Traités, États parties et Commentaires
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Commentaire of 2016 
Article 18 : Role of the population
Text of the provision*
(1) The military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for, under their direction, the wounded and sick, granting persons who have responded to this appeal the necessary protection and facilities. Should the adverse Party take or retake control of the area, he shall likewise grant these persons the same protection and the same facilities.
(2) The military authorities shall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality. The civilian population shall respect these wounded and sick, and in particular abstain from offering them violence.
(3) No one may ever be molested or convicted for having nursed the wounded or sick.
(4) The provisions of the present Article do not relieve the occupying Power of its obligation to give both physical and moral care to the wounded and sick.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1718  Article 18 contains the kernel of Henry Dunant’s idea for civilians to take action to assist and care for wounded and sick members of the armed forces, whether in response to an appeal by the military commander or spontaneously. Since the adoption of the first Geneva Convention in 1864, the provision of medical care by military medical personnel in armed conflict has become more sophisticated and regimented in many places, to the extent that such individual civilian assistance may seem less likely to be needed. At the same time, the capacity of local organizations to respond effectively to needs in emergencies is gaining recognition.[1] Under Article 18, the possibility thus remains for a military commander to appeal to civilians or relief societies to help care for wounded or sick military personnel.
1719  The right of local civilians and relief societies present in the territory to tend to wounded or sick combatants on their own initiative was reaffirmed in 1949 and extended in 1977, in Article 17 of Additional Protocol I, to the right to provide care to wounded or sick civilians. A Party to the conflict must consider these options when taking ‘all possible measures’ to search for and collect the wounded and sick and in ensuring that they receive the medical care their condition requires.[2] The two options enshrined in Article 18 – to request assistance from civilians and to permit civilians or civilian organizations to provide assistance spontaneously – are reiterated in some military manuals and armed forces training materials, often without specifying whether the persons to be cared for are military or civilian.[3]
1720  Civilians are under a direct obligation not to harm the wounded and sick. By the same token, carers may not be harmed or harassed for coming to the assistance of the wounded and sick. In contemporary situations, the principle enshrined in Article 18 serves as a reminder to military authorities or Parties to the conflict that civilians will often rush to help wounded survivors of an attack and have a right to do so; the presence of these rescuers must be taken into account in subsequent attacks.
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B. Historical background
1721  The principle that no wounded or sick combatant should be left on the battlefield for lack of personnel to care for them was a central element of the very first Geneva Convention of 1864. Article 5 of that Convention permitted and encouraged the local population to come to the aid of wounded and sick combatants.[4] With some modifications, this notion has been maintained in all subsequent versions of the Geneva Conventions on the Wounded and Sick,[5] including in the present article, and is reaffirmed in Article 17 of Additional Protocol I.
1722  However, early controversy about the utility of such aid providers, in terms of both efficacy and risks, almost led to the deletion of the article and, some argue, to the demise of the fledgling red cross initiative.[6] Article 5 of the 1864 Convention provided for certain protections and immunities for spontaneous rescuers that were reportedly abused during the Franco-Prussian War. Some people were said to have set up fake ambulances and hospitals in order to benefit from the protection of the emblem and escape their obligations to billet troops or pay war taxes, while others, wearing the emblem on their arms, pillaged the wounded on the battlefield under the pretext of searching for them.[7] Meanwhile, the apparently successful organization of aid for the wounded and sick under the military authority on the Prussian side suggested that militarily organized action led to better results – and better care – than an appeal to kind-hearted but ill-trained and poorly equipped civilian charity.[8]
1723  The delegates to the Diplomatic Conference in 1906 thought that deleting the article entirely, as had been proposed in the light of the abuses encountered, would not send the right message.[9] Thus, the concerns raised were addressed in the 1906 and 1929 Conventions by making civilian assistance subject to military supervision and control and by limiting the immunities or incentives granted to persons responding to an appeal for assistance.[10] Moreover, new rules governing the use of the emblem were set out in detail and a prohibition on misuse or abuse of the emblem was added.[11] At the same time, medical assistance provided within the armed forces to the wounded and sick became increasingly professionalized, reducing reliance on civilian assistance more generally.
1724  The experience of the Second World War reinforced the utility of the principle enshrined in Article 5 of the 1929 Geneva Convention on the Wounded and Sick. It even illustrated that in some respects it did not go far enough, as demonstrated by the plight of the crews of aircraft that were shot down and of wounded parachutists who fell into enemy territory. Two key elements were felt to be missing: first, that enemy or occupying authorities must also recognize the ‘neutrality’ of civilians assisting the wounded and sick; and second, that civilians and relief societies should be allowed to provide care ‘spontaneously’ to the wounded and sick.[12] Article 18 of the 1949 First Convention addresses these shortcomings.
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C. Paragraph 1: Appeal to the charity of the inhabitants
1725  Parties to a conflict have an obligation to take ‘all possible measures’ to search for and collect wounded and sick members of armed forces and to care for them.[13] Making use of the voluntary resources of local inhabitants or capable organizations present in the territory, or granting such organizations access to areas where wounded and sick people are located, can be a valuable means of meeting this obligation.
