In July 2024 MSF announced the suspension of its operations in the Turkish hospital of Khartoum, located in an RSF-controlled area, as the situation had become ‘untenable’ after a year of multiple violent incidents occurring inside and outside the premises, including violence, harassment and threats made against the lives of MSF staff.
There are two aspects to the protection of healthcare providers under IHL. First, there are specific protections afforded to those who fall within the definition of ‘medical personnel’: such people must be respected and protected at all times. Medical providers who are civilians are already entitled to protections under IHL; as ‘medical personnel’ they have additional specific protections. The second aspect is the prohibition on punishing people for having provided medical assistance; this prohibition covers anyone who provides medical care.
3.1 Specific protection of medical personnel
3.1.1 Who are ‘medical personnel’?
Article 8(c) AP I defines medical personnel as persons assigned by a party to the conflict to exclusively carry out certain medical activities, the administration of medical establishments, or the operation or administration of medical transports.
The definition includes two key requirements that aim to limit the risk of abuse of the specific protection. First, the personnel must be ‘assigned’ to their medical duties by some formal act. Second, they must exclusively carry out medical functions.
It is generally accepted that the definition in Article 8(c) AP I also applies in relation to non-international armed conflicts, taking into account the specificities of such conflicts.
3.1.1.1 Assignment
Not all persons who are qualified or trained to provide medical care fall within the definition of ‘medical personnel’. They must be ‘assigned’ to this role by a party to the conflict. This requirement is a way to ensure that states retain some control over persons entitled to specific protection, coupled with a responsibility to ensure it is not abused.
A licence to practise the medical profession is not an ‘assignment’ for the purpose of IHL. Doctors, nurses and the staff of medical NGOs who are not assigned to these duties by a party to the conflict are not afforded specific protection. Instead, they benefit from the general protections afforded to civilians.
IHL does not specify how assignment is to be effected, but some formal act by the relevant authorities is required. For military medical personnel, these are the authorities in charge of the armed forces – usually the ministry of defence. For civilian personnel, it has been suggested that medical personnel employed in the public – i.e. state – health service should automatically be considered as ‘assigned’ because the public health service is part of the state administration of a party to the conflict. For the staff of private healthcare facilities or organizations, a specific act by the state would be required. Ministries of health are frequently entrusted with this role. The precise nature of the legal instrument effecting the assignment will depend on the domestic legal order. It can take the form of laws, decrees, entries in a registry, or the conclusion of memorandums of understanding with the ministry of health.
In relation to non-international armed conflicts, assignment by state authorities continues to be relevant for personnel working in areas under the control of organized armed groups. Organized armed groups must also ‘assign’ medical personnel. While the procedures for doing this may be less sophisticated than those adopted by states, some formal assignment and the oversight it entails are still required. It has not been possible to find examples of organized armed groups formally assigning medical personnel.
The purpose of limiting specific protection to persons who have been assigned to medical functions is to ensure there is an entity responsible for preventing and responding to abuse of the protection. As far as military medical personnel are concerned, there have been instances of the armed forces taking disciplinary measures against personnel who abused their protected status. It has not been possible to find instances where the civilian authorities that assigned medical personnel intervened to end abuses of the specific protection.
Cognizant of the risks that abuse by their staff of their specific protection would entail for their operations, some medical humanitarian organizations require personnel to sign staff rules and regulations that clearly identify prohibited conduct. This is seen as key to continuity of operations, and to security for patients and staff.
3.1.1.2 Exclusivity
The assignment to carry out medical activities must be ‘exclusive’. This is not a temporal requirement: assignment may be temporary or permanent. It is a substantive requirement that relates to the types of activities conducted. It is a precautionary measure to prevent abuse of the protected status, and the corresponding entitlement to wear the distinctive emblem.
Determining the precise limits of exclusive assignment and, consequently, loss of specific protection, is particularly relevant for military medical personnel. As members of armed forces or organized armed groups, they may be targeted as soon as they are no longer entitled to this protection. It is less significant for civilian medical personnel because, even if they forfeit specific protection, provided they are not carrying out activities that amount to taking direct part in hostilities, they remain protected as civilians.
3.1.2 What does specific protection entail?
Medical personnel must be respected and protected.
While both dimensions apply to military and civilian medical personnel, in practice the obligation to respect is most significant for military personnel, as this modifies their position under IHL in important ways. In particular, despite being members of the armed forces, they may not be targeted while they meet the conditions of the definition. In contrast, the obligation to protect is most relevant for civilian medical personnel as it requires belligerents to facilitate their work, something that is less pertinent for military medical personnel.
