Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 14 : Status of the wounded and sick who have fallen into enemy hands
Text of the provision
Subject to the provisions of Article 12, the wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Discussion
  • Select bibliography
    A. Introduction
    1  Article 14 defines the status of a wounded or sick member of the armed forces who falls into enemy hands.[1] In that situation, a member of the armed forces is both a wounded or sick person needing treatment and an individual who is entitled to become – and thus becomes – a prisoner of war. The First and Third Conventions will therefore apply simultaneously.
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    B. Historical background
    2  Both the 1906 and 1929 Geneva Conventions on the Wounded and Sick contained a provision affirming that a wounded or sick member of the armed forces who falls into enemy hands is a prisoner of war and that ‘the general provisions of international law concerning prisoners of war shall be applicable to them’.[2] Article 14 was thus included in the 1949 First Convention without controversy.
    3  As a point of historical interest, in the deliberations on this issue during the negotiation of the 1929 Convention, one delegation proposed that while wounded or sick prisoners of war were hospitalized they should have a special, privileged status distinct from that of prisoners of war.[3] The proposal was rejected for a number of reasons, not least because of the endless conundrums and inequalities that such a status might create. Moreover, it was agreed that if the existing rules on the treatment of the wounded and sick and prisoners of war were observed conscientiously, no special status should be necessary to ensure that the wounded and sick received all the care required by and appropriate to their condition.[4]
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    C. Discussion
    1. Simultaneous application of the Conventions
    4  As wounded and sick combatants who have fallen into enemy hands are prisoners of war, they are covered by both the First and Third Conventions. Those who do not recover from their initial wounds or sickness by the end of the conflict and are still in enemy hands remain protected by the First Convention until the moment specified in Article 5 – their final repatriation.
    5  When wounded or sick prisoners of war have recovered, the First Convention no longer applies to them, but they remain protected by the Third Convention until the moment specified in Article 5 of that Convention – their final release and repatriation.[5] If they are wounded or fall sick again while prisoners of war, they are protected only by the Third Convention, which in any case requires a standard of medical care and hygiene that is at least equivalent to that set down in the First Convention.[6] In either case, wounded and sick persons in enemy hands must be provided with the treatment their condition requires.[7]
    6  The First Convention relates primarily to the wounded and sick in armed forces in the field, whereas the Third Convention regulates the treatment of prisoners of war, and includes a whole series of detailed provisions relating to the various aspects of their captivity. The level of detail in each Convention is tailored to the circumstances and context in which it is anticipated to apply. Thus, during hostilities or in their immediate aftermath, the obligations set out in the First Convention would predominate. The further removed the hostilities are in time and space, the more the detailed provisions of the Third Convention gain precedence.
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    2. ‘Subject to the provisions of Article 12’
    7  The clause ‘[s]ubject to the provisions of Article 12’ makes clear that the paramount concern in regard to wounded or sick members of the armed forces who fall into enemy hands is that they are respected and protected, treated humanely and cared for, as required by Article 12. Thus, for example, in urgent cases a Power detaining wounded or sick persons must prioritize medical care over measures to restrict their liberty.
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    3. Falling into enemy hands
    8  Article 14 stipulates that the ‘wounded or sick of a belligerent who fall into enemy hands’ are prisoners of war. The phrase ‘fall into enemy hands’ is sufficiently broad to cover capture or surrender and the taking of wounded persons into the enemy’s medical units to care for them. It also encompasses the mere act by the opposing forces of providing treatment on the battlefield: when wounded combatants are being tended to by the adverse Party, that Party is in a position to exert a degree of control over them, amounting to a situation that entails prisoner-of-war status.
    9  The 1929 Geneva Convention on the Wounded and Sick uses the phrase ‘fall into the hands of the enemy’, while the 1929 Geneva Convention on Prisoners of War uses the word ‘capture’.[8] During the Second World War, some Detaining Powers denied prisoner-of-war status to combatants who had surrendered, arguing that surrender was not the same as ‘capture’.[9] To avoid the recurrence of such situations, Article 4 of the Third Convention adopted the wording ‘fallen into the power of the enemy’, such that the First and Third Conventions are now, in essence, identical on this point.[10]
    10  As noted in the commentary on Article 13, the interpretation of the criteria for determining whether a person is entitled to prisoner-of-war status has been the subject of some controversy. These debates are most relevant to – and can best be understood in the context of – provisions relating to prisoners of war and are therefore discussed in the commentary on Article 4 of the Third Convention.
