Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 12 : Protection and care of the wounded, sick and shipwrecked
Text of the provision*
(1) Members of the armed forces and other persons mentioned in the following Article, who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term “shipwreck” means shipwreck from any cause and includes forced landings at sea by or from aircraft.
(2) Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.
(3) Only urgent medical reasons will authorize priority in the order of treatment to be administered.
(4) Women shall be treated with all consideration due to their sex.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1358  ‘[M]itigating, as far as possible, the sufferings inseparable from war’[1] is a fundamental imperative of international humanitarian law. The protection of the wounded and sick, therefore, has been at the heart of humanitarian treaty law since its modern inception in 1864.[2] Given the particular vulnerability of persons at sea, the notion that protection should be extended to the naval context arose almost immediately following the adoption of the 1864 Geneva Convention.[3]
1359  Owing to the overall structure of the Geneva Conventions and their Additional Protocols, the legal regime pertaining to the wounded, sick and shipwrecked is dispersed across various instruments that regulate different aspects of their protection. Article 12 of the Second Convention is the foundation on which today’s legal protection of wounded, sick and shipwrecked persons is built. It lays down a system of complementary positive and negative obligations and establishes the fundamental provisions on how they are to be treated and cared for.
1360  For land warfare, Article 12 of the First Convention applies in international armed conflict to the wounded and sick who are members of the armed forces or otherwise entitled to prisoner-of-war status. Article 12 of the Second Convention extends protection to wounded, sick and shipwrecked members of the armed forces and other persons at sea entitled to prisoner-of-war status.[4] Article 16 of the Fourth Convention provides for the protection and respect of wounded and sick civilians and requires the Parties to the conflict to ‘facilitate the steps taken … to search for the shipwrecked’. Article 10 of Additional Protocol I contains a similar provision.
1361  The treatment of the wounded, sick and shipwrecked in non-international armed conflict is dealt with in common Article 3 of the Geneva Conventions and Article 7 of Additional Protocol II.[5]
1362  Today, however, the legal regime applicable to the wounded, sick and shipwrecked in any given conflict is more comprehensive. The obligations to treat the wounded, sick and shipwrecked humanely and to provide them with medical care are mandatory by virtue not only of the Geneva Conventions and their Additional Protocols, but also of customary international humanitarian law.[6] These fundamental obligations apply in both international and non-international armed conflict and regardless of whether the wounded, sick or shipwrecked person is military or civilian.[7]
1363  Violations of these obligations can amount to grave breaches of the Geneva Conventions when committed in the context of an international armed conflict.[8] They are punished as war crimes in both international and non-international armed conflict.[9] Reprisals against wounded, sick or shipwrecked persons (and against the personnel, vessels or equipment protected by the Convention) are prohibited under Article 47 of the Second Convention and customary international law.[10]
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B. Historical background
1364  The codification of international law protecting wounded and sick members of armed forces in the field began with the Geneva Convention of 1864 and was developed through subsequent revisions to that Convention in 1906, 1929 and 1949, as well as through the Additional Protocols of 1977.[11]
1365  An attempt was made in 1868 to adopt additional articles to cover maritime warfare, but these were never ratified by States.[12] In 1899, the principles of the 1864 Geneva Convention were adapted to maritime warfare and to wounded, sick and shipwrecked members of armed forces at sea in Hague Convention (III).[13] That Convention was revised in 1907 to become Hague Convention (X).[14] For the wounded and sick on land, the 1906 Geneva Convention was revised again in 1929, but it was not until after the Second World War that a Geneva Convention governing maritime warfare was adopted.
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C. Addressees of the obligations
1366  Paragraph 2 of Article 12 refers explicitly to the ‘Parties to the conflict’ as the bearers of the obligations to care for the wounded, sick and shipwrecked and to treat them humanely. While the other paragraphs do not specify to whom the obligations contained therein are addressed, it is clear that Article 12 as a whole concerns the High Contracting Parties when they are party to an international armed conflict. The obligation in paragraph 1 is addressed to all: masters, commanding officers and crews of warships, auxiliaries, other State ships and merchant vessels, the authorities on land, and the civilian population when they come in contact with wounded, sick or shipwrecked persons.
1367  In addition, Article 5 of the Second Convention requires neutral Powers to apply by analogy the provisions of the Convention to, inter alia, the wounded, sick or shipwrecked received or interned in their territory.[15]
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D. Scope of application
1368  In terms of personal scope of application, Article 12 applies when two distinct criteria are cumulatively fulfilled.
1369  The first criterion is status-based (see section D.1). It requires a person either to be a member of the armed forces or to belong to one of the other categories of persons listed in Article 13 of the Second Convention.[16] It does not matter to which Party to a conflict the person belongs. Article 12 applies to a State’s own wounded, sick and shipwrecked personnel as well as to the wounded, sick and shipwrecked of an adverse Party or co-belligerent.
1370  According to the second criterion, the person has to qualify as wounded, sick or shipwrecked in the legal sense (see section D.3).
1371  For the application of Article 12(1), it does not matter whether the person in question has been captured or is otherwise in the power of a Party to the conflict. Conversely, the obligations contained in Article 12(2) only extend to the wounded, sick or shipwrecked who are in the power of a Party to the conflict.
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1. Categories of persons covered
1372  Article 12 applies to persons who are either members of the armed forces or who belong to the other categories of persons mentioned in Article 13 of the Second Convention. In the context of the Second Convention, it is important to recall that, pursuant to Article 13(5), civilian members of the merchant marine (who are wounded, sick or shipwrecked) are also protected persons.[17] Article 12(4) contains an additional obligation with a specific personal scope of application: the wording of this provision indicates that female members of the armed forces or of the categories of persons mentioned in Article 13 are entitled to specific protections.
1373  In addition, Article 4(2) of the Second Convention makes clear that once armed forces are put ashore they immediately become subject to the provisions of the First Convention.
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2. Geographical scope of application: ‘at sea’
1374  The Second Convention applies to a specific category of persons who are ‘at sea’ and who are wounded, sick or shipwrecked. The term ‘sea’ is not defined in the Second Convention, nor in the 1982 UN Convention on the Law of the Sea, but there is a customary understanding of the term.[18] For the purposes of interpreting who is protected under the Second Convention, no precise definition of ‘at sea’ is necessary.[19] The term was included in the Convention in order to distinguish its scope of application from that of the First Convention (land).[20] Since the adoption of the Convention, it has been understood that the term ‘sea’ should be interpreted broadly.[21] Thus, the term ‘at sea’, as used in the Second Convention, comprises the high seas, exclusive economic zones, archipelagic waters, territorial sea, and internal waters, including lakes and rivers.[22]
1375  This reading of the geographical scope of application of Article 12 is in line with Article 8(b) of Additional Protocol I. The definitions in that article are ‘for the purposes of [the] Protocol’; however, by the time the Protocol was drafted, there was a clear consensus that the term ‘sea’ in the Second Convention covered inland waterways such as freshwater lakes and rivers.[23] In the Protocol, therefore, the substitution of the word ‘water’ for ‘sea’ was considered not to entail a substantive change but merely one of clarification.[24] It was introduced ‘simply to bring the terminology into line with current practice’.[25] One delegate to the 1974–1977 Diplomatic Conference pointed out that persons in distress in water wherever they are, be it shipwrecked at sea, on a lake or on another inland waterway, were all equally in urgent need of rescue, suggesting that the same protection concerns therefore applied.[26] Furthermore, the definition in Article 8(b) is reflected in the military manuals of at least two States not party to Additional Protocol I.[27]
1376  If, despite the above considerations, the Second Convention is understood as not applying to lakes, rivers and other internal waters, the First Convention would necessarily apply in those cases. While the First Convention does not apply to ‘shipwrecked’, for wounded or sick persons who are in peril in such bodies of water, the protection related to wounded, sick and shipwrecked persons in the Second Convention would logically need to be applied mutatis mutandis so that they may be collected and cared for in accordance with the First Convention.
1377  As soon as the persons protected by the Convention are on land or are otherwise ‘put ashore’, they will become subject to the provisions of the First Convention.[28] Given that, in terms of substance, the same legal protection that applies by virtue of Article 12 of the Second Convention also applies by virtue of Article 12 of the First Convention, the distinction of when they are (still) at sea and when they are on land can be considered largely irrelevant.
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3. Wounded, sick or shipwrecked
1378  In order to benefit from the protections provided for in Article 12, a person has to qualify as wounded, sick or shipwrecked. For legal purposes there is no difference between the concepts of ‘wounded’ and ‘sick’. Throughout the First and Second Conventions the two terms are used together. The same legal consequences attach to both conditions. The consistent reference in Article 12 to both concepts reinforces the notion that a wide variety of medical conditions can trigger the protected status granted by this provision.
1379  Qualifying as wounded, sick or shipwrecked in the context of international humanitarian law requires the fulfilment of two cumulative criteria: first, in order to qualify as wounded or sick a person must require medical care, and to qualify as shipwrecked the person must be in a situation of peril at sea; second, in all cases the person must refrain from any act of hostility. In other words, the legal status of being wounded, sick or shipwrecked is based on a person’s medical condition or particular situation and conduct. The humanitarian law definition of ‘wounded and sick’ or shipwrecked is therefore both narrower and wider than the ordinary meaning of these words. On the one hand, the definition is wider for the medical conditions covered than the colloquial sense of these terms might suggest, and broader than the colloquial meaning of the term ‘shipwrecked’. On the other hand, it is narrower because the abstention from any act of hostility is a legal requirement for protection as a wounded, sick or shipwrecked person.[29]
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a. Wounded or sick
1380  The First and Second Conventions in general and their Articles 12 in particular do not specify when a person may be considered to be wounded or sick. Starting from the ordinary meaning of these words, a person would normally be considered wounded or sick if he or she suffers from either a wound or a sickness. The wording is sufficiently open to accommodate a wide range of medical conditions. The decisive criterion for determining when a person is wounded or sick in the sense of Article 12 – in addition to refraining from any act of hostility – is that of being in need of medical care. It is this particular need, and the specific vulnerability that comes with it, that the legal regime protecting the wounded and sick aims to address. Indeed, such a reading is also in line with the wording of Article 8(a) of Additional Protocol I. Therefore, as far as the relevant medical condition is concerned, the terms ‘wounded’ and ‘sick’ are to be interpreted broadly.
1381  In fact, the understanding of what constitutes ‘wounded’ or ‘sick’ under humanitarian law may be wider than the medical or ordinary meanings of these terms.[30] For the purpose of Article 12 it is irrelevant whether a certain physical or mental condition qualifies as a wound or sickness in the ordinary sense of these terms. For example, trauma is a medical condition that is typically found on the battlefield, but as Article 8(a) of Additional Protocol I indicates, any other ‘physical … disorder or disability’ suffices as long as there is a need for medical care.[31] Similarly, mental or psychological conditions, including post-traumatic stress disorder, qualify, provided that they require medical care.
1382  It has been suggested that Article 12 only pertains to those persons whose medical condition is of such severity that they are physically incapable of continuing to fight.[32] Such an interpretation is too limiting. A definition which refers only to physically incapacitating medical conditions would equate being wounded or sick with being hors de combat, which does not provide an all-encompassing definition of ‘wounded or sick’ for the purposes of Article 12.[33] While a narrow reading may arguably enhance legal certainty in a combat situation, it would not address all of the cases Article 12 is designed to cover. In particular, it would exclude all those who are wounded or sick, whether severely or not, but who are not (yet) incapacitated by their medical condition. Furthermore, it could de facto reduce the obligation to care for the wounded and sick to an obligation of first aid: if being wounded or sick required an incapacitating medical condition, the legal status of being ‘wounded or sick’ and the obligations that hinge on it would cease as soon as the medical condition is no longer incapacitating – including when a person is in the power of his or her own armed forces. At such a point, and given that being wounded or sick is typically a transitory status, a person may, however, still require medical care. Thus, globally for Article 12, any medical condition requiring care, no matter the severity, suffices to trigger the application of the article, provided that the wounded or sick person also refrains from any act of hostility. In a combat situation, however, the fact that a combatant is wounded or sick must be visible or have some outward manifestation such that an opposing combatant is able to be aware of it.
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b. Shipwrecked
1383  Article 12 of the Second Convention provides that ‘the term “shipwreck” means shipwreck from any cause and includes forced landings at sea by or from aircraft’. The ordinary meaning of the word ‘shipwreck’ is ‘the destruction of a ship at sea by sinking or breaking up’, and a ‘shipwrecked’ person is one who has ‘suffer[ed] a shipwreck’.[34] The definition of the term in the Second Convention thus goes beyond the ordinary meaning of the word, as it includes forced landings at sea, and should be understood as being broad. Article 8(b) of Additional Protocol I explains that ‘“shipwrecked” means persons, … who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility’.
1384  A person does not need to be in an acutely life- or health-threatening situation to be ‘shipwrecked’ for the purposes of Article 12. Persons who find themselves involuntarily in the water or on board a burning ship are covered. Furthermore, persons on life rafts or lifeboats, or who have been picked up by coastal rescue craft, would also be ‘shipwrecked’.[35] Persons on a fully disabled ship, or a ship that has run aground, whose situation is dangerous but not necessarily imminently life-threatening, are also covered, as long as they also refrain from any act of hostility, as is the case for all wounded, sick and shipwrecked persons.[36] In practice, it may not be easy for the adversary to see or know, based on its own observations, whether a crew whose ship has been damaged or disabled has ceased hostilities and is shipwrecked. In such cases, the safest way for a crew to ensure it is not attacked may be to make clear to the adversary that it is shipwrecked or even to surrender (e.g. by striking the colours). If, however, the factual circumstances are obvious and allow the adversary to conclude that the crew is shipwrecked, an act of surrender must not be considered necessary for protection. Even if a ship’s weapons are still operable, if it is taking on water and the crew clearly refrain from further hostilities, then they must be considered to be shipwrecked. Lastly, the 1960 Commentary argued that ‘shipwrecked’ can include ‘those stranded on a coast’, and this remains a valid interpretation.[37]
1385  Situations that are potentially life-threatening, such as a ship that is fully disabled or has run aground, also render persons on board ‘in peril’ at sea. This is because in a maritime context, a dangerous situation can quickly turn into a life-threatening one. As in the case of the wounded and sick – whom Article 8(a) of Additional Protocol I requires to be ‘in need of medical assistance or care’ – it can be argued that whoever is at sea (or in water) and is in need of rescue is in a sufficiently perilous situation to qualify as shipwrecked. The definition of ‘shipwrecked’ in any case always requires a twofold assessment: the need of rescue and abstention from any act of hostility. The latter thus functions as a corrective where even persons in a perilous situation (such as on board a disabled ship) are still able to and do continue to fight.
