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Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
[p.113] Article 8
[p.115] General remarks
295 The idea of defining the most widely used terms of this Part arose during the second session of the Conference of Government
Experts in 1971. (1) Following numerous discussions regarding the
terms to be defined, and with regard to where these definitions
should come in the Protocol, (2) the ICRC introduced an article of
definitions at the beginning of Part II, and another at the beginning
of the second Section of Part II devoted to medical transportation.
296 These definitions were examined by Committee II of the CDDH, which introduced some modifications and, in particular, decided to
1) On the initiative of the Holy See, which presented an amendment, (3) remarking that "religious personnel and medical
personnel were mentioned together in a number of articles in the
Geneva Conventions of 1949" and that "it was desirable that the
former should be defined in order to avoid any
misunderstanding", (4) the definition of the expression
"religious personnel" [p.116] was inserted in Article 8
initiative was supported by a number of other delegations which
presented a new amendment together with the Holy See. (5)
2) The Drafting Committee of Committee II had noted that the notion "permanent" or "temporary" was applicable in a number of the
expressions defined, and on the basis of a draft amendment, (6)
it proposed the insertion in Article 8
of a definition of these
terms (7) to avoid repetitions. This proposal was accepted.
297 Moreover, the Drafting Committee of the CDDH decided to group together all the definitions of Part II in Article 8
, and therefore
to transfer to this article the definitions of terms used in Section
II devoted to medical transportation, which had formerly been placed
at the beginning of this Section. (8)
298 The definitions were given "for the purposes of the present Part" in the draft presented to the CDDH.
299 At the first session an amendment was presented with a view to substituting the words "the terms used in the present Part have the
following meaning" for "for the purposes of the present Part". (9)
The purpose of this amendment was to prevent
"an unduly restrictive interpretation being placed on the provisions of draft Protocol I, which did not exist as an
independent instrument, but merely represented a supplement to the Geneva Conventions of 1949 and to international law on armed conflicts as a whole" (10)
Some doubts were expressed regarding the competence of the Conference to modify the Geneva Conventions, and this amendment was referred to
the Drafting Committee of Committee II, which provisionally accepted
the expression "for the purposes of the present Protocol". This
choice was confirmed by the Drafting Committee of the CDDH, which,
although it decided to keep the definitions in different places in
the Protocol, and to group the definitions relating in particular to
Part II, at the beginning of Part II, did not wish to restrict their
scope to this Part, particularly because some of the terms defined
are also found outside Part II.
300 The 1973 draft had defined the expression "the wounded and sick", bringing together in a single category persons entitled to strictly identical protection. The [p.117] existence of a single category of persons is not put into question now. The reason it was decided to
separate the terms was to enable them to be used more flexibly with various conjunctions (such as, for example, "to the wounded and to the sick"). The fact that persons who are neither wounded nor sick
are included in this category shows that there is indeed only a
single category: for example, new-born babies are included in the
category "wounded" and "sick", even when they are neither wounded nor
301 Thus, when the Protocol mentions the wounded and sick, it is not concerned with the wounded and sick according to the ordinary meaning
of these words, but with the persons defined here. The definition of
the "wounded" and the "sick" is at the same time wider and narrower
than the more common definition of these terms. It is wider in that
it encompasses, as we have pointed out, persons who are not wounded
or sick in the usual sense of these words, but narrower in that it
does not protect such persons as a whole (i.e., also the wounded and
sick according to the usual meaning) unless they abstain from all
302 These two elements are examined below.
1. ' Persons benefitting from protection '
a) ' The wounded in the usual sense of the word '
b) ' The sick in the usual sense of the word, whether the sickness is physical or psychological '
303 The criterion for such persons is that they ' are in need of medical care. ' However, this first element is very difficult to
assess in the heat of action, and it is above all with regard to the
requirement made of such persons that they refrain from any act of
hostility that a combatant must determine his attitude, if he is
faced with a person who does not seem to have any obvious
characteristics of injury or sickness. At this stage it is not
significant for the combatant whether the person concerned fall under
the category of the "wounded" and "sick", or whether he is soldier
who "clearly expresses an intention to surrender" (Article 41
' Safeguard of an enemy hors de combat): ' he must respect both
because they are ' hors de combat. ' It is after the event, if such
persons are captured, that a decision is made as to whether or not
they are in need of medical care, and thus whether or not they fall
under the category of the "wounded" and "sick".
304 Moreover, it should be noted that this criterion -- being in need of medical care -- is the only valid one for determining whether a
person is "wounded" or "sick" in the sense of the Protocol (insofar
as the second condition -- infra, 2 -- is fulfilled). The persons
concerned may be either civilians or soldiers and the Protocol does
not retain the distinction made between these two categories by the
Conventions as regards the wounded and sick. On this basis a wounded
soldier and a wounded civilian are entitled to identical protection,
even though, at the same time, there would be a significant
difference in the status which applies to the one and the other if
they fell into enemy hands (particularly that of prisoner of war for
c) ' Persons who, although neither wounded nor sick in the usual sense of these words, may be in need of immediate medical care '
305 These are persons who are not necessarily in urgent need of medical care at the time, as the persons described above in a) and b)
are, but whose condition may at any moment necessitate immediate
medical care. A list of such persons is given, though only by way of
example. It includes:
-- maternity cases;
-- new-born babies;
-- invalids; (11)
-- expectant mothers.
2. ' The necessity of refraining from any act of hostility '
306 Although the status of "wounded" and "sick" can therefore be given to persons who are not wounded or sick in the usual sense of
these words, it may on the other hand be refused to those who are: to
benefit from this status it is necessary ' to refrain from any act of
hostility. ' A person who has broken his leg is not wounded in the
sense of the Protocol if he continues to shoot. This is a logical
conclusion: it would be unreasonable to ask a soldier to spare
someone who is threatening him, or, otherwise, who is attempting to
307 If they wish to benefit from the status of "wounded" and "sick", those entitled to this status must therefore meet this requirement,
though obviously only to the extent that it applies to them
(naturally this problem does not arise for an unconscious wounded
person or a new-born baby).
