Medical Operations and The Law of Armed Conflict

OVERVIEW

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Sources and Purpose of International Law The Law of Armed Conflict The 1949 Geneva Conventions The Distinctive Emblem Medical Personnel Medical Facilities Hospital Ships and Transports

Sources of International Law

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International Agreements Customary International Law - the practice of States General Principles of Law Teachings and writings of highly qualified jurists (professors, etc)

Treaty Law

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Geneva Conventions (1949)

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GC1 SICK AND WOUNDED GC2 SICK, WOUNDED AND SHIPWRECKED AT SEA GC3 PRISONERS OF WAR GC4 CIVILIANS

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Additional Protocols (1977)

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PROT 1: PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICT

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PROT 2: NON-INTERNATIONAL CONFLICTS

The Law of Armed Conflict

What is it?

• That part of international law that regulates the conduct of armed hostilities. Also called the Law of Armed Conflict (LOAC).

JCS PUB 1-02 (12 Apr 01) DICTIONARY OF MILITARY AND ASSOCIATED TERMS

The Law of Armed Conflict

Purpose?

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To ensure that the violence of hostilities is directed toward the enemy’s forces Complements the principles of warfare, particularly the concepts of mass and economy of force Taken together, the law of armed conflict and principles of war focus on the import of concentrating force against military targets while avoiding expenditure of personnel and resources against things that are not militarily important Provides stability in international relations-

Reciprocity!

Basic Principles of the Law of Armed Conflict • • • •

military necessity proportionality unnecessary suffering discrimination or distinction

Military Necessity

• Targeting a certain object offers a definite military advantage • May use that force not forbidden by international law which is necessary to secure the prompt submission of the enemy

Proportionality

• May not cause suffering, injury or destruction to civilians or civilian objects disproportionate to the military advantage gained – Collateral damage will happen – Question is how much is acceptable • Issues of weapons choice and tactics

Unnecessary Suffering

• May not inflict suffering, injury or destruction not actually necessary to accomplish legitimate military purposes

Distinction/Discrimination

• Must distinguish between military objectives and civilians and civilian objects • Military objectives – – Combatant personnel Objects • Contribute to the enemy’s warfighting/war sustaining effort • Destruction would constitute a definite military advantage • Includes both military and economic targets

Lawful Targets

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Combatant personnel Military objectives

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Those objects which contribute to the enemy’s war-fighting/war-sustaining effort and whose destruction would constitute a definite military advantage.

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Can include both military and economic targets

Lawful Combatants

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Regular Armed Forces

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Uniformed Forces

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Except Medical Personnel And Chaplains

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Irregular Armed Forces

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Under Responsible Command

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Distinguishable From The Civilian Populace Carry Arms Openly Comply With The Law Of Armed Conflict

Unlawful Targets

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Noncombatants and persons hors de

combat (wounded, sick and SW)

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Civilians and Civilian Objects

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All civilian property and activities other than those used to support or sustain the enemy’s war-fighting capability.

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Would not include dual use facilities

Incidental Injury/Collateral Damage

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Not unlawful if incident to attack on military objective/combatant personnel Must not be excessive in light of the military advantage anticipated by the attack Commander’s obligation to minimize

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Additional Protocol 1 which uses language “take all feasible precautions”

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Deception In Armed Conflict

Ruse And Stratagem (Lawful Deceptions)

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Decoys False Communications Camouflage Surprise Feigned Movement Perfidy (Unlawful Deceptions) - Misuse Of Protected Status Or Protective Signs And Symbols

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False SOS/Mayday Feigned Surrender Misuse Of Red Cross Symbol Misuse Of Protected Platform (I.E., Hospital Ship, Fishing Boat)

The Distinctive Emblem

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3 Recognized Emblems

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The Red Cross The Red Crescent The Red Lion and Sun

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Numerous Unrecognized Emblems

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Protection is not contingent upon using a protected emblem. Recognition of status is the key

Medical/Religious Symbols

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Medical Personnel Respected and Protected

Personnel afforded status ( GWS, Art. 24)

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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.”

