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The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies

Published online by Cambridge University Press:  16 July 2014

Alexander Breitegger
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Abstract

Ensuring respect for, and protection of, the wounded and sick and delivery of health care to them were at the origin of the Red Cross and Red Crescent Movement, as well as the development of international humanitarian law (IHL). In today's armed conflicts and other emergencies, the problem is not the lack of existing international rules but the implementation of relevant IHL and international human rights law (IHRL) which form a complementary framework governing this issue. Against the backdrop of the different manifestations of violence observed by the ICRC in the field and expert consultations held in the framework of the Health Care in Danger Project, this article identifies commonalities between the two legal regimes, including with respect to obligations to provide and facilitate impartial health care; prohibitions of attacks against wounded and sick and health-care providers; prohibitions to arbitrarily obstruct access to health care; prohibitions to harass health-care personnel, in violation of medical ethics; or positive obligations to ensure essential medical supplies and health-care infrastructure and protect health-care providers against violent interferences by others. The article concludes by indicating certain areas where implementation of existing IHL and IHRL is needed, including in domestic normative frameworks, military doctrine and practice, as well as training of health-care personnel on these international legal frameworks and medical ethics.

Keywords

legal frameworkdelivery of health careinternational humanitarian lawIHLinternational human rights lawIHRL
Type
Research Article
Information
International Review of the Red Cross , Volume 95 , Issue 889: Violence against health care Part I: The problem and the law , March 2013 , pp. 83 - 127
Copyright
Copyright © icrc 2014 

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References

1 See, e.g., Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864, Arts. 6–8, 10, 11, 13; Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 29 July 1899, Art. 21; Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, 29 July 1899, Arts. 1–4, 6–8; Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 6 July 1906, Arts. 1, 3, 5–9, 14, 15, 17; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, Art. 21; Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 27 July 1929, Arts. 1, 3, 5–9, 14, 15, 17.

2 References to the four Geneva Conventions and their three Additional Protocols will be abbreviated hereinafter as follows: GC I, II, III and IV; AP I, II and III. See GC I, Arts. 12, 15, 18, 19, 21, 22–27, 35, 36; GC II, Arts. 12, 18, 21–40; GC IV, Arts. 14–22; GC I–IV, Art. 3; AP I, Arts. 8, 10, 12, 13, 15–17, 21–28; AP II, Arts. 2, 7–11, 18. The conventional provisions related to health care largely reflect customary international law, as shown by the following rules of the ICRC Study on Customary International Humanitarian Law: Rule 25 – Medical Personnel; Rule 26 – Medical Activities; Rule 28 – Medical Units; Rule 29 – Medical Transports; Rule 35 – Hospital and Safety Zones and Neutralized Zones; Rule 109 – Search for, Collection and Evacuation of the Wounded, Sick and Shipwrecked; Rule 110 – Treatment and Care of the Wounded, Sick and Shipwrecked; Rule 111 – Protection of the Wounded, Sick and Shipwrecked against Pillage and Ill-Treatment.

3 The category of ‘wounded and sick’ is not limited to the wounded and sick in the strict sense of these terms but also covers, for instance, maternity cases. The term is used in this document in accordance with the definition in IHL, i.e. Art. 8(a) of AP I: ‘“Wounded” and “sick” mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility.’ This definition accords with the broad understanding of the various dimensions of the right to health, interpreted by the Committee on Economic, Social and Cultural Rights (CESCR) in its 2000 General Comment on the right to health. For this reason, the same terminology of ‘wounded and sick’ expressly used only under IHL is also regarded as appropriate for persons in need of health care under international human rights law.

4 ‘Medical transports’ is generally understood in this document in a broader sense than the technical IHL definition contained in Art. 8(g) of AP I (which requires an exclusive assignment to medical transportation and control of a competent authority of a party to the conflict) and also encompasses, for instance, private cars used to transport the wounded and sick to a health-care facility. However, where the legal situation of ‘medical transports’ is analysed specifically under IHL, the scope of the notion is limited to that found under IHL.

5 ‘Medical units’ are defined in Art. 8(e) of AP I as facilities and other units, whether military or civilian, that are organised for medical purposes – that is, to search for, collect, transport, diagnose or treat (including first aid) the wounded, sick and shipwrecked, or for the prevention of disease. The term includes hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary. The term ‘health-care facilities’ is broader in that it covers the various facilities mentioned in Art. 8(e) of AP I, but without requiring an exclusive assignment to medical purposes by a party to the conflict.

6 ‘Health-care personnel’ is understood in this document in the broadest possible sense and covers all persons engaged in care for the wounded and sick, such as nurses, physicians, first-aid workers and ambulance drivers. It is broader than the technical legal term ‘medical personnel’ as described in Art. 8(c) of AP I, which is defined as ‘those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated under subparagraph (e) or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary.’ Where the term ‘medical personnel’ is used, it will be used in the sense of Art. 8(c) of AP I. It is to be emphasised that under IHL those who are not specifically assigned to medical functions by a party to a conflict would not benefit from specific protection as medical personnel, but – if they are civilians – would generally be protected as civilians. On the other hand, there is a broader protection of any persons engaged in medical activities compatible with medical ethics contained in Art. 16 of AP I and Art. 10 of AP II.

7 ICRC, Violent Incidents Affecting Health Care: January to December 2012, p. 8, available at: www.icrc.org/eng/assets/files/reports/4050-002_violent-incidents-report_en_final.pdf; Coupland, Robin, Health Care in Danger: A Sixteen-Country Study, ICRC, July 2011, p. 3Google Scholar. All internet references were last accessed in December 2013.

8 The term ‘impartiality’ generally refers to non-discrimination in the provision of health care to the wounded and sick, with differences in treatment only allowed on the basis of medical grounds. This is examined in more detail later in the article.

9 While the question of providing health care to persons deprived of their liberty also raises important issues, these are outside the scope of the Health Care in Danger project and will therefore be excluded from this article.

10 R. Coupland, above note 7, p. 12.

11 Resolution 5, 31st International Conference of the Red Cross and the Red Crescent, 30 November 2011, available at: www.rcrcconference.org/docs_upl/en/R5_HCiD_EN.pdf.

12 Ibid., op. para. 14.

13 These efforts are also supported by a communication project entitled the Life and Death Campaign, aimed at creating awareness of and mobilising support for this initiative.

14 ICRC, Violent Incidents Affecting Health Care, above note 7.

15 Ibid., op. para.1.

16 Ibid., op. paras. 2 and 6.

17 Draft resolution and background document on ‘Health Care in Danger: respecting and protecting health care in armed conflicts and other situations of violence’, available at: www.rcrcconference.org/docs_upl/en/31IC_Health_Care_in_danger_EN.pdf.

