1 The Washington Post, “President Bush's Address to a Joint Session of Congress and the Nation”, 20 September 2001, available at: https://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddress_092001.html (all internet references were accessed in October 2021); Wynn-Pope, Phoebe, Zegenhagen, Yvette and Kurnadi, Fauve, “Legislating Against Humanitarian Principles: A Case Study on the Humanitarian Implications of Australian Counterterrorism Legislation”, International Review of the Red Cross, Vol. 97, No. 897–898, 2015, pp. 235–61CrossRefGoogle Scholar; Gleeson, Kathleen, Australia's “War on Terror” Discourse, 1st ed., Routledge, London, 2016CrossRefGoogle Scholar; Jethro Mullen and Margot Haddad, “‘France is at War,’ President Francois Hollande Says After ISIS attack”, CNN, 16 November 2015, available at: https://edition.cnn.com/2015/11/16/world/paris-attacks/index.html, quoting the then French President: “We are in a war against terrorism, jihadism, which threatens the whole world. […] Terrorism will not destroy France, because France will destroy it.” However, from 2009, the then President of the United States, Barack Obama, rebranded the term of global war against terrorism to the one of “Overseas Contingency Operations”. See David R. O'Leary, The United States’ Overseas Contingency Operations/Global War on Terror: A Military Revolution?, Master's Thesis, Homeland Security Digital Library, 21 May 2014, available at: https://www.hsdl.org/?view&did=760770; and Scott Wilson and Al Kamen, “‘Global War on Terror’ is Given New Name”, Washington Post, 25 March 2009, available at: https://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html?hpid=topnews; John Davis, “Assessing Obama's Efforts to Redefine the War on Terror”, in John Davis (ed.), The Barack Obama Presidency: A Two Year Assessment, Palgrave Macmillan, New York, 2011.

2 Milanovic, Marko, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case”, International Review of the Red Cross, Vol. 89, No. 866, 2007CrossRefGoogle Scholar; O'Connell, Mary Ellen, “The Legal Case Against the Global War on Terror”, Case Western Reserve Journal of International Law, Vol. 36, No. 2, 2004Google Scholar; Humanitarian Policy Group, “Humanitarian Action and the ‘Global War On Terror’: A Review of Trends and Issues”, HPG Briefing, Overseas Development Institute, London, July 2003, available at: https://cdn.odi.org/media/documents/355.pdf.

3 Vladimir Putin, “Opinion: Why we Must Act”, The New York Times, 14 November 1999, available at: https://www.nytimes.com/1999/11/14/opinion/why-we-must-act.html.

4 Ministère de l'Europe et des affaires étrangères, “La force conjointe G5 Sahel et l'Alliance Sahel”, France Diplomatie, February 2021, available at: https://www.diplomatie.gouv.fr/fr/politique-etrangere-de-la-france/securite-desarmement-et-non-proliferation/terrorisme-l-action-internationale-de-la-france/l-action-de-la-france-au-sahel/article/la-force-conjointe-g5-sahel-et-l-alliance-sahel; U.S. Department of State, “The Global Coalition to Defeat ISIS”, About Us, available at: https://www.state.gov/about-us-the-global-coalition-to-defeat-isis/; Global Coalition to Defeat Daesh/ISIS, available at: https://theglobalcoalition.org/en/. See also for example, the qualification by the governments of Chad, Central African Republic (CAR), Ethiopia, Indonesia and Myanmar of the opposition groups with the “terrorist” label. Ethiopia: On 6 May 2021, the House of Peoples’ Representatives unanimously adopted Resolution No. 10/2021 by majority vote to designate the Tigray People's Liberation Front (TPLF) and Oromo Liberation Army (OLA)/Shene as terrorists, endorsing the resolution adopted by the Council of Ministers on 1 May 2021; Elisa Meseret, “Ethiopia Charges Prominent Opposition Figure with Terrorism”, AP News, 19 September 2020, available at: https://apnews.com/article/race-and-ethnicity-addis-ababa-abiy-ahmed-ethiopia-terrorism-c5b1f95bb4eb2258767c2676e665a2dd. Chad: The Chadian transitional government has purportedly referred in the preamble of its transitional Charter to the Front for Change and Concord in Chad (FACT) rebels as terrorists: see N'Djaména Actu, “Charte de Transition de la République du #Tchad”, 21 April 2021, available at: https://www.ndjamenaactu.com/charte-de-transition-de-la-republique-du-tchad/. However, it seems that the signed version of the Charter changed the term from “terrorists” to “mercenaries”: Charte de Transition de la République du Tchad, available at: https://presidence.td/wp-content/uploads/2021/04/charte-de-transition-tchad.pdf, but the “terrorist” version of the Charter still remains online. See also, Paul-Simon Handy, Chad: Democratisation Challenges and Limits of International Intervention (ARI), Real Instituto Elcano, 6 June 2008, available at: http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/sub-saharan+africa/ari59-2008: “The increased oil revenues particularly enhanced Deby's ability to further militarise his regime by (mis)using the terrorist metaphor and attracting international support. By describing his political opponents as terrorists, Deby is not only postponing necessary democratic reforms but he is also trying to secure military support from countries like France and the US.” CAR: In a communiqué released on 20 April 2021 (No. 009/MISP/DIRCAB/SP.21), the Government of CAR declared the armed groups Anti-balaka, Retour, Réclamation et Réhabilitation (3R), Mouvement patriotique pour la Centrafrique (MPC), Unité pour la paix en Centrafrique (UPC), Front populaire pour la renaissance de la Centrafrique (FPRC) and the Coalition of Patriots for Change (CPC) as terrorist groups and no longer as politico-military groups (copy available with the author). Myanmar: The Tatmadaw have labelled the National Unity Government a terrorist group. Reuters, “Myanmar's Junta Brands Rival Government A Terrorist Group”, 8 May 2021, available at: https://www.reuters.com/world/asia-pacific/myanmars-junta-brands-rival-government-terrorist-group-2021-05-08/. Indonesia: Indonesia has designated West Papuan independence fighters as “terrorists”. New Zealand Herald, “Terrorist Tag in West Papua Could Worsen Racism: Rights Group”, 7 May 2021, available at: https://www.nzherald.co.nz/world/terrorist-tag-in-west-papua-could-worsen-racism-rights-group/G3LB5UWQV5LNT2RMOMBCRFEFOI/.

5 The 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft; The 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; The 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; The 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; The 1979 International Convention against the Taking of Hostages; The 1980 Convention on the Physical Protection of Nuclear Material; The 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; The 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf; The 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection; The 1997 International Convention for the Suppression of Terrorist Bombings; The 1999 International Convention for the Suppression of the Financing of Terrorism.