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1. Voluntary response to an appeal
1726  Article 18(1) provides military authorities who find themselves without sufficient resources to collect and care for wounded and sick members of the armed forces with the option to appeal for assistance from the local civilian population.[14] Local civilians may, in turn, choose to respond to such an appeal. The military authorities are not bound to appeal to the inhabitants, and, under international law, the inhabitants are not bound to respond to their appeal.[15] There may nevertheless be a strong moral imperative for military authorities to use this option if they themselves are unable to provide care for the wounded and sick. Civilians, however, cannot be compelled to agree to such a request: the word ‘voluntarily’ was inserted in Article 18 specifically ‘with a view to preventing any abuse’, particularly on the part of an Occupying Power.[16]
1727  The possibility of requesting voluntary assistance was maintained in Article 17 of Additional Protocol I and, in line with the general thrust of the Protocol, extended to the collection and care of wounded and sick civilians. That extension remedied a gap in the protection of civilians, as the Fourth Convention has no equivalent of Article 18 of the First Convention. Article 17 of Protocol I also expands the activities for which local civilian assistance may be requested to include searching for the dead and reporting their location.[17] Importantly, the drafters of the Protocol sought to maintain the voluntary nature of the provision.[18]
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2. Addressees of an appeal for assistance
1728  The first paragraph refers to ‘the inhabitants’, meaning the local population of an occupied territory or a territory in which an armed conflict is occurring, regardless of their nationality. Indeed, it refers only to ‘the inhabitants’ without mentioning the organizations or relief societies referred to in the second paragraph. Logically, however, an appeal to local civilians encompasses also civilians who have organized themselves into an aid society. For States party to Additional Protocol I, any doubt in this regard was removed in the corresponding paragraph of Article 17, which expressly refers also to aid societies.[19]
1729  A further clarification is apposite in regard to the inhabitants to which such an appeal may be made. In particular, it should be recalled that this cohort of persons can include medical professionals who have not been assigned to specific medical tasks by a Party to the conflict. An appeal for their assistance would not render such persons permanent medical personnel in the sense of the Convention, nor temporary medical personnel for the purposes of Additional Protocol I.[20]
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3. To collect and care for the wounded and sick
1730  Nowadays, individuals are more likely to collect wounded or sick persons and bring them to a medical facility than to care for them in their own homes. That said, if they do take the wounded or sick into their homes, or if a relief organization provides care in its own facilities, that care may go beyond urgent first aid. The word ‘care’ thus also covers all reasonable measures necessary to improve the condition of wounded or sick persons, including the provision of food, shelter, clothing, blankets and hygiene items.[21] At the Diplomatic Conference, the wording ‘collect and care for’ was preferred over ‘give first aid to’ to avoid restricting the care that could be provided, as long as it was provided voluntarily.[22]
1731  Collecting wounded or sick persons may need to be preceded by searching for them. Following an attack or a military engagement, the existence and location of injured or dead persons may not be immediately apparent. In order to be able to collect and care for them, rescuers will have to search for them. The purpose of Article 18, which is to ensure that wounded or sick persons receive timely and life-saving treatment, necessarily also encompasses the search for such persons.[23]
1732  As noted above, Article 17 of Additional Protocol I adds a third task that the civilian population may be called upon to undertake, provided, as always, it is undertaken voluntarily: to search for the dead and report their location to the authorities. It is important to emphasize that civilians may not be requested to collect the dead.[24]
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4. Necessary protection and facilities
1733  When a Party appeals to local inhabitants or relief societies to assist in collecting and caring for the wounded and sick, it must grant the protection and facilities without which the task of the population or the relief societies would be too difficult or dangerous. The assessment of such necessity is left in the first instance to the competent authorities of the Party to the conflict that made the appeal, but that Party must take into account, as far as possible, the wishes and views of the persons or relief organizations prepared to respond to the appeal. Such protection and facilities will essentially depend on the circumstances, and therefore all of the possibilities cannot be listed exhaustively.[25] ‘Facilities’ may include guarantees of as much freedom of movement as possible to carry out the tasks in question, facilities to transmit correspondence by any means, and facilities to transmit relief supplies and funds. It does not mean, however, that freedom of movement cannot be limited where military operations genuinely impede such access. ‘Facilities’ may include the provision of vehicles or other means of transport, as well as guarantees of safe conduct. Organizations receiving medical or other humanitarian supplies from outside the territory should also be exempted from customs and transport duties.[26]
1734  ‘Protection’ refers in part to the conditions of security necessary to collect and care for the wounded and sick. What measures are necessary and appropriate for ensuring the safety of humanitarian aid workers is a complex issue that the Convention does not address.[27] One aspect of protection involves ensuring that one’s own forces know not to – and do not – attack persons or organizations carrying out medical or humanitarian tasks. Protection can also mean, among other things, making local arrangements or agreeing ceasefires with the enemy to allow for medical or humanitarian activities to take place.[28] It also entails preventing, or taking steps to prevent, attacks by others. Furthermore, the requirement to grant protection reinforces the provision in Article 18(3) that ‘[n]o one may ever be molested or convicted for having nursed the wounded or sick’.[29]
