In November 2023, a wounded fighter was brought to a hospital in North Gonder Zone in Ethiopia. Government forces, who were already using the hospital unlawfully as a military base, stopped doctors from providing treatment and summarily executed the fighter.
People who fall within the IHL definition of ‘wounded and sick’ benefit from specific protections under the law. Those who are civilians, persons deprived of their liberty or fighters hors de combat are already entitled to protections under IHL; as ‘wounded and sick’ they have additional specific protections.
2.1 Who are ‘the wounded and sick’?
Additional Protocol I lays down the contemporary definition of the wounded and sick for the purposes of IHL:
It is generally accepted that this definition reflects customary international law and also applies in non-international armed conflicts. There is no question that, in addition to civilians, wounded and sick members of states’ armed forces and of organized armed groups fall within the definition.
Two cumulative conditions must be met for a person to be considered wounded or sick: they must be in need of medical assistance; and they must refrain from any act of hostility.
The first condition does not raise questions of a legal nature. The definition sets out a broad range of grounds for which medical assistance may be required. IHL does not require the medical condition to reach a minimum severity. What matters is the need for medical care.
The second condition – that they refrain from any act of hostility – means that there may be people in need of medical assistance who are nonetheless not considered wounded and sick for the purpose of IHL.
2.2 What does specific protection entail?
There are two key dimensions to the specific protection afforded to the wounded and sick under IHL: they must be respected and protected at all times; and no distinction may be drawn in the provision of medical care other than on medical grounds. The same protections are afforded to all the wounded and sick – fighters and civilians, and those ‘belonging’ to the enemy and a party’s ‘own’.
The obligation to respect relates to negative obligations – i.e. conduct from which belligerents and others must refrain. The obligation to protect relates to positive obligations – i.e. measures that should be taken to give effect to the protection.
It is not just members of armed forces or organized armed groups who must respect and protect the wounded and sick. The civilian population is also expressly required to do so, even if they belong to the adverse party, and to refrain from acts of violence against them.
2.2.1 The obligation to respect
The obligation to respect the wounded and sick requires belligerents to refrain from acts against them that could cause further harm. This obligation covers both acts related to the conduct of hostilities, and also the treatment to be afforded once the wounded and sick are in the control of a party to the conflict.
Wounded and sick civilians benefit from extensive protections under the general rules on the conduct of hostilities. They must not be targeted; their expected death or injury must be taken into account in proportionality assessments; and, in the conduct of military operations, belligerents must take constant care to spare them.
These protections continue to apply when civilians are wounded and sick. Importantly, even if they carry out ‘acts of hostilities’, and thus forfeit the additional specific protection afforded to the wounded and sick, the protections to which they are entitled as civilians cease only if the acts amount to taking direct part in hostilities and, even then, only for the duration of such participation.
The position is different for fighters. The obligation to respect them if they are wounded and sick does significantly change their position, as ordinarily it would be permissible to target them. Instead, once they are wounded and sick, for as long as they refrain from acts of hostilities, they may not be attacked.
Beyond this clear prohibition, there is a divergence of views as to how other rules regulating the conduct of hostilities apply to wounded and sick fighters. This includes whether their death or injury should be considered in proportionality assessments; and how, if at all, the rules on precautions apply to them, considering the relevant treaty rules in Additional Protocol I expressly refer to ‘civilians’. Nonetheless, there is agreement that, as a minimum, the obligation to respect wounded and sick fighters requires belligerents to take feasible precautions to minimize harm to them, including from attacks directed against military objectives.
The wounded and sick must be treated ‘humanely’. IHL treaties provide specific examples of conduct that is inconsistent with humane treatment, including attempts upon their lives, or violence against them; murder or extermination; torture or biological experiments; wilfully leaving them without medical assistance and care; and exposing them to contagion or infection.
The obligation to respect the wounded and sick does not grant them ‘absolute immunity’ from any type of harm. Intentionally harming them by directing attacks against them or subjecting them to inhumane treatment is prohibited. However, the wounded and sick may be injured or killed as a result of an attack directed against a military objective. What matters is that such incidental harm is assessed in accordance with the ordinary rules on proportionality, and that in the conduct of military operations constant care is taken to spare the wounded and sick.
Similarly, the obligation to respect the wounded and sick does not mean they may not be captured or arrested and removed from the facilities where they are being treated. However, such operations must be conducted in a manner that does not unduly aggravate their condition. If removed from the medical facilities and detained, the wounded and sick must continue to receive the medical attention their condition requires.
