WHEN DO MEDICAL PERSONNEL PROVIDING BIOMEDICAL ENHANCEMENTS PARTICIPATE DIRECTLY IN HOSTILITIES?

• Author: Lp, Sophie

I INTRODUCTION

Medical personnel assigned to armed forces are non-combatant members of armed forces who are entitled to certain protections under international humanitarian law ('IHL'). Under the Geneva Conventions (1) and Additional Protocols (2) ('the Conventions') codifying the rules of customary international law, medical personnel engaged exclusively in medical duties (and their units or vehicles) are to be protected from attack. (3) They must not be punished for performing medical duties compatible with medical ethics or be compelled to perform acts contrary to such ethics. (4) IHL's protection of medical personnel is subject to certain prescriptions on their conduct prohibiting the commission of hostile acts or acts harmful to the enemy. (5) Medical personnel who engage in hostile acts or acts harmful to the enemy interfere in the conduct of military operations and are no longer considered neutral personalities on the battlefield warranting protection. They subject the wounded and sick in their care to the risk of attack and thereby remove the rationale for their specific protection under the Conventions, being to guarantee medical care and treatment for the wounded and sick.

This article explores the question of whether medical personnel who provide performance enhancing drugs or other enhancement treatment ('the conduct in question') act contrary to their obligations under IHL. It submits that medical personnel who engage in the conduct in question participate in the conduct of hostilities and, by acting contrary to and outside of their duties and obligations under IHL, forfeit their protections under the Conventions. The article then proceeds to examine if and when the conduct in question constitutes direct participation in hostilities ('DPH') under the law of armed conflict (TOAC). It contends that medical personnel who engage in this conduct will, in most cases, be considered to be participating indirectly in hostilities. The determination must, however, be made on a case by case basis by reference to the nature and extent of the enhancement provided and the actual conduct of the medical personnel involved. The meaning and scope of DPH under the law of armed conflict has not been the subject of clear or precise definition and will evolve with State practice creative of new norms of international customary law. The question, therefore, calls for ongoing and active consideration of the actual conduct as against the applicable IHL at the time. The determination also depends on the status of the biologically enhanced combatant under the law of weapons, which has implications for the legality of acts performed by the medical personnel involved.

Later parts of the article will consider the questions of how IHL should distinguish between performance enhancing treatment and therapeutic treatment and how the IHL framework can accommodate increasing military use of biological enhancements without rendering obsolete its protection of medical personnel.

II DUTIES AND PROTECTION OF MEDICAL PERSONNEL

Under article 8 of Additional Protocol I (AP I') to the Geneva Conventions, medical personnel are 'persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated in that article, being the search for, collection, transportation, diagnosis or treatment--including first-aid treatment--of the wounded, sick and shipwrecked, or the prevention of disease. (6)

The Conventions provides that medical personnel who are 'exclusively engaged' in medical duties 'shall be respected and protected in all circumstances'. (7) Their medical units may 'in no circumstances' be attacked, but instead 'shall at all times be respected and protected by the Parties to the conflict'. (8) If medical personnel fall into the hands of an adversary, they shall be entitled to the minimum benefits and protections afforded to prisoners of war under the third Geneva Convention ('GC III'), (9) continue to exercise their medical functions as retained personnel on behalf of prisoners of war, (10) and be repatriated if their retention is not indispensable."

Medical personnel lose the protection afforded to them under the Conventions if they, or their medical units are used to, 'commit acts, outside of their humanitarian duties, harmful to the enemy' (12) or, in the case of non-armed international conflicts, to 'commit hostile acts, outside their humanitarian function'. (13) The relevant treaty provisions codify the rule of customary international law that medical personnel who are assigned exclusively to medical duties lose their protection if they commit acts harmful to the enemy. (14) According to Commentary to the first Geneva Convention ('GC I) of the International Committee of the Red Cross ('ICRC'), the exclusivity of the assignment implies that it must also be of a permanent nature. (15)

