Hilaire McCoubrey
In any armed conflict the wounded and sick are amongst the most immediately obvious victims of hostilities. It was for this reason that, following the experiences of Henry Dunant in the aftermath of the Battle of Solferino in 1859, the battlefield wounded were the focus of the first international humanitarian treaty stricto sensu, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 1864. The subsequent development of international humanitarian, or ‘Geneva’, law has involved, broadly, an expansion of categories of protected persons.1 In the present context these now include, in addition to the wounded and sick in land warfare, the wounded, sick and shipwrecked at sea, including airforce personnel baling out over the sea, prisoners of war in need of medical attention, and civilian casualties, together with those charged with their care.
A number of serious problems, actual and potential, arose in the treatment of the wounded and sick in the 1990–91 Gulf conflict. Particular issues were associated with four successive phases of the conflict, and also the period afterwards:
1 During the Iraqi occupation of Kuwait looting of medical equipment and general disruption of medical services had a dramatically adverse impact upon patient care in the territory.
2 The preliminary coalition bombardment of Iraqi targets produced a considerable number of casualties, raising serious questions of humanitarian relief in the context of economic sanctions.2
3 The final, and brief, land offensive for the liberation of Kuwait raised the prospect of serious organizational difficulties in receiving potentially very large numbers of casualties, possibly including victims of chemical or bacteriological attacks.
Fortunately this ultimate horror did not occur and the brevity of the land conflict itself greatly reduced the extent of the problems encountered.
4 The ultimate mass surrender of the Iraqi forces occupying Kuwait entailed significant problems in the reception of large numbers of prisoners, many of whom were in poor medical condition.
5 The medical dangers arising subsequently in Iraq.
The legal issues arising are here conveniently considered in this broad sequence.
GENERAL PROVISION FOR THE WOUNDED AND SICK IN ARMED CONFLICT
Modern international humanitarian provision for the wounded and sick in international armed conflict is found primarily in the four Geneva Conventions of 1949. Further provision is made by Additional Protocol I 1977 to the Geneva Conventions of 1949, but this is highly controversial. Difficulties have arisen primarily from provision for a broadening of entitlement to ‘combatant’ status and the ‘internationalization’ of certain prima facie non-international armed conflicts; and from the fact that the states involved in the Gulf conflict were not party to the Protocol. Of the four Geneva Conventions of 1949, Convention I provides for the wounded and sick in land warfare, Convention II makes provision for the wounded, sick and/or shipwrecked at sea, Convention in sets out general protection for prisoners of war, including their medical treatment, and Convention IV, in the course of rather circumscribed provision for civilians, deals with civilian medical services. Additional Protocol I 1977 expands, inter alia, the 1949 medical provision both generally and, most notably, in respect of civilian medical services. Its medical provisions are considered largely uncontroversial and may in many cases be accepted as affording a useful gloss upon well-established law, but the Protocol itelf cannot be considered to have been binding in the conflict under consideration.3
The fundamental principles are simple enough, even if their application may not be so.
The wounded and sick in hostilities who are or have, by surrender, made themselves hors de combat are entitled to standards of treatment summarized by Article 12 of Geneva Convention 11949, which requires that
They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on [irrelevant discriminatory] criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited;…they shall not wilfully be left without medical assistance and care nor shall conditions exposing them to contagion or infection be created.
Only urgent medical reasons will authorize priority in the order of treatment to be administered.4
Similarly, personnel and institutions charged with their care are entitled to respect and protection so long as they are not employed in activities harmful to the enemy.5 Subject to what has been remarked above, it is worthy of note that the 1949 provisions are elaborated by Articles 10 and 11 of Protocol I Additional to the 1949 Geneva Conventions 1977. Article 10 (2) requires that
In all circumstances [the wounded and sick]…shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.
There shall be no distinction among them founded on any grounds other than medical ones.
Article 11 of the Protocol then adds further specific medical requirements, in particular:
(1) The physical or mental health and integrity of persons who are in the power of the adverse Party…shall not be endangered by any unjustified act or omission…. [I]t is prohibited to subject [them]…to any medical procedure which is not indicated by the state of health of the persons concerned and which is not consistent with generally accepted medical standards which could be applied under similar medical circumstances to
…nationals of the Party conducting the procedure….