6 A draft convention that would include a definition of terrorism in its article 2 has been under negotiation since 1996 (for now twenty-five years) by the United Nations General Assembly (UNGA) (Draft Comprehensive Convention on International Terrorism). For more information, see United Nations, Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996, available at: https://legal.un.org/committees/terrorism/.

7 States keep their own sovereignty in deciding which groups or individuals shall be considered as terrorist within their domestic jurisdiction without prejudice of other international procedures such as the one under the United Nations Security Council (UNSC).

8 See the reference made by the French to “armed terrorist groups” (GAT in French): Ministère des Armées, Communiqué de presse, Opération Barkhane: Frappe contre un rassemblement de membres d'un groupe armé terroriste dans la région de Douentza, 7 January 2021, available at: https://www.defense.gouv.fr/english/salle-de-presse/communiques/communique-de-presse_operation-barkhane_frappe-contre-un-rassemblement-de-membres-d-un-groupe-arme-terroriste-dans-la-region-de-douentza; Ministère des Armées, Réaction du ministère des Armées au rapport de la Minusma sur les frappes de janvier au Mali, 30 March 2021, available at: https://www.defense.gouv.fr/actualites/articles/reaction-du-ministere-des-armees-au-rapport-de-la-minusma-sur-les-frappes-de-janvier-au-mali.

9 International Criminal Tribunal for the Former Yugoslavia, The Prosecutor v. Fatmir Limaj et al., Judgment (Trial Chamber II), IT-03-66-T, 30 November 2005, paras. 135–70.

10 Djamel Ameziane (United States), Inter-American Commission on Human Rights, Merits Report No. 29/20, Case 12.865, 22 April 2020, paras. 126–7, 131 and 133.

11 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 1(1); International Criminal Tribunal for Rwanda, The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgment and Sentence (Trial Chamber I), 27 January 2000, para. 257; International Criminal Tribunal for the Former Yugoslavia, The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Judgment (Trial Chamber II), 30 November 2005, para. 89; The Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Judgment (Trial Chamber I), 3 April 2008, para. 60; The Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Judgment (Trial Chamber II), 10 July 2008, paras. 194–205. Under Article 3 common to the four Geneva Conventions, it would be an even lower threshold. See the International Committee of the Red Cross (ICRC) Commentary of 2021 to Article 3 Common to the Four Geneva Conventions, paras. 463 ff, and its accompanying footnotes. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=31FCB9705FF00261C1258585002FB096. In order for a non-State armed group to be sufficiently organized to become a Party to a NIAC, it must possess organized armed forces. Such forces “have to be under a certain command structure and have the capacity to sustain military operations”. (emphasis added).

12 ICRC Commentary of 2021 to Article 3 Common to the Four Geneva Conventions, paras. 915 and 916. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=31FCB9705FF00261C1258585002FB096. Para. 915: “The recognition that serious violations of common Article 3 amount to war crimes has opened new avenues for both international courts and tribunals and domestic courts to prosecute alleged offenders. International courts and tribunals, such as the ICTY, the ICTR, the ICC, the SCSL and the Iraqi Special Tribunal, have been set up to prosecute alleged offenders for serious violations of common Article 3, among other international crimes.” (emphasis added). Para. 916: “Alleged perpetrators can be prosecuted by the courts of the State on whose territory the offences were committed, the State of nationality of the victim, or the State of their own nationality. In non-international armed conflicts, these three possible States will mostly be one and the same, namely the territorial State.”

13 This purpose is clear from the ICRC Commentary of 2016 to GC I on Article 3 Common to the Four Geneva Conventions, paras. 861 and 864. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC. Para. 861: “This clause, which affirms that ‘[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict’, is essential. It addresses the fear that the application of the Convention, even to a very limited extent, in cases of non-international armed conflict may interfere with the de jure government's lawful suppression of armed activity. This clause makes absolutely clear that the object of the Convention is purely humanitarian, that it is in no way concerned with the internal affairs of States, and that it merely ensures respect for the essential rules of humanity which all nations consider as valid everywhere, in all circumstances.” Para. 864: “This provision confirms that the application of common Article 3 – or, perhaps more accurately, a State's acknowledgement that common Article 3 and customary IHL obligations apply to a conflict involving a non-State armed group – does not constitute any recognition by the de jure government that the adverse Party has any status or authority of any kind; it does not limit the government's right to fight a non-State armed group using all lawful means; and it does not affect its right to prosecute, try and sentence its adversaries for their crimes, in accordance with its own laws and commensurate with any other international legal obligations that may apply to such procedures. The same holds true in respect of the conclusion of special agreements. Indeed, the application of common Article 3 to a non-international armed conflict does not confer belligerent status or increased authority on the non-State armed group.” (footnote citation omitted).

14 Convention de Genève du 22 août 1864 pour l'amélioration du sort des militaires blessés dans les armées en campagne, Art. 6 (Convention of 1864).

15 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art.16(1); and AP II, Art. 10(4).

16 See, for example, the definition put forward in 18 U.S. Code (United States), Arts 2339A and 2339B; Criminal Code (Canada), Arts 83.03(b) and 83.19; Criminal Code (Niger), Art. 399.1.21; see also UNGA, Note by the Secretary-General on Extrajudicial, Summary or Arbitrary Executions, UN Doc. A/73/314, para. 33; Dustin A. Lewis, Naz K. Modirzadeh and Gabriella Blum, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism, Legal Briefing, Harvard Law School Program on International Law and Armed Conflict, September 2015, pp. 63 and 100.

17 United States District Court for the Southern District of New York, United States v. Shah, 474 F. Supp. 2d 494 (S.D.N.Y. 2007); UNGA report, UN Doc. A/73/314, para. 34; P. Wynn-Pope, Y. Zegenhagen and F. Kurnadi, above note 1, p. 247, for the examples of trials in the United States; see also the examples given on Afghanistan at para. 8 and of accusations against the non-governmental organization (Interpal) of having financed terrorism activities for the sole fact of having been present and working only in Palestinian territories at para. 10 in Lenfant, François, Broekhoven, Lia van and van Lierde, Frank, “Les conséquences de la guerre contre le terrorisme sur le monde des ONG”, Cultures & Conflits, Vol. 76, 2009Google Scholar, available at: https://journals.openedition.org/conflits/17779. See Sen Kasturi and Tim Morris, Civil Society and the War on Terror, Intrac, Oxford, 2008; Nolan Guigley and Belinda Pratten, Security and Civil Society: The Impact of Counter-Terrorism Measures on Civil Society Organisations, National Council for Voluntary Organisations, London, 2007, which both demonstrate that most accusations levelled against non-governmental organizations were unfounded at para. 10.

