Treaties, States Parties and Commentaries
  • Print page
Commentary of 2017 
Article 13 : Protected persons
Text of the provision
The present Convention shall apply to the wounded, sick and shipwrecked at sea belonging to the following categories:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany.
(5) Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law.
(6) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Reservations or declarations
Guinea-Bissau,[1] rejected by the Federal Republic of Germany,[2] the United States of America[3] and the United Kingdom of Great Britain and Northern Ireland.[4]
Contents

  • A. Introduction
  • B. Historical background
  • C. Discussion
    A. Introduction
    1484  The purpose of Article 13 is to specify which persons, on their being wounded, falling sick or being shipwrecked, the Second Convention protects.[5] The list includes members of the armed forces and other categories of persons who, while not being members of the armed forces, either have combatant status or are otherwise entitled to prisoner-of-war status. The enumeration of protected persons in Article 13 is thus deliberately almost the same as that adopted for prisoners of war in Article 4 of the Third Convention. Reliance in Article 13 on the definition of prisoners of war provided in Article 4 of the Third Convention ensures consistency in the Conventions. [6]
    1485  However, there are some differences between Article 13 of the Second Convention and Article 4 of the Third Convention. For instance, Article 13 does not take into account Article 4B of the Third Convention, which deals with belligerents who have been re-interned in occupied territory or in a neutral or non-belligerent territory. This is because the Second Convention relates primarily to treatment of the wounded, sick and shipwrecked who are in the immediate vicinity of hostilities, whereas the categories of persons listed in Article 4B of the Third Convention are not relevant to that context.[7] In addition, there is no requirement in Article 13 that a person be in enemy hands in order to be covered by the Second Convention. Nevertheless, as soon as wounded or sick persons covered by the Second Convention fall into the hands of the enemy, they are also protected as prisoners of war, as affirmed by Article 16. In such cases, the Second and Third Conventions apply simultaneously.[8]
    1486  Other than the limited number of civilians who fall under paragraphs 4 and 5 of Article 13, the Second Convention does not apply to civilians who are wounded or sick. Civilians who are wounded or sick are entitled to protection under the Fourth Convention and other rules of international humanitarian law.[9]
    Back to top
    B. Historical background
    1487  The first Geneva Convention (1864) was concerned with the protection of the wounded and sick in armies in the field. That Convention set up a system for the protection of ‘[w]ounded or sick combatants, to whatever nation they may belong’.[10] When the Convention was revised in 1906, it protected wounded or sick ‘[o]fficers, soldiers, and other persons officially attached to armies’, thus extending protection to all members of the armed forces, including non-combatants such as medical personnel and any others who were officially part of the armed forces without being combatants.[11] When the Convention was revised again in 1929, the scope of application remained unchanged.[12]
    1488  In 1929 there was no attempt to harmonize the categories of persons to whom the Geneva Convention on the Wounded and Sick would apply with those to whom the new Geneva Convention on Prisoners of War was to apply, even though both Conventions were being negotiated at the same time.[13] This was intentional, as there was concern that some States which were already party to the 1906 Convention would not wish to become party to the revised convention if it adopted a definition of a prisoner of war which they did not espouse.[14] In 1949, however, the delegates preferred to harmonize the Conventions to the greatest extent possible.[15]
    1489  At the same time, the protection of civilians who were wounded, sick or shipwrecked because of or during armed conflicts became a pressing concern. During the preparatory work for the Conventions prior to the 1949 Diplomatic Conference, the possibility of extending the protection of the whole of the First Convention to civilians was debated.[16] Instead of taking that approach, the Fourth Convention was developed as a separate treaty and the scope of protection of the First Convention was essentially maintained.
    1490  The development of the categories which were ultimately adopted in Article 13 of the First and Second Conventions and in Article 4A of the Third Convention occurred entirely within the context of the revision of the Geneva Convention on Prisoners of War.
    For a more detailed discussion of the historical development of the categories as they pertain to prisoners of war, see the commentary on Article 4 of the Third Convention.
    Back to top
    C. Discussion
    1. Scope of application: ‘wounded, sick and shipwrecked at sea belonging to the following categories’
    1491  The introductory paragraph of Article 13 provides that the Second Convention applies to ‘the wounded, sick and shipwrecked at sea belonging to the following categories’. The meaning of the term ‘wounded, sick and shipwrecked’ in this context is set out in the commentary on Article 12.[17]
    1492  In addition to the requirement that a person be wounded, sick or shipwrecked, Article 13 is distinct from Article 4 of the Third Convention in a subtle but important way: as noted above, it does not require a wounded, sick or shipwrecked person to have fallen into enemy hands in order to be protected. This is illustrated by the obligation of Parties to the conflict in Article 18 to search for and collect the wounded, sick and shipwrecked even when such persons are not in their hands.