(2) It is, in particular, prohibited to carry out on such persons, even with their consent:
(a) physical mutilations;
(b) medical or scientific experiments;
(c) removal of tissue or organs for transplantation, except where these are acts justified in conformity with…paragraph 1.
(3) Exceptions to the prohibition in paragraph 2 (c) may be made only in the case of donations of blood for transfusion or of skin for grafting, providing they are given voluntarily…the therapeutic purposes…
consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient.
(4) Any wilful act or omission which seriously endangers the health or integrity of any [protected] person…and which either violates…
prohibitions in paragraphs 1 and 2 or fails to comply with paragraph 3 shall be a grave breach of this Protocol.
(5) [Protected] persons…have the right to refuse any surgical operation. In case of refusal, medical personnel shall endeavour to obtain a written statement to that effect, signed or acknowledged by the patient.
(6) …[E]ach Party to the conflict shall endeavour to keep a record of all medical procedures undertaken with respect to any person who is interned or otherwise deprived of liberty….
This is admittedly a very considerable expansion upon the 1949 provisions and one which must in the circumstances be treated with some caution. However, most, if not all, of the material set out here may reasonably be considered a persuasive gloss upon the unequivocally binding prescription made in 1949. These medical requirements amount to a basic code of medical ethics. References to ‘generally accepted medical standards’ are necessarily somewhat vague but refer essentially to the norms of medical practice accepted across the spectrum of civilized countries. This, amongst other benefits, excludes reliance upon possibly questionable local standards adopted in any given place.
In general it may be accepted that the standard of medical conduct set by international humanitarian law is one of patient-centred care designed for the professionally conceived benefit of the patient and, so far as exigencies of communication and consciousness admit, with his or her consent. Subject to this fundamental demand, the standards are of course necessarily applied in the light of the measures practically possible in the actual circumstances, which, in a field hospital, may well fall far short of those expected in a modern western teaching hospital. As an example, it would clearly be unacceptable to use
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contaminated medical equipment in treatment—or rather to fail to take adequate precautions in their use. This would anyway involve potential ‘exposure to…infection’
within the meaning of Article 12 of Geneva Conventions I and II 1949. On the other hand, where immediate blood transfusions are required in an endeavour to save the lives of the seriously wounded, a risk, which may be vanishingly small, of donated blood being infected, e.g. by the Aids virus, may be unavoidable and here it would in the given context be manifestly unreasonable to suggest that any culpable dereliction had occurred.
Naturally, if one is in fact considering an advanced ‘home’ territory facility, different and higher expectations might properly be entertained.
Article 15 of Geneva Convention 11949 requires Parties to armed conflicts without delay, [to] take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
This requirement is naturally subject to the dictates of practical possibility. In naval warfare,6 for example, it has become well established that this duty is considerably curtailed in that a warship is not required to be placed at objectively perceived risk of hostile action in order to engage in rescue work. This would apply to any warship but perhaps most particularly to submarines engaged in humanitarian endeavours upon the surface.7 The same general point may also, of course, be made in respect of non-protected land and air units.8
Civilian and military wounded and sick under the care of their own medical services are of course the responsibility of the relevant municipal authorities. They themselves and the institutions sheltering them are not, however, legitimate targets for hostile attack.9
In a territory under hostile occupation it is the duty of the occupying power, so far as possible, to maintain medical services and not to divert them from civilian use without making appropriate alternative provision.10 In addition to the general provision for the wounded and sick, safeguards are set out for the medical care of prisoners of war.11
The principle and standards thus stated are in themselves both simple and clear, but their application in the course of hostilities naturally raises severe practical difficulties which commonly require immediate resolution by medical or other personnel in the field.
Potential and actual difficulties at various levels were illustrated during the Gulf conflict, and a number of serious questions arose for consideration.
MEDICAL ISSUES IN OCCUPIED KUWAIT
The effective occupation of Kuwait was completed within some fourteen hours of the invasion on 2 August 1990, and serious disruption of medical services in the Emirate commenced from an early stage thereafter. Two principal legal issues require consideration, first the effects of the looting of medical equipment and secondly the general dislocation of medical services for other reasons during the occupation.