18 Further elaboration is provided later in the article.

19 For information on the expert workshops, see www.icrc.org/eng/what-we-do/safeguarding-health-care/solution/2013-04-26-hcid-expert-consultations.htm.

20 Specifically on the issue of domestic normative frameworks on access and safe delivery of health care in armed conflicts and other emergencies, a workshop took place in Brussels in January 2014.

21 International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 226, para. 25.

22 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, paras. 105–106.

23 International Law Commission, Report on the work of its 58th session to the General Assembly, UN Doc. A/61/10 (2006), p. 409.

24 Sassoli, Marco and Olson, Laura M., ‘The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 604CrossRefGoogle Scholar.

25 International Law Commission, above note 23.

26 ICRC, Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory, 2012, pp. 63–64.

27 Commentary on GC I, Art. 12, p. 134.

28 It should be noted, however, that the fundamental guarantees enshrined in Common Art. 3 of the Geneva Conventions, Art. 75 of AP I and Arts. 4–6 of AP II apply to all persons who would not be entitled to any more expansive protections because they would not fall under more specific categories.

29 Art. 2(1) of the International Covenant on Civil and Political Rights (ICCPR) actually imposes this obligation on states in relation to individuals within their territory and jurisdiction. See ICCPR, 999 UNTS 171. Other IHRL treaties only speak of ‘jurisdiction’. See, for instance, Convention against Torture (CAT), 10 December 1984, 1465 UNTS 85, Art. 2(1); Convention on the Rights of the Child (CRC), 20 November 1989, 1577 UNTS 3, Art. 2(1); American Convention on Human Rights (ACHR), 22 November 1969, OAS Treaty Series No. 36, 1144 UNTS 123, Art. 1(1); European Convention on Human Rights (ECHR), 4 November 1950, CETS No. 5. Art. 1. IHRL treaties on economic, social and cultural rights, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), do not contain an express requirement of jurisdiction for them to apply. However, both the ICJ and the Committee on Economic, Social and Cultural Rights (CESCR) reaffirmed the relevance of this notion to economic, social and cultural rights, especially in cases where states affect these rights outside of their own territory, for instance in situations of occupation. See, for example, ICJ, Wall Advisory Opinion, above note 22, para. 112; CESCR, General Comment No. 14 on the right to the highest attainable standard of health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 51; and CESCR, General Comment No. 1 on reporting by states parties, 24 February 1989, para. 3, available at: www.unhchr.ch/tbs/doc.nsf/(Symbol)/38e23a6ddd6c0f4dc12563ed0051cde7?Opendocument.

30 See, e.g., ICCPR, Arts. 6, 7, 9, 12.

31 Arbitrary interferences with their use may fall under Art. 17(2) of the Universal Declaration of Human Rights, which enshrines the right not to be arbitrarily deprived of one's property. However, the scope of this right has never been fleshed out on a universal level; only regional IHRL treaties further contain the right to property. See Protocol I additional to the ECHR, Art. 1; ACHR, Art. 21; African Charter on Human and People's Rights (ACHPR), 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, Art. 14.

32 GC I–IV, Common Art. 3(2); GC I, Art. 12; GC II, Art. 12; AP I, Art. 10(2); AP II, Art. 7(2); Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, ICRC, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (hereinafter Customary IHL Study), Rule 110, pp. 400–403.

33 Customary IHL Study, Commentary on Rule 110, p. 402. The legal basis for the initiatives undertaken by the ICRC or other impartial humanitarian organisations in this regard may be found in Common Art. 3(2) of GC I–IV and Arts. 9/9/9/10 of the Geneva Conventions.

34 The law of occupation contains specific rules in this respect in terms of the positive obligation of the occupier to ensure medical supplies for the population, to the fullest extent of the means available to it. Furthermore, humanitarian assistance efforts must be permitted by an occupying power; refusing consent is not an option at its disposal. The relevant provisions on humanitarian assistance are GC IV, Arts. 23, 55–56, 59; AP I, Arts. 69–71; AP II, Art. 18(2); Customary IHL Study, Rule 55.

35 Subsequent international and regional instruments also address the right to health, bearing witness to its general recognition under international law. See ACHPR, Art. 16; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, ‘Protocol of San Salvador’, 17 November 1988, OAS Treaty Series No. 69, Art. 10; European Social Charter, and Revised European Social Charter, Arts. 11, 13; International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195, Art. 5(e)(iv); Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13, Arts. 11(1)(f), 14(2)(b); CRC, Art. 24; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, 2220 UNTS 3, Arts. 28, 43(e), 45(c); Convention on the Right of Persons with Disabilities, 13 December 2006, UN Doc. A/61/611, Art. 25. In addition, key resolutions and declarations have reaffirmed and clarified commitments to achieve the concrete realisation of the right to health. See, for example, Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978, available at: www.who.int/publications/almaata_declaration_en.pdf; International Conference on Primary Health Care, Alma-Ata: 25th anniversary, 26 May 2003, available at: http://whqlibdoc.who.int/wha/2003/WHA56_6.pdf; UN General Assembly, Resolution A/RES/55/2, 18 September 2000, UN Millennium Declaration.

36 CESCR, General Comment No. 3: The nature of States parties obligations, 14 December 1990, Art. 2, para. 1, www.unhchr.ch/tbs/doc.nsf/0/94bdbaf59b43a424c12563ed0052b664?Opendocument.

37 CESCR, General Comment No. 14, above note 29.

38 Ibid., paras. 30–31; CESCR, General Comment No. 3, above note 36, paras. 1, 2, 9.

39 Ibid., para. 10; CESCR, General Comment No. 14, above note 29, para. 43.

40 Ibid., para. 47.

41 Ibid., para. 43.

42 Ibid., para. 44.

43 Ibid., para. 12.

44 Ibid., paras. 30–37.

45 CESCR, General Comment No. 14, above note 29, para. 40.

46 For an examination of the complementary role of the right to health in situations of occupation, see ICRC, Expert Meeting, above note 26, pp. 64–67; Vité, Sylvain, in ‘The interrelation of the law of occupation and economic, social and cultural rights: the examples of food, health and property’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 632, 636, 637, 639–641 and 651CrossRefGoogle Scholar.

