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The notion of “acts harmful to the enemy” under international humanitarian law

Published online by Cambridge University Press:  27 August 2020

Abstract

This article provides a legal analysis of the largely uncharted notion of “acts harmful to the enemy” under international humanitarian law, which reconciles the humanitarian need to grant special protection to medical services (medical personnel, units and transports) in the interests of the wounded and sick with the military necessity to remove it when acts are committed contrary to good faith and for hostile purposes or with effects which harm the adverse party. The meaning of the notion is clarified by primarily looking into the legality of an attack against land-based medical services by the aggrieved party to the conflict as a consequence of harmful acts. It concludes with specific recommendations on how to interpret the law governing such an attack, considered prima facie lawful, on a hospital.

Type
Selected articles
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of ICRC.

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Footnotes

*

The authors wish to express their gratitude to Chris Harland, Austin Shangraw and Rebecca Balis for their insights and comments on earlier drafts.

References

1 See, for example, UNSC Res. 2286, 3 May 2016; Médecins Sans Frontières, Initial MSF Internal Review: Attack on Kunduz Trauma Centre, Afghanistan, Geneva, 5 November 2015. An older example is provided by the Italian war in Ethiopia, in 1935: see Marcel Junod, Le troisième combattant, Librairie Payot, Lausanne, 1947, pp. 35 ff.

2 See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 21; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Art. 19(1); Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 13(1); Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 11(2); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rules 25, 28–29, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

3 For the definition of “medical service”, see Verri, Pietro, Dictionary of the International Law of Armed Conflict, ICRC, Geneva, 1992, p. 71Google Scholar.

4 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed. Geneva, 2016 (ICRC Commentary on GC I), Art. 21, para. 1840; Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on AP I/AP II), AP I, Art. 13, para. 550.

5 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report prepared for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, 8–10 December 2015, p. 32.

6 An analysis of the same term in relation to civilian civil defence organizations provided in Article 65(1) of AP I will be excluded.

7 This article will remain centred on IHL. For a double IHL and international human rights law perspective on the protection of medical services, see Alexander Breitegger, “The Legal Framework Applicable to Insecurity and Violence Affecting the Delivery of Health Care in Armed Conflicts and Other Emergencies”, International Review of the Red Cross, Vol. 95, No. 889, 2013. IHL is largely lex specialis in this context, which entails the application of the conduct of hostilities paradigm: cf. ibid., p. 91.

8 See ICRC, Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 2nd ed. Geneva, 2017 (ICRC Commentary on GC II), Art. 36, para. 2481. According to the ICRC Commentary, it is more pertinent to analyze the notion of AHTTE in the context of land rather than sea warfare. The hospital ship's personnel constitute an “integral part of the protected platform” and engagement in such an act becomes relatively less consequential.

9 The definition of “attack” is provided in Article 49 of AP I as “acts of violence against the adversary, whether in offence or in defence”.

10 For an exploration of divergent views, see ICRC Commentary on GC I, above note 4, Art. 24, para. 2010; Marco Sassòli, “When Do Medical and Religious Personnel Lose What Protection?”, in Vulnerabilities in Armed Conflicts: Selected Issues, Proceedings of the 14th Bruges Colloquium, 17–18 October 2013, pp. 55–57; Haeck, Tom, “Loss of Protection”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, pp. 848849Google Scholar.

11 GC I, Arts 28–32. Cf. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Art. 37.

12 ICRC Customary Law Study, above note 2, Rules 25–26, 28–30, 109–111, and the rules referred to therein.

13 ICRC Commentary on GC I, above note 4, Art. 12, para. 1321.

14 AP I, Art. 8(a). See also ICRC Commentary on AP I, above note 4, Art. 8(a), para. 304; Kleffner, Jann K., “Protection of the Wounded, Sick, and Shipwrecked”, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013, pp. 323324Google Scholar.