It is clear that some looting was done by individual Iraqi soldiers, especially in the later stages of the occupation when the discipline of the occupying forces would seem to
have collapsed. The extraordinary assortment of Kuwaiti goods found abandoned along the Iraqi line of retreat to Basra serves as an adequate demonstration of this.12 The looting of medical equipment, however, represented a different and arguably more serious phenomenon. The complex technical equipment which was removed from the three principal hospitals in Kuwait City was hardly of a type, or size, to be attractive to the random looter and it seems clear that these removals were carried out in execution of a centrally directed policy and were not a manifestation of ‘mere’ undisciplined depredation. A Kuwaiti doctor from the Dar al-Shifa hospital in Kuwait City who escaped to Tehran in November 1990 was reported to have confirmed the ‘official’ nature of much of this looting: ‘To understand the position in Kuwait City one must understand the systematic nature of the destruction. This is the rape of a country by bureaucracy’.13
Perhaps significantly, this report also stated that at this early stage of the occupation the Iraqi troops themselves were relatively well disciplined. This general account accords with comments made by deserters from the Iraqi armed forces on reaching Turkey. One such soldier was reported as admitting that he had assisted in the removal of incubators from the maternity unit of a Kuwaiti hospital from which the parents had been ordered to remove their babies, this being evidently an act of policy.14 A yet more serious colouring was given to these allegations by the report issued by Amnesty International on 19 December 1990. This report was concerned with the generality of human rights abuses in the occupied territory but included a claim of ‘compelling evidence’ that after removal of incubators from the Kuwaiti hospitals, some three hundred babies had been left to die.
One doctor interviewed by Amnesty International claimed to have assisted in the burial of seventy-two of the corpses.15
An occupying power is vested with a limited authority to requisition civilian medical facilities in the occupied territory. Geneva Convention IV 1949 provides by Article 57 that:
The Occupying Power may requisition civilian hospitals only temporarily and only in cases of urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are made in due time for the care and treatment of the patients and for the needs of the civilian population for hospital accommodation.
…The material and stores of civilian hospitals cannot be requisitioned as long as they are necessary for the needs of the civilian population.
In no way could the removal of incubators from maternity units be thought to have been
‘urgently necessary’ for the treatment of military wounded and sick. Even if some bizarre
‘military necessity’ could be advanced in support of such action, the apparently good evidence for the death of a large number of infants is sufficient to establish prima facie a very serious violation of the Fourth Geneva Convention.
Geneva Convention IV 1949 also imposes upon an occupying power the duty to maintain, so far as possible, medical services within the occupied territory. Article 56 of the Convention requires that:
To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the co-operation of national
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and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory,…. Medical personnel of all categories shall be allowed to carry out their duties.
The emphasis is added. This requirement implicitly recognizes the interaction of complex factors governing the provision of medical services in the difficult circumstances of hostile military occupation. A broad duty of maintenance is imposed upon the occupying power as the de facto authority within the territory, but in the performance of this duty there will inevitably arise substantial practical difficulties resulting, inter alia, from the disruptions of the armed conflict itself and the need for a level of co-operation from the local medical authorities, which can by no means be assumed; these problems are implicitly recognized. Such a recognition of the obvious clearly does not, however, authorize actual looting of or attacks upon medical facilities or their personnel. The expectation of the co-operation of local medical organizations and personnel may also reasonably be taken to suppose that the occupying power itself does not take unnecessary steps tending to frustrate such co-operation or to render it ineffective.
It is clear that in Kuwait a major disruption of medical services took place, even beyond the immediate impact of the looting of medical equipment, as a result of the large-scale flight of vital personnel from the territory. One poignant illustration of the consequences was given in television reports at the time of the liberation showing young patients in a mental institution who had apparently to all intents and purposes been abandoned in insanitary conditions and neglect. The immediate motivations for flight would naturally have varied, and the sheer discomfort of life in an occupied territory no doubt played a substantial part; however, in many cases more sinister causes may be discerned. One doctor who fled from Kuwait stated that he had been impelled to flee when another hospital worker, seeking advantage, had denounced him to the occupation authorities as a resistance activist.16 Such occurrences are not of course unusual in circumstances of military occupation, but in Kuwait it may be argued that the problems were exacerbated by tensions inherent in the pre-conflict social structure of the Emirate.