47 GC IV, Arts. 55, 56.

48 GC IV, Art. 56(1).

49 S. Vité, above note 46, pp. 640–642; ICRC, Expert Meeting, above note 26, pp. 66–67.

50 ICRC, Expert Meeting, above note 26, p. 65; S. Vité, above note 46, pp. 632–633.

51 ICRC, Expert Meeting, above note 26, p. 67; S. Vité, above note 46, p. 641.

52 Brentlinger, Paula E., ‘Health sector response to security threats during the civil war in El Salvador’, in British Medical Journal, Vol. 313, 1996, p. 1472CrossRefGoogle Scholar (describing initiatives by Salvadorean and international aid agencies in training villagers as primary health-care workers, known as health promoters, who studied first aid but also responses to communicable diseases like malaria).

53 Adil, Mahmood, Johnstone, Paul, Furber, Andrew, Siddiqi, Kamran and Khan, Dilshad, ‘Violence against public health workers during armed conflicts’, in The Lancet, Vol. 381, 26 January 2013, p. 293CrossRefGoogle ScholarPubMed, available at: www.thelancet.com/pdfs/journals/lancet/PIIS0140673613601270.pdf.

54 CESCR, General Comment No. 14, above note 29, paras. 12 and 35.

55 Ibid., paras. 12 and 44.

56 Geneva Conventions, Common Art. 1; AP I, Art. 1(1); Customary IHL Study, Rule 139, pp. 495–498.

57 Geneva Conventions, Arts. 47/48/127/144; Customary IHL Study, Rules 142 and 143, pp. 501–508.

58 One notable exception under IHL is contained in Art. 5 of GC IV, which allows a party to an international armed conflict to derogate from especially rights of communication in relation to protected persons who are suspected of or engaged in activities hostile to the security of the state.

59 ICCPR, Art. 4; ECHR, Art. 15; ACHR, Art. 27; European Social Charter, 18 October 1961, CETS No. 35, Art. 30; Revised European Social Charter, 3 May 1996, CETS No. 163, Art. F.

60 McGoldrick, Dominic, ‘The interface between public emergency powers and international law’, in International Journal of Constitutional Law, Vol. 2, 2004, p. 383Google Scholar.

61 Human Rights Committee (HRC), General Comment No. 29: States of emergency, 31 August 2001, UN Doc. CCPR/C/21/Rev.1/Add.11; Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed., N. P. Engel, Kehl-Strasbourg-Arlington, 2005, pp. 89–91Google Scholar.

62 ICCPR, Art. 4(2).

63 ICCPR, Art. 4(1).

64 Ibid.; HRC, General Comment No. 29, above note 61, paras. 8–9.

65 The exception is the European Social Charter and its revised version. See European Social Charter, Art. 30; Revised European Social Charter, Art. F. This may be explained by the fact that some of the rights contained therein, in particular the right to freedom of association and the right to collectively bargain in the specific context of employment, bear great resemblance to some derogable civil and political rights such as freedom of association.

66 Alston, Philip and Quinn, Gerard, ‘The nature and scope of States Parties' obligations under the International Covenant on Economic, Social and Cultural Rights’, in Human Rights Quarterly, Vol. 9, 1987, p. 217CrossRefGoogle Scholar.

67 Some also hold the view that states have minimum core obligations under customary international law: see, for example, CESCR, Concluding Observations: Israel, 26 June 2003, UN Doc. E/C.12/1/Add.90; CESCR, Concluding Observations: Israel, 31 August 2001, UN Doc. E/C.12/1/Add.69; Riedel, Eibe, ‘The human right to health: conceptual foundations’, in Clapham, Andrew and Robinson, Mary (eds), Realizing the Right to Health, Rüffer & Rub, Zurich, 2009, p. 32Google Scholar.

68 CESCR, General Comment No. 3, above note 36, para. 10.

69 Rosas, Allan and Sandvik-Nylund, Monika, ‘Armed conflicts’, in Eide, Asbjorn, Krause, Catarina and Rosas, Allan (eds), Economic, Social and Cultural Rights: A Textbook, Kluwer Law International, The Hague, 2001, p. 414Google Scholar. This inter-relation between the rights to life and economic and social survival rights is also apparent in Art. 6 of the Convention on the Rights of the Child, in which states parties both recognise the inherent right to life of the child and are required to ensure to the maximum extent possible the survival and development of the child.

70 CESCR, General Comment No. 14, above note 29, para. 47; CESCR, General Comment No. 15: The right to water (Arts. 11 and 12), 20 January 2003, UN Doc. E/C.12/2002/11, para. 40.

71 See ICCPR, Arts. 12, 18, 19, 21, 22; ICESCR, Art. 8. Under IHRL, the scope of permissible limitations in specific cases is not spelt out, in contrast to IHL, where the rules must already be highly precise to be implemented by armed forces on the spot.

72 A specific limitation clause can be found in Art. 8 of the ICESCR with regard to the right to form trade unions and the right of trade unions to function freely for the interests of national security or public order or for the protection of the rights and freedoms of others. This is again justified by the fact that these rights closely resemble their civil and political counterparts, in particular the right to freedom of association.

73 The ICJ in its Wall Advisory Opinion has explicitly rejected Art. 4 of the ICESCR as a permissible basis for Israeli limitations on the economic, social and cultural rights of Palestinians in the occupied territories on the grounds of national security, since the condition of promoting the general welfare of the population was not met. See Wall Advisory Opinion, above note 22, para. 136. See also P. Alston and G. Quinn, above note 66, p. 202; Müller, Amrei, ‘Limitations to and derogations from economic, social and cultural rights’, in Human Rights Law Review, Vo. 9, 2009, p. 573CrossRefGoogle Scholar.

74 See, in addition to the sources cited in note 38 above, CESCR, Initial Report regarding Switzerland, 18 September 1996, UN Doc. E/1990/5/Add.33, para. 66(d); CESCR, Second Periodic Report regarding Brazil, 28 January 2008, UN Doc. E/C.12/BRA/2, para. 170; CESCR, Initial Report regarding Serbia and Montenegro, 26 November 2003, UN Doc. E/1990/5/Add.61, para. 24; CESCR, Third Periodic Report regarding Chile, 14 July 2003, UN Doc. E/1995/104/Add. 26, para. 142; Supreme Court of India, Pt. Parmanand Katara v. Union of India, Judgment of 28 August 1989, 4 SCC 286; Supreme Court of India, Paschim Banga Khet Samity v. State of West Bengal, Judgment of 6 May 1996, 4 SCC 37; Court of Appeals, Mosetlhanyane and others v. Attorney General of Botswana, Appeal No. CACLB-074-10, Judgment of 27 January 2011, para. 19; Inter-American Court of Human Rights (IACtHR), Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006, para. 153; IACtHR, Yakye Axa v. Paraguay, Judgment, Ser. C No. 125, 17 June 2005; European Court of Human Rights (ECtHR), Cyprus v. Turkey, Application No. 25781/94, Judgment of 10 May 2001, paras. 219–221.