308 Two essential elements mentioned with regard to the definition of the "wounded" and "sick" are repeated with regard to the definition
of the "shipwrecked": those who are not shipwrecked in the strict
sense of the word may be covered by the definition, but anyone
shipwrecked, even if he is shipwrecked in the usual sense of the
word, is only considered as such if he refrains from any act of
[p.119] 309 A particularly difficult question with regard to the protection given shipwrecked persons is also dealt with, namely, the duration of
the "shipwrecked" status. We will consider these three elements in
succession, devoting most attention to the third.
1. ' Persons benefitting from protection '
310 The condition laid down here is that the person concerned is in peril "at sea or in other waters". The Second Convention only
mentions those shipwrecked "at sea". The 1973 draft also followed
this restricted definition. One delegation regretted that persons in
peril in inland waters (lakes, rivers etc.) seemed to be excluded and
Committee II finally decided to broaden the definition by using the
expression "at sea or in other waters". On the other hand, it did not adopt a proposal made by the ICRC, and taken up by several delegations at the beginning of the CDDH, to put those in peril ' on
land ' (for example, in the desert) on a par with the shipwrecked.
311 The definition was also widened in comparison with the original draft, in that it is not concerned only with the shipwrecked in a
strict sense, i.e., those in distress as a result of a shipwreck or
damage to a vessel, but with any person in peril, including in
particular persons who have fallen into the sea, even when the vessel
transporting them has not been damaged. Moreover, those who have
fallen into the sea from or with an aircraft are also explicitly
As in the case of the "wounded" and "sick", no distinction is made between civilians and soldiers as long as they are considered to
be shipwrecked. This constitutes an important innovation in relation
to the Conventions.
313 The fact that the "shipwrecked" covered here must be in peril ' as a result of misfortune ' does not mean that the field of those
concerned should be excessively restrained. Persons who are in
distress as a result of their inexperience or their recklessness, are
also protected. The aim was to exclude those who voluntarily put
themselves in peril in order to accomplish a mission, such as
military commandos or individual frogmen of the military commandos.
314 However, it should be noted that if such men are in difficulties or in distress, and they give up their mission and all other acts of
hostility, they will also enjoy the status of the "shipwrecked".
2. ' The necessity of refraining from any act of hostility '
315 In the exceptional case where someone who would normally be entitled to the protection given to the "shipwrecked" by the Protocol
continues to fight, and in particular to fire shots, he would
obviously lose his right to protection and would not even be defined
as "shipwrecked", in the sense of the Protocol. The observations made
in this respect with regard to the "wounded" and "sick" also apply
3. ' Duration of the status of "shipwrecked" '
316 First, it should be clarified that the status of "shipwrecked", which is only given, as we saw above, to persons who refrain from any
act of hostility, is automatically lost by those who, having enjoyed
such status, commit an act of hostility: committing such an act of
hostility is incompatible with the "shipwrecked" status throughout
317 It remains to be determined how long persons who are entitled to "shipwrecked" status and who continue to refrain from any act of
hostility can enjoy such status. Without specifying this period
exactly, the Second Convention implies that a shipwrecked person
continues to be considered as such throughout the rescue operation,
i.e., until he has been safely returned to land. This is shown, for
example, in Article 14
of the Convention, which refers to the
"shipwrecked on board military hospital ships".
318 The Protocol specifies that the shipwrecked "shall be considered shipwrecked during their rescue", which means that they retain their
status until they are returned to land. However, they can lose this
status earlier if they acquire another status under the Conventions
or the Protocol.
319 For the sake of clarity, it is necessary to list the possibilities which may arise. A distinction is made between the case
in which the shipwrecked person is a soldier and the case in which he
is a civilian.
3.1.' The shipwrecked person is a soldier '
a) ' He is rescued by his own armed forces '
320 In this case there are two possibilities:
-- He was not wounded or traumatized by his experience (which, it must be noted, is exceptional), and can quickly assume an active
role again. From this moment he again becomes a combatant and
loses his "shipwrecked" status.
-- He is wounded or traumatized. As a result he acquires the status of "wounded" or "sick", which gives him the same rights as the
"shipwrecked" status. This means that if the vessel is attacked,
he will be spared as far as possible (i.e., in practical terms,
that he will be spared in the event -- though admittedly
exceptional these days -- that the vessel is boarded and taken by
force). (14) He will enjoy the status "wounded" and "sick" if the
vessel which has rescued him is seized (and he becomes, moreover,
a prisoner of war).
b) ' He is rescued by enemy armed forces '
321 Such a shipwrecked person becomes a prisoner of war. He loses his "shipwrecked" status as soon as he is on board, but in addition to
his prisoner of war status, becomes "wounded" or "sick" in the case
that his condition means that he falls in this category and he
remains so as long as his condition justifies this.
322 Anyone shipwrecked who has participated in hostilities, but is not entitled to prisoner-of-war status, (15) will be considered
shipwrecked throughout the duration [p.121] of the rescue operation,
i.e., in principle until he is taken back to land, unless his
condition means he falls under the category of the wounded and sick
(which actually assures him identical protection). This also applies
to persons whose status has not been clearly determined. (16)
c) ' He is rescued by a neutral warship (17) '
323 In this case he will be considered throughout the rescue operation to be either wounded or sick if his condition warrants
this, or shipwrecked, if not. (18)
d) ' He is rescued by a hospital ship, a coastal rescue craft or other medical ship or craft belonging to his own Party to the
324 He will be considered as either wounded or sick, or as shipwrecked, depending on his condition, until he lands. This does
not give him any rights while he is on the vessel which rescued
him, (19) but it is important for him and for the vessel if the
latter is boarded and searched: if his transfer to an enemy warship
is ordered, he is to be treated as though he had been directly picked
up by such a vessel (cf. supra, b)). Moreover, the vessel
transporting him shall not be accused of transporting a combatant.
