Photo: Sam Woolley (GMG)

This piece is part of a recurring series that aims to be a complete guide to the laws of war. You can read previous entries here.

The protection of the wounded, sick, and shipwrecked at sea is a fundamental purpose of International Humanitarian Law (IHL), the laws of armed conflict. Once a person in an armed conflict is in need of medical care and refrains from any act of hostility, the rules of IHL provide that they must be protected and respected, permitted to be evacuated from danger, and given necessary medical treatment.

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The primary aim of Henry Dunant’s creation of the International Committee of the Red Cross (ICRC) after he had witnessed the horrors of the Battle of Solferino in 1859 was to create a neutral, impartial, humanitarian body that would provide medical assistance to those affected by armed conflict without favor or discrimination. In fact, the ICRC was originally called the International Committee for Relief to the Wounded. The principles championed by Dunant in the original Geneva Convention of 1864 form the cornerstone of protection in armed conflict today.

In modern IHL, the principles protecting the wounded and sick can be summarized in three sentences. First, the wounded, sick, and shipwrecked at sea must be respected, protected, and cared for without any adverse distinction based on criteria such as race, gender, nationality, religion or political affiliation. Secondly, the medical and religious personnel that treat the wounded and sick, and the buildings and equipment used for their benefit, must also be protected. Thirdly, the emblems of the red cross, red crescent, and red crystal symbolize this protection. The First Geneva Convention of 1949, or GC I, is given over entirely to protecting the wounded and sick in armed forces in the field. The Second Geneva Convention, or GC II, is likewise dedicated to the application of the same principles to maritime warfare in protecting the wounded, sick, and shipwrecked armed forces at sea.

The nations of the world have agreed to be bound by these rules so as to protect their wounded and sick armed forces in their time of specific vulnerability, acknowledging that the only legitimate objective of warfare is to weaken the military capacity of the enemy, and that all persons not or no longer contributing to the military cause are deserving of protection. The rules of IHL apply equally to all parties in a conflict, and those fighting against your country are entitled to the same protections as those fighting for your country.

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The Wounded, Sick, And Shipwrecked

In an armed conflict, the wounded, sick, and shipwrecked must be respected, protected, and cared for. The rationale behind these rules is clear—to mitigate the worst effects of conflict by providing medical care for any person in need of it who is not contributing to the hostilities.

The obligation to respect requires a party to not cause the wounded, sick, and shipwrecked any harm, and not to attack them directly or indiscriminately. The obligation to protect is to take proactive measures for their protection against dangers arising in armed conflict, such as by evacuating wounded and sick from the battlefield. The obligation to provide care to those in a party’s hands is to provide medical treatment to ameliorate their condition to the fullest extent practicable, recognizing that the difficult circumstances of armed conflict may not allow for the fullest level of care. The wounded, sick, and shipwrecked must be treated without any distinction made on grounds other than medical ones.

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Crucially, parties to a conflict must fulfil these obligations in respect of enemy combatants as well as their own. It might seem strange that a warring party must provide care for those that it has just attacked, but every nation in the world has agreed to be bound by these obligations on the understanding that the “cost” of having to care for wounded, sick, and shipwrecked enemy fighters will be outweighed by the benefit of their own receiving care when in need. In fact, similar rules were included in the United States’ 1863 Lieber Code, which similarly provided for medically treating captured wounded enemy.

The terms “wounded” and “sick” in international humanitarian law do not correspond precisely to their everyday meanings. To qualify as wounded or sick, a person must satisfy two criteria—being in need of medical care, and refraining from any acts of hostility. The need for medical care is to be interpreted broadly and covers maternity cases and newborn babies, although in everyday parlance we wouldn’t ordinarily think of those classes of persons as wounded or sick. Similarly, we might ordinarily think of a badly injured soldier as wounded, but while he or she continues to engage in acts of hostility, he/she is not entitled to protection as wounded or sick. A person is “shipwrecked” under IHL if they are in peril at sea or other waters “as a result of misfortune affecting them or the vessel or aircraft carrying them,” and (as before) if they refrain from acts of hostility.