75 Some would even consider the possibility that certain economic, social and cultural rights, by virtue of their nature, cannot be limited at all under Art. 4 of the ICESCR. See P. Alston and G. Quinn, above note 66, p. 201.

76 CESCR, General Comment No. 14, above note 29, paras. 28–29.

77 CESCR, General Comment No. 3, above note 36, para. 10.

78 See ICRC, Violent Incidents Affecting Health Care, above note 7, p. 6.

79 See, for instance, IACtHR, Velásquez-Rodriguez v. Honduras, Judgment of 29 July 1988, Ser. C No. 4, paras. 174–75, 188; ECtHR, Osman v. United Kingdom, App. No. 23452/94, Judgment of 28 October 1998, para. 116; IACtHR, Sawhoyamaxa v. Paraguay, above note 74, para. 155.

80 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, 2173 UNTS 222.

81 Sasz, Paul C., ‘General law-making processes’, in Schachter, Oscar and Joyner, Christopher C. (eds), United Nations Legal Order, Vol. 1, Cambridge University Press, Cambridge, 1995, p. 46Google Scholar. For the contrary view, see, in particular, Clapham, Andrew, Human Rights Obligations of Non-State Actors, Oxford University Press, Oxford, 2006, p. 75CrossRefGoogle Scholar (with further references).

82 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 22 October 2009, available at: www.africa-union.org/root/au/Conferences/2009/october/pa/summit/doc/Convention%20on%20IDPs%20(Eng)%20-%20Final.doc.

83 Ojeda, Stephane, ‘The Kampala Convention on Internally Displaced Persons: some international humanitarian law aspects’, in Refugee Survey Quarterly, Vol. 29, 2010, pp. 65–66CrossRefGoogle Scholar.

84 Bellal, Annyssa, Giacca, Gilles and Casey-Maslen, Stuart, ‘International law and armed non-state actors in Afghanistan’, in International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 66–67CrossRefGoogle Scholar.

85 See, for instance, SC. Res. 1193, 28 August 1998, op. para. 14; SC. Res. 1216, 21 December 1998, op. para. 5; SC. Res. 1464, 4 February 2003, op. para. 7; SC. Res. 1804, 15 March 2008, Preamble para. 4 and op. para. 2; SC. Res. 1881, 30 July 2009, Preamble para. 8 and op. para. 7; SC. Res. 1935, 30 July 2010, Preamble para. 12 and op. para. 9; SC. Res. 1964, 22 December 2010, Preamble para. 17 and op. para. 15.

86 SC. Res. 1906, 23 December 2009, op. paras. 10–11; SC. Res. 1925, 28 May 2010, op. paras. 12(c) and 18.

87 SC. Res. 1612, 26 July 2005, Preamble para. 8 and op. paras. 1, 2(a) and 5; SC. Res. 1882, 4 August 2009, Preamble para. 11 and op. paras. 1, 3, 5(a)(b)(c); SC. Res. 1998, 12 July 2011, Preamble para. 10 and op. paras. 3(b), 6(d) and 11.

88 Commission on Human Rights, Final Report of the Special Rapporteur, Kalliopi K. Koufa, on Terrorism and Human Rights, UN Doc. E/CN.4/Sub. 2/2004/40, 25 June 2004, paras. 54–64, 73.

89 Commission of Human Rights, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Mission in Sri Lanka, UN Doc. E/CN.4/2006/53/Add.5, 27 March 2006, paras. 25–27; Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston; the Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, Paul Hunt; the Representative of the Secretary-General on Human Rights of Internally Displaced Persons, Walter Kälin; and the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Milon Koothari, Mission to Lebanon and Israel, UN Doc. A/HRC/2/7, 2 October 2006, para. 19.

90 UN General Assembly, Report by Special Rapporteur Margaret Sekaggya on Human Rights Defenders, UN Doc. A/65/223, 4 August 2010, paras. 21–22.

91 UN General Assembly, Third Committee, Summary Record of the 25th meeting, 21 October 2010, UN Doc. A/C.3/65/SR.25, Statements by Mr. Huth (European Union); Ms. Freedman (United Kingdom); and Mr. Butt (Pakistan), paras. 14, 21 and 24.

92 Human Rights Council, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, UN Doc. A/HRC/17/44, 1 June 2011, para. 72.

93 Especially Argentina, Chile and Lebanon made the legal argument that IHRL does not bind non-state armed groups. Other states, including China, Nigeria (on behalf of the African Group), Brazil, Russia, Algeria, Indonesia, Botswana and Guatemala were opposed to calling on the Transitional National Council (TNC) to respect IHRL, as this may imply an implicit political recognition of the TNC as the new legal government of Libya. See Human Rights Council, 17th session, June 2011 (personal notes of this author).

94 In favour: see, for example, A. Clapham, above note 81; A. Bellal, G. Giacca and S. Casey-Maslen, above note 84, pp. 64–74; Tomuschat, Christian, ‘The applicability of human rights law to insurgent movements’, in Fischer, Horst et al. (eds), Krisensicherung und Humanitärer Schutz − Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck, Berliner Wissenschafts-Verlag, Berlin, 2004, pp. 573–591Google Scholar. Against: see Zegveld, Liesbeth, The Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002CrossRefGoogle Scholar; Moir, Lindsay, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 194CrossRefGoogle Scholar.

95 Note that the terminology used by the ICRC is ‘responsibilities’ and thus falls short of recognising legally binding obligations. See ICRC, ‘International Humanitarian Law and the challenges of contemporary armed conflicts’, 31st International Conference of the Red Cross and Red Crescent, available at: www.rcrcconference.org/docs_upl/en/31IC_IHL_challenges_report._EN.pdf.

96 A. Bellal, G. Giacca and S. Casey-Maslen, above note 84, pp. 71–72.

97 GC I–IV, Common Art. 3(2); GC I, Art. 12; GC II, Art. 12; AP I, Art. 10(2); AP II, Art. 7(2); Customary IHL Study, Rule 110, pp. 400–403.

98 Commentary on AP I, Art. 10, pp. 146–147, paras. 446, 451.

99 GC I/GC II, Art. 12(2).

100 As noted above in footnote 34, in situations of occupation, an Occupying Power must permit humanitarian relief actions where basic needs of civilians are not met. Refusing consent is not an option. See Art. 59 of GC IV and Art. 69 of AP I. For situations of armed conflict other than occupation, see GC IV, Art. 23; AP I, Arts. 70–71; AP II, Art. 18(2); Customary IHL Study, Rule 55.

