Abstract
Sadly, war has perhaps been one of the few constants throughout the history of humanity. This has in turn necessitated rules and law that place boundaries on these hostilities. International humanitarian law is applicable in times of armed conflict, while human rights law provides protection during both war and peacetime. The present basis for international humanitarian law (IHL) rests with international treaties and customary international law (CIL).
Introduction
Sadly, war has perhaps been one of the few constants throughout the history of humanity.1 This has in turn necessitated rules and law that place boundaries on these hostilities. International humanitarian law is applicable in times of armed conflict, while human rights law provides protection during both war and peacetime. The present basis for international humanitarian law (IHL) rests with international treaties and customary international law (CIL).2,3
Treaty-Based IHL
As a jurist and diplomat, Grotius is known as the father of the “law of nations.”2,4 Yet it was not until Henry Dunant in the nineteenth century that contemporary international humanitarian law took shape.2 Dunant with other founders of the International Committee of the Red Cross (ICRC) prompted the Swiss government to convene a meeting of sixteen States who ultimately adopted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.2,4 The 1864 Geneva Convention (GC), in addition to other facets, helped to ensure respect for medical personnel and equipment, along with the protections implied to these with markings of a red cross with a white background.4 The GC was revised over the years since 1864 and has resulted in the four GCs of 1949:
GGC for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
GC for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea
GC relative to the Treatment of Prisoners of War
GC relative to the Protection of Civilian Persons in Time of War
The necessity of four GCs evolved from the changing environment of modern warfare. Since enactment, new wars and hostilities continue to challenge and pierce the boundaries of prior protective clauses as is reflected in individual State governments adopting their own treaties regulating conflicts.2 Two Additional Protocols to the GC of 1949 were added in 1977 to help mesh these bodies of humanitarian law in a changing war time environment. These Additional Protocols were implemented in large part as a response to increases in guerrilla warfare developments and weapon technology leading to greater civilian harm.5 Additional Protocol I affords protections in times of international conflict, while Additional Protocol II tackles those concerns occurring during non-international hostilities. These two Additional Protocols, along with the Four GCs of 1949, form the basis for treaty-based rules governing protections during conflicts.2 Since the GC of 1949 and the Additional Protocols set in place in 1977, States themselves have added additional treaties to assist in managing unique aspects of protections due during times of hostility.2 These needed additions speak to the fluid nature involved with trying to adjust provided protections through treaty-based IHL following constant advances in conventional and unconventional tactics of war.
Customary International Law (CIL)-Based IHL
Jacob Kellenberger, the former President of the ICRC, has suggested the continued importance of CIL as an addition to treaty-based IHL.2 First, CIL can help interpret treaty-based IHL.2 Second, treaty-based IHL is best suited to protect during internationally based conflicts, but less comprehensive in protections associated with non-internationally based hostilities.2 CIL agreements of States often provide rules applicable to all conflicts without reference to their international or non-international status.3 Lastly, the Four GCs are abided to by all States, yet the two Additional Protocols and other treaties are applicable to only those States that have ratified them. CIL is considered “general” international law and therefore requires all States and parties to a conflict to adhere to its tenets.2
Protection of Humanitarian-Based Medical Services
Articles 55 and 56 of the Fourth GC places a duty on States to provide to the fullest extent possible, medical care and public health services to the population during times of armed conflict.6,7 As a means of ensuring this important need, together the Four GCs of 1949, the two Additional Protocols approved in 1977, along with CIL form the basis of protection for humanitarian efforts directed to medical care during times of international and non-international hostilities throughout the world. The discussion below provides excerpts from these IHL sources that relate directly and indirectly to medical-based humanitarian protection.
International Conflict Protection
Medical Personnel
Medical personnel that are “exclusively engaged” in medical duties are to be both protected and respected under the First GC and the Fourth GC. Article 15 in Additional Protocol I has extended these protections to civilian medical personnel in addition to military medical personnel.2,7,8 The International Criminal Court (ICC) considers it a war crime to intentionally direct attacks against personnel with the emblems of the GC such as those carrying out medical duties.2 In addition to these general protections, Article 16 of Additional Protocol I protects medical personnel from “punishing a person for performing medical duties compatible with medical ethics” or requiring them to “act contrary to medical ethics.”7,8
The drafting committee for the Additional Protocols to the GC are said to have necessitated that any aid organization other than the Red Cross must be located “within the territory of the State where armed conflict is taking place” so that they are not viewed as an “obscure private group from outside the country establishing itself as an aid society within the territory and being recognized by the rebels.”2
While protections afforded to medical personnel cease if they act in a hostile manner outside their humanitarian purpose, Article 13 of Additional Protocol I allows for civilian medical personnel to protect themselves or those they are caring for from attacks with “light individual weapons.”2,7
Medical Units
Article 19 of the First GC and Article 18 of the Fourth GC ensures that medical units and civilian hospitals may not be attacked and shall be protected and respected. Article 19 of Additional Protocol I helps offer the same protections to civilian medical units as afforded to military medical units.2 As with medical personnel, the ICC considers it a war crime to intentionally direct attacks against medical units flying the emblems of the GC.2
Medical Transports
Article 35 and Article 21 of the First and Fourth GCs respectively spell out the requirement for protection and respect for medical transports. As is seen with medical personnel and units, Article 21 of Additional Protocol I ensures these same protections are offered to both civilian and military medical transport vehicles and vessels.2 Article 36 of Additional Protocol I also protects aircraft carrying the wounded or medical supplies to be protected from attack when flying at altitudes and times agreed upon by the fighting party.8 Attacks against medical transports are also considered war crimes under statutes of the ICC.2
Related posts:
Chapter 5 – Inhaled Anesthetics and Draw-Over Devices in Disaster Response
Chapter 4 – Total Intravenous Anesthesia in Disaster Medicine
Chapter 14 – Considerations When Working with Children and Families
Chapter 15 – Chemical and Radiologic Exposures in Trauma and Disasters
Chapter 12 – High-Altitude Physiology and Anesthesia
Chapter 21 – Operation Tomodachi: Anesthetic Implications
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