1386  Article 12 states that it applies to ‘shipwreck from any cause’. This means that the provision applies to more than just shipwrecks caused by enemy action; it also applies, for example, to shipwrecks caused by human error or a malfunction.[38] ‘Shipwrecked’ would thus also include persons who had begun a military operation in the water (e.g. by swimming), but who are clearly in distress in the water, require assistance, and abort their mission.[39]
1387  The broad terminology in Article 12 may seem to differ slightly from that in Article 8(b) of Protocol I, which applies to persons in peril at sea ‘as a result of misfortune’. However, the latter phrase should rather be understood as a qualifier for ‘in peril at sea’ and not as a general limitation on who is ‘shipwrecked’. Persons undertaking a dangerous mission could be considered ‘in peril at sea’, but as long as they continue their mission, they would not be shipwrecked in the legal sense. The qualifier ‘as a result of misfortune’ implies that something has gone wrong. Moreover, some States party to Additional Protocol I continue to use the phrase ‘shipwrecked from any cause’ in their definitions of ‘shipwrecked’.[40]
1388  Lastly, Article 12 specifies that ‘the term “shipwreck” … includes forced landings at sea by or from aircraft’. For the purposes of Article 12, it is irrelevant whether the aircraft is military or civilian; furthermore, it is irrelevant whether the aircraft had taken off from a ship or from land. What counts is whether there are persons falling within the scope of Article 13 of the Second Convention who have been forced to land or ditch (with or without the aircraft) at sea.[41]
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c. Refraining from any act of hostility
1389  In addition to being in need of medical care or rescue, in order to qualify as wounded, sick or shipwrecked in the sense of Article 12, a person must also refrain from any act of hostility. Thus, contrary to the ordinary meanings of the terms ‘wounded’, ‘sick’ or ‘shipwrecked’, persons who continue to engage in hostilities do not qualify as wounded, sick or shipwrecked under humanitarian law, no matter how severe their medical condition nor how perilous their situation at sea. Unlike the definition of ‘wounded and sick’ and ‘shipwrecked’ contained in Article 8(a) and (b) of Additional Protocol I,[42] this criterion does not appear in the wording of Article 12 of the First or Second Conventions. However, given that Article 12 applies only to categories of persons who, as a general rule, may lawfully be targeted, this limitation must form part of the definitions of ‘wounded and sick’ and ‘shipwrecked’ for the purposes of the article.[43] On the basis of this reasoning, the rationale spelled out explicitly in Article 8(a) and (b) is implicitly contained in Article 12 of the First and Second Conventions.
1390  In determining whether, for the purposes of Article 12 of the Second Convention, the crews of warships continue to carry out acts of hostilities when shipwrecked, it must be recalled that normally the whole crew serves the entire warship. Thus, if the warship is disabled, and the sailors on board cease hostilities, they are shipwrecked in the legal sense of the term for the purposes of the Convention.[44] However, it will likely be very difficult or even impossible for an enemy to know whether the crew is working to repair weapons with the aim of continuing hostilities without an outward sign indicating otherwise. Furthermore, as the sailors are on board a military objective, it is likely that a disabled or damaged warship would need to surrender (e.g. by striking its colours) in order for protection to be secured. Lastly, given that the warship is the military objective, it is acknowledged that the fact that a person on board a warship is wounded would not necessarily mean that an attack against the warship as a whole would have to cease, as long as the principles of distinction, proportionality and precaution are respected.
1391  When it comes to a landing by armed forces, it will not always be possible while the attack is in progress to distinguish between an attacker trying to reach land and a soldier in danger of drowning. Similarly, in the case of persons specialized in underwater attacks, it may not always be evident when they are in peril and need assistance. In such instances, persons in distress who renounce active combat can only expect the adversary to respect and rescue them if they make their situation clear by use of signals that are comprehensible to the adversary.
1392  In the case of naval operations involving small vessels and few people, attacking forces are able – and are therefore obliged – to be attentive to the moment when a wounded, sick or shipwrecked person ceases all acts of hostility. In the midst of hostilities, a combatant’s status may change within seconds from being a lawful target to being a protected person by reason of wounds or distress at sea. Therefore, the attacking force must be alert to the possibility that an injured or shipwrecked combatant will cease hostile acts and accordingly to suspend or cease an attack at any moment. The visible abandonment of all hostile acts by a wounded or shipwrecked combatant must put an end to all hostile acts against that person.
1393  The presence of wounded, sick or shipwrecked persons in the water while the vessels involved are still engaged in wider hostilities does not mean that hostilities have to cease, as long as the principles of distinction, proportionality and precaution continue to be respected.
1394  It is essential to bear in mind that members of the enemy merchant marine are also covered by this provision (by virtue of Article 13(5)). These persons are civilians whose normal activities do not involve combat but who, under the rules on naval warfare, may find themselves on a ship that is attacked.[45] Such persons must be presumed not to be carrying out hostile acts (unless there is strong evidence to the contrary) when assessing whether they are shipwrecked in the legal sense of the term under the Convention.
1395  With respect to shipwrecked persons, Article 8(b) of Additional Protocol I provides that these persons ‘shall continue to be considered shipwrecked during their rescue until they acquire another status under the Conventions or this Protocol’. In view of the object of Article 12, the same logic should be applied for the purposes of the Second Convention. This understanding is supported by Article 14, which mentions persons ‘shipwrecked on board military hospital ships’. A shipwrecked person who is rescued at sea and taken on board another vessel will continue to qualify as shipwrecked for the duration of the rescue and until the person is put ashore.[46] A shipwrecked person may also be wounded or sick and may also simultaneously be a prisoner of war.[47] If a shipwrecked person is not wounded or sick, however, and is rescued by a warship of his or her own Party, that person ceases to be shipwrecked and is no longer a protected person.
1396  Being wounded, sick or shipwrecked is typically, albeit not necessarily always,[48] a transitory status. For legal purposes, the protected status begins as soon as the cumulative requirements of being wounded, sick or shipwrecked are fulfilled, i.e. as soon as a condition exists that requires medical care or when a person is in peril at sea or in other waters, and provided the person concerned refrains from any act of hostility. In a combat situation, however, a medical condition or a situation of distress at sea must be detected or detectable based on the information reasonably available in the circumstances. If this is the case, protected status is automatically activated; surrender or any other additional act is not required. For members of armed forces on board a damaged or disabled warship, however, a clear indication of distress and the abandonment of all acts of hostility may be necessary to secure protection. Protected status as wounded, sick or shipwrecked ends as soon as the protected person engages in hostile acts, dies or recovers, i.e. when the necessity to provide medical care no longer exists or the person has been put ashore.[49]
1397  Wounded, sick or shipwrecked persons who die or are taken prisoner fall under the regimes protecting the dead and prisoners of war, respectively.[50] Once a person is captured, the status of being wounded, sick or shipwrecked and the status of being a prisoner of war are not mutually exclusive. As specified in Article 16 of the Second Convention, they may exist simultaneously.[51] The Third Convention contains a more specific set of obligations than Article 12 of the Second Convention with respect to certain aspects of the medical treatment of prisoners of war.[52] Wounded, sick or shipwrecked prisoners of war who recover or are rescued but remain in captivity will no longer be covered by the First or Second Conventions but will continue to benefit from the protections accorded to prisoners of war under the Third Convention. Similarly, a combatant may simultaneously qualify as wounded, sick or shipwrecked in the sense of Article 12 of the Second Convention and as hors de combat in accordance with Article 41 of Additional Protocol I. According to Article 7 of the Second Convention, the status of being wounded, sick or shipwrecked and the rights that that status endows cannot be renounced. For the wounded, sick or shipwrecked, this excludes renunciations by word but not by deed, because if a wounded, sick or shipwrecked person starts fighting again the protected status would be lost.
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E. Paragraph 1: The obligation to respect and protect
1398  Article 12(1) provides that the wounded or sick at sea, as well as the shipwrecked, ‘shall be respected and protected in all circumstances’. The article thus contains two distinct obligations: an obligation to respect, i.e. not to attack or otherwise harm the wounded, sick or shipwrecked;[53] and an obligation to protect, i.e. to take (pro)active measures for the protection of the wounded, sick and shipwrecked against various dangers arising in the context of an armed conflict.[54]
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1. The obligation to respect
1399  The obligation ‘to respect’ imposes a duty of abstention. It is an obligation of result. As such it is violated whenever the persons protected under Article 12 are not ‘respected’ by the bearer of the obligation.[55]
1400  First of all, the obligation to respect imposes an obligation not to directly attack protected persons or carry out indiscriminate attacks affecting them.[56] Thus, the wounded, sick and shipwrecked may never be considered lawful targets under the law regulating the conduct of hostilities.
1401  A question that arises is whether the obligation to respect wounded, sick and shipwrecked persons entails that they must be taken into consideration for the purposes of the proportionality assessment.[57] This is controversial and of particular relevance in the context of Article 12, which refers exclusively to wounded, sick and shipwrecked members of the armed forces and other persons mentioned in Article 13.[58] Article 51(5)(b) of Additional Protocol I, which is part of a specific chapter on ‘Civilians and Civilian Protection’, mentions civilians but not the wounded, sick and shipwrecked specifically.[59]
1402  The preparatory work for Article 12 is silent on the matter.[60] This is not surprising given that in 1949 the relevant rules regarding the conduct of hostilities had not been spelled out in as much detail as they are today. However, one might have expected such a discussion in 1977, when simultaneously both the obligation to respect and protect the wounded, sick and shipwrecked (Article 10 of Additional Protocol I) and specific rules pertaining to the conduct of hostilities (Articles 51, 57 and 58 of Additional Protocol I) were at issue. Nevertheless, the preparatory work for Article 10 of the Protocol is likewise silent on the matter.[61] Arguably, however, the preparatory work for Article 51 supports the notion that the rule on proportionality was developed to cover the incidental effects on protected persons and objects more broadly.[62]
1403  In view of the specific protections accorded to the wounded, sick and shipwrecked, namely the obligation to respect (and to protect) them in all circumstances, a fortiori they should also benefit from the protection accorded to civilians and civilian objects, as well as to medical objects.[63] In other words, if civilians are to be included in the proportionality assessment all the more so should the wounded, sick and shipwrecked. Indeed, if wounded, sick and shipwrecked persons were not to be considered for purposes of the proportionality principle, their presence in the vicinity of military objectives would be legally irrelevant. However, this would contradict the explicit obligation in Article 12 to respect them in all circumstances and the basic rationale of according special protection to them. It would be unreasonable to consider that direct attacks against wounded, sick and shipwrecked persons, or indiscriminate attacks affecting them, would be strictly prohibited and would amount to a grave breach, while an excessive number of casualties would not be prohibited.[64] Accordingly, the presence of wounded, sick or shipwrecked members of the armed forces in the vicinity of a military objective is to be taken into consideration when carrying out a proportionality assessment prior to an attack. In addition, and on the basis of the same rationale, an attacker must take all feasible precautions in relation not only to civilians but also to wounded, sick and/or shipwrecked members of the armed forces, to protect them from direct attack and collateral damage.[65] It may be difficult for the opponent to know whether an enemy warship also carries wounded and sick persons, unless that fact has been communicated. That difficulty, however, does not release a Party from its obligations to respect the rules on distinction, proportionality and precautions in attacks.
1404  The obligation to respect is not confined solely to the prohibition on direct or indiscriminate attacks. It applies also to other forms of harmful conduct outside the conduct of hostilities. The purpose of Article 12 is to protect wounded, sick and shipwrecked persons in the light of their specific vulnerability, such that the obligation to respect merits a broad interpretation as a general prohibition on intentionally harming the wounded, sick and shipwrecked.[66] Such an interpretation is supported by a comparison between paragraphs 1 and 2 of Article 12. Paragraph 2 contains details of the general obligation to respect by prescribing that the wounded, sick and shipwrecked be treated humanely and by providing examples of strictly prohibited behaviour. As the wording ‘in particular’ in the second sentence makes clear, the list is not exhaustive. Thus, while the enumeration of examples in Article 12(2) indicates conduct that violates the obligation to respect, the obligation to respect itself is broader and prohibits any form of intentional ill-treatment of the wounded, sick and shipwrecked, including less severe violations. In addition, certain particularly serious forms of ill-treatment are sanctioned as grave breaches.[67]
1405  Where armed forces encounter abuse by an opponent of the status of ‘wounded’, ‘sick’ or ‘shipwrecked’, the uncertainty it can engender may complicate the determination of such status in future engagements and thus undermine respect for genuinely wounded, sick or shipwrecked persons. The war crime of perfidy is therefore an important corollary to the protection of the wounded, sick and shipwrecked.[68] For example, Article 37(1)(b) of Additional Protocol I lists as an example of perfidy ‘the feigning of an incapacitation by wounds or sickness’ with the intent to kill, injure or capture an adversary. While perfidy is only prohibited if it is used to kill, injure or capture an adversary, credible and effective protection requires that no one feign being wounded, sick or shipwrecked to gain protection.
