Treaties, States Parties and Commentaries
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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- PROTECTED PERSONS
[p.143] The purpose of this Article is to specify to what persons, on their being wounded or falling sick, the Convention applies.
A. ' Search for a definition. ' -- From the first the Geneva Convention accorded its protection to wounded and sick members of the armed [p.144] forces. But whereas in 1864 the only mention was of "officers and soldiers"(in French, "militaires"), in 1906 the wording adopted was "officers and soldiers and other persons officially attached to the armed forces".
In 1906 these terms might well appear clear and adequate. Whereas it was felt necessary to protect wounded officers and soldiers, civilians were regarded as being outside the struggle and enjoying general immunity.
But the idea of belonging to an army is a conception which gave rise to serious disputes during the Second World War, particularly when it came to determining the status of certain combatants who had fallen into the enemy's hands. It is common knowledge that national groups continued to take part in hostilities, whereas the enemy refused to acknowledge their belligerent status, and their members, or "partisans" as they were often called, fighting in more or less compact units in occupied territory or outside the mother country, were often not regarded by the enemy as being regular combatants.
This was one of the chief problems with which the experts and the International Committee of the Red Cross were concerned in dealing with the revision of the Geneva Conventions. It further engaged the full attention of the Diplomatic Conference of 1949.
It was in connection with the Convention relative to the treatment of prisoners of war that the problem called for consideration, and it was in connection with it that the solution was finally found. For it was in that Convention that the problem assumed its essential significance. It was necessary to determine what categories of persons falling into an enemy's hands were to be entitled to be treated as prisoners of war. Article 4
of the Third Geneva Convention of 1949 supplied the answer to this question.
When the Diplomatic Conference set out to define the categories of persons, to whom, on their being wounded or falling sick, the First Geneva Convention was to apply, it noted that the categories in question were precisely those which were entitled, on falling into the enemy's hands, to be treated as prisoners of war. The Conference was thus logically led to refer to the contents of Article 4 of the Third Convention
. There were two ways of doing this in practice. It was possible merely to refer to the Article in question, or alternatively to repeat its substance in the First Convention. The second of these solutions was the one adopted, in accordance with the general principle, to which the [p.145] Conference adhered wherever possible, of endeavouring to make each of the four Geneva Conventions an independent diplomatic instrument. The course thus adopted also covered the possible case of a Power being a party to the First Convention without having ratified the Third.
B. ' Value of the definition. ' -- In the Convention now under consideration the enumeration of the persons belonging to the armed forces has none of the importance which it has in the Third Convention. Its value in the present Convention is purely theoretical.
Article 4 of the Third Convention
is constitutive in character; and the enumeration which it gives is comprehensive. If an individual not belonging to one of the categories specified is captured after committing hostile acts, he may find himself denied the right to be treated as a prisoner of war, not to mention the punishments which may be inflicted on him.
On the other hand, this enumeration has not by any means the same significance in Article 13 of the First Convention
. In virtue of a humanitarian principle, universally recognized in international law, of which the Geneva Conventions are merely the practical expression, any wounded or sick person whatever, even a ' franc-tireur ' or a criminal, is entitled to respect and humane treatment and the care which his condition requires. Even civilians, when they are wounded or sick, have the benefit of humanitarian safeguards (as embodied in Part II of the Fourth Geneva Convention of 1949) very similar to those which the First Convention prescribes in the case of members of the armed forces; and the applicability of these safeguards is quite general. In this respect the two Conventions are entirely complementary, and cover the whole field of human suffering.
Article 13 cannot therefore in any way entitle a belligerent to refrain from respecting a wounded person, or to deny him the requisite treatment, even where he does not belong to one of the categories specified in the Article. Any wounded person, whoever he may be, must be treated by the enemy in accordance with the Geneva Convention. When a wounded person falls into the enemy's hands, the latter will have ample time to consider, at the proper time and place, what his status is, and whether he is or is not a prisoner of war.
At most, Article 13 will serve to determine under what Convention the wounded man is to be respected and cared for. Moreover, since [p.146] Article 14 of the Convention
stipulates that wounded and sick who fall into enemy hands are to be prisoners of war, it was desirable that the First and Third Conventions should be in exact concordance on the point. That does not, however, in any way alter the fact that the decision to expand Article 13 was taken in order to satisfy a desire for precision and not to meet a vital need.
C. ' The different categories. ' -- As Article 13 has its origin, and finds its real significance, in the Convention relative to the treatment of prisoners of war, the different categories which it enumerates cannot usefully be considered except in connection with the Third Convention. It will suffice to say that Article 13 of the First Convention in its recapitulation of the categories specified in Article 4 of the Third Convention
has not included those referred to in the latter Article under Part B. Part B relates to persons already in enemy hands or to persons coming under the control of a neutral Power; and such persons will not be found lying wounded or sick on battlefields.
See the Commentary of 2016