sub-machine guns and rifles, but not with machine guns or other weapons that have to be handled by more than one person, or with weapons that are meant for use against material objects, such as missile launchers and other anti-tank weapons, nor with fragmentation hand grenades and the like. 

Medical personnel may not in any way take part in hostilities, but they may be armed. They may, however, only use these weapons to defend themselves or the wounded and sick in their care and not, for example, to prevent being captured by the enemy. 

0618. Medical and religious personnel are non-combatants. They may not take part in hostilities. However, medical personnel may bear arms – see point 0621. If they fall into enemy hands, medical personnel are not considered as prisoners of war.

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0621. In relation to medical personnel bearing arms, the rule is that they may carry a personal firearm such as a pistol, automatic pistol or rifle. Medical personnel may not be armed with machine guns or other support weapons. They must not bear weapons designed for use against materiel targets, such as rocket launchers and other anti-tank weapons, or fragmentation hand grenades, etc. They may fire their weapons in self-defence, for the defence of the wounded and sick in their care, and to preserve order and calm within the medical institution. 

(1) Medical personnel can be issued with and use personal weapons, which include pistol, machine gun, gun and rifle. These types of weapons should only be used in self-defence purposes.

(2) Medical personnel do not lose the protection they are entitled to if they are in a self-defence situation, using the weapon that are otherwise available to achieve a genuine self-defence, even if these weapons would be other weapons than personal weapons as defined in the first paragraph. 

Medical personnel may only carry light individual weapons and are only permitted to use them to defend themselves and the wounded in their charge.

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The weapons carried by medical personnel are limited to light, individual firearms, which can only be used for the purposes mentioned above. If they try to resist a military advance using weapons, they lose their “neutrality” in the conflict and, therefore, their right to protection, unless the enemy deliberately tries to kill the wounded and sick or the medical personnel themselves. 

Medical personnel may only carry light individual weapons and are only permitted to use them to defend themselves and the wounded in their charge.

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The weapons carried by medical personnel are limited to light, individual firearms, which can only be used for the purposes mentioned above. If they try to resist a military advance using weapons, they lose their “neutrality” in the conflict and, therefore, their right to protection, unless the enemy deliberately tries to kill the wounded and sick or the medical personnel themselves. 

Medical transports are allowed to carry individual small arms and ammunition taken from the transported wounded (sick) and shipwrecked as well as individual small arms of the transported military medical personnel. 

[M]edical personnel may carry a Light Individual Weapon (LIW) for self-defence and for the protection of patients under their care from unlawful attack.

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… medical personnel may use their arms:

Medical personnel should not use their weapon against enemy forces acting in accordance with the law of war … Medical personnel will forfeit their protected status and may be attacked if they unlawfully use their weapon.  [emphasis in original]

Medical personnel must abstain from all acts of hostility or they lose their protection. They are authorised to carry only light arms and have the right to use them only for their own defence or for that of the wounded or sick for whom they are responsible. 

Medical … personnel must abstain from all acts of hostility or they lose their protection. They are authorised to carry only light arms and have the right to use them only for their own defence or for that of the wounded and sick for whom they are responsible. 

Military medical personnel and military religious personnel are entitled to be armed with light individual weapons for their own protection or for that of the wounded and sick in their care. ([1949] Geneva Convention I article 22, [1949] Geneva Convention II article 35 and [1977] Additional Protocol I article 28.)

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Geneva Convention I article 22, provides for specific aspects which do NOT cause medical institutions or units to lose their protection:

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… Military medical and religious institutions, units and transportation can lose their right to protection if used to commit acts which are harmful to the enemy and which are outside their humanitarian duties. However, they do not forfeit their protection in the following instances:

may carry arms for self-defence and for the defence of the wounded, sick and shipwrecked. They may not use them to avoid being taken prisoner. Using these arms in combat will terminate the protection to which they are entitled. 

Medical personnel can carry weapons to defend themselves and the wounded, sick and shipwrecked in their charge. They must not use these weapons to avoid being captured or taken prisoner. If they use these weapons in acts of war, they will lose their entitlement to protection. 