1735  It is important to note that the protection which can be granted in this context does not include the right to use the red cross, red crescent or red crystal emblem. This restriction is justified because the risk of abuse is so great.[30] The use of the emblem must be restricted to situations explicitly provided for in the Conventions and Protocols, under the control of the competent military or civilian authorities. Persons or organizations responding to an appeal for assistance by a military authority thus cannot display the emblem on houses or buildings in which the wounded are cared for unless a Party to the conflict designates those buildings as medical facilities under the First or Fourth Conventions.[31]
1736  As for individuals wearing the emblem themselves, there is no mechanism in the First Convention for increasing the number of military medical personnel through the assignment of temporary medical personnel; however, States party to Additional Protocol I do have that option.[32] Thus, under Protocol I, the Parties to the conflict may increase the strength of their temporary medical personnel or the number of their temporary medical units, and such persons would be entitled to use the emblem. However, such measures imply strict supervision. Even for those States that are party to the Protocol, persons who respond to an appeal by the military authorities may not be equated to temporary medical personnel unless they are explicitly given an assignment as temporary medical personnel.[33] It is important to recall that not everyone carrying out medical activities in an area of armed conflict qualifies as ‘medical personnel’ in the sense of the Conventions and the Protocol.
1737  Lastly, Article 18(1) stipulates that if the adverse Party takes control of an area, it must grant the same protection and facilities to the inhabitants who have responded to an appeal for assistance. This obligation was added in 1949 as it was perceived as a significant gap in the 1929 Convention that had led to negative repercussions for persons who had responded to such an appeal.
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5. Under the direction of the military authorities
1738  Volunteers who respond to an appeal for help with the wounded and sick must do so ‘under the direction’ of the military authorities (the equally authentic French text says ‘sous son contrôle’). This requirement was inserted in response to the abuses that occurred during the Franco-Prussian War and has endured in subsequent iterations of the Conventions.[34]
1739  The provision makes it clear that even if local inhabitants or relief organizations come to the aid of the wounded, it is the military authorities who remain responsible for their condition and medical treatment. In particular, when it comes to the enemy wounded, the State authorities must inform the Power of Origin of their identity and capture and arrange for their protection under the Third Convention relative to the treatment of prisoners of war.[35] Wounded enemy personnel in the care of local inhabitants or relief organizations acting in response to a request by and under the direction or control of the military authorities must be considered to have fallen into the hands of the enemy and to be prisoners of war.[36]
1740  The military authorities may prescribe the nature and extent of the measures of control they consider necessary. In practice, once the particulars with regard to identity have been collected and transmitted, this control may consist in ensuring that the wounded receive proper care and are treated humanely and with the respect to which they are entitled.
1741  For States party to Additional Protocol I, it may not always be easy to draw the line between stringent measures of control in relation to a general appeal for assistance from the local population and an assignment of one’s own citizens to act as temporary medical personnel. Temporary medical personnel should be clearly and explicitly assigned as such. In this light, and with respect to any use of the emblem by persons responding to an appeal, the Party to the conflict which is responsible for preventing the misuse of the protective emblem must retain the power to decide who is entitled to the protection reserved for medical personnel.
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D. Paragraph 2: Spontaneous collection and care of the wounded or sick by civilians and relief societies
1742  Article 18(2) makes it mandatory for authorities to permit spontaneous relief action. Local inhabitants and relief societies have a right to come to the aid of wounded and sick combatants, including enemy combatants.[37] This possibility was maintained and affirmed in Article 17 of Additional Protocol I, including in relation to wounded and sick civilians. Parties to a conflict have an obligation to take ‘all possible measures’ to search for and collect wounded and sick members of armed forces and to care for them.[38]
1743  The second sentence of paragraph 2 contains an important admonition: civilians and relief societies coming to the aid of the wounded and sick must ‘abstain from offering them violence’. This obligation is addressed to civilians and applies directly to them. At the same time, it denotes an important responsibility for States, in that authorities remain obliged to protect wounded and sick members of the armed forces from third parties, including civilians purporting to act as their rescuers but who mistreat or harm them instead. States have an obligation to make sure that the wounded and sick are treated humanely, whether they are in the hands of State agents or private citizens.[39]
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1. Inhabitants and relief societies
