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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
General protection of medical duties
[p.1423] Article 10
-- General protection of medical duties
[p.1424] Heading of the article: General protection of medical duties
4678 It will be recalled that the Diplomatic Conference attached legal significance to the headings of the articles of the Protocols. In
most cases the heading of the provision merely indicates the subject
matter, without posing particular difficulties of interpretation. In
this case the term "medical duties" requires some elucidation, since
it does not occur in the text, but only in the heading of the
4679 Article 10 provides that medical activities in a broad sense may be freely exercised and performed. It thereby protects not only
doctors, but also any other persons engaged in such activities
professionally. Therefore the term "medical duties" refers to medical
activities, i.e., to the tasks which personnel perform in accordance
with their professional obligations when they give care or treatment.
In the French text this concept is rendered by the expression "la
mission médicale", which is perhaps not quite as precise as "medical
duties" in English.
4680 This provision is aimed at strengthening the basic principle that the wounded and sick shall be protected. (1) To that end it
establishes a general protection of medical and paramedical
personnel. In particular, it is a matter of ensuring immunity for
civilian doctors who care for patients without forming part of
medical personnel assigned to medical units within the meaning of
' (Protection of medical and religious personnel) ' and 11
' (Protection of medical units and transports), ' of the Protocol.
The problem may arise in different ways, depending on the
organization of medical services in each of the countries concerned,
but this article was adopted in the spirit of making available all
medical assistance, whether civilian or military, to the wounded and
sick; it does not cover the case of civilians without medical
training who spontaneously lend aid to the wounded and sick. The
supportive role of the civilian population is dealt with in Article
' (Relief societies and relief actions), ' paragraph 1.
4681 The Conventions do not provide for such protection specifically. Common Article 3
is, a fortiori, silent on this point. However, it
should be noted that [p.1425] protection of medical duties follows
from the principle of protecting the wounded and sick and is inspired
by Article 18, paragraph 3
, of the first Convention, which states
that "no one may ever be molested or convicted for having nursed the
wounded or sick". (2) Paragraphs 1 and 2 establish the neutrality of
medical activities and guarantee that they may be freely carried out
in accordance with medical ethics. These rules have been taken from
the ICRC draft (Article 16) (3) and are also contained in Article 16
of Protocol I ' (General protection of medical duties) '. (4) The
major problem underlying the protection of medical duties lies in the
preservation of "professional confidentiality" of medical
practitioners, a question which is closely related to the still
controversial principle that it is wrong to inform on patients to the
4682 The ICRC endeavoured to find a flexible solution, leaving the decision to the doctor and placing in him the confidence he
deserved. (5) To this end the draft provided that:
"no person engaged in medical activities may be compelled to give to any authority information concerning the sick and the
wounded under his care should such information be likely to
prove harmful to the persons concerned or to their families".
4683 It should be noted that this was a moderate proposal, for medical circles had repeatedly expressed views against reporting patients to
the authorities, particularly at the conferences of the International
Law Association, on the basis of the idea that the wounded and sick
would not seek medical attention if they feared being denounced. (6)
4684 During the Conference the proposal came up against the fear that, if such a rule were introduced in the Protocol, it would prejudice
the national sovereignty of States and violate the principle of
non-interference with the internal affairs of States, reaffirmed by
' (Non-Intervention), ' paragraph 2, of the same Protocol.
The problem proved to be particularly delicate in the context of
non-international armed conflict. Committee II discussed this at
length; as it was impossible to achieve a solution acceptable to all
in a first Working Group, a second had to be called, following the
submission of a very large number of oral amendments in plenary
meetings of the Committee. (7) Paragraphs 3 and 4 are the result of
all this work, which resulted in a laborious and rather
unsatisfactory compromise; they guarantee that the professional
obligation of medical personnel to maintain confidentiality will be
respected and they prohibit punishing doctors who refuse to give
information. In fact, these two paragraphs form a single clause which
was separated into two for reasons of brevity and clarity. (8) These
guarantees [p.1426] are useful and even essential, but by making them
"subject to national law" their scope could be greatly reduced.