18 This article uses the term “medical mission” in its broad sense to describe the entire set of medical activities, medical personnel, units, duties, equipment and transports aimed at the civilian population in general, and in particular to all wounded and sick persons, without discrimination, in times of armed conflict.

19 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 16–22; AP I, Arts 8–31; AP II, Arts 7–12; and Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (Customary IHL Rules), available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1, Rules 25–30, 109 and 111.

20 Ibid.

21 Bouchet-Saulnier, Françoise and Whittall, Jonathan, “An Environment Conducive to Mistakes? Lessons Learnt From the Attack on the Médecins sans Frontières Hospital in Kunduz, Afghanistan”, International Review of the Red Cross, Vol. 100, No. 1-2-3, 2018CrossRefGoogle Scholar.

22 UNSC Res. 2286, 3 May 2016.

23 Médecins sans Frontières (MSF), “MSF International President to UN Security Council: ‘This Failure Reflects a Lack of Political Will’”, 28 September 2016, available at: https://www.msf.org/msf-international-president-un-security-council-failure-reflects-lack-political-will. World Health Organization, Report on Attacks on Health Care in Emergencies, 2016, p. 7, available at: https://www.who.int/hac/techguidance/attacksreport.pdf.

24 UNGA Res. 60/288, 20 September 2006. See the updated 2021 strategy: UNGA, The United Nations Global Counter-Terrorism Strategy: 7th Review: Draft Resolution/Submitted by the President of the General Assembly, available at https://digitallibrary.un.org/record/3930201?ln=fr.

25 UNSC Res. 373, 28 September 2001; and UNSC Res. 1624, 14 September 2005. See the UNSC CT Committee, description available at: https://www.un.org/securitycouncil/ctc/content/our-mandate-0.

26 UNSC Res. 1456, 20 January 2003, para. 6; UNSC Res. 1787, 10 December 2007, preamble; UNSC Res. 2129, 17 December 2013, preamble, paras. 18 and 21; UNSC Res. 2220, 22 May 2015, preamble, paras. 2 and 3; UNSC Res. 2354, 24 May 2017, preamble, para. 2(e); UNSC Res. 2396, 12 December 2017, preamble, paras. 22 and 34; UNSC Res. 2427, 9 July 2018, preamble, paras. 12 and 13.

27 See, for example, UNGA Res. 72/133, 16 January 2018, para. 68; UNGA Res. 72/180, 30 January 2018, paras. 1, 5(a), 5(o) and 7; UNGA Res. 72/284, 26 June 2018, para. 79; UNGA Res. 73/139, 17 January 2019, para. 69; and UNGA Res. 73/174, 17 January 2019, paras. 2 and 14.

28 UNSC Res. 2462, 28 March 2019, p. 1 and paras. 5–6, 20 and 24; UNSC Res. 2482, 19 July 2019, p. 2 and para. 16.

29 See above notes 4 and 26.

30 See UNSC, Letter Dated 3 June 2020 from the Chair of the Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism and the Chair of the Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015) Concerning Islamic State in Iraq and the Levant (Da'esh), Al-Qaida and Associated Individuals, Groups, Undertakings and Entities Addressed to the President of the Security Council, UN Doc. S/2020/493, 3 June 2020, para. 84; see also UNGA, above note 16, paras. 48–52, 84, 85(a) and (b), 86, 89(d) and (g) and 90(a).

31 See Convention of 1864, above note 14, Art. 6; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 12; and Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Art. 12.

32 The principle of humanity forbids the infliction of all suffering, injury or destruction not necessary for achieving the legitimate purpose of an armed conflict.

33 Convention of 1864, above note 14, Art. 6.

34 In that regard, the 1864 Geneva Convention adopted a distinctive emblem (the Red Cross) at its article 7, to signal the neutral status of medical personnel, facilities and transport. However, no such provision has been provided in AP II regarding the use of the medical protective emblem under the control of non-State parties to the armed conflict.

35 Convention of 1864, above note 14, Arts 1–4.

36 Convention of 1864, above note 14, Arts 2 and 5.

37 Convention of 1864, above note 14, Art. 6.

38 It is interesting to note that GC I, at Article 18, uses the terms “inquiété” (worried) and “condamné” (convicted) in its French version while its English version uses the terms “molested” and “punished”. However, this difference of language cannot be found in the Additional Protocols. AP I, at Article 16(1), and AP II, at Article 10(1), use the term “puni” in their French version and use its exact equivalent in the English version: “punished”.

39 Convention of 1864, above note 14, Arts 2 and 5; GC I, Art. 18; AP I, Art. 16; and AP II, Art. 10(1).

40 AP I, Art. 16(2); AP II, Art. 10(2); the 1864 Geneva Convention does not contain an explicit mention to medical ethics but only refers to the duty to care humanely and without discrimination.

41 See Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, ICRC, Geneva, 2009, available at: https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf.

42 Prisoners of war are also entitled to hygiene and medical attention pursuant to Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Arts 29–32.

43 GC IV, Art. 4(A)(1)–(3) and (6); and AP I, Art. 43(1).

44 GC IV, Art. 16; GC I, Art. 12; GC II, Art. 12; and GC III, Art. 30.

45 AP I, Art. 8(A).

46 Customary IHL Rules 109–11.

47 GC IV, Art. 3(1).

48 GC IV, Art. 3(2).

49 AP II, Arts 7–11; and AP I, Arts 10–17.

50 AP II, Art. 7(1).

51 AP II, Art. 7(2); Customary IHL Rule 110.

52 Cairo Declaration on Human Rights in Islam, 5 August 1990, Art. 3(a); Hague Statement on Respect for Humanitarian Principles, 5 November 1991, paras. 1 and 2; Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, 27 November 1991, para. 1; Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina, 27 November 1991, para. 2.1; Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines, Part IV, 16 March 1998, Arts 4(2) and (9).

53 See Customary IHL Rule 110 and the various military manuals cited in its endnote 10.

54 See AP I, Arts 13 and 15, applicable to civilian medical facilities and personnel. These articles complement GC I, Arts 21, 22 and 23–6.