1744  The First Convention specifies that, in addition to the inhabitants, the authorities must permit relief societies to care for the wounded and sick. This addition was made in 1949 because the right of relief societies to so act was at times contested during the Second World War.[40] However, it does not define what constitutes a relief society for the purposes of this article and there was no discussion on the matter at the Diplomatic Conference in 1949.[41] There are some indications that the term should be construed to mean local organizations such as National Red Cross or Red Crescent Societies, but not be limited to them. In particular, Article 17 of Additional Protocol I, which extends the principle to wounded and sick civilians without altering the meaning of Article 18 of the First Convention, states, ‘such as national Red Cross (Red Crescent, Red Lion and Sun) Societies’, suggesting that those organizations are included but do not have an exclusive right of action in this regard. When Article 17 was adopted at the Diplomatic Conference in 1977, the Holy See stated that it had joined the consensus ‘in the conviction that the reference to the national Red Cross (Red Crescent, Red Lion and Sun) Societies does not imply any limitation on the initiative and the action of other aid societies’ (emphasis added).[42]
1745  The parallel right of individuals is accorded to ‘the inhabitants’, meaning persons already relatively close to the hostilities or to places where the wounded and sick require assistance. Logically, the right is not limited to relief organizations in the immediate vicinity of the wounded or sick, but to those present in the territory where the conflict is occurring. It does not extend to foreign or international organizations, which are covered by other provisions.[43] Article 18 affirms, moreover, that the military authorities shall permit relief societies to carry out activities for the wounded and sick in occupied or invaded territories.[44]
1746  When relief organizations spontaneously provide assistance to the wounded and sick, they should adhere to humanitarian principles, in particular impartiality.[45] Especially for organizations providing medical relief, impartiality coincides with medical ethics and the principle that those whose needs are greatest must be treated first, no matter to which side they belong.[46]
1747  When individual civilians spontaneously assist the wounded and sick, they are under no obligation to be strictly impartial in their sentiments, but they must be so in their actions. In addition, they must be ‘humanitarian’. Thus, like any other persons providing medical care, they should not view a wounded combatant as an enemy but simply as a human being in need of care. This is further emphasized in paragraph 2 by the admonition that civilians must not harm the wounded and sick.
1748  Again, it must be stressed that individuals and members of aid societies may not use the emblem on their facilities or their persons unless they have been specifically authorized to do so by the competent authorities.[47]
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2. Spontaneous action by inhabitants and relief societies
1749  Article 18 stipulates that individuals and relief societies may act ‘spontaneously’ to collect and care for the wounded and sick. Read in the light of the first paragraph, which allows such actions to be undertaken in response to an appeal, ‘spontaneously’ in the second paragraph may logically be interpreted to mean that individuals and relief societies may also take such actions on their own initiative. This interpretation is further supported by discussions during the Diplomatic Conference in 1977 in relation to Article 17 of Additional Protocol I, when the word ‘spontaneously’ was discussed in detail. Delegates in 1977 were concerned that the word ‘spontaneously’ could be interpreted narrowly so as to exclude organized relief efforts.[48] However, there is no indication in the record that Article 18 of the First Convention had been interpreted in that manner.[49] Their concerns were not therefore a reaction to how Article 18 had been applied in practice. Nevertheless, to ensure that organized relief action, in particular by aid societies, could not be excluded from the purview of Article 17 of Additional Protocol I, delegates to the 1977 Diplomatic Conference preferred the formulation ‘on their own initiative’ to ‘spontaneously’. They wanted to make sure that any relief society that was organized would not be prevented from providing aid on the grounds that it was not ‘spontaneous’, while preserving the freedom of individual persons to offer assistance of their own accord.[50] Therefore, ‘spontaneously’ in Article 18 of the First Convention should be interpreted as having the same meaning as ‘on their own initiative’ in Article 17 of Protocol I.
1750  The word ‘spontaneously’ serves another important purpose, which is to remind Parties to conflicts that local civilian inhabitants can – and often do – rush to the site of an attack or explosion to collect and care for wounded persons. However, follow-up attacks, described as ‘explosions intended to cause as many injuries and deaths as possible, including amongst those assisting the victims of a previous explosion’, have become a worrying phenomenon in recent times.[51] Such attacks, which have been known to target first responders directly, arguably deter civilians from going to the aid of the wounded and sick, and this may be contrary to the spirit of the Convention in general and Article 18 in particular. The express recognition of the right – and by implication the likelihood – of spontaneous civilian response in areas affected by hostilities must also be considered by attacking commanders, especially when assessing the legality of a follow-up attack against non-wounded combatants or a military objective. That response will influence the assessment of the necessary precautionary measures to be taken and of the expected incidental harm to civilians.[52] When considering or engaging in follow-up attacks, attackers must take into account the presence of all first responders, from trained medical personnel to local civilians who happen to be present, and take all necessary precautions to avoid or minimize incidental harm to them. An attacker should wait until first responders ‘have collected and evacuated the wounded and sick from the scene of a prior attack’.[53]
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3. To collect and care for the wounded and sick
1751  To what has already been stated regarding the collection and care of the wounded and sick, it should be added that the drafters of Article 17(1) of Additional Protocol I supported a notion of spontaneous ‘care’ that is broader than strict medical assistance. In their view, such care may also include immediate humanitarian relief, including clothing or food.[54] This understanding is consistent with the humanitarian purpose of Article 18.