Much labour was undertaken by an under-privileged non-citizen under-class, and this was the case at the basic level of the medical services; a number of the medical staff as such were also non-citizens. The situation bred resentments which severely exacerbated the problems inherent in the face of belligerent occupation; it also appears to have inspired savage reprisals against certain sections of the population after the expulsion of the Iraqi forces. The pre-existing situation and its consequences were not of course the fault of the Iraqi occupation authorities. However, whilst an occupying power cannot be held responsible for the disruptive effects of internal tensions in the occupied territory, it is clearly responsible if there is the imposition of a regime intended to manipulate and maximize the consequences of the situation. The Second World War analogy can be argued greatly to have been over-played during the Gulf conflict, but some of the more drastic consequences of the policy of ‘Iraqization’ pursued in Kuwait do raise rather obvious comparisons with the Nazis and with practices within Germany itself and the
‘Greater German Reich’ at that time.17 Some useful analogies may be drawn from the specific issue of ‘grudge informers’ in the context of political ‘terror laws’, upon which a considerable jurisprudence developed in post-1945 (West) Germany. In German cases the jurisprudence was largely founded upon an analysis of procedural abuses even upon the
face of the laws concerned, but it was established that those improperly applying and those, for malicious personal reasons, invoking such laws might subsequently be held liable for the consequences even though such actions had been not only condoned but encouraged by the state authorities at the material time.18 Those who made malicious use of repressive ‘Iraqization’ regulations and those, including members of the occupation authorities, who were formally responsible for such abuses of process, may be argued to have prima facie cases to answer in this respect. In the immediate context of military occupation a balance must ultimately be drawn between the duty of the occupying power to maintain medical services ‘to the fullest extent of the means available to it’ and the unavoidable disruption consequent upon armed conflict. The general quality of the regime imposed by Iraq upon Kuwait strongly suggests that ‘the fullest …means’ were not employed for the maintenance of medical services in the territory, but beyond this it would perhaps be unwise to go. It may be added that the duty to maintain medical services may be argued to extend in appropriate cases to the supply of qualified personnel to make good absences of local staff, but in the immediate case the difficulties experienced by the Iraqi medical services themselves, especially during the coalition aerial bombardment, may reasonably be contended to have precluded any such relief action.
After the liberation of Kuwait the government of the Emirate announced a massive reparations claim against Iraq for the devastation of the territory, including the looting of property. The United Nations intends that reparations should be derived from Iraqi oil revenues although, granted the shattered condition of the Iraqi economy itself, the effectiveness of this scheme remains at the time of writing (1991) open to some question.
This aspect is discussed fully in Chapter 13. In August 1991 a resumption of Iraqi oil sales was permitted, in a relaxation of economic restrictions, in part with a view to the settlement of claims. Iraq objected strenuously to this arrangement. There would certainly seem, however, to be a strong potential claim for the physical return, inter multos alios, of looted medical equipment over an appropriate time-scale.
Treatment of casualties during the coalition air offensive
The aerial bombardment of the Iraqi military infrastructure by coalition air forces prior to the brief land offensive for the liberation of Kuwait inevitably inflicted a large number of casualties, military and civilian. Civilian casualties were classified under the singularly distasteful jargon phrase ‘collateral damage’ which, although not invented therein, gained wide currency during the Gulf conflict. The modern jus in bello of course forbids calculated attacks upon both civil and military hospitals and medical facilities.19 There is no evidence of any such caculated and manifestly unlawful attacks being perpetrated during the coalition aerial bombardment; severe difficulties arose rather from the indirect consequences of infrastructural damage—including notably to the transport and sewerage systems. The consequential problems included not only the severe disruption of medical services as such, but also the increased pressure upon them resulting from the dangers of epidemic disease generated, e.g., by disruption of water and sewerage services.
The primary obligation of health care provision for the nationals and residents within a given state falls of course upon the national authorities of that state. However, internationally two major issues arose in this situation. The first was the question of
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