Treaties, States Parties and Commentaries
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Commentary of 1987 
Protection and care
[p.1407] Article 7 -- Protection and care

General remarks

4633 This article corresponds to the ICRC draft, reduced to expressing the fundamental principles of protection and care; it reiterates the four paramount [p.1408] principles which have defined the inviolability of the wounded ever since 1929: respect, protection, humane treatment and medical care. (1) In addition, the draft contained provisions prohibiting unjustified acts or omissions harmful to health and to the physical and mental integrity of people, in particular, mutilation and medical or scientific experiments. These points were not retained, but Article 4 ' (Fundamental guarantees), ' paragraph 2(a), Article 5 ' (Persons whose liberty has been restricted), ' paragraph 2(e), and Article 10 ' (General protection of medical duties), ' paragraph 2, provide all necessary guarantees in this respect.

4634 Article 7 follows the wording of Article 10 of Protocol I ' (Protection and care). ' Common Article 3 merely provides in paragraph 1, sub-paragraph (2), that "the wounded and sick shall be collected and cared for". Article 7 reaffirms and develops this fundamental rule and provides the keystone to the whole of this Part. In fact, the rights and obligations laid down in Articles 8 -12 follow from the principle that the wounded and the sick are entitled to immunity. They serve in effect to implement that principle.

Paragraph 1

4635 This paragraph recalls the principle of the respect and protection due to the wounded, sick and shipwrecked. The concepts of respect and protection are taken from the Conventions, the first concept having been introduced in the 1906 revision and the second concept in 1929. The verb "to respect" means "to spare, not to attack"; it is an obligation to abstain from any hostile act, to which is added the duty to protect. "To protect" means "to come to someone's defence, to lend help and support". (2) This implies taking measures to remove the wounded, sick and shipwrecked, if possible, from the scene of combat and shelter them, and to ensure that they are effectively respected, i.e., that no one takes advantage of their weakness in order to mistreat them, steal their belongings, or harm them in any other way. The duty to respect and protect is incumbent on everyone, both on the members of armed forces or armed groups and on the civilian population.

4636 What is meant by the phrase "wounded, sick and shipwrecked"? Protection of the wounded, sick and shipwrecked responds to a fundamental humanitarian requirement and was not cast into doubt in the context of drawing up rules to govern non-international armed conflicts; this is why it is possible to use the same definition of the wounded, sick and shipwrecked as the point of departure in the two Protocols. In the light of the negotiations it can be noted that the basic terminology is uniform. (3)

4637 In the absence of a provision of definitions, which was finally not adopted for Protocol II, (4) we refer to Article 8 ' (Terminology), ' sub-paragraph (a), of Protocol I, which defines the wounded and sick as follows:

[p.1409] ""Wounded" and "sick" mean persons, whether military or civilian, 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. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility." (5)

4638 The definition of the wounded and sick protected by this Part is based on two criteria:

1) requiring medical care;
2) refraining from any act of hostility.

4639 Any person, military or civilian, fulfilling these two conditions is included amongst the wounded or sick; maternity cases, new-born babies, the infirm and expectant mothers are examples thereof, but this is not an exhaustive list. Thus this definition differs from the usual meaning of the terms "wounded" and "sick". (6) In fact, a wounded or sick person who continued to fight would not be considered as such under the terms of the Protocol, and would consequently not be entitled to protection under this article.

4640 In the absence of a definition here, Article 8 ' (Terminology), ' sub-paragraph (b), of Protocol I, provides a guideline also for the interpretation of the concept of "shipwrecked":

""Shipwrecked" means persons, whether military or civilian, 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." (7)

4641 It is quite logical to consider that, as in the case of the wounded or sick, the shipwrecked in order to be entitled to protection must refrain from any act of hostility. In fact, it is difficult to imagine that a shipwrecked person who continued to fire from a rescue craft would be respected as such. A study of the deliberations of the Committee reveal that the concept of shipwrecked" covers not only those shipwrecked from a ship in distress, i.e., shipwrecked in the strict sense, but also for example, anyone in distress in the water who has come down from an aircraft or who has accidentally fallen overboard. The situation of danger must be the result of an accident. Persons who have voluntarily placed themselves in such a situation (such as a group of commandos consisting of frogmen, for example) are excluded from the definition. The Conference did not retain a proposal put forward during the deliberations aimed at including among the shipwrecked persons who are lost on land, in particular in deserts, and as a result get into a dangerous situation. The provision covers those shipwrecked at sea and "in other waters", i.e., lakes or rivers. The shipwrecked person is considered as such until [p.1410] the end of rescue operations. The Rapporteur of Committee II illustrated the reasons therefor very clearly by stating:

