Practice Relating to Rule 28. Medical Units
South Africa’s LOAC Manual (1996) defines medical units in accordance with Article 8 of the 1977 Additional Protocol I and states: “Medical units shall at all times be respected and protected.”
The manual further provides:
55. The obligation to respect the means of medical transport does not cease unless they are used to commit acts injurious to the enemy (e.g. transporting able-bodied soldiers or weapons).
59. A medical unit must not be defended against the enemy in the event of penetration by the enemy into the territory where it is located. Such defence would constitute a hostile act, causing the unit to forfeit its right to protection. Weapons emplacements alongside or near medical units may also cause a loss of the right to protection. Other examples are locating an observation post in the unit and storing ammunition in the unit. Emphasis is placed on medical personnel being neutral. Medical personnel should ensure that nothing and no one within the unit may be considered as harmful to the enemy and thus endanger the protection of the unit.
South Africa’s Revised Civic Education Manual (2004) states:
71. Medical Units. “Medical units” are defined as establishments and other units, whether military or civilian, which are organised for medical purposes (i.e. the search for collection, diagnosis or treatment – including first aid treatment – of the wounded, sick and shipwrecked, or the prevention of disease). The term includes hospitals and similar units, blood transfusion centres, preventive medicine centres, medical depots and the medical and pharmaceutical stores of such units.
72. Medical units may be fixed or mobile, permanent or temporary.
73. Medical units shall at all times be respected and protected. … [A] medical unit must not be defended against the enemy in the event of penetration by the enemy into the territory where the unit is located. Such defence would constitute a hostile act, causing the unit to forfeit its right to protection. Weapons emplacements alongside or near medical units may also cause a loss of the right to protection. Other examples are locating an observation post in the unit and storing ammunition in the unit. Emphasis is placed on medical personnel being neutral. Medical personnel should ensure that nothing and no-one within the unit may be considered as harmful to the enemy and thus endanger the protection of the unit.
South Africa’s LOAC Teaching Manual (2008) states:
2.1 Basic Categories of Persons and Objects Recognised under the LOAC[law of armed conflict]
Specifically Protected Persons and Objects recognised under the LOAC
The following persons and objects fall within the specifically protected category under the LOAC:
- Medical establishments;
- Medical material;
Specifically Protected Persons and Objects
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.
2.2. Military Medical Services and Religious Personnel/objects
Military Medical and Religious Objects
What are Military Medical Objects?
- According to  Additional Protocol I article 8, read with  Geneva Convention I article 19 and  Geneva Convention II article 23, the following fall under the definition of “medical establishments”:
- Any establishment assigned exclusively to medical purposes. In the military sense, it would mean any military establishment assigned exclusively to medical purposes.
- This will include hospitals and similar units (of any size), blood transfusion centres, preventative medicine centres and institutes, medical transportation locations, medical depots and the medical and pharmaceutical stores of such establishments.
- According to Additional Protocol I article 14 and Geneva Convention I article 33, “medical material” means any medical equipment or supplies, as well as the resources used exclusively for the provision of adequate medical services and care to the wounded and sick.
- It is very important to note that the property of the aid societies that are allowed to provide medical assistance (National Red Cross Societies or other recognised Voluntary Aid Societies as well as recognised societies of neutral States), are regarded as private property. Belligerents may only requisition it after they have ensured the welfare of the wounded, sick and shipwrecked. (Geneva Convention I article 34.)
Nature of the Protection of Military Medical Objects (Buildings, Transport and Material) and Religious Objects
- All fixed military medical establishments, mobile medical units and transportation carrying wounded and sick, or medical equipment, may not be attacked but must at all times be respected and protected by the Parties to the conflict. (Geneva Convention I article 19.)
- Medical material that falls in the hands of an enemy must be reserved for the care of the wounded and sick and may not be intentionally destroyed. (Geneva Convention I article 33.)
- The buildings, material and stores of fixed military establishments may not be diverted from the care of the wounded and sick. However, commanders of forces in the field may use it in cases of urgent military necessity, as long as they have made previous arrangements for the welfare of the enemy wounded and sick that are nursed in them (Geneva Convention I article 33). Military medical transport (excluding military medical aircraft and hospital ships) that are no longer needed for the sick and wounded becomes war booty.
- All Parties must ensure that medical (including military) establishments and units are, as far as possible, situated in such a manner that attacks against military objectives do not imperil their safety. (Geneva Convention I article 19.)
- If a military medical establishment, unit or vehicle should fall into the hands of the enemy, the captor will be responsible for the care of the wounded and sick therein. The personnel of a captured military medical establishment, unit or vehicle must be permitted to continue with their duties until such time as the capturing Party assumes responsibility therefore. (Geneva Convention I article 19.)
