Traités, États parties et Commentaires
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Commentaire of 2016 
Article 34 : Property of aid societies
Text of the provision*
(1) The real and personal property of aid societies which are admitted to the privileges of the Convention shall be regarded as private property.
(2) The right of requisition recognized for belligerents by the laws and customs of war shall not be exercised except in case of urgent necessity, and only after the welfare of the wounded and sick has been ensured.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Discussion
    A. Introduction
    2342  Article 34 regulates the regime of real and personal property[1] of National Red Cross and Red Crescent Societies and of other aid societies which are admitted to the privileges of the Conventions (hereinafter referred to generically as ‘aid societies’). These aid societies include those duly recognized and authorized to render assistance to the medical service of the armed forces under the conditions of Article 26 of the First Convention, as well as those recognized societies of neutral countries which lend the services of their medical personnel and units to a Party to the conflict under the conditions of Article 27.
    2343  Article 34 contains rules detailing the fate of buildings and material of medical units and establishments belonging to these aid societies when they fall into enemy hands. The medical transports used by such societies are also covered by this provision.
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    B. Discussion
    1. Treatment as private property
    2344  Property belonging to the societies engaged in caring for the wounded and sick of the armed forces and used in connection with the assistance lent by these societies to the medical service of the armed forces must be regarded as private property and may never be taken as booty of war or confiscated.[2]
    2345  It was felt, already in 1906, that if the buildings and material of aid societies were to be treated as booty of war, this would affect the ‘development of these societies and make it far more difficult for them to find the resources they require. Private subscribers would not feel encouraged to make the sacrifices needed for the purchase of material, if it was liable to be captured out of hand.’[3]
    2346  When aid societies act in accordance with the role envisioned in Articles 26 and 27 of the First Convention, the property of these societies is protected, whatever its nature and wherever it might be. Protection is extended to both fixed and mobile units and establishments, as well as separate objects and vehicles, pharmaceutical products, etc. The Convention does not require that the material be actually owned by the aid societies. Article 34 covers all material used by them, irrespective of ownership. National Red Cross and Red Crescent Societies should therefore mark with the distinctive emblem the material or the premises they own or use in their capacity as auxiliaries to the medical services of the armed forces.[4]
    2347  When aid societies are working in functions other than as auxiliaries to the medical service of the armed forces, their property is not deprived of protection, but their protection flows from provisions such as Articles 57 and 63 of the Fourth Convention and Article 81 of Additional Protocol I.
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    2. Limitation of the right of requisition
    2348  Like all private property, real and personal property of aid societies can be subject to requisition by the adverse Party. The use of the word ‘requisition’ indicates that the scope of this paragraph is limited to situations of occupation. The right of requisition is acquired through occupation of enemy territory.[5] If the material in question is necessary to the occupying armed forces, they may requisition it. The consequences of such requisition are governed by Article 52 of the 1907 Hague Regulations. Fair compensation must be paid, however, and receipts given for all material handed over. In some cases, the requisition will involve a transfer of property, such as for medicines or other movable items. In other cases, an aid society’s ambulance could be briefly requisitioned and then returned to the aid society once the urgent medical needs have been met.
    2349  During the First World War, this right granted to the enemy armed forces was abused by some belligerents, leaving some aid societies unable to care for the wounded and sick of the armed forces once their material had been requisitioned.[6] It was therefore felt necessary to limit this right.[7] Under Article 34, the right of requisition of the real and personal property of aid societies is subject to a twofold limitation: first, it presupposes an urgent medical and not military need, and second, that proper arrangements are made for the care of the wounded and sick concerned.[8]
    2350  Accordingly, the right to requisition the real and personal property of aid societies must only be exercised as an exceptional measure, when it is absolutely necessary to do so in order to assist the wounded and sick.[9] A similar understanding applies to civilian hospitals. Article 57 of the Fourth Convention provides that the Occupying Power may requisition civilian hospitals only temporarily and only in cases of urgent necessity for the care of wounded and sick military personnel, and on condition that suitable arrangements are made in due time for the care and treatment of the hospitals’ existing patients and for the future hospital needs of the civilian population.
    2351  Article 34 speaks of the obligation of the belligerents to ensure the ‘welfare’ of the wounded and sick. The French text speaks only of ‘le sort des blessés et des malades’ (‘the fate of the wounded and sick’). It is submitted that the belligerents must both meet the medical needs and ensure the basic well-being of the wounded and sick before they can requisition, for example, a mobile medical unit belonging to an aid society under Article 34 of the Convention.
    2352  Widespread violations of this provision, involving the requisitioning of medical material belonging to aid societies without fulfilling the prescribed conditions spelled out in Article 34, may trigger the individual criminal responsibility of the perpetrator under the grave breach of extensive appropriation of property laid down in Article 50 of the First Convention.
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    3. Right of seizure
    2353  Article 34 is silent as to the right of seizure by belligerents of real and personal property of aid societies both during occupation and outside situations of occupation. In situations of occupation, private property, such as means of transport of persons or things may be seized by the enemy but must be restored and compensation fixed when peace is made.[10] However, it can be assumed that the limitations imposed by Article 34 on the right of requisition would extend to the right of seizure of property belonging to or used by aid societies.[11] In a situation of occupation, there would be no reason to differentiate between a belligerent’s right to seize and its right to requisition the real and personal property of aid societies.
