The Red Cross as a target?

1. Introduction

1. Scenario (fictional)

21 March 2011, FARYAB province: The armoured infantry patrol takes a turn in the road. Its task: reconnaissance of the area north of MAIMANA, starting from its FOB[1]. Additionally: establishing contact with the population and demonstrating presence. The first Dingo vehicle has just passed through the defile when it is nearly thrown over by the shock impetus of a detonation, the patrol is brought to a halt: ”IED[2]!“ The patrol leader hastily orders all-around security and the infantry dismounts. There is no radio contact with the first vehicle. Two infantry men are ordered to the front – despite the danger of a second hit. However, there is no second explosive device but shots. The patrol leader sees muzzle flashs from an elevated position. Too late: The two infantry men meant to help their comrades in the attacked Dingo are hit and remain lying wounded and without cover. The patrol leader gives orders to open fire on the identified adversary but he knows that he has to stop the adversary from having a superior position in order to rescue his comrades. His combat potential is weakened. The crew in the last vehicle is the assault team but who will stay to pin the adversary down? Without a security team, the problem cannot be solved, and the comrades cannot be rescued. The patrol leader takes a look at the Mobile Emergency Physician Team (MEPT)…

1. Key questions

This situation or similar situations can arise for military personnel in Afghanistan on a daily basis; the latest aggravations of the threat situation illustrate this. Thus, basic questions are required, questions that regard both the medical service as a whole and the current and future role of the individual military medical personnel. The following key questions have been chosen because they are of paramount interest for the subsequent thoughts:

1. What defines the operational reality of the armed forces in the 21st century?
2. What effect and, thus, what functional-protective but also symbolic importance does the Red Cross (still) have?
3. What actions can or should the military medical personnel on deployment take or what actions are they allowed to take from the military perspective (using the fictional scenario as an example)?
4. Which implications does this have for the self-perception and the role perception of the military medical personnel?

These questions shall be looked at from three different perspectives: the tactical one, the legal one and the ethical one. The analysis is based on experiences of the German armed forces (Bundeswehr). However, the conclusions might apply to other armed forces as well.

1. Traditional pattern of war: symmetry

When one wants to analyze a (presumed) change in the situation, it is helpful to know the status quo ante of this situation. Where does the Medical Services of NATO armed forces come from?

For 40 years, the symmetric warfare between states has been the sole operational scenario for the Bundeswehr and, thus, the basis of all discussions about this subject. A professional and symmetric fighting method does not only imply that the warring parties have technologically similar weapons but that they, in particular, respect the difference between combatants and civilians. After the disastrous experiences of the Thirty Years’ War with all its atrocities, a “Culture of War”[3] developed that resurrected values long gone and that had a specific ethos intended to reduce the horrors of war. Already in the 18th century, it had been described that a peasant was (again) able to plough his field and remain untouched while next to him a battle between two European major powers was raging. In the “Westphalian System” (Münkler), war had been nationalized and regulated. Rooted in the tradition of the chivalric ideals[4] , the expectation of reciprocity guaranteed that the meeting of these minimum standards had not to be gained by unilaterally accepting tactical disadvantages.

Based on this central idea, ethical standards and applicable law were laid down: the Geneva Convention and the International Humanitarian Law. This convention is described as a highlight in human history with good reason [5] due to the fact that, within one century, man succeeded in binding most of the states on earth to meet minimum standards during a war. One part of the International Humanitarian Law is the protection of the medical personnel, which is guaranteed by the Geneva Convention dated 12th August 1949 with a view to the ”amelioration of the condition of the wounded and sick in Armed Forces”. This protection is made visible by the Red Cross[6], but its use is nevertheless subject to certain conditions. Among other things, the medical personnel are only allowed to use small arms for their own protection and the protection of their patients.

The core element of the International Humanitarian Law is the principle of expectation of reciprocity and, consequently, the expectation of a symmetric warfare. Even though cases of disregard and also abuse have been described, it can be stated that, in the warfare between states that took place during the 20th century, the Red Cross has been, in most cases, respected and spared.[7] The ideal of the medical personnel in the role of helpers and rescuers taking part in activities across the front lines has been described multiple times.[8] This had a shaping effect on the medical service; its role, task and self-conception are, thus, deeply intertwined with the spirit of the International Humanitarian Law.

1. Pattern of war in the 21st century: asymmetry[9]

During the last two centuries, the framework conditions for the use of military power have fundamentally changed, especially for the Bundeswehr. So what are the tasks of the Bundeswehr at the beginning of the 21st century? International conflict prevention and crisis management involves high intensity, as well as different forms of military operations other than war (MOOTW). High-intensity missions range from traditional, symmetric, interstate-“trinitarian”[10] warfare to Special Forces operations against terrorists. MOOTW include peacekeeping operations, military evacuation operations, combat recovery operations and humanitarian assistance. The greatest challenge, however, are conflicts such as the current conflict in Afghanistan – conflicts that oscillate between the extremes of high-intensity operations on the one side and peacekeeping operations taking place in a mainly stable and calm environment on the other. More or less as an interface between these poles, but nevertheless with a new quality of its own, these conflicts are called “low intensity conflicts” (LIC)[11], but also “new wars”[12],” “fourth generation warfare” (4GW)[13] or “hybrid wars”[14]. In such conflicts, the military personnel of the Western world face irregular such as mercenaries and child soldiers who confront them with asymmetric fighting methods. Essential characteristics of such a conflict are the lack of a key battle, spatial limits and, especially, time limits, as well as the lack of a “bracketing of war” and the accumulation of ethical dilemmas. The employment in asymmetric conflicts, thus, “does not stand in opposition to the employment in traditional combat operations but rather increases the violence and the feeling of being threatened to a degree that is even more unbearable.”[15]

The operational reality of armed forces in the 21st century is, thus, not a symmetric but a highly asymmetric one: The conflicts are not classic wars, the adversaries are not states, the use of violence is divested of its constraints[16], Rules of Engagement are only complied with by one party. In short: the International Humanitarian Law has lost its reality.

2. Military-tactical dimension

1. General information on the tactical dimension

Despite the phrase “new wars“, asymmetry is not a concept of our time: it has been described many times in military history. Clausewitz speaks of the “small war” that was a surprise to the French troops in Spain at the tactical (and strategic) level, and that required them to adapt their concept of operations. The wars in Indochina or Vietnam fought by France and the USA can be seen as failed attempts by Western armies to successfully win asymmetric conflicts.

In any case, the framework conditions for the employment of armed forces have become substantially more difficult when compared with the framework conditions of the symmetric warfare. In German Army Regulation (HDv) 100/100, this is called a “complex operational environment”. The theatre of operations often is located at a great “strategic” distance. It requires a lot of time and resources to provide supply and augmentation forces, as well as to evacuate casualties. As a rule, there is not “one adversary” but different conflict parties. Strength, location and intent of possible adversaries (“situation of the conflict parties“) are often unclear. Potential adversaries nearly always take the initiative. Compared to traditional combat operations, the areas of operations are over-dimensioned, a fact that necessitates the employment of mostly small and independent units. Defined as the so-called “CNN effect“, the close media coverage of operations entails the fact that decisions taken at the lowest tactical level can have far-reaching, up to political-strategic consequences: The staff sergeant and patrol leader becomes the “strategic NCO”.