101 Commentary on Customary IHL Study, Rule 55, p. 197.

102 GC I, Art. 15(1); GC II, Art. 18; AP II, Art. 8; Customary IHL Study, Rule 109, pp. 396–399.

103 HRC, General Comment No. 6: The right to life, 30 April 1982, para. 5, available at: www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3.

104 Ibid.

105 M. Nowak, above note 61, p. 123.

106 ECtHR, Cyprus v. Turkey, App. No. 25781/94, Judgment of 10 May 2001, para. 219; ECtHR, Berktay v. Turkey, Judgment of 1 March 2001, para. 154; ECtHR, Ilhan v. Turkey, Judgment of 27 June 2000, para. 76; ECtHR, L.C.B. v. United Kingdom, Judgment of 9 June 1998, para. 36.

107 ECtHR, Cyprus v. Turkey, above note 106, para. 216.

108 Ibid., para. 219. However, the Court was not prepared to find such a violation on the specific facts of the case since in its view it was not established that the lives of any patients were put in danger on account of delays in receiving medical treatment imposed by the Turkish Republic of Northern Cyprus authorities.

109 Principle 5(c), Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Cuba, 27 August–7 September 1990, UN Doc. A/CONF.144/28/Rev. 1.

110 In accordance with Art. 7(1) of the ICC Statute, crimes against humanity must be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Art. 7(2)(a) of the ICC Statute defines an ‘attack directed against any civilian population’ as a course of conduct involving the multiple commission of acts referred to in para. 1 against any civilian population, pursuant to or in furtherance of a state or organisational policy to commit such attack.

111 Elements of Crimes to Art. 7(1)(a) of the ICC Statute, available at: www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf; ICC, Prosecutor v. Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Art. 61 (7)(a) and (b) of the Rome Statute on the Charges, 15 June 2009, paras. 131–138; International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, ICTR-96-4-T, Judgment of 2 September 1998, paras. 589–590; International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Jelisic, IT-95-10-T, Judgment of 14 December 1999, para. 51.

112 Elements of Crimes to Art. 7 (1)(b) of the ICC Statute, above note 111.

113 CESCR, General Comment No. 14, above note 29, paras. 12, 43.

114 GC I, Art. 12; GC II, Art. 12; GC IV, Art. 16; AP I, Art. 10; AP II, Art. 7; Commentary on AP I, Art. 10, p. 146, para. 446.

115 See AP I, Art. 8(a).

116 Commentary on GC I, Art. 12, p. 134.

117 GC I, Arts. 19(1), 24–26, 35; GC II, Arts. 23, 36; GC IV, Arts. 18, 20, 21; AP I, Arts. 12(1), 15, 21; AP II, Arts. 9, 11(1); Customary IHL Study, Rules 25, 28, 29, pp. 79, 84–85, 91, 97–98, 102.

118 Commentary on GC IV, Art. 18, pp. 147–148; Commentary on AP I, Art. 12, p. 171, paras. 539–540. Other persons not exclusively assigned to medical activities by a party to the conflict would also generally benefit from protection against direct, indiscriminate attacks and attacks which may be expected to cause excessive civilian harm compared to the anticipated concrete and direct military advantage if they are civilians. See AP I, Art. 51; Customary IHL Study, Rules 1, 11, 14.

119 Commentary on GC IV, Art. 18, p. 148; Commentary on AP I, Art. 12, p. 171, para. 540.

120 API, Arts. 57(2)(a)(i), 57(2)(b); Customary IHL Study, Rules 16 and 19.

121 See, for instance, Australia, Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, para. 5.9: ‘Proportionality requires a commander to weigh the military value arising from the success of the operation against the possible harmful effects to protected persons and objects. There must be an acceptable relationship between the legitimate destruction of military targets and the possibility of consequent collateral damage’; Canada, Law of Armed Conflict Manual, 2001, para. 204.5: ‘In deciding whether the principle of proportionality is being respected, the standard of measurement is the anticipated contribution to the military purpose of an attack or operation considered as a whole. The anticipated military advantage must be balanced against other consequences of the action, such as the adverse effect upon civilians or civilian objects. It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other’; New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force Headquarters, Directorate of Legal Services, Wellington, November 1992, para. 207: ‘The principle of proportionality establishes a link between the concepts of military necessity and humanity. This means that the commander is not allowed to cause damage to non-combatants which is disproportionate to military need … It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other’; Philippines, Air Power Manual, Philippine Air Force Headquarters, Office of Special Studies, May 2000, para. 1–6.4: ‘However, LOAC should not serve as an obstacle in the conduct of operations. In fact, the law recognizes the belief that the destruction of vital targets, especially if it shortens the conflict, has its long term humane effects. The chief unifying principle always applies – that the importance of the military mission (military necessity) determines, as a matter of balanced judgment (proportionality), the extent of permissible collateral or incidental injury to [an] otherwise protected person or object’; Hungary, Military Manual, 1992, p. 45: ‘All possible measures must be taken to spare civilian persons and objects [and] specifically protected persons and objects’ (these manuals are all available at: www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14 and www.icrc.org/customary-ihl/eng/docs/v2_rul_rule15); AP I, Art. 57(2)(a)(ii); Customary IHL Study, Rule 17.

122 On the timing aspect in relation to this obligation, see Quéguiner, Jean-François, ‘Precautions under the law governing the conduct of hostilities’, in International Review of the Red Cross, Vol. 88, No. 864, 2006, p. 800CrossRefGoogle Scholar.

123 See, for example, ICRC, Violent Incidents Affecting Health Care, above note 7, pp. 9–10.

124 See GC I, Art. 19(2); GC IV, Art. 18(5); AP I, Art. 12(4); Customary IHL Study, p. 96. This may be considered a specific expression in the case of medical units of the general customary precautionary obligation, applicable in international and non-international armed conflicts, to the extent feasible, to remove civilians and civilian objects under the control of a party to the conflict from the vicinity of military objectives. See AP I, Art. 58(a); Customary IHL Study, Rule 24.

125 Commentary on GC I, Art. 19, p. 198; Commentary on GC IV, Art. 18, p. 153; Commentary on AP I, Art. 12, p. 171, para. 542.

126 Commentary on GC IV, Art. 18, p. 153; Commentary on AP I, Art. 12, p. 172, para. 545.

127 Commentary on GC I, Art. 21, p. 200; Commentary on GC I, Art. 24, p. 221; Commentary on GC IV, Art. 20, p. 161.

128 Commentary on AP I, Art. 13, p. 175.

129 Commentary on GC I, Art. 21, pp. 200–201; Commentary on GC IV, Art. 19, p. 154; Commentary on Customary IHL Study, Rule 28, p. 97. An explicit prohibition to use medical units in an attempt to shield military objectives is contained in AP I, Art. 12(4).

