Treaties, States Parties and Commentaries
  • Print page
Commentary of 1952 

[p.184] GENERAL

The principle formulated in this Article represents, with that of the inviolability of the wounded, the sick, and medical personnel, one of the great advances made by the Geneva Convention of 1864. It was directly inspired by the events at Solferino. Not only must the wounded soldier be respected; he must also be treated without delay, regardless of his nationality. The task is so urgent that, if the Army Medical Service cannot cope with it, civilians -- the inhabitants of the country in which the fighting is taking place -- must be asked to help. Civilians who respond to this appeal are to be protected while engaged on their work of relief, and the same protection is extended to civilians who pick up and care for a wounded person on their own initiative. The principle according to which a fallen combatant is entitled to respect and care thus becomes universal. Anyone who finds a fallen combatant can, and must, pick him up and give him help.
The principle had been proclaimed in 1864 in forcible and generous terms. "The inhabitants of the country who afford assistance to the wounded shall be respected and remain free... All wounded collected and nursed in a house shall serve as its safeguard."
In 1906, however, it was thought better to be more moderate, and to limit the quasi-neutral status thus accorded to civilian volunteers and the inviolability of their homes. It was felt that the abuse of such facilities was all too easy, and might give rise to regrettable repressive measures. Moreover, while admitting that owing to the deadly effect of modern weapons there would always be cases where the possibilities of treatment fell short of requirements, it was considered that the universal extension of the Red Cross and the development of international solidarity had done much to reduce this risk.
Accordingly the 1906 Convention (Article 5 ) confined itself to allowing the military authorities to appeal to the charitable zeal of the inhabitants, and to according special protection and certain immunities to inhabitants who responded to this appeal.
The 1929 Convention (Article 5 ) took over this provision without change, except that it substituted for the word "immunities", which it was thought might give rise to doubt or controversy, the vaguer and more general word "facilities", which left Commanding Officers a freer choice.
[p.185] Experience during the Second World War demonstrated the value of the provision, but showed at the same time that it was necessary to improve it. Accordingly, the International Committee of the Red Cross and the various Conferences of Experts which helped to prepare for the revision of the Convention, tried to make the Article more complete and at the same time more specific. The origins and nature of the various changes made will be considered below in connection with the detailed discussion of each paragraph. It will suffice here to point out immediately the three principles which, in the light of experience, called for embodiment in the revised Article. These principles are as follows:

1. The protection and the facilities accorded to the inhabitants by a belligerent must also be accorded to them by the adverse Party.

2. The inhabitants must be authorized spontaneously to care for the wounded.

3. The fact of having cared for enemy wounded is never a reprehensible act.

It must be emphasized that these principles do not in actual fact extend the scope of the Convention or, in themselves, involve anything new. They are merely the embodiment in the Convention of provisions which were implicitly contained in the 1906 text and, for that reason, had not been thought worth expressing more specifically. But the release of blind political passions in wartime has shown -- in this, as in other connections -- how important it may be to give explicit legal form to certain principles, where there is reason to fear that their self-evident character may not always be recognized.
A further point for emphasis is the fact that this Article is the only one in the Convention which is addressed to the civilian population. The Convention is here going outside its specific domain. Does it follow that the Article would be more in place in the Fourth Convention, leaving the unity of the First Convention ' pro tanto ' unimpaired? Not so! The purpose of the Fourth Convention is to protect civilians against certain effects of war, whereas Article 18, when it mentions civilians, is primarily concerned with the more effective protection of wounded combatants. Its natural place is therefore in the First Convention. The same reason would seem to justify the place of the Article in Chapter II of the Convention, as the Chapter concerned with the wounded and sick, and not (as some would have preferred) in Chapter IV [p.186] which deals with medical personnel. The practical effect of the Article is undoubtedly to supplement the inadequate resources of medical services by inviting the civilian population to take over part of the work of the medical personnel. To that extent the provisions of Chapter IV cannot be treated as complete without reference to Article 18. But that is not the essential point. The essential point is that the Article lays down the principle that the care of wounded and sick persons must be universal; and that principle had to be stated in the only Chapter which is devoted in its entirety to the wounded and sick.


Paragraph 1 reproduces the whole of the provision of the 1929 Convention (Article 5 ), under which the military authorities might appeal to the charitable zeal of the inhabitants to collect and care for the wounded or sick of armies in return for certain protection and facilities.