    1493  Furthermore, this means that the Second Convention also applies to wounded, sick or shipwrecked members of a Party’s own armed forces, in addition to those of the armed forces of the adverse Party.[18] This is the way in which the obligations now enshrined in the First Convention have been understood since their adoption in 1864.[19] Since the Second Convention adapts the principles of the First Convention to the naval context, it is logical to consider that this understanding also applies to the Second Convention.
    Back to top
    2. The different categories in Article 13
    1494  Article 13 includes members of the armed forces of Parties to the conflict and also a number of other categories of persons. The first paragraph refers to ‘[m]embers of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces’. The term ‘armed forces’ was specifically chosen to encompass all military personnel, no matter to which service they belong, be it land, sea or air forces.[20] It should be noted that the incorporation of individuals into State armed forces, including militia and volunteer corps that are part of such armed forces, is not regulated under international law and depends on the internal laws of States.[21]
    1495  Paragraph 2 sets out the criteria that ‘other militias’ must meet in order to have prisoner-of-war status.[22] The four conditions listed in that paragraph for militias and volunteer forces which belong to a Party to a conflict but are not part of its regular armed forces have been recognized since at least 1899, when they were enumerated in the Hague Convention (II).[23] The innovation in 1949 was to extend those conditions to cover organized resistance groups fighting against Occupying Powers, including when the Occupying Power had established full control over the whole territory.
    1496  Paragraph 3 protects regular armed forces fighting for a government not recognized by the opposing forces.[24] This provision applies to situations where a State exists but where the government in power may not be recognized as the legitimate government of the territory by other States that are Parties to the conflict. This was the case during the international armed conflict between the Taliban and the US-led coalition in Afghanistan in 2001–2002.[25] While the Taliban controlled 90 per cent of the territory of the country, it was recognized as the legitimate government of Afghanistan by only a few States.[26]
    1497  The wording in Article 13(3) warrants additional clarification. Article 13(3) refers to the ‘Detaining Power’ instead of ‘opposing forces’, which suggests that, to fall under it, the wounded, sick and shipwrecked must be detained. This is technically incorrect; the use of the term might be due to an oversight when the drafters transposed the article from the Third Convention to the First and Second Conventions.[27] In any case, the term should be interpreted in the light of the aim of the provision, which is to ensure that assistance is provided without exception. Thus, wounded, sick and shipwrecked persons covered by the Second Convention, including those mentioned in this paragraph, benefit from the protection owed to them by enemy forces even when they are not (yet) in their hands or detained.
    1498  Paragraph 4, which affirms that persons ‘who accompany the armed forces without actually being members thereof’ are protected, extends the protection of the Second Convention to some civilians in specific roles.[28] This category may include journalists ‘embedded’ with armed forces, as well as private contractors who supply services to armed forces and who are authorized to do so by a Party to the conflict.[29]
    1499  There is a minor distinction in the wording of Article 13(4) of the Second Convention compared with the equivalent text in Article 4A(4) of the Third Convention. Article 4A(4) adds that the armed forces which have authorized persons to accompany them ‘shall provide them … with an identity card similar to the annexed model’. The omission of this phrase in Article 13 is logical, as it may not be feasible, in practice, to check for an identity card before or even while respecting and collecting the wounded and sick, whereas such checks can be made once a person is in the power of the enemy. In any case, the preparatory work on Article 4 indicates that possession of an identity card should not be taken as a necessary element for prisoner-of-war status.[30] Even so, since such cards are sufficient to identify persons as accompanying the armed forces, States are required to issue them to protect those persons. Nevertheless, the fact that no card is mentioned in Article 13(4) makes no practical difference in terms of who may fall under this article.