- Military medical establishments and transport may be guarded by a picket, sentries or an escort who may protect the life of medical and religious personnel and the wounded and sick in such establishments … but may not oppose the capture thereof. (Geneva Convention I article 22.)
Loss of Protection (Geneva Convention I Article 21)
Medical institutions and units lose their right to protection if used to commit acts which are harmful to the enemy and which are outside their humanitarian duties. These include, for example:
- To provide shelter to able-bodied combatants (enemy soldiers who are not wounded or sick) in it.
- To use it as arms or ammunition deposits.
- To use it as a military observation post.
- To deliberately place a medical unit in a position where it would impede an enemy attack.
Geneva Convention I article 22, provides for specific aspects which do NOT cause medical institutions or units to lose their protection:
- The Carrying or Presence of Weapons
- Medical personnel have the right to carry light weapons and may use such weapons, if necessary, in their own defence or in that of the wounded and sick in their charge.
- They must nevertheless refrain from any aggressive action and may not use force to prevent the capture of the Unit.
- Wounded and sick are sometimes still in possession of small arms and ammunition when arriving in a medical unit. There will normally be a lapse of time before these weapons and ammunition are handed over to the proper military unit. The mere presence of weapons and ammunition of wounded and sick is not sufficient to deprive a medical unit of its protection.
- Using Members of the Armed Forces to Guard a Military Establishment, Unit or Transportation
- Guards of  medical establishments, units or transportation normally consist of the unit’s own (medical) personnel.
- However, where necessary, armed soldiers can be used as guards to protect it.
- They may use their weapons only in their own defence or in that of the medical personnel, wounded and sick in their charge.
- Presence of Veterinary Service in the Military Medical Establishment or Unit. (Geneva Convention I Article 22.4.)
- The presence of personnel and material of the veterinary service in the military medical establishment or unit or forming an integral part thereof shall not deprive such an establishment or unit of its protection.
- The necessary implication is that as such the veterinary service enjoys no special protection as medical personnel. Members of military veterinary services are therefore combatants.
- Providing Humanitarian Services to Civilian Wounded and Sick. Such activities by military medical establishments and units shall not deprive it from its protection.
Warning: Condition before Military Medical Personnel, Establishments, Units or Transport and Military Religious Personnel can forfeit their Protection (Geneva Convention I Article 21). Even if the abovementioned loses its right to protection, the following steps must be taken before such an establishment or unit can be attacked.
- Due warning must first 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.
Military medical and religious establishments, units and transport are also specifically protected, as long as they are exclusively used for medical purposes. They may not be attacked but must at all times be respected and protected by the Parties to the conflict. Reprisals against them are prohibited.
All Parties must ensure the safety of military medical and religious establishments, units and transport.
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.
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:
- If they carry light weapons for personal protection.
- If small arms and ammunition of wounded and sick soldiers are found at or on the medical establishment, unit or transportation.
- If members of the armed forces are used to guard a military establishment, unit or transportation.
- The presence of a veterinary service in the military medical establishment or unit.
- If they are providing humanitarian services to civilian wounded and sick.
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.
2.3 Specifically Protected Persons and Objects under:
a. Civilian Medical Services
Protection of Civilian Hospitals and Civilian Medical Units
The protection of civilian hospitals is provided for in Geneva Convention IV article 18, while the protection of medical units is provided for in article 12 of Additional Protocol I.
Geneva Convention IV article 18 provides the following:
- Civilian hospitals are hospitals organised to give care to the wounded, sick, infirm and maternity cases. (Clinics for cosmetic surgery and rehabilitation centres for drug addicts, for example, are not such “civilian hospitals”, but are still protected as civilian property.)
- Civilian hospitals shall at all times be respected and protected and may under no circumstances be the object of attack.
- Civilian hospitals must be situated as far as possible from anything that could be a military objective.
Article 12 of [the 1977] Additional Protocol I determines the following:
- Civilian medical units shall be respected and protected at all times and shall not be the object of an attack, provided that they:
- Belong to one of the Parties to the conflict;
- Are recognised and authorised by the competent authority of a belligerent Party; or
- Are put at the disposal of a belligerent Party with the authorisation of the Parties concerned.
- Parties to a conflict are encouraged (invited) to notify each other of the location of their fixed medical units (civilian and military), but the absence of such notification shall not exempt any of the parties from the obligation to respect and protect civilian medical units at all times.
- Under no circumstances may medical units (civilian and medical) be used in an attempt to shield military objectives from attack. Parties to a conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety.