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2. The obligation to protect
1406  According to Article 12(1), the wounded, sick and shipwrecked ‘shall be … protected in all circumstances’. The obligation to protect is complementary to the obligation to respect. It requires Parties to the conflict to take active steps to protect the wounded, sick and shipwrecked from harm. The obligation to protect is an obligation of conduct. The Parties to the conflict are therefore obliged not only to refrain from attacking or otherwise harming the wounded, sick and shipwrecked through their own organs (to respect), but also to exercise due diligence in preventing the wounded, sick and shipwrecked from being harmed in other ways (to protect).
1407  Article 12(1) does not specify against which kinds of harm or danger wounded, sick and shipwrecked persons must be protected. The obligation to protect could be taken to imply protection against foreseeable harm posed by others, namely a Party’s own armed forces, enemy armed forces or civilians (of whichever nationality). In addition, the obligation to protect could be interpreted as requiring protective measures against other dangers arising in the context of an armed conflict, for example from ongoing hostilities or from natural hazards and, as far as practicable, to put wounded, sick and shipwrecked persons in places where harm is unlikely. Moreover, the obligation to protect could be interpreted as a requirement to provide medical treatment and/or rescue.[69]
1408  From 1864 through 1868, 1906 and 1929 to 1949, the regime governing the wounded, sick and shipwrecked has been consecutively revised with the declared purpose of maximizing the protection of these categories of persons.[70] Against this background, the obligation to protect the wounded, sick and shipwrecked should be interpreted broadly to include all the forms of harm or danger such as those described above. This is further supported by the object and purpose of the First and Second Conventions and of their Articles 12 in particular, and the absence of any indication to the contrary, either in the wording, the preparatory work or subsequent State practice. The wounded, sick and shipwrecked may be susceptible to harm because they are too weak to defend themselves against ill-treatment by others, because they are impaired in their mobility and therefore less able to evade certain dangers arising on the battlefield or at sea, or because their medical condition, if left untreated, will worsen. It is also important to take into account the specific vulnerabilities of the wounded, sick and shipwrecked.[71]
1409  Thus, paragraph 1 sets out a general obligation to protect the wounded, sick and shipwrecked against harm, irrespective of its source. Other provisions pertaining to the wounded, sick and shipwrecked specify particular aspects of this general obligation. For example, the obligation to collect them (Article 18) aims to protect them against the dangers arising from their perilous situation in the water (and to enable their medical treatment) and the obligation to protect them against pillage and ill-treatment (Article 18) aims to protect them from specific forms of harm by others.
1410  The fact that these different aspects of the general obligation are spelled out more specifically in subsequent provisions does not render the more general stipulations in paragraph 1 redundant or in any way restrict these obligations. On the contrary, they serve as catch-all clauses that are sufficiently broad to close any protective gaps and to take account of the vagaries and uncertainties inherent in armed conflict.
1411  The obligation to protect requires positive steps to protect wounded, sick and shipwrecked persons against any harm or dangers. The exact kind of conduct owed by Parties in a given situation depends on a variety of parameters, ranging from the imminence, the type and the extent of the harm, a State’s capacity and available resources, its relationship with the transgressor, and its capacity to exert influence or to intervene, which in turn depends on factors such as geographical proximity, as well as military and humanitarian considerations.[72] Thus, the more grave and imminent the danger, the more will generally be required of States.[73] Evidently, once wounded, sick and shipwrecked persons are in the power of a Party to the conflict, the Party will have better options to protect them against the worsening of their medical condition and other dangers.
1412  Lastly, with regard to the temporal scope of the provision, the obligation to protect could be understood either narrowly, as an obligation only to stop ongoing harm, or more broadly, as an obligation proactively to prevent or mitigate the harm or dangers posed to the wounded, sick and shipwrecked. The obligation to protect in Article 12 arises ‘at the instant that the State learns of, or should normally have learned of, the existence of a serious risk’ that any of the harms described above may occur.[74]
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3. In all circumstances
1413  The obligations laid out in Article 12(1) apply ‘in all circumstances’, a phrase used in other provisions.[75] As is the case with common Article 1, for example,[76] a variety of legal meanings can be accorded to this formula as it is used in Article 12.[77] First of all, it is often argued that the formula underlines the non-reciprocal nature of the Geneva Conventions,[78] meaning that even if the enemy fails to respect its humanitarian law obligations, one’s own obligations vis-à-vis the wounded, sick and shipwrecked remain intact. Second, it is argued that the formula aims to prevent the invocation of the notion of military necessity or any other pretext – including jus ad bellum considerations – to justify non-compliance with the rules protecting the wounded, sick and shipwrecked.[79] Indeed, since the end of the Second World War it has become universally accepted that military necessity may not be invoked to override rules of humanitarian law unless specifically provided for.[80] Moreover, the formula could also be interpreted as having geographical and temporal connotations requiring respect and protection of the wounded, sick and shipwrecked in all places where the Second Convention applies, i.e. in the actual combat zone as well as in places far from the combat zone, and at all times for the duration of an international armed conflict.
1414  In the light of the ordinary meaning of the wording ‘in all circumstances’ and in view of the purpose of Article 12, the phrase should be interpreted broadly to encompass all the aforementioned meanings. The wounded, sick and shipwrecked are to be respected just as much when they are with their own armed forces or in no man’s land as when they have fallen into the hands of the enemy. The obligation applies to all combatants in any armed force, whoever they may be, and also to non-combatants. It applies also to civilians, in regard to whom Article 17 of Additional Protocol I specifically states that ‘the civilian population shall respect the wounded, sick and shipwrecked, even if they belong to the adverse Party, and shall commit no act of violence against them’. A clear statement to that effect was essential in view of the special character that modern warfare is liable to assume (dispersion of combatants, isolation of units, mobility of fronts, etc.) and that may lead to closer and more frequent contacts between military and civilians. It was necessary, therefore, that the principle of the inviolability of wounded or sick combatants be brought home, not only to the fighting forces, but also to the general public. For all these reasons, the phrase should be understood literally.
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F. Paragraph 2: Treatment and care of the wounded, sick and shipwrecked
1. Humane treatment and medical care without adverse distinction
1415  According to the first sentence of Article 12(2), the wounded, sick and shipwrecked ‘shall be treated humanely and cared for by the Parties to the conflict in whose power they may be’. The word ‘shall’ leaves no doubt as to the obligatory character of this paragraph.
1416  Paragraph 2 applies to situations where the wounded, sick and shipwrecked are in the power of a Party to the conflict. For the purposes of this provision, the notion of being in the power of a Party to the conflict includes being in the power of one’s own Party. Hence, the obligations in Article 12(2) apply to a State in relation to the wounded, sick and shipwrecked of its own armed forces (and those persons listed in Article 13) as well as to the wounded, sick and shipwrecked of the adverse Party. Indeed, in relation to wounded, sick and shipwrecked enemy personnel who simultaneously qualify as prisoners of war, Article 16 uses the phrase ‘who fall into enemy hands’. From this it may be inferred that at least for the purposes of the Second Convention, the notion of being in the power of a Party to the conflict in Article 12 has a different meaning to falling into enemy hands as used in Article 16 and includes being in the power of one’s own State. In a nutshell, if a State is factually in a position to treat a wounded, sick or shipwrecked person inhumanely, that person must be considered to be in the power of that Party.
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a. Humane treatment
1417  According to Article 12(2), wounded, sick and shipwrecked persons ‘shall be treated humanely’. The obligation of humane treatment of protected persons is a cornerstone of international humanitarian law. It is to be found in various humanitarian treaties, past and present,[81] as well as in customary international law.[82]
1418  The obligation imposes a minimum standard, namely a duty to respect the inherent human dignity of the wounded, sick and shipwrecked,[83] their inviolable quality as human beings.[84] The obligation thus pervades all aspects of treatment of the wounded, sick and shipwrecked; it is relevant in a myriad of circumstances and it would be impossible and even unduly restrictive to attempt a comprehensive definition of humane treatment. It is for this reason that the Geneva Conventions and their Additional Protocols – like human rights treaties – have wisely abstained from providing such a definition.[85] That being said, it should be recalled that in order to treat people humanely, it is important to understand and take into account the ways in which gender, economic, cultural and political factors shape social structures and affect men and women differently.[86] The requirement of humane treatment imposes an obligation of result. Thus, any treatment that falls below the standard of humane treatment violates the obligation.
1419  Because of its broad protective dimension and so as to make its application to a specific situation more manageable in judicial practice, the obligation of humane treatment is sometimes depicted merely as a prohibition of ‘inhuman treatment’.[87] Hence, the obligation to treat the wounded, sick and shipwrecked humanely logically includes all prohibitions of treatment that is inhuman or degrading.[88]
1420  The use of the wording ‘in particular’ indicates that the list of conduct prohibited in the second sentence of paragraph 2 is not exhaustive. Other forms of ill-treatment not explicitly listed in Article 12, but mentioned in Article 51, such as wilfully causing great suffering, are also prohibited. Reference can also be made to common Article 3, which also gives expression to particular aspects of what humane treatment requires and what kind of actions or behaviour would clearly fall below that standard.
1421  More importantly, however, other forms of treatment that cannot be readily subsumed under any of the existing explicit prohibitions may also violate the obligation of humane treatment. For example, in the context of a conflict that occurred on land, the Eritrea-Ethiopia Claims Commission – albeit with regard to the humane treatment of prisoners of war – held that the evacuation of prisoners of war from the battlefield after their footwear had been seized, forcing them to walk barefoot through harsh terrain, which ‘unnecessarily compounded their misery’, was in violation of Article 20 of the Third Convention requiring evacuations to be ‘effected humanely’.[89]
1422  Given that it is based on the fundamental concept of human dignity, the standard of humane treatment is the same for all categories of protected persons and applies equally in international and non-international armed conflict. Thus, practice regarding other humanitarian law provisions may serve as useful guidance on what humane treatment requires under Article 12(2) and on what kind of treatment would fall below that threshold.
1423  For example, some obligations in the Third Convention can be understood as specifications of the obligation to treat persons humanely for the wounded, sick and shipwrecked covered by Article 12 who are in enemy hands. Thus, such persons must be provided, inter alia, with: appropriate accommodation that offers sufficient health and hygiene standards;[90] sufficient food and water;[91] clothing appropriate to the climate;[92] suitable medical care;[93] protection from the rigours of the climate;[94] protection from the effects of armed conflict;[95] freedom in the exercise of religious duties;[96] and protection from insults and public curiosity.[97] Protected persons must be treated with all due regard to their sex[98] and must not be used as human shields.[99] As the commentary on common Article 3 explains, persons protected under that article who are deprived of their liberty also benefit from these protections, among others, by virtue of the right to be treated humanely.
1424  In the context of Article 12(2), such a broad understanding of the notion of humane treatment prima facie partially overlaps with the obligation to care for the wounded, sick and shipwrecked. This is no defect, however. Rather, this interplay between the two obligations creates a comprehensive system of protection that heeds the realities of armed conflict. The obligation to treat the wounded, sick and shipwrecked humanely imposes an obligation of result and as such constitutes an irreducible minimum. Humane treatment is to be expected in any circumstances. At the same time, the obligation to care for the wounded, sick and shipwrecked is an obligation of means, subject to the best that can be done in the prevailing security situation and with available capacities. While the expected standard of medical and other care may vary depending on the circumstances (in particular, it may be significantly higher than the minimum standard imposed by the requirement of humane treatment), it must never under any circumstances fall below the threshold of humane treatment.
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b. The obligation to care for the wounded, sick and shipwrecked
1425  The obligation to care for the wounded, sick and shipwrecked requires the Parties to an international armed conflict to provide them with medical care, i.e. to take active steps to ameliorate their condition. It is an obligation which must be carried out with due diligence.[100] The obligation to care for the shipwrecked furthermore involves tending to any conditions that might have resulted from the situation that led to them becoming shipwrecked (or the condition itself). These conditions may or may not overlap with the condition of being wounded or sick (e.g. hypothermia or shock).
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i. Content of the obligation to care for the wounded, sick and shipwrecked
1426  The exact content of this obligation depends on what kind of medical care can reasonably be expected under the specific circumstances of each case. For example, a severely wounded sailor will require greater medical care than a sailor with minor injuries. Even in the case of fatal wounds, some care or treatment to ease pain and distress is required.[101]
1427  In addition, the medical personnel of a Party which has significant resources at its disposal can be expected and will therefore be required to do more than the medical personnel of a Party which has limited means.[102] If medical personnel are available, higher standards of medical care can similarly be expected than if no such personnel are available. Even regular navy personnel, however, can be expected to deliver first aid and basic care. Similarly, when medical care has to be administered in difficult conditions at sea or on other waters, due diligence may not require the same standard of medical treatment as that required once the wounded and sick have been transferred to the relative security of a medical facility on land at sufficient distance from the fighting.