3.1.2.1 The obligation to respect
The obligation to respect medical personnel prohibits directing attacks against them. Civilian medical personnel are already entitled to significant protections from the effects of hostilities: inter alia, attacks must not be directed against them; their incidental death or injury must be taken into account in proportionality assessments; and in the conduct of military operations feasible precautions must be taken to spare them. Any form of ill treatment of medical personnel is prohibited.
One significant consequence of falling within the definition of medical personnel is the entitlement to wear the distinctive red cross/red crescent/red crystal emblem. While the emblem is not the source of the protection, by facilitating the identification of medical personnel it can play an important role in giving effect to that protection.
The obligation to respect medical personnel also prohibits belligerents from requiring medical personnel to take measures that are contrary to medical ethics. For example, they may not be required to prioritize the treatment of any person other than on medical grounds, or to carry out tasks that are incompatible with their humanitarian mission.
3.1.2.2 The obligation to protect
The obligation to protect medical personnel is principally relevant to belligerents’ obligations to facilitate their work. Additional Protocol I sets out a number of specific measures that must be taken to assist civilian medical personnel.
All available help must be granted to civilian medical personnel in areas where civilian medical services are disrupted by combat activity. Civilian medical personnel must have access to any place where their services are essential, subject to the supervisory and security measures that relevant parties to the conflict may deem necessary.
In situations of occupation, occupying powers must afford civilian medical personnel every assistance to enable them to perform their humanitarian functions to the best of their ability. Medical personnel of all categories must be allowed to carry out their duties. This requirement is complementary to occupying powers’ general obligations in relation to the provision of healthcare.
These are just some indicative examples of the types of measures belligerents can take to assist and, as a minimum, to not unduly impede or interfere with the ability of medical personnel to discharge their functions. None of the examples lays down absolute obligations. For example, in combat zones, it is the ‘available’ help that must be provided. This might be less than what is actually needed. Similarly, the freedom of movement of medical personnel is subject to belligerents’ security considerations.
Various actors can play a role in facilitating the work of medical personnel, including the party to the conflict with control of the location of the medical facilities, or of areas through which medical personnel or transports must travel, which might be across conflict lines. The obligations of occupying powers are more onerous, in view of the control they exercise over territory. UN Security Council Resolution 2286 (2016) notes that peacekeeping forces may be mandated to help to contribute to a secure environment to enable the delivery of medical assistance. They could do so, for example, by patrolling particular areas and routes.
Additional Protocol I also addresses the movement of medical personnel. This is key to reaching the wounded and sick and medical facilities. As noted, this entitlement is subject to belligerents’ security needs. Drawing on the rules regulating the movement of humanitarian personnel, restrictions on freedom of movement should be imposed only in case of imperative military necessity and, even then, only temporarily. Belligerents are entitled to take measures of control, such as identity checks. As for all measures of control on medical personnel and transports, these should be undertaken as swiftly and efficiently as possible.
3.1.3 The limits of specific protection – not absolute immunity
Specific protection does not grant ‘absolute immunity’ from any types of harm. Intentionally harming medical personnel by directing attacks against them is prohibited. However, if they are killed or injured by attacks directed against a military objective, that is not necessarily a violation of IHL. What matters is that the risk of such incidental harm is adequately taken into account in proportionality assessments. In the conduct of military operations more generally, constant care must be taken to spare medical personnel. Consideration should be given to the consequences of their death or injury on the availability of medical care.
Similarly, it is not prohibited to deprive civilian medical personnel of their liberty should this be necessary for imperative reasons of security. In such circumstances, such personnel benefit from the same procedural safeguards as other protected persons. It is, however, prohibited to do so on the ground that they have provided medical assistance to the wounded and sick.
The determination of whether internment is necessary must be made on an individualized basis. One factor to consider is a person’s role as medical personnel, and the consequences of their deprivation of liberty on the availability of medical care. As internment is the most severe measure of control permissible, consideration should be given to other approaches that address the belligerent’s security concerns without depriving the community of medical personnel.
The obligation to respect medical personnel does not mean they may not be arrested. However, as operations to apprehend them can pose a risk to the wounded and sick and to other medical personnel, belligerents should avoid conducting them in medical facilities.
3.2 Loss of specific protection
3.2.1 Conduct that leads to loss of specific protection
The provisions of Additional Protocol I on medical facilities specify the circumstances that lead to those facilities’ loss of specific protection: when they are ‘used to commit, outside their humanitarian function, acts harmful to the enemy’. Treaty provisions on medical personnel, on the other hand, do not address loss of specific protection.