325 In the case that a wounded, sick or shipwrecked person is not transferred to another vessel, the vessel which rescued him will most
likely take him to his own Party to the conflict, unless it has to
land him in a neutral port. In this case he will retain the status o
n "wounded" and "sick", if his condition warrants this, (20) and in any
case, Article 17
of the Second Convention will apply to him.
e) ' He is rescued by a hospital ship, coastal rescue craft or other medical vessel or craft belonging to the adverse Party '
326 He will enjoy either the status of "wounded" and "sick", if his condition justifies this, or "shipwrecked" status, until he has
landed. If he is transferred onto a warship of his own Party to the
conflict, after it has boarded and searched the vessel which rescued
him, he will be considered to have been rescued directly by the
former (cf. supra, a)). If he remains on the first vessel until he
lands, he will be treated as a prisoner of war (and will, moreover,
continue to enjoy the status of "wounded" and "sick", if his
condition justifies this), in case he lands in a port of the adverse
Party; if he lands in a neutral port, Article 17
of the Second
Convention will apply to him, and the status of "wounded" an "sick"
will still be granted him, provided that his condition justifies
this, in accordance with Article 19
of the Protocol ' (Neutral and
other States not Parties to the conflict). '
f) ' He is rescued by a non-medical civilian vessel '
327 The comments under letters d) and e) apply to a shipwrecked person rescued respectively by a civilian vessel belonging to his own
Party, or to the adverse Party, even though, in this case, the vessel
itself can also be seized.
328 If it is a civilian vessel belonging to a State which is not a Party to the conflict, the solution mentioned under letter c) applies
to him, but the vessel may be boarded and searched and in this case,
either the solution mentioned under letter a) (if the searching
vessel belongs to the shipwrecked person's Party to the conflict), or
the solution mentioned under letter b) (if it belongs to the adverse
Party), will apply.
3.2.' The shipwrecked person is a civilian '
a) ' He is rescued by a military vessel belonging to his own Party to the conflict '
329 He enjoys the status of "wounded" and "sick", or "shipwrecked", depending on his condition, until he lands. Such status does not give
him any rights in relation to his own Party to the conflict. (21) On
the other hand, it is important if the vessel is seized: a person not
wearing uniform on a warship could be suspected of espionage. In the
case of such a seizure, solution b) described below applies.
b) ' He is rescued by a military vessel belonging to the adverse Party '
330 He enjoys the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed in a neutral port. In
any case he will then no longer be considered to be shipwrecked, as
the rescue operation has been completed, but will still be covered by
of the Protocol ' (Neutral and other States not Parties to
the conflict) ' if he still falls under the category "wounded" and
331 If he is taken to the territory of the adverse Party, which is probably usually the case, he will lose his "shipwrecked" status as
soon as he lands, as the rescue operation has been completed by that
time, but will enjoy the status of "protected person in the sense of
of the fourth Convention. This will apply to him,
particularly Section II (Aliens within the territory of a Party to
the conflict) of Part III. In addition, he will enjoy the status of
"wounded" and "sick", if his condition justifies this.
c) ' He is rescued by a neutral warship '
332 He will enjoy the status of "wounded" and "sick".or "shipwrecked", depending on his condition, until he has landed. After
he has landed in the neutral country, he will continue to enjoy the
status of "wounded" and "sick", if he meets the necessary
conditions. (22) If not, he will lose his "shipwrecked" status and no
longer fall under the scope of application of the Conventions and the
d) ' He is rescued by a hospital ship, coastal rescue craft or other medical craft or vessel belonging to his own Party to the
333 He will have the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed. This does not give
him any specific rights, as he is in the hands of personnel of his
own Party to the conflict, (23) but it is important to justify his
presence in case the vessel is submitted to an inspection. In
principle he should not be transferred to a vessel belonging to the
adverse Party. (24)
e) ' He is rescued by a hospital ship, coastal rescue craft or other medical craft or vessel belonging to the adverse Party '
334 He has the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed.
335 If he lands in a port of the adverse Party, he becomes a protected person in the sense of Article 4
of the Fourth Convention,
and this Convention then applies to him. In addition, he retains the
status of "wounded" and "sick", if his condition justifies this.
336 If he lands in a neutral port, the Conventions and the Protocol no longer apply to him, unless his condition justifies the status of
"wounded" and "sick", which should be respected by the State where he
has landed, in accordance with Article 19
of the Protocol ' (Neutral
and other States not Parties to the conflict). '
337 If the vessel is boarded and searched by a military vessel of his own Party to the conflict, and he is transferred onto the latter, the
solution mentioned under letter a) applies.
f) ' He is rescued by a non-medical civilian vessel belonging to a neutral State '
338 The solution mentioned under letter c) applies.
339 Even if a military vessel were to board and search the neutral civilian vessel, it should not require the transfer of the
g) ' He is rescued by a civilian vessel belonging to his own Party '
340 In principle there is no problem if he arrives safe and sound. However, if his own Party has to retain him for reasons related to
the armed conflict (treason, desertion etc.), he should at least be
granted the benefits of Article 75
' (Fundamental guarantees) ' (25),
as well a the status of "wounded" or "sick", if his condition
341 In the case that the vessel is seized by a military vessel of the adverse Party, the solution mentioned under letter b) applies.
h) ' He is rescued by a civilian vessel belonging to the adverse Party '
342 He will have the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed.
343 If he lands in a port of the adverse Party, he will have the status of "protected person" in the sense of Article 4
of the Fourth
Convention. This Convention will apply to him, particularly Section
II (Aliens within the territory of a Party to the conflict) of Part
III. In addition, he will enjoy the status of "wounded" and "sick",
if his condition justifies this.