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Accidental killing or wounding of such personnel in the proximity to military objectives gives no cause for complaint Identification

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Armlet - left arm; distinctive emblem Special identity card (DD Form 1934)

Medical Personnel

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Subject to capture (exception, hospital ships) Not POWs, “retained personnel”

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but shall receive benefits of POW as a minimum

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Retained for health of POWs Repatriated when military requirements permit

Medical Personnel

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Privileges

– shall continue their medical functions – shall be granted facilities for medical care – shall be permitted to visit all POWs – SMO shall be responsible for duties & communications – Subject to internal discipline, but shall not be compelled to do any work not medical – may not be deprived of insignia, identity cards or armlet

Medical Personnel Responsibilities

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Must refrain from acts harmful to the enemy Must refrain from direct participation hostilities Must render care to all sick and wounded Must screen EPW’s for repatriation

Medical Personnel

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Harmful acts include:

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using hospital as a shelter for combatants

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using hospital as arms depot or observation post

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placement of unit to impede enemy attack Harmful acts do not include

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small arms for self defense

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can return fire if enemy attacks a protected facility can not shoot at enemy lawfully capturing a field hospital IAW International Law

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may carry small arms as firewatch and to guard enemy patients without losing protected status

Losing Protected Status

• Medical personnel must refrain from hostile action • Medical personnel who use force, other than in self-defense, become combatants – As combatants, lose retained status and could be subject to trial for a violation of the law of war for misusing the medical emblem and its protection – Do not lose protection for carrying small arms to guard patients who are EPW

Performing Other Duties

• US Navy Regulations (1063) – When assigned to a combat area, medical and chaplain personnel shall only be assigned duties commensurate with their protected status.

– When not in a combat zone, they can be assigned any duties.

Duty of Rendering Care

• Must render care to all sick and wounded, regardless of whether enemy or friendly • No adverse distinction based on race, nationality, religion, or political opinion • Sole basis for priority of treatment is triage, even if that means enemy wounded are treated first

Code of Conduct - Exceptions for Medical Personnel

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Article II: never surrender; exception: medical personnel are subject to lawful capture and may only defend themselves when fired upon Article III: requires POWs to escape and aid others ; medical personnel are “retained personnel,” and do not have a duty to escape or to aid others in escaping Article IV: requires senior military member to take command; service regulations prevent medical personnel from assuming command over non medical personnel

Medical Facilities

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Fixed Medical facilities may not be attacked

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protection not contingent on proper marking but on recognition

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must be situated so as not to imperil May not be used in a hostile manner May not be destroyed, but utilized for care of wounded and sick Hospitals identified by hoisting distinctive flag and by use of distinctive emblem Equipment marked with distinctive emblem

Hospital Ships & Medical Transports • • •

Hospital Ships - built or equipped specially and solely to assist, treat and transport the wounded, sick, and shipwrecked.

Hospital ships may not be attacked or captured Hospital ships’ medical personnel and crew may not be attacked or captured, even if there are no sick or wounded on board

Hospital Ships & Medical Transports • •

Hospital ships shall be distinctly marked

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all exterior surfaces shall be white one or more dark red crosses, as large as possible, displayed on side of hull and horizontal surfaces

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hoist distinctive and national flags lifeboats and small craft painted similar to ships

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may illuminate painting and emblem at night or during reduced visibility Medical transports shall be identified in accordance with notice and approval procedures

Departure from Role as Hospital Ship

• Failure to follow rules for exclusive medical use of the ship or transport could result in retaliation by the enemy • Enemy may lawfully attack a medical facility or personnel if they are being used inconsistent with their protective status; notice may be given before such an attack may be made

Hospital Ships

Belligerent Rights

• Belligerents may: – search – order to stand off or take a certain course for reasons of military security – control visual and auditory means of communication – detain the ship for a period not exceeding seven days to ensure secrecy of military operations – place a neutral observer on board • Ship must submit to identification and inspection procedures

Secure Communications

• Secure communications - “may not possess or use a secret code” for their communication • Modern day comms issues – position and location for receiving wounded – need for Video-teleconferencing for medical procedures • Protocol I acknowledges “times have changed” and San Remo Manual encourages international law to change to permit use of encrypted communication • Code 10/N6 initiative

Hospital Ships

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Notice of names and descriptions must be given ten days before they are employed Shall afford relief to all without distinction Shall not be used for any military purpose and shall not hamper the movement of combatants Permitted to

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arm crews for self defense and discipline

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utilize navigation and communication equipment temporary storage of arms taken from patients transport of medical equipment

Medical Aircraft

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May not be attacked

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if exclusively employed for removal & transport

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and flying at heights, times and on routes specifically agreed upon between belligerents Shall obey every summons to land and permit examination Involuntary landing

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wounded, sick, and aircrew are POW medical personnel are retained personnel Shall be clearly marked with distinctive emblem Prohibited to fly over enemy territory

Questions?