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Average rating: 0 out of 5 stars, based on 0 reviews Write a review. Wolff Heintschel Von Heinegg. Tell us if something is incorrect. Add to Cart. It could be a non-international armed conflict as defined in Article 3 of the four Geneva Conventions. States regularly only accept the International Humanitarian Law having any influence on their conductreferring to the treatment of non-state actors within their territory when the quality of the conflict concerned may be compared to the quality of an interstate conflict.
Protocol Additional to the Geneva Conventions, dated 8 June , which is meant to add to and specify Article 3 of the Geneva Conventions, shall not apply in situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
Therefore, it must be a conflict of a certain intensity with an adversary who has a certain military organizational structure. Initially, the degree of organization of the opposing parties, which are by no means to be seen as a closed block, could be problematic.
When one leaves small groups that commit individual acts out of consideration, Al Qaeda and the rest of the Taliban show an effectual hierarchical order and are, at least rudimentarily, in a position to engage in uniform warfare and to take coordinated military action of some striking power that one is able to credit them with a somewhat adequate degree of organization. If military operations are not only police actions intended to fight off general criminal activities, one will also be able to accept the existance of a conflict with sufficient intensity in Afghanistan.
The law of non-international armed conflict will apply here. Basically, it consists of the minimum standards formulated in Article 3 of the four Geneva Conventions, which are added to and specified by the II. Protocol Additional to the Geneva Conventions, dated 8 June The II. Additional Protocol will only be applied when it has been ratified and when the application requirements are considered to have been fulfilled.
Additional Protocol, and which guarantees a protection according to the principles of international law as they result from established customs, the principles of humanity and the dictates of the public conscience. Especially via the customary international law, regulations on international armed conflicts are increasingly being applied also in non-international armed conflicts.
When the military medical personnel as such are employed in non-international armed conflicts such as in Afghanistan, the question arises whether they are obliged to wear the protective emblem against the background of a protective effect that is partly reversed to its opposite. In principle, the military medical personnel must be protected, no matter if they are wearing a protective emblem or not. Thus, according to the prevailing opinion, medical units are already in the situation of international armed conflict permitted to conceal themselves so as to prevent the adversary directly or indirectly identifying the presence or strength of own fighting forces.
It is exclusively directed against the practice applied in earlier wars of depriving captured enemy medical personnel of their insignia so as to circumvent their special position under international law. As pointed out precedingly the operational framework in Afghanistan has to be characterized is a non-international armed conflict by its nature. Article 39 of the FirstGeneva Convention in particular, stipulating the marking, does not apply.
The described problem, however, also carries over in regard to the given situation of a non-international armed conflict. If one regards the II. The question here is not, however, whether it is allowed to omit, remove or conceal markings for tactical or operational reasons so as to prevent the other elements from being reconnoitred, thus reducing the factual protection of the medical personnel. The particular objective is, on the contrary, to protect the medical personnel from targeted attacks against the emblem.
If the marking is meant to increase protection, this basic idea is thwarted if the marking does not provide increased protection but means increased threat. Against this backdrop, it would contradict the intention of the marking to insist on it. It must thus be allowed in this context to forego the use of protective emblem. This would also be in accordance with current practices. Of course, the decision on wearing protective insignia must not also be left to simple medical personnel or lower ranks locally. The question as to which restrictions on the ability to take action have to be accepted by medical personnel and relevant military leaders must be judged much more critically.
By way of example, the fictitious scenario will be analysed here in the brief time available. The usage of the Red Cross protective emblem is, in principle, laid down in the First Geneva Convention. In peace and war, the Red Cross emblem on white ground may, in accordance with Article 44 of the First Geneva Convention, only be used to identify medical units and establishments, personnel and materiel which are protected by this convention or conventions with similar provisions.
This provision forms the external framework and the absolute limit for the usage of the protective emblem for any kind of armed conflicts. The aim of the regulation is to avoid misuse and misunderstandings.
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Medical personnel are specifically protected also in non-international armed conflicts. International humanitarian law as a whole is based on a uniform definition of medical personnel. The personnel of the first group, the regular medical personnel, must generally and under all circumstances be respected and protected. For auxiliary personnel, this only applies if they have enemy contact or are captured during the fulfilment of their duties. The actual medical personnel gain the fundamental and permanent protection only if they are exclusively tasked to fulfil the enumerated duties.
It may thus not be employed for other purposes. Rather, it must be a lengthy deployment, intended to last for an unspecified period of time. Such an interpretation would also contradict the fundamental idea on which this enumeration is based. Rather, the idea is to exclude the medical personnel from the actual combat operations.
Accordingly, the appropriate tactical behaviour is not included into the activities which are laid down in the numerus clausus of Article 24 of the First Geneva Convention. Such behaviour would be permitted, however, if the personnel helped to establish fire superiority in their own defence or in that of the wounded and sick in their charge in accordance with Article 22 Para. The question is whether this includes a MEPT which is accompanying a patrol. Furthermore, the question arises of how to interpret the situation in which such a team is not attacked specifically as a MEPT, but the patrol as such is attacked.
Looking at an independently operating MEPT which is under attack, this undisputedly falls within the scope of application, and the right to self-defence will generally be acknowledged. If the attack is aimed, as in the given situation, at a military formation which has only been joined by medical personnel, and if it is not the medical personnel themselves that are under fire but the formation as such, the situation will be different.
Even in a symmetric conflict, the fact that a unit which includes military medical personnel is under fire does not make it possible to conclude that this gives the medical personnel the right to defend themselves. This right to self-defence constitutes the renunciation from the basic principle that medical personnel are generally not permitted to participate in combat operations.
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From this general non-participation in the actual combat derives, looking at it more closely, the possibility to provide the medical personnel with special protection. The right to self-defence must thus be interpreted restrictively. Only if a medical unit is deliberately attacked, in violation of the Convention, its personnel cannot be expected to "sacrifice themselves without resistance".
Merely returning fire in response to adversarial fire could, in case of doubt, be considered a defence activity of this type. Here, the focus of the action is, however, on the use of force to free injured persons or to gain access to them unimpaired by adversarial forces. Hence, the question here is not the self-defence of the medical personnel.
The right to self-defence in support of wounded persons implies the existence of a custodial relationship, which becomes apparent by the use of possessive pronouns in the French version and the phrase "in their charge" in the English version. The right to use force in order to make possible the rescue of wounded in the field is thus excluded because such a custodial relationship has yet to be established at the time. Therefore, personnel who gain the protection as medical personnel may not be employed in a way that would be deemed appropriate from a tactical point of view in the fictitious scenario.
It would be unlawful if the medical personnel enjoyed protection and at the same time took part in actions which harm the adversary.
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It seems doubtful whether the problem can be solved by simply omitting the protective emblem. The omission of the marking only makes it more difficult in reality to recognize and spare protected personnel. The protection as such will remain persistent. In this context, however, the protection will degenerate into a rather theoretical notion and will actually become effective again only after the adversary has recognized its worthiness of protection. Otherwise, this would result in legal uncertainty and increased danger of misuse.
Accordingly, the protection must be lifted if the personnel in question are to be employed in a way that is appropriate from a tactical point of view. Medical personnel are under protection if it is exclusively employed to conduct the enumerated activities and is, in exchange, released from any other tasks.