1428  With respect to the kind and quality of medical care that is due, the basic rule is that the wounded, sick and shipwrecked must receive the ‘medical care and attention required by their condition’. Albeit not explicitly mentioned in Article 12, this is provided for in Article 10(2) of Additional Protocol I and is generally accepted.[103] The obligation to provide the care required by the person’s condition is nuanced in Article 10(2) of Protocol I by the qualification that care must be provided ‘to the fullest extent practicable’, which was added in recognition of the fact that not all States have the same resources and that it might not be possible for a State to provide all the wounded, sick and shipwrecked with the medical care required by their condition.[104] Nevertheless, the requirement to provide care ‘to the fullest extent practicable’ means that it is not sufficient for a Party to do only the minimum necessary for a person’s survival; rather, it must do everything it reasonably can to care for that person. Caring for the wounded, sick and shipwrecked also entails providing rehabilitation for persons with disabilities. While for the wounded, sick and shipwrecked of enemy armed forces this obligation flows from Article 30 of the Third Convention, it is important to recall that it applies also to the wounded, sick and shipwrecked of a State’s own armed forces. In addition, it follows from the principle of non-discrimination that the standard of care of the wounded, sick and shipwrecked must be the same for one’s own and the enemy’s personnel.[105]
1429  Although the highest standards of medical care would be desirable, the First and Second Conventions require only what can reasonably be expected in the given circumstances, taking into consideration the available resources in terms of personnel and equipment as well as the security conditions. The kind of medical care that can reasonably be expected in a given situation, therefore, will depend on the availability of medical personnel and whether medical care is administered by qualified doctors, paramedics, or soldiers or other persons without any medical qualification. If sufficient medical equipment and personnel are available, a high standard of medical care is expected. Under less optimal conditions, the expected standard would be lower. Thus, the Eritrea-Ethiopia Claims Commission held that ‘the requirement to provide … medical care during the initial period after capture must be assessed in light of the harsh conditions on the battlefield and the limited extent of medical training and equipment available to front line troops’.[106]
1430  Specific medical standards may change over time and there may be differences from country to country.[107] Nevertheless, some general guidance regarding the applicable standards of medical ethics and professional medical conduct may be derived from universally applicable, general stipulations and instruments adopted by the World Medical Association.[108] There are many studies on the type of equipment and techniques that medics should use and on the procedures they should follow. In all cases, the provision of care must always be in accordance with the rules of medical ethics.[109]
1431  Article 10(2) of Additional Protocol I further stipulates that care must be provided ‘with the least possible delay’. The parameters set out in that article can be understood as specifications of the due diligence character of the obligation to care for the wounded, sick and shipwrecked; as such, they are inherent in the obligation set out in Article 12 of the Second Convention.
1432  The obligation to care for the wounded, sick and shipwrecked also includes other – similarly essential – forms of non-medical care, such as the provision of food, shelter, clothing and hygiene items.[110] This is because exclusively medical treatment of a wound or sickness is not sufficient to ameliorate the condition of the wounded, sick and shipwrecked. Indeed, it would be meaningless to provide medical care if adequate food, shelter, clothing and hygiene items were not provided simultaneously.[111]
1433  This is especially true when severely wounded personnel are being treated in a sick bay or on a hospital ship for a longer period of time. The reason why it was not specifically spelled out in Article 12 may be because Article 16 stipulates that the wounded and sick ‘who fall into enemy hands shall be prisoners of war’ and as such they benefit, inter alia, from Articles 25, 26, 27 and 29 of the Third Convention regarding the provision of adequate quarters, food, clothing and hygiene. However, no such specifications exist with respect to a Party’s obligations to its own wounded, sick and shipwrecked personnel.
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ii. The obligation to have medical services
1434  Given that the quality of medical care hinges on a functioning medical service, including the availability of qualified medical personnel and equipment, it is of particular relevance to consider whether the obligation to provide medical care for the wounded, sick and shipwrecked also requires Parties to an armed conflict to put medical services in place and to equip and staff their medical units in accordance with the anticipated number of wounded, sick and shipwrecked people. In this regard, the Secretary-General of the 1906 Diplomatic Conference already pointed out that the onus was on all Parties to a conflict to make provision in advance for medical personnel and equipment sufficient to ensure that all wounded and sick persons could be cared for.[112] There is evidence that many States do make such preparations in advance.[113]
1435  Indeed, the obligation to provide the wounded, sick and shipwrecked with medical care can only be effectively fulfilled if an adequate medical service exists. Therefore, because the availability of medical personnel and equipment is a prerequisite for medical care, States party to the Convention have to take the preparatory and organizational steps that can reasonably be expected of them. It is not compulsory, however, for States to have hospital ships.[114]
1436  No precise rule exists that would require the deployment of X number of medical personnel if Y number of wounded are to be expected. However, in the extreme case that a Party to an armed conflict neglects to provide any medical personnel or medical equipment and facilities whatsoever, that failure would lead to a violation of the obligation to care for the wounded, sick and shipwrecked. This was confirmed, in the context of land warfare, by the Eritrea-Ethiopia Claims Commission, which held that:
Eritrea and Ethiopia cannot, at least at present, be required to have the same standards for medical treatment as developed countries. However, scarcity of finances and infrastructure cannot excuse a failure to grant the minimum standard of medical care required by international humanitarian law. The cost of such care is not, in any event, substantial in comparison with the other costs imposed by the armed conflict.[115]
The Claims Commission thus confirmed that a basic minimum of medical care can reasonably be expected whatever the circumstances, even when a State lacks significant resources. What may reasonably be expected may vary according to each State’s resources and level of development in other fields; expectations may also change over time. States have to create a medical service that allows them to fulfil their obligations under humanitarian law.[116]
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c. The prohibition of any adverse distinction
1437  According to Article 12(2), the wounded, sick and shipwrecked must be cared for ‘without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria’. Historically, the idea behind the non-discrimination clause was to ensure that the wounded and sick of the adverse Party received the same treatment and care as members of a Party’s own armed forces. Accordingly, previous provisions in the 1906 and 1929 Geneva Conventions referred exclusively to the prohibited criterion of ‘nationality’.[117] Over time and in line with developments in the area of human rights law,[118] the list of prohibited criteria for discrimination was extended.
1438  Whereas the prohibition on discrimination on grounds of sex, race, nationality, religion and political opinion is self-explanatory,[119] the reference to ‘any other similar criteria’ requires further explanation. It indicates that the list in paragraph 2 is not exhaustive. The drafters wisely anticipated a dynamic evolution of the catalogue of prohibited criteria and chose a sufficiently open formulation which could accommodate additional grounds.[120] The determination of which criteria qualify as prohibited at a given time is central to determining the scope of the prohibition on adverse distinction. Article 9 of Additional Protocol I requires the application of the provisions which are intended to ameliorate the condition of the wounded, sick and shipwrecked ‘without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria’.[121] The open wording of Article 12(2) and situating paragraph 2 in the context of contemporary listings of prohibited criteria allows for the consideration of the additional criteria spelled out in Additional Protocol I.
1439  The non-discrimination clause in Article 12 does not prohibit each and every distinction, but only ‘adverse distinctions’ based on prohibited criteria.[122] In particular, as far as the obligation to provide (medical) care for the wounded, sick and shipwrecked is concerned, it is clear that different medical conditions require different forms of medical treatment and that certain distinctions are unavoidable. This rationale is also reflected in Article 12(3) which provides that urgent medical reasons are a ground for priority in treatment. Moreover, such an interpretation is in line with Article 10(2) of Additional Protocol I, which requires that ‘[t]here shall be no distinction among [the wounded, sick and shipwrecked] founded on any grounds other than medical ones’, as well as with the contemporary rule of customary international law.[123]
1440  Non-adverse distinctions necessary to give the wounded, sick and shipwrecked equal treatment and care are not prohibited, but are instead important to fulfil the obligation without discrimination. This might include taking steps to ensure that all persons who are wounded, sick or shipwrecked are able to seek and receive equal care when their social, economic, cultural or political situation or status might otherwise deter them from doing so.[124]
1441  One difficult question that arises is whether the prohibition of ‘adverse distinction’ prohibits preferential treatment for one’s own personnel in situations where enemy personnel receive an acceptable standard of medical care.[125] The gist of the prohibition on adverse distinction is not to prevent one’s own personnel from receiving the best possible medical care, but to ensure that enemy personnel receive the kind of care required by their medical condition and that the standard of care that enemy personnel receive is not lowered in order to make medical personnel and other resources available for the treatment of one’s own forces.
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2. Specifically prohibited forms of conduct
1442  Article 12(2) ‘strictly’ prohibits ‘any attempts upon [the] lives [of the wounded, sick and shipwrecked], or violence to their persons’.[126] Use of the word ‘strictly’ emphasizes the absolute nature of these prohibitions, which admit of no exception. The word ‘any’ indicates that these general prohibitions are to be interpreted broadly to cover any form of violence, whether lethal or non-lethal, physical or psychological, against the wounded, sick and shipwrecked.
1443  The second sentence of paragraph 2 lists specific examples of these general prohibitions, namely murder, extermination, torture, biological experiments, wilfully leaving the wounded, sick and shipwrecked without medical assistance and care, and the creation of conditions exposing them to contagion or infection. These forms of prohibited conduct are specific expressions of the obligation to treat the wounded, sick and shipwrecked humanely.
1444  The list of prohibited forms of conduct is not exhaustive. As the wording ‘in particular’ indicates, other forms of conduct may be prohibited as well. This holds true especially with regard to prohibited forms of conduct that are not explicitly mentioned in Article 12(2) but that are listed as grave breaches in Article 51 of the Convention.[127] In particular, this applies with regard to the grave breaches of ‘inhuman treatment’ and ‘wilfully causing great suffering, or serious injury to body or health’.[128]
1445  The same holds true for sexual violence and ‘outrages upon personal dignity, in particular humiliating and degrading treatment’.[129] These forms of prohibited conduct can be subsumed under the prohibition of ‘violence to their persons’ or the general prohibition of inhuman treatment in the first sentence of paragraph 2.
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a. Murder
1446  While murder is prohibited in the Geneva Conventions and Additional Protocols,[130] it is not defined therein. It has been stated that ‘[m]urder is a crime that is clearly understood and well defined in the national law of every State. This prohibited act does not require any further explanation.’[131] However, conceptions of the notion of murder may vary in domestic legislation, influenced by national criminal law traditions.[132]
1447  According to the ICTY, ‘there can be no line drawn between “wilful killing” and “murder” which affects their content’,[133] the only difference being that in non-international armed conflict ‘the offence need not have been directed against a “protected person” but against a person “taking no active part in the hostilities”’.[134] This approach, consistently asserted in case law, was affirmed in 2002 by the ICC Assembly of States Parties, which for the war crimes of ‘wilful killing’ in international armed conflict and ‘murder’ in non-international armed conflict adopted substantively identical elements of crimes, with the exception of the victims of the crimes.[135] International case law on ‘wilful killing’ can therefore be consulted for the meaning of ‘murder’ and vice versa.[136]
1448  Based on the above, the following elements of the prohibition of ‘murder’ in Article 12 can be identified:
- It is prohibited to kill, or cause the death of, a wounded, sick or shipwrecked member of the armed forces or other wounded, sick or shipwrecked person mentioned in Article 13 of the Second Convention.[137]
- Murder is prohibited whether committed by act or omission.[138] The conscious failure, for example, to provide, when possible to do so, sufficient food or medical care to the wounded, sick and shipwrecked in the sense of the Second Convention who are under one’s responsibility, leading to their death, can therefore also fall under the prohibition of murder under Article 12.[139]
- Prohibited as ‘murder’ – as opposed to other forms of attempts upon their lives – is the intentional killing or causing of death of such persons, as well as the reckless killing or causing of their deaths. An act or omission does not need to be premeditated to be covered by the prohibition of ‘murder’ in Article 12. On the other end of the spectrum, deaths that are purely accidental or the unforeseeable consequences of a person’s negligent act or omission do not fall under the prohibition of ‘murder’.[140] In this respect, however, it needs to be kept in mind that in many situations the wounded, sick and shipwrecked in the sense of the Second Convention are under the complete control of a Party to a conflict and are therefore dependent on that Party for their survival. A certain degree of care and diligence can therefore be expected for an act or omission leading to death not to be regarded as reckless.[141]
1449  Murder is prohibited whatever the motivation may be. Thus, so-called ‘mercy killings’, i.e. killings to put wounded, sick or shipwrecked combatants ‘out of their misery’ are in contravention of Article 12 and amount to the grave breach of wilful killing. Moreover, it has been suggested that the practice of so-called ‘dead-check’, which involves the ‘shooting of wounded or apparently dead [enemies] to insure that they are dead’, is not uncommon on the battlefield.[142] Whatever the validity of these claims, the practice is prohibited.[143] Once persons are wounded, sick or shipwrecked as defined by humanitarian law, attempts on their lives are prohibited by Article 12 and are considered as wilful killing if they fulfil the elements of that crime.
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b. Extermination
1450  Extermination is not defined in the Geneva Conventions.[144] The ordinary meaning of the term ‘exterminate’ indicates that it refers to complete destruction or eradication.[145]
1451  The prohibition of extermination in Article 12 would therefore seem to cover instances where killings are directed against whole groups of wounded, sick and shipwrecked persons protected under the Second Convention, while the prohibition of murder can cover the killing of a single wounded, sick or shipwrecked person.
1452  Such an understanding of extermination can be confirmed by a comparison with the use of the term in other international instruments. Extermination is a crime against humanity according to the Statutes of the ICTY, the ICTR, the ICC, the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL).[146] International case law regarding extermination frequently refers to the killing of a large number of persons.[147] The ICC Elements of Crimes also defines the crime against humanity of extermination, as the killing of one or more persons, ‘including by inflicting conditions of life calculated to bring about the destruction of part of a population’.[148] The ICC Elements of Crimes indicates that ‘the infliction of such conditions could include the deprivation of access to food and medicine’.[149] The ICC Elements of Crimes further confirms the understanding of extermination as conduct directed against more than one person by requiring that the conduct of the perpetrator constituted, or took place as part of, a mass killing of members of a civilian population.[150]
1453  Extermination is not as such listed as a grave breach in Article 51 of the Second Convention. Article 51 refers to ‘wilful killing’. Like murder, extermination of wounded, sick and shipwrecked persons protected under the Second Convention would therefore fall under the grave breach of wilful killing and would need to be repressed as such by the States party to the Second Convention.