    1500  Paragraph 5 stipulates that the civilian crews of merchant ships and civilian aircraft of a Party to the conflict who are wounded or sick also enjoy the protection of the Convention if they ‘do not benefit from more favourable treatment under any other provisions in international law’. This clause is relevant primarily for the application of Article 16 of the Second Convention to this category of persons. The ‘more favourable treatment’ clause refers to the 1907 Hague Convention (XI), which provides that certain merchant seamen must not be made prisoners of war.[31] They must, however, be respected, collected and cared for in accordance with the Second Convention.[32] The crews of neutral merchant vessels and civilian aircraft are not protected by the Second Convention, but they may be protected by the Fourth Convention.[33] Lastly, Article 13(6) protects the wounded and sick who were participating in a ‘levée en masse’ (mass rising). This last category was already considered to be essentially archaic in 1949, but was included in the Conventions as a long-standing category of persons whose belligerent status is recognized provided that they fulfil certain conditions.[34]
    1501  The debates during the 1949 Diplomatic Conference regarding the development of the list of protected persons in Article 4 of the Third Convention (Article 13 of the First and Second Conventions) were primarily concerned with the question of who should be entitled to prisoner-of-war status, in view of the benefits of such status. This is still the case today: controversy related to the interpretation of the concepts embodied in both Article 4 of the Third Convention and Article 13 of the Second Convention is often linked to the question of prisoner-of-war status, i.e. a question relevant for the application of the Third Convention. In contrast, controversy has not arisen in relation to the status and protection of wounded, sick or shipwrecked persons under the Second Convention.[35]
    For a more comprehensive discussion of the different categories of persons, especially in relation to prisoner-of-war status, see the commentary on Article 4 of the Third Convention.
    Back to top
    3. Protection of the wounded, sick or shipwrecked who are not covered by the Second Convention
    1502  Article 13 defines which persons, if they are wounded or sick, benefit from the protection of the Second Convention. It must be emphasized, however, that all wounded, sick or shipwrecked persons, including civilians, are entitled to respect, humane treatment, and the care which their condition requires. Anyone in need of medical attention is entitled to receive it. When a wounded or sick person falls into enemy hands, the priority must be to provide medical care with the least possible delay.[36] The determination as to whether that person meets the conditions for being a prisoner of war can be made later, at an appropriate time and place. Moreover, some obligations in the Second Convention – such as the obligation to search for and collect the wounded and sick – must be carried out before it is possible to determine whether these persons meet the criteria in Article 13.[37]
    1503  At the Diplomatic Conference in 1949, it was emphasized that ‘it is of course clearly understood that those not included in this enumeration [of Article 13] still remain protected, either by other Conventions, or simply by the general principles of International Law’.[38] Thus, Article 13 cannot in any way entitle a Party to a conflict to fail to respect a wounded, sick or shipwrecked person, or to deny the requisite treatment, even where the person does not belong to one of the categories specified in it.
    1504  The significance of this approach has only increased over time. With the many changes in the way in which armed conflicts have been conducted over the past 150 years, civilians have become even more likely than members of the armed forces to suffer injury during hostilities.[39] In addition, many conflicts nowadays are of a mixed character, with non-international armed conflicts – in which there is no prisoner-of-war status as a matter of law – occurring alongside international armed conflicts. When it comes to respecting and protecting the wounded and sick, providing them with medical care and treating them humanely, the inclusion of Article 13 in the Second Convention does not mean that these obligations are excluded with respect to persons not covered by the article.[40]

    1 - United Nations Treaty Series, Vol. 920, 1974, pp. 280–282, at 281: The Council of State of the Republic of Guinea-Bissau does not recognize the conditions provided for in subparagraph (2) of this article concerning “members of other militias and members of other volunteer corps, including those of organized resistance movements”, because these conditions are not suited to the people’s wars waged today.
    2 - Ibid. Vol. 970, 1975, pp. 366–367: The reservations formulated in this connexion by the Republic of Guinea-Bissau concerning … Article 13(2) of the first Geneva convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field … exceed, in the opinion of the Government of the Federal Republic of Germany, the purpose and intent of these Conventions and are therefore unacceptable to it. This declaration shall not otherwise affect the validity of the said Geneva Conventions under international law as between the Federal Republic of Germany and the Republic of Guinea-Bissau.
    3 - Ibid. pp. 367–368: The Department of State refers to the note of March 5, 1974 from the Embassy of Switzerland enclosing the notification of the Swiss Federal Political Department concerning the accession of the Republic of Guinea-Bissau to the Geneva Conventions of August 12, 1949 for the protection of war victims, subject to certain reservations. The reservations are similar to reservations expressed by others previously with respect to the same or different conventions and concerning which the Government of the United States has previously declared its views. The attitude of the Government of the United States with respect to all the reservations by the Republic of Guinea-Bissau parallels its attitude toward such other reservations. The Government of the United States, while rejecting the reservations, accepts treaty relations with the Republic of Guinea-Bissau.