130 Commentary on AP I, Art. 23, para. 925; Commentary on Customary IHL Study, Rule 29, p. 102.

131 Commentary on AP I, Art. 23, para. 925. Where the conduct of medical personnel amounts to what is considered for civilians to be direct participation in hostilities, in violation of the principle of strict neutrality and outside the humanitarian function of medical personnel, this would qualify as an act harmful to the enemy. See Commentary on Customary IHL Study, Rule 25, p. 85. It should be emphasised that the notion of ‘direct participation in hostilities’ has a different scope, as it applies to civilians only, from that of ‘acts harmful to the enemy’, which may be committed by both military or civilian medical personnel. In addition, ‘acts harmful to the enemy’ is also the standard governing loss of protection of medical objects, not only persons, i.e. medical units and transports.

132 The Red Cross and Red Crescent Movement has a principled stance against the use of any armed protection. This position was taken in Resolution 9 of the 1995 Council of Delegates, entitled ‘Armed Protection of Humanitarian Assistance’, and was more recently reaffirmed in Resolution 7 of the 2005 Council of Delegates, entitled ‘Guidance Document on Relations between the Components of the Movement and Military Bodies.’ The reason for this fundamental objection to armed escorts is that any armed protection for any component of the Movement is in conflict with the Fundamental Principles of humanity, independence, impartiality and neutrality. However, these Council of Delegates resolutions, and in particular the report on the use of armed protection annexed to Resolution 9 of the 1995 Council of Delegates, recognise that there may be exceptional situations in which human lives may be saved only by accepting an armed escort, and hence where the principle of humanity requires that the Movement accept changes to its normal operating procedures. The report lays down certain minimum conditions or questions that should be fulfilled and answered in the affirmative which are endorsed by the aforementioned resolutions before a decision by a component of the Movement is taken to accept an armed escort. Yet, medical transports that are not part of the Red Cross and Red Crescent Movement might operate with military convoys and in some cases be obliged to be part of a military convoy.

133 GC I, Art. 22; AP I, Art. 13; Commentary on Customary IHL Study, Rules 25 and 29, pp. 85 and 102.

134 Commentary on AP I, Art. 13, para. 563.

135 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities, 2009, p. 61.

136 Ibid., paras. 560–561; Commentary on GC I, Art. 22, p. 203. See also Bosnia and Herzegovina, Military Instructions, 1992, Item 15, para. 2; South Africa, Law of Armed Conflict Manual, 1996, para. 59 (both manuals are available at: www.icrc.org/customary-ihl/eng/print/v2_rul_rule28); United States, Army Health System, Army Tactics, Techniques, and Procedures, No. 4-02, August 2013, p. 3–9, para. 3.31; http://armypubs.army.mil/doctrine/DR_pubs/DR_a/pdf/attp4_02.pdf.

137 Doswald-Beck, Louise (ed.), The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995CrossRefGoogle Scholar, Commentary on Rule 170, para. 170.3, p. 235.

138 However, what is legally possible to do without losing protection must still be analysed as to its benefits or negative impact in operational terms. In this regard, in the Health Care in Danger workshop in Mexico on ambulances and pre-hospital services, it was recommended that the wearing of such items should be evaluated as to its advantages and disadvantages in the specific context before authorising their use. When a decision is taken on the use of personal protective equipment, adequate training on its proper use should be provided. See Norwegian Red Cross, with support from the Mexican Red Cross and the ICRC, Ambulances and Pre-Hospital Services in Risk Situations, 2013, pp. 35–38, available at: http://www.icrc.org/eng/assets/files/publications/icrc-002-4173.pdf (last visited in May 2014).

139 GC I, Art. 21; GC II, Art. 34(1); GC IV, Art. 19(1); AP I, Art. 13(1); AP II, Art. 11(2); Customary IHL Study, Rules 25, 28, 29.

140 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva, 1960, Art. 21 of GC I, pp. 201-202; and Art. 19 of GC IV, p. 155. See also Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva 1987, Art. 13 of AP I, p. 176; and Art. 11 AP II, p. 1436.

141 See AP I, Art. 57(2)(c). It would seem that the condition of a ‘warning’ for the loss of protection of medical personnel, units and transports would at least in the overwhelming majority of cases be a mandatory requirement that cannot be dispensed with. However, in exceptional circumstances, such as when there is an imminent and serious threat to the lives of advancing combatants or fighters (i.e. when they momentarily receive fire), it might not be realistic to expect an attacker to meet the warning requirement. See Australia, The Manual of the Law of Armed Conflict, 2006, para. 9.69; Peru, International Humanitarian Law Manual, 2004, Chapter V, para. 88(b)(2); Israel, Supreme Court, sitting as High Court of Justice, Physicians for Human Rights v. IDF Commander in the West Bank, No. 2936/02, Judgment of 8 April 2002 (all available at: www.icrc.org/customary-ihl/eng/print/v2_rul_rule28). On the other hand, as the time limit is subject to the explicit caveat ‘in all appropriate cases’, it follows that this requirement may be dispensed with more broadly where military necessity so requires.

142 See Peru, International Humanitarian Law Manual, above note 140, para. 88(b)(2), stating in the context of an attack as a result of a loss of protection of a medical unit: ‘In any event, an attempt must be made to protect the wounded and sick.’

143 Boivin, Alexandra, The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare, Research Paper Series No. 2, University Centre for International Humanitarian Law, 2006, p. 56Google Scholar; Kleffner, Jann K., ‘Protection of the wounded, sick and shipwrecked’, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 2nd ed., Oxford University Press, Oxford, 2008, p. 344Google Scholar.

144 AP I, Art. 38; AP II, Art. 12; Customary IHL Study, Rule 59.

145 Perfidy is defined as ‘acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence’. See AP I, Art. 37; Customary IHL Study, Rule 65. Where the perfidious use of the distinctive emblem leads to death or serious injury this would amount to a grave breach, in accordance with Art. 85(3)(f) of AP I. Moreover, this also amounts to a war crime under customary international humanitarian law: see Customary IHL Study, Rule 156, pp. 575, 597 and 599. See also the war crime of treacherous killing or wounding in Arts. 8(2)(b)(xi) and 8(2)(e)(ix) of the ICC Statute. Furthermore, making improper use of the distinctive emblems of the Geneva Conventions, resulting in death or serious injury, is also recognised as a war crime in international armed conflicts in Art. 8(2)(b)(vii) of the ICC Statute and under customary IHL. See Customary IHL Study, Rule 156, p. 575.