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c. Torture
1454  Although the prohibition of torture is clearly established in humanitarian law,[151] it is not defined in the Geneva Conventions or the Additional Protocols. The first definition in international treaty law is set forth in the 1984 Convention against Torture.[152] On this basis, the ICTY defined torture for the purposes of humanitarian law as the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, with the aim of obtaining information or a confession, punishing, intimidating or coercing the victim or a third person, or of discriminating, on any ground, against the victim or a third person. This list is not, however, exhaustive.[153]
1455  The difference between ‘torture’ and ‘inhuman treatment’, both of which are listed as grave breaches in Article 51, is that for torture there is a higher threshold of pain or suffering, which must be ‘severe’ rather than ‘serious’, and the infliction of such pain or suffering must be the result of a specific purpose or motivation. Humanitarian law does not require an official involvement in the act of torture.
1456  Mental pain and suffering on its own can be severe enough to amount to torture.[154] The Third Convention and Additional Protocol I state explicitly that both physical and mental torture are prohibited.[155] Psychological methods of torture as well as the psychological effects of torture can cause suffering as severe as physical torture and its physical effects.[156]
1457  Based on both treaty and customary international law, the war crime of torture covers the same acts regardless of whether the armed conflict is international or non-international.[157] The ICC Elements of Crimes also makes no distinction for this offence based on the nature of the armed conflict.[158]
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d. Biological experiments
1458  Carrying out biological experiments on protected persons such as the wounded, sick and shipwrecked violates the obligation to treat those persons humanely. The 1949 Diplomatic Conference explicitly sought to prohibit biological experiments ‘with a view to preventing a recurrence of the cruel experiments which had been made in concentration camps during the last war’.[159]
1459  Neither the Geneva Conventions nor the Additional Protocols define the concept of ‘biological experiment’. However, in its ordinary meaning, the term ‘biological experiment’ refers to conduct the primary purpose of which is to study the effects, at that time unknown, of a product or a situation (e.g. extreme cold or altitude) on the human body. Like medical or scientific experiments prohibited by the Third Convention,[160] biological experiments are prohibited unless they are justified by the medical, dental or hospital treatment of the protected person and carried out in such person’s or persons’ interest.[161] Unless the experiment is done to improve the state of mental or physical health of protected persons and is in their interest, it is unlawful and constitutes a grave breach under Article 51 of the Convention.
1460  Accordingly, Article 12 prohibits any medical procedure which is not indicated by the state of health of the wounded, sick or shipwrecked person and which is not consistent with generally accepted medical standards that would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.[162]
1461  This prohibition is absolute, as wounded, sick or shipwrecked or detained persons cannot validly give consent to a particular biological experiment.[163] The prohibition on biological experiments should not, however, be understood as outlawing therapeutic or clinical research.[164] Nor does it prevent doctors in charge of wounded, sick and shipwrecked persons from trying new therapeutic methods which are justified on medical grounds and are dictated solely by a desire to improve a patient’s condition. Patients are entitled to freely consent to drug trials aimed at improving their health, provided they are offered in the same manner and under the same conditions as to regular citizens.[165]
1462  In terms of the humanitarian law prohibition, a biological experiment is outlawed even if it does not cause death or seriously endanger the health of the victim.[166]
1463  For more details on biological experiments as a grave breach in international armed conflict, see the commentary on Article 51, section D.4.
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e. Wilfully leaving the wounded, sick and shipwrecked without medical assistance and care
1464  Wilfully leaving the wounded, sick and shipwrecked without medical assistance and care is likewise strictly prohibited under Article 12(2).[167] Albeit neither a war crime nor a grave breach as such in the Geneva Conventions, such conduct may amount to inhuman treatment, wilfully causing great suffering or serious injury to body or health or, depending on the circumstances, even wilful killing by omission.[168]
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f. Creation of conditions exposing the wounded, sick and shipwrecked to contagion or infection
1465  Paragraph 2 states that Parties shall not create conditions exposing the wounded, sick and shipwrecked to contagion or infection. For the delegates at the Diplomatic Conference, the word ‘contagion applies to diseases communicated from one human being to another, while the word infection … applies more particularly to an infection caused artificially, for example by injections’.[169] The prohibition should serve as a reminder that any wilful exposure of the wounded, sick and shipwrecked to such intolerable conditions is clearly prohibited and could amount to a grave breach. In any case, the obligation to care for the wounded, sick and shipwrecked requires Parties to an armed conflict to do much more than simply not expose such persons to contagion or infection. They must act with due diligence and endeavour to create the best possible conditions of hygiene under the circumstances.
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G. Paragraph 3: Permitted prioritization regarding medical treatment
1466  According to paragraph 3, ‘[o]nly urgent medical reasons will authorize priority in the order of treatment to be administered’. The word ‘only’ indicates that criteria other than ‘urgent medical reasons’ are not permitted. The most obvious example would be prioritizing care based on the nationality of the patient in a manner that deprives enemy personnel of adequate care. Article 12(2) prohibits any adverse distinction with regard to the care of the wounded, sick and shipwrecked in all its various facets. It follows, therefore, that decisions of triage must never be based on any of the criteria listed in that paragraph. Paragraph 3 sets out a clear rule specifically in regard to distinction in the ‘priority in the order of treatment’.
1467  Which kinds of ‘urgent medical reasons’ may be invoked in this regard is not specified in humanitarian law. It is generally accepted that the rules of medical ethics and the accepted standards of the medical profession govern this decision.[170] Thus, it can be justified to give priority in a temporal sense to patients with severe injuries over those with minor injuries. Moreover, if the supply of analgesics is low, it would also seem justifiable to provide pain relief to a severely injured sailor in place of a sailor with minor injuries.
1468  Paragraph 3 allows individual as well as collective distinctions based on medical grounds.[171] Medical grounds that may be invoked to justify prioritization may also be derived from the principles of medical triage. Medical triage is of particular relevance in times of armed conflict where there may be significant numbers of wounded and sick people, while medical personnel and equipment may be limited. Under such circumstances, it would be justifiable to devote more resources in terms of time, personnel and equipment to severely wounded personnel than to personnel with light wounds. Indeed, in such situations triage will be a necessary precondition for ensuring the most efficient provision of medical care for the greatest number of people.[172] According to the ICRC:
The ultimate objective of triage is to achieve optimal use of the available personnel and resources so as to benefit the greatest number of casualties who have the best chance of survival. As a consequence:
- choices are made to achieve the greatest good not for any particular individual but for the greatest number of people;
- because of limited time and resources, some casualties do not even begin to receive treatment, or their treatment is interrupted, or their evacuation is never considered.
Triage might be difficult to perform. The decisions involved are the most difficult in all health care.[173]
1469  The aim of caring for the greatest possible number of wounded, sick and shipwrecked people is in line with the purpose of Article 12 and is also consistent with medical ethics. Against this background, the permitted criterion of ‘urgent medical reasons’ must be interpreted to comprise both individual and collective medical reasons and therefore also permits the practice of medical triage, provided that it is conducted exclusively on medical grounds.
1470  Paragraph 3 makes it clear that factors other than urgent medical reasons cannot justify prioritization in the order of treatment. It follows that military necessity may never be invoked to justify such distinctions.[174]
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H. Paragraph 4: Treatment of women
1471  The principle that women are to be accorded specific respect in armed conflict when they find themselves in the power of a Party to the conflict first found expression in Article 3 of the 1929 Geneva Convention on Prisoners of War.[175] That provision was largely informed by the fact that a significant number of women were involved in the First World War. Since then, the participation of women in armed conflict at sea has grown, in terms both of the numbers of women serving in naval forces and the variety of roles they play.[176]
1472  Since 1949 there have been a number of social and international legal developments in relation to equality of the sexes.[177] Today there is also a deeper understanding that women, men, girls and boys may have specific needs and capacities linked to the different ways armed conflict may affect them.[178] Singling out women in no way implies that they have different levels of resilience, agency or capacity within the armed forces or as civilians, but rather acknowledges that women have a distinct set of needs and may face particular physical and psychological risks.[179]
1473  The Geneva Conventions and their Additional Protocols are based on the principle that respect for, protection and care of the wounded and sick must be applied without adverse distinction. Article 12 not only contains essential provisions relating to that respect, protection and care, but also lays down how they should be applied. In Article 12(2) adverse distinction based on sex is explicitly prohibited. Within the requirement of equality of protection, Article 12 also allows for favourable distinction based on the specific needs that may arise from the sex of the wounded, sick or shipwrecked combatant. Article 12(4) acknowledges that women have specific needs and face particular risks for which a ‘blanket’ protection may not be adequate. Such needs and risks may be physical or physiological, but they may also stem from social, economic, cultural and political structures in a society. With women increasingly playing a diverse range of roles in times of armed conflict at sea, Article 12(4) is more relevant than ever.
1474  Article 12(4) requires Parties to the conflict to treat female wounded, sick or shipwrecked members of the armed forces with ‘all consideration due to their sex’. Likewise, Article 12(3) allows for favourable distinction to be based on urgent medical reasons, another needs-based criterion. In the light of the purpose of Article 12, namely to address the specific vulnerability of the wounded, sick or shipwrecked and to establish a comprehensive regime for their protection, the distinct set of needs of and particular physical and psychological risks facing women, including those arising from social structures, have to be taken into account in order to comply with the obligation in paragraph 4. In particular, measures should be taken to reduce the impact of the unique nature of shipboard medical care – with limited facilities, staffing, and access to specialists – on the ship’s ability to meet women’s distinct set of needs.[180]
1475  Article 12(4), read together with Article 12(2), sets a requirement for equal respect, protection and care based on all the needs of women. The obligation to identify responses to the specific needs of women – which may not fall below the basic humanitarian standards already articulated in the Conventions – is reinforced by other articles requiring that female members of the armed forces be treated ‘with all the regard due to their sex’ and ‘in all cases benefit by treatment as favourable as that granted to men’.[181]
1476  In Article 12(4) the word ‘treat’ encompasses not only the provision of immediate and necessary medical attention and material, but also, within the context of the whole article, respect for and the protection of female wounded, sick or shipwrecked combatants.[182]
1477  As explained above, in order to qualify as wounded, sick or shipwrecked, a person has to fulfil two cumulative criteria: to require medical care or be in a situation of peril at sea, and to refrain from any act of hostility. As a result, the category of ‘wounded and sick’ also includes maternity cases and expectant mothers as they are in need of medical assistance or care. This is explicitly recognized in the definition of ‘wounded and sick’ in Additional Protocol I.[183] In the context of Article 12(4), therefore, the specific needs of women while pregnant or after childbirth, such as for additional food or specific hygiene requirements, have to be addressed.
1478  As noted earlier, the protected status accorded to a wounded, sick or shipwrecked person ends as soon as that person engages in hostile acts, dies or recovers, or is rescued, i.e. when the condition requiring medical assistance or care, or situation requiring rescue, no longer exists. In the context of the particular female conditions of pregnancy and childbirth, this means that the obligation to protect women extends beyond the end of the convalescence after the delivery. As long as the mother and child are in need of medical assistance or care, the obligation persists.[184]
1479  In order to treat female wounded, sick and shipwrecked combatants ‘with all consideration due to their sex’, Parties to an armed conflict must ensure that their protection and care takes into account their specific needs with regard to hygiene, ante- and post-natal care and gynaecological and reproductive health, including physiological factors that may heighten the risk of anaemia and mineral deficiencies. If members of the fighting force are pregnant or have recently given birth at the time of injury or illness, they will require specific medical attention. Furthermore, the impact of particular weapons or methods used by belligerents may have distinct implications for female members of the military owing to body mass and other physiological differences.[185]
1480  In a practical sense, Article 12(4) requires military medical services to be multidisciplinary in their approach and to have a range of expertise and skills to hand to deal with both male and female patients.[186] This will require particular planning and analysis, given that shipboard medical services are constrained by the supplies, facilities and expertise available on board. Consequently, Article 12(4) requires Parties to assess the extent to which their shipboard medical services can meet the distinct medical needs of wounded, sick or shipwrecked women, and if certain medical needs cannot be met on board, at a minimum policies must be put in place to facilitate access to more specialist resources. For example, where on board medical services are unable to ensure the health of a pregnant combatant, arrangements could be made to transfer the combatant to a more suitable site of care.
1481  In order to implement the aforementioned obligation, including planning and analysis of the types of health care provided, the Parties to an armed conflict need to consider how the roles and patterns formed by the social, economic, cultural or political context and resulting in different statuses, needs and capacities among women and men of different ages and backgrounds could hamper the safe access to care of any one group. This may include a reluctance to seek or receive medical care, possibly owing to discrimination or a stigma of being wounded or sick. Knowledge of how social structures influence the situation should be taken into account in order to ensure that health care is fully accessible to both women and men and minimizes the risks of any group being subject to discrimination, lack of respect, harm or danger before, during or after the care.[187]
1482  The obligation to ensure the equal treatment of female and male combatants, while paying attention to the specific needs of women, is a continuous theme in the Geneva Conventions and is also applicable under Article 16 of the Second Convention when wounded, sick or shipwrecked female members of the armed forces fall into enemy hands. Moreover, it appears throughout the Third Convention in relation to the treatment of prisoners of war.[188]
1483  Ensuring that women receive respect and protection, as well as humane treatment and the care required by their specific needs, is an essential feature of the Geneva Conventions. With women increasingly taking on a range of combat roles, Parties to an armed conflict are required to take into account the concept of favourable distinction in their regard. Treating female members of the armed forces with all consideration due to their sex involves ensuring that Parties have both the capacity and the wider understanding to meet the range of specific needs of women when wounded, sick or shipwrecked.
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1 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 9.
2 - See also the subsequent revised versions of that Convention: Geneva Convention (1906); Geneva Convention on the Wounded and Sick (1929); and First Geneva Convention (1949). See also Additional Protocol I (1977).