15 AP I, Art. 8(a). See also ICRC Commentary on GC I, above note 4, common Art. 3, para. 737, and Art. 12, para. 1341.

16 IHL does not clearly define the term “act of hostility”. See J. K. Kleffner, above note 14, p. 324.

17 ICRC Commentary on AP I, above note 4, Art. 8, para. 306.

18 ICRC Commentary on GC I, above note 4, common Art. 3, para. 738.

19 J. K. Kleffner, above note 14, pp. 338–339.

20 ICRC Customary Law Study, above note 2, commentary on Rule 25, p. 82.

21 Ibid., p. 81.

Ibid

22 ICRC Commentary on AP II, above note 4, Art. 9, para. 4663.

23 AP I, Arts 48, 51; AP II, Art. 13; ICRC Customary Law Study, above note 2, Rule 1.

24 For units: GC I, Art. 19; GC IV, Art. 18; AP I, Art. 8(e). For transports: GC I, Art. 35; GC IV, Art. 21; AP I, Art. 8(g).

25 ICRC Commentary on AP II, above note 4, Art. 11, paras 4711–4712.

26 ICRC Commentary on GC I, above note 4, Art. 19, para. 1794; Gisel, Laurent, “Can the Incidental Killing of Military Doctors Never Be Excessive?”, International Review of the Red Cross, Vol. 95, No. 889, 2013, pp. 219220CrossRefGoogle Scholar.

27 Cf. ICRC Customary Law Study, above note 2, Rule 9.

28 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 202 CTS 144, 6 July 1906 (entered into force 9 August 1907).

29 ICRC Commentary on GC I, above note 4, Art. 24, para. 1984.

30 Ibid., para. 1986.

Ibid

31 For the wounded and sick: GC I, Art. 12(1); GC IV, Art. 16(1); AP I, Art. 10(1); AP II, Art 7(1). For medical personnel: GC I, Arts 24, 25; AP I, Art. 15(1); AP II, Art. 9; ICRC Customary Law Study, above note 2, Rule 25. For medical units and transports: GC I, Arts 19(1), 35; GC IV, Arts 18(1), 21; AP I, Arts 12(1), 21; AP II, Art. 11(1); ICRC Customary Law Study, above note 2, Rules 28–29.

32 ICRC Commentary on GC I, above note 4, Art. 24, para. 1983; J. K. Kleffner, above note 14, p. 326.

33 ICRC Commentary on GC I, above note 4, para. 1994.

34 GC I, Art. 46; GC II, Art. 47; AP I, Art. 20; ICRC Customary Law Study, above note 2, Rules 146, 148.

35 For a recent literature review that provides an assessment of the law and State practice regarding this question and develops further clarification in relation to protected military persons, see Aurel Sari and Kieran Tinkler, “Collateral Damage and the Enemy”, British Yearbook of International Law, 2019.

36 ICRC Commentary on GC I, above note 4, Art. 19, para. 1797, and Art. 24, para. 1987; Laurent Gisel, “Relevant Incidental Harm for the Proportionality Principle”, in Urban Warfare, Proceedings of the 16th Bruges Colloquium, 15–16 October 2015, pp. 121–123.

37 This does not imply that medical personnel, due to their humanitarian function, are assigned a higher normative value in comparison to the lives of civilians under the proportionality calculus. See, for example, Laurent Gisel (ed.), The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law, Report of the International Expert Meeting, Quebec, 22–23 June 2016, ICRC and Université Laval, 2018, pp. 61, 63.

38 Robert Kolb, Advanced Introduction to International Humanitarian Law, Edward Elgar, Cheltenham and Northampton, MA, 2014, pp. 174–175; Jann K. Kleffner, “Military Collaterals and Jus in Bello Proportionality”, Israel Yearbook on Human Rights, Vol. 48, 2018, pp. 49–50. See also Corn, Geoffrey and Culliver, Andrew, “Wounded Combatants, Military Medical Personnel, and the Dilemma of Collateral Risk”, Georgia Journal of International and Comparative Law, Vol. 45, No. 3, 2017, pp. 455 ffGoogle Scholar. In this latter article, the authors conclude that the Martens Clause provides a basis for belligerents to consider a limited application of the proportionality obligation to protected military persons and military medical objects where operationally feasible.

39 Henderson, Ian, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I, Martinus Nijhoff, Leiden and Boston, MA, 2009, pp. 195196, 206–207CrossRefGoogle Scholar.

40 For example, AP I, Arts 41–42.

41 A. Breitegger, above note 7, p. 108.

42 J. K. Kleffner, above note 38, pp. 53–58. Kleffner affirms that the category of protected persons must be treated the same under the rules governing precautions and those governing proportionality, as both are interrelated and anchored to the fundamental principles underlying targeting law.