    2354  As to the right of seizure which exists in military operations outside of a context of occupation, belligerents may seize enemy property when such seizure is imperatively demanded by the necessities of war.[12] The laws of war did not carve out exceptions applicable to the real and personal property of aid societies. Therefore, it does not appear that the limitations imposed on the right of the enemy to requisition property of aid societies contained in Article 34 extend to seizure of that property outside of situations of occupation.[13] Article 34 is silent as to the right of seizure by belligerents of property of aid societies, and the absence of recent State practice in this respect does not allow for a different conclusion.

    1 - ‘Real and personal property’ means movable and non-movable property. The equally authentic French version of this provision reads ‘biens mobiliers et immobiliers’.
    2 - As mentioned in the commentary on Article 33, para. 2329, there is a recognized right of belligerents to take and use freely any movable public property of the enemy as booty of war. For the concept of booty of war, see Yoram Dinstein, ‘Booty in Warfare’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, version of March 2008, Oxford University Press, http://opil.ouplaw.com/home/EPIL; William Gerald Downey,‘Captured Enemy Property: Booty of War and Seized Enemy Property’, American Journal of International Law, Vol. 44, 1950, pp. 488–504; Elyce K.D. Santerre, ‘From Confiscation to Contingency Contracting: Property Acquisition On or Near the Battlefield’, Military Law Review, Vol. 124, Spring, 1989, pp. 111–161; H.A. Smith. ‘Booty of War’, British Yearbook of International Law, Vol. 23, 1946, pp. 227–239; and Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, commentary on Rule 49, pp. 173–175, available at https://www.icrc.org/customary-ihl/eng/docs/v1_rul. Private property, on the contrary, cannot be confiscated, i.e. appropriated without any form of compensation; see Hague Regulations (1907), Article 46; see also Articles 52 and 53(2).
    3 - Louis Renault, rapporteur to the 1906 Diplomatic Conference, cited in Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 278. See Geneva Convention (1906), Article 16. There was not much debate on this issue in 1949. However, both in 1906 and in 1929 some States felt that as aid societies were merged into the medical service of the armed forces, their material should be placed on the same footing as that of the armed forces. See the views of the Japanese and UK delegates cited in John F. Hutchinson, Champions of Charity: War and the Rise of the Red Cross, Westview Press, Boulder, Colorado, 1996, pp. 198–199. Their view, however, did not prevail.
    4 - See, in particular, Article 42 of the First Convention, as well as the 1991 Emblem Regulations.
    5 - See Rudolf Dolzer, ‘Requisitions’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. III, 1997, pp. 205–208; Santerre, Elyce K.D. ‘From Confiscation to Contingency Contracting: Property Acquisition On or Near the Battlefield’, Military Law Review, Vol. 124, 1989, pp. 111–161, at 112; and Avril McDonald and Hanna Brollowski, ‘Requisitions’, version of April 2011, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.
    6 - See Proceedings of the Geneva Diplomatic Conference of 1929, p. 201.
    7 - See Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 104–105, and Proceedings of the Geneva Diplomatic Conference of 1929, pp. 200–209.
    8 - On the imposition of new limitations and the discussions in 1929, see Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 104–105. See also the wording of Article 16(3) of the 1929 Geneva Convention on the Wounded and Sick.
    9 - This understanding was also shared in 1929. The preparatory work for the 1929 Geneva Convention on the Wounded and Sick make it clear that only urgent medical necessity would allow an infringement of the protection of private property and permit requisition of the real and personal property of aid societies. See Proceedings of the Geneva Diplomatic Conference of 1929, p. 203, during which the Secretary General of the Conference stated clearly that ‘la réquisition est subordonnée aux nécessités des soins immédiats à donner aux blessés. Si c’est pour le soin urgent des blessés que l’on réquisitionne et retient ce matériel, cela se comprend mais si ce matériel n’est pas indispensable, il faut le rendre’ (‘requisition is subordinated to the necessity of providing immediate care to the wounded. If the requisition and retention of this material takes place in order to dispense urgent care to the wounded, that is understandable, but if this material is not indispensable, it must be returned’); see also the position of the representative of the Netherlands, p. 202.
    10 - See Hague Regulations (1907), Article 53(2).
    11 - This would also be in line with the treatment accorded to civilian hospitals under Article 57 of the Fourth Convention and to National Red Cross and Red Crescent Societies or other relief societies under Article 63 of the Fourth Convention.
    12 - Article 23(g) of the 1907 Hague Regulations provides for an exception to the prohibition on destroying or seizing enemy property, when ‘such destruction or seizure is imperatively demanded by the necessities of war’.
    13 - While the terms ‘seizure’ and ‘requisition’ appear in Section III of the 1907 Hague Regulations in relation to situations of occupation, the definition of these concepts in other contexts, such as military operations or sea prizes, can vary in the literature. See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 256–257.