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4. Relationship with the military authorities
1752  Unlike the first paragraph, the second paragraph of Article 18 does not mention that spontaneous relief efforts are subject to the direction of the military authorities. This is not an oversight; it is, rather, the reflection of a choice explicitly made by the Diplomatic Conference in 1949. The drafting history reveals an important and principled stance.
1753  The conferences of experts that had prepared the draft conventions for the Diplomatic Conference had thought it desirable to reconcile charitable with military requirements, and had agreed after long discussion to propose a provision whereby the inhabitants could not withhold the wounded and sick they had collected from possible control by the military authorities.[55] That condition appeared in the draft that was discussed at the Diplomatic Conference in 1949; however, the Diplomatic Conference insisted that the condition be deleted. Delegates at the conference refused to make the permission granted to the inhabitants to give spontaneous help dependent on the acceptance of military supervision, or on any kind of compulsory disclosure of information related to the wounded or sick.[56] At the time, the drafters were influenced by concerns, based on the experience of the Second World War, that informing the authorities could lead to negative repercussions for the wounded and for their rescuers. Such control is not prohibited, however, but the drafters felt that ‘it would be extremely undesirable that this should be mentioned in a humanitarian Convention’.[57] It may also be more difficult in practice for the authorities to exercise control over spontaneous relief efforts than when they have appealed for help.
1754  It is important to recall that Article 18 of the First Convention can apply to medical professionals. Some concern has been expressed that an obligation to denounce wounded or sick members of the adverse Party in such a person’s care could clash with the principle of medical secrecy.[58] The absence of a specific rule in the Convention thus led to some debate over the relationship between medical ethics – and in particular the rules governing medical secrecy – and a hypothetical obligation in national law (or created by occupying authorities) to report a wounded or sick person to the authorities.[59] Indeed, requiring medical personnel to report persons who are treated for specific types of wounds (e.g. bullet or stab wounds) is common in national legislation, in case a criminal investigation is warranted.
1755  The issue of medical secrecy was revisited in Additional Protocol I. Article 16(3) of the Protocol states:
No person engaged in medical activities shall be compelled to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who would have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families. Regulations for the compulsory notification of communicable diseases shall, however, be respected.[60]
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5. Respect for the wounded and sick by the civilian population
1756  The admonition that ‘the civilian population shall respect wounded and sick, and in particular abstain from offering them violence’ is the sole provision in the First Convention addressed specifically to the civilian population. Of course, there are many obligations in the Conventions and Protocols governing the protection of civilians, but this article is unique in setting an explicit standard of care that civilians themselves must meet when dealing with wounded and sick persons.[61] This sentence reiterates the basic principle set out in Article 12 of the First Convention and clarifies that civilian persons are also bound to respect and protect the wounded and sick. Its equivalent became the first line of Article 17 of Additional Protocol I.
1757  The existence of this obligation, coupled with the right of local inhabitants to collect and care for wounded and sick persons, highlights the importance of raising awareness of international humanitarian law, including among the general public, in order to promote respect for this rule and the Geneva Conventions more generally.[62] In this light, it should be recalled that wilful killing, torture, inhuman treatment and wilfully causing great suffering or serious injury to body or health of the wounded and sick are grave breaches of the Convention, including when they are committed by civilians.[63] In any case, doing violence to an incapacitated individual, even an individual associated with the armed forces of an enemy State, is so inherently inhumane that the prohibition in Article 18 should be self-evident, even if it bears repeating.
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E. Paragraph 3: No punishment for caring for the wounded or sick
1758  Paragraph 3 states that ‘no one may ever be molested or convicted for having nursed the wounded or sick’. This provision was included in Article 18 in the light of the practice of some States during the Second World War of executing doctors and others for caring for wounded enemy personnel, particularly resistance fighters in occupied territories.[64] Caring for the wounded or sick must not be regarded as an offence under any circumstances.[65] The right not to be harmed, harassed or convicted for exercising the right set down in the previous paragraph is crucial to protect those caring for the wounded and sick. It is in line with the overall object and purpose of the Convention: in order to protect the wounded and sick, those who collect and care for them, including civilian volunteers and relief societies, must also be respected and protected. Indeed, the aim of the provision is to prevent any repression or retaliation for such activities, via judicial or other mechanisms.