55 GC I, Art. 12; GC II, Art. 12; GC IV, Arts 16 and 27; and common Article 3.

56 AP I, Art. 51(4)(a); Customary IHL Rule 12 (regarding the prohibition against indiscriminate attacks in general); GC I, Arts 12–13; GC II, Arts 12–13; GC IV, Art. 16; AP I, Art. 10(1); AP II, Art. 7(1) (regarding protection for the wounded and sick); GC I, Arts 24–6; GC II, Art. 36; GC IV, Art. 20; AP I, Art. 15(1); AP II, Art. 9(1); Customary IHL Rule 25 (regarding protection for medical personnel); GC I, Art. 19; GC IV, Art. 18; AP I, Arts 12 and 52; Customary IHL Rule 28 (regarding protection for medical facilities); GC I, Art. 35; GC IV, Art. 21; AP I, Arts 21 and 52; Customary IHL Rule 29 (regarding protection for medical transports).

57 AP I, Arts. 51(5)(b), 57 and 58; Customary IHL Rules 14, 15 and 21–4.

58 AP I, Arts. 51(5)(b); Customary IHL Rules 14 and 15. However, the position that the principles of proportionality and precaution apply differently (or not at all) to military wounded and sick, and military medical personnel and objects is not universally shared. See Kolb, Robert and Nakashima, Fumiko, “The Notion of ‘Acts Harmful to the Enemy’ under International Humanitarian Law”, International Review of the Red Cross, Vol. 101, No. 912, 2019, p. 1176CrossRefGoogle Scholar and its footnotes 35–9 where the three debated positions are discussed: (i) fully applicable to all; (ii) applicable to wounded and sick military as well as to military personnel and objects but with a more lenient equation for assessing collateral damage than for civilian collateral damage; and (iii) not applicable to military medical personnel and objects or to military wounded and sick as they remain combatants.

59 AP I, Art. 13 complements GC I, Art. 22. See also Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on APs), paras. 571 and 572 on AP I, Art. 13. Para. 571: “In view of the conditions of modern warfare, military and civilian wounded and sick are often found in the same place, and consequently they may be collected by the same medical units. Thus it is not possible to complain about the presence of wounded and sick civilians in a military unit, or that of military wounded and sick in a civilian unit, as a reason to terminate the protection to which these units are entitled. The provision quoted above removes any ambiguity on this point, as do the equivalent provisions of Article 22 of the First Convention with regard to military medical units, and of Article 19 of the Fourth Convention for civilian hospitals.” Para. 572: “The expression ‘or other combatants’ was added to the expression ‘members of the armed forces’ to ensure that all combatants within the meaning of Article 43 of the Protocol (Armed forces) are included. This addition, which was made during the CDDH, was retained in the end, even though it had become superfluous in view of the final wording of Article 43 (Armed forces). As armed forces are defined in a very broad sense in paragraph 1 of that article, there are no combatants who are not members of the armed forces of a Party to the conflict within the meaning of the Protocol.”

60 R. Kolb and F. Nakashima, above note 58, pp. 1171–99.

61 AP I, Arts 41(2)(c), 42(2) and 51(3).

62 United States Department of Defense, Law of War Manual, June 2015 (updated December 2016), para. 5.8.3.3: “demonstrated hostile intent may also constitute taking direct part in hostilities”.

63 R. Kolb and F. Nakashima, above note 58, p. 1192. See also N. Melzer, above note 41, p. 1013.

64 However, a military operation only designed to capture wounded and sick from the enemy may be questioned.

65 AP I, Art. 8(a).

66 Common Article 3(1), which is applicable both to State and non-State actors, lays out that in NIACs, fighters who have laid down their arms and those placed “hors de combat” are to be treated humanely in all circumstances without distinction. However, common Article 3 offers no definition of the term hors de combat. This definition is contained in Customary IHL Rule 47 and AP I, Art. 41(2) which consider a person hors de combat if: (1) he is in the power of an adverse Party; (2) he clearly expresses an intention to surrender; or (3) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore incapable of defending himself; provided in any of these cases he abstains from any hostile act and does not attempt to escape.

67 AP I, Art. 8(a).

68 AP I, Art. 41(2); AP II, Art. 11(2).

69 GC I, Art. 21; GC IV, Art. 19(1); AP I, Arts 13(1) and 21; AP II, Art. 11(2); Customary IHL Rules 25 and 28. See also R. Kolb and F. Nakashima, above note 58, pp. 1171–99.

70 GC I, Art. 21; AP I, Art. 13(1); Customary IHL Rules 25 and 28.

71 AP I, Art. 13(2).

72 ICRC Commentary of 2016 to Article 3 Common to the Four Geneva Conventions, para. 1840 on GC I, Art. 21; see https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC; ICRC Commentary on APs, above note 59, para. 551 on API, Art. 13.

73 The United States Law of War Manual, for instance, treats separately military medical personnel (see Art. 4.9 and 4.10) and civilian medical personnel (Art. 7.17.4) as well as military hospitals (Art. 7.10.1.1) and civilian hospitals (Art. 7.17.2.1). Conditions related to the loss of protection are specified with regard to military hospitals (Art. 7.8.3): United States Department of Defense, above note 62.

74 For instance, the countries of Syria, Iraq and the United States.

75 Customary IHL Rule 110 states that: “The obligation to protect and care for the wounded, sick and shipwrecked is an obligation of means. Each party to the conflict must use its best efforts to provide protection and care for the wounded, sick and shipwrecked, including permitting humanitarian organizations to provide for their protection and care. Practice shows that humanitarian organizations, including the ICRC, have engaged in the protection and care of the wounded, sick and shipwrecked. It is clear that in practice these organizations need permission from the party in control of a certain area to provide protection and care, but such permission must not be denied arbitrarily (see also commentary to Rule 55). In addition, the possibility of calling on the civilian population to assist in the care of the wounded, sick and shipwrecked is recognized in practice.” See also the ICRC Commentary of 2020 to common Article 3, paras. 792, 793 and 798. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=E160550475C4B133C12563CD0051AA66. Para. 792: “Although it is clear that Parties to a non-international armed conflict are responsible for searching for and collecting the wounded and sick, common Article 3 does not specify who it is that has actually to carry out these activities. The typical scenario envisaged in the article involves search, collection and evacuation activities by the Party or Parties to the conflict that have been involved in the engagement that has resulted in wounded persons […].” Para. 793: “If the resources of a Party to the conflict are not sufficient to carry out search, collection and evacuation activities in order to meet its obligations under common Article 3, that Party may call upon civilians or humanitarian organizations to assist in these efforts […].” (footnote citation omitted). Para. 798: “The obligation to care for the wounded and sick requires that the Parties to the conflict take active steps to ameliorate their medical condition. Like the other obligations in common Article 3, this obligation applies equally to State and non-State Parties. Some non-State armed groups have the capacity to provide sophisticated medical care, while others have more rudimentary capacities. In any case, non-State armed groups must endeavour to develop their capacities to provide treatment to the best of their abilities and should be permitted to do so. Like State Parties, they should ensure that their forces are trained in first aid. Likewise, they may have recourse, if necessary, to medical aid provided by impartial humanitarian organizations […].”