43 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge University Press, Cambridge, 2016, pp. 187, 201CrossRefGoogle Scholar; Melzer, Nils, International Humanitarian Law: A Comprehensive Introduction, ICRC, Geneva, 2016, pp. 135, 145Google Scholar.

44 Elżbieta Mikos-Skuza, “Hospitals”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 10, p. 218.

45 Ibid.

Ibid

46 Pictet, Jean, “The Medical Profession and International Humanitarian Law”, International Review of the Red Cross, Vol. 25, No. 247, 1985, pp. 198199Google Scholar. For recent examples, see Rubenstein, Leonard S. and Bittle, Melanie D., “Responsibility for Protection of Medical Workers and Facilities in Armed Conflict”, The Lancet, Vol. 375, 2010, pp. 334336CrossRefGoogle ScholarPubMed. In this latter article, an analysis is provided concerning attacks on wounded and sick individuals, attacks on medical personnel, medical facilities or medical transports, and improper use of medical facilities or emblems. The article covers reported incidents in armed conflicts in El Salvador, the Philippines, the former Yugoslavia, Rwanda and the Occupied Palestinian Territory, among others, between 1989 and 2008.

47 ICRC Customary Law Study, above note 2, commentaries on Rule 25, p. 84, Rule 28, p. 97, Rule 29, p. 102.

48 Ibid., commentary on Rule 25, p. 84.

Ibid

49 The notion of AHTTE needs refined legal analysis, which will be presented below in a separate section.

50 ICRC Customary Law Study, above note 2, Rules 25, 28–29; ICRC Commentary on GC I, above note 4, Art. 21, para. 1844.

51 Cf. GC II, Art. 34(1), for hospital ships.

52 ICRC Commentary on AP II, above note 4, Art. 11, para. 4724. This change is a matter of drafting.

53 Ibid., paras 4720–4721. The ICRC Commentary explains that the term “hostile acts” was adopted for a NIAC context “to eliminate any possibility of an interpretation which would give any sort of recognition to the insurgent party”.

Ibid

54 ICRC Customary Law Study, above note 2, commentary on Rule 25, p. 85.

55 ICRC Commentary on GC I, above note 4, Art. 24, para. 1985.

56 Examples of conducts that constitute AHTTE will be discussed in the next section.

57 ICRC Commentary on GC I, above note 4, Art. 21, para. 1840.

58 Medical personnel, units and transports must be assigned, by a party to the conflict, exclusively to the medical purposes exhaustively defined by IHL – i.e., the search for, collection, transportation, diagnosis or treatment of the wounded, sick and shipwrecked, or for the prevention of disease. AP I, Art. 8; ICRC Customary Law Study, above note 2, commentaries on Rule 25, p. 81, Rule 28, p. 95, Rule 29, p. 100. See also M. Sassòli, above note 10, p. 52.

59 ICRC Commentary on GC I, above note 4, Art. 24, para. 1978; ICRC Commentary on AP I, above note 4, Art. 8, para. 353.

60 Ibid., Art. 21, para. 1844.

Ibid

61 GC I, Art. 22(5); GC IV, Art. 19(2); AP I, Art. 13(2)(d).

62 Y. Dinstein, above note 43, p. 224.

63 Cf. ICRC Commentary on GC II, above note 8, Art. 36, para. 2485. This arguably applies by analogous reasoning to the medical services on land.

64 ICRC Commentary on AP I, above note 4, Art. 13, para. 552.

65 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952Google Scholar (Pictet Commentary on GC I), Art. 21, p. 201.

66 Ibid.

Ibid

67 Ibid.

Ibid

68 Waard, Peter De and Tarrant, John, “Protection of Military Medical Personnel in Armed Conflicts”, University of Western Australia Law Review, Vol. 35, 2010, p. 175Google Scholar.

69 Ibid.

Ibid

70 GC I, Art. 21 (emphasis added). The same requirement with slight modifications is provided in GC IV, Art. 19(1); AP I, Art. 13(1); AP II, Art. 11(2). Cf. GC II, Art. 34(1), for hospital ships.

71 The warning obligation examined here is more stringent than the one under general protection, set out in Article 57(2)(c) of AP I. In the context of special protection, there can be no attack without a prior warning, except in extreme situations where a warning is impossible - for example, when incoming fire requires an immediate response due to overriding military necessity. In the context of general protection, the warning shall as a principle take place unless the circumstances do not permit (e.g., because of mobile targets).