A. ' Nature of the provision. ' -- The provision is optional. The military authorities are not bound to appeal to the inhabitants, and the inhabitants are not bound to respond to their appeal. The expression "appeal to the charitable zeal of the inhabitants" clearly shows that the appeal is only to the humanitarian sentiments of the population, and that all the military authorities can do is to endeavour to arouse such sentiments, should circumstances so require. This aspect of the matter is also indicated by the use of the word "voluntarily" (French, ' bénévolement ') which qualifies the action of the inhabitants in caring for the wounded and sick. The word was added in 1949.

B. ' Charitable action of the inhabitants. ' -- The inhabitants are accordingly invited to "collect and care for" the wounded and sick. These words, which were taken without change from the Conventions of 1906 and 1929, call for some comment.
The XVIIth International Red Cross Conference had proposed substituting the expression "give first aid" for the words "care for", on the ground that there must not be too much inducement to the military authorities to lay down their task. The Diplomatic Conference of 1949 on the other hand agreed with the view, put forward by the International [p.187] Committee of the Red Cross and shared by a number of delegations, that it was not desirable to limit the charitable action of the inhabitants, particularly as their action was purely voluntary. The words "care for" were accordingly retained, leaving the inhabitants completely free to undertake the entire treatment of a wounded or sick person until the time of his final recovery, if they wish to do so and possess the necessary means.
To "collect" a wounded man is to receive him into one's house. But it may also mean to bring him in from where he is lying wounded. The evolution of methods of warfare, far from diminishing the importance of this provision (as one might have thought it would do, at first sight) has on the contrary lent it new significance, particularly in connection with the development of aviation and the parachuting of troops. Crews of aircraft which have been shot down and wounded parachutists must be collected and cared for, where necessary, by the civilians in the neighbourhood of the place where they come down, which may be a long way behind the lines, or even across the frontier in a non-belligerent country. In the latter case, be it noted, the provisions of Article 18 will apply in the same way to the authorities and inhabitants of the country concerned, not merely because these provisions embody a universally valid principle of humanity, but also as an obligation of positive law -- in particular Article 4 of the First Convention, which lays down that neutral Powers are to apply by analogy the principles of the Convention. (1)
In the nature of things it will usually be in particular cases that the military authorities will appeal to the charitable zeal of the inhabitants. But it is also quite conceivable that a national or occupying Power may issue general recommendations to this effect. It would indeed be its duty to do so, if it appeared that the conditions of the fighting were such that the medical services would be unable to cope with the situation.

C. ' Control. ' -- The wounded and sick entrusted to the inhabitants must nevertheless remain under the ' control ' of the authorities. That is quite obvious in the case of nationals. But the institution of control is equally necessary in the case of enemy wounded. It is the military authorities who are responsible for their condition and medical treatment. It is they again who have to inform the Power of Origin of their identity and capture. Lastly, it is the authorities who must arrange for [p.188] their protection under the Third Convention relative to the treatment of prisoners of war.
It will rest with the military authorities themselves to prescribe the nature and extent of the measures of control they consider necessary. In practice this control will mainly consist, when once the particulars in regard to identity have been collected, in ensuring that the wounded receive proper care and are treated with the respect to which they are entitled.

D. ' Protection and facilities. ' -- The task of the inhabitants who respond to the appeal of the authorities may often be a heavy one. As it is essential that nothing should curb their charitable zeal, the Convention guarantees them "the necessary protection and facilities".
Article 5 of the 1929 Convention spoke of "special protection and certain facilities". The phrase was not very clear and, by leaving too much latitude to the military command in determining the nature of the protection and the facilities, opened the door to abuses. The Diplomatic Conference of 1949 introduced the necessary degree of precision, adopting a wording which had been suggested by the XVIIth International Red Cross Conference. The protection and facilities accorded will henceforth be those which are "necessary" -- that is to say, those without which the task of the inhabitants would be difficult, if not impossible. The appreciation of what is "necessary" is naturally left in the first instance to the military authorities; but the inhabitant himself must be free to state his requirements and explain his position, and these must be taken into consideration as far as possible.
What will this protection and these facilities be? The form they take will depend upon circumstances and cannot, therefore, be indicated here. It may be said at once, however, that the protection accorded cannot, in principle, imply the right to display the red cross emblem, either on the houses where the wounded are sheltered or on armlets worn by the inhabitants who volunteer to look after them. The houses cannot be given the status of medical establishments, nor can the inhabitants be given the status of medical personnel, or even of auxiliary medical personnel. The situation might be different if the numbers of wounded were large and if medical personnel were present and permanently responsible for the care of the wounded. The houses could then be converted into medical establishments within the meaning of [p.189] Article 19 of the Convention, and could display the emblem, if expressly authorized to do so by the competent authority, in accordance with Article 42, paragraph 1 .
There was moreover a lacuna in the 1929 Convention. It failed to stipulate that other military authorities, in particular those of the enemy belligerent, must also accord protection and facilities to inhabitants who helped to care for the wounded. There could, however, be no doubt that the spirit of the Convention required the provision to be understood in its widest possible sense. Accordingly the Conference of Experts of April 1947 recommended that the Diplomatic Conference should complete the provision by stipulating that in the event of occupation the enemy belligerent was to give these people the same protection and the same facilities. The Diplomatic Conference of 1949 approved the proposal, which forms the subject of the last sentence of the paragraph.