The figure of thought of the “Three Block War”[17] was developed as the conceptual solution to the challenges of asymmetric conflicts. Whereas in the first block of buildings, there is still fighting going on, the military personnel are already performing tasks similar to those of policing in the second block, and in the third block, reconstruction efforts are already being started, and all this is happening at the same time. Here, the military personnel need to have “polyvalence at the individual level”[18], which means that they need to have the capability to combine different characteristics in one person – the capability to play the roles of fighter, policeman, diplomat, rescuer and helper in an alien or unfamiliar environment all at the same time or, at least, one after another with very short time intervals. The German Bundeswehr has already made the capabilities of “protecting, assisting, mediating and fighting” its doctrine – the Bundeswehr trademark. This means that although the classical concept of the fighter has not been replaced, it has been added to. The infantryman cannot withdraw to his specific role as a warrior anymore.

In so-called Counter-Insurgency Operations (COIN), the armed forces try to counter the asymmetric threat. COIN made the phenomenon of a “re-symmetrisation” (Münkler) very apparent because Western states increasingly use operational elements with very few members, often Special Forces but also mercenaries, and (unknowingly) start to adapt to (the tactics of) their adversaries.

It is obvious that the former, at least perceived order and role distribution on the battlefield has been replaced by the complex operational environment. Whereas in the past, there was a clear front where combat forces fought close battles and had a significantly higher risk than mission support forces employed in rear combat sectors, now, it can even be the CIMIC team that runs into an ambush and that has to conduct a fierce fire fight in order to be able to continue to accomplish its original mission afterwards and inaugurate a kindergarden.[19] The same applies also to the medical service personnel: They are exposed to a risk that is, at least, as high as the risk for combat forces. In the British after-action report from Southern Afghanistan (HELMAND province) stating experiences that took place in the phase of Operation HERRICK IV, it is shown that the military medical personnel were as much involved in battles as combat forces. The medical personnel were regularly forced to use their firearms: ”Individual medics fired hundreds of rounds [...]“.[20]

An asymmetric adversary will probably - on the basis of the politico-military situation estimate how a “post-heroic” (Münkler) nation can be hit the most effectively - knowingly target the “soft spot” of its adversary.[21] The shock of the Western states caused by such an attack, for example the attack against the ICRC HQ in Baghdad in October 2003, in particular, supports the strategic objective of insurgents in Iraq and Afghanistan. Consequently, it can be stated that, in asymmetric warfare, the general risk for the medical personnel has increased significantly.

Core element of the medical mission is the medical support provided to friendly forces.[22] The tendency to employ small – sometimes only fireteam-sized – satellite teams in overextended areas, which has been described above, poses a significant problem for medical support. During operations, medical capabilities must be deployed as far forward as possible due to the fact that, in the event of casualties, the speed of medical support is relevant for the therapeutic success and, thus, for the survivability of the patient. The military medical personnel must, thus, directly accompany patrols, which means that they will more or less stand in the front line.

1. Use of the protective emblem from the tactical perspective

The protective emblem is a paradox: Whereas we try to make vehicles and uniforms unrecognizable by using camouflage, a flaming Red Cross on white ground is used on these camouflage colours at the same time. From the tactical perspective, this paradox only makes sense when the principle of expectation of reciprocity applies, which means the respecting of the International Humanitarian Law. As stated above, asymmetric conflicts are, however, defined by the lack of the principle of expectation of reciprocity. Consequently, the Taleban do not feel bound by the Geneva Conventions. In a religiously laden conflict, Muslim countries such as Afghanistan can furthermore perceive the Red Cross as the symbol of the Crusaders, which is sometimes seen as a provocation. Already in Vietnam, the attempt to increase the security of the military medical personnel by placing the Red Cross at a central position on their steel helmet had to be abandoned when the number of personnel KIA[23] by a shot in the head significantly increased – the Red Cross turned out to have the effect of a "bullet magnet". Therefore, US military medical personnel deliberately neither wear a protective emblem on their uniforms nor have it placed on their vehicles in the operations ISAF, OEF and OIF.[24]

Beyond the possible threat, there is another aspect of the protective emblem that gives it the effect of a “magnet for requests for help”. In the theatres of operation of the armed forces, the civilian population always has a great need for medical support. For example, infant mortality in Afghanistan still is dramatically high.[25] At the same time, the local population knows about the high performance level of Western medical services but especially the German medical service. Therefore, the needy population sometimes tries to benefit from at least a part of these medical services. This applies both to fixed facilities and mobile medical service elements that participate in patrol activities and similar operations and that are clearly recognizable as military medical personnel such as, for example, mobile medical teams (MMT).

These requests for help, however, can often only be turned down because such assistance can normally not be rendered within the scope of the task and in view of the limited resources. From the PSYOPS[26] perspective, this policy sends out a counter-productive signal; it even thwarts the efforts to achieve a functioning relationship of trust between the local population and the armed forces.

1. The medical service in the fictional scenario from the tactical perspective

Experiences US troops had in Iraq and Eastern Afghanistan make it clear that, in typical combat situations, it is first of all necessary to gain fire superiority and to seek a first clarification on the tactical situation before the military medical personnel can actually begin with providing medical support. The idea behind the Tactical Combat Casualty Care (TCCC) concept of the US forces is that “first aid“ does not consist of sorting, diagnostics or first therapeutic measures but the contribution of all military personnel, and that includes the military medical personnel, to fire superiority: ”In small-unit operations, the additional firepower provided by the corpsman or medic may be essential. […] The best medicine on any battlefield is fire superiority.“[27]

Thus, the bottom line that “casualty scenarios in tactical operations usually entail both a medical problem and a tactical problem“ (Butler) seems to be essential; medical support in combat situations is necessarily more than the provision of civilian medical rescue services in strange clothes and in an austere environment. In the scenario described in the introduction, it is doubtlessly necessary to stop the adversary from having a superior elevated position as quickly as possible in order to rescue the two wounded comrades and provide them with medical care afterwards. At first, we will have to find a solution for the tactical problem and then for the medical one because the latter cannot be tackled when the first one has not been solved successfully.

From the tactical perspective, only the use of all available combat power and, thus, of all barrels including those of the medical personnel can produce the desired results. The decision not to employ the medical personnel in the fire fight and, thus, to lose fire power would reduce the probability of success and, in any case, slow down the speed of the intended redressing of the situation and the rescuing of casualties, which in turn would reduce their chances of survival in terms of the “platinum five minutes”. From the tactical-functionalist perspective, as well as from the medical perspective, the refusal of the medical personnel to participate in offensive rescuing activities involving the employment of weapons would therefore not be acceptable.

1. Conclusions from the tactical perspective

From the tactical perspective, it must be noted that, in asymmetric conflicts,

• the protective emblem can become a hazard, and
• it may be necessary to employ medical personnel more or less in a secondary function and assign them infantry tasks in order to accomplish the core mission.

Therefore, not only the military personnel of the combat forces but also the military medical personnel need to have polyvalence – though in different directions: Whereas the first complements his primary function as a fighter with his secondary function as a helper, the latter must complement his primary function as a helper with his secondary function as a warrior.