1759  The term ‘molested’ is broad. Although today it tends to connote sexual abuse, the word as used in the Convention means more generally to ‘pester or harass in a hostile way’.[66] It thus prohibits any form of harassment and prevents any criminal or administrative proceedings being brought against a person solely for having cared for the wounded or sick. The provision also prohibits extrajudicial forms of repression. It prevents any administrative measure (in particular a disciplinary measure) from being taken, or any form of annoyance, threat or harassment. Clearly, as it prohibits harassment on that level, it also prohibits any form of ill-treatment or violence to life as proscribed by international law. In the same context, Article 17(1) of Additional Protocol I uses the terms ‘harmed, prosecuted … or punished’. Those terms were added for the sake of completeness, but such acts are encapsulated in the term ‘molested’. If the specific terms of Article 17 of Protocol I are taken as additional concrete examples of behaviour that constitutes ‘molesting’ carers, ‘prosecute’ refers in particular to the examining magistrate and the public prosecutor, who should not bring such a case before the court, while ‘harm’ may refer to the investigation stage, which should not be embarked upon only for such a reason. ‘Molesting’ can also include detaining such persons at checkpoints unnecessarily or arresting them solely on the grounds that they collect and/or care for the wounded and sick. Actions such as confiscating medical records, in violation of humanitarian-law protections against disclosure of medical information to authorities, and disrupting the functioning of medical facilities are also prohibited forms of molestation. While armed entry into medical facilities in order to detain or question persons present there is not prohibited per se, the manner in which such entries are conducted must ensure that the wounded and sick continue to receive proper medical care. In short, it encompasses all acts that aim to deter or impede the provision of care to the wounded and sick for fear of attracting negative repercussions.[67]
1760  Lastly, a court should acquit anyone brought before it on a charge of having nursed the wounded or sick when the accused has acted in accordance with international humanitarian law and in compliance with medical ethics.
1761  Moreover, although it is stated in Article 18 in relation to the civilian population, the prohibition applies broadly to any person who cares for the wounded and sick. For States party to Additional Protocol I, this is clarified by Article 16(1) of the Protocol, which provides that ‘[u]nder no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefitting therefrom’.
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F. Paragraph 4: Continued responsibilities of the Occupying Power
1762  The final paragraph of Article 18 affirms that an Occupying Power is not released from its obligations to care for the wounded and sick if it relies on local inhabitants and relief societies. It continues to bear full responsibility for the fate of the wounded and sick. It is for the Occupying Power to see that their treatment is in all respects in conformity with the Convention, and to furnish the means necessary to achieve this. Indeed, the same is true when it comes to employing retained medical and religious personnel for the benefit of prisoners of war.[68]
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Select bibliography
Breitegger, Alexander, ‘The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 83–127.
Hutchinson, John F., Champions of Charity: War and the Rise of the Red Cross, Westview Press, Oxford, 1996.

1 - The effectiveness of local organizations in addressing needs generated by disasters and situations of armed conflict has been acknowledged in a number of reports. See e.g. Tsunami Evaluation Coalition, Joint evaluation of the international response to the Indian Ocean tsunami: Synthesis Report, July 2006, pp. 91–92 and 110–111; United Kingdom (Lord Ashdown), Humanitarian Emergency Response Review, July 2011, pp. 33–34.
2 - First Convention, Articles 12 and 15.
3 - See e.g. Argentina, Law of War Manual, 1969, para. 3.006; Cameroon, Instructor’s Manual, 1992, p. 96, and Instructor’s Manual, 2006, p. 81, para. 401; Canada, LOAC Manual, 2001, para. 906.1; Germany, Military Manual, 1992, para. 632; Kenya, LOAC Manual, 1997, Précis No. 3, p. 11; New Zealand, Military Manual, 1992, para. 1003(4); Russian Federation, Military Manual, 1990, para. 15; Switzerland, Basic Military Manual, 1987, Article 75; Turkey, LOAC Manual, 2001, p. 70; and United Kingdom, Military Manual, 1958, para. 345, and Manual of the Law of Armed Conflict, 2004, para. 7.38.1. In its Law of War Deskbook, 2012, p. 47, the United States warns against treating wounded or sick civilians differently from wounded or sick combatants in practice, even though it might not recognize this as a legal obligation, it not being currently party to Additional Protocol I. The manual also reiterates the voluntary participation of the local population in relief efforts.
4 - Geneva Convention (1864), Article 5: Inhabitants of the country who bring help to the wounded shall be respected and shall remain free. Generals of the belligerent Powers shall make it their duty to notify the inhabitants of the appeal made to their humanity, and of the neutrality which humane conduct will confer. The presence of any wounded combatant receiving shelter and care in a house shall ensure its protection. An inhabitant who has given shelter to the wounded shall be exempted from billeting and from a portion of such war contributions as may be levied.
5 - Geneva Convention (1906), Article 5; Geneva Convention on the Wounded and Sick (1929), Article 5.
6 - Hutchinson, pp. 126–133. See also Charles Sperry, ‘The Revision of the Geneva Convention, 1906’, Proceedings of the American Political Science Association, Vol. 3, 1907, p. 37. The preparatory documents for the 1906 Diplomatic Conference to revise the 1864 Convention recommended that Article 5 be deleted, and a motion to this effect was made during the conference. Proceedings of the Geneva Diplomatic Conference of 1906, pp. 17 and 161.
7 - Hutchinson, pp. 109–117.
8 - Ibid. pp. 117–138. Other commentators argued that changes in the way battles were fought made it unlikely that civilians would be in a position to undertake such roles. See Auguste-Raynald Werner, La Croix-Rouge et les conventions de Genève : Analyse et synthèse juridiques, Geneva, Georg & Cie, 1943, pp. 194–195.
9 - See also Proceedings of the Geneva Diplomatic Conference of 1906, pp. 182–184 and 198–200.