The following are not considered harmful to the adverse party: medical personnel equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge; medical units guarded by pickets, sentries or escorts … 

178 For their own protection, medical personnel may be armed with a personal weapon (e.g. assault rifle, submachine gun, pistol). Explosive weapons and collective weapons are prohibited. Medical personnel do not participate in hostilities, except for their own protection or for the protection of the patients in their care. Nor must they be engaged in other harmful acts (e.g. intelligence services). 

7.15. Medical personnel may be equipped with “light individual weapons for their own defence or for that of the wounded and sick in their charge.”

7.15.1. Light individual weapons are those that can be handled and fired by one person and primarily intended for personnel targets. It follows that medical personnel may be armed with sub-machine guns, self-loading rifles and handguns. It should be stressed that the provision and use of these arms must be merely for defensive purposes as outlined above. Medical personnel (and chaplains) are non-combatants so they are not otherwise entitled to take part in hostilities. Medical personnel may use their weapons only if they, or those in their care, are attacked. 

Although medical personnel may carry arms for self-defense, they may not employ such arms against enemy forces acting in conformity with the law of war. These arms are for their personal defense and for the protection of the wounded and sick under their charge against marauders and other persons violating the law of war. 

Possession of small arms for self-protection, for the protection of the wounded and sick, and for protection from marauders and others violating the law of armed conflict does not disqualify medical personnel from protected status. Medical personnel may not use such arms against enemy forces acting in conformity with the law of armed conflict. 

Medical personnel may possess small arms for self-protection or for the protection of the wounded and sick in their care against marauders and others violating the law of armed conflict. Medical personnel may not use such arms against enemy forces acting in conformity with the law of armed conflict. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 

1 The present ordinance regulates:

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1 In principle, members of the RCS carry out their tasks unarmed.

2 On request, the army can equip them with a pistol as an individual weapon and instruct them about their use. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

Male and female members of the medical service currently do service involving the use of arms only in the context of the ISAF [International Security Assistance Force] mission, namely in the form of guard duty. Currently, about 300 male and female members of the medical service are employed in Kabul. Overall, they do 20 guard duty shifts per week.

The use of male and female members of the medical service for guard duty in this context does not give cause to legal concerns. Federal law contains no provision according to which members of the medical service of the Federal Armed Forces would not be allowed to do guard duty.

The peace missions of the Federal Armed Forces and the right of the contingents to defend themselves by means of the guard duty are to be judged under international law mainly against the UN mandates which are at the basis of the deployments as well as against status of forces agreements, which do not exclude guard duty by male and female members of the medical service.

Special features of international law apply to members of the medical service not in peace time, but in times of armed conflicts. According to Article 24 of Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, as well as staff exclusively engaged in the administration of medical units and establishments shall be respected and protected in all circumstances. Article 22 further shows that in international armed conflicts the male and female members of the medical service may protect themselves and the wounded and sick also with arms, without losing their special protection under international law. The ISAF mission, however, does not take place in the context of an international armed conflict.

As regards the ISAF mission, international law provisions do not limit the use of members of the medical service for guard duty, during which they need to abstain from wearing the armlet with the protective emblem. The right of male and female members of the medical service to wear an armlet with the protective emblem (red cross on a white ground) is regulated by international law. On the basis of a special provision also applicable in times of peace (Article 44 of Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949) the distinctive emblem must not be worn when fulfilling duties other than medical service duties. 

thought the deletion of paragraph 3 [of Article 17 of the draft Additional Protocol II] would enormously complicate matters for medical personnel in actual combat conditions. If, for instance, an army doctor disarmed a wounded soldier and failed to throw away the weapon, would he thereby forfeit his right to protection? He appealed to the representative of Pakistan to restore paragraph 3. 

[medical] personnel and medical vehicles may be armed, but in international armed conflicts, they may use their weapons only in self-defence and in defence of their patients against marauders and against those enemy forces that do not respect their protected status. 

This expression was not defined, but it appears from the discussions in Committee II … that it refers to weapons which are generally carried and used by a single individual. Thus not only hand weapons such as pistols are permitted, but also rifles or even sub-machine guns. On the other hand, machine guns and any other heavy arms which cannot easily be transported by an individual and which have to be operated by a number of people are prohibited. Thus it is evident that the level of acceptance is quite high. However, this is the case above all to prevent the unit’s right to protection from being suppressed too easily.