344 If he lands in a neutral port, he will continue to enjoy the status of "wounded" and "sick", if his condition justifies this, in
accordance with Article 19
of the Protocol ' (Neutral and other
States not parties to the conflict). ' If not, he will no longer be
within the scope of the Conventions and the Protocol.
345 If the vessel is seized by a military vessel of the Party to the conflict to which he belongs, the solution mentioned under letter a)
346 The ICRC draft mentioned the categories of persons covered by the expression "medical personnel", without first defining the
expression. On the basis of an amendment presented by seven
countries, (26) Committee II decided to define the expression before
listing the categories of persons that it covers.
1. ' Definition of medical personnel '
347 Medical personnel covers such persons as are assigned to particular tasks necessary for the well-being of the wounded and
sick. In fact the protection of medical personnel is a subsidiary
protection granted to ensure the protection of the persons primarily
concerned, namely, the wounded and sick.
348 A number of modifications of greater or lesser importance were made to the protection of medical personnel as laid down in the
349 First of all, civilian medical personnel are also covered, provided that they are assigned to medical tasks by a Party to the
conflict, in order to ensure in a better way the protection of all
the wounded and sick, whether civilian or military.
350 Furthermore, it is specified that only such persons as are ' exclusively ' assigned to medical tasks are covered, which is the
case in the Conventions only for the permanent personnel, even if it
is implied for the temporary personnel. The ' duration ' of such an
exclusive assignment is a vexed question. We shall discuss it with
respect to sub-paragraph (k), where the concept of permanent and
temporary medical personnel was also modified. (27)
351 Finally, the distinction which was made in the Conventions between the identification of different categories of medical
personnel has disappeared. All medical personnel of any sort must be
identifiable as easily as possible (28)
[p.125] 352 A number of points which require elucidation are dealt with below.
1.1.' Medical personnel must be assigned to one of the following tasks.: '
a) The medical purposes enumerated in sub-paragraph (e). On this subject cf. infra, sub-paragraph (e).
b) The administration of medical units. On the meaning of the expression "medical units", cf. infra, sub-paragraph (e). Administration must be considered here in a wide sense. It includes all persons who ensure the functioning of the units without directly caring for the wounded and sick: thus they include the administrators as such, as well as many other persons, such as, for example, hospital cooks and cleaners. (29)
c) The operation or administration of medical transports. On the meaning of the expression "medical transports", cf. infra, sub-paragraph (g). Here again we are concerned with persons who, without caring directly for the wounded and sick, are nevertheless essential components in the system of protection. They include, in particular, persons who drive or pilot medical transports, as well as persons assisting in this task (co-pilot or navigator in medical aircraft, crew of a medical ship, etc.), persons who are responsible for the maintenance of medical transports (mechanics, personnel required for the maintenance of medical ships etc.), or finally, persons who plan the employment of medical transports. All such persons are essential for the proper functioning of the system.
1.2.' Medical personnel must be assigned exclusively to these tasks '
353 This means that protected medical personnel cannot spend any time on different activities as long as they are assigned to medical
tasks. This is a necessary precaution to prevent abuses of the emblem
for commercial purposes, for example, or above all for military
1.3.' They must be assigned to such tasks by a Party to the conflict '
354 The problem does not arise with military medical personnel, as military personnel are assigned ex officio by the competent
authority. On the other hand, this clause is important for civilian
medical personnel. Not every civilian doctor is protected by the
Conventions. Indeed, there is no a priori reason why a plastic
surgeon, for example, should be protected. On the other hand, if the
Party to the conflict in the territory in which he works assigns him
to tasks mentioned above, i.e., if he becomes useful for the
protection of the wounded and sick, he deserves to be protected. This
is an example of the derivative character of the protection of
medical personnel, which is relevant only when such personnel is
engaged in [p.126] the protection of the wounded and sick. Moreover,
it is essential that the Party to the conflict, which is responsible
for preventing the misuse of the protective emblem, retains the power
to decide who is entitled to the protection reserved for medical
1.4.' The assignment may be either permanent or temporary '
355 For the meaning of these terms, cf. infra, sub-paragraph (k).
2. ' Categories covered by the expression "medical personnel" ' (sub-paragraphs (c) (i), (ii), (iii))
356 Three categories are mentioned by the Protocol.
2.1.' Sub-paragraph (c)(i) '
357 The first category comprises the medical personnel of a Party to the conflict, viz.:
-- military medical personnel already protected by the first and Second Conventions (although the States Parties to the Protocol
should review the organization of their medical service, and in
particular, the problem of temporary medical personnel, in
relation to the Protocol);
-- civilian medical personnel, viz. civilian personnel exclusively assigned by a Party to the conflict to one of the tasks listed
-- medical personnel assigned to civil defence organizations. In principle this is civilian personnel, although it could include
military personnel. (30) For such personnel the status of medical
personnel continues, despite their assignment to civil defence
organizations. This is clearly shown by the fact that they must
continue to be identifiable by means of the distinctive emblem of
the red cross or the red crescent. (31)
2.2.' Sub-paragraph (c) (ii) '
358 This is personnel already covered by Article 26
of the first Convention. The societies concerned must fulfil three conditions:
-- they must be ' national ' societies, i.e., societies established in the territory of the Party to the conflict concerned;
-- these societies must be ' recognized ' by the Party to the conflict concerned, which, in the most usual case where this
Party is a State, means that the society must at least have been
regularly constituted in accordance with national legislation.
Therefore this excludes clandestine societies;
-- these societies must be ' authorized ' by the Party to the conflict concerned, i.e., the latter must agree that personnel of
these societies are employed as medical personnel.