As soon as a person becomes classified as wounded, sick, or shipwrecked, the rules governing the conduct of hostilities cease to apply and the protective framework described in this article begins to apply. A combatant in your nation’s armed forces is targetable during the conduct of hostilities, but becomes protected once they are in need of medical care and refrain from acts of hostility. By the same token, your soldier may lawfully target an enemy combatant during the conduct of hostilities, but if the adversary satisfies the above status and conduct requirements, that person is no longer targetable. A similar demarcation between regimes exists for persons who find themselves in the power of the enemy—persons may be targetable during the conduct of hostilities but all persons in enemy hands are protected.

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Parties to an international armed conflict (IAC) must at all times, but particularly after an engagement, search for and collect the wounded, sick, and shipwrecked. Parties to a non-international armed conflict (NIAC) must do so whenever circumstances permit. This obligation is a logical requirement in this protective regime—the provision of care is only possible if those in need are searched for and collected. To that end, the First Geneva Convention also contains a quaint provision: the civilian inhabitants of a conflict area may themselves collect and care for the wounded and sick.

When in the power of the enemy, inhumane acts against the wounded, sick, and shipwrecked are prohibited, including any attempts upon their lives or violence to their persons, murder or extermination, torture, biological experiments, or being wilfully left without medical assistance. Women are to be “treated with all consideration due to their sex.”

The wounded, sick, and shipwrecked are classified as protected persons under the First Geneva Convention and the Second Geneva Convention. Serious acts of ill-treatment against protected persons in an IAC are classified as grave breaches of those Conventions, namely: “Willful killing, torture or inhuman treatment, including biological experiments, [and] willfully causing great suffering or serious injury to body or health.”

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Every country in the world is under the obligation under the Conventions to enact domestic legislation to criminalize grave breaches, and to search for anyone on their territory accused of committing a grave breach and either bring them before its courts or hand them to another state for trial. In NIAC, Article 3 common to the four 1949 Geneva Conventions prohibits ill-treatment against persons taking no active part in hostilities (which includes, by definition, the wounded, sick, and shipwrecked), including violence, taking of hostages, outrages upon personal dignity, and dispensing with judicial guarantees. Both grave breaches and violations of common Article 3 constitute war crimes. Finally, feigning being wounded of sick to invite the enemy to believe that a person is entitled to protection constitutes perfidy as an act seriously undermining the protection of the rule, and killing or wounding an adversary by resort to perfidy is a war crime in both IAC and NIAC.

Protection Of Medical And Religious Personnel And Equipment

In both IAC and NIAC, medical and religious personnel and medical units and transports exclusively assigned to medical or religious duties must be respected and protected. They may only lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.

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Medical and religious personnel are not to be attacked and must be allowed to perform their duties in conformity with their medical/religious ethics, and may not be punished for doing so. In return, they may not commit acts harmful to the enemy, and must give care to the wounded, sick, and shipwrecked without discrimination. The mere provision of medical and religious care to the fighters of one party to a conflict does not constitute an act harmful to the enemy to the other party.

Which persons are protected as medical and religious personnel under IHL? Medical personnel of a state party to a conflict that are engaged in the search for, or the collection, transport or treatment of, the wounded or sick, are protected, as are religious personnel attached to state armed forces or medical units. Staff of civilian hospitals are also to be respected and protected at all times. Personnel of aid societies can receive the protection of medical personnel only if they are duly recognized and authorized by their governments and are “subject to military laws and regulations.” Societies of neutral states can be put under the control of a belligerent during a conflict, though this has not occurred in the post-WW2 era. The International Committee of the Red Cross, and other impartial humanitarian bodies such as Médecins Sans Frontières (MSF, or Doctors Without Borders), are likewise protected.

Medical and religious personnel retain the right to confidentiality in accordance with their ethics and cannot be compelled to give information regarding the wounded and sick, except in conformity with the law of their nation or in the case of compulsory notification of communicable diseases. Punishing a person for performing medical duties compatible with medical ethics or compelling a person to perform acts contrary to medical ethics is prohibited.