146 ICCPR, Art. 6(1); ECHR, Art. 2; ACHR, Art. 4; ACHPR, Art. 4.

147 ECHR, Art. 2(2); HRC, Guerrero v. Colombia, Communication No. R.11/45, UN Doc. Supp. No. 40(A/37/40), 31 March 1992, paras. 13.2 and 13.3; IACtHR, Las Palmeras, Judgment, 26 November 2002, Ser. C No. 96, 2002; M. Nowak, above note 61, p. 128; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principles 9 and 10.

148 Ibid., Principle 9.

149 Ibid., Principles 9 and 10.

150 Lubell, Noam, ‘Challenges in applying human rights law to armed conflict’, in International Review of the Red Cross, Vol. 87, No. 860, 2005, pp. 745–746CrossRefGoogle Scholar.

151 ICCPR, Art. 7; CAT, Art. 16; Nowak, Manfred, ‘Challenges to the absolute nature of the prohibition of torture and ill-treatment’, in Netherlands Quarterly of Human Rights, Vo. 23, 2005, pp. 676–678CrossRefGoogle Scholar.

152 Ibid., p. 678.

153 Ibid.

154 Commentary on GC I, Art. 12, p. 137; Commentary on AP III, Art. 8, p. 1415, para. 4655.

155 J. K. Kleffner, above note 142, p. 331.

156 See, for instance, Commentary on AP I, Art. 12, para. 517.

157 GC I, Art. 15; GC II, Art. 18; AP II, Art. 8; Customary IHL Study, Rule 109.

158 Customary IHL Study, commentary on Rule 109, p. 398.

159 See note 35 above.

160 CESCR, General Comment No. 14, above note 29, paras. 34, 43, 47 and 50.

161 Ibid., para. 28.

162 ICESCR, Art. 4; P. Alston and G. Quinn, above note 66, p. 202.

163 ICESCR, Art. 5; CESCR, General Comment No. 14, above note 29, para. 29.

164 One of the thematic areas with which the Health Care in Danger project is concerned, notably the improvement of standard operating procedures to expedite controls at military and security checkpoints, may lead to a strengthening of respect for the prohibition against arbitrarily limiting or denying, as much as possible, access to health care. This will be among the issues to be discussed in the Health Care in Danger military expert workshop in Sydney in December 2013. Under the right to health, the adoption of legal, administrative, and other measures to this effect falls within the scope of the obligation to fulfil. See CESCR, General Comment No. 14, above note 29, para. 33.

165 Commentary on GC I, Arts. 19, 24, 35, pp. 196, 220 and 280; Commentary on AP I, Arts. 12 and 21, pp. 166 and 250, paras. 517 and 840–842; Commentary on AP II, Art. 11, p. 1433, para. 4714.

166 Some state practice is explicit in that medical units may be inspected to ascertain their content and actual use, in particular that they are not used for non-medical purposes. See Benin, Military Manual, 1995, Fascicule II, p. 8; Nigeria, International Humanitarian Law, 1994, p. 45, para. (f); Senegal, Le DIH adapté au contexte des operations de maintien de l'ordre, 1999, p. 17; Togo, Le Droit de la Guerre, 1996, Fascicule II, p. 8 (all available at: www.icrc.org/customary-ihl/eng/docs/v2_rul_rule28).

167 Search operations in health-care facilities are one of the major themes of an ICRC consultation with state armed forces in the Health Care in Danger project, which will culminate in the military expert workshop in Sydney in December 2013.

168 The coverage of this prohibition is thus larger than for purposes of the specific category of medical personnel under IHL, which must be assigned by a party to the conflict, exclusively to serve the medical purposes exhaustively defined by IHL. For the IHL definition of ‘medical personnel’, see note 6 above. Therefore, persons not having been so assigned would also be protected by the rule analysed here. This prohibition is based on GC I, Art. 18(3); AP I, Art. 16(1); AP II, Art. 10(1); Customary IHL Study, Rule 26, pp. 86–88.

169 Commentary on AP I, Art. 16, p. 200, para. 650; Commentary on AP II, Art. 10, p. 1426, para. 4691.

170 AP I, Art. 16(2); AP I, Art. 10(2); Customary IHL Study, Rule 26, pp. 86–88.

171 Commentary on AP I, Art. 16, p. 200, para. 655.

172 World Medical Association (WMA), International Code of Medical Ethics, adopted by the 3rd General Assembly of the WMA, London, England, 1949 and last revised by the 57th WMA General Assembly, Pilanesberg, South Africa, October 2006.

173 WMA, Declaration of Geneva, adopted by the 2nd General Assembly of the WMA, Geneva, Switzerland, 1948, and last revised by the 173rd WMA Council Session, Divonne-les-Bains, France, 2006.

174 WMA, Regulations in Times of Armed Conflict, adopted by the 10th World Medical Assembly, Havana, Cuba, 1956 and last editorially revised by the 173rd WMA Council Session, Divonne-les-Bains, France, 2006.

175 Commentary on AP I, Art. 16, p. 201, para. 656.

176 WMA, International Code of Medical Ethics, Duties of Physicians to Patients, above note 171; Commentary on AP I, Art. 16, pp. 201–202, para. 658.

177 WMA, Regulations in Times of Armed Conflict, above note 173.

178 For instance, the Commentary on AP I, Art. 10, p. 148, para. 454, gives the example of an overburdened doctor in armed conflict who faces the difficult decision of whether to treat an extremely seriously wounded patient requiring a long and hazardous operation first or to sacrifice this patient for the benefit of others whose chances of survival are better.

179 Commentary on AP I, Art. 16, p. 206, para. 682.

180 WMA, International Code of Medical Ethics, Duties of Physicians to Patients, above note 171.

181 In this regard, the wording of the two provisions is different. While Art. 16(3) of AP I explicitly speaks of an ‘exception’ under national law, Art. 10(3) uses the formulation of ‘subject to national law’.

182 Commentary on AP I, Art. 16(3), p. 207, para. 688.

183 Commentary on AP II, Art. 10(3), p. 1428, para. 4700.

184 Commentary on AP I, Art. 16(3), p. 208, para. 688.

185 See Commentary on AP I, Art. 16(3), p. 208, para. 689; Commentary on AP II, Art. 10(3), p. 1428, para. 4702.

186 ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, 2012, p. 78.

187 WMA, Regulations in Times of Armed Conflict and Other Situations of Violence, Code of Conduct: Duties of Physicians Working in Armed Conflict and Other Situations of Violence, above note 173; ICRC, Health Care in Danger, above note 185, pp. 10 and 78.