3. Legal dimension

1. General remarks on the legal dimension

What is permitted, prohibited or imperative from the legal perspective is assessed on the basis of the law being applied. This document does not discuss the questions whether and why wars must or must not be fought, or whether and why military force must or must not be applied (ius ad bellum), it rather discusses the question which law is to be applied in the event of an armed conflict when assessing individual actions (ius in bello). Hence, the International Humanitarian Law and, especially, the ”Geneva Conventions” may be considered.

In classic international law, the traditional idea of an armed conflict corresponds with the armed conflict between states.[28] Therefore, the four Geneva Conventions dated 12 August 1949[29], which are basically governing the use of the protective emblem of the Red Cross, are sticking to this idea. In accordance with Article 2 of the Geneva Conventions, these Conventions shall apply in the event of a declared war or another type of armed conflict between two or more parties. Nearly all states on earth are parties to the Geneva Conventions, the conditions of which have been long since a part of customary international law and, thus, binding even on non-signatory countries. This means that, in accordance with Article 3 of the Geneva Conventions, this situation must be defined as an international armed conflict between (partial/limited) international legal persons.[30] This quality as an international legal person results from the legal capacity in the area of international rights and obligations and the capacity to act under international law, that is, to put into effect rights and powers in judicial and other proceedings, or to enforce rights.[31] It can be limited to the International Humanitarian Law when in doubt.[32]

The state of Afghanistan, which, by the way, ratified the Geneva Conventions, is such a subject of international law, as is the case for the de facto regime of the Taliban, which had been stabilized by the end of 2001 by exercising effective control over essential parts of the Afghan territory, and which was also subject of the International Humanitarian Law in accordance with the customary international law[33] .

Since Hamid Karzai has been elected president of the interim government by the Loya Jirga, the Afghan National Assembly, in June 2002, and since the Allies had gained effective territorial control before this election at the latest, the situation in Afghanistan can no longer be seen as a battle against the state of Afghanistan or against a stabilized de facto regime.[34] The international military presence, in particular, must not be considered as an occupation within the meaning of Article 2 (2) of the Geneva Conventions, the consequence of which would be the continued applicability of the Geneva Conventions, but as a support provided to the new Afghan government.[35] Therefore, currently, neither the Taliban nor the state of Afghanistan can be classified as adversaries in an international armed conflict under the scope of international law.

If a transnationally operating terrorist organization such as Al-Qaeda can prevail in an international armed conflict remains to be seen.[36] Due to the fact that it is not recognized as a belligerent party by the opposing state, that there is no application arrangement[37] as defined in Article 3 (3) of the Geneva Conventions, and that it does not have the position of a stabilized de facto regime, the applicability of the law of international armed conflict could solely be derived from the I. Protocol Additional to the four Geneva Conventions, dated 8 June 1977.[38] In accordance with Article 1 (4) of the I. Additional Protocol, the same also applies to non-state groups such as, for example, liberation movements. 

Even if one would go as far as referring to the insurgent groups in Afghanistan as a liberation movement exercising its right of self-determination, and deriving from this the fact that the applicability of the law of international armed conflict is, in principle, possible, it would not suffice. The non-state party would have to be able and willing to apply these rules and commit itself to the application of these rules in a declaration (Article 96 (3) of the I. Additional Protocol). Apart from the fact that already the first item is subjected to doubts, despite the factual dominion exercised in some smaller regions, both the relevant will to apply the law and the signing of an application declaration would not be in conformity with the warfare logic of Al Qaeda and the rest of the Taliban and, thus, neither do exist or did happen nor can be expected in the future. Therefore, the Geneva Conventions can also not be applied via the I. Additional Protocol.

If foreign armed forces participate in a conflict that has no international character in itself on the side of and by invitation of the government of the contested territory, this adds at least a cross-border component. One might draw the conclusion that the conflict is, thereby, “internationalized”, and that, consequently, the law of international armed conflict will apply. On careful reflection, however, an international person is only added to one party to the conflict. And this cannot make up for the fact that the opposing party lacks the quality as an international person.[39] Accordingly, also in Afghanistan, the conflict is not “internationalized” by the participation of non-Afghan armed forces by invitation of the Afghan government.

At the moment, there is no international armed conflict in Afghanistan. Thus, the Geneva Conventions and the I. Additional Protocol as a whole can not be applied.

However, this does not mean that the International Humanitarian Law in its entirety cannot be applied. 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.[40] This can also be derived from the systematic position of the regulations of Article 3 of the Geneva Conventions, as well as from the fact that the II. Protocol Additional to the Geneva Conventions, dated 8 June 1977, 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.[41]

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[42] 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.[43] This has at least been true since the government opponents in Afghanistan increased their activities again in 2006.[44] Since the Federal Minister of Defence, Dr. Karl-Theodor Freiherr zu Guttenberg, assumed office, this point of view has been officially accepted by explicitly talking about “warlike conditions”.[45] Thus, this is a non-international armed conflict.

The law of non-international armed conflict will apply here.[46] Its scope of regulation is, however, significantly narrower than that of the law of international armed conflict. 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 1977. The II. Additional Protocol will only be applied when it has been ratified and when the application requirements are considered to have been fulfilled.[47] Additionally, the Martens' Clause applies,stipulated in Article 1 (2) of the I. 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.[48] 

1. Use/non-use of the protective emblem from the legal perspective

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.[49] The Red Cross and its equivalents, as well as the relevant medical personnel identification card[50] are basically the outward symbol of an existing protection status.

Presence and strength of medical units that can be easily recognized by the adversary due to the protective emblem can lead to conclusions with regard to the presence and strength of the non-medical units, especially the structure and characteristics of the adversary’s defence strategy, as well as the concentration or shifting of forces that takes place when preparing an attack. 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.[51] This is limited by the necessary trade-off between an appropriate protection of the medical personnel against erroneous or indiscriminate attacks and the operational requirements, which are to be stipulated by an officer who holds the relevant responsible position (brigade commander).[52] The marking has to be immediately restored, however, in the case of a real attack on medical units.[53] This view is partly criticized because, on the one hand, the wording of Article 39 of the First Geneva Convention (Engl.: shall be displayed / French: figurera) do not allow for such interpretation and, on the other hand, the protection of the medical personnel would be contradicted and the adversary would be tempted to attack medical personnel or at least the risk of such an attack would be increased.[54] The prohibition to deprive personnel of their protective emblems and cards laid down in Article 40 para 4 of the First Geneva Convention cannot be used as an argument in this context. 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.[55] Here, in principle, the rules of international armed conflict do not, apart from few exceptions, apply.

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. Additional Protocol as inapplicable, though,[56] one must probably presume that Article 39 of the First Geneva Convention has an equivalent in customary international law and its provisions will thus find application here,as well.

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.

1. Medical service in the fictional scenario from a legal perspective

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. 