76 See the cases of Iraq, Nigeria, Pakistan, Syria, Turkey, Barhain and Egypt where State regulation forbids that wounded and sick be treated by civilian or humanitarian doctors or any related medical facility. See the cases presented in Marine Buissonières, Sarah Woznick and Leonard Rubinstein, The Criminalization of Health Care, Safeguarding Health in Conflict, Johns Hopkins University and University of Essex, June 2018, p. 31, available at: https://www1.essex.ac.uk/hrc/documents/54198-criminalization-of-healthcare-web.pdf.

77 United States Supreme Court, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al., 548 U.S. 557 (2006), No. 05.184, Decision on a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit, 29 June 2006, pp. 67–8.

78 Common Article 3; AP I, Art. 41(1); Customary IHL Rule 47.

79 AP I, Arts 45(1)(3) and 51(3); and AP II, Art. 13(3).

80 See N. Melzer, above note 41, pp. 43–5.

81 N. Melzer, above note 41, pp. 34 and 35.

82 R. Kolb and F. Nakashima, above note 58, pp. 1171–99.

83 N. Melzer, above note 41.

84 Supreme Court of Israel, Iyad v. State of Israel, CrimA 6659/06, 11 June 2008.

85 The concept of permanent participation in hostilities is not defined by IHL.

86 N. Melzer, above note 41, pp. 33–5 and 72; see ICRC, Practice Relating to Rule 106. Conditions for Prisoner-of-War Status, IHL Database, Customary IHL, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule106.

87 N. Melzer, above note 41, p. 34.

88 Ibid., pp. 34 and 72.

89 See ICRC Commentary on APs, above note 59, paras. 549–53, 555 and 557 on AP I, Art. 13; AP I, Art. 13(1); ICRC Commentary on APs, above note 59, paras. 4636–9 and 4642 on AP II, Art. 7; AP II, Art. 11(1). Para. 4636: “What is meant by the phrase ‘wounded, sick and shipwrecked’? Protection of the wounded, sick and shipwrecked responds to a fundamental humanitarian requirement and was not cast into doubt in the context of drawing up rules to govern non-international armed conflicts; this is why it is possible to use the same definition of the wounded, sick and shipwrecked as the point of departure in the two Protocols. In the light of the negotiations it can be noted that the basic terminology is uniform.” Para. 4637: “In the absence of a provision of definitions, which was finally not adopted for Protocol II, we refer to Article 8 (Terminology), sub-paragraph (a), of Protocol I, which defines the wounded and sick as follows: [p.1409] ‘“Wounded” and “sick” mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility.’” Para. 4638: “The definition of the wounded and sick protected by this Part is based on two criteria: 1) requiring medical care; 2) refraining from any act of hostility.” Para. 4639: “Any person, military or civilian, fulfilling these two conditions is included amongst the wounded or sick; maternity cases, new-born babies, the infirm and expectant mothers are examples thereof, but this is not an exhaustive list. Thus this definition differs from the usual meaning of the terms ‘wounded’ and ‘sick’. In fact, a wounded or sick person who continued to fight would not be considered as such under the terms of the Protocol, and would consequently not be entitled to protection under this article.” (footnote citation omitted). Para. 4642: “In a situation of non-international armed conflict people cannot acquire a different status to the same extent as in an international conflict, since there are not, strictly speaking, different categories of protected persons: ‘all persons who do not take a direct part or who have ceased to take part in hostilities’ are protected. Nevertheless, after the end of the rescue operation the shipwrecked are no longer considered as such, and, depending on the circumstances, will be protected under one or other of the rules of the Protocol. As the case may be, they will be wounded or sick within the meaning of this article, if their state of health requires care; they will fall in the category of those detained or interned, if they have been captured by the adverse party, or they may simply be civilians. Protection is due to all the wounded, sick and shipwrecked, ‘whether or not they have taken part in the armed conflict’. No distinction is made between members of the armed forces and civilians or according to whether they belong to the one party or the other concerned; the obligation to respect and protect is general and absolute.” (footnote citations omitted).

90 Art. 5.8.3.3 of the Law of War Manual states “demonstrated hostile intent may also constitute taking direct part in hostilities”: United States Department of Defense, above note 62.

91 Ibid., Art. 7.10.3.6.

92 ICRC Commentary of 2016 to GC I on Article 3 Common to the Four Geneva Conventions, para. 1854 on GC I, Art. 21; and para. 2008 on GC I, Art. 24. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC.

93 F. Bouchet-Saulnier and J. Whittall, above note 21.

94 Conventional and customary IHL rules provide for loss of protection for the sick and wounded if they perform hostile acts. See common Article 3(1) and the ICRC 2016 Commentary to the GC I on Article 3 Common to the Four Geneva Conventions of the GC I at para. 737 and Article 12 at para. 1341. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC. See also AP I, Art. 8(a); ICRC Commentary on APs, above note 59, para. 306 on AP I, Art. 8; and Customary IHL Rule 109.

95 See, for instance, Reuters, “Undercover Israeli Troops Raid Hospital, Kill Palestinian”, 12 November 2015, available at: https://www.reuters.com/article/us-israel-palestinians-violence-idUSKCN0T10JX20151112; for the video of the operation, see Euronews, “Palestinian Killed as Israeli Forces Mount Undercover Raid Hebron Hospital”, 12 November 2015, available at: https://www.youtube.com/watch?v=Lj4PYh1zrvU. See also the Afghan special forces raiding an hospital in Afghanistan in 2016: Mujib Mashal, “Hospital Raid by Afghan Forces is Said to Kill at Least 3”, New York Times, 18 February 2016, available at: https://www.nytimes.com/2016/02/19/world/asia/hospital-raid-afghan-forces-nato-wardak-province.html.

96 Dominique Linhardt and Cédric Moreau de Bellaing, “La doctrine du droit pénal de l'ennemi et l'idée de l'antiterrorisme. Genèse et circulation d'une entreprise de dogmatique juridique”, Droit et Société, Vol. 97, No. 3, 2017, available at: https://www.cairn.info/revue-droit-et-societe-2017-3-page-615.htm; Geneviève Giudicelli-Delage, “Droit pénal de la dangerosité – Droit pénal de l'ennemi”, Revue de science criminelle et de droit pénal comparé, Vol. 1, No. 1, 2010; Jean-François Dreuille, “Le droit pénal de l'ennemi: Éléments pour une discussion”, in Jurisprudence: Revue critique, Université de Savoie, 2012, available at: https://hal.archives-ouvertes.fr/hal-01479079/document.