3 - Additional Articles relating to the Condition of the Wounded in War (1868). For more information on the development of the protection of wounded, sick and shipwrecked persons at sea, see Introduction, paras 79–96, and section B of this commentary. See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 84–86.
4 - See Article 13 of the First and Second Conventions.
5 - See, in particular, Article 3, to which the word ‘shipwrecked’ was added.
6 - ICRC Study on Customary International Humanitarian Law (2005), Rules 109–111.
7 - Ibid.
8 - Such grave breaches include wilful killing, torture or inhuman treatment, including biological experiments, or wilfully causing great suffering or serious injury to body or health. See First Convention, Article 50, and Second Convention, Article 51.
9 - See ICC Statute (1998), e.g. under Article 8(2)(a)(i)–(iii), (b)(vi) and (x), (c)(i)–(ii) and (e)(xi).
10 - ICRC Study on Customary International Humanitarian Law (2005), Rule 146: ‘Belligerent reprisals against persons protected by the Geneva Conventions [including the wounded, sick and shipwrecked] are prohibited.’
11 - See the commentary on Article 12 of the First Convention, paras 1327–1333.
12 - For more details, see Introduction, paras 83–85.
13 - Hague Convention (III) (1899). See also Convention on the Exemption of Hospital Ships from Dues and Taxes (1904). See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 3–15 and 84–86.
14 - Article 25 of the 1907 Hague Convention (X) provides: ‘The present Convention, duly ratified, shall replace as between Contracting Powers, the Convention of 29 July 1899, for the adaptation to maritime warfare of the principles of the Geneva Convention. The Convention of 1899 remains in force as between the Powers which signed it but which do not also ratify the present Convention.’
15 - For an analysis as to what qualifies as a neutral State, see the commentary on Article 5, section C.1.
16 - See the commentary on Article 13, section C.2. Notably, in view of its restriction to certain categories of persons, Article 12 of the First and Second Conventions is more limited than Article 10 of Additional Protocol I and the corresponding rules of customary international law, which apply to both military and civilian persons; see ICRC Study on Customary International Humanitarian Law (2005), Rules 109–111.
17 - See the commentary on Article 13, section C.2.
18 - See e.g. Gilbert Gidel, Le droit international public de la mer, Vol. 1, Mellottée, Chateauroux, 1934, pp. 39–43.
19 - The Second Convention does not specify where naval warfare operations may take place.
20 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 88–89. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 159. No reason is given in the preparatory work; the only explanation for the addition is in Pictet’s 1960 Commentary.
21 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 88–89.
22 - The 1982 UN Convention on the Law of the Sea divides the sea into various maritime zones, each of which has its own regulation in terms of the passage rights of foreign vessels and the rights of coastal States. These divisions are irrelevant for the purpose of assessing whether a person is wounded, sick or shipwrecked.
23 - Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 398–401.
24 - Ibid. p. 399.
25 - Ibid.
26 - Ibid. p. 411.
27 - Sri Lanka, Military Manual, 2003, p. 174 (in definitions section); United States, Naval Handbook, 2007, para. 11.6. (defining shipwrecked as ‘those in peril at sea or in other waters as a result of the sinking, grounding, or other damage to a vessel in which they are embarked’ (emphasis added)); and Macedonia, Military Manual, 1998, p. 173 (defining ‘other waters’ as including lakes).
28 - See Article 4(2) of the Second Convention.
29 - For example, the Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1330, defines ‘shipwreck’ as ‘the destruction of a ship at sea by sinking or breaking up’ and ‘shipwrecked’ as to ‘suffer a shipwreck’. To be shipwrecked, for the purposes of the Second Convention, a person does not have to be floating in the sea following the break-up or sinking of a ship; see paras 1383–1388.
30 - See Kleffner, p. 324; Kalshoven/Zegveld, p. 125; and Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 301.
31 - The fact that a person is ‘wounded or sick’ under the First Convention is thus without prejudice to the fact that he or she may simultaneously qualify as a person with a disability under the 2006 Convention on the Rights of Persons with Disabilities, where that Convention applies.
32 - See Spaight, p. 421, and Sivakumaran, p. 274.
33 - For a definition of ‘hors de combat’, see Additional Protocol I, Article 41(2).
34 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1330. ‘Naufrage’ in French likewise means ‘perte totale ou partielle d’un navire par un accident de navigation’ (‘total or partial loss of a vessel due to a navigational incident’); Le Petit Robert, Vol. 1, 1989, p. 1259.
35 - See the commentaries on Articles 22, 26 and 27.
36 - See Haines, p. 769, para. 10.
37 - See Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 89; United States, Law of War Manual, 2016, para. 7.3.1.2; and Haines, p. 779, para. 43.
38 - See also United States, Naval Handbook, 2007, para. 11.6.
39 - See also ibid. para 8.2.3.2: ‘Shipwrecked persons do not include combatant personnel engaged in amphibious, underwater, or airborne attacks who are proceeding ashore, unless they are clearly in distress and require assistance. In the latter case they may qualify as shipwrecked persons only if they cease all active combat activity and the enemy has an opportunity to recognize their condition of distress.’ (Emphasis added.)
40 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 13.129.1; Nigeria, IHL Manual, 1994, p. 1; Kenya, LOAC Manual, 1997, p. 13; Peru, IHL Manual, 2004, p. 74. See, however, Australia, Manual of the Law of Armed Conflict, 2006, ‘Glossary’, p. 6 (which uses the phrase ‘as a result of misfortune’); Germany, Military Manual, 2013, para. 602; France, LOAC Manual, 2012, p. 26 (which uses the definition from Article 8(b) of Additional Protocol I ‘par suite de l’infortune qui les frappe’); Canada, LOAC Manual, para. 48; and Russian Federation, Regulations on the Application of IHL, 2001, p. 5.
41 - For persons not covered by Article 13 of the First and Second Conventions, Article 16 of the Fourth Convention applies.
42 - Article 8(a) of Additional Protocol I reads: ‘“wounded” and “sick” mean persons … who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility’, while Article 8(b) reads: ‘“shipwrecked” means persons … who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility’.
43 - For an explanation of wounded and sick combatants and the notion of refraining from acts of hostilities, see the commentary on Article 12 of the First Convention, paras 1341–1350.
44 - See also Haines, p. 771, para. 16, and United States, Naval Handbook, 2007, para. 11.6.
45 - See Haines on changes to container shipping since 1949 and its impact on this category of persons; Haines, pp. 776–777, paras 34–38. The United Kingdom’s military manual suggests that diversion of a merchant ship to a nearby port to carry out visit and search may be the most feasible option; Manual of the Law of Armed Conflict, 2004, Chapter 13 (Maritime Warfare).
46 - Once on shore, a shipwrecked member of the armed forces who is wounded or sick will be covered by the First Convention and possibly the Third Convention.
47 - See Article 16.
48 - Certain medical conditions may be chronic or lifelong, such as wounds leading to disability.
49 - See also Kleffner, p. 324. If, however, the person has fallen into the hands of the enemy, he or she will be a prisoner of war; see Article 14.
50 - See e.g. Article 17 of the First Convention and Article 20 of the Second Convention regarding the dead, and, more generally, the Third Convention regarding prisoners of war.
51 - See the commentary on Article 16, section C.1.
52 - See Third Convention, Articles 29–31.
53 - Bothe, p. 55: ‘L’expression “respectés et protégés” implique … ce qui a été expliqué à diverses reprises dans les débats … [que] les personnes et objets protégés ne doivent pas être sciemment attaqués.’ (‘The expression “respected and protected” implies … as was explained several times during the debates … [that] protected persons and objects may not be knowingly attacked.’)
54 - See Breau, p. 169, and Bugnion, p. 471.
55 - Draft Articles on State Responsibility (2001), Chapter II. See also James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, pp. 91(123.
56 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 134–135, and Bothe/Partsch/Solf, p. 537.
57 - On the concept of proportionality in armed conflict, see Additional Protocol I, Article 51(5)(b), and ICRC Study on Customary International Humanitarian Law (2005), Rule 14. See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, paras 1976–1981, and William J. Fenrick ‘The Rule of Proportionality and Protocol I in Conventional Warfare’, Military Law Review, Vol. 98, 1982, pp. 91–127.
58 - See e.g. Henderson, pp. 195–196 and 206, and Rogier Bartels, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials’, Israel Law Review, Vol. 46, 2013, pp. 271–315, at 304–305. See also Gisel.
59 - Nor are the wounded and sick explicitly mentioned in relation to the obligation to take precautions in attack and against the effects of attacks; see Additional Protocol I, Articles 57 and 58. See also ICRC Study on Customary International Humanitarian Law (2005), Rules 15 and 22. It should be noted that not all scholars agree on how to interpret Article 49(3) of Additional Protocol I and its effect on the applicability of the rules on distinction, proportionality and precautions in naval warfare. For an overview, see Letts and McLaughlin, pp. 274–275. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 46.
60 - See Henderson, p. 196. See, further, Gisel.
61 - See Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 64–79.
62 - See ICRC Commentary on the Draft Additional Protocols, pp. 65–66, which refers generally to ‘protected persons and objects’ in discussing precautions and proportionality in relation to what became Articles 51 and 57 of Additional Protocol I.
63 - Examples of military manuals whose definitions of what needs to be taken into account in the proportionality assessment use the broader terms ‘protected persons’ and/or ‘non-combatants’ include: Canada, LOAC Manual, 2001, para. 204.5; New Zealand, Military Manual, 1992, para. 207; and Philippines, Air Power Manual, 2000, paras 1–6.4. See also United States, Joint Targeting, 2013, definition of collateral damage, p. GL-4. See also the commentaries on Article 19, para. 1797, and Article 24, para. 1987, of the First Convention.
64 - See Gisel, pp. 222–224.
65 - See Additional Protocol I, Article 57, and ICRC Study on Customary International Humanitarian Law (2005), Rules 15–21. Given that the obligation to take feasible precautions is a positive obligation, unlike the proportionality principle, which requires Parties to an armed conflict not to cause excessive damage to civilians and civilian objects, it makes sense to include it under the general obligation to protect the wounded, sick and shipwrecked. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 46, and United States, Law of War Manual, 2016, para. 5.9. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 30 and 31 and their commentaries.
66 - In this regard, an awareness of how the situation of the wounded and sick may differ according to their gender, age or background may help to better identify specific vulnerabilities. For guidance on the inclusion of such perspectives, see e.g. Tengroth/Lindvall, Recommendations, and Chapter 6, Checklist – a gender perspective in the application of IHL. For further details, see section H. See also e.g. Lindsey-Curtet/Holst-Roness/Anderson; Coomaraswamy; and Lindsey, 2001.
67 - See First Convention, Article 50, and ICC Statute (1998), Article 8(2)(a).
68 - See Additional Protocol I, Article 37; ICC Statute (1998), Article 8(2)(b)(xi); and ICRC Study on Customary International Humanitarian Law (2005), Rule 65. See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 1505 (mentioning the ‘shipwrecked’ among those who are to be respected and protected and the relationship of that protection to the prohibition of perfidy).
69 - See Article 18 and its commentary, section C.6.
70 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 184–185; see also Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. III, pp. 57–59, and Vol. XI, pp. 64–65.
71 - See fn. 66.
72 - Kessler, p. 506. Measures necessary to protect the wounded, sick and shipwrecked include taking precautions such as marking hospitals, hospital ships and medical units and transports, and locating those facilities away from military objectives. See e.g. Articles 19, 36 and 42 of the First Convention and Articles 39 and 43 of the Second Convention. Similar obligations apply with respect to prisoner-of-war camps; see Third Convention, Article 23.
73 - See the commentary on Article 18, section C.3.
74 - See ICJ, Application of the Genocide Convention case, Judgment, 2007, para. 431.
75 - Historically, see e.g. Article 9 of the 1906 Geneva Convention and Articles 1, 9 and 25(1) of the 1929 Geneva Convention on the Wounded and Sick. See also e.g. Articles 12 and 24 of the First Convention, Article 14 of the Third Convention, Article 27 of the Fourth Convention, Articles 1(1), 10(2), 51(1) and 75(1) of Additional Protocol I and Articles 4(1), 7(2) and 13 of Additional Protocol II, as well as common Article 3(1).
76 - Nevertheless, Article 12(1) relates to a rather different context: whereas Article 12 concerns respect for and protection of a specific category of persons, the obligation to respect and ensure respect in common Article 1 concerns compliance with all legal provisions laid down in the Geneva Conventions.
77 - See the commentary on common Article 1, section F. See also Geiss, 2015, pp. 132–133, and Focarelli, pp. 125–171.
78 - This argument is commonly made with respect to the use of the formula in common Article 1. See e.g. Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, paras 47–51; ICTY, Kupreškić Trial Judgment, 2000, para. 517; and Condorelli/Boisson de Chazournes, p. 19. This finding is confirmed by Resolution 3 of the 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, which emphasizes that the obligation to respect in common Article 1 ‘is not based on reciprocity’ (preambular para. 12). See also Vienna Convention on the Law of Treaties (1969), Article 60(5).
79 - See also Kleffner, pp. 326–327.
80 - See United States, Military Tribunal at Nuremberg, Hostages case, Judgment, 1948, p. 647. It may only be considered where humanitarian law provisions make explicit provision for the exception of military necessity; see Geiss, 2010, p. 558.
81 - See Hague Regulations (1899), Article 4; Hague Regulations (1907), Article 4; Geneva Convention on the Wounded and Sick (1929), Article 1; and Geneva Convention on Prisoners of War (1929), Article 2. See also Article 13 of the Third Convention, Article 27 of the Fourth Convention and Articles 10 and 75 of Additional Protocol I, which uphold the principle of humane treatment of persons not or no longer directly participating in the hostilities. In the context of non-international armed conflict, see, in particular, common Article 3, and Article 4(1) of Additional Protocol II.
