Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 33 : Buildings and material of medical units and establishments
Text of the provision*
(1) The material of mobile medical units of the armed forces which fall into the hands of the enemy, shall be reserved for the care of wounded and sick.
(2) The buildings, material and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war, but may not be diverted from their purpose as long as they are required for the care of wounded and sick. Nevertheless, the commanders of forces in the field may make use of them, in case of urgent military necessity, provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them.
(3) The material and stores defined in the present Article shall not be intentionally destroyed.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Discussion
    A. Introduction
    2325  Article 33 governs the fate of medical property belonging to the armed forces when it falls into the hands of the enemy. This may happen either during the conduct of hostilities or in situations of occupation. The provision covers both ‘fixed’ and ‘mobile’ medical units, although the Convention does not define either of these concepts.[1]
    2326  In its ordinary meaning, ‘mobile’ means ‘able to move or be moved freely or easily’.[2] Mobile medical units are therefore establishments which can move from place to place as circumstances require and according to the movements of the troops. Field hospitals and any other establishment, however small, where wounded and sick persons are collected and cared for, constitute mobile medical units.
    2327  The word ‘fixed’ can be understood as ‘fastened securely in position’.[3] Fixed medical establishments are, therefore, permanent buildings used as hospitals and stores. Stores, in turn, can be defined as the places where pharmaceutical or any other medical equipment or supplies are kept and therefore fall within the category of buildings and material. This article does not regulate medical transports or vehicles of the armed forces, such as ambulances.[4]
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    B. Discussion
    1. Mobile medical units and their material
    2328  Article 33(1) deals with the material of mobile medical units.[5] At first, the provision would seem to be silent as to the fate of the mobile medical units themselves. However, in most instances it would be difficult to differentiate between the physical structure of such a unit and the material it contains, as the value of mobile medical units resides in the material contained therein. Accordingly, mobile medical units and all their material are covered by Article 33.[6]
    2329  The mobile medical units of the armed forces and their material which fall into the hands of the enemy must be reserved for the care of the wounded and sick. This represents a limitation to the traditionally recognized right of a belligerent to take and use freely any movable public property of the enemy as booty of war.[7] Thus, mobile medical units of the armed forces and their material which have fallen into enemy hands must be reserved for the treatment and care of the wounded and sick. They may not be diverted from their original purpose, even in case of urgent military necessity. Such a limitation is not imposed on fixed medical establishments; therein lies the major difference between the regimes for fixed medical establishments and mobile medical units of the armed forces.
    2330  The 1949 Diplomatic Conference rejected a proposal put forward by the 1947 Conference of Government Experts to treat the material of mobile and fixed medical units and establishments in the same way. Had the proposal been accepted, it would have meant that the material of mobile medical units and establishments might have been liable to become booty of war.[8]
    2331  The wounded and sick present in the mobile medical units must be cared for alongside any other wounded or sick persons, as their medical condition requires. In line with the accepted principle of impartiality of care, any wounded or sick persons must be cared for by the Party to the conflict in whose power they may be.[9]
    2332  Unlike the 1906 and 1929 Geneva Conventions on the Wounded and Sick, Article 33(1) does not contain any obligation to restore mobile medical units and their material to their country of origin during hostilities. Under the regime of the 1929 Convention, mobile medical units which had fallen into enemy hands were to be restored, together with their equipment and stores, their means of transport and the drivers employed, under the conditions laid down for medical personnel, as far as possible at the same time as the medical personnel.[10] The 1949 Diplomatic Conference, having changed the rules governing medical personnel, including by creating the possibility of retaining them, chose not to require restoration of mobile medical units and their material to their country of origin during hostilities. The practical difficulties of doing so also influenced the decision.[11]
    2333  The First Convention is also silent on the fate of mobile medical units and their material at the end of hostilities. Unless otherwise provided, for example in a peace treaty, their fate is governed by the laws of war. As movable public property, the State which had originally owned the mobile medical units can neither demand their restoration nor request compensation.[12] The absence of practice found since 1949 on this issue has not allowed any further clarification of this point.
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    2. Fixed medical establishments
    2334  The buildings, material and stores of fixed medical establishments of the armed forces which fall into enemy hands remain subject to the laws of war. This means that the material and stores of fixed medical establishments, being movable public property of the enemy State, can be taken as booty of war.[13] A State which takes booty is regarded as acquiring property without any obligation of restitution or compensation. Buildings, on the other hand, being real property of the enemy State, will not be war booty but can be used and administered by the Party into whose hands they have fallen.[14]
    2335  The regime is subject to an important limitation as the buildings, material and stores of fixed medical establishments cannot be diverted from their purpose if they are required for the care of the wounded and sick. In other words, the Party into whose hands they have fallen may not make use of them for its own purposes so long as the interests of the wounded and sick demand otherwise. However, contrary to what is provided for mobile medical units, an exception of military necessity applies to fixed medical establishments. In case of urgent military necessity, the enemy can make use of these facilities for other purposes, provided that they make alternative arrangements for the ‘welfare’ of the wounded and sick who are being cared for therein.[15] As is clear from the words ‘urgent military necessity’, the use by the enemy of fixed medical establishments for purposes other than the care of the wounded and sick should be seen as a measure of last resort.