97 UNSC Res. 1373, 28 September 2001; UNSC Res. 1456, 20 January 2003; UNSC Res. 1535, 26 March 2004; UNSC Res. 1566, 8 October 2004; UNSC Res. 1624, 14 September 2005; UNSC Res. 1787, 10 December 2007; UNSC Res. 1805, 20 March 2008; UNSC Res. 1963, 20 December 2010; UNSC Res. 2129, 17 December 2013; UNSC Res. 2133, 27 January 2014; UNSC Res. 2170, 15 August 2014; UNSC Res. 2178, 24 September 2014; UNSC Res. 2199, 12 February 2015; UNSC Res. 2220, 22 May 2015; UNSC Res. 2242, 13 October 2015; UNSC Res. 2249, 20 November 2015; UNSC Res. 2253, 17 December 2015; UNSC Res. 2255, 21 December 2015; UNSC Res. 2309, 22 September 2016; UNSC Res. 2322, 12 December 2016; UNSC Res. 2341, 13 February 2017; UNSC Res. 2354, 24 May 2017; UNSC Res. 2368, 20 July 2017; UNSC Res. 2370, 2 August 2017; UNSC Res. 2395, 21 December 2017; UNSC Res. 2396, 12 December 2017; UNSC Res. 2427, 9 July 2018.

98 For example, in the first six months of 2021, the countries of Chad, CAR, Indonesia and Myanmar have applied the “terrorist” label to opposition groups outside the international designation process. For information, see above note 4.

99 See also Fionnuala D. Ní Aoláin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, “Human Rights and Counterterrorism: a Sisyphean Tale”, 16 June 2021, available at: https://theglobalobservatory.org/2021/06/human-rights-and-counterterrorism-a-sisyphean-tale/?utm_source=mailchimp&utm_medium=organic_email&utm_campaign=US_GO_publications_analysis&utm_content=link.

100 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, United States Patriot Act of 2001, Public Law 107–56, 26 October 2001, available at: https://www.govinfo.gov/content/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf. Until 2018, the provision contained in the Afghan CT law had the potential to encompass medical care within the ambit of punishable offences. See Law on Combat against Terrorist Offences, 2008, available at: http://www.vertic.org/media/National%20Legislation/Afghanistan/AF_Law_on_Combat_against_Terrorist_Offences.pdf.

101 See Criminal Code (Canada), Arts 83.03(b) and 83.19; Penal Code (Niger), Arts 200, 206, 399.1.18, 399.1.19 nouveau (bis) and (ter) and 399.1.23(c); 18 U.S. Code (United States), Arts 2339A and 2339B; see also the CT Law of Mali No. 2008-025, Art. 6, as well as the Malian Penal code, Art. 24 (broad criminal complicity). See also Chad Penal Code, Art. 118 (a broadening complicity to all those who provide without being forced to, and knowing their criminal intention, means of existence, shelter, refuge or meeting place to individuals threatening State safety and integrity), as well as Art. 109 (criminalizing all kind of material support and communication with armed and other rebel criminal groups). In 2020, Chad included a humanitarian exemption in its new CT legislation clarifying that humanitarian assistance is outside of the scope of such criminal offences. See Law No. 003/PR/2020, Arts 1(3) and (4) on the suppression of terrorist acts in the Republic of Chad of 28 April 2020 (Chad CT Law); see UNGA, above note 16, para. 33; D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 16, pp. 63 and 100.

102 UNGA Report on Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/71/384, 13 September 2016, para. 50, available at: https://undocs.org/pdf?symbol=en/A/71/384.

103 See above note 97.

104 ICRC, “The Conflation of IHL and the Legal Framework Governing Terrorism”, in International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 31st International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 28 November to 1 December 2011, pp. 48–53; United Nations Office for the Coordination of Humanitarian Affairs and Norwegian Refugee Council, Study of the Impact of Donor Counterterrorism Measures on Principled Humanitarian Action, July 2013, pp. 71–111. In 2016, MSF raised the issue at the CT committee of the UNSC asking them to issue State guidance regarding humanitarian exemption to ensure that IHL provisions are not undermined by CT measures. For the text of the intervention, see Françoise Bouchet-Saulnier, “IHL & Counter-Terrorism: Tensions and Challenges for Medical Humanitarian Organizations”, MSF Statement to the UN Security Council Counter-Terrorism Committee, 2 June 2016, available at: https://msf-analysis.org/ihl-counter-terrorism-tensions-challenges-medical-humanitarian-organizations; Terrorism, Counter-Terrorism and International Humanitarian Law, Proceedings of the Bruges Colloquium, 17th Bruges Colloquium, 20–21 October 2016, pp. 25 and 135–51; D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 16; Inter-Agency Standing Committee, Concept Note – IASC Counterterrorism Database: Principled Humanitarian Action and Counter-Terror Measures: Documenting Impact Collectively Across the Humanitarian Community; see also InterAction, Detrimental Impacts: How Counter-Terror Measures Impede Humanitarian Action: A Review of Available Evidence, April 2021, available at: https://www.interaction.org/wp-content/uploads/2021/04/Detrimental-Impacts-CT-Measures-Humanitarian-Action-InterAction-April-2021.pdf, and see at p. 2, the “Impact Catalogue” put together by InterAction.

105 UNSC Res. 2462, 28 March 2019, para. 24 (emphasis added). See also UNSC Res. 2482, 19 July 2019, para. 16.

106 UNSC, above note 30, paras. 83 and 84: “Only a few States have developed a specific response to the potential impact of the counter-financing of terrorism on exclusively humanitarian activities […]. At least three responding States have introduced humanitarian exemptions into their counter-financing of terrorism legislation […]. However, most participating States (58 per cent) did not answer this question.” (emphasis added).

107 See above note 102.

108 M. Buissonières, S. Woznick and L. Rubinstein, above note 76, p. 31.

109 United Nations Office for the Coordination of Humanitarian Affairs and Norwegian Refugee Council, above note 104.

110 See the Syrian Laws No. 19, 20, 21 and 22 of 2012. See also, Violations Documentation Center in Syria, (VDC), Special Report on Counter-Terrorism Law No. 19 and the Counter-Terrorism Court in Syria, April 2015, available at: http://www.vdc-sy.info/pdf/reports/1430186775-English.pdf.

111 UNGA Report of the Independent International Committee of Inquiry on the Syria Arab Republic, UN Doc. A/HCR/25/65, 12 February 2014, para. 111 and Annex VII (Assaults on Medical Care), para. 21.

