Treaties, States Parties and Commentaries
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Commentary of 1958 

[p.313] GENERAL

The health conditions under which the inhabitants of occupied territory lived during the Second World War were often deplorable. Insufficient food, lack of medical supplies and the influx of refugees favoured the spread of epidemics, and the steps taken by certain belligerents to ease the plight of the inhabitants -- the opening of new hospitals, out-patients' clinics and medical diagnosis and disinfection centres, the adoption of modern methods of control of epidemics, the supervision of hygiene and the adoption of preventive measures -- were often only able to deal with the most urgent cases.
The International Committee of the Red Cross recommended, on the basis of the experience gained during the Second World War (2) that as soon as hostilities ended, specific measures should be taken to prevent any repetition of this state of affairs.


The reference in the Article to "the co-operation of national and local authorities" -- a formula we have already seen in Article 50 in connection with children's institutions -- shows clearly that there can be no question of making the Occupying Power alone responsible for the whole burden of organizing hospitals and health services and taking measures to control epidemics. The task is above all one for the competent services of the occupied country itself. It is possible that in certain cases the national authorities will be perfectly well able to look after the health of the population; in such cases the Occupying Power will not have to intervene; it will merely avoid hampering the work of the organizations responsible for the task. In most cases, however, the invading forces will be occupying a country suffering [p.314] severely from the effects of war; hospitals and medical services will be disorganized, without the necessary supplies and quite unable to meet the needs of the population. The Occupying Power must then, with the
co-operation of the authorities and to the fullest extent of the means available to it, ensure that hospital and medical services can work properly and continue to do so.
The Article refers in particular to the prophylactic measures necessary to combat the spread of contagious diseases and epidemics. Such measures include, for example, supervision of public health, education of the general public, the distribution of medicines, the organization of medical examinations and disinfection, the establishment of stocks of medical supplies, the despatch of medical teams to areas where epidemics are raging, the isolation and accommodation in hospital of people suffering from communicable diseases, and the opening of new hospitals and medical centres.
It will be remembered that Article 55 requires the Occupying Power to import the necessary medical supplies, such as medicaments, vaccines and sera, when the resources of the occupied territory are inadequate. It will also be able to exercise its right to requisition, and demand the co-operation not only of the national and local authorities but also of the population in the fight against epidemics. It has been seen that under Article 51, paragraph 2 , the Occupying Power is entitled to order work which is necessary "for the public utility services" and "for the ... health of the population of the occupied country". Consequently, it may, if it appears desirable, requisition the co-operation of any protected person within the limits set by that Article, should such co-operation be necessary for the efficient working of the health services or hospitals and medical installations.
The last sentence of paragraph 1 specifies that "medical personnel of all categories shall be allowed to carry out their duties". The Occupying Power's duty of maintaining hospitals and medical services and establishments and also the public health and hygiene services necessarily involves measures to safeguard the activities of medical personnel, who must therefore be exempted from any measures (such as restrictions on movement, requisitioning of vehicles, supplies or equipment) liable to interfere with the performance of their duty.
"Medical personnel of all categories" should be taken to mean all people engaged in a branch of medical work: doctors, surgeons, dentists, pharmacists, midwives, medical orderlies and nurses, stretcher bearers, ambulance drivers, etc., whether such persons are or are not attached to a hospital. On that point the provision differs from Article 20 of the Convention, which refers only to hospital staff, who are alone authorized to wear the armlet bearing the red cross emblem.


In order to understand this paragraph fully, reference must be made to Articles 18 , 20 and 21 of the Convention, according to which civilian hospitals and their staff, and transport carrying wounded or sick civilians, cripples or maternity cases, are entitled to display the red cross emblem. As was seen, that right is subject to a certain number of conditions, the most important being recognition by the State.
It is quite possible and even probable that it will become necessary to set up new hospitals in occupied territory. Like all hospitals, such establishments must be respected, protected and allowed to display the red cross on a white ground. What would happen if the competent body of the occupied State were no longer functioning and could not accord official recognition? In such a case the Occupying Power would take the place of the national authorities and would issue the document according recognition and granting the right to display the red cross to new hospitals. The same thing applies to the issue of identity cards to the staff of new hospitals and to the question of responsibility for transporting wounded and sick civilians.
The Occupying Power will confer official recognition and authority to display the emblem only on hospitals, staff and medical transport which fulfil the conditions laid down in Articles 18 , 20 and 21 of the Convention. The protection to which civilian hospitals are entitled may, in particular, be suspended if "they are used to commit, outside their humanitarian duties, acts harmful to the enemy" (Article 19 ).


The last paragraph provides protected persons with a further safeguard, in that any measure of public health and hygiene the Occupying Power feels it should take in order to comply with the above stipulations must pay due regard to the habits and customs of the population (3).
The purpose of the provision is to ensure respect for sentiments and traditions, which must not be disregarded. The occupation must not involve the sudden introduction of new methods, if they are liable to cause deep disquiet among the population. The provision should be compared with Article 27 , which requires the Party to the conflict to respect, in all circumstances, the religious convictions and practices of protected persons, and also their manners and customs.

Notes: (1) [(1) p.312] For the origin of the Article, see ' Final
Record, ' Vol. I, p. 122; Vol. II-A. pp. 666-668, 747-748,
830, 851-857; Vol. II-B, pp. 194, 418-419, 421; Vol. III,
pp. 135-136;

(2) [(1) p.313] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, pp. 710 et sqq.;

(3) [(1) p.315] There does not seem to be any real distinction
between "moral" susceptibilities and "ethical"
susceptibilities. The two terms appear to be synonymous.
The most that could be said is that the word "moral" tends
to emphasize the psychological aspect of the question;