Moreover, operations to arrest them must take into account the other people being treated in the facilities and medical personnel. Operations require careful planning to ensure they are carried out in a manner that minimizes the risks to all of these, and to the interruption in the provision of medical treatment. Such operations must also take into account the protection afforded to medical facilities.
2.2.2 The obligation to protect
The obligation to protect the wounded and sick requires belligerents to take positive steps to protect them from harm, including from the acts of third parties. For example, IHL treaties specifically require belligerents to protect the wounded and sick against pillage and ill treatment.
The obligation to protect is also the basis of the duty to collect the wounded and sick and, importantly, to care for them. It is a foundational principle of IHL that all the wounded and sick are entitled to receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. The entitlement applies to civilians and fighters alike.
Provision of medical care is an obligation of means, not result. What is required depends on the circumstances, taking into account a variety of factors including the context where medical care is being provided, the number of wounded and sick, and the resources and capacities of the party providing the care. What is clear is that medical care may not be actively withheld or denied.
Despite this uncontroversial requirement, in a number of recent conflicts and without contesting the rules, some states have taken measures that make it impossible for wounded enemy fighters to access medical care. In Syria in 2011, for example, the Homs Health Directorate issued a directive addressed to all government-run and private hospitals, requiring them to send wounded patients to the military hospital and to inform the Health Directorate of all cases of persons wounded in the uprising. In practice, this meant that wounded enemy fighters could not safely access medical care. More practically, merely stationing troops in the vicinity of medical facilities may dissuade wounded enemy combatants from seeking treatment.
While the entitlement to receive medical care, to the extent practicable, is uncontested, what is less clear is who is responsible for providing it. This question received attention following the battle for Mosul in 2016–17. Kurdish and Iraqi authorities did not take responsibility for providing medical assistance to civilians fleeing the city, and the international coalition supporting them had capacity only to treat their own troops.
The Geneva Conventions address the obligation to search for and collect the wounded and sick, but do not specify who is responsible for providing medical care. While armed forces are likely to treat the military wounded and sick, there is less clarity with regard to wounded and sick civilians.
A number of different actors have responsibilities or a role to play. In situations of occupation, to the fullest extent of the means available to it, the occupying power must ensure and maintain medical establishments and services. This implies an obligation to treat the wounded and sick, without discrimination.
Although this is not regulated by IHL, in practice states are likely to provide medical care to wounded and sick persons in their territory. The armed forces may assist civilian authorities in this regard. For example, since Russia’s full-scale invasion of Ukraine, Ukrainian armed forces have played a key role in providing first aid to civilians injured by military operations and in evacuating the wounded and sick from areas of active hostilities to civilian medical establishments.
The responsibilities of armed forces operating ‘overseas’ in contested areas towards wounded and sick civilians are less clear. According to the UK Joint Service Manual of the Law of Armed Conflict:
The Danish Military Manual is more prescriptive, at least with regard to persons in acute need following military engagements. It considers that:
There is general agreement that while armed forces might not have an obligation to treat civilian wounded and sick, once they do have them in their control, discrimination in the provision of treatment is not permissible.
2.2.2.1 Measures to give effect to protections
While not necessarily providing medical care themselves, belligerents can take measures to facilitate access of wounded and sick civilians to medical facilities – autonomously or in ambulances.
One such measure is the evacuation of the wounded and sick. Whether belligerents are required to conduct evacuations, or merely encouraged to endeavour to do so, depends on who the wounded and sick are.
The First Geneva Convention requires belligerents to search for and collect wounded and sick members of the armed forces in the battlefield and to move them to more secure locations where they can be treated.
As far as civilians are concerned, the Fourth Geneva Convention requires belligerents to endeavour to conclude evacuation agreements for certain categories of civilians – wounded, sick, infirm and aged persons, children and maternity cases – from besieged or encircled areas. The provisions do not relate to the evacuation of patients from hospitals if these lose their specific protection.
As for all humanitarian arrangements, key to the safety of evacuations of the wounded and sick is agreement between belligerents. As a minimum, there should be agreement on the locations from which people will be evacuated and to which they will be taken; on the date, times and routes of the evacuation; and on who will be transporting the evacuees. Ideally, belligerents should also agree a suspension of hostilities and military operations for the time and route of the evacuation.