188 CESCR, General Comment No. 14, above note 29, paras. 33 and 43.

189 Ibid., paras. 12 and 35.

190 Ibid., paras. 12 and 44.

191 ICCPR, Art. 7; CAT, Art. 2(3); HRC, General Comment No. 20 concerning prohibition of torture and cruel treatment or punishment, 3 October 1992, paras. 3, 8 and 13, available at: www.unhchr.ch/tbs/doc.nsf/0/6924291970754969c12563ed004c8ae5?Opendocument.

192 HRC, General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation, 4 August 1988, para. 10, available at: www.unhchr.ch/tbs/doc.nsf/(Symbol)/23378a8724595410c12563ed004aeecd?Opendocument; HRC, Concluding Observations: Portugal, UN Doc. CCPR/CO/78/PRT, 7 May 2003, para. 18; ECtHR, Z v. Finland, App. No. 22009/93, Judgment of 25 February 1997, para. 95; ECtHR, S and Marper v. United Kingdom, App. Nos. 30562/04, 30566/04, Grand Chamber Judgment, 4 December 2008.

193 HRC, General Comment No. 16, above note 191, paras. 3–4.

194 HRC, General Comment No. 29, above note 61, paras. 4–5.

195 Commentary on GC I, Arts. 19, 24 and 35, pp. 196, 220 and 280; Commentary on AP I, Arts. 12 and 21, pp. 166 and 250, paras. 518 and 840–842; Commentary on AP II, Arts. 7, 9 and 11, pp. 1408, 1421 and 1433, paras. 4635, 4674 and 4714.

196 GC I, Art. 15; GC II, Art. 18; GC IV, Art. 16; AP II, Art. 8; Customary IHL Study, Rule 111, pp. 403–405.

197 CESCR, General Comment No. 14, above note 29, para. 37; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principle 5(c).

198 Cf. CESCR, General Comment No. 14, above note 29, paras. 33 and 35.

199 The authorised users of the protected emblems are: medical services of armed forces and sufficiently organised armed groups; medical personnel units and transports of National Red Cross and Red Crescent Societies that have been duly recognised and authorised by their governments to assist the medical services of the armed forces, when they are employed exclusively for the same purposes as the latter and are subject to military laws and regulations; civilian hospitals (public or private) that are recognised as such by state authorities and authorised to display the emblem; in occupied territories and in zones of military operations, persons engaged in the operation and administration of such civilian hospitals (and also in the search for, removal, and transport of and provision of care for wounded and sick civilians, the infirm and maternity cases); civilian medical personnel in occupied territories and where fighting takes place or is likely to take place; civilian medical units and transports, as defined under AP I, recognised by the competent authorities and authorized by them to display the emblem; other recognised and authorised voluntary aid societies, subject to the same conditions as those for National Red Cross and Red Crescent Societies. The ICRC and the International Federation of Red Cross and Red Crescent Societies may use the emblem for protective purposes in armed conflicts without further restrictions. See GC I, Arts. 39–44; GC II, Arts. 22–23, 26–28, 34–37, 39 and 41–44; AP I, Art. 18(1)(4); AP II, Art. 12; AP III, Art. 2.

200 GC I, Art. 44; Regulations on the Use of the Emblem of the Red Cross and Red Crescent by the National Societies, last revised November 1991, Art. 1. The authorised users are: National Red Cross and Red Crescent Societies; and ambulances and first-aid stations operated by third parties, when exclusively assigned to provide free treatment to the wounded and sick, as an exceptional measure, on condition that the emblem is used in conformity with national legislation and that the National Red Cross and Red Crescent Society has expressly authorised such use. See GC I, Art. 44 (2); GC I, Art. 44(4). The ICRC and the International Federation of Red Cross and Red Crescent Societies may use the emblem for indicative purposes with no restriction. See GC I, Art. 44(3).

201 GC I, Arts. 39–44; AP I, Art. 18; Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies, adopted by the 20th International Conference of the Red Cross and the Red Crescent, Vienna, 1965, and revised by the Council of Delegates, Budapest, 1991, Art. 6.

202 GC I, Art. 44(2); Regulations on the Use of the Emblem, Arts. 4, 16.

203 Commentary on AP I, Art. 18, pp. 225 and 228, paras. 746 and 763; Commentary on AP II, Art. 12, p. 1440, para. 4742; Customary IHL Study, commentary on Rule 30, pp. 103–104.

204 GC I, Art. 39; GC IV, Art. 18(3); AP I, Art. 18(4); AP II, Art. 12; however, see Commentary on GC I, Art. 39, p. 307; Commentary on GC IV, Art. 18, p. 149; Commentary on AP II, Art. 12, p. 1440, para. 4742.

205 See Commentary on GC I, Arts. 39, 42 and 44, pp. 307, 320 and 325.

206 See Commentary on GC I, Art. 42, p. 325. Military doctrine has followed up on this recommendation. For instance, North Atlantic Treaty Organization (NATO) Standardization Agreement (STANAG) 2931 provides that a decision to camouflage medical facilities may only be ordered at a certain level of the military hierarchy, i.e. brigade level or equivalent. Secondly, such an order is to be temporary and local in nature only and must be rescinded as soon as the security situation on the ground permits. Finally, this possibility is not envisaged for fixed, large medical establishments.

207 GC I, Art. 44(2).

208 Regulations on the Use of the Emblem, Art. 4.

209 Commentary on Regulations on the Use of the Emblem, Art. 4.

210 ICRC, Study on the Use of the Emblems: Operational and Commercial and Other Non-Operational Issues, Geneva, 2011, pp. 117–121.

211 GC I, Art. 54; AP II, Art. 12; AP III, Art. 6.

212 This refers to the use of a sign which, owing to its shape and/or colour, may be confused with the emblem.

213 This refers to the use of the emblem by people usually authorised to do so, but in a manner inconsistent with IHL provisions on its use; or to the use of the emblem by entities or persons not entitled to do so (commercial enterprises, pharmacists, private doctors, NGOs, ordinary individuals, etc.) or for purposes that are inconsistent with the Fundamental Principles of the Movement. For the relevant IHL treaty provisions, see above note 144.

214 For the definition of perfidy, see above note 144.

215 See, as good practice in this regard, Colombia, Resolución No. 4481, 28 December 2012, ‘Por la cual se adopta el Manual de Misión Médica y se establecen normas relacionadas con la señalización y divulgación de su Emblema’, section 2.2.

216 On the specific challenges in ensuring compliance for IHL by non-state organised armed groups that are party to the conflict, see, for example, ICRC, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts, 2008.