    4 - Ibid. Vol. 995, 1976, pp. 394–396.
    5 - The Convention protects other persons as well – in particular, medical and religious personnel of hospital ships and their crews and medical and religious personnel of other ships – but their protection is not conditioned on their being wounded, falling sick or being shipwrecked; see, especially, Articles 36 and 37.
    6 - For example, obligations relating to the recording and forwarding of information on wounded and sick persons and prescriptions regarding the dead are similar in the Second and Third Conventions. Compare, for example, Article 19 of the Second Convention and Article 120 of the Third Convention.
    7 - Article 4B concerns persons already in enemy hands or under the control of a neutral or non-belligerent Power. As such persons are not likely to be found wounded or sick on battlefields or near hostilities, these categories were not included in Article 13 of the Second Convention.
    8 - See the commentary on Article 16, section C.4.
    9 - See Articles 16 and 17 of the Fourth Convention. For those States party to Additional Protocol I, Article 8(b) makes no distinction between wounded, sick or shipwrecked military personnel and civilians for the purposes of the Protocol. According to the ICRC study on customary international humanitarian law, no distinction should be made between wounded, sick or shipwrecked combatants, military personnel and civilians in respect of the obligations owed to them under that body of law; see ICRC Study on Customary International Humanitarian Law (2005), Rules 109–111. In the context of non-international armed conflicts, common Article 3 (in the Second Convention) specifies that the wounded, sick and shipwrecked must be collected, cared for and treated humanely. Article 7 of Additional Protocol II also does not distinguish between wounded, sick and shipwrecked military personnel and civilians.
    10 - Geneva Convention (1864), Article 6.
    11 - Geneva Convention (1906), Article 1. See Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 15. The term ‘non-combatants’ here is used in the narrow sense, as it was meant in Article 3 of the 1907 Hague Regulations. To give an example, at that time cooks who were members of the armed forces were not considered combatants.
    12 - Geneva Convention on the Wounded and Sick (1929), Article 1. In 1929, the English translation was slightly revised, to ‘[o]fficers and soldiers and other persons …’ but otherwise remained identical to that of 1906. The French version of all three Conventions used the word ‘militaires’.
    13 - Proceedings of the Geneva Diplomatic Conference of 1929, pp. 88–90. In the end, the 1929 Geneva Convention on Prisoners of War relied on the definition in the 1907 Hague Convention (IV), but could also apply to certain categories of civilians; see Geneva Convention on Prisoners of War (1929), Articles 1 and 81.
    14 - There was discussion during the 1929 Diplomatic Conference as to whether the definition, for the purposes of the Geneva Convention on the Wounded and Sick, would be identical to that being negotiated for prisoners of war. See Proceedings of the Geneva Diplomatic Conference of 1929, pp. 88–89 (delegate of the United Kingdom: ‘Je crois que le même texte se trouvera dans le Code des prisonniers de guerre’ (‘I believe that the same text will be found in the code for prisoners of war.’). However, the President of the Diplomatic Conference counselled against harmonizing the two treaties on this point; see p. 89. At the time, the definition of prisoners of war was that found in Articles 1–3 of the 1907 Hague Regulations.
    15 - They also sought to harmonize the definition with that in Article 1 of the 1907 Hague Regulations; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 237, 239–242, 386–387, 413–414 and 420–423.
    16 - This idea was considered during the 1937 Commission of Experts (National Societies), but it was not adopted by the 17th International Conference of the Red Cross; see Report of the Preliminary Conference of National Societies of 1946, pp. 16–18.
    17 - See the commentary on Article 12, section D.3.
    18 - This is also affirmed in Article 10 of Additional Protocol I, and the 1987 commentary reiterates this point; see Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 445: The inclusion of the expression ‘to whichever Party they belong’ ensures that ‘it is clearly stated that every Party to the conflict must respect and protect its own wounded, sick and shipwrecked – which may seem self-evident, though it is perhaps a useful reminder …’ In spite of this, the First Convention retains the wording ‘Detaining Power’ in paragraph 3 of Article 13, even though that formulation is technically inaccurate for the situation of the wounded and sick.
    19 - See Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 13–14.
    20 - In the English translation of the 1929 Geneva Convention on the Wounded and Sick, the expression ‘armed forces’ was already in use, whereas in the French version of that Convention, the term ‘armies’ was used.