Medical personnel are specifically protected also in non-international armed conflicts.[57] Regarding the question as to which personnel are to be considered as medical personnel, one cannot directly, but in principle, resort to the First Geneva Convention. International humanitarian law as a whole is based on a uniform definition of medical personnel. On the one hand, they include personnel whose exclusive task is to search for, collect, transport or treat wounded and sick or to prevent diseases, administrative personnel of the medical units and establishments and chaplains with the armed forces (Article 24 of the First Geneva Convention). On the other hand, they comprise auxiliary personnel who are originally tasked with other duties and are therefore regarded as combatants but are temporarily employed, after relevant training, in the medical service (Article 25 of the First Geneva Convention). 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. In this context, “exclusively” does not mean that such an assignment will have to last for the entire duration of the armed conflict. Rather, it must be a lengthy deployment, intended to last for an unspecified period of time.[58] The prohibition of misuse constitutes the limit for a change of assignment.

First, it remains in questions whether the appropriate tactical behaviour, that is shooting at the adversary’s position, may be regarded as a means to fulfil these medical tasks. “Collection” is the only term that may be considered in this context. Applying an extremely broad interpretation, one might, perhaps, even include an “aggressive collection”, that is to say helping to establish fire superiority or to overpower the adversary, whereby the actual collection only then becomes possible. The comparison with the equally binding French versions (l’enlèvement) however shows that such a broad interpretation is not covered by the wording of the contract. 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. 1 of the First Geneva Convention. [59] This rule generally refers to fixed medical installations and mobile medical units and formations. 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. 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".[60]One could further ask whether appropriate tactical behaviour may be considered as self-defence in the sense of Article 22 Para. 1 of the First Geneva Convention. 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. 

With the inclusion of the medical personnel into an attack as it is described here, the limits regarding permitted defence activities as laid down in Article 22 of the First Geneva Convention are exceeded.[61]

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. 

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.[62] The protection may be lifted only after appropriate warning and a possible period of notice have been given.[63] This means that unmarked medical personnel who are under the protection of the First Geneva Convention and the Additional Protocols must be subject to the same limitations in its conduct of action as marked personnel. 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.

The decision if and which personnel are to be employed exclusively for medical services and, as a consequence, enjoy protection, is an issue to be decided by the organisational powers of the parties to the conflict.[64] There is no obligation by international humanitarian law to exclusively employ personnel in this way. It is only obligatory to care for the wounded and sick.[65]

Therefore, it is in the relevant employer’s responsibility to decide upon the personnel’s assignment.In particular, based on the special protection enjoyed by the medical service, the individual service members have no legal claim against their own employer to be exclusively employed in the medical service .[66]

The employer’s decision to, for example, additionally assign every medical soldier infantry tasks would have the consequence that members of the medical service would no longer be employed to exclusively perform medical tasks. The special protection would become ineffective. Marking would not be permitted. Therefore, these medical soldiers would be subject to the same general regulations as their comrades. They could thus be fully employed as combatants. This would also have consequences concerning the protection and marking of vehicles. They would then no longer be used exclusively for medical purposes. Protection and marking would become obsolete and it would be justified to make full use (mounting of heavy weapons, transport of combatants and ammunition) of these vehicles, too.

Such a decision cannot, however, be left to the on-scene tactical commander, not least due to the obvious danger of misuse. It must be made by the relevant superior military authority. During missions, this could, at the very least, be the brigade commander level, which is likely to be identical with that of the contingent commander.

1. Conclusions from a legal perspective

It remains to be emphasized: 

• The Afghanistan theatre of operations is at present dominated by a non-international armed conflict. There are a much smaller number of regulations concerning applicable law than in international armed conflicts. Nevertheless, the medical personnel remain under protection.
• The protection afforded to the medical personnel under international humanitarian law is accompanied by considerable restrictions on the freedom of action and the operational employability. The narrow interpretation of the right to self-defence does not permit personnel in the role of the medical staff to actively participate in combat, e. g. in the sense of an “active rescue operation” or a “contribution to fire superiority”. 
• The restrictions on the freedom of action and the operational employability apply for the medical personnel irrespective of the marking which may be omitted upon direction by a higher echelon.
• If members of the medical service are entitled in specific situations to participate in combat, they must no longer be under the protection of international humanitarian law at that time. This would have to be done through the general assignment of tasks other than medical tasks by the employer, represented by the brigade commander (at the very least). This would not exclude the later assignment as medical personnel in the sense of Art. 24 of the First Geneva Convention.

It follows, from a legal perspective, that a corresponding decision, in favour of either the protection under international humanitarian law or the freedom of action, has to be taken in advance. This decision is driven more by tactical or operational than political or ethical considerations.

4. Ethical dimension

1. General remarks on the ethical dimension

Ethics answers the following questions: What am I to do? What am I allowed to do? 

Laws and regulations as well as Rules of Engagement (ROE) cannot necessarily provide exhaustive answers in highly complex operational situations in which decisions have to be made, even if legality essentially contributes toward legitimacy. One the one hand, predisposed solutions, however, do not always correspond to the problems at hand. On the other hand, non-justiciable values and standards in a broader field play a role in evaluation and decision-making. Unpredictable situations imply uncertainties and particularly “people who must, more than others, be prepared to be directly confronted with dying and death, suffering and cruelty are less able than others to escape their existential uncertainties.” [67] 

Srebrenica[68] has shown that ethical awareness (“moral fitness“[69]) is essential for mission accomplishment in asymmetrical conflicts also from a functional perspective.

Ethical conduct in the medical service is always in keeping with Hippocratic tradition. Behind that lies the basic understanding of the inalienable dignity and equality of all human beings, of all injured and wounded people. It is thus based, in its core, on ethics of conviction.[70] In Germany this correlates well with the classic self-image of being nonviolent in own operations – a label also made credible in the sphere of politics to a post-heroic society with ethical convictions, which led to the situation where it was the medical service that was preferably employed in the early phase of German politico-military sovereignty after reunification. In stabilisation operations, this principles finds its equivalent in the “miles protector”, who protects/helps/rescues people. [71] During local flood disasters and in peacekeeping missions, the German armed force cultivated their “image of an armed humanitarian aid group”[72], which corresponds, on the individual level, with the ideal of the “do-gooder with helper syndrome” (Keller). The self-image of “We are the good guys” in the sense of “We do not use violence” has allowed many of the medical personnel to, themselves, evade the ethical dilemmas and the intrinsic tragedy of the military profession.

The German participation in the air campaign in 1999 as part of the mission in Kosovo as well as the ISAF commitment and the current deterioration of the situation in Afghanistan has led to the realisation here in Germany that the core of the military mission is to deter, threaten and make (controlled) use of force and that the Hammerskjöld postulate [73] must not lead, therefore, to an also ethically simplified perception of future military action. Ethical dilemmas are rather inevitable constants of this profession.

For the medical service, too, there are abundantly clear limitations as to the coincidence between the Hippocratic ethics of conviction and the requirements based on ethics of responsibility that ensue from the mission. Medical contingents are established and employed to ensure the medical support to organic (including allied) forces. Given the, in most cases, very limited resources, assets may be used up quickly so that the actual mission cannot be accomplished any more. Dutch medical personnel reported from south Afghanistan that the initially forced medical care for native victims as well led to the complete exhaustion of the existing capacity for intensive care and the oxygen reserves, which made it temporarily impossible to provide own forces with medical support. This was subsequently stopped with reference to the impact on mission accomplishment. Is the life of an Afghan in need for help less worthy than that of a comrade? Here, the ethical precept of the equality of all human beings with respect to their dignity and value collides with the responsibility deriving from the military mission. Therefore, “ ‘Salus populi suprema lex esto’ applies to the community of people who are deployed on a mission abroad“[74], but only for this community.