10 - Geneva Convention (1906), Article 5; Geneva Convention on the Wounded and Sick (1929), Article 5. See also Proceedings of the Geneva Diplomatic Conference of 1906, pp. 182–184 and 198–200.
11 - See Geneva Convention (1906), Articles 18–23, and Geneva Convention on the Wounded and Sick (1929), Articles 19–24.
12 - These elements are evident from statements made during the expert meetings held to prepare the new conventions for the Diplomatic Conference, although no detail was provided. Report of the Preliminary Conference of National Societies of 1946, pp. 24–25, and Report of the Conference of Government Experts of 1947, pp. 20–23.
13 - First Convention, Articles 15 and 12. See also Additional Protocol I, Article 10.
14 - In Article 17 of Additional Protocol I, when indicating who may make such an appeal, the term ‘Parties to the conflict’ was chosen in order to encompass civilian as well as military authorities. See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 720.
15 - Despite finding that medical care for wounded prisoners of war just after capture was inadequate on both sides in the 1998–2000 Ethiopia-Eritrea conflict (although not to the extent of being a violation of the Convention), the Claims Commission does not appear to have enquired into whether commanding officers had sought to alleviate shortages by requesting assistance from the local population. Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 69–70; Prisoners of War, Eritrea’s Claim, Partial Award, 2003, paras 64–65.
16 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 143. At ibid. p. 192, the Drafting Committee explained: ‘The Committee wished to make special provision for the case of occupied countries and to prevent, under the guise of an appeal to charitable zeal, the Occupying Authority from bringing pressure to bear on the population in order to induce them, even against their own will, to give prolonged treatment to the wounded, and thus relieve the Occupying Power of one of its principal responsibilities.’ Belligerents and Occupying Powers may compel protected persons to undertake certain forms of work, for which they must be compensated (Fourth Convention, Articles 40 and 51). They may not compel such persons to take part in military operations. The fact that civilians cannot be compelled to respond to an appeal to assist the wounded and sick does not mean that collecting and caring for the wounded and sick entails taking part in military operations; rather, compelled labour must be compensated, whereas Article 18 allows for an appeal to ‘charity’, implying that it is not necessary to provide compensation for such acts.
17 - Additional Protocol I, Article 17(2).
18 - Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 242–243.
19 - In addition, there is nothing in the preparatory work for the First Convention to indicate that the drafters sought to exclude the possibility for military authorities to request assistance from local aid agencies or relief organizations. For the debates concerning Article 18, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 49 and 51–52, and Vol. III, p. 35, amendments 30 and 31 to the Wounded and Sick Convention.
20 - First Convention, Article 24; Additional Protocol I, Article 8(k). See also the discussion of ‘control’, section C.5.
21 - See also Article 12 and its commentary, para. 67.
22 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 51 and 143.
23 - See also Article 15 and its commentary, paras 8–9.
24 - The collection of the dead was considered too onerous a task for local inhabitants to undertake: see Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, p. 486. The UK delegation ‘felt that it was not right that civilian populations and relief societies should be expected to collect the dead, with the possible exception of those at sea’.
25 - Article 5 of the 1906 Geneva Convention used the term ‘immunities’ instead of ‘facilities’. There was some debate over the meaning of the word ‘immunities’ and whether it included a dispensation from a requirement to billet troops. See Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 37–38.
26 - See e.g. Third Convention, Article 74(1); Fourth Convention, Article 61(3); and Additional Protocol I, Article 70(2).
27 - See Kate Mackintosh, ‘Beyond the Red Cross: the protection of independent humanitarian organizations and their staff in international humanitarian law’, International Review of the Red Cross, Vol. 89, No. 865, March 2007, pp. 113–130; Abby Stoddard, Adele Harmer and Katherine Haver, Aid Worker Security Report 2011, Spotlight on security for national aid workers: Issues and perspectives, Humanitarian Outcomes, 2011. Note, however, that Article 71(2) of Additional Protocol I states that ‘[relief personnel] shall be respected and protected’.
28 - See First Convention, Article 15. In addition, it should be recalled that ‘[i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance … mission …, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict’ is a war crime under Article 8(2)(b)(iii) of the 1998 ICC Statute.
29 - See section E.
30 - See section B for early examples of abuses of the emblem in relation to this article. However, some relief societies, in particular National Red Cross and Red Crescent Societies, are entitled to use or wear the emblem on a separate legal basis. For details, see Article 44 and its commentary, section D. See also the specific regime of Article 26 of the First Convention.
31 - First Convention, Article 21; Fourth Convention, Article 18. Or, if Additional Protocol I applies, Article 18 of the Protocol.
32 - Additional Protocol I, Article 8. The First Convention does, however, allow for increasing the number of medical personnel in a given situation via auxiliary medical personnel (Article 25) or use of the medical services of National Red Cross or Red Crescent Societies (Articles 26 and 27).