4685 This paragraph guarantees the principle of the neutrality of medical activities by stating that "under no circumstances shall any
person be punished for having carried out medical activities
compatible with medical ethics, regardless of the person benefiting
4686 This rule refers not only to doctors, but also to any other persons professionally carrying out medical activities, such as
nurses, midwives, pharmacists and medical students who have not yet
4687 The term "medical activities" should be interpreted very broadly. The concept is broader than that of medical care and treatment. A
doctor not only treats patients, he may also be called upon to issue
death certificates, vaccinate people, make diagnoses, give advice
etc. (9) Medical assistance should always be neutral; it should not
be considered as taking a stand on the conflict because of those
benefitting from this assistance. The criterion of when to undertake
medical activities is based on purely humanitarian considerations,
regardless of any other factors. To perform medical activities for
the benefit of any person, including persons belonging to the adverse
party, is not only lawful, but even a duty for those who are
4688 Ethics (or deontology) means the science of duty or moral obligation. (10) The term is not only used in connection with the
medical profession, but reference is usually made to medical ethics,
and this is what is meant here. It consists of moral duties incumbent
on the medical profession. Such duties are defined by the national
and international corps of the medical profession. (11)
4689 Those who have sworn the Hippocratic Oath to protect human life in all circumstances are allowed a wide margin of appreciation under
medical ethics. Thus someone carrying out medical activities could
not be punished for the mere fact of carrying out the duties
incumbent upon him, irrespective of whether he acted spontaneously or
whether he was asked to do so.
4690 The obligation to refrain from punishment is addressed to all authorities capable of meting out punishment, including both the
government in power and the authority controlling part of the
territory in accordance with Article 1
of the Protocol ' (Material
field of application). '
4691 The reference to punishing is meant to cover all forms of sanction, including both penal and administrative measures; all these
[p.1427] Paragraph 2
4692 Paragraph 2 establishes the principle of the free exercise of medical activities, i.e., medical personnel should be able to work
without compulsion, guided only by professional ethics. Thus it is
specifically prohibited to compel those carrying out medical
activities to commit any act or to refrain from acting in a way which
would be contrary to "the rules of medical ethics or other rules
designed for the benefit of the wounded and sick, or this Protocol".
4693 It should be noted that in addition to the mention of medical ethics reference is made to "other rules". This is, in particular,
because of the fact that in some countries medical ethics prohibit
doctors from co-operating in medical procedures undertaken by
personnel which are not officially qualified. (12) This would apply
for example to a medical student. The article refers to the rules of
medical ethics which protect the wounded and sick, as opposed to
those which are concerned only with the interests of the medical
profession; it also refers to other rules designed for the same
purpose, and applicable in specific cases. (13)
4694 The reference to the provisions of the Protocol endorses the rules of protection already contained in it, for instance, the rule
prohibiting "cruel treatment such as torture, mutilation or any form
of corpora punishment" (Article 4
-- ' Fundamental guarantees, '
paragraph 2(a)). Compelling a doctor to refrain from acting, for
example, would be tantamount to prohibiting him from caring for the
wounded or sick, and this would in any case constitute a breach of
the principle that protection and care are due to the wounded and
sick as laid down in Article 7
' (Protection and care). '
4695 Amongst the cases of being compelled to perform acts which were most often raised during the discussions in Committee, mention should
be made of administering drugs to prisoners in order to modify their
behaviour and obtain information; one delegation even wanted this to
be explicitly prohibited and submitted an amendment to that
effect. (14) Medical experiments are another example.
4696 Medical ethics impose an obligation of confidentiality on doctors; a doctor is obliged to be discreet regarding the nature of
the complaint of his patient, and in general not to divulge any
information that might be harmful to his patient or the latter's
relatives. Moreover, the question whether doctors are ever allowed to
report on their patients to the authorities, i.e., to denounce them,
is added to the principle of medical confidentiality. In the eyes of
many representatives of the medical profession, this question is also
an integral part of medical ethics.
4697 In ethical terms, the rule against denunciation does not mean
that information may never be given; the doctor has a certain measure
of freedom of action to follow his own conscience and judgment.
4698 The aim of this paragraph is to establish protection and respect for medical activities while preserving the obligation of
professional confidentiality. For this purpose it provides that the
professional obligations of those engaged in medical activities
regarding information, which they may acquire concerning the wounded
and sick under their care, must be respected, but always subject to
national law. Being subject to national law was the price paid for
this rule. This formula was finally retained following lengthy
discussions in the Working Group.
4699 What is meant by national law? It refers here not only to the law in force at the start of the conflict, but also to any new
legislation introduced and brought into force by a State after the
start of the conflict. (15) This legal situation, the result of a
compromise, has its shortcomings in that it might endanger the
special protection to which the wounded and sick should be entitled.
4700 In fact, national law, in a situation of conflict fulfilling the criteria of Article 1
of Protocol II ' (Material field of
application), ' will not always be known to the adverse party if it
has changed during hostilities. If there is any doubt regarding a
doctor's obligations towards the authorities, many of the wounded
would risk suffering and dying, rather than risk being denounced. An
obligation to systematically reveal the identity of the wounded and
sick would divest the principle of the neutrality of medical
activities of all meaning.