2.3.' Sub-paragraph (c) (iii) '
359 This third category covers medical personnel who have been made available to a Party to the conflict without belonging to this Party,
together with permanent medical units and medical transports (with
the exception of hospital ships which are subject to a separate
régime, regulated by Article 24
of the Second Convention). It should
be noted that only certain States, societies or organizations may
make such personnel available, and then only under certain
360 The original draft of the Protocol did not contain a definition of religious personnel, but it is appropriate to recall that
chaplains attached to armed forces were covered by the proposed
definition of medical personnel. This actually comprised military
medical personnel as defined in the first and Second Conventions, and
these chaplains fall under the definition of such personnel.
361 However, this seemed inadequate to some delegations. Largely as a result of two amendments, the present paragraph was added to define
religious personnel explicitly (cf. supra, p. 115).
362 The persons concerned here must fulfil two conditions:
-- They are exclusively devoted to their ministry. Thus they could not fulfil functions other than their religious functions, though
carrying out medical tasks could obviously not be considered an
infringement of this rule. On the other hand, the religion to
which they belong is immaterial. Thus it has been said that the
term "chaplain", which is actually used only by way of example,
does not refer exclusively to Christian religious personnel. (33)
. They do not have to be themselves incorporated into the army: it
does not matter whether they are military or civilian.
-- They have a specific attachment which presumes the agreement of the Party to the conflict concerned, to one of the four categories listed.
' Sub-paragraph (d) (i) '
363 This is the personnel covered by Article 24
of the first Convention.
Sub-paragraph (d) (ii) '
364 On the meaning of the expressions "medical units" and "medical transports", cf. infra, sub-paragraphs (e) and (g) respectively.
' Sub-paragraph (d) (iii) '
365 On this subject, cf. infra, commentary on Article 9, paragraph 2, pp. 140-143.
' Sub-paragraph (d) (iv) '
366 On this subject, cf. infra, commentary on Article 61, sub-paragraph (b), pp. 732-735.
367 Like medical personnel, religious personnel may be assigned either permanently or temporarily. One delegate expressed the opinion
that the temporary assignment of religious personnel has no effect on
the type of status of religious personnel which, by its very nature,
is permanent. (34) However, the Protocol does not prohibit the
temporary assignment of laymen for religious purposes, and the
possibility that they may be protected as religious personnel during
the fulfilment of these tasks remains open. On the meaning of the
terms "permanent" and "temporary", cf., apart from this, infra,
' Sub-paragraph (e) '
368 In order to simplify and clarify matters, a single expression was chosen to cover the entire range of medical establishments and other
369 As in the case of medical personnel, medical units may be either military or civilian and when the expression is used without the
qualifying adjective "military" or "civilian", it covers both
370 Medical units are protected whether they are fixed or mobile, i.e., whether they consist of buildings built to remain where they
are, or whether they are structures or establishments which can be
moved according to needs. Moreover, they can be permanent or
temporary (on the subject of these expressions, cf. infra,
371 The only decisive condition which is imposed upon these establishments or other units to qualify as medical units is this:
they must be "organized for medical purposes" and exclusively
assigned to these purposes.
372 Irrespective of the reason for which the unit was established, it is the use at the relevant moment which counts. A hospital which is
used as a barracks is not a medical unit, while a barracks equipped
as a makeshift hospital becomes one.
[p.129] 373 The medical purposes envisaged here are broad. The search for, evacuation and transportation of the wounded, sick and shipwrecked,
particularly concern mobile units. Some confusion may arise between
these units and medical transports (the transport element in
principle prevails in the latter, the possibility of administering
care in the former). In any case such confusion is not particularly
important, as medical transports are en
titled to a similar protection
to that accorded mobile medical units. Moreover, the protection of
medical transports also implies that of fixed units such as the
garages where these vehicles are parked, and the workshops where they
374 The diagnosis and treatment of injuries and sickness are usually carried out in fixed establishments, but may also be done in mobile
establishments such as field hospitals.
375 The degree of care to be given is not a determining element: a simple first-aid post improvized near the battlefield is considered
to be a medical unit.
376 Similarly establishments which do not directly care for victims, namely, the wounded, sick and shipwrecked, but attempt to reduce the
number of these by preventing diseases, are also considered to be
medical units. This applies in particular to vaccination centres or
other preventive medicine centres and institutes, and blood
377 In addition it is clear that a surgeon without instruments and medicine cannot do a great deal: for this reason, places where
medicines, surgical instruments and in general any medical supplies
are stored also qualify as medical units, whether these are simple
depots attached to a hospital, for example, or centres where these
can obtain supplies.
378 Finally, it should be noted that Committee II of the CDDH, which dealt with this article, wished to mention in its report drawn up at
the end of the third session, that dental treatment is included in
the medical purposes mentioned here. (35) Thus establishments where
dental care is administered have also to be considered as medical
units. It also mentioned that hospitals and other medical units
include "rehabilitation centres providing medical treatment". (36)
379 Thus it is clear that the assignment for medical purposes must be interpreted very flexibly. However, as mentioned above, such
assignment has to be made to the exclusion of any other for a unit to
qualify as a medical unit. This does not follow from the paragraph
under consideration here, but from the definition given below of the
terms "permanent" and "temporary". (37) As for medical personnel,
this condition is perfectly logical for obvious reasons: it would not
be possible to ask a Party to the conflict to spare a hospital, even
if it contains a large number of wounded, if it is also sheltering an
arsenal in the cellar or an army headquarters in one of the wings.
380 The list of establishments covered by the expression "medical units" mentioned in this paragraph, is by way of example. It does not
require any further commentary.
381 This is a definition of medical transportation as such, independently of the means used. All movement is intended to be
covered, which explains the specific mention of transportation by
land, water or air. The expression "by water" was preferred to the
expression "by sea" used in the initial draft, to emphasize that it
concerned not only transportation across the seas or oceans, but also
transportation across inland waters, such as rivers and lakes.
382 Thus the concept of transportation aims to cover the whole range of transportation: any form of transportation may be medical.