112 Human Rights Watch, Flawed Justice: Accountability for ISIS Crimes in Iraq, 5 December 2017, available at: https://www.hrw.org/report/2017/12/05/flawed-justice/accountability-isis-crimes-iraq.

113 See Ishaq Tanoli, “Three Doctors Held for Treating ‘Militant’ Released”, DAWN, 18 November 2015, available at: https://www.dawn.com/news/1220375/three-doctors-held-for-treating-militants-released.

114 Such cases have been documented in Afghanistan, Bahrein, Egypt, Ethiopia, India, Iraq, Nigeria, Pakistan, Syria, Turkey and the United States. See M. Buissonières, S. Woznick and L. Rubinstein, above note 76, p. 31.

115 These are situations that have directly affected MSF staff and activities over more than ten years, from 2010 to 2021.

116 There is a variety of criminal qualifications applicable to members of non-State armed groups such as rebels, insurgents, terrorists and it incurs criminal offences against State security and terrorism.

117 M. Buissonières, S. Woznick and L. Rubinstein, above note 76, p. 31.

118 See 18 U.S. Code (United States), para. 2339B; United States v. Shah, above note 17, p. 499; and United States Court of Appeals, Second Circuit, United States v. Farhane, 634 F. 2d 127 (2d Cir. 2011), 4 February 2011, p. 134; D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 16, p. 124.

119 The ICRC has identified this as an issue as early as 2011. See the ICRC Report, “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, Official Working Document of the 31st International Conference of the Red Cross and Red Crescent, Geneva, 28 November to 1 December 2011, 31IC/11/5.1.2, 31 October 2011, p. 52, available at: https://www.icrc.org/en/doc/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf; F. Bouchet-Saulnier, above note 104; Norwegian Refugee Council, “Principles Under Pressure: The Impact of Counterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action”, 12 June 2018, pp. 11, 15, 29 and 34, available at: https://www.nrc.no/resources/reports/principles-under-pressure; Fionnuala Ní Aoláin, “Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism”, Report of the Special Rapporteur to the Seventy-Fifth Session of the UNGA, 3 September 2020, UN Doc. A/75/337, paras. 34, 35, 45(b) and 48; Françoise Bouchet-Saulnier and Mego Terzian, “Comment les États peuvent contribuer à la protection de l'action humanitaire”, 8 September 2020, Le Monde, available at: https://www.lemonde.fr/idees/article/2020/09/08/comment-les-etats-peuvent-contribuer-a-la-protection-de-l-action-humanitaire_6051356_3232.html; Françoise Bouchet-Saulnier, “Where Counterterrorism Measures Impede Humanitarian Action, Domestic Law Is Key”, IPI Global Observatory, 17 June 2021, available at: https://theglobalobservatory.org/2021/06/where-counterterrorism-measures-impede-humanitarian-action-domestic-law-is-key.

120 United States v. Shah, above note 17, p. 499.

121 In Nigeria the magnitude of this problem among medical personnel has led to a necessary review of the law in 2017 supported by the ICRC. The new “gunshot law” has clarified that medical care is not per se a support to criminals. It clearly acknowledges that doctors are obliged to provide medical treatment to gunshot wounded. To secure that medical treatment is provided without discrimination, the law allows delaying notification to the police for up to two hours without incurring criminal charges. See the Nigerian Law: Compulsory Treatment and Care for Victims of Gunshots Act, 2017, available at: https://laws.lawnigeria.com/2018/04/20/lfn-compulsory-treatment-and-care-for-victims-of-gunshots-act-2017/.

122 The ICRC Commentary of 2016 to GC I on to Article 3 Common to the Four Geneva Conventions acknowledges at para. 768 the responsibility of parties to the conflict to treat wounded and sick. The role of impartial humanitarian organizations is only subsidiary. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736C1C1257F7D004BA0EC.

123 An official instruction from the Homs Directorate of Health from 12 April 2011 ordered the transfer of all wounded patients in relation to the events to the military hospital (copy with the author). See Amnesty International, “Health Crisis: Syrian Government Targets the Wounded and Health Workers”, 25 October 2011, available at: https://www.amnesty.org/en/documents/MDE24/059/2011/en/.

124 In 2021, in the North-West Region of Cameroon, MSF has had its activities suspended for over six months and has been denied the resumption of its medical and humanitarian activities following accusations that it was supporting “terrorists”. See, for example, MSF, “Cameroon: People in Northwest Seek Healthcare as MSF Denied Providing Medical Services”, Press Release, 22 June 2021, available at: https://www.msf.org/msf-denied-providing-badly-needed-healthcare-northwest-cameroon; La VOA, “L'aide humanitaire prise entre deux feux au Cameroun anglophone”, 27 February 2020, available at: https://www.voaafrique.com/a/cameroun-l-aide-humanitaire-prise-entre-deux-feux-au-cameroun-anglophone/5306621.html.

125 MSF, above note 23.

126 Jonathan Whittall, “Treating Terrorists”, MSF Analysis: Reflections on Humanitarian Action, 2015, available at: https://msf-analysis.org/new-treating-terrorists.

127 See the UNGA Report of the Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions – Saving Lives is not a Crime, UN Doc. A/73/314, 7 August 2018, paras. 10–11, 33 and 37; D. A. Lewis, N. K. Modirzadeh and G. Blum, above note 16, pp. i–iii and 9–11 (see specifically footnotes 16 and 22 for examples); Alice S. Debarre, “Countering Terrorism and Violent Extremism: The Risks for Humanitarian Action”, in Alain Tschudin, Craig Moffat, Stephen Buchanan-Clarke, Susan Russell and Lloyd Coutts (eds), Extremisms in Africa, Vol. 2, Tracey McDonald Publishers, Bryanston, SA, 2019, pp. 208–9; see also the conviction entered in United States v. Shah, above note 17.

128 Emile Zola Ndé Tchoussi, “Cameroun: Médecins sans frontières de nouveau accusé de soutenir les séparatistes dans le Nord-Ouest”, 17 December 2020, available at: https://www.journalducameroun.com/cameroun-medecins-sans-frontieres-de-nouveau-accuse-de-soutenir-les-separatistes-dans-le-nord-ouest-cameroun/.

