Capítulo segundo Aspectos generales del derecho mercantil
D. Principios generales del derecho
The use of protected emblems has long been a key element of IHL.135 They are intended to signify one thing “of immense importance: respect for the individual who suffers and is defenceless, who must be aided, whether friend or enemy, without distinction of nationality, race, religion, class or opinion.”136 Today, the distinctive emblems include the red cross, red crescent, red lion and sun, and red crystal.137
In general, with few exceptions, IHL provides that the distinctive emblems may be used only under the control of the competent authority of a party to the conflict.138 That is because the protective regime pivots in part on the trust between the parties,
134. ICRC, CIHLS, Vol. I, Rules, Rule 26, p. 88.
135. See, e.g., article 7 GC 1864 (regulating the use of a distinctive sign in the form of a flag or an armlet bearing a red cross on a white ground). See generally Jean-François Quéguiner, “Commentary on the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III),” 89 IRRC 865 (2007) 175–78.
136. ICRC, Commentary on GC I, p. 305. As emphasized in the ICRC’s Commentary on the APs, “the entire system of protection established in the [GCs] is based on the trust which can be placed in the proper use of the distinctive emblem, the control of such use and the repression of abuse are of paramount importance.” ICRC, Commentary on the
APs, para. 736.
137. The ICRC notes that “[t]he Islamic Republic of Iran—the only State to have employed the red lion and sun—has since abandoned its use.” International Committee of the Red Cross, “Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005,” available at https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=8BC1504B 556D2F80C125710F002F4B28&action=openDocument [https://perma.cc/YH5V-TU5W]. See Jean-François Quéguiner, “Commentary on the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III),” 89 IRRC 865 (2007) 177 fn. 12 (noting that “[p]er a diplomatic note, dated 4 September 1980, the Islamic Republic of Iran declined to exercise its right to use the red lion and sun and opted instead for the red crescent, while reserving the right to return to the red lion and sun should new emblems be recognized.”).
138. See, e.g., articles 38–44 and 53–54 GC I, 39 and 41–45 GC II, 18(3)–(4), 20(2), 21, and 22(2) GC IV, 8(l), 18, 23(1), 37(1)(d), 38(1), 85(3)(f) AP I, and 12 AP II.
who must ensure that the “special” status of medical personnel, units, and transports is not abused. Thus, as with the assignment of medical personnel, a key criterion of authorizing the use of the distinctive emblem is that the entity is subject to the party’s control.139 (The ICRC and certain other parts of the International Movement of the Red Cross and Red Crescent are exceptions, though GC I contemplated that National Red Cross Societies may work under a party’s control.140)
The authorization of the use of the distinctive emblems—for protective purposes for medical personnel, units, transports, equipment, and supplies—is extensively regulated in GCs I–II, GC IV, and AP I.141 Common Article 3, however, contains no provisions on the emblems. A major development for NIAC occurred in AP II. That Protocol reposes the power to authorize the emblems not only in states but also in organized armed groups.142 A terrorist designation does not modify that OAG’s power to do so under IHL.
ICL buttresses this system of control. The ICC Statute penalizes as a war crime in IAC making improper use of the emblems where such use results in death or serious personal injury.143 It also lays down as a war crime in both IAC and NIAC intentionally directing attacks against medical personnel and objects displaying the distinctive emblems in conformity with IHL.144
Row 12 of Table 1 summarizes the fragmentation in the lex scripta of IHL, and the related analysis in the Customary IHL Study, concerning the norm that the parties may authorize—and, if they do so, must control—the display of the distinctive
139. See, e.g., Frits Kalshoven, “Legal Aspects of ‘Medical Neutrality,’” in Reflections on the Law of War 1031 (2007). 140. Those exceptions pertain, for example, to personnel and property of the components of the International Movement of the Red Cross and Red Crescent. E.g., article 44(3) GC I. E.g., compare article 40 GC I with article 44 GC I.