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(This brings up an interesting thematic discussion: ordinarily, a person cannot practice as a medical professional unless they have fulfilled the requirements for doing so under national laws—having a medical degree and training, renewing practicing licenses, etc. So, in ordinary circumstances, a New Zealand doctor couldn’t just rock up to Finland and start treating civilians in need of medical care. Nevertheless, in an armed conflict, the law of IHL permitting medical personnel to provide medical care is considered the lex specialis—specialized law which takes precedence over generalized law in the event of a conflict between the two—permitting our Kiwi doctor to provide medical assistance in accordance with the Conventions during a hypothetical armed conflict in Helsinki.)

Medical units (such as hospitals) and transports (such as ambulances and medical aircraft) exclusively assigned to medical purposes must be respected and protected in all circumstances, and similarly only lose their protection only if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. In such a case, protection only ceases after a due warning has been given.

Let’s talk for a second about the concept of war booty. Generally speaking, parties to an IAC may seize military equipment belonging to an adverse party as war booty, and put it to whatever use it sees fit (such as raiding enemy ammunition stocks for use in combat). This right traditionally extended to movable public property of the enemy, although pillage (the forcible taking of private property) has long been prohibited as a war crime in IAC and NIAC and in domestic military manuals all over the world.

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Medical units, transports, and material are subject to a somewhat modified right to war booty. In general, a party may seize enemy medical units and transports, but must ensure the welfare of any wounded and sick nursed therein, and may not divert them from their purpose if they are required for the care of the wounded and sick. So, an armed force encountering an enemy ambulance may stop and seize it for its own use, but must provide care for any wounded and sick onboard and must use the vehicle and any material inside only for medical purposes. Medical aircraft must obey a summons to land and may be searched to ensure that it is exclusively employed for medical purposes. The Conventions only make narrow exceptions for where medical units may be used for non-medical purposes: forces in an IAC may “make use of” fixed medical establishments and the sick bays of warships for military purposes in case of urgent military necessity, provided arrangements are made for the wounded and sick nursed therein.

Medical and religious personnel are protected persons under GC I and GC II, and therefore the serious acts of ill-treatment mentioned above committed against those persons in IAC are grave breaches of those Conventions. Similarly, acts of unlawful and wanton destruction and appropriation of protected medical property also constitute grave breaches.

Emblems

The Conventions and Additional Protocols authorize the use of three emblems. The protection granted by the Conventions must be made known to the parties to a conflict in an unambiguous manner which can be easily observed through the theatre of war. (A protected person or object is still protected if it doesn’t bear the emblem, but in reality the protection can only be effective if conflicting parties know of it.) A distinctive, easily-replicable symbol which is known to represent this protection is therefore an indispensable tool in the protection of the wounded, sick, and shipwrecked.

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The iconic emblem of the red cross on a white background was created by reversing the colours of the Swiss flag “as a compliment to Switzerland” (as we are told in Article 38 of GC I, one of the rare legal provisions which tells us what the rule is and also why the rule is). ICRC founder Henry Dunant hailed from Switzerland, and the Swiss flag was and is a symbol of neutrality, and so the very first Geneva Conference in 1863 passed a resolution adopting the red cross emblem, which was included in the first Geneva Convention of 1864. (Fun fact: at the battle of Solferino, first-aid posts and field ambulances were distinguished by the use of a black flag.)

The ICRC therefore asserts that the red cross is not intended to carry any religious significance—an important point given that its core purpose is to provide humanitarian relief without distinction based on grounds such as religion. Of course, while the red cross is intended to be neutral, the Swiss flag itself bears obvious religious iconography, and despite the ICRC’s good intentions there is no escaping the connotation that any image of a cross carries.