    11  Lastly, although in setting down who is a prisoner of war Article 14 uses the looser formulation ‘the wounded and sick of a belligerent’ rather than the more technical terms used in Article 13, the definition of prisoners of war in the First Convention is not meant to diverge from that in the Third Convention. This understanding is confirmed by the placement of Article 14 in sequence after Article 13, combined with the desire of the drafters to ensure coherence across the Conventions.
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    4. Protection afforded to prisoners of war under international law
    12  Article 14 states not only that the wounded and sick who fall into enemy hands ‘shall be prisoners of war’, but that all ‘the provisions of international law concerning prisoners of war shall apply to them’. This phrase was chosen over a reference only to the Third Convention to make clear that all international law related to the protection of prisoners of war would remain applicable, in particular in the event that some States became Parties to the First Convention but not the Third or that the text of the Third Convention was revised but not that of the First Convention.[11] That fear did not materialize, however, as States have ratified the four Geneva Conventions together, such that the detailed provisions of the Third Convention will apply.[12] In any case, the Third Convention is also generally considered to reflect customary international law.[13]
    13  Unlike its predecessors in the 1906 and 1929 Conventions, Article 14 does not specifically provide for the conclusion of special agreements on matters such as the return of the wounded or their transfer to a neutral State. However, common Article 6 of the 1949 Conventions (Article 7 in the Fourth Convention) provides for the possibility of concluding such agreements with respect to protected persons as long as they do not derogate from the protections afforded by the Conventions.[14]
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    Select bibliography
    Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 192–194.

    1 - For the purposes of the commentary on this article, the phrase ‘member of the armed forces’ includes those persons who are not members of the armed forces of a Party to a conflict but who nevertheless come within the scope of Article 13 of the First Convention.
    2 - Geneva Convention on the Wounded and Sick (1929), Article 2. The wording of Article 2 of the 1906 Geneva Convention is almost identical, stipulating that ‘the general rules of international law concerning prisoners become applicable to them’. The 1864 Geneva Convention did not address the subject.
    3 - Proceedings of the Geneva Diplomatic Conference of 1929, pp. 102–103 and 108–115.
    4 - Ibid. pp. 142–144 and 600–601. See also Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 19–21.
    5 - Third Convention, Article 5. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 143.
    6 - Many provisions in the Third Convention relate to the medical care of prisoners of war: see, for example, Article 15, as well as Articles 19–20, 29–32, 46–47, 49, 54, 55, 98, 109–110, 112–114 and all other provisions relating to a healthy environment, sufficient food, etc. for prisoners of war.
    7 - See, in particular, Article 12 of the First Convention and Articles 29–31 of the Third Convention.
    8 - Geneva Convention on the Wounded and Sick (1929), Article 2; Geneva Convention on Prisoners of War (1929), Articles 1 and 2, respectively.
    9 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 50. See also Bugnion, p. 194: ‘[I]n 1945 the Allies refused prisoner-of-war status for German and Japanese soldiers who fell into their hands after the capitulation of their respective countries, claiming that their situation was not covered by the 1929 Convention. Instead, they were classed as “Surrendered Enemy Personnel”.’
    10 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 237. The French text of Article 14 of the First Convention and Article 4 of the Third Convention is even closer: ‘tombés au pouvoir de l’adversaire’ (Article 14) and ‘tombées au pouvoir de l’ennemi’ (Article 4).
    11 - Draft Conventions submitted to the 1948 Stockholm Conference, commentary on draft article 11, pp. 10–11.
    12 - Where applicable, Additional Protocol I may also be relevant to determine who is entitled to prisoner-of-war status. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 106.
    13 - See Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 1 July 2003, para. 41, and Prisoners of War, Ethiopia’s Claim 4, Partial Award, 1 July 2003, para. 32.
    14 - For the predecessors of Article 14, see Geneva Convention (1906), Article 2, second paragraph, and Geneva Convention on the Wounded and Sick (1929), Article 2, second paragraph. As regards the 1949 Conventions, Article 15 of the First Convention affirms that agreements can be made to exchange the wounded on the battlefield, and Articles 109–111 of the Third Convention regulate the return of sick or wounded prisoners of war and provide for the conclusion of agreements in that regard.