141. E.g., articles 38–44 and 53–54 GC I, 39 and 41–45 GC II, 18(3)–(4), 20(2), 21, and 22(2) GC IV, 8(l), 18, 23(1), 37(1)(d), 38(1), and 85(3)(f) AP I.
142. See article 12 AP II; see also ICRC, Commentary on the APs, para. 4746. 143. Article 8(2)(b)(vii) ICC RS.
emblems by medical caregivers, units, transports, equipment, and certain other things used to discharge their proper functions.145 Five elements of fragmentation emerge in the lex scripta. One of those elements relates to the fact that under GC IV only some unassigned caregivers and objects—namely, authorized civilian hospitals, their personnel, and their convoys146—may use the emblem. Three more of those fragmentation elements come from the lack of authorization in AP I, in Common Article 3, or in AP II for any unassigned caregivers, units, and transports to display the emblems. And the fifth fragmentation element flows from the lack of provisions in Common Article 3 concerning the authorization of the emblems by any personnel or objects controlled by the parties. The rule put forward in the Customary IHL Study addresses the use of the emblems by medical personnel, units, and transports assigned by a party to the conflict, not their unassigned counterparts.147 For NIAC, the main source of lex scripta for this norm is found in AP II.148
145. ICRC, CIHLS, Vol. II: Practice, Part 1, pp. 1269–1317; U.S. Department of Defense, Law of War Manual § 17.16 (2015).
146. Articles 18(3), 20(2)–(3), and 21 GC IV; see also, with respect to certain air transports, article 22(2) GC IV. 147. ICRC, CIHLS, Vol. I: Rules, Rule 59, p. 209.
148. Though not a contracting party to AP II, the U.S. Department of Defense, Law of War Manual incorporates article 12 AP II. U.S. Department of Defense, Law of War Manual § 17.16 (2015).
Table 1: Fragmentation under IHL of Key Impartial Wartime Medical Care Norms
International armed conflict Non-‐international armed conflict GCs I–IV AP I ICRC CIHLS CA3 AP II ICRC CIHLS
Entitlement to and protection of medical care for the wounded & sick who are hors de combat
1. The parties shall search for, collect, and evacuate the wounded & sick without adverse discrimination
Wounded & sick combatants/fighters ⚕ ⚕ ✚ ¢ ⚕ ✚
Wounded & sick civilians/others ¢ ⚕ ± ¢ ⚕ ✚
2. The parties shall provide all feasible medical care to the wounded & sick as soon as practicable and on an impartial basis (i.e., guided by medical grounds, with no [other] grounds for adverse discrimination)
Wounded & sick combatants/fighters ⚕ ⚕ ✚ ¢ ⚕ ✚
Wounded & sick civilians/others ¢ ⚕ ± ¢ ⚕ ✚
3. The parties shall respect and protect the wounded & sick; the parties shall thus not knowingly attack, fire upon, or unnecessarily interfere with them
Wounded & sick combatants/fighters ⚕ ⚕ N/A ¢ ⚕ N/A
Wounded & sick civilians/others ⚕ ⚕ N/A ¢ ⚕ N/A
4. The parties shall protect the wounded and sick against ill-treatment and pillage of personal property
Wounded & sick combatants/fighters ⚕ ✖ ✚ ¢ ⚕ ✚
Wounded & sick civilians/others ¢ ✖ N/A ¢ ⚕ N/A
5. The parties shall treat the wounded & sick humanely
Wounded & sick combatants/fighters ⚕ ⚕ N/A ⚕ ⚕ N/A
Wounded & sick civilians/others ⚕ ⚕ N/A ⚕ ⚕ N/A
6. Mutilations; medical, scientific, or biological 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
Wounded & sick combatants/fighters ¢ ⚕ ± ¢ ¢ ✚
Wounded & sick civilians/others ¢ ⚕ N/A ¢ ¢ N/A
Corollary protections for medical caregivers, units, supplies, & transports
7. The parties shall respect and protect medical caregivers, units, & transports, so long as they are exclusively assigned to medical duties and do not commit, outside their humanitarian functions, acts harmful to the enemy; such caregivers, units, & transports may not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper function; the foregoing protections may cease only if those caregivers, units, or transports commit, outside their humanitarian functions/duties, acts harmful to the enemy and only after (an unheeded) warning (which, where appropriate, had set a reasonable time limit)
