|Manual on the Rights and Duties of Medical Personnel in Armed Conflicts (ICRC, 1982, 77 p.)|
|CHAPTER 2. DUTIES OF MEDICAL PERSONNEL|
1.1. Wounded, sick and shipwrecked persons, prisoners of war and civilians exposed to the consequences of an armed conflict, i.e. all persons who by their situation are outside the conflict or who do not take a direct part in it, must be treated humanely under all circumstances.
Art. 3, G I, II, III & IV;
Art. 12, G I & II;
Art. 13, G III;
Art. 27, G IV;
Art. 10, P. I;
Art. 4 & 7, P. II
All the persons referred to above are protected by the provisions of international humanitarian law.
Medical personnel, called upon to deal with these persons, must do so with humanity under all circumstances, to the best of their possibilities and in accordance with their conscience.
The principle of humanity, of compassion for victims, is one of the fundamental principles of the International Red Cross.
1.2. The protection of medical personnel is not a personal privilege accorded to them, but is a natural consequence of the requirements designed to assure respect and protection for the victims of armed conflicts.
Protection is accorded to medical personnel in order to facilitate the humanitarian tasks assigned to them and this protection is given them only if - or when - they are exclusively carrying out these tasks. The auxiliary medical personnel referred to in the First Convention (Art. 25), for example, are obviously not protected when carrying out their military functions. Similarly, a doctor protected by the Conventions could not benefit from this protection to carry on commercial activities.
1.3. Medical personnel must abstain from all acts of hostility.
Medical personnel are protected because they must remain neutral in the armed conflict in which they are called upon to intervene. If they cease to be neutral, they lose this protection.
"Neutrality", with respect to medical personnel, is the requirement that they abstain from any act of activity, and, more generally, from any intervention in military operations. It is on this condition that special protection is accorded to them.
1.4. Medical personnel are authorized to carry only light weapons 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.
Art. 22, G I;
Art. 35, G II;
Art. 13, 28, 63, 65 & 67, P. I
If one were to consider only the humanitarian function which medical personnel must exercise and the protection granted them in their capacity as "neutrals", one might be surprised to allow for the possibility that they might be armed.
We must take into account however some of the contingencies of the international or non-international armed conflicts in which these persons are called upon to extend their services. The circumstances of such conflicts are often conducive to a state of internal disorder which, apart from the conflict itself, engenders such acts of violence as rape, looting or banditry. It is therefore essential to defend the wounded and sick against such acts. In addition, wounded soldiers may not necessarily be incapacitated and it is important to maintain order among the wounded and in all medical installations.
It is mainly for these two reasons that States considered that the arming of medical personnel could not be totally excluded. In reality, without explicitly permitting it, international humanitarian law implicitly accepts the arming of medical personnel. Arms borne by such personnel, however, must be restricted to light individual weapons and may not be used except for the purposes stated above. If medical personnel were to attempt to resist a military advance by using arms, they would lose their "neutrality" in the conflict, and hence their right to protection, unless the enemy were to attempt, deliberately, to kill the wounded, the sick or members of the medical personnel.
1.5. Medical personnel must be identifiable.
Art. 40 & 41, G I;
Art. 42, G II;
Art. 20, G IV;
Art. 18, 66, 67 & Annex I, P. I;
Art. 12, P. II
Since the adoption of the Protocols of 1977, special emphasis has been given to the visibility of the protective sign. All medical personnel entitled to protection must display the sign in the most conspicuous possible manner (a large red cross on the chest and one on the back, for example) in occupied territories or in areas where combats are taking place or seem likely to take place. In addition, such personnel must be supplied with identity cards meeting specified requirements (see in Protocol I, article 1 of Annex I).
Protocol I of 1977 introduced a new protective sign for members of civil defence organizations, a blue equilateral triangle on an orange ground. Medical personnel assigned to civil defence organizations are entitled to use both protective signs. In any event, emphasis must be given to the visibility of the sign or signs, as the essential assurance of their efficacy. There is no reason why the means of identification of medical personnel should not be prepared in peacetime. Indeed, such advance preparation is desirable, since improvisation in this field is difficult.
1.6. Medical personnel who commit abuses or breaches of international humanitarian law are subject to punishment.
Art. 3, 44, 49 to 54, G I;
Art. 3, 44, 45, 50 to 53, G II;
Art. 3, 13, 129 to 132, G III;
Art. 3, 146 to 149, G IV;
Art. 11, 18, 85 & 86, P. I;
Art. 4 & 5, P. II
The repression of abuses and breaches of international humanitarian law is dealt with in the texts of that law, but in a relatively cursory manner, and it is essential to supplement these provisions concerned by appropriate national legislation in the various countries.
All violations of provisions of international humanitarian law constitute breaches of that law and the States Parties to the Conventions are under the obligation to put an end to such violations. International humanitarian law does not specify the manner in which the States are to accomplish this. As a rule, internal penal provisions provide for punishment for violations of the most important provisions.
Humanitarian law itself does however characterize certain violations as grave breaches. In these cases, international humanitarian law demands not only that an end be put to the violations but also that penal sanctions must be imposed. It is left to the national legislative bodies however to determine the punishment.
Grave breaches, moreover, are formally considered to be war crimes and accordingly are subject to prosecution at any time (imprescriptibility) and at any place (universal jurisdictional competence). Let us now consider infractions which, by their nature, might be committed by medical personnel in the exercise of their functions and constitute grave breaches of international humanitarian law if they are committed against persons or objects protected by that law, such as:
- wilful killing;
- torture or inhuman treatment, including biological experiments or other medical or scientific experiments;
- wilfully causing great suffering or serious injury to body or health;
- any wilful act or omission which endangers the physical or mental health or integrity of those persons. It is to be noted in this connection that donations of blood for transfusion and of skin for grafting are allowed if the donor's agreement is obtained without any coercion and then only for purely therapeutic purposes. Such donations should be recorded in a medical file;
- the perfidious use of the distinctive emblem of the red cross or red crescent or of other recognized protective signs or signals, causing death or serious injury to body or health.
What happens to the person or persons responsible for these grave breaches? Every one of the States parties to the Geneva Conventions (and to the additional Protocols) is obliged to seek the person or persons who have committed or ordered the commission of these breaches. We wish to stress at this point the responsibility of superiors for the actions of their subordinates if, knowing or having information to the effect that such a subordinate was committing or was going to commit a breach, they do not take all measures in their power to prevent the infraction.
The State must then bring such persons before their own courts, regardless of nationality. It may also turn them over to another State which wishes to prosecute them.
In conclusion, emphasis must be laid on the great responsibility incumbent on every member of the medical personnel providing their services in armed conflicts. They must be aware that the infraction or abuse which they might commit could lead not only to fatal consequences for the victim or victims of those infractions or abuses - and for themselves if they were found out - but could also endanger the whole system of protection based upon confidence, established by international humanitarian law.