4701 Finally, it is clear that in practice, when hostilities have reached an advanced stage, two separate sets of rules may exist
concurrently. It is up to each authority to reach a judgment on what
attitude it intends to take with regard to military requirements and
with regard to its humanitarian obligations. If humanitarian
principles and the aim of the Protocol, i.e., safeguarding the lives
of the wounded, are taken into account, the laws should allow medical
personnel a sufficient measure of freedom and responsibility to
perform their duties.
4702 The obligation to give notification of communicable diseases laid down in the ICRC draft and included in Article 16
of Protocol I
' (General protection of medical duties) ' is not mentioned here,
since such a measure is included in the national legislations of
virtually all countries.
4703 Paragraph 4 is the corollary of paragraph 3. As indicated above, they appear as two separate paragraphs for the sake of clarity.
Respect for medical activities and professional obligations as
implied therein would be of no practical significance if those
carrying out such activities could be penalized for respect in the
principle of confidentiality, by refusing or failing to give
information concerning patients, as such confidentiality is itself a
[p.1429] 4704 The conclusion was reached that it would be necessary for the text to provide explicitly that it is prohibited to penalize people
engaged in medical activities for no other reason than that they had
failed to give information on the wounded and sick in their care.
Such conduct should not be considered as a criminal offence. (16)
4705 The prohibition on such penalization concerns all types of punishment, penal as well as administrative sanctions, such as, for
example, closing down a medical practice. Again, making the rule
subject to national law reduces the value of the principle that is
established and it has the same effect as in the preceding paragraph.
Three points deserve mention in this respect:
-- This provision lays down that the confidentiality that may be kept by anyone engaged in medical activities regarding the
wounded and sick under his care, is legitimate, but subject to
national law. Thus, in accordance with the principle of penal
law, ' nullum crimen sine lege, ' if there is no national law on
the subject, a doctor cannot be penalized in any way for
maintaining silence. This stand cannot be interpreted as taking
sides in the conflict.
-- Promulgation of new rules during the conflict implies an obligation for the authorities to inform those to whom those
rules are addressed.
-- The principle that the law may not be applied retroactively should be respected in accordance with Article 6
prosecutions), ' paragraph 2(c).
4706 In general it should be noted that if anyone engaged in medical activities were to be prosecuted for failing to comply with the law,
he would in any case enjoy the legal guarantees provided in Article 6
of the Protocol ' (Penal prosecutions). '
' S.J. '
* (1) [(1) p.1424] General principle of protection laid down in Art. 7 of the Protocol;
(2) [(2) p.1425] See ' Commentary I, ' pp. 192-193;
(3) [(3) p.1425] Cf. ' Commentary Drafts, ' pp. 148-149;
(4) [(4) p.1425] Cf. commentary Art. 16, Protocol I, supra, p. 197;
(5) [(5) p.1425] O.R. XI, p. 146, CDDH/II/SR.16, para. 26;
(6) [(6) p.1425] Cf. ' Commentary Drafts, ' pp. 148-149. Cf. also introduction to this Part, supra, p. 107;
(7) [(7) p.1425] Cf. O.R. XIII, pp. 82-87 and 126-129, CDDH/221/Rev.1, and O.R. XI, pp. 447-456, CDDH/II/SR.41,
paras. 1-50, and pp. 457-463, CDDH/II/SR.42, paras. 1-45;
(8) [(8) p.1425] Ibid., p. 494, CDDH/II/SR.44, para. 53;
(9) [(9) p.1426] Cf. CE/7b, paras. 21-23;
(10) [(10) p.1426] As defined in the Shorter Oxford Dictionary (1978), p. 520;
(11) [(11) p.1426] The World Medical Association has adopted a code of ethics, as well as "rules of medical ethics in
time of war". Though they have no binding force under
international law, they serve as a point of reference (cf.
commentary Art. 16, Protocol I, supra, p. 197);
(12) [(12) p.1427] Cf. O.R. XI, p. 150, CDDH/II/SR.16, para. 46;
(13) [(13) p.1427] Ibid., p. 183, CDDH/II/SR.19, para. 59
(Statement by the Rapporteur of the Committee);
(14) [(14) p.1427] Ibid., p. 149, CDDH/II/SR.16, para. 43;
(15) [(15) p.1428] Cf. ibid., pp. 495-496, CDDH/II/SR.44, paras. 54-63;
(16) [(16) p.1429] This principle was set ut in paragraph 5 of the ' Rules to ensure and care for the wounded and sick,
particularly in time of armed conflict, ' as drawn up by
the World Medical Association, the International Committee
of Military Medicine and Pharmacy and the ICRC and as
amended in 1983. Cf. Introduction to this Part, supra, p.
1403. The reservation made regarding national legislation
therefore concerns the question of denunciation, and not
professional confidentiality in accordance with medical
ethics within the meaning of paragraph 1 of this article;