LAZOS REMOTOS

In 1995, the International Conference of State Parties requested the ICRC to undertake a study on customary IHL.118 _{A decade later, the ICRC published its} Customary IHL Study, which identifies an array of purported rules, the vast majority of which it said applied in both IAC and NIAC.119

By design, the Customary IHL Study was ambitious but not comprehensive. The authors did not seek to “to determine the customary nature of each treaty rule” of IHL.120 _{As a result, the Customary IHL Study “does not necessarily follow} the structure of existing treaties.”121 _{Instead, it “sought to analyse issues in order} to establish what rules of customary international law can be found inductively on the basis of State practice in relation to these issues.”122 _{Thirteen of the rules} identified in this way relate, at least in part, to impartial wartime medical care for the wounded and sick hors de combat.123

118. 26th International Conference of the Red Cross and Red Crescent, Geneva, December 3–7, 1995, Resolution 1, International humanitarian law: From law to action; Report on the follow-up to the International Conference for the Protection of War Victims, IRRC No. 310, 1996, p. 58. The request coincided with the development of jurisprudence by international criminal tribunals that purported to flatten, largely through customary IHL, many of the legal distinctions between IAC and NIAC. Tadić, Interlocutory Appeal, supra note 27, at paras. 96–127.

119. ICRC, CIHLS Vol. I: Rules. 120. Id. at p. xxxvi.

121. Id. 122. Id.

123. Id. at Rule 25, pp. 79–86 (“Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.”); Rule 26, id. at pp. 86–88 (“Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.”); Rule 28, id. at pp. 91–97 (“Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.”); Rule 29, id. at pp. 98–102 (“Medical transports assigned exclusively to medical

In its attempt to establish the existence of the customary IHL rules on medical care, the ICRC had to overcome two main challenges.124 _{The first was that some of} the rules purportedly applicable in both IAC and NIAC are based in the lex scripta set down primarily—or, at times, exclusively125_{—in IAC treaties. To establish those} rules in both types of conflict, the ICRC would therefore need to demonstrate a sufficient alternative basis of state practice and opinio juris.

The second (and, at times, related) challenge is that a large amount of the putative rules are rooted in the lex scripta set down more exhaustively in AP I and less comprehensively in AP II. In principle, therefore, with respect to those rules the

transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.”); Rule 30, id. at pp. 102–104 (“Attacks directed against medical […] personnel and objects displaying the distinctive emblems of the Geneva Conventions in conformity with international law are prohibited.”); Rule 35, id. at pp. 119–120 (“Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.”); Rule 47, id. at pp. 164–170 (“Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is: [...] (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; [...] provided he or she abstains from any hostile act and does not attempt to escape.”); Rule 59, id. at pp. 207–209 (“The improper use of the distinctive emblems of the Geneva Conventions is prohibited.”); Rule 88, id. at pp. 308–311 (“Adverse distinction in the application of international humanitarian law based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria is prohibited.”); Rule 92, id. at pp. 320–323 (“Mutilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited.”); Rule 109, id. at pp. 396–399 (“Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.”); Rule 110, id. at pp. 400–403 (“The wounded, sick and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made among them founded on any grounds other than medical ones.”); Rule 111, id. at pp. 403–405 (“Each party to the conflict must take all possible measures to protect the wounded, sick and shipwrecked against ill-treatment and against pillage of their personal property.”).

124. We focus here on medical-care rules in the Customary IHL Study. The United States and some prominent commentators have critiqued certain methodological components of, the evidence offered in, and some of the conclusions of the Customary IHL Study. See, e.g., John B. Bellinger, III and William J. Haynes, II, “A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law,” 89

IRRC No. 866 (2007); Yoram Dinsten, “The ICRC Customary International Humanitarian Law Study,” 82 ILS

(2006) (originally published in 36 IYHR (2006)).

125. For example, the primary basis in the lex scripta for Rule 35 (“Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.”) is found in treaties applicable to IAC, such as article 23 GC I and article 14 GC IV. No treaty provisions governing NIAC expressly regulate such hospital and safety zones.

ICRC would need to demonstrate that states not party to the relevant Protocol(s) nonetheless consider the relevant rules in those treaties binding: in respect of IACs for those rules deriving from AP I, and in respect of NIACs for those rules deriving from AP II. Where the rule purportedly applied in both IAC and NIAC but the rules in AP I and AP II on which the putative norm are based differed, the authors would need to demonstrate states’ buy-in for how the ICRC fashioned the resulting hybrid rule.

Despite these challenges, commentators have argued that at least some of the Customary IHL Study rules on medical care reflect customary IHL applicable in both IAC and NIAC. These include the rules requiring respect and protection—and governing the loss of protection—for medical personnel, units, and transports of a party to the conflict.126

However, the identified challenges proved insurmountable, in our view, for some putative medical-care rules put forward in the Customary IHL Study.127 _{An example} is Rule 26, which the ICRC submits to apply in both IAC and NIAC: “Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.”128 _{This rule derives in important part from both AP I and AP II, as}

126. ICRC, CIHLS, Rules 25, 28, and 29. In support of the customary character of these rules, see Susan Breau, “Protected Persons and Objects,” in Perspectives on the ICRC Study on Customary International Humanitarian Law 175–78 (Wilmshurst and Breau eds. 2007) [hereinafter, Breau, “Protected Persons and Objects”]. See also, concurring with respect to CIHLS Rule 25 (medical personnel), Mehring, Medical Ethics in IHL, supra note 1, at pp. 231–32.

The protections in the lex scripta for those rules in NIAC are rooted in AP II, which means the ICRC would need to show evidence of sufficient buy-in from non-AP II parties. (Common Article 3 is silent regarding such personnel, units, and transports.) In this connection, recently the United States (through its Department of Defense), which is not a party to AP II, included those AP II-rooted protections for medical personnel, units, and transports in NIAC in its recently promulgated Department of Defense Law of War Manual. U.S. Department of Defense, Law of War

Manual §§ 17.15.1 and 17.15.2 (2015).

127. Benoit criticizes part of the evidence and analysis assembled to support the CIHLS rules 109–111. James P. Benoit, “Mistreatment of the Wounded, Sick and Shipwrecked by the ICRC Study on Customary International Humanitarian Law,” 11 YIHL (2008) 193–215 [hereinafter, Benoit, “Mistreatment of the Wounded, Sick and Shipwrecked”].

no provision of GCs I–IV nor of Common Article 3 references medical ethics for these (or other) purposes.129 _{Thus, in order to establish this rule for both IAC and} NIAC, the Customary IHL Study authors would need to show sufficient buy-in for the putative norms from states that are not party to the Protocols. Yet all of the relevant cited military manuals and national legislations for this rule are from states parties—or states that would become party—to AP I and/or AP II.130