Non-Christian nations resisted the use of the red cross, and so the emblem of the red crescent on a white background was created for use in areas where it might be better received than the cross. The first use of the emblem of the red crescent was in 1876 by the Ottoman Empire during the Russo-Turkish war, and since then the crescent has become the preferred emblem in much of the Islamic world. Of course, any image of a crescent likewise carries religious connotations, though again the ICRC states that the emblem is not intended to be a religious symbol.

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Over the years there had been many calls for the introduction of a new emblem devoid of any national, political, or religious connotation. (The Netherlands delegation had proposed the adoption of a single new unifying emblem at the conference which produced the 1949 Geneva Conventions, but were defeated.) The Third Additional Protocol of 2005, or AP III, (to which there are currently 73 states parties) introduced for what is informally known as the emblem of the red crystal on a white background. (AP III doesn’t actually use that name—the term “red crystal” was endorsed by the 2006 International Conference of the Red Cross and Red Crescent—and it is officially known as “the third Protocol emblem”.)

The emblems serve both protective and indicative functions. In times of conflict, the emblems serve a protective function by distinguishing medical persons and objects which are protected by the Geneva Conventions and Additional Protocols from fighters who may be lawfully attacked. The protective emblem may be displayed by medical and religious personnel (who are to wear an armlet bearing the emblem on their left arm), on hospital ships, and over medical units and establishments entitled to respect under the Conventions with the consent of the military authorities. Protective emblems should be as large as possible so as to afford the greatest chance of being seen by belligerents. The ICRC and its personnel are also granted the right under the Conventions to make use of the emblems at all times.

In times of peace, the emblems may be used for an indicative function to identify activities carried out by National Red Cross and Red Crescent Societies, in accordance with their national legislation. The indicative emblems should be small so as to not be seen as representing protection of the Conventions.

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These National Societies are separate from the International Committee of the Red Cross and may be the ones you may be most familiar with in your country. National Societies operate as discrete entities in every country in the world, working in peacetime for the promotion of health, on disaster relief efforts, and economic development. On the other hand, the ICRC is a single international organization whose personnel operate in times of armed conflict and serious violence to provide medical assistance, to visit persons detained in armed conflict, and to restore family links to restore contact between dispersed family members. For example, blood donation programs in the United States bearing the indicative emblem are run by the American Red Cross, while visits to prisoner of war camps are conducted by the ICRC.

Any entity permitted to use the emblems may choose which of the three uses at its discretion (unless the territorial state has not ratified AP III, in which case the red crystal is out). The International Federation of Red Cross and Red Crescent Societies’ National Societies Directory currently shows that 156 National Societies use the red cross, and 34 use the red crescent, while the Magen David Adom society uses a red Star of David within Israel and the red crystal with a red Star of David in the centre for its operations outside of Israel.

In addition, GC I still retains a reference to the now-obsolete emblem of the red lion and sun on a white background. Easily the coolest emblem, it was requested by the Turkish, Persian, and Egyptian delegations at the 1929 Diplomatic Conference, and its use approved but limited to only those three nations. In time the lion and sun fell out of favour with all nations except Iran, which employed it until it announced after the Iranian Revolution that it would switch to using the red crescent.

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The emblems may not be imitated nor used for private or commercial purposes, and all states have the obligation under the Conventions to implement national legislation regulating the use of the emblems and punishing their abuse and misuse. The ICRC have produced a model law for use by nations in drafting such protections. A fairly common scenario is for pharmacies and health stores to use a red cross on their sign or logo as it is commonly thought to invoke the notion of health; this is prohibited under the Conventions, and if brought to the attention of the relevant National Society it will politely ask them to alter the logo (a common substitute in this scenario is a green cross, which is permitted), so as to avoid dilution of the protection that their nation’s armed forces receive when they use the emblem in armed conflict.

Intentionally attacking a person or object lawfully using the protective emblem is a war crime in both IAC and NIAC. Misusing of the emblem in order to lead an adversary to believe a person or object is protected under the Conventions constitutes perfidy, and killing or wounding by perfidious means is likewise a war crime under IAC and NIAC.

The next installment of this series will cover the protection of prisoners of war.