Paragraph 2 is the counterpart of paragraph 1 and restores a just balance. Having authorized military commands to appeal to the charitable zeal of the inhabitants, the next step was to authorize the inhabitants to exercise their charitable zeal spontaneously and, without being asked to do so, care for the wounded and sick, of whatever nationality, whom they collected. This authorization is also given to the inhabitants of invaded or occupied areas and to relief societies.

A. ' Right to relief action. ' -- This provision appears for the first time in explicit form in the Convention; but it is not new. It does not involve any extension of activities under the Convention, nor does it create any new form of protection. The spirit of the Convention has always demanded that assistance to wounded enemies should come before military necessities. The giving of such assistance being an imperative duty, it is impossible a fortiori to deny those who wish to come to the help of the wounded their right to do so. That right is the natural appanage of all persons; and no one can prevent the civilian population from carrying out, in all circumstances, their humanitarian duty towards the wounded, even though these should be enemy parachutists or "partisans".
[p.190] The need for explicit mention of this principle in the Convention arises from the fact that in the Second World War there were, unfortunately, inhabitants who were forbidden to help the wounded, or were punished by occupying authorities, or even by their own authorities, for having done so.
The action which has been taken to prevent such punishment being inflicted in the future is to be found in paragraph 3, and will be discussed below. The clause in the present paragraph which aims at preventing the prohibition of charitable assistance was first suggested by the Preliminary Conference of National Red Cross Societies in 1946, and was repeated in various forms by all the subsequent Conferences of Experts. The Diplomatic Conference of 1949 did not modify the principle involved.

B. ' Control. ' -- On the other hand, the Diplomatic Conference of 1949 took a line which diverged from the proposals of the experts on the question of control. The experts had thought it desirable to reconcile charitable with military requirements, and had agreed after long discussion to propose a provision to the effect that the inhabitants could not withhold the wounded and sick they had collected from possible control by the military authorities. But the Diplomatic Conference refused to make the permission granted to the inhabitants to give spontaneous help dependent on the acceptance of military supervision, or on any kind of compulsory statement, which would be tantamount to informing against those cared for. They pointed out that the absence from the Convention of any allusion to control did not necessarily mean that control was prohibited, and that in actual fact the military authorities could undoubtedly issue regulations of this kind where such a course was indicated by circumstances. But, as the Rapporteur of the First
Commission of the Diplomatic Conference remarked: "It would be extremely undesirable that this should be mentioned in a humanitarian Convention". (2)
The idea of control does indeed occur in paragraph 1. But its presence there is intelligible. It is only logical to provide that, when the military authorities themselves approach the inhabitants and ask them to look after the wounded, they should at the same time specify the degree of control they intend to retain over them. The position is different when it is the inhabitants who take the initiative in caring for the wounded [p.191] they have collected. It is not for them to come of their own accord and place the wounded under the control of the military authorities. It is for the latter to make provision for the necessary measures; and such measures are not a matter for the Convention.

C. ' Relief societies. ' -- It will be observed that paragraph 2 mentions, not only the inhabitants, but also relief societies. This addition was proposed by the meeting of experts of June 1947, which pointed out that these charitable societies or groups should also, as such, be authorized to care for the wounded spontaneously and with impunity. Their right to do so had been contested on occasion during the Second World War; and action had even been taken retrospectively against the heads of certain Red Cross Societies. Although relief societies are not expressly mentioned in paragraph 1, it is clear nevertheless that they are covered by the generic term "inhabitants" (which, it would seem, might also have sufficed in paragraph 2), and the military authorities may in the same way appeal to their charitable zeal.