However, to qualify as ' medical ' transportation, it obviously has
to fulfil another condition, that of being linked directly or
indirectly to the wounded, sick and shipwrecked protected by the
Conventions and the Protocol. There is a direct link when the persons
being transported are the wounded, sick or shipwrecked themselves, an
indirect link when these are medical or religious personnel, or
medical equipment and supplies. The terms or expressions "wounded",
"sick" or "shipwrecked", "medical personnel" and "religious
personnel" are defined elsewhere and we will not reconsider this
question here. As regards the expression "medical equipment or
medical supplies", this should be interpreted broadly. It includes
any equipment and supplies necessary for medical care -- particularly
surgical equipment -- but also heavier equipment (for example, the
equipment for an operating theatre or even an entire field hospital),
or even, quite simply, medicines themselves.
383 It is indeed sufficient that one of these categories of persons, equipment or supplies are transported for it to qualify as medical
transportation. On the other hand, it is quite clear that no category
of persons, equipment or supplies other than these should be included
in the transportation, if it is to retain its status of medical
transportation. The transportation of wounded with able-bodied
soldiers or the transportation of medical equipment and armaments is
not medical transportation in the sense of the Protocol.
384 The transportation of specific persons, equipment or supplies, irrespective of the means used, was defined in sub-paragraph (f); the
means themselves are defined here. They are defined in a very broad
sense. Whether they are designated for civilian or military use is of
no importance: like the wounded, sick and shipwrecked, medical
transports are considered as such, irrespective of such designation.
Moreover, they may be permanent or temporary. (38) finally, this
provision covers ' any ' means of transportation: none is excluded,
from the oxdrawn cart to the supersonic jet, or any future means of
transportation; the absence of an exhaustive list leaves the field
open for the latter.
[p.131] 385 However, two conditions have been laid down for any means of transportation to qualify as ' medical ' transports:
1) It must be assigned ' exclusively ' to medical transportation. In practical terms, this means first of all that the means of
transportation must only contain such categories of persons,
equipment and supplies as fall under the definition of medical
transportation. (39) As we saw above, without such a restriction
there would not be any medical transportation. However, exclusive
assignment also means that a means of transportation may not be
used for purposes other than medical transportation, as long as
it is assigned to this. Let us examine the example of a medical
convoy consisting of trucks ordered to transport the wounded a
considerable distance from the front. The trip takes a week and the lodging of the wounded is organized every evening. The trucks could not be said to be assigned exclusively to medical
transportation if, during the night, they were used to transport
weapons or for other military purposes. However, this is a knotty
problem centred on the definition of ' temporary ' assignment. It
will be further considered below with the definition of the terms
"permanent" and "temporary". (40)
2) It has to be placed under the control of a competent authority of a Party to the conflict. As the Party to the conflict is responsible for any abuse which could be committed, it is natural, as in the case of medical personnel, that it exercises control over the persons, equipment or supplies which are entitled to bear the protective sign, which is the case for medical transports. For such transports, there is, moreover, a more direct control than for personnel. The Party to the conflict exercises its control not only when it makes the assignment, but it does so constantly. In fact, such transports should be used under the control of a competent authority of the Party to the conflict, i.e., an authority dependent, ultimately, on the highest authority of that country.
Sub-paragraphs (h), (i) and (j)
386 As the transports have been defined, the particular names of these means of transportation by land, by water and by air, i.e.,
medical vehicles, medical ships and craft and medical aircraft,
require very little further commentary.
387 It suffices to note that the expression "medical vehicle" is used here in a wide sense, as it covers all means of transportation by
land. For example, railway vehicles may count as medical vehicles,
just as motor cars do.
388 Moreover, it should be noted that the expression "medical ships and craft" covers all means of medical transportation by water, and
that any means of transportation by water may become a medical
transport. This was not the case in the Second Convention, which only
protected hospital ships and coastal rescue craft. In the context of
the Protocol, merchant ships, for example, assigned for a particular
period to medical transportation may enjoy protection, as may barges
[p.132] used to transport the wounded on navigable canals outside the
context of war at sea.
389 Finally, it is appropriate to mention, for the three categories of medical transports, that the fact that a means of transportation
comes within the definition of a "medical vehicle", "medical ships an
craft" or "medical aircraft", does not automatically imply
protection. To enjoy protection, such transports must be used in
accordance with certain well-established rules (cf. Articles 21
390 In the Protocol a development can be discerned, when compared with the Conventions, with regard to the protection of permanent and
temporary medical personnel and equipment or supplies (in the general
sense of anything that is not personnel). As regards medical
personnel, there is a tendency to reduce the difference between the
protection granted permanent personnel and that granted temporary
personnel, and to increase the possibility for all medical personnel
to be employed on a temporary basis, while on the other hand,
strictly insisting on the obligation of temporary personnel to be
exclusively assigned to medical tasks during their assignment. For
equipment and supplies the tendency is to be more flexible with
regard to accepting their temporary use for medical purposes.
391 To be considered permanent, medical personnel, medical units and medical transports must be "assigned exclusively to medical purposes
for an indeterminate period".