72 ICRC Commentary on GC II, above note 8, Art. 34, para. 2381. This arguably applies by analogous reasoning to medical services on land.

73 ICRC Commentary on GC I, above note 4, Art. 21, para. 1849.

74 Ibid. See also J. K. Kleffner, above note 14, p. 338. As an example of when fire could be returned immediately without issuance of a warning by the aggrieved party to the conflict, this article cites “a medical transport, which approaches a military checkpoint while firing upon those manning the checkpoint”.

Ibid

75 ICRC Commentary on GC I, above note 4, Art. 21, para. 1850.

76 T. Haeck, above note 10, p. 848. Haeck refers to the Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009, paras 596–652. The Mission concluded that the attacks on Al-Quds Hospital (which belongs to the Palestinian Red Crescent Society) and Al-Wafa Hospital by the Israeli armed forces constituted a violation of Article 18 of GC IV, and that the absence of concrete warnings prior to these attacks was in violation of Article 19 of GC IV. Ibid., para. 646: “It [the warning] was not specific and no indication was given about when the attack would take place or how much time there was to evacuate the hospital.”

77 Pictet Commentary on GC I, above note 65, Art. 21, p. 202.

78 ICRC Commentary on GC I, above note 4, Art. 21, para. 1851.

79 Ibid., para. 1852.

Ibid

80 ICRC Commentary on AP I, above note 4, Art. 13, para. 556.

81 ICRC Commentary on AP II, above note 4, Art. 11, para. 4727.

82 ICRC Commentary on AP I, above note 4, Art. 13, para. 556; ICRC Commentary on AP II, above note 4, Art. 11, para. 4726.

83 ICRC Commentary on AP I, above note 4, Art. 13, para. 556; ICRC Commentary on AP II, above note 4, Art. 11, para. 4727.

84 ICRC Commentary on GC I, above note 4, Art. 21, para. 1853.

85 Cf. ICRC Commentary on GC II, above note 8, Art. 34, para. 2383.

86 Cf. Article 34 of GC II, for example, which allows the capture of a hospital ship having indulged in hostile acts, even if the warning has been heeded; but the ship cannot be attacked in such a case. For further details, see ICRC Commentary on GC II, above note 8, Art. 34, para. 2384; Doswald-Beck, Louise (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995CrossRefGoogle Scholar, paras 49–50.

87 See ICRC, Promoting Military Operational Practice that Ensures Safe Access to and Delivery of Health Care, ICRC, Geneva, 2014, pp. 25–27.

88 Ibid.

Ibid

89 The assertion that proportionate enforcement measures are allowed by the aggrieved party to the conflict even when warnings are heeded by the medical service engaging in AHTTE, outside its humanitarian function, is a logical conclusion. Consider an ambulance transporting wounded and sick combatants while simultaneously collecting intelligence near a military checkpoint. The aggrieved party to the conflict issues the legally required warning informing the ambulance that if it does not cease this harmful act immediately, it will be stopped and searched. The ambulance hastily returns to its depot. The following week, the ambulance returns and restarts the same act. Several issues arise. First, can the ambulance get away with its harmful act committed on the first day, as it had heeded the subsequent warning issued by the aggrieved party? The law arguably does not allow such a manoeuvre, especially if the harmful act was of significant gravity – for instance, if the intelligence collected was crucial to launching an important military operation against the aggrieved party. Second, when the ambulance starts to collect intelligence again the following week, is the aggrieved party obliged to issue another warning? If so, and if the ambulance heeds the warning a second time, is the aggrieved party still obliged to grant special protection to it? If not, is the aggrieved party allowed to immediately take an enforcement measure against the ambulance without giving an opportunity for the safe evacuation of the wounded and sick occupants inside it? Does last week's warning remain valid? What if a similar incident occurs the next month, or the next year? Battalions rotate, as do medical personnel, and the circumstances of war are fluid. Should no consequence be attached to these abuses? Not only is this interpretation unreasonable, but a lot of uncertainty would arise in its practical application.

90 For a nuanced analysis of a medical object used for AHTTE in relation to the definition of military objective in Article 52(2) of AP I, see the next section.