Nonetheless, it is generally accepted that the logic that underlies medical facilities’ loss of specific protection also applies to medical personnel. It is granted to them in view of their functions: exclusively providing medical care. If they carry out acts harmful to the enemy, there is no reason to continue affording them specific protection. It is also generally accepted that the same criterion should be adopted for loss of protection: carrying out acts harmful to the enemy outside their humanitarian duties.
‘Acts harmful to the enemy’ is a broader notion than direct participation in hostilities. It covers conduct that interferes directly or indirectly in military operations and thereby causes harm to the adverse party. Examples of such acts by medical personnel include engaging in hostilities; driving vehicles transporting able-bodied combatants or ammunition; intentionally hampering or impeding military operations; sharing observations of locations or movements of armed forces or information of military relevance acquired while treating the wounded and sick; or allowing able-bodied fighters to use medical facilities to hide.
Acts that fall within medical personnel’s humanitarian duties include providing medical care to the wounded and sick – including combatants; and collecting and transporting such persons to medical facilities.
Drawing an analogy with the position of medical facilities, it has been suggested that specific protection may not be lost before a warning has been issued, identifying the harmful act and giving relevant actors – including the party to the conflict that made the assignment – a time limit to put an end to the conduct.
Importantly, loss of specific protection does not mean that civilian medical personnel may be targeted. As previously mentioned, they enjoy protection under IHL by virtue of being civilians. They lose that protection only if the acts harmful to the enemy amount to direct participation in hostilities.
In addition to leading to loss of specific protection, certain types of acts harmful to the enemy can also amount to perfidy.
Feigning protected status by using the distinctive emblem in order to kill, injure, and, in international armed conflicts, capture an adversary constitutes perfidy. For example, it would amount to perfidy if someone not, or no longer entitled to, specific protection were to attack an adversary while wearing an armlet bearing the distinctive emblem in order to lead the adversary to believe that they were obliged to afford them protection.
3.2.2 Consequences of loss of specific protection
As noted, the consequences of loss of specific protection are particularly significant for military medical personnel: as members of the armed forces, they can once again be targeted. The immediate consequences are less drastic for civilian medical personnel. The latter remain civilians and may not be targeted unless the acts harmful to the enemy amount to taking direct part in hostilities; even then, they may only be targeted while carrying out those activities. They remain entitled to all the other protections that IHL affords civilians in relation to the conduct of military operations.
Someone who has forfeited specific protection is no longer entitled to wear the distinctive emblem.
Loss of specific protection also means that belligerents are no longer required to facilitate the work of the person in question, including through measures to expedite the passage of medical personnel at checkpoints or to assist their work.
3.3 Prohibition on punishing people for providing medical care
A second foundational rule of IHL is the prohibition on punishing persons for having carried out medical activities compatible with medical ethics. This rule gives effect to the principle of ‘neutrality’ of medical activities: everyone – civilian or combatant, friend or foe – is entitled to the medical care required by their condition; and, consequently, providing this care does not amount to supporting one side to the conflict.
3.3.1 Who is protected?
It is only persons who fall within the definition of medical personnel who benefit from the regime of specific protection outlined above. The prohibition to punish is broader and covers anyone who provides medical assistance. In addition to people providing medical care, it also covers those involved in the operation and administration of medical facilities, and people with no medical training who provide medical assistance.
The prohibition is framed in terms of punishment and harassment of individuals, but the policy underlying it also applies to organizations that provide medical care.
3.3.2 What is prohibited?
The prohibition is applicable in international and non-international armed conflicts, and is extremely broad. It covers legal measures, including criminal investigations and prosecutions, designation for the purpose of sanctions, and administrative measures such as revocation of medical practitioners’ licences, or of non-governmental organizations’ registration; as well as any form of ill treatment, intimidation and harassment. In the words of the first Geneva Convention, no one must be ‘molested’ for having treated the wounded and sick.
Despite this clear prohibition, there have been numerous instances in recent conflicts when the provision of medical care has been penalized. Many of these are in contexts where affected states classify the violence as terrorism and apply domestic counterterrorism laws criminalizing broad forms of support to groups designated as terrorist. As these laws frequently do not include provisions addressing their interplay with IHL, they criminalize conduct that is permitted, or indeed required, by IHL, including the provision of medical care.
Most notorious are the US Material Support Statutes, which adopt an extremely broad definition of ‘material support’ to groups designated as terrorist. While providing medicines is excluded, courts have interpreted this exception narrowly, determining that the administration of medicine, as well as providing medical care, fall within the scope of the offence.