82 - ICRC Study on Customary International Humanitarian Law (2005), Rule 87.
83 - See Henckaerts/Doswald-Beck, commentary on Rule 87, fn. 42 and the references contained therein.
84 - See e.g. Colombia, Constitutional Court, Constitutional Case No. C-291/07, 2007, III-D, Heading 5: ‘The general guarantee of humane treatment provides the overall guiding principle behind the Geneva Conventions, in the sense that the object itself is the humanitarian task of protecting the individual as a person, safeguarding the rights derived from it.’ See also United States, Naval Handbook, 2007, pp. 11-1–11-2.
85 - A comparison with paragraph 3, in which the word ‘treatment’, in the light of the reference to ‘medical reasons’, is evidently used in a medical sense, supports the view that in the first sentence of paragraph 2 the word ‘treatment’ is used in a more general sense. A clearer distinction was included in Article 1 of the 1929 Geneva Convention on the Wounded and Sick, which stated that ‘[the wounded and sick] shall be treated with humanity and cared for medically, without distinction of nationality, by the belligerent in whose power they may be’.
86 - See fn. 66.
87 - ICTY, Delalić Trial Judgment, 1998, paras 520–543.
88 - Some examples of inhuman treatment can be found in ICC, Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, paras 63–65.
89 - See Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 68.
90 - Third Convention, Articles 22(1) and 29; Fourth Convention, Article 85. See also United States, Naval Handbook, 2007, para. 11.2: ‘Humane Treatment … All detainees shall: … b. Receive sufficient food, drinking water, shelter, and clothing’.
91 - Third Convention, Article 26; Fourth Convention, Article 89. See also the examples of humane treatment given, albeit in the context of international armed conflict, in Burundi, Regulation on International Humanitarian Law, 2007, p. 15: ‘Les ennemis capturés sont faits P.G. [prisonniers de guerre] Il est interdit de les tuer ou de les torturer. Il faut les traiter humainement (les nourrir, les habiller, …)’ (‘Captured enemy combatants become POWs [prisoners of war]. It is prohibited to kill or torture them. They must be treated humanely (fed, clothed, …)). See also United States, Naval Handbook, 2007, para. 11.2.
92 - Third Convention, Article 27; Fourth Convention, Article 90. See also e.g. Burundi, Regulation on International Humanitarian Law, 2007, p. 15. See also United States, Naval Handbook, 2007, para. 11.2.
93 - Third Convention, Articles 15, 30 and 31; Fourth Convention, Articles 91 and 92. See also e.g. United States, Naval Handbook, 2007, para. 11.2: ‘Humane Treatment … All detainees shall: a. Receive appropriate medical attention and treatment’.
94 - Third Convention, Article 22(2); see also Article 27(1).
95 - Third Convention, Article 23(1)–(2).
96 - Third Convention, Article 34; Fourth Convention, Articles 86 and 93. See also e.g. United States, Naval Handbook, 2007, para. 11.2: ‘Humane Treatment … All detainees shall: … c. Be allowed the free exercise of religion, consistent with the requirements for safety and security’.
97 - Third Convention, Article 13(2); Fourth Convention, Article 27(1). According to Canada, Code of Conduct, 2001, p. 2-9, Rule 6, para. 5, this is to be applied to all persons detained by Canadian Forces personnel carrying out military operations other than Canadian domestic operations as an element of the rule to ‘treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention’.
98 - Third Convention, Article 14(2); Fourth Convention, Article 27(2). See also e.g. Djibouti, Manual on International Humanitarian Law, 2004, p. 23: ‘Les femmes ont droit également, en application du DIH [droit international humanitaire], à certaines formes de protection spécifiques à leur sexe, qui sont les suivantes: - Traitement humain des femmes combattantes, notamment des prisonnières de guerre’ (‘Women also have the right, in accordance with IHL [international humanitarian law], to certain kinds of protection specific to their sex. These are the following: - Humane treatment of female combatants, notably female prisoners of war’). According to Canada’s Code of Conduct, 2005, p. 2-9, Rule 6, para. 5, the following applies as an element of the rule to ‘treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention’ to the treatment of all persons detained by Canadian Forces personnel carrying out military operations other than Canadian domestic operations: ‘Detained persons shall be treated with all due regard to their gender. Searches will be conducted by persons of the same sex unless, in exceptional circumstances, they have to be conducted by a member of the opposite sex. Searches conducted by members of the opposite sex will be carried out in a respectful manner.’ See also Additional Protocol I, Article 76(1).
99 - Third Convention, Article 23(1); Fourth Convention, Article 28. See also ICC Statute (1998), Article 8(2)(b)(xxiii); ICRC Study on Customary International Humanitarian Law (2005), Rule 97; and United Kingdom, Manual of the Law of Armed Conflict, 2004, Chapter 15. Internal Armed Conflict, p. 392, para. 15.14.2: ‘Recent armed conflicts have been blighted by the use of “human shields” to protect military installations from attack … . These practices violate the basic law of armed conflict principles of targeting, discrimination and humane treatment of those hors de combat.’ (Emphasis added.)
100 - Sassòli, p. 412. Regarding the due diligence standard, see Dupuy, p. 384; Riccardo Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’, German Yearbook of International Law, Vol. 35, 1992, pp. 9–51, at 41; Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’, New York University Journal of International Law & Politics, Vol. 36, Nos 2 & 3, 2004, pp. 265–306; Rüdiger Wolfrum, ‘Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations’, in Mahnoush H. Arsanjani et al. (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, Martinus Nijhoff Publishers, Leiden, 2011, pp. 363–384; and Timo Koivurova, ‘Due Diligence’, version of February 2010, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com. See also James R. Crawford, Second report on State responsibility, UN Doc. A/CN.4/498, 17 March 1999, pp. 23–40, and ICJ, Application of the Genocide Convention case, Merits, Judgment, 2007, para. 430.
101 - United States, Law of Armed Conflict Deskbook, 2012 p. 49.
102 - See e.g. Lindsey, 2001, p. 112: ‘Especially in armed conflicts, the necessary resources for providing safe blood donations may be limited.’
103 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 110.
104 - Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 76–77.
105 - See section F.1.c.
106 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 70. Ethiopia had alleged that Eritrea had ‘failed to provide necessary medical attention to Ethiopian POWs [prisoners of war] after capture and during evacuation, as required under customary international law reflected in Geneva Conventions I (Article 12) and III (Articles 20 and 15)’. Ethiopia argued that ‘[m]any Ethiopian declarants testified that their wounds were not cleaned and bandaged at or shortly after capture, leading to infection and other complications’. Eritrea responded that ‘its troops provided rudimentary first aid as soon as possible, including in transit camps’ (ibid. para. 69). While the Commission came to the general conclusion that there was no violation, logistical and resource constraints may not excuse a failure to provide even basic care.
107 - See ibid. para. 106.
108 - Instruments concerning medical ethics in times of armed conflict include, especially: the World Medical Association’s Regulations in Times of Armed Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, as amended or revised in 1957, 1983, 2004, 2006 and 2012); Rules Governing the Care of Sick and Wounded, Particularly in Time of Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, edited and amended in 1957 and 1983); Standards of Professional Conduct regarding the Hippocratic Oath and its modern version, the Declaration of Geneva, and its supplementary International Code of Medical Ethics (adopted by the 3rd WMA General Assembly, London, England, October 1949, as amended in 1968, 1983 and 2006). See also ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, ICRC, Geneva, 2012, pp. 55–62.
109 - Bothe/Partsch/Solf, p. 108, para. 2.3 (end). See also the explicit references to medical ethics in Article 16(1) and (2) of Additional Protocol I.
110 - At the time of drafting of Additional Protocol I, the Holy See proposed an amendment to make it clear that all the needs of the wounded and sick should be attended to and not just medical needs. This proposal – which was only made during the oral deliberations and not submitted formally – was ultimately not adopted. As far as can be seen, this was solely because of editorial considerations and not because it was considered that the wounded and sick should not be entitled to the provision of food, shelter, clothing and hygiene items. The Holy See’s proposal was supported by the United States and Belgium; Iraq argued that the use of the term ‘medical care’ rather than ‘medical treatment’ encompassed the broader meaning. Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. XI, pp. 69, 73, 77 and 78.
111 - For further details on women’s specific hygiene and nutritional needs, see para. 1479.
112 - Röthlisberger, pp. 18–20.
113 - See Israel, Supreme Court sitting as High Court of Justice, Physicians for Human Rights v. Prime Minister of Israel and others, Judgment, 2009, para. 9; ‘The respondents provided details of the measures adopted before and during the military operations in order to maintain and improve the coordination of the evacuation of the wounded.’ See also United Kingdom, Joint Medical Doctrine, 2011, Chapter 5, Operations, and para. 1A5.
114 - See the commentary on Article 22.
115 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, paras 138 and 115–119; Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 104–107. (Emphasis added.)
116 - See also International Covenant on Economic, Social and Cultural Rights (1966), Article 12(2)(c) and(d), and UN Economic and Social Council, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 August 2000.
117 - See Geneva Convention (1906), Article 1; see also Geneva Convention on the Wounded and Sick (1929), Article 1.
118 - See, in particular, Universal Declaration of Human Rights (1948), Article 2.
119 - On Article 2, para. 1, of the 1966 International Covenant on Civil and Political Rights, see UN Human Rights Committee, General Comment No. 18: Non-discrimination, 10 November 1989. On Article 14 of the 1950 European Convention on Human Rights and its Protocol 12 of 2000, see Heiko Sauer, ‘Art. 14: Diskriminierungsverbot’, in Ulrich Karpenstein and Franz C. Mayer (eds), EMRK. Konvention zum Schutz der Menschenrechte und Grundfreiheiten. Kommentar, Beck, Munich, 2012, pp. 340–358.
120 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 190–191.
121 - Article 75(1) of Additional Protocol I requires protection be provided ‘without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria’. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 88. The human rights law principle of non-discrimination refers to similar criteria; see e.g. UN Charter (1945), Article 1(3); Convention on the Elimination of Racial Discrimination (1965), Article 2; International Covenant on Civil and Political Rights (1966), Article 2(1); International Covenant on Economic, Social and Cultural Rights (1966), Articles 2(2) and 3; Convention on the Elimination of Discrimination against Women (1979), Article 2; Convention on the Rights of the Child (1989), Article 2(1); European Convention on Human Rights (1950), Article 14; American Convention on Human Rights (1969), Article 1(1); and African Charter on Human and Peoples’ Rights (1981), Article 2.
122 - Moreover, paragraph 2 prohibits adverse distinction only with regard to a specific group of persons, namely the wounded and sick. It is therefore more limited in scope than the general rule laid down in customary international humanitarian law, according to which ‘[a]dverse distinction in the application of international humanitarian law … is prohibited’ (ICRC Study on Customary International Humanitarian Law (2005), Rule 88).
123 - Ibid. Rule 110.
124 - In order to fulfil the obligations under Article 12, it is important to identify and assess, drawing on the experience of people with different perspectives, how social and cultural barriers associated with the fear of stigma, social consequences or discrimination might hinder equal treatment or care. For example, in a given context men and women might deal differently with psychological problems, stigmatized diseases or sexual or gender-based violence. Typical non-adverse distinctions could include, if possible: only female health workers tending to the needs of wounded, sick and shipwrecked women, where culturally appropriate; the availability of separate male/female consulting rooms; and awareness of the need to handle gender-specific health problems or experiences of violence with sensitivity and discretion.
125 - See also the commentary on Article 12 of the First Convention, para. 1396.
126 - Emphasis added. The equally authentic French version of Article 12 reads: ‘Est strictement interdite toute atteinte à leur vie et à leur personne.’
127 - See also ICC Statute (1998), Article 8(2)(a).
128 - See Article 51.
129 - See ICC Statute (1998), Article 8(2)(b)(xxi) and (xxii). See also Roberta Arnold and Stefan Wehrenberg, ‘Outrages upon personal dignity’, in Triffterer/Ambos, pp. 469–476, paras 614–651, and Michael Cottier and Sabine Mzee, ‘Rape and other forms of sexual violence’, in Triffterer/Ambos, pp. 476–503, paras 652–741.
130 - As well as under Article 12 of the Second Convention, murder is prohibited under Article 12 of the First Convention and Article 32 of the Fourth Convention. The Third Convention contains no specific prohibition of murder, but its Article 13 generally prohibits ‘[a]ny unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody’ and requires that ‘prisoners of war must at all times be protected, particularly against acts of violence’; for details, see the respective commentaries on these provisions. Murder is also prohibited under Article 75(2)(a) of Additional Protocol I, under common Article 3, and under Article 4(2)(a) of Additional Protocol II, as well as under customary international humanitarian law (ICRC Study on Customary International Humanitarian Law (2005), Rule 89).
131 - See ILC Draft Code of Crimes against the Peace and Security of Mankind (1996), p. 48, para. 7, commenting on ‘murder’ as a crime against humanity.
132 - For an overview of some systems, see e.g. Jeremy Horder (ed.), Homicide Law in Comparative Perspective, Hart Publishing, Oxford, 2007.
133 - See ICTY, Mucić Trial Judgment, 1998, para. 422.
134 - See ICTY, Kordić and Čerkez Trial Judgment, 2001, para. 233.
135 - Under the 2002 Elements of Crimes, the elements adopted for the war crime of wilful killing in Article 8(2)(a)(i) of the 1998 ICC Statute read in part: 1. The perpetrator killed one or more persons. [footnote: The term ‘killed’ is interchangeable with the term ‘caused death’. This footnote applies to all elements which use either of these concepts.] 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. The elements adopted for the war crime of murder in Article 8(2)(c)(i) of the 1998 ICC Statute read in part: 1. The perpetrator killed one or more persons. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel [footnote omitted] taking no active part in the hostilities.