Forfeiture of Protection of Civilian Hospitals and Civilian Medical Units
- Civilian hospitals will forfeit their protection if they are used, outside their humanitarian duties, for acts harmful to the enemy. ( Geneva Convention IV article 19.) These include, for example:
- To provide shelter to able-bodied combatants (enemy soldiers who are not wounded or sick).
- To use it as arms or ammunition deposits.
- To use it as a military observation post.
- To deliberately place a medical unit in a position where it would impede an enemy attack.
- The said article 19 provides that civilian hospitals will not lose their protection if:
- Sick or wounded members of armed forces are nursed in these hospitals; or
- The presence of small arms and ammunition taken from wounded and sick combatants and which have not yet been handed to the proper service.
- Article 13.1 Additional Protocol I determines that civilian medical units will forfeit their protection if they commit, outside their humanitarian functions, acts harmful to the enemy.
- Article 13.2 Additional Protocol I determines that civilian medical units will not forfeit [their] protection if:
- The personnel of the units are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge;
- That unit is guarded by a picket or sentries or by an escort;
- Small arms and ammunition taken from the wounded and sick and not yet been handed to the proper service, are found in the units; or
- Members of the armed forces or other combatants are in the units for medical reasons.
- Both article 19 Geneva Convention IV and article 13.1 Additional Protocol I determine that before civilian hospitals and civilian medical units forfeit their protection, the following steps must be taken:
- Due warning must first be given that the civilian hospital or medical unit is to lose its protection and renders itself liable to attack; and
- A reasonable time limit must be given for the hospital or unit to put an end to its harmful acts; and
- The warning must remain unheeded.
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.
The provisions governing military medical personnel, establishments and transport apply equally to civilian medical services.
Civilian hospitals and civilian medical units are protected. States must provide them with certificates indicating their status. Civilian hospitals shall be marked with the emblem of the Red Cross/Crescent, if so authorised by the State. Civilian hospitals must be situated at a safe locality.
Civilian hospitals and civilian medical units will forfeit their protection if they are used, outside their humanitarian duties, for acts harmful to the enemy. However, they will not lose their protection if sick or wounded members of armed forces are nursed in these hospitals, small arms and ammunition taken from wounded and sick combatants and which have not yet been handed to the proper service are found there, the personnel of the units are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge or the units are guarded by pickets or sentries or escorts.
Before civilian hospitals and civilian medical units forfeit their protection:
- They must be warned that they are to lose their protection and render themselves liable to attack; and
- A reasonable time limit must be given for them to end their harmful acts; and
- The warning must remain unheeded.
2.4 Specifically Protected Persons and Objects
Sufficient Distance Rule. Sufficient distance must at all times be kept between specifically protected objects and military objectives, unless the tactical situation does not permit this. (Geneva Convention I article 19, Geneva Convention IV article 18 and Additional Protocol I articles 12 and 56.)
Articles 13 to 26 of Geneva Convention IV cover the general protection of civilians to “alleviate the sufferings caused by war”. It covers such matters as:
- Civilian hospitals (article 18).
- Loss of protected status of civilian hospitals (article 19).
Sufficient distance must at all times be kept between specifically protected objects and military objectives, unless the tactical situation does not permit this.
Special protection is granted to hospital and safety zones and localities, neutralised zones, evacuation of protected persons, civilian hospitals, hospital staff[,] consignments of medical supplies, food and clothing, family news and dispersed families.
[emphasis in original]
The manual also states:
- 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:
- Protected Places. Such as buildings dedicated to religion, art, science, charitable purposes, historic monuments, hospitals and places where sick and wounded are collected and cultural property.
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in both international and non-international armed conflicts: “intentionally directing attacks against … hospitals and places where the sick and wounded are collected, provided they are not military objectives”.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
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  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 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
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:
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 of customary international law.
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]
The Court also held:
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
In 2011, in a statement before the UN Security Council during an open debate on children and armed conflict, South Africa’s Minister of Justice and Constitutional Development stated:
[W]e welcome the expansion of the trigger mechanism for punitive measures against those committing recurrent attacks on schools and hospitals. We are concerned about the emerging trend of such attacks. We call on all parties involved in conflict to abide by international humanitarian law and to refrain from attacks against civilian targets, particularly those where children might be present.
In 2011, in a statement before the UN Security Council during an open debate on children and armed conflict, made partly on behalf of the Group of Friends of Children and Armed Conflict, including South Africa, the deputy permanent representative of Canada stated:
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 [UN] 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 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the deputy permanent representative of Chile stated:
Despite the unrelenting efforts of the international community, civilians continue to account for the majority of casualties in armed conflicts. …
… Moreover, the effective protection of civilians requires that health-care facilities, schools, teaching staff, transport, humanitarian personnel and people seeking medical treatment are unconditionally spared from attacks and acts of displacement.