In the early 2000s, the UN Security Council played a central role in developing the international counterterrorism normative framework. As it became evident that an overly broad approach was undermining protections under IHL, the Council adopted resolutions requiring states to ensure that counterterrorism measures complied with international law, including IHL. Resolution 2664 (2022) more explicitly reminds states of the obligation not to punish people for carrying out medical activities compatible with medical ethics.
States’ practice in relation to domestic counterterrorism measures is mixed. Some of the more recent instruments have included safeguards. They have either been general – specifying that the laws are not intended to derogate from IHL – or have included exceptions to crimes of material support for terrorism, but these refer only to humanitarian assistance. To date, the provision of medical care has not been expressly mentioned.
There have also been prosecutions under other areas of domestic law. In Ukraine, for example, since Russia’s 2022 invasion, hospital directors and administrators in the occupied territories have been prosecuted under the collaboration law. This is in spite of the prohibition in IHL on punishing persons involved in the provision of healthcare, and despite the fact they were providing basic services expressly required under the law of occupation.
Colombian courts have considered medical assistance provided to members of the FARC in prosecutions for the crime of rebellion. While recognizing that the provision of medical care must not be criminalized, the courts adopted a narrow approach as to which activities were protected. They excluded administrative acts by doctors, such as referring patients to specialized clinics; and providing care beyond immediate surgery by prescribing or providing medicines; as well as doctors who charged for treatment. The courts essentially limited the exception to emergency care provided free of charge.
In Cameroon in 2021, two Médecins Sans Frontières (MSF) staff were charged with complicity with secessionists, having been arrested in the southwest of the country while transporting a patient with gunshot wounds to hospital and were. Two others were arrested on similar grounds a few weeks later. After several months of detention, during which MSF suspended its operations in the area, the staff were acquitted by the Buea Military Tribunal.
There are frequent instances when healthcare providers are arrested, even if ultimately no charges are brought. Such actions – often against medical organizations’ local staff, who are particularly vulnerable – can amount to prohibited intimidation and have a chilling effect on the provision of medical care.
Belligerents also take practical punitive measures against healthcare providers for having treated wounded enemy fighters. In Ethiopia, for example, federal soldiers are reported to have threatened and beaten medical personnel and seized ambulances for having provided treatment to enemy Fano fighters.
3.4 Good practice
- Armed forces must ensure that their doctrines and policies clearly state which activities are incompatible with the assignment of military medical personnel. They must take disciplinary measures if these positions are abused.
- Civilian authorities should issue similar instructions to medical personnel they assign and exercise similar oversight.
- Medical organizations should include similar restrictions in the employment contracts of staff assigned to medical duties and exercise similar oversight.
- Armed forces must ensure that their policies, doctrines and operating procedures clearly give effect to the protections afforded to medical personnel. These measures should be flowed down into mission-specific operating procedures and be disseminated and included in training programmes. Specific issues to address include:
- The prohibition on directing attacks against medical personnel and on any form of ill treatment.
- The obligation to respect the decisions taken by medical personnel on prioritization of treatment and the prohibition to put pressure on them to prioritize treatment on other than on medical grounds.
- On the basis of consultations with civilian medical authorities and organizations, armed forces should identify the concrete measures that they can take to facilitate the work of medical personnel. These should be included in doctrines and policies and mission-specific operating procedures and be disseminated and included in training programmes. Specific issues to address include:
- Protocols for expediting the passage of medical personnel and vehicles through checkpoints. These can include establishing ‘fast lanes’, or when this is not possible, ensuring personnel staffing checkpoints give medical personnel and vehicles priority in queues; requiring checkpoints to forewarn each other of the passage of medical personnel and vehicles; ensuring sufficient staff is deployed to operate checkpoints efficiently; agreeing the type identification of medical personnel and vehicles involved in movements and for sharing it.
- Arrangements for communicating information on safe and open routes for reaching medical facilities.
- Procedures for addressing situations where armed forces consider specific medical personnel are carrying out acts hostile to the enemy.
- Channels of communication and coordination should be established with civilian medical authorities and humanitarian organizations providing medical assistance in armed forces’ areas of operations to elaborate and implement these measures, refining them as necessary to the particular context, and to address problems that may arise as swiftly as possible.
- Organized armed groups should elaborate and implement similar measures to all those outlined above.
- All legal measures restricting the provision of goods and services that apply in situations of armed conflict or national emergency including in operations labelled as counterterrorism should include express safeguards excluding the provision of medical care. These should cover everyone who provides medical care, and should adopt a definition of medical assistance that goes beyond emergency care and includes the operational and administrative aspects of medical care.
- The substance of these legal measures should be included in practical policies and directives and be applied by all actors with a role in military operations or law enforcement.