136 - For further details, see the commentary on Article 51, section D.1.
137 - For details, see ibid.
138 - This is independent of whether the violation of the prohibition will lead to international criminal responsibility. For details, see ibid.
139 - See the commentary on the grave breach of ‘wilful killing’ in Article 51, section D.1. The ECCC found an accused guilty of the grave breach of wilful killing as detainees died ‘as the result of omissions known to be likely to lead to death and as a consequence of the conditions of detention imposed upon them’; Kaing Trial Judgment, 2010, para. 437. See further Article 12’s specific prohibition of wilfully leaving the wounded, sick and shipwrecked without medical assistance or care, which, if it leads to death, can overlap with murder by omission.
140 - For details, see the commentary on Article 51, section D.1.
141 - See Dörmann, p. 43, referencing, inter alia, United Kingdom, British Military Court at Brunswick, Gerike case, Trial, 1946, pp. 76–81, in which the accused had been charged with and several of them found guilty of committing a war crime ‘in that they at Velpke, Germany, between the months of May and December, 1944, in violation of the laws and usages of war, were concerned in the killing by wilful neglect of a number of children, Polish Nationals’. While not dealing with the wounded and sick in the sense of the First Convention, the situation is comparable.
142 - Solis, pp. 358–361, and Simpson, p. 751.
143 - See also the equally authentic French version of Article 12: ‘Est strictement interdite toute atteinte à leur vie et à leur personne et, entre autres, le fait de les achever ou de les exterminer …’ (emphasis added). As one of its meanings, ‘achever’ implies ‘donner le dernier coup qui tue’ (‘delivering the final blow that kills’) (Le Petit Larousse, 2008, p. 11).
144 - As well as in Article 12 of the Second Convention, extermination is prohibited in Article 12 of the First Convention and Article 32 of the Fourth Convention. The Third Convention contains no specific prohibition of extermination, but its Article 13 generally prohibits ‘[a]ny unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody’ and requires that ‘prisoners of war must at all times be protected, particularly against acts of violence’; for details, see the commentaries on these provisions.
145 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 504.
146 - See ICTY Statute (1993), Article 5(b); ICTR Statute (1994), Article 3(b); ICC Statute (1998), Article 7(1)(b); Cambodia, Law on the Establishment of the ECCC, 2001, as amended, Article 5; and SCSL Statute (2002), Article 2(b). See also, in this respect, extermination as a crime against humanity under Article 6(c) of the 1945 IMT Charter for Germany.
147 - See e.g. ICTY, Vasiljević Trial Judgment, 2002, para. 229; Krstić Trial Judgment, 2001, para. 498; Stakić Appeal Judgment, 2006, para. 252; ICTR, Bisengimana Trial Judgment, 2006, para. 72; Gacumbitsi Trial Judgment, 2004, para. 309; Rutaganda Trial Judgment, 1999, para. 82; Nahimana Trial Judgment, 2003, para. 1061; Ntagerura Trial Judgment, 2004, para. 701; Ntakirutimana Appeal Judgment, 2004, para. 521; Rutaganira Trial Judgment, 2005, paras 49−50; Bagilishema Trial Judgment, 2001, para. 87; Kamuhanda Trial Judgment, 2004, para. 692; and Kayishema and Ruzindana Trial Judgment, 1999, para. 145. For a commentary, see Christopher K. Hall and Carsten Stahn, ‘Extermination’, in Triffterer/Ambos, pp. 250–258.
148 - See ICC Elements of Crimes (2002), Article 7(1)(b), and ICC Statute (1998), Article 7(2)(b). The use of the language ‘inflicting on the group conditions calculated to bring about the destruction of part of a population’ can also be found in Article 2(c) of the 1948 Genocide Convention. Genocide, contrary to extermination, however, is committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.
149 - ICC Elements of Crimes (2002), Article 7(1)(b), para. 1, note 9.
150 - See ibid. Article 7(1)(b).
151 - In addition to Article 12, torture is set down as a grave breach in Article 50/51/130/147, respectively, of the four Geneva Conventions. It is also prohibited in common Article 3, Article 75(2)(a) of Additional Protocol I and Article 4(2)(a) of Additional Protocol II, as well as under customary international humanitarian law (ICRC Study on Customary International Humanitarian Law (2005), Rule 90).
152 - Convention against Torture (1984), Article 1(1).
153 - Initially, the ICTY, in Kunarac, listed the purposes in a closed list; Trial Judgment, 2001, para. 497. At the time, the Trial Chamber was satisfied that these purposes had become part of customary international law and it did not need to look into other possible purposes for the particular case on trial; ibid. para. 485. Since then, the ICTY has recognized that the list of purposes is not exclusive; see e.g. Brđanin Trial Judgment, 2004, para. 487; Limaj Trial Judgment, 2005, para. 235; and Mrkšić Trial Judgment, 2007, para. 513.
154 - ICTY, Kvočka Trial Judgment, 2001, para. 149. See also Limaj Trial Judgment, 2005, para. 236; Haradinaj Retrial Judgment, 2012, para. 417; and Mrkšić Trial Judgment, 2007, para. 514.
155 - Third Convention, Article 17; Additional Protocol I, Article 75(2)(a)(ii).
156 - Inter-American Court of Human Rights, Maritza Urrutia v. Guatemala, Judgment, 2003, para. 93. On this subject, see Hernán Reyes, ‘The worst scars are in the mind: psychological torture’, International Review of the Red Cross, Vol. 89, No. 867, September 2007, pp. 591–617.
157 - ICTY, Brđanin Trial Judgment, 2004, para. 482. See also ICTY, Krnojelac Trial Judgment, 2002, para. 178; Furundžija Trial Judgment, 1998, para. 139; Kunarac Trial Judgment, 2001, para. 497; Kvočka Trial Judgment, 2001, para. 158; Stanišić and Župljanin Trial Judgment, 2013, para. 54; and ECCC, Kaing Trial Judgment, 2010, para. 439. For more details on torture as a grave breach in international armed conflict, see the commentary on Article 51, section D.2.
158 - Dörmann, p. 401. Confirmed by ICTY, Brđanin Trial Judgment, 2004, para. 482, and Stanišić and Župljanin Trial Judgment, 2013, para. 54. For further information, see also the discussion of torture in the commentary on common Article 3, section G.2.e.
159 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 248.
160 - For the prohibition of scientific or medical experiments, see Article 13 of the Third Convention.
161 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191.
162 - This wording is borrowed from Article 11(1) of Additional Protocol I and footnote 46 of the 2002 ICC Elements of Crimes regarding the war crime of medical or scientific experiments under the 1998 ICC Statute. For a full explanation, see the commentary on Article 51 of the Second Convention, section D.4.
163 - See Henckaerts/Doswald-Beck, commentary on Rule 92, p. 322, making reference to many international instruments, official statements and case law which refer to this prohibition without making any specific mention of a possible exception if the detained person consented to the procedure. For further information, see the commentary on Article 51, section D.4.
164 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191: Biological experiments. The Committee discussed at great length whether these words required definition, and more particularly whether their scope ought not to be restricted by adding, for example: “not necessary for their medical treatment”. In reality, however, the word biological, in its generally accepted sense, does not apply to therapeutic treatment, whether medical or surgical.
165 - For more details, see the commentary on Article 51, section D.4.
166 - The grave breach of biological experiments requires that the conduct seriously endangered the health or integrity of the protected person. See ibid. In this respect, the scope of criminal responsibility for conducting biological experiments is more restricted than the scope of the prohibition on carrying out experiments in humanitarian law.
167 - An example of this conduct would be failing to take action by wilfully leaving the wounded, sick or shipwrecked without medical assistance. For more details on the concept of ‘wilful’, see the commentary on Article 51, paras 3067–3070.
168 - The ECCC found an accused guilty of the grave breach of wilful killing as detainees died ‘as the result of omissions known to be likely to lead to death and as a consequence of the conditions of detention imposed upon them’; see ECCC, Kaing Trial Judgment, 2010, para. 437. The ICTY and the ICTR have both accepted commission by omission for the purposes of Article 7(1); see ICTY, Tadić Appeal Judgment, 1999, para. 188; Kordić and Čerkez Trial Judgment, 2001, paras 375−376; and ICTR, Musema Trial Judgment, 2000, para. 123.
169 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191. Nowadays it is recognized that disease can be communicated also between animals and humans.
170 - Bothe/Partsch/Solf, p. 108, para. 2.3. See also World Medical Association, International Committee of Military Medicine, International Council of Nurses and International Pharmaceutical Federation, Ethical Principles of Health Care in Times of Armed Conflict and Other Emergencies, 2015, Principle 7, https://www.icrc.org/en/document/common-ethical-principles-health-care-conflict-and-other-emergencies.
171 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 110.
172 - Generally on triage, see Kenneth V. Iserson and John C. Moskop, ‘Triage in Medicine, Part I: Concept, History, and Types’, Annals of Emergency Medicine, Vol. 49, No. 3, March 2007, pp. 275–281; Jonathan P. Wyatt et al. (eds), Oxford Handbook of Emergency Medicine, 4th edition, Oxford University Press, 2012, p. 7; and Vivienne Nathanson, ‘Medical ethics in peacetime and wartime: the case for a better understanding’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 189–213, especially at 199–200.
173 - ICRC, First Aid in Armed Conflicts and Other Situations of Violence, ICRC, Geneva, 2010, p. 116.
174 - See also the commentary on Article 12 of the First Convention, para. 1425.
175 - Geneva Convention on Prisoners of War (1929), Article 3: ‘Prisoners of war are entitled to respect for their persons and honour. Women shall be treated with all consideration due to their sex. Prisoners retain their full civil capacity.’
176 - The percentage of women engaged in large State navies, such as France (approximately 13.8%), the United States of America (approximately 17.9%), Mexico (approximately 14%), and South Africa (approximately 24.7%), is increasing steadily, with fewer gender-based restrictions on permitted roles. For example, in France, the number of navy ships with mixed-gender crew multiplied by five in ten years, such that 67 ships had women on board in 2016, and the Israeli Defense Forces have opened new combat positions to women, including that of naval ship captain.
177 - In 1966 the UN General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR), enshrining the principles of equality between men and women (Article 3) and non-discrimination (Articles 2 and 26). This was followed in 1979 by the adoption of the Convention on the Elimination of Discrimination against Women (CEDAW). More recently, the international community has recognized the link between inequality and discrimination in peacetime and violence against women in armed conflict. UN Secretary-General, Report of the Secretary-General on women, peace and security, UN Doc S/2002/1154, 16 October 2002, para. 5. A number of UN Security Council resolutions focus on the effects of armed conflict on women: see UN Security Council resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), 1960 (2010), 2106 (2013) and 2122 (2013).
178 - See ibid. For more information, see e.g. Lindsey, 2005; Coomaraswamy; and Gardam. See also Lindsey, 2001.
179 - In comparison, the original commentary on Article 12(4) was a product of the social and historical context of the time, and the reference to women as ‘weaker than oneself and whose honour and modesty call for respect’ would no longer be considered appropriate (Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 140). For a more detailed debate and feminist critiques of humanitarian law, see Gardam/Jarvis, Haeri/Puechguirbal, and Durham.
180 - For a discussion of the unique nature of shipboard medical care, see Michael J. Schwerin and David M. Sack, Shipboard Women’s Health Care: Provider Perceptions, Report No. 96-29, Naval Health Research Center, United States Navy, San Diego, 1996.
181 - See Third Convention, Article 14(2).
182 - For a discussion of the terms ‘respect’ and ‘protect’, see section E.
183 - See Additional Protocol I, Article 8(a).
184 - The definition of ‘wounded and sick’ in Article 8(a) of Additional Protocol I also includes ‘new-born babies and other persons who may be in need of immediate medical assistance or care’.
185 - See Sweden, Ministry of Foreign Affairs, International Humanitarian Law and Gender, Report Summary, International Expert Meeting: ‘Gender Perspectives on International Humanitarian Law’, 4–5 October 2007, Stockholm, Sweden. See also Tengroth/Lindvall, Chapters 14 and 15.
186 - Conflicts exacerbate existing gender inequalities, often placing women at heightened risk. Women are increasingly deliberately targeted for and subject to distinct forms of violence and abuse in armed conflict, including sexual violence, torture and mutilation, from which they suffer a wide array of physical and psychological effects. (See the reaffirmation of this point in e.g. Committee on the Elimination of Discrimination against Women, pp. 9–10.) It has been suggested that ‘[e]fforts to end sexual violence in conflicts must include scrutiny of how gender roles are shaped and upheld in peacetime. Societies that view men as superior create an environment that is conducive to sexual violence in armed conflict.’ (Joint Nordic statement at UN Security Council Open Debate on Women, Peace and Security, 24 June, 2013.)
187 - Assessments should be made as to whether wounded, sick or shipwrecked members of the armed forces might be exposed to specific risks of discrimination, violence of any kind, or humiliating or other degrading treatment during armed conflict, taking into account the possibility that inherent gender discrimination or risks in the society may increase during the armed conflict. For example, if the society itself silently accepts discrimination, violence or rape against women, or if the culture dictates that women and men may only be treated by personnel of the same sex, consideration must be given to what precautions need to be taken when planning and providing health care to ensure that female members of the armed forces are fully protected and respected and receive the same standard of care as their male counterparts. For guidance equally applicable to preventive efforts under the present article, see e.g. Lindsey-Curtet/Tercier Holst-Roness/Anderson, Chapter 1.1, Personal safety, and Chapter 1.2, Sexual violence, and Tengroth/Lindvall, Recommendations and chapter 6, Checklist – a gender perspective in the application of IHL.
188 - See Third Convention, Articles 3(1), 14(2), 16, 25(4), 29, 49(1), 88(2), 88(3), 97(4) and 108(2).