392 We saw above what was meant by exclusive assignment. (41) However, it is appropriate to note the explanation given by the
Drafting Committee of Committee II for using the word "assign", when
the personnel, units and medical transports are permanent and the
word "devote" when they are temporary:
"These different words have been chosen in order to make it clear, that the protection of permanent units or personnel starts at the time of the order, assignment or similar act creating the unit or giving a medical task to the personnel. The protection of
temporary units or personnel, however, commences only when they
have in fact ceased to do other than medical work". (42)
393 We will not reconsider the expression "medical purposes", which has already been analysed. (43)
394 On the other hand, it is appropriate to ascertain what is meant by the expression "for an indeterminate period". This expression was
also used in the original ICRC draft. The exact meaning to be given
to this expression was not discussed in depth, but it is actually
quite clear. It covers persons or objects which can be expected to be
assigned definitively to medical purposes. Thus, if a hospital is
[p.133] built with operating theatres and all the necessary
equipment, this is certainly with a view to using it solely and
definitively as a hospital. Similarly, if a soldier is assigned to
the medical troops, it is to function in a medical capacity whenever
he is called up. Obviously it may happen that a new hospital is built
and the old one is converted into a school, or even into an arsenal
or a barracks. It is also possible that as a result of a lack of
combatants, the army is obliged to change the assignment of medical
soldiers and to transfer them to active combat duty. However, this is
dependent on unforseeable elements. If at the outset the idea is to
make the assignment of personnel, units or transports to medical
purposes definitive (i.e., without imposing any time limit), they are
395 The qualification of the word "temporary" is more delicate. As the Drafting Committee of Committee II explained, as shown above, the
protection of temporary personnel begins only when these units have
in fact ceased to perform other tasks than medical work. Does this
mean that protection ceases the moment they are no longer carrying
out a medical task? This would render the protection too uncertain.
The criterion to adopt is rather that of the new assignment or use.
From the moment that medical personnel or medical objects concerned
are devoted or assigned to other purposes, they lose their right to
protection. However, the real question to be resolved is that of the
minimum time that must be observed for the assignment or use to be
termed "exclusive". There is no doubt that by putting the emphasis on
the exclusive character of use, a choice has been made in the
Protocol for a certain guarantee. No time limit was fixed, but common
sense dictates that to the greatest possible extent, there should be
no change in the assignment of medical personnel or medical objects
during an operation, as we tried to show above with th
e example of the medical convoy. (44) If the medical assignment is too short and
changes too often, this could only serve to introduce a generally
harmful mistrust regarding the protection of medical personnel and
medical objects, particularly as the identification of such personnel
and objects will in future be the same as that for permanent medical
personnel and objects.
396 Nevertheless, it is important not to be dogmatic in this field as the contributory role of temporary medical personnel, sometimes for a
very short period of time, may constitute a considerable source of
aid. Sometimes it has even happened that soldiers who do not belong
to the medical personnel have spontaneously acted as stretcher
bearers and were respected while they were carrying out this task. It
is therefore essential to find in practice an equilibrium between the
flexibility necessary to ensure the greatest possible aid for the
wounded, and strict rules regarding the exclusive character of
medical assignment which is indispensable to the survival of this
system of protection, based as it is, on trust.
397 The last sentence of the paragraph does not require a great deal of commentary. It explains that the rules of the Protocol relate to
medical personnel, medical units and medical transports, irrespective
of their permanent or temporary character, unless it is explicitly
specified in the rule that only one of these categories is intended.
[p.134] Sub-paragraph (l)
398 There is no real definition of the distinctive emblem in the Conventions. On the other hand, a description is given of "the emblem
and distinctive sign of the Medical Service of armed forces" in
of the first Convention, which is then referred to as "the
emblem", "the distinctive emblem", "the distinctive emblem of the
Convention", or even "the distinctive emblem conferring the
protection of the Convention". Mention is also made of "the
distinctive flag of the Convention" or "the flag of the Convention".
399 In passing, it should be noted that the expression "distinctive sign" is sometimes used to designate a sign which is not that of the
red cross, as evidenced by the reference to a "fixed distinctive sign
recognizable at a distance", which should be displayed by members of
the militia who do not form part of the armed forces of a Party to
the conflict, and other volunteer corps, in order that their wounded
and sick members may be covered by the first Convention. (45)
400 The advantage of having a simple, clearly defined expression which is thereafter used throughout the Protocol, was soon admitted
during the discussions for the formulation of the Protocols. (46)
401 Committee II of the CDDH did not waste time on this problem, and with a slight modification of form, it retained the definition
proposed in the 1973 draft. The three signs currently recognized in
the Conventions and the Protocols, i.e., the red cross, the red
crescent and the red lion and sun (47), displayed on a white ground,
are thus covered by the expression "distinctive emblem" as used in
the Protocol. Article 18
of the Protocol ' (Identification) ' also
deals with the use of this emblem, while Annex I to the Protocol
broaches the technical problems of identification (48)
402 At the Drafting Committee's suggestion, the Committee nevertheless added a phrase to the definition of the original draft
specifying that each of the emblems described is only covered by the
expression "distinctive emblem" when "used for the protection of
medical units and transports or medical and religious personnel,
equipment or supplies". This addition is justified by the fact that
the use of the emblem of the red cross, the red crescent or the red
lion and sun is only laid down in the Protocol for the purposes of
protection. (49) The question of the use of the emblem purely as an
"indicatory" sign, to indicate that a person or object is linked
[p.135] with the Red Cross institution, without either being able or
intending to place it under treaty protection, is not actually
broached in the Protocol. (50)
403 In short, when reference is made in the Protocol to the distinctive emblem, this always refers to the use of the emblem for
the purposes of protection: the addition made to the definition by
Committee II of the CDDH removes any ambiguity in this respect.
404 It had already become clear, even during the first session of the Conference of Government Experts in 1971, that the problem of the
security of medical transports could only be resolved by finding
solutions adapted to "modern means of marking, pinpointing and
identification". (51) In fact it is no longer possible today to base
effective protection solely on a visual distinctive emblem. This
inevitable development has led to the adoption of an Annex to the
Protocol which introduces light signals which are visible over longer
distances than emblems painted in red, and above all, signals which
are not solely visual (radio signals, electronic means of
405 It would have been very complicated to have provided precise technical descriptions of the distinctive signals every time they are
mentioned in the Protocol. It was therefore considered useful to
adopt a definition of the "distinctive signal" which is given in
Chapter III of Annex I to the Protocol, which contains these
technical descriptions. (52)
406 Moreover, the definition of the distinctive signal mentions the object of such signals: i.e., of permitting the identification of
medical units and transports. In addition, it is specified that such
use must be exclusive. This point is essential: the use of signals
laid down in Chapter III of Annex I for other purposes would very
probably lead to a great mistrust with respect to these signals and
this would entail the risk of seriously weakening the system of
protection provided for in the Protocol.