129 MSF, above note 23.

130 AP I, Art. 16(1); and AP II, Art. 10(1).

131 The broad definition of the various terrorist offences can lead to a severe application of the law and criminalize the action of humanitarian actors. These legal risks have been documented for major donor countries for a long time (see above note 119). They are also found in domestic criminal and CT laws of various countries affected by an armed conflict and where humanitarian action is taking place. For example, see the Penal Code of Niger, Arts 200, 206, 399.1.18, 399.1.19 nouveau (bis) and (ter) and 399.1.23(c); see also the CT Law of Mali No. 2008-025, Art. 6, as well as the Malian Penal code, Art. 24 (broad criminal complicity). See also the Chad Penal code, Art. 118 (a broadening complicity to all those who provide without being forced to, and knowing their criminal intention, means of existence, shelter, refuge or meeting place to individuals threatening State safety and integrity), as well as Art. 109 (criminalizing all kind of material support and communication with armed and other rebel criminal groups). In 2020, Chad included a humanitarian exemption in its new CT legislation clarifying that humanitarian assistance is outside of the scope of such criminal offences. See Chad CT Law, above note 101, Arts 1(3) and (4).

132 Ekaterina Ortiz Linares and Marisela Silva Chau, “Reflections on the Colombian Case Law on the Protection of Medical Personnel Against Punishment”, International Review of the Red Cross, Vol. 95, No. 890, 2013; Supreme Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 27227 of 21 May 2009.

133 See above note 114.

134 The United States are not a party to AP I. Article 13 of AP I is thus not part of their military doctrine. This article states that the protection to which civilian units are entitled to shall not cease if members of armed forces or other combatants are present inside the medical unit for health-related reasons. Such presence should not be considered as an AHTTE. See also F. Bouchet-Saulnier and J. Whittall, above note 21.

135 See the United States Law of War Manual at Art. 5.12.3.2 (harm to certain individuals who may be employed in or on military objectives), Arts 7.8.2.1 and 7.10.1.1 (incidental harm not prohibited), Arts 4.10.1, 7.10.1.1 and 7.12.3.2 (acceptance or the risk from proximity to combat operations): United States Department of Defense, above note 62. See also Oona Hathaway, “The Law of War Manual's Threat to the Principle of Proportionality”, Just Security, 23 June 2016, available at: https://www.justsecurity.org/31631/lowm-threat-principle-proportionality.

136 International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, para. 216; Gloria Gaggioli, Expert Meeting: The Use of Force in Armed Conflicts. Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms, ICRC, November 2013, pp. 14, 19 and 76, available at: https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4171.pdf.

137 See above note 131.

138 Human Rights Watch, Preempting Justice: Counterterrorism Laws and Procedures in France, 1 July 2008, available at: https://www.hrw.org/report/2008/07/01/preempting-justice/counterterrorism-laws-and-procedures-france.

139 See above note 132.

140 Exemptions and good practices are noted in M. Buissonières, S. Woznick and L. Rubinstein, above note 76, p. 31.

141 Art. 119 of the Afghan Penal Code from 2019 stipulates that no necessary medical procedures are to be considered crimes if they are carried out within the technical principles of the medical profession and the patient's family, or legal representative, has given consent. Surgical procedures performed in emergencies according to medical principles are also not to be labelled as crimes.

142 Ministry of Health and Social Protection, Office of Territorial Management, Emergencies and Disasters, Colombia, Manual de Misión Médica, 2013, available at: https://repositorio.gestiondelriesgo.gov.co/bitstream/handle/20.500.11762/20719/Manual%20de%20Mision%20Medica.pdf?sequence=1&isAllowed=y.

143 See ICRC Commentary on APs, above note 59, paras. 4692 and 4693 on AP II, Art. 10, which may be of use. Para. 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’.” Para. 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. 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.” (footnote citation omitted).

144 Customary IHL Rule 110; GC I, Arts 12(2) and 15(1); GC II, Arts 12(2) and 18(1); GC IV, Art. 16(1); AP I, Art. 10; common Article 3; and AP II, Arts 7–8.

145 AP I, Art. 11(4).

146 This issue will not be treated in this article as it is not within its scope. However, most public health considerations are compatible with general aggregated data respecting the confidentiality or requiring obtaining the formal consent of the patient. Regarding reporting crimes to authorities, these provisions rarely entail sanction for medical personnel when they have acted in conformity with medical ethics. They instead allow, in limited circumstances, the reporting of cases when it is in the patient's best interest. These practices cannot contradict fundamental principles of medical ethics: access to medical care must not be jeopardized or delayed by such obligation. Patient consent and patient's best interest are the only valid criteria to take into consideration when making a medical decision. See also Swiss Institute of Comparative Law, Legal Opinion on the Obligation of Health Care Professionals to Report Gunshot Wounds, 30 June 2019, available at: https://www.isdc.ch/media/1834/17-120-final-nov19.pdf.

147 AP I, Art. 16(1)–(3); and AP II, Art. 10(1)–(4).

148 AP I, Art. 16(3).

149 See ICRC Commentary on APs, above note 59, on AP II, Art. 10(1)–(4).

150 AP II, Art. 10(3).

151 AP II, Art. 10(4).

152 AP I, Art. 16(1); and AP II, Art. 10(1).

153 Ibid; Customary IHL Rule 26 uses similar wording: “punishing a person for performing medical duties compatible with medical ethics […] is prohibited”.

154 AP I, Art. 8(c).

155 Customary IHL Rule 25; and GC I, Arts 24–7.

156 See, for instance, Mali, Law No. 2008-025, Art. 7.

157 International Court of Justice, above note 136, para. 216; Gloria Gaggioli, above note 136, pp. 14, 19 and 76.

158 AP I and AP II refer to the protection of victims of armed conflict to harmonize the different categories of protection provided in the four Geneva Conventions from 1949.

159 UN Office of the Coordination of Humanitarian Affairs, “Scores of Innocent Civilians Wounded and Killed in Attacks in Hajjah Governorate”, News and Press Release, 11 March 2019, available at: https://reliefweb.int/report/yemen/scores-innocent-civilians-wounded-and-killed-attacks-hajjah-governorate-enar.

160 An exemption means that the exclusion, non-application of the measure is automatic (alike an immunity) and permanent. It does not require any procedure or request for authorization to benefit from it. See also Rebecca Brubaker and Sophie Huvé, UN Sanctions and Humanitarian Action: Review of Past Research and Proposals for Future Investigation, United Nations University, New York, 2021, p. 12 and endnote 29, available at: http://collections.unu.edu/eserv/UNU:7895/UNSHA_ScopingPaper_FINAL_WEB.pdf.

161 ICRC, “Counter-Terrorism Measures Must Not Restrict Impartial Humanitarian Organizations From Delivering Aid”, ICRC Statement to UNSC Debate, 12 January 2021, available at: https://www.icrc.org/en/document/counter-terrorism-measures-must-not-restrict-impartial-humanitarian-organizations; UNSC, above note 30, para. 84.

162 Chad CT Law, above note 101, Arts 1(3) and (4).