91 Michael N. Schmitt, Charles H.B. Garraway and Yoram Dinstein (eds), The San Remo Manual on the Law of Non-International Armed Conflict: With Commentary, International Institute of Humanitarian Law, Sanremo, 2006, Chap. 4.2.1.

92 ICRC Customary Law Study, above note 2, Rules 25, 28–29. See, for example, Luisa Vierucci, “The Protection of Wounded and Sick in IAC and NIAC”, in Carl Marchand and Gian L. Beruto (eds), The Distinction between International and Non-International Armed Conflicts: Challenges for IHL? 38th Round Table on Current Issues of International Humanitarian Law (Sanremo, 3rd–5th September 2015), Franco Angeli, Milan, 2016, p. 213: the fact that, by and large, a warning has not been given before attacking medical facilities in Syria might not only be indicative of lack of existence of the relevant IHL rule in NIAC but also calls into question the respect for the principle of precaution in general, since the obligation to give a warning is one of the corollaries of this principle.

93 Pejic, Jelena, “The Protective Scope of Common Article 3: More Than Meets the Eye”, International Review of the Red Cross, Vol. 93, No. 881, 2011, p. 191CrossRefGoogle Scholar.

94 ICTY, Prosecutor v Stanislav Galić, Case No. IT-98-29-A, Judgment (Appeals Chamber), 30 November 2006.

95 Ibid., paras 336–352.

Ibid

96 Ibid., para. 337.

Ibid

97 Ibid., paras 338–339.

Ibid

98 Ibid., para. 340.

Ibid

99 Iain Bonomy, Principles of Distinction and Protection at the ICTY, FICHL Occasional Paper Series, No. 3, 2013, p. 21. See also ICTY, Galić, above note 94, para. 344.

100 ICRC Commentary on GC I, above note 4, Art. 21, para. 1838.

101 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 818–819.

102 Pictet Commentary on GC I, above note 65, Art. 21, p. 200.

103 J. Pictet, above note 46, p. 204.

104 ICRC Commentary on AP I, above note 4, Art. 13, para. 551.

105 ICRC Commentary on GC I, above note 4, Art. 21, para. 1842.

106 Ibid.

Ibid

107 Pictet Commentary on GC I, above note 65, Art. 21, pp. 200–201.

108 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, Art. 19, p. 154.

109 ICRC Commentary on GC I, above note 4, Art. 21, para. 1842.

110 Ibid., Art. 35, para. 2389.

Ibid

111 ICRC Customary Law Study, above note 2, commentary on Rule 29, p. 102.

112 ICRC Commentary on AP I, above note 4, Art. 28, para. 1052. See also Vaios Koutroulis, “Loss of Protection of Medical Personnel in Armed Conflict”, in Odile Vandenbossche, Ware Vercamer and Arthur Fallas (eds), “Report of the Flanders Fields Conference of Military Law and the Law of War”, The Military Law and the Law of War Review, Vol. 55, No. 2, 2016–17, p. 230.

113 Ibid., para. 1058.

Ibid

114 Ibid., para. 1046.

Ibid

115 Vaios Koutroulis, “Loss of Protection of Medical Personnel in Armed Conflict”, unpublished presentation delivered at the Flanders Fields Conference of Military Law and the Law of War, International Society for Military Law and the Law of War, Ypres, 12–15 October 2014, slide 10 (emphasis added), available at: https://tinyurl.com/y9c9xf3w.

116 ICRC Commentary on GC I, above note 4, Art. 24, para. 2005. Medical personnel may be equipped with light individual weapons in line with Articles 22(1) of GC I and 13(2)(a) of AP I, and are entitled to use these against unlawful violence either for their own defence or for that of the wounded and sick in their charge. These conducts do not constitute AHTTE and consequently do not forfeit their special protection.

117 Ibid., para. 2000.

Ibid

118 Ibid.

Ibid

119 ICRC, Health Care in Danger: Violent Incidents Affecting the Delivery of Health Care, January 2012 to December 2014, ICRC, Geneva, 2015. This report provides an analysis regarding 2,398 incidents of violence against health care in eleven countries in the context of armed conflicts and other emergencies during the indicated three years.