The prohibition under IHL against medical personnel's participation in hostilities in an armed conflict is also reflected in soft law. The World Medical Association Regulations in Times of Armed Conflict and Other Situations of Violence prescribes as a Code of Conduct for physicians that they 'must in all circumstances not take part in any act of hostility'. (16)

Medical personnel do not lose the relevant protection merely by undertaking duties outside of their enumerated medical duties. (17) Protection only ceases when medical personnel or their medical unit is used to commit hostile acts or acts harmful to the enemy. However, if the medical unit were 'systematically used for purposes other than medical purposes, even if no acts harmful to the enemy were committed, it would lose its status as a medical unit', which under the Conventions is required to be exclusively dedicated to medical purposes. (18)

What constitutes an act harmful to the enemy, or a hostile act, is not defined in the Conventions. The ICRC has expressed it in terms of: 'acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations'. (19) Medical establishments and units must, the ICRC explains, 'observe, towards the opposing belligerent, the neutrality which they claim for themselves and which is their right under the Convention'. (20)

Neutrality of medical personnel means that they 'stand above the fighting' and are not to be 'construed as interference in the conflict'. (21) The 1864 Geneva Convention" expressly provided for military hospitals to be recognised as neutral, and for hospital personnel to have the 'benefit of the same neutrality when on-duty'. (23) Article 6 of that Convention also mandated that '[w]ounded or sick combatants, to whatever nation they may belong, shall be collected and cared for'. The obligation of medical personnel to care for wounded and sick soldiers of an adversary to the conflict is reflected in articles of the modern Geneva Conventions requiring that the wounded and sick be 'cared for by the Party to the conflict in whose power they may be', (24) without distinction as to the party to the conflict to which they, or the medical personnel rendering care, belong. (25) The treaty obligation is also reflected in State practice, such as in their military manuals which place a positive obligation--an 'imperative' (26) (Israel) and a 'duty' (2) ' (Philippines)--on medical personnel to treat wounded enemy soldiers, with 'medical necessity' being the sole ground of discrimination between members of friendly and hostile forces when prioritising treatment (Netherlands). (28)

The protection afforded to medical personnel is therefore not a privilege for their personal benefit, but is to be understood in terms of the nature and extent of their medical obligations under the Conventions and of the 'higher interest of the wounded'. (29) Promoting recovery of the wounded and sick of an adversary to the conflict, even if it enables the enemy's soldiers to re-join the conflict and thereby improve the enemy's military capability, is not contrary to medical personnel's obligations and does not constitute a hostile act or participation in hostilities because such an act falls within medical personnel's humanitarian duties.

1. Biological Enhancements

   A prima facie reading of article 8 of AP I, which lists exhaustively (30) the medical purposes for which medical personnel and units are to be engaged under the Conventions, would indicate that these would not generally encompass the provision of biological enhancements. (31) One possible exception, as noted by Liivoja, is the provision of preventative health care. (32) Administering a vaccination, for example, could arguable amount to providing an enhancement because vaccines do not treat any existing illness, but they also fall within the medical purpose of the 'prevention of a disease' under article 8. The provision of most other forms of biological enhancement would not generally fall within a category of medical purpose under article 8 and would therefore be outside of the duties of medical personnel under IHL. The systemic engagement in such conduct would result in medical personnel and their units, who are required to be engaged in and assigned to medical duties exclusively, losing their protection under the Conventions.

   More importantly, providing biological enhancements would amount to an act harmful to the enemy because its purpose and effect is to harm the adverse party by facilitating one's own party's military operations. 'Harmful' is given a broad interpretation as referring not only to 'direct harm inflicted on the enemy' but also to 'any attempts at deliberately hindering his or her military operations in any way whatsoever ~ (3) . There is no 'difference of substance' between the terminology of 'acts harmful to the enemy' and that of 'hostile acts' which is used in Additional Protocol II (AP II) applicable to non-international armed conflicts. (34) The difference in phraseology is a relic of the preference of the drafting parties...