' Y. S. '
(1) Cf. in particular CE 1971, ' Report, ' p. 24,
(2) Cf. in particular ibid., p. 24, para. 46; p. 32, para. 90; CE 1972, ' Report, ' Vol. I, p. 33, para.
1.11; p. 209, para. 5.48;
(3) O.R. III, p. 51, CDDH/II/58;
(4) O.R. XI, p. 50, CDDH/II/SR.7, para. 6;
(5) O.R. III, p. 53, CDDH/II/374;
(6) Ibid., p. 52, CDDH/II/239;
(7) Cf. CDDH/II/240/Add. 1, p. 1;
(8) Cf. CDDH/CR/RD/13/Rev.1, p. 1, note 1;
(9) O.R. III, p. 46, CDDH/II/17;
(10) O.R. XI, p. 21, CDDH/II/SR.3;
(11) This obviously refers to infirmity of some seriousness, which has in principle justified exemption
from military service. However, the fact of knowing
exactly how serious the infirmity covered here is, is not
very important. If his infirmity was not considered
sufficient and the invalid was enlisted as a combatant, he
has in any case no right to any special treatment as long
as he engages in combat. On the other hand, if his
condition obviously prevents him from continuing to engage
in combat, or if he wishes to surrender and clearly shows
his intention of refraining from hostile acts, he must be
spared by the combatant who has him in his power, either
in accordance with Article 10 or in accordance with
Article 41. Only when he is captured should it be
determined whether his infirmity is considered sufficiently serious -- i e., may require immediate medical care -- to warrant classifying him in the category
of the "wounded" and "sick";
(12) For further details on the concept of an "act of hostility", cf. commentary Art. 41, infra, pp. 488-489;
(13) Cf. supra, p. 118;
(14) However, see also Art. 28, Second Convention;
(15) Cf. in particular Art. 45, para 3, and Art. 47, para. 1;
(16) Cf. in particular Art. 45, paras. 2 and 3;
(17) I. e., from a State which is not a Party to the conflict; on this subject, cf. commentary Art. 2,
sub-para. (c), supra, p. 61;
(18) Cf. also Protocol I, Art. 19, and Second Convention, Art. 15;
(19) Cf., however, commentary Art. 11, infra, pp. 152-154;
(20) Cf. Protocol I, Art. 19;
(21) Cf., however, commentary Art. 11, infra, pp. 152-154;
(22) Cf. Protocol I, Art. 19;
(23) Cf., however, commentary Art. 11, infra, pp.152-154;
(24) Cf. Protocol I, Art. 22, para. 1, in fine and Art. 23, para. 6. On this subject, cf. also infra,
commentary Arts. 22 and 23, p. 253;
(25) Cf. commentary Art. 75, infra, p. 866;
(26) O.R. III pp. 46-47 CDDH/II/19 and Corr.1;
(27) Cf. infra, pp. 132-133;
(28) Cf. commentary Art. 18, infra, p. 221;
(29) It should be noted that Committee II included in its report at the end of the 3rd session of the CDDH an
explanation -- in line with what was said above -- of the
phrase commented upon here (cf. O.R. XIII, pp. 253-254,
CDDH/235/Rev.1, para. 20);
(30) Cf. commentary Art. 67, infra, p. 791;
(31) Cf. also commentary Art. 66, para. 9, infra, pp. 788-789;
(32) On this subject, cf. commentary Art. 9, para. 2, infra, pp. 140-143;
(33) Cf. O.R. XII, p. 220, CDDH/II/SR.75, para. 20;
(34) O.R. XII, p. 217, CDDH/II/SR.75, para. 3;
(35) Cf. O.R. XII, p. 238, CDDH/II/SR.77, para. 8 and O.R. XIII, pp. 253-254, CDDH/235/ Rev.1, para. 20;
(36) O.R. XIII, ibid;
(37) Cf. commentary sub-para. (k), infra, pp. 132-133;
(38) On the exact meaning to be given to these terms, cf. commentary sub-para. (k), infra, pp. 132-133;
(39) Cf. commentary sub-para. (f), supra, p. 130;
(40) Cf. commentary sub-para. (k), infra, pp. 132-133;
(41) Cf. commentary sub-para. (c), supra, p. 125 and sub-para. (g), supra, p. 131;
(42) O.R. XIII, p. 338, CDDH/II/379;
(43) Cf. commentary sub-para. (e), supra, pp. 128-129;
(44) Cf. commentary sub-para. (g), supra, pp. 130-131;
(45) Cf. Art 13, para. 2, of the First Convention;
(46) The Committee given the task of examining a draft Protocol on the protection of the wounded and sick
in international armed conflicts during the Conference of
Government Experts in 1971 had already included the
"distinctive emblem" among the definitions which it
proposed introducing at the beginning of the Protocol;
(47) On the subject of the emblem of the red lion and sun, cf. moreover supra, Editors' note;
(48) On this subject, cf. commentary Art. 18, infra, p. 221, and commentary Annex I, infra, p. 1137;
(49) However, on this subject, cf. Art. 18, para. 7, infra, pp. 233-234;
(50) On the subject of the distinction to be made between the emblem used for the purposes of protection and
the emblem used as an indicatory sign, cf. ' Commentary
I, ' pp. 323 ff. See also the Regulations on the Use of
the Emblem of the Red Cross (Red Crescent and Red Lion and
Sun) by National Societies, adopted by Resolution XXXII of
the XXth International Conference of the Red Cross
(51) CE 1971,' Report, ' p. 28, para. 91;
(52) On this subject, cf. commentary Annex I, infra, pp. 1185-1255;
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