120 Ibid., p. 1.

Ibid

121 Ibid., p. 13, fn. 27.

Ibid

122 Ibid., p. 13.

Ibid

123 ICRC, above note 87, p. 47.

124 ICRC, above note 119, p. 13.

125 Noone, Gregory P. et al. ., “Prisoners of War in the 21st Century: Issues in Modern Warfare”, Naval Law Review, Vol. 50, 2004, p. 39Google Scholar.

126 ICRC Commentary on GC II, above note 8, Art. 34, para. 2375.

127 Stuart Casey-Maslen, “The Status, Rights, and Obligations of Medical and Religious Personnel”, in A. Clapham, P. Gaeta and M. Sassòli (eds), above note 10, p. 816.

128 Hornby, Albert S. (ed.), Oxford Advanced Learner's Dictionary of Current English, 7th ed., Oxford University Press, Oxford, 2005, p. 316Google Scholar.

129 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 205 CTS 227, 18 October 1907 (entered into force 26 January 1910).

130 Cf. ICRC Commentary on GC I, above note 4, Art. 21, para. 1842.

131 AP I, Art. 28(1). It is also recalled that the ICRC's alternative wording, expressing the same idea for AHTTE in preparation for the 1949 Conference, was “acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations” (emphasis added).

132 The warning requirement is precisely for this reason: to alert medical personnel, hospital administrators, etc. to unintentional AHTTE that could strip them from protection from direct attack.

133 Cf. GC II, Art. 35, for hospital ships.

134 ICRC Commentary on GC I, above note 4, Art. 22, para. 1860.

135 ICRC Customary Law Study, above note 2, commentary on Rule 25, p. 85.

136 ICRC Commentary on AP II, above note 4, Art. 11, para. 4723.

137 For the scope of defence, see ICRC Commentary on GC I, above note 4, Art. 22, paras 1866–1867; M. Sassòli, above note 10, p. 54; A. Breitegger, above note 7, p. 112.

138 ICRC Commentary on GC I, above note 4, Art. 22, para. 1864; ICRC Commentary on AP I, above note 4, Art. 13, para. 562.

139 ICRC Commentary on AP I, above note 4, Art. 13, para. 563.

140 ICRC Commentary on GC I, above note 4, Art. 22, para. 1865.

141 Ibid., para. 1864.

Ibid

142 ICRC Customary Law Study, above note 2, commentary on Rule 25, p. 85.

143 ICRC Commentary on GC I, above note 4, Art. 22, para. 1864.

144 Ibid., para. 1868.

Ibid

145 Bothe, Michael, Partsch, Karl J. and Solf, Waldemar A. (eds), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 2nd ed., Martinus Nijhoff, Leiden and Boston, MA, 2013Google Scholar, AP I, Art. 13, p. 131, and Art. 65, p. 459.

146 Ibid., pp. 460–461. See also ICRC Commentary on AP I, above note 4, Art. 13, para. 563.

Ibid

147 See, for example, Maria Caspani, “U.S. COVID-19 Cases Rocket Past 100,000 as Doctors Look for Black Market Medical Supplies”, National Post, 28 March 2020, available at: https://nationalpost.com/news/world/u-s-coronavirus-cases-surpass-100000-as-doctors-cope-with-medical-shortages; “Black Market for Coronavirus Test Kits Flourishes in Climate of Mistrust, Stigma in Nigeria”, News 24, 23 April 2020, available at: www.news24.com/Africa/News/black-market-for-coronavirus-test-kits-flourishes-in-climate-of-mistrust-stigma-in-nigeria-20200423.

148 ICRC Commentary on GC I, above note 4, Art. 22, para. 1867; ICRC Commentary on AP I, above note 4, Art. 13, para. 561.

149 M. Bothe, K. J. Partsch and W. A. Solf (eds), above note 145, AP I, Art. 13, p. 131. An analogous problem arises with the armament of civil defence personnel: ibid., Art. 65, pp. 460–461. See also ICRC Commentary on AP I, above note 4, Art. 13, para. 560.

150 Article 22(2) of GC I includes the expression “in the absence of armed orderlies”. This does not mean that the simultaneous presence of armed orderlies and military guards is prohibited. See Pictet Commentary on GC I, above note 65, Art. 22, pp. 203–204.