"It must be made clear that a shipwrecked person who was flown by helicopter, for instance, still had shipwrecked status during the flight: otherwise the flight would not be covered by the definition of medical transportation." (8)

4642 In a situation of non-international armed conflict people cannot acquire a different status to the same extent as in an international conflict, since there are not, strictly speaking, different categories of protected persons: "all persons who do not take a direct part or who have ceased to take part in hostilities" (9) are protected. Nevertheless, after the end of the rescue operation the shipwrecked are no longer considered as such, and, depending on the circumstances, will be protected under one or other of the rules of the Protocol. As the case may be, they will be wounded or sick within the meaning of this article, if their state of health requires care; (10) they will fall in the category of those detained or interned, if they have been captured by the adverse party, (11) or they may simply be civilians. (12) Protection is due to all the wounded, sick and shipwrecked, "whether or not they have taken part in the armed conflict". No distinction is made between members of the armed forces and civilians or according to whether they belong to the one party or the other concerned; the obligation to respect and protect is general and absolute.

Paragraph 2

4643 The wounded, sick and shipwrecked shall "in all circumstances [...] be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and
attention required by their condition".

4644 Humane treatment is a general principle which applies at all times and in all places; it follows from respect and protection. This is a reaffirmation in this particular context of the principle already contained in Article 4 ' (Fundamental guarantees), ' paragraph 1. (13)

4645 As regards medical care and attention, the expression "to the fullest extent practicable" was incorporated as a matter of realism, in order to take into account the means and personnel available. It is sometimes materially impossible to immediately provide the care and attention required. The obligation remains to provide it and to do so as well and as quickly as possible, given the circumstances.

[p.1411] 4646 No distinction founded on any ground other than medical ones may be made between patients, i.e., no 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 (hereinafter referred to as "adverse distinction") [...]" (14)

4647 The only factors allowed for giving priority in medical care and attention are matters of urgency and medical ethics.

' S.J. '

* (1) [(1) p.1408] Cf. ' Commentary I ', p. 135 (Art. 12);

(2) [(2) p.1408] Cf. ibid;

(3) [(3) p.1408] Cf. introduction to this Part, supra, p. 1403;

(4) [(4) p.1408] Ibid., p. 1403;

(5) [(5) p.1409] Cf. commentary Art. 8, sub-para. (a), Protocol I, supra, p. 116, and draft Art. 11, Protocol II, as drafted by the Committees (O.R. XIII, p. 275, CDDH/235/Rev.1);

(6) [(6) p.1409] See commentary Art. 8, sub-para. (a), Protocol I, supra, p. 116;

(7) [(7) p.1409] Cf. commentary Art. 8, sub-para. (b), Protocol I, supra, p. 118, and draft Art. 11, Protocol II, as drafted by the Committees (O.R. XIII, p. 275, CDDH/235/Rev.1);

(8) [(8) p.1410] Cf. O.R. XII, p. 264, CDDH/II/SR.79, para. 45;

(9) [(9) p.1410] Art. 4, para. 1, and the commentary thereon, supra, p. 1369;

(10) [(10) p.1410] Protected under the whole of Part III and in particular by the present Article 7;

(11) [(11) p.1410] Protected by Arts. 5 and 6; cf. the commentary thereon, supra, p. 1383 and p. 1395;

(12) [(12) p.1410] Protected by Arts. 4 and 13. See the commentary thereon, supra, p. 1367 and infra, p. 1447. In addition, for a detailed analysis of the situation of the shipwrecked in international conflicts, see commentary Art. 8, sub-para. (b), Protocol I, supra, p. 118;

(13) [(13) p.1410] Cf. commentary Art. 4, supra, p. 1367;

(14) [(14) p.1411] Art. 2, para. 1, and the commentary thereon, supra, p. 1358;