Medical action in the field is thus confronted with a multitude of ethical challenges, even without thinking of the active use of force.

1. Use of the protective emblem from an ethical point of view

From an ethical perspective, there is no aspect that would require the use of the protective emblem. Only the ethical norms of care and the provision of the maximum protection by the superior for subordinate medical personnel apply here. This only applies if the protective function actually works, that is in symmetrical conflicts (see II.2). When knowing the threat situation and the functionality becomes reversed (i. e. the emblem poses a risk), it is virtually necessary to order the protective emblem to be omitted.

Otherwise, the protective emblem is only appellative in character, in the sense of “humanitas” being applicable here. 

1. The medical service in a fictional scenario from a ethical perspective

While the medical core business is already fraught with difficulties, the employment as an infantryman and the use of (also lethal) force connected therewith turn upside down the “primum nihil nocere” of physicians and medical personnel. 

Looking at it more closely, the ethical dilemma a parachutist or a infantry men is faced with - especially during a stabilisation operation – is not different at all: The more in-depth military training does not legitimize the more intensive use of force and does not reduce the ethical problem of causing harm to other human beings. The use of force is legitimized only under strict provisions and criteria – one example is the use of force as self-defence.

In the fictional scenario described above, the use of force is, at first, legitimized by the right to self-defence, and then by the imperative to rescue our own wounded comrades and thus prevent them from harm or even death. It becomes clear that this problem relates to ethics of responsibility in a community that shares a common destiny. This motive, which is based on ethics of responsibility - sustained by the normative idea of comradeship - applies to all service members, though, and hence also to the medical personnel. Lack of action in the sense of a rejection to assume infantry tasks is advantageous only for the enemy. The chances of survival of the own comrades decrease, and also the entire contingent’s mission to create a safe and secure environment is hampered by leaving local tactical success to the enemy.

In conclusion it can be said that, from the perspective of ethics of responsibility, an “aggressive rescue operation” is not only possible but imperative.

It is sometimes argued that all elements of the international humanitarian law must be adhered to even if there is no expectation of reciprocity. This thesis is supported by two different lines of argumentation: On the one hand, a functional line of reasoning, which considers the political success to be dependent on this (unilateral) measure, and on the other hand, the idea that the norms of International Humanitarian Law are an end in themselves in the sense of a principle based on ethics of conviction.[75] The thesis that the deliberate acceptance of tactical disadvantages and, actually avoidable, own victims resulting from it contributes to win hearts and minds is highly questionable. Indeed, rather the opposite is likely to be the case in archaic-heroic tribal societies such as Afghanistan because low operational effectiveness will lead to disrespect rather than approval. The argument of the rules of International Humanitarian Law being an end in themselves does not hold water because ethics of responsibility always have priority over ethics of conviction in borderline situations where communities share a common destiny. It is exactly this finding which makes the use of force ethically tolerable at all. Otherwise, radical pacifism would be the only consequent approach from the standpoint of ethics of conviction.

Conclusions from an ethical perspective

From an ethical perspective, it must be noted that, in asymmetric conflicts, 

• ethics of responsibility have priority over ethics of conviction;
• the necessity to wear the protective emblem is determined by the protection it provides; and 
• the employment of the medical personnel with a secondary role as infantry personnel may be necessary. 

5. Conclusion

The self-image of the medical services has been shaped by the Red Cross for 150 years. The protective emblem has, for example, found its way into many coats of arms, including that of the German Joint Medical Forces Command. The self-image was and is correlated with the “invisible flag” [76] of humanitas – with, however, a deliberate dissociation from combatant status and thus from armed units. [77]

The Bundeswehr tries to encounter the completely different situation of asymmetric conflicts with what is referred to as “transformation”. This process is aimed at better adapting the course of the German forces to current and future tasks. In the definition of the term “transformation”, a mental dimension is deliberately included, that is to say a change in self-image.[78] One core idea is that the current and future framework conditions are, and will be, different from the previous symmetric scenario in such a way that it will not be of any help to rely on the mental aspects which have been valid so far. Everything must be put under review. We will not move forward if we blindly pass on long-established basic principles (without much thinking).[79] In the process of mental transformation, the Bundeswehr has not made much progress. These shortcomings are revealed by language as an expression of thinking. Although more than 15 years have passed since the first deployments and although the Bundeswehr can look back on seven years of experience in ISAF missions, “our legal concepts are still based on the idea that there exists nothing more than the great tank-on-tank war in the state of defence and the training area.” [80] 

The above analysis reveals that also the medical personnel are confronted with unprecedented challenges resulting from the new framework conditions. The guiding principle must be to effectively counter them. This not only applies to the military commanders on operations but in particular also to concept developers, planners and trainers. 

This research draws the following key conclusions:

1. In asymmetric conflicts, the situation-dependent adaptation concerning the usage of the protective emblem and the perception of one’s role is 
2. necessary from the tactical perspective;
3. required from an ethical standpoint; and
4. legally possible in accordance with the obligations attached. 
5. If a situation can be clearly determined as asymmetric, thus implying the adversary lacking the expectation of reciprocity, 
6. the protective emblem should not be used or should be covered; [81]
7. the medical personnel should not present themselves in the special role under international humanitarian law, which in any case is not respected by the adversary, but rather in the role of military personnel with specific core medical competencies. Only by taking this step can the legal requirements be met (see III.3). The relevant decisions can be limited in time and space as appropriate. 
8. The authority to issue a change of role should, analogous to the current practice of covering the protective emblem, at the very least be given to the commander of a brigade or division.

This change of role thus constitutes the medical personnel’s polyvalency which is needed by any service member in asymmetric conflicts. Infantry personnel and medical personnel are drawing near to each other: Infantry personnel not only have to fight but must also protect, help and rescue. They sometimes even have to provide capabilities which are in the responsibility of medical service in order to save their own and their comrades’ lives.[82] The medical personnel must now be able to fight so as to help themselves and their comrades to survive. They must, however, be given appropriate training. Furthermore, they need transparency for and legal certainty about their actions.

Such an “abandonment of any specific marking of the medical service [and of the status of the military medical personnel, author’s note] does not mean at all that the idea behind the Red Cross is abandoned as well”.[83] – On the contrary: Rather, it presents the responsible realisation of medical support under asymmetrical conditions.

[1] FOB = Forward Operating Base.

[2] IED = Improvised Explosive Device (main weapon of insurgents in Afghanistan and Iraq)

[3] As are title and content of two essential works on this subject: Cf.. van Creveld, Martin, The Culture of War, New York, 2008, and Keegan, John, Die Kultur des Krieges (The Culture of War), Berlin, 1995. Cf. in addition Uhle-Wettler, Franz, Der Krieg - gestern, heute, morgen? (The War – Yesterday, Today, Tomorrow?), Berlin, 2001.