151 ICRC Commentary on GC I, above note 4, Art. 22, para. 1870.

152 Ibid.

Ibid

153 Ibid., para. 1872; ICRC Commentary on AP I, above note 4, Art. 13, para. 566.

Ibid

154 Ibid., para. 1871.

Ibid

155 ICRC Commentary on AP I, above note 4, Art. 13, para. 566.

156 ICRC Commentary on GC I, above note 4, Art. 22, para. 1874.

157 Ibid., para. 1876.

Ibid

158 Ibid., para. 1877. Article 22(3) of GC I does not define the term “small arms”. The equally authentic French text, however, adopts the term “armes portatives” (portable weapons).

Ibid

159 Ibid.

Ibid

160 Ibid.

Ibid

161 Ibid.

Ibid

162 ICRC, above note 87, p. 28, fn. 18.

163 ICRC Commentary on GC I, above note 4, Art. 22, para. 1877.

164 See, for example, US Department of Defense, Law of War Manual, June 2015 (updated December 2016), para. 7.10.3.6.

165 ICRC Commentary on GC I, above note 4, Art. 21, para. 1842. The commission of AHTTE while displaying the distinctive emblems of the Geneva Conventions is specifically prohibited under AP I, Art. 38(1); AP II, Art. 12; Protocol Additional (III) to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem, 2404 UNTS 261, 8 December 2005 (entered into force 14 January 2007), Art. 6(1); and customary IHL (ICRC Customary Law Study, above note 2, Rule 59).

166 On the role of the principle of good faith in IHL, in particular with reference to the prohibition of perfidy, see Robert Kolb, Good Faith in International Law, Hart Publishing, Oxford and Portland, OR, 2017, pp. 251–254.

167 Ibid., pp. 252–253.

Ibid

168 Ibid. See also R. Kolb, above note 38, p. 41: “no belligerent would be imprudent enough to implement IHL obligations, if there must be a constant and well-founded fear that these obligations are used for hostile purposes”.

Ibid

169 ICRC Commentary on AP I, above note 4, Art. 13, para. 551.

170 ICRC and Melzer, Nils, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”, International Review of the Red Cross, Vol. 90, No. 872, 2008, p. 1013Google Scholar.

171 J. K. Kleffner, above note 14, p. 324.

172 ICRC Commentary on AP I, above note 4, Art. 51(3), para. 1942.

173 Some, including the ICRC, perceive that the notion of AHTTE is broader than that of DPH. See ICRC, above note 5, p. 33; ICRC Commentary on GC I, above note 4, Art. 24, para. 2003: “In terms of acts covered, the scope of application of the notion of ‘acts harmful to the enemy’ is broader than that of ‘direct participation in hostilities’.” For the same line of argument, see Nils Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, p. 329.

174 US Department of Defense, above note 164, para. 5.8.3.3: “demonstrated hostile intent may also constitute taking a direct part in hostilities”.

175 AP I, Art. 51(3); AP II, Art. 13(3); ICRC Customary Law Study, above note 2, Rule 6.

176 ICRC, above note 5, p. 33.

177 R. Kolb, above note 38, pp. 160–162.

178 Jachec-Neale, Agnieszka, The Concept of Military Objectives in International Law and Targeting Practice, Routledge, London and New York, 2015, p. 83Google Scholar.

179 ICRC Commentary on GC I, above note 4, Art. 21, para. 1841.

180 R. Kolb, above note 38, p. 162.

181 Ibid.

Ibid

182 A. Jachec-Neale, above note 178, p. 116.

183 ICRC, above note 5, p. 33.

184 ICRC Commentary on GC I, above note 4, Art. 21, para.1844; see also Art. 24, para. 1998.

185 Ibid.

Ibid

186 ICRC Customary Law Study, above note 2, commentary on Rule 6, p. 24: “In the case of non-international armed conflicts, the issue of doubt has hardly been addressed in State practice, even though a clear rule on this subject would be desirable.”

187 ICRC Commentary on GC I, above note 4, Art. 21, para. 1854, Art. 24, para. 2008.

188 For a detailed analysis, see P. De Waard and J. Tarrant, above note 68, pp. 175–182.

189 For an alternative view, see V. Koutroulis, above note 112, p. 231; M. Sassòli, above note 10, pp. 53–55. Sassòli asserts that the loss of special protection for both military medical personnel and civilian medical personnel should be limited to acts that amount to DPH, instead of AHTTE, as the latter is a relevant criterion developed for objects while the former is for persons.