2.2.3 Prohibition of adverse distinction in treatment
In the provision of medical care, distinction may not be drawn on any grounds other than medical ones. For instance, a party may not prioritize treatment of its own troops over that of enemy forces; or, in medical facilities that are treating both, treatment of members of the armed forces over civilians.
While the obligation to provide medical care is an obligation of means, to be discharged ‘to the fullest extent practicable’, the prohibition of adverse distinction is absolute.
2.3 Loss of specific protection
The specific protection afforded to the wounded and sick is forfeited once they no longer fulfil either of two conditions: they no longer require medical assistance; or they engage in acts of hostility.
IHL treaties do not define or provide examples of ‘acts of hostility’. The notion includes, but is broader than, the conduct that amounts to taking direct part in hostilities that can lead a civilian to lose protection against attack. It covers a range of activities that, by their nature and purpose, are intended to cause harm to enemy personnel and equipment.
Some types of acts of hostility are immediately apparent: for example, a combatant who continues fighting despite being wounded; or a patient who engages in hostilities by shooting from a hospital ward. Others can be harder to discern. A case in point is communicating with the party to the conflict to which the patient belongs. Short of prohibiting patients from bringing mobile phones and other communication devices into medical facilities, in the same way that some organizations that operate civilian facilities prohibit weapons from being introduced, those operating civilian medical facilities are not in a position to determine whether a wounded person is communicating with the party to the conflict to which they belong, passing instructions or other information, or planning operations.
As the concept of hostile acts is broader than direct participation in hostilities, carrying out such acts does not necessarily mean that a wounded and sick civilian may be targeted.
The position is different for military wounded and sick, as refraining from hostile acts is the condition for them to be granted protection. If they carry out such acts, they lose the protection against attack. This said, the practical consequences of carrying out hostile acts are likely to depend on where these take place and on their nature. If in a battlefield situation, they are likely to lead to the resumption of hostile acts against the wounded fighter. The position is different if the fighter carries out hostile acts while being treated. In such circumstances, if they are shooting at the enemy from a medical facility, the reaction may be a hostile response from enemy forces. However, if they are carrying out other types of hostile acts, such as communicating with the party to the conflict to which they belong, it is likely to be the staff of the medical facilities who will attempt to make them cease that conduct.
Whatever the position under IHL, it would be incompatible with medical ethics not to provide treatment to a person in need once they are in the care of medical staff, even if they conduct hostile acts that exclude them from the specific protection afforded to the wounded and sick.
Feigning incapacitation by wounds or sickness in order to kill, injure or (in international armed conflicts) capture an adversary is a form of perfidy.
2.4 Good practice
The recommendations set out below relate to measures of specific relevance to the wounded and sick. The recommendations in Chapter 3 on medical personnel, and in Chapter 4 on medical facilities and transports are also relevant to ensuring continuity of and access to medical care for the wounded and sick.
- Armed forces must ensure that their policies, doctrines and operating procedures clearly give effect to the protections afforded to the wounded and sick. These measures should be flowed down into mission-specific operating procedures and instructions, and be disseminated and included in training programmes. Specific issues to be addressed include:
- The prohibition of directing attacks against the wounded and sick and of any form of ill treatment;
- The entitlement of all wounded and sick to receive medical care, including enemy fighters, and the consequent prohibition to interfere with access to and the provision of such treatment;
- The obligation to respect decisions taken by medical personnel on prioritization of treatment; and
- Measures to facilitate the expedited passage of the wounded and sick through checkpoints, and to share information on safe and open routes for reaching medical facilities.
- Guidance should be developed outlining what conduct constitutes a hostile act that can lead to loss of specific protection. This should take into account the context in which it occurs, including whether it is on the battlefield or when people are already receiving medical care.
- Military doctrine should also address the nature and extent of the role of armed forces in providing medical care to wounded and sick civilians in areas under their control.
- Government departments responsible for civilian medical facilities should issue instructions requiring that all the wounded and sick be given access to medical facilities and be treated without discrimination.
- Armed forces should establish channels of communication and coordination with civilian medical authorities and humanitarian organizations that provide medical care in their areas of operations. This is essential for elaborating and implementing these measures in a context-specific manner, and for addressing problems that may arise as swiftly as possible.
- Armed forces and civilian authorities and organizations providing medical care should agree modalities for addressing situations where armed forces consider that wounded and sick persons receiving treatment in a particular facility are engaging in hostile acts.
- Organized armed groups should elaborate and implement similar measures to all those outlined above.