[4] Mader, Hubert M., Ritterlichkeit. Eine Basis des humanitären Völkerrechts und ein Weg zu seiner Durchsetzung (Chivalry. A basis of the International Humanitarian Law and a way to enforce it), in: Truppendienst 2/2002,
pages 122-126.

[5] One can find a good historical overview in: Vollmuth, Ralf, Die Genfer Konvention von 1864 als Meilenstein des Humanitären Völkerrechts (The Geneva Convention of 1864 as a Milestone of International Humanitarian Law),
in: Wehrmed 2/2009, pages 77-79.

[6] Or equivalent signs of medical personnel like the Red Crescent.

[7] One can find a critical opinion on this topic in: Rogge, Heinrich, Idee und Symbol des Roten Kreuzes im Truppensanitätsdienst (Idea and Symbol of the Red Cross in the Medical Service), in: Wehrwissenschaftliche Rundschau 1952, pages 18-22. Rogge refers to the experiences made especially at the Russian Front during the Second World War: „In the final stages, the emblem of the Red Cross had no protective function anymore, neither when in combat mission at the front nor during bombing attacks in the home country, it often even became a danger.“

[8] For example, in the picture “A Time for Healing“ of the American painter Robert M. Nisley depicting German and US-American soldiers who rescue casualties and provide casualty care together during the Battle of Hürtgen Forest in 1944. The picture shows a scene that was proved authentic by the two warring parties and that was to be seen several times during the period 7-9 November 1944. 

[9] The term asymmetry intentionally concentrates on the aspect of different fighting methods and not on a (e.g. technological) advantage or disadvantage in quantity or quality. The latter is accurately described with the term dissymmetry. Cf. Stahel, Albert A. und Geller, Armando, Die Wirklichkeit des Krieges oder der Prozess vom dissymmetrischen zum asymmetrischen Krieg (The Reality of War or from Dissymmetric to Asymmetric Warfare),
in: ASMZ 11/2006, pages 4-5, as well as Vego, Milan, Operational art and asymmetric warfare, in: ASMZ 11/2006, pages 9-11.

[10]  The term can be traced back to Clausewitz , meaning the Holy Trinity of ruler, army and people. Authors such as Keegan and van Creveld use this term for describing the warfare between states. One can find a critical opinion on this topic in: Cf. Herberg-Rothe, Die wunderliche Dreifaltigkeit. Clausewitz’ allgemeine Theorie des gewaltsamen Konflikts (The Strange Trinity. The General Theory of Violent Conflicts by Clausewitz), in: ÖMZ, 2/2008, pages 163-173.

[11]  Cf. van Creveld, Martin, Die Zukunft des Krieges (The Transformation of War), Gerling, München, 2001², especially pages 42.ff.

[12]  The term “new wars“ was introduced by Mary Kaldor, Neue und alte Kriege (New and Old Wars). Frankfurt/Main 2000, but it was made popular by Münkler, Herfried, Die neuen Kriege (The New Wars), Rowohlt, Reinbek bei Hamburg, 2002². It is of note that Hans Magnus Enzensberger had already made reference to the new quality of civil wars without boundaries – even if it had been an essay rather than a scientific paper: Aussichten auf den Bürgerkrieg (Outlook on Civil War), Frankfurt am Main, 1993. For criticism on the term “new wars“ cf. Gantzel, K. J., Neue Krieger? Neue Kämpfer? (New Warriors? New Combatants?), Arbeitspapier (working paper) 2/2002 of the Forschungsstelle Kriege, Rüstung und Entwicklung of the Universität Hamburg, as well as Kahl, Martin and Teusch, Ulrich: Sind die „neuen“ Kriege wirklich neu? (Are the “New Wars“ Really New?) In: Leviathan, Volume 32, Issue 3, pages 382-401 (2004).

[13]  The semantics of the succession of generations can be traced back to Lind, William, et al., The Changing Face of War: Into the Fourth Generation, in: Marine Corps Gazette, 10/1989, pages. 22-26 (1989).

[14]  Cf. Hoffmann, Frank G., Hybrid Warfare and Challenges, in: JFQ 52, 1/2009, pages 34-39.

[15]  Joas, Hans, Krieg und Werte. Studien zur Gewaltgeschichte des 20. Jahrhunderts (War and Values. Studies on the History of Violence in the 20th Century), Weilerswist, 2000, page 173.

[16]  Cf. Seliger, Marco, Sie hassen uns, wir hassen sie. Im Irak und in Afghanistan hält der Feind sich an keine Regeln (They hate us and we hate them. In Iraq and Afghanistan, the adversary does not obey any rules), In: FAS 35/2007, dated 02 September 2007, page 13. One of the key elements of the deregulation and, thus, the asymmetrization of war is the use of the own population, as well as own cultural assets and sacred buildings as shields. The regular use of suicide bombers by insurgents in Afghanistan is also not within the standards of symmetric warfare. The attacks against the Red Cross described in scenario 1 and 2 are documented as deliberate attacks against protected facilities. Cf. furthermore the proven use of white phosphorus by the Taliban. The use of white phosphorus is considered a war crime under international law due to the often massive burns that are difficult to treat with therapeutic measures. Cf. Evans, Michael, Taleban using white phosphorus, some of it made in Britain, in: The Times, dated 12 May 2009, Internet: http://www.timesonline.co.uk/tol/news/world/asia/article6269646.ece.

[17]  The term “Three Block War“ was introduced by General Krulak, the 31st Commandant of the US Marine Corps. Cf. Department of the Navy Marine Corps Combat Development Command, A Concept for Future Military Operations on Urbanized Terrain, Internet: www.mccdc.ucmc.mil/futures/ concepts/mout.pdf, pages 5f.

[18]  Geser, Hans, Die Militärorganisation im Zeitalter entgrenzter Kriegs- und Friedensaufgaben (Military Organization in the Age of Wartime and Peacetime Tasks Divested of their Constraints), in: Wiesendahl, Elmar (Editor), Neue Bundeswehr – Neue Innere Führung? Perspektiven und Rahmenbedingungen für die Weiterentwicklung eines Leitbildes (The New Bundeswehr – A New Concept of Innere Führung? Perspectives and Framework Conditions for the Further Development of a Guiding Principle), Baden-Baden, 2005, page 122. Geser distinguishes polyvalence as the symptom of the current and future employment of the armed forces on the macroscale (politics), on the mesoscale (organization) and on the microscale (individual).

[19]  As described in the after-action report of the British 16 Air Assault Brigade, Operation HERRICK IV, April-October 2006 in Southern Afghanistan, cf. Charrington R. A., Land Lessons Study UK Task Force - OP HERRICK IV HELMAND Province, 2006.

[20]  Cf. Charrington R. A., page 9.

[21]  Cf. Münkler, Herfried, Der asymmetrische Krieg. Das Dilemma der postheroischen Gesellschaft (The Asymmetric Warfare. The Dilemma of the Post-Heroic Society), in: Der Spiegel 44/2008, pages 176f.

[22]  As understood by the Effect-Based Approach to Operations (EBAO), the medical support provided to the local population serves as a “medical service effector” for the overall operation. This aspect, however, will not be considered in the following.