190 Nonetheless, questions do arise as to whether an attack against a member of military medical personnel who has committed a single, low-level harmful act that does not amount to a hostile act (e.g., sending one email containing low-quality intelligence unrelated to combat operations) would indeed be necessary.

191 If a temporal loss rather than a permanent loss of special protection is justified, where the special protection is regained, the person is no longer liable to attack. For the temporal end of the loss of special protection with regard to military medical personnel, see ICRC Commentary on GC I, above note 4, Art. 24, para. 2009. For a similar discussion on civil defence personnel in the context of Article 65 of AP I, see M. Bothe, K. J. Partsch and W. A. Solf (eds), above note 145, AP I, Art. 65, pp. 458–459.

192 See above note 26.

193 US Department of Defense, above note 164, para. 7.10.3.2.

194 Ibid. The Manual stipulates that the proportionality principle creates obligations to “take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack” (emphasis added): ibid., paras 2.4.1.2, 5.11. It further underlines that “the requirement to take feasible precautions in planning and conducting attacks and the prohibition on attacks expected to cause excessive incidental harm are fundamentally connected and mutually reinforcing obligations”: Ibid., para. 5.10.5. It rejects, however, that the proportionality requirement applies to military medical personnel and objects, or to military wounded and sick, as they are deemed to have accepted the risk of incidental harm due to their proximity to military objectives: ibid., paras 4.10.1, 5.10.1.2, 7.3.3.1, 7.8.2.1, 7.10.1.1, 17.14.1.2, 17.15.1.2, 17.15.2.2. For a detailed analysis on the Manual's approach on this matter, see J. K. Kleffner, above note 38, pp. 52–55.

Ibid

195 See the above section entitled “Special Protection”.

196 ICTY, Galić, above note 94, paras 336–352.

197 Ibid., para. 337

Ibid

198 Ibid., paras 338–339.

Ibid

199 Ibid., para. 338.

Ibid

200 Ibid., para. 340.

Ibid

201 Ibid.

Ibid

202 Ibid.

Ibid

203 Ibid.

Ibid

204 Ibid., para. 346 (emphasis added).

Ibid

205 ICRC, above note 5, p. 33. See also ICRC, above note 87, pp. 41–42, for a set of “[s]pecific measures to guide the planning and conduct of an attack on a health-care facility which has lost its protection”.

206 Shue, Henry and Wippman, David, “Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions”, in Shue, Henry, Fighting Hurt: Rule and Exception in Torture and War, Oxford University Press, Oxford, 2016, pp. 306309CrossRefGoogle Scholar.

207 Cf. ICRC Commentary on GC II, above note 8, Art. 34, para. 2388.

208 ICRC Customary Law Study, above note 2, Rule 8.

209 Agnieszka Jachec-Neale, “How Can My Home, School or Church Ever Be a Military Objective? Loss of Protection by Use, Purpose or Location”, in Urban Warfare, Proceedings of the 16th Bruges Colloquium, 15–16 October 2015, p. 19. Jachec-Neale maintains that a single multi-storey building used partially for military purposes can be considered in whole as a “specific” military objective within the meaning of Article 51(4)(a) of AP I, provided it fulfils the definition of a military objective under Article 52(2) of AP I. Conversely, a compound comprised of several independent buildings may not be qualified as such if the information reasonably available to the adverse belligerent at the moment of the attack indicates that only some of the independent buildings within the compound are used for military purposes. Determining such a compound as a single military objective in its entirety is incompatible with the definition under Article 52(2) and would likely constitute an indiscriminate attack under Article 51(5)(a) of AP I. Ibid., pp. 19–20.

210 ICTY, Galić, above note 94, para. 346.

211 An authorized hospital means one that is assigned to medical purposes by a party to the conflict. See the definition of medical units in the above section entitled “Special Protection”.

212 ICRC Customary Law Study, above note 2, commentary on Rule 28, p. 95.

213 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002), Arts 8(2)(b)(ix), 8(2)(e)(iv) (emphasis added).

214 This wider interpretation of hospitals has history. In the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 129 CTS 361, 22 August 1864 (entered into force 22 June 1865), Art. 5, it was codified that “[t]he presence of any wounded combatant receiving shelter and care in a house shall ensure its protection”.

215 AP I, Art. 57(2)(a)(i).

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