    2336  Article 33(2) tries to strike a balance between the necessity of ensuring the care of the wounded and sick present in fixed medical establishments and the realities of war. Thus, the regime governing the buildings, material and stores of fixed medical establishments of the armed forces, while subject to the laws of war, is limited by an exception based on humanitarian considerations. This exception is in turn tempered by a further concession to military realities, which are once again subordinated to humanitarian requirements.
    2337  In recent decades, no practice, in particular concerning the circumstances that could amount to ‘urgent military necessity’, could be found justifying the use of fixed medical establishments for other than medical purposes.
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    3. Prohibition of intentional destruction of material and stores
    2338  The material and stores of mobile and fixed medical establishments must not be intentionally destroyed. This obligation applies equally to the property of the enemy and to a Party’s own property.[16]
    2339  This provision was a new addition in 1949, not having featured in the 1906 or 1929 Geneva Conventions. It represents an important step forward in international humanitarian law, as it goes further than a simple obligation to protect the material and stores of medical establishments against destruction by the enemy. It also aims to discourage those holding the said material and stores from destroying them to prevent them falling into enemy hands.[17] Article 33(3) would prevent someone from relying in court on the exception of urgent military necessity contained in Article 23(g) of the 1907 Hague Regulations as a pretext for the destruction of the medical material and stores. For example, in the Hostages case in 1948, the defendant Rendulic justified his ‘scorched earth’ policy on the grounds that it was a precautionary measure against an attack by advancing forces. The Tribunal found that the operational conditions as they appeared to Rendulic at the time were sufficient to warrant his belief that urgent military necessity required the destruction of private and public property in the province of Finnmark in Norway.[18]
    2340  Article 33(3) covers the material and stores of both mobile and fixed medical establishments. It does not apply to the buildings of fixed medical establishments or of stores which remain subject to the law on the conduct of hostilities.[19]
    2341  A violation of Article 33(3) could amount to the grave breach of ‘extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly’ under Article 50 of the First Convention. Similarly, the grave breach of ‘extensive appropriation of property’ under this same article could also extend to cases where the medical material of medical units and establishments is seized without the prescribed conditions spelled out in Article 33(1) and (2) being respected.

    1 - The Diplomatic Conference refrained from adopting specific definitions for ‘mobile’ and ‘fixed’ medical units and establishments; see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 195. For more details on these concepts, see the commentary on Article 19, paras 1775–1776.
    2 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 918.
    3 - Ibid. p. 538.
    4 - Medical transports are covered by Article 35 of the First Convention, as long as they are exclusively engaged in the transport of the wounded and sick or of medical equipment. If the vehicle has the characteristics of a mobile medical unit and can deliver medical care, it will fall under Article 33.
    5 - The fate of the personnel of these mobile medical units is governed by Article 19 of the First Convention.
    6 - Such interpretation is supported by the wording of the corresponding provisions (Article 14) of both the 1929 Geneva Convention on the Wounded and Sick and the 1906 Geneva Convention.
    7 - For the concept of booty of war, see Yoram Dinstein, ‘Booty in Warfare’, version of March 2008, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, 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.
    8 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 83–84. Both in 1906 and in 1929, mobile medical units were also considered not to be booty of war and needed to be reserved for the treatment of wounded and sick. See Article 14 of the 1906 Geneva Convention and Article 14 of the 1929 Geneva Convention on the Wounded and Sick, which provided that these units must be restored, as far as possible at the same time as the medical personnel who operate them are returned.
    9 - See Article 12.
    10 - See Article 14 of 1929 Geneva Convention on the Wounded and Sick.
    11 - For more details, see Pictet (ed.) Commentary on the First Geneva Convention, ICRC, 1952, pp. 272–273, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 115.
    12 - See e.g. Yoram Dinstein, ‘Booty in Warfare’, in Rüdiger Wolfrum (ed.), Version of March 2008, Max Planck Encyclopedia of Public International Law, Oxford University Press, para. 10, http://opil.ouplaw.com/home/EPIL; Elyce K.D. Santerre, ‘From Confiscation to Contingency Contracting: Property Acquisition On or Near the Battlefield’, Military Law Review, Vol. 124, 1989, pp. 113–120; and H.A. Smith. ‘Booty of War’, British Yearbook of International Law, Vol. 23, 1946, pp. 229–230.
    13 - See Hague Regulations (1907), Article 53.
    14 - See ibid. Article 55.
    15 - As to the term ‘welfare’, the equally authoritative French text of the Convention uses the word ‘bien-être’. This refers more precisely to the well-being of the wounded and sick rather than the wider concept of welfare.
    16 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 83.
    17 - Ibid. This proposal was put forward by the Swedish delegate, who argued that ‘[i]t was necessary to cover the case of a commander who, forced to withdraw his troops, might attempt to destroy medical supplies which he could not take with him in order to prevent them falling into the hands of the enemy’.
    18 - See United States, Military Tribunal at Nuremberg, Hostages case, Judgment, 1948, pp. 68–69.
    19 - See e.g. Articles 19, 21 and 22 of the First Convention, as well as Articles 48–58 of Additional Protocol I.