[23]  KIA = Killed in Action.

[24]  The same applies to other NATO nations including France and, recently, Great Britain, cf. DtVStOffz PJHQ, Lage des britischen Sanitätsdienstes (Situation of the British Medical Service), Einzelbericht (Report) 08/2009, dated 30 July 2009.

[25]  According to estimates of the WHO, Afghanistan has the third highest infant mortality rate in the world with 157 dead children per thousand live births, cf. inter alia: www.welt-auf-einen-blick.de/bevoelkerung/kindersterblichkeit.php.

[26]  PSYOPS = Psychological Operations. The PSYOPS forces use communicative methods to exert influence on selected target audiences in the deployment area in order to change their attitudes and behaviour, establish trust and support for the own mission, and, thus, contribute to force protection.

[27]  Butler, Frank K., Hagmann, J., Butler, George, Tactical Combat Casualty Care in Special Operations, in: Military Medicine 16/1 Suppl 1, page 3. (Italics as in the original document). It is no coincidence that the origin of the TCCC concept is attributable to the Special Forces but now it applies to all US forces accomplishing infantry missions. Special Forces are the promoters of the armed forces’ transformation.

[28]  Cf. Ipsen, Knut, Völkerrecht (International Law), 5th Edition, München 2004, pages 1205 f.; Epping, Volker, Confronting New Challenges. Knut Ipsen and International Humanitarian Law, in: International Humanitarian Law Facing New Challenges. Symposium in Honour of Knut Ipsen, Heidelberg 2007, pages 3 ff. (page. 5); Fleck, Dieter, The Handbook of International Humanitarian Law, 2nd Edition, Oxford 2008, page 608.

[29]  On the historical development: cf. Vollmuth, Ralf, Die Genfer Konvention von 1864 als Meilenstein des Humanitären Völkerrechts (The Geneva Convention of 1864 as a Milestone of International Humanitarian Law), in: Wehrmed 2/2009, pages 77 ff.

[30]  Ipsen, Knut, Zum Begriff des „internationalen bewaffneten Konflikts“ (On the Term “International Armed Conflict“), in: Recht im Dienst des Friedens. Festschrift für Eberhard Menzel, Berlin 1975, pages 405-425 (pages 407 ff.).

[31]Cf. Cassese, Antonio, International Law, 2nd Edition, Oxford 2005, page 72.

[32]  Cf. Ipsen, Knut, Zum Begriff des „internationalen bewaffneten Konflikts“ (On the Term “International Armed Conflict“), page 418; Schaller, Christian, Humanitäres Völkerrecht und nichtstaatliche Gewaltakteure. Neue Regeln für asymmetrische bewaffnete Konflikte? (International Humanitarian Law and Violent Non-State Actors. New Rules for Asymmetric Armed Conflicts?), Berlin 2007, page 16.

[33]  Cf. Schaller, page 17.

[34]  Cf. Schäfer, Bernhard, „Guantánamo Bay“. Status der Gefangenen und habeas corpus (Guantánamo Bay. Status of the Prisoners and habeas corpus), in: Studien zu Grund und Menschenrechten, Issue 9, Potsdam 2003, pages 21 ff., Wieczorek, Judith, Unrechtmäßige Kombattanten und humanitäres Völkerrecht (Illegal Combatants and International Humanitarian Law), Berlin 2005, page 185; Schaller, pages 16 ff.; Dreist, Peter, Dürfen Sanitätssoldaten Dienst an der Waffe leisten? (May Military Medical Personnel Be Required to Perform Armed Duties?), UBWV 2008, pages 382-393, 408-421 (pages 417 f.).

[35]  Schäfer, Bernhard, page 23.

[36]  Cf. Wieczorek, pages 185 ff.

[37]  Cf. Dreist, pages 417 f.

[38]  Cf. Schaller, page 17; Wieczorek, pages 181 ff.

[39]  Cf. Schaller, page 15; Fleck, pages 605 ff.

[40]  Schaller, page 20.

[41]  Cf. Schaller, page 20; Pictet, Jean S. (Editor), The Geneva Conventions of 12 August 1949. Commentary, Volume I, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Genf 1952, page 49; Wieczorek, page 197.

[42]  This is shown, for example, in the revised new edition of a handbook for Taliban fighters in which a code of conduct, certain techniques and multiple chains of command are defined. Cf. Ehrhardt, Christoph, Taliban: Die Herzen der Afghanen gewinnen. Neues Regelbuch. Tote Zivilisten sollen vermieden werden. Mullah Omar will irreguläre Verbände auflösen (Taliban: Winning the Hearts of the Afghan People. New Book of Rules. The Death of Civilians Should Be Prevented. Mullah Omar Wants to Disband Irregular Units), in: FAZ, dated 29 July 2009, page 2.

[43]  Cf. Wieczorek, pages 186 f.

[44]  Dreist, page 418.

[45]  Cf. Löwenstein, Stephan, Guttenberg: Kriegsähnliche Zustände in Afghanistan (Guttenberg: Warlike Conditions in Afghanistan), in: FAZ, dated 04 November 2009, page 1.

[46]  The Joint Service Regulation (ZDv) 15/2 „Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch Nr. 211“ (“International Humanitarian Law in Armed Conflicts – Handbook No. 211“) regulates that, for military operations of the Bundeswehr, the scope of application of the law of international armed conflict shall be, in principle, broadened for all kinds of armed conflicts. This is an internal and voluntary self-commitment. In the following, the actual situation of international law shall therefore be taken as a basis. Cf. Dreist, page 408.

[47]  The II. Additional Protocol shall only be applied within the territory of a party to the Geneva Conventions. It has been ratified by Germany, but not by Afghanistan or the USA. The employment of armed forces for anti-insurgency operations on foreign territory is clearly not covered by this Protocol. (Schaller, page 15) Furthermore, the insurgents would have to exercise a territorial control that enables continuous and coordinated combat actions, as well as the application of the Protocol, under a responsible command in accordance with Article 1 (1) of the II. Additional Protocol. The applicability of the II. Additional Protocol in Afghanistan is, nevertheless, a disputed issue. Cf. Dreist, pages 417 f.

[48]  Cf. Henckaerts, Jean-Marie, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, IRRC Volume 87, No. 857, March 2005; Stein, Torsten, von Buttlar, Christian, Völkerrecht (International Law), 12th Edition, Köln, München 2009, Marginal No. 1283; Hobe, Stephan, Einführung in das Völkerrecht (Introduction to the International Law), 9th Edition, Tübingen 2008, pages 560 ff.

[49]  Cf. Pictet, Commentary, page 307; Fleck, page 365.

[50]  In the following, the protective emblem of the Red Cross stands also for its equivalents. All statements apply to the medical personnel identification card accordingly.

[51]  Cf Pictet, Commentary, page 307; ZDv 15/1 No. 509; UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford 2005, page 132; Fleck, page 365.

[52]  Cf Pictet, Commentary, page 307; ZDv 15/1 No. 509; UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford 2005, page 132; Fleck, page 365.

[53]  Cf. Fleck, page 365.