    21 - See Knut Ipsen, ‘Combatants and Non-Combatants’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 79–113, at 86.
    22 - See also the commentary on Article 4 of the Third Convention.
    23 - Hague Convention (II) (1899), Annex, Article 1. The same conditions were also listed in Article 9 of the 1874 Brussels Declaration.
    24 - Its inclusion in 1949 was inspired by a need to protect the members of armed forces such as those fighting under General Charles de Gaulle during the Second World War.
    25 - Issues relating to the prisoner-of-war status of the participants in that conflict are discussed in the commentary on Article 4 of the Third Convention.
    26 - See Stephane Ojeda, ‘US Detention of Taliban Fighters: Some Legal Considerations’, in Michael N. Schmitt (ed.), The War in Afghanistan: A Legal Analysis, International Law Studies, U.S. Naval War College, Vol. 85, 2009, pp. 357–369, at 358–359.
    27 - A delegate to the 1949 Diplomatic Conference pointed out that ‘the words “Detaining Power” would have to be replaced by “adverse Party”’, but this seems to have been forgotten in the end; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 50.
    28 - Those civilians were accorded prisoner-of-war status in the 1899/1907 Hague Conventions (II/IV) and the 1929 Geneva Convention on Prisoners of War, but it was only with the 1949 Convention that the protections for the wounded and sick were extended to them. Article 13 of the 1899 Hague Convention (II) and the 1907 Hague Convention (IV) reads: ‘Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers, contractors, who fall into the enemy’s hands, and whom the latter think fit to detain, have a right to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying.’ Article 81 of the 1929 Geneva Convention on Prisoners of War maintained prisoner-of-war status for this group. For further analysis, see the commentary on Article 4 of the Third Convention.
    29 - Not all private contractors fall within this category, however. For example, it is unlikely that private military and security contractors hired by non-governmental organizations, by private companies, or even by government agencies other than defence departments (depending on internal laws) would meet the requirements to be considered to be civilians accompanying the armed forces. See Lindsey Cameron and Vincent Chetail, Privatizing War: Private Military and Security Companies under Public International Law, Cambridge University Press, 2013, pp. 419–421.
    30 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 416–418. The preparatory work is silent as to why the card is not mentioned in Article 13.
    31 - See Hague Convention (XI) (1907), Articles 5–8. For a discussion, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 418–419. See also Hague Convention (XI) (1907), Articles 3 and 4, which stipulate that certain vessels are exempt from capture. On vessels exempt from capture, see also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rule 136.
    32 - For a further discussion on the persons falling under Article 13(5), see the commentary on Article 22, section C.1.f.
    33 - If they are not protected persons under the Fourth Convention, they are entitled to protection under Article 75 of Additional Protocol I.
    34 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 239.
    35 - This was confirmed in part in 1970 by the report of the UN Secretary-General, ‘Respect for Human Rights in Armed Conflicts’, UN Doc. A/8052 (1970), 18 September 1970, para. 99: ‘[T]here seems to be no pressing need for revision of the Geneva Conventions on the protection of wounded, sick and ship-wrecked combatants.’
    36 - For details, see Fourth Convention, Article 16, and Additional Protocol I, Articles 8(a)–(b) and 10. See also ICRC Study on Customary International Humanitarian Law (2005), Rules 109–111.
    37 - See Article 18.
    38 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191 (regarding Article 10A). There was a proposal by the Drafting Committee to add a paragraph to Article 13 ‘specifying that the provisions of Article [13] should not deprive the wounded and sick, whatever their category, of the protection to which they were entitled according to the general principles of the law of nations’. That proposal, which was brought forward before Article 4 of the Third Convention was finalized, was rejected by vote, but the rejection was due to problems with translation regarding the proposed text and principle; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 158. See also Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, Vol. III, meeting held on 30 July 1949, pp. 35–46.
    39 - This was already the case in the 1930s and 1940s when the revision of the Geneva Convention on the Wounded and Sick was being discussed; see Report of the Preliminary Conference of National Societies of 1946, pp. 16–18.
    40 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004: 7.3. The wounded and sick are to be protected and respected. They may not be attacked. They must be treated humanely. They must be provided with medical care. They may not wilfully be left without medical assistance nor exposed to contagious diseases or infection. Priority of treatment is dictated by medical reasons only. … 7.3.2. Paragraph 7.3 applies to all wounded and sick, whether United Kingdom, allied or enemy, military or civilian.