Medical personnel, units, & transports assigned by a party ⚕ ⚕ ✚ ✖ ⚕ ✚
Unassigned caregivers, units, and transports ¢ ✖ N/A ✖ ✖ N/A 8. In the event of capture, the parties shall retain medical caregivers only insofar as the state of health and number of prisoners of war (IAC)/detainees (NIAC) requires
Medical personnel assigned by a party ⚕ ✖ N/A ✖ ✖ N/A
Unassigned caregivers ✖ ✖ N/A ✖ ✖ N/A
9. Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of who benefits therefrom
Medical personnel assigned by a party & unassigned caregivers ¢ ⚕ ± ✖ ⚕ ±
10. Medical caregivers shall neither be compelled to perform acts or to carry out work contrary to, nor be compelled to refrain from acts required by, the rules of medical ethics or other rules designed for the benefit of the wounded and sick
Medical personnel assigned by a party & unassigned caregivers ✖ ⚕ ± ✖ ⚕ ±
11. No person engaged in medical activities may be penalized for refusing or failing to give information concerning the wounded and sick who are, or who have been, under her care, if such information would, in her opinion, prove harmful to the patients concerned or to their families
Medical personnel assigned by a party & unassigned caregivers ✖ ¢ N/A ✖ ¢ N/A
12. During armed conflict, the parties may authorize—and, if so, must control—the display of the distinctive emblems by medical caregivers, units, transports, & equipment etc.
Medical personnel, units, equipment, & transports etc.
under a competent authority of a party ⚕ ⚕ ✚ ✖ ⚕ ✚
Other caregivers, units, equipment, & transports etc.
(*see text re ICRC) ¢ ✖ N/A ✖ ✖ N/A
KEY
Sources of lex scripta and studies of customary IHL
AP I According to the explicit scope and terms of Additional Protocol I (1977)
AP II According to the explicit scope and terms of Additional Protocol II (1977)
CA3 According to the explicit scope and terms of Common Article 3 (1949)
GCs I–IV According to the explicit scope and terms of Geneva Conventions I–IV (1949)
ICRC CIHLS According to the ICRC’s Customary International Humanitarian Law Study (2005)
Scope of protection for the particular medical-‐care norm under the referenced source(s) of IHL
⚕ Generally protected under the referenced source of IHL
¢ Protection under the referenced source of IHL exists but suffers key weakness ✖ Not expressly protected as such under the referenced source of IHL
Evaluation of evidence and analysis put forward in the ICRC CIHLS
✚ The evidence submitted for the related rule seems to support the basis for it ± There is a specific question concerning the evidence for the related ICRC CIHLS rule
5
STATE RESPONES
TO TERRORISM
I
n this section, we highlight central elements of states’ response to terrorism. Terrorists range from individual lone-offender attackers, to networks of organizations with shared normative commitments, to rebel groups seeking to supplant governing authorities, to state “sponsors” of terrorism. Legal definitions of terrorists increasingly encompass not only those who conduct terrorist acts but also those who provide direct or indirect support to those perpetrators.In sum, to counter these diverse perceived threats, states draw on a growing collection of legal frameworks, administrative tools, cooperation mechanisms, forcible measures, surveillance systems, and funding streams. A key element cutting across these sectors is the prohibition of diverse forms of support and resources to terrorists.
A hybrid war-and-policing model underpins these efforts. The policing dimension draws on the traditional objectives of the criminal law system, including deterrence, incapacitation, rehabilitation, and retribution, mixed with trans-border interdiction and cooperation between states.1 The war dimension adds lethal targeting and security detention.