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This blog post was written by John Cerone.
Since the outbreak of the Russia-Ukraine war, several news outlets have highlighted the plight of Ukrainian doctors faced with the challenges of providing care to enemy wounded. In addition to dwindling resources and the logistical complications of working in a warzone, medical personnel have to navigate the understandable emotional conflicts that might arise when treating those fighting for an enemy that has inflicted grave harm on them and their loved ones. Apart from the more general issues of morality and medical ethics, there are legal questions as well. As a professor of international law who has served as a legal advisor for several international criminal courts and tribunals, my focus is on whether, and to what extent, health professionals are required by international law to provide medical care to enemy combatants. This article focuses on whether such an obligation exists under the International Law of Armed Conflict, also known as International Humanitarian Law (IHL).
The Geneva Conventions of 1949 and the Additional Protocols thereto provide an extensive set of rules governing the treatment of individuals in situations of armed conflict. The most relevant treaties governing this question would be the First Geneva Convention of 1949 (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field), and the First Additional Protocol to the Geneva Conventions (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts or “Protocol I”). Both Russia and Ukraine are parties to, and thus bound by, these treaties.
One of the most basic rules of IHL is that the wounded and sick must be collected and cared for. According to Article 10(1) of Protocol I, “All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.” The second paragraph explicitly addresses the issue of medical care, requiring that they receive, “to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.” This obligation extends to all wounded, whether friend or foe.
This leads to the next basic rule: non-discrimination, or in the words of Protocol I: “There shall be no distinction among them founded on any grounds other than medical ones.” The First Geneva Convention similarly provides, “Only urgent medical reasons will authorize priority in the order of treatment to be administered.”
IHL also makes clear that those who provide medical care to enemy wounded may not be penalized for doing so. According to Article 16 of Protocol I, “Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”
Conversely, the failure to provide medical care to enemy wounded will, in some instances, constitute a war crime.
Positive obligations and culpable omissions
The rules set forth above entail a substantial degree of positive obligation, meaning that the parties to the conflict are required to take affirmative measures to assist the wounded and sick. It is not sufficient to simply refrain from aggravating their condition.
This is made explicit in Article 11(1) of Protocol I, which states that the physical and mental health of persons who are “in the power of” the enemy “shall not be endangered by any unjustified act or omission.” The ICRC Commentary to the treaty clarifies that persons “in the power of” an adverse party would include not just detainees, but also anyone found within territory controlled by that party.
At the same time, positive obligations are generally governed by a “best efforts” standard, meaning that each party to the conflict must do its best to provide such care. In light of the above-mentioned rule of non-discrimination, one barometer for assessing a party’s efforts would be the diligence exercised by the party in caring for its own.
The subject of obligation and the issue of criminal responsibility
While it is clear that the belligerent states are obliged to care for enemy wounded, does this also mean that individual doctors and other medical personnel can be held legally responsible in the event of breach?
International law traditionally governed inter-state relations, and was unconcerned with the rights and duties of individual human beings. Even today, most rules of international law bind only the state, and do not govern the legal responsibility of individual human beings, the latter typically being left to domestic law.
Thus, under International Humanitarian Law, the parties to the conflict are the principal duty bearers. Common Article 1 of the 1949 Geneva Conventions places the obligation to “respect and ensure respect for” the Conventions squarely upon the states parties. As such, most IHL obligations are addressed to the belligerent states, and do not impose legal responsibility directly upon individuals.
Nonetheless, certain violations of the Geneva Conventions and of Protocol I were deemed serious enough by the drafters to warrant mandatory criminal repression — the so called “grave breaches.” These grave breaches are paradigm war crimes, and all states are under an obligation to prosecute the individual perpetrators of these particularly serious violations of IHL. In addition, in light of their universal recognition as war crimes, the perpetrators are regarded as being directly bound by these international legal prohibitions, and their criminal responsibility is engaged in the international legal system, irrespective of whether the conduct would be regarded as criminal under domestic law.
Protocol I provides that in certain circumstances, the failure to provide medical care to enemy wounded will constitute a grave breach, thus engaging the criminal responsibility of the responsible individual. According to Article 11(4), “Any wilful act or omission which seriously endangers” their physical or mental health or integrity “shall be a grave breach of this Protocol.” While this language tracks to some extent the language of Article 11(1) above, it is somewhat narrower, given its penal consequences. The omission must be “wilful” and it must “seriously” endanger the person’s health.
Military doctors and civilian doctors
But does this obligation extend to civilian medical providers? As noted above, the principal duty bearers under IHL, as with most rules of international law, are the parties to the armed conflict. Thus, the belligerent states are required to provide medical care through their agents and instrumentalities, and in particular through their military medical personnel. This would also include civilian medical personnel who have been assigned by the state to carry out medical functions related to the conflict. Whether this IHL obligation also extends to private civilian medical providers (i.e, those who have not been so assigned) is less clear.
The First Geneva Convention and Additional Protocol I certainly require the belligerent states to ensure that their civilian populations do not harm enemy wounded. In the words of Article 17(1) of Protocol I, “The civilian population shall respect the wounded, sick and shipwrecked, even if they belong to the adverse Party, and shall commit no act of violence against them.” This provision would not seem to require the provision of medical care by civilians. The term ‘respect’ usually corresponds to a negative obligation, i.e. an obligation of abstention, and the final phrase would seem to support the idea that what is required is merely that civilians refrain from hostile acts against them. It is further reinforced by the second paragraph of article 17, which states that “The Parties to the conflict may appeal to the civilian population . . . to collect and care for the wounded, sick and shipwrecked” and requires the parties to provide protection “to those who respond to this appeal.”
Nonetheless, the above-cited language of Article 11(4), which criminalizes serious endangerment through willful withholding of medical care, does not explicitly limit its application to military personnel. As such, it remains unclear whether the willful failure of civilian medical professional to provide life-saving care to enemy wounded would be a war crime.
In any event, even if IHL does not require civilian doctors to provide care to enemy wounded, consideration must still be given to any relevant provisions of domestic law and medical ethics. As stated in the World Medical Association’s Regulations in Times of Armed Conflict and Other Situations of Violence, “If, in performing their professional duty, physicians have conflicting loyalties, their primary obligation is to their patients…”