Wounded Combatants, Military Medical Personnel, and the Dilemma of Collateral Risk

Abstract

This Article outlines an existing interpretive conflict regarding the extension of a proportionality obligation to commanders where an attack may present risk to wounded and sick member of the armed forces, military medical units and facilities, as well as military medical and religious personnel. Particular attention is directed at the military wounded and sick, as this category is specifically addressed by both parties — the ICRC 2016 Commentary to the First Geneva Convention, and the U.S. Department of Defense 2015 Law of War Manual — of the interpretive divide. This Article insists that both approaches offered by these particular sources are defective for being either cavalier with the extension of IHL, or dismissive of humanitarian concerns. This Article concludes by acknowledging an alternative approach, the Martens Clause, which by its basic nature provides both a reasoned method of addressing the humanitarian concerns of protected the wounded and sick members of the armed forces while remaining rooted in substantive IHL.

Keywords: International Humanitarian Law; Law of Armed Conflict; Law of War; Geneva Convention; Wounded and Sick; Military Medical Personnel; Proportionality

JEL Classification: K10; K19; K39