Joint Blog Series on International Law and Armed Conflict: Geoff Corn on Wounded and Sick, Proportionality, and Armaments

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The fourth post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick, Proportionality, and Armaments’- by Geoffrey Corn (South Texas College of Law Houston) is now available on Lawfare.

Here’s an excerpt: 

Imagine you are commanding forces that have just repulsed a combined arms enemy ground attack. The enemy is now withdrawing, and you observe what are obviously wounded enemy soldiers being loaded onto enemy combat vehicles. You fully anticipate the enemy to regroup in order to continue the offensive. These vehicles are not protected because they are not properly marked nor exclusively engaged in the collection and evacuation of the wounded and sick. Instead, the enemy is employing the common practice of evacuating wounded with any available combat vehicle. While this is occurring, other enemy forces are providing covering fires in support of the withdrawal. You have on-call close air support assets, and your air support coordination liaison asks if the enemy vehicles should be attacked? The enemy vehicles are lawful objects of the attack, but you know that the military wounded and sick must be respected and protected. It is therefore clear that an attack may not be directed against the wounded enemy soldiers. But the ICRC’s updated Commentary asserts that before launching the attack on the withdrawing enemy forces who are not hors de combat you must assess whether the risk created to the wounded enemy personnel is excessive in relation to the concrete and direct military advantage anticipated.


Suggesting that such an obligation is logically inferred from the civilian proportionality rule is fundamentally flawed, because unlike military personnel, civilians (who do not take a direct part in hostilities) do not accept the risks of combat. 

Read the full post on Lawfare.

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Terry Washington says

October 12, 2017

My advice for your hypothetical commander in this situation, consult your superiors and get advice from your JAG(Judge Advocate General Corps) representative ASAP!

JS says

October 12, 2017

Very interesting.

If you consider this predicament not in the context of IAC but in a NIAC - in other words against insurgents normally deemed to have a continuous combat function - would you draw the conclusion that injured enemy insurgents cannot simultaneously be both hors de combat and still in possession of a continuous combat function?

If that's the case, wouldn't injured insurgents revert to civilian status? If so, wouldn't it be odd to treat them more favourably than states' injured personnel would be treated (either in an IAC or a NIAC)? Isn't one of reasons for acceptance of the concept of CCF to ensure comparable treatment (in terms of targetability) between state armed forces and functional members of organised armed groups? Doesn't this suggest we should apply proportionality to states' injured personnel?