[54]  See. Bock, Georg, Der Schutz sanitätsdienstlicher, ärztlicher und seelsorgerischer Aufgaben. (The protection of medical service tasks and medical and pastoral care.), in: Schöttler, Horst/Hoffmann, Bernd, Die Genfer Zusatzprotokolle. Kommentare und Analysen. (The Additional Protocols to the Geneva Conventions. Comments and Analysis.) pages 184 ff (192), Landau, 1993. MwN.

[55]  See 3.1.

[56]  Cf. footnote 49.

[57]  This follows either straight from Article 9 of the II. Additional Protocol or from the recognized protection of medical personnel deriving from customary international law. Cf. Henckaerts, Jean-Marie, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, IRRC Volume 87 Number 857 March 2005; Undisputed in: Bellinger, John B./ Haynes, William J., A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law, IRRC Volume 89 Number 866 June 2007.

[58]  Dreist, pages 387 f., 392 f.

[59]  As a specification and rule of interpretation to the concept of medical personnel laid down in Article 24 of the First Geneva Convention, Article 22 of the First Geneva Convention can also be applied accordingly in the given situation of a non-international armed conflict. 

[60]  Cf. Pictet, Commentary, page 203.

[61]  Cf. Pictet, Commentary, page 203.

[62]  Cf. Pictet, Commentary, page 307.

[63]  Article 11 para 2 of the II. Additional Protocol; see Dreist, pages 409 f.

[64]  Cf. Dreist, pages 392 f.

[65]  Article 15 of the First Geneva Convention, Article 8 of the II. Additional Protocol.

[66]  Cf. Dreist, pages 392 f.

[67]  Ebeling, Klaus, Militär und Ethik (Military and Ethics), Kohlhammer, Stuttgart, 2006, page 71.

[68]  In July 1995, 8,000 Bosniaks were killed by the Army of the Republika Srpska commanded by General Mladić. This massacre, which is classified by the International Court of Justice for the former Republic of Yugoslavia as genocide, was not prevented by the Dutch UNPROFOR soldiers of DUTCHBAT III which were present on site.

[69]  Richardson, R., Verweiy, D., Winslow, D., Moral Fitness for Peace Operations, in: Journal of Political and Military Sociology, Summer 2004; see: www.findarticles.com/p/articles/mi_qa3719/is_200407/ai_n9435072.

[70]  The distinction between the pair of the contradictory concepts “ethics of responsibility” and “ethics of conviction” goes back to Max Weber. Ethics of responsibility requires not solely following high imperatives but always and foremost looking at the consequences as the guiding principle and to also bear the responsibility for them. Cf. Weber, Max: Politik als Beruf (Politics as a Vocation), in: ibid.: Gesammelte politische Schriften (Collected Political Writings), Tübingen, 1958², pages 493-548, here, in particular, pages 539 ff.

[71]  The concept of the “miles protector” was introduced by Däniker. See Däniker, Gustav, Wende Golfkrieg. Vom Wesen und Gebrauch zukünftiger Streitkräfte (The Guardian Soldier: On the Nature and Use of Future Armed Forces), Frankfurt am Main, 1992. 

[72]  Stelzenmüller, Constanze: In der Beliebtheitsfalle. Niemand traut sich, laut nach der Qualität der deutschen Armee zu fragen (Caught in the popularity trap. Nobody dares to ask aloud about the quality of the German Army), in: Die Zeit 45/2004 as of Nov 04 2004.

[73]  „Peacekeeping is not a soldier’s job, but only a soldier can do it.“ Dag Hammersköld, second Secretary General of the United Nations and winner of the Peace Nobel Prize.

[74]  Biesold, Karl-Heinz, Medizinethische Probleme im Einsatz (Medical ethical problems on operations), in: Wehrmed Mschr 53/2009, pages 102-105.

[75]  See Ocker, Karsten, Thoughts on the Humanitarian Law in Armed Conflict: Speech Delivered at the Closing Ceremony of the 2005 International Course on the Law of Armed Conflict, in: Milit Med 172, Suppl 1007, pages 2-4.

[76]  Bamm, Peter, Die unsichtbare Flagge (The invisible flag), Kösel-Verlag, München, 1952. Bamm tells the story of an army surgeon in WW II on the eastern front trying to preserve the spirit of humanitas.

[77] In doing so, it is recognized that also during the cold war, an allegedly purely “symmetrical period”, there were approaches to reflect the experiences made at the eastern front which arrived at remarkable conclusions; see Rogge, Heinrich, Idee und Symbol des Roten Kreuzes im Truppensanitätsdienst (Idea and symbol of the Red Cross in the medical service), in: Wehrwissenschaftliche Rundschau (1952), pages 18-22.

[78]  “Transformation is the shaping of a continuous, proactive adaptation process designed to increase and sustain the operational readiness of the Bundeswehr. Transformation has a security, a social, a technological and a mostly innovative and mental dimension”, FMOD/Armed Forces Staff VI 2 as of 9 August 2004, Bundeswehr Concept, page 10.

[79]  See Wiesendahl, Elmar (ed.), Neue Bundeswehr – neue Innere Führung? Perspektiven und Rahmenbedingungen für die Weiterentwicklung eines Leitbildes (New Bundeswehr – New Innere Führung? Perspectives and framework conditions for the further development of a guiding principle.), Baden-Baden, 2005; and v. Uslar, Rolf, Von der Notwendigkeit einer neuen soldatischen Identität. Betrachtungen des Soldaten der Bundeswehr im Komplexen Einsatzraum als Beitrag zur Weiterentwicklung der Inneren Führung (The importance of a new self-image of the service members. Considerations on military personnel in complex operational areas as a contribution to the further development of the Innere Führung), thesis prepared as part of the National General/Admiral Staff Officer Course 2004 (LGAN 2004), Bundeswehr Command and Staff College, 2006.

[80]  Löwenstein, Stephan, Zwischen Panzerkrieg und Übungsplatz. Der Einsatzwirklichkeit der Bundeswehr hinkt die Politik geistig, materiell und rechtlich hinterher (Between tank-on-tank war and training area. Politics are lagging behind the Bundeswehr’s operational reality), in: FAZ as of 17 June 2009, page 1.

[81]  In parallel to writing this paper, the relevant need for action was suggested also by the DEU ISAF contingent. Initial steps towards meeting this demand have already been made. See Löwenstein, Stephan, „Neue Einsatzregeln tragen der Entwicklung Rechnung”. Parteiübergreifendes Lob für Taschenkarte. Kritik aus der Linkspartei. Sanitätsfahrzeuge künftig mit Waffenstation (“New rules of engagement take recent developments into account.” Cross-party praise for the soldier’s card. Criticism from the Left Party), in: FAZ as of 29 July 2009, page 2.

[82]  See, e. g. the developments with respect to the Combat First Responder B (Ersthelfer B).

[83] Rogge, l. c., page 19.

Authors

Lieutenant Colonel (MC, GS) Dr. Rolf von Uslar is Assistant Branch Chief, Medical Service Staff at the Federal Ministry of Defence, Bonn

Second Lieutenant of the Reserve Florian van Schewick is just finishing his legal studies at the University of Bonn

Date: 01/12/2010

Source: MCIF 2/2010