33 - Additional Protocol I, Article 8(k). It should be noted, however, that the rules on the use of the emblem do not prohibit other humanitarian organizations from using their own signs, flags, or clothing with their own logos identifying them, as long as those items will not lead to confusion with the red cross, red crescent or red crystal emblems. See especially Article 53 of the First Convention and its commentary, section D.
34 - The stipulation that the military authorities were responsible for supervising the collection and care of the wounded and sick by the local inhabitants was added in Article 5 of the 1906 Convention.
35 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 187–188. On the need to record and forward information, see Article 16 and its commentary. Article 14 of the First Convention stipulates that the wounded or sick who fall into enemy hands are prisoners of war; Article 12 of the Third Convention affirms that prisoners of war ‘are in the hands of the enemy, but not of the individuals or military units who have captured them’.
36 - See the commentary on Article 4 of the Third Convention.
37 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 51.
38 - First Convention, Articles 15 and 12. See also Additional Protocol I, Article 10.
39 - See First Convention, Article 12.
40 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 191.
41 - The possibility for relief societies to act spontaneously in this manner was suggested during the 1947 Conference of Government Experts. Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 191.
42 - Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. VI, p. 78.
43 - In particular, common Article 9 (Article 10 in the Fourth Convention) and Article 81 of Additional Protocol I. For non-international armed conflict, see common Article 3(2) and Additional Protocol II, Article 18(2).
44 - For a definition of occupation, see the commentary on common Article 2, section E.
45 - For more details on humanitarian principles, including the principle of impartiality, see the commentary on Article 9.
46 - See Article 12 and its commentary, section G.
47 - Article 18 of the Fourth Convention provides that the competent authorities (who may be military or civilian) may recognize and authorize civilian hospitals to use the emblem. See also Article 18 of Additional Protocol I.
48 - Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 237–244.
49 - Ibid.
50 - Ibid.
51 - ICRC, Health Care in Danger: Violent Incidents Affecting Health Care, January to December 2012, ICRC, Geneva, 2013, p. 9; Health Care in Danger: Violent Incidents Affecting the Delivery of Health Care, January 2012 to December 2013, ICRC, Geneva, 2014, p. 13.
52 - Additional Protocol I, Article 57(2)(a)(iii).
53 - Breitegger, pp. 109–110.
54 - See also para. 13. See also Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 159–163. This interpretation was advanced by the delegate of the Holy See and supported by the Swiss delegate; it encountered no opposition.
55 - Report of the Preliminary Conference of National Societies of 1946, pp. 24–25; Report of the Conference of Government Experts of 1947, pp. 20–23. This suggestion was already controversial during the 1947 Conference of Government Experts. The relevant part of the proposed article adopted at the 1948 Stockholm Conference stipulated: ‘The military authorities shall permit the inhabitants and relief societies, even in invaded or occupied areas, to offer in collecting and giving first aid to wounded or sick members of the armed forces, of whatever nationality, on condition that the latter shall not be withheld from the possible control of national or occupying authorities.’ Draft Conventions adopted by the 1948 Stockholm Conference, pp. 14–15.
56 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A pp. 51–52. The record states that the UK representative observed that ‘under the second paragraph [of the draft text] the civilian population would be obliged to hand over the wounded in their care to the enemy occupying their territory – and that, by virtue of a humanitarian Convention!’ The record adds: ‘He pressed for the omission of any such obligation.’
57 - Ibid. pp. 51–52 and 143; Remarks of the Rapporteur of the First Commission of the Diplomatic Conference, ibid, p. 192. See also Additional Protocol I, Article 16(3).
58 - International Law Association, International Medical Law, Conference Report (Buenos Aires), 1968, Vol. 53, pp. 539–588, especially at 542–549 and 558–573.
59 - Ibid.
60 - See the commentary on Article 16 of Additional Protocol I for a discussion of the content of this provision.
61 - Nevertheless, it should be recalled that, since the trials following the Second World War, the fact that civilians can also be perpetrators of war crimes more generally has been accepted. See, in particular, France, Permanent Military Tribunal at Metz, Bommer case, Judgment, 1947, pp. 65–66. On potential perpetrators, see Knut Dörmann, Elements of War Crimes under the Rome Statute, Cambridge University Press, 2003, pp. 34–37. See also the commentary on Article 50, section C.3.
62 - See the commentary on Article 47.
63 - See Article 50 and its commentary.
64 - See François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 478–479.
65 - States may have legislation prohibiting the performance of specific medical acts by persons who are not registered medical doctors or health practitioners, which, however, makes an exception for the provision of emergency medical care under certain conditions. Some States also have ‘Good Samaritan’ laws that may be relevant in these circumstances. For example, such laws may require people to go to the aid of a person in distress, or they may provide that rescuers who voluntarily and in good faith give first aid to a person in need are not liable for shortcomings in the care provided, unless there is gross negligence.
66 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 921.
67 - Threats against health-care personnel often have a negative effect on the delivery of care; see ICRC, Health Care in Danger: A Sixteen-Country Study, ICRC, Geneva, 2011, p. 10.
68 - See Article 28(4).