D. ' Reassertion of the principle of inviolability. ' -- Paragraph 2 concludes with a reminder: the civilian population are to respect the wounded and sick, and in particular abstain from offering them violence.
It might appear astonishing that a principle, which has already been proclaimed once -- in the most solemn terms -- in Article 12 , should be repeated here. But there are several reasons for the repetition. Article 12 states the principle in very general terms. It does not say by whom the wounded and sick are to be respected and protected; it is addressed to all, military and civilians alike. In actual fact, however, it is mainly with the military that Article 12 is concerned, since it is by them and for them that the Convention is to be applied. Article 18 on the other hand, as has already been pointed out, is an exception to this rule. It alone among the Articles of the Convention is addressed directly to civilians, and it may be said to constitute a summary of the Convention for their benefit. It is complete in itself, and must be able to be isolated from the other Articles of the Convention. It was therefore important that the general principle should be repeated here as a warning addressed solely to civilians. This reminder is at the same
time an attempt to prevent the charitable zeal of the inhabitants from being restricted or replaced by sentiments of hostility towards the enemy wounded.


Paragraph 3 provides that "no one may ever be molested or convicted for having nursed the wounded or sick".
This clause constitutes a decisive verdict, in general and imperative terms, on painful problems which arose during the Second World War and immediately after it in many countries which had suffered materially and morally from the struggle. In these countries, assistance to the enemy wounded and sick could not always be given without hindrance. Men were killed or molested for having taken care of partisans or parachutists, while doctors and orderlies who had worked in the Medical Service or Red Cross Society of an occupying country were subjected at the close of hostilities to laws which treated any form of service in an enemy army as high treason, and were regarded purely and simply as individuals who had taken up arms against their country.
Such things are surely incompatible with the spirit of the Geneva Convention. The Geneva Convention is the embodiment of a great humanitarian idea, which goes far beyond the letter of the Convention's provisions -- the idea, namely, that all wounded persons are to be cared for without distinction of nationality. It follows that medical treatment, even where given to enemies, is always legitimate, and does not constitute a hostile act. Medical personnel are placed above the conflict. This, the dominant idea behind the Convention, was at the origin of the clause allowing belligerents to appeal to the charitable zeal of the inhabitants, just as it was responsible for Article 1 1 of 1929 , which authorizes the medical personnel of a neutral country to lend its assistance to one of the belligerents. Such assistance, though unilateral, does not constitute a violation of neutrality and, as stipulated by the Diplomatic Conference of 1949 in its corresponding new Article (Article 27 ), must never be regarded as interference in the conflict. The Convention lays down that belligerents must be guided by its general principles when faced with unforeseen cases (Article 45 ). Surely States should also be guided by those principles when faced with situations which come within the moral sphere of the Convention but are not expressly provided for in national or international positive law.
The Diplomatic Conference of 1949 decided, therefore, to incorporate in the Convention the principle which figures as paragraph 3. It [p.193] adopted for the purpose, without essential change, the text proposed by the XVIIth International Red Cross Conference on the recommendation of the International Committee.
This provision protects medical personnel in the strict sense of the word as well as civilians. National legislation will no doubt have to be brought into line with it when necessary; moreover, the judge's powers of summing up and the effect of exculpatory and attenuating circumstances, as well as amnesty measures, should enable it to be taken into account.
It is particularly desirable that the principle stated in this paragraph should be widely disseminated in accordance with the provisions of Article 47 , which requires the High Contracting Parties to make the text of the Convention known. It should be made clear to everyone that, in adhering to the Geneva Convention, the States have agreed to sacrifice national interests to the dictates of conscience, and that the Convention, by the predominance which it gives to humanitarian sentiments, is a breach in the barrier of hostility between nations and their enemies.


Paragraph 4 lays down that the provisions of the Article cannot be taken as relieving the Occupying Power of its obligation to give both physical and moral care to the wounded and sick.
This new provision, which emanates from the XVIIth International Red Cross Conference, may be compared with the final paragraph of Article 28 (3), which is in the same spirit.
The object of the proposal was to prevent an Occupying Power from making voluntary aid given by the inhabitants a pretext for evading its own duties, and omitting to take the necessary action to provide for the care of the wounded. The Occupying Power continues to be entirely responsible for the fate of the wounded. It rests with it to see that their treatment is in all respects in conformity with the Convention, and it is for it to furnish the means necessary to achieve this.
The provision makes it clear that assistance by the inhabitants can only be an incidental contribution resulting from special circumstances. That may seem obvious; but it was no doubt well that it should be mentioned here.

* (1) [(1) p.187] See above, page 61;

(2) [(1) p.190] See ' Final Record of the Diplomatic
Conference of Geneva, 1949, ' Vol. II-A, page 192;

(3) [(1) p.193] See below, page 257;