Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 35 : Protection of medical transports
Text of the provision*
(1) Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units.
(2) Should such transports or vehicles fall into the hands of the adverse Party, they shall be subject to the laws of war, on condition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain.
(3) The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Paragraph 1: Definitions and status
  • D. Paragraph 2: Military medical transports in enemy hands
  • E. Paragraph 3: Requisitioned civilian personnel and means of transport
  • Select bibliography
    A. Introduction
    2360  Article 35 sets out the legal regime applicable to medical transports on land used by the armed forces (hereinafter ‘military medical transports’).[1]
    2361  Article 35(1) deals with the status and protection of military medical transports, stating that they are governed by the same rules as mobile medical units. The second paragraph regulates what happens when these transports fall into enemy hands. The third paragraph stipulates that requisitioned civilian personnel and means of transport are subject to ‘the general rules of international law’.
    2362  In the context of the First Convention, the reference under Article 35(1) to the ‘wounded and sick’ must be understood to mean persons falling into the categories defined in Article 13(1), i.e. the wounded and sick belonging to the armed forces of a Party to the conflict or to groups affiliated with such forces. Thus, while care may be dispensed already on board such transports, the primary purpose of Article 35 is to regulate the status and protection of the transports used for conveying the wounded and sick to a place where they can receive medical treatment.
    2363  The protection of medical transports in this context is a logical corollary of, and functional support to, the First Convention’s primary objective, which is, as the Convention’s title indicates, ‘the amelioration of the condition of the wounded and sick in armed forces in the field’. In order to ensure the respect and protection due to the wounded and sick under Article 12 of the First Convention, it is necessary also to accord protection to the means of transport used to convey them to a treatment facility. One of the key principles of humanitarian protection of the wounded and sick is that they and the required medical personnel and equipment be transported as quickly as possible to a place where they can receive care. The use, therefore, of medical transports is an essential component of casualty evacuation and treatment.[2] Military medical transports are thus protected on account of the functions they perform. The protection of the wounded and sick would be seriously diluted if analogous protection were not extended to the assets assigned exclusively, on a permanent or temporary basis, to their transport and/or to the transport of the medical personnel and equipment needed for their care.
    2364  Article 35 is part of a series of specific provisions in the 1949 Geneva Conventions and their 1977 Additional Protocols regulating and protecting medical transports in international armed conflict. The Second Convention sets down rules for specific types of medical transports at sea, such as hospital ships, coastal rescue craft and ships chartered for the transport of medical equipment.[3] Article 21 of the Fourth Convention regulates ‘[c]onvoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians’. Using the term ‘medical vehicles’ (defined in Article 8(h) of the Protocol as ‘any medical transports by land’), Article 21 of Additional Protocol I states that they ‘shall be respected and protected in the same way as mobile medical units under the Conventions and [the] Protocol’. Lastly, the requirement to ‘respect and protect’ medical transports has been found to reflect customary international humanitarian law.[4]
    2365  For the protection of medical transports in non-international armed conflict, see the commentary on common Article 3, section H.
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    B. Historical background
    2366  The treaty-based protection of means of transport used for the benefit of wounded or sick combatants goes back to the beginnings of contemporary international humanitarian law: the original Geneva Convention of 1864 stipulated that ‘[a]mbulances … shall be recognized as neutral, and, as such, protected and respected by the belligerents’. However, in this initial formulation, the requirement only applied ‘as long as [the ambulances] accommodate [the] wounded and sick’.[5]
    2367  The 1906 Geneva Convention contained a detailed provision dealing with what were called at the time ‘convoys of evacuation’.[6] Since then, military medical transports have been granted protection irrespective of whether or not they actually have wounded or sick persons on board. As is the case with the current formulation in Article 35, Article 17 of the 1906 Convention also stated that the legal regime applicable to ‘mobile sanitary formations’ applied to such ‘convoys of evacuation’. Furthermore, this provision contained rules substantively similar to paragraphs 2 and 3 of the present article.
    2368  The 1929 Geneva Convention on the Wounded and Sick provided detailed regulations for ‘[v]ehicles equipped for the evacuation of [the] wounded and sick’.[7] While under Article 22 of the Second Convention the term ‘equipped’ still figures among the definitional requirements for a vessel to qualify as a hospital ship, it has been dropped from Article 35 in relation to military medical transports on land. This leaves the Parties to a conflict with significant flexibility with regard to the vehicles which may, at some point, be assigned exclusively to medical transportation.
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    C. Paragraph 1: Definitions and status
    1. Definitions
    a. Transports
    2369  While the first paragraph of Article 35 speaks of ‘transports’, the second refers to ‘transports or vehicles’. Neither of these terms is defined in the First Convention. As can be deduced from other provisions in the Geneva Conventions and Additional Protocol I, Article 35 is limited to land-based convoys and vehicles used by the armed forces, be it by their medical service or a combat unit, or by an aid society operating on the basis of Article 26 or 27. Transports covered by this provision may, but need not, be the property of the aforementioned categories; they may also, for example, have been rented or leased.
    2370  For the purposes of Additional Protocol I, ‘medical vehicles’ is defined as ‘any medical transports by land’. In turn, ‘medical transports’ is defined as ‘any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a Party to the conflict’.[8] The terms ‘permanent’ and ‘temporary’ are similarly defined for the purposes of Protocol I.[9] Today, these definitions are viewed as authoritative when considering which objects may qualify as ‘transports or vehicles’ in the sense of Article 35.[10] For an analysis of the criterion of ‘assigned’ in relation to military medical assets, and what is required for them to have been ‘exclusively’ so assigned, see the commentary on Article 19(1), paras 1786–1791.
    2371  Article 35 does not specify which persons may use the transports qualifying for protection. Within the context of the First Convention, these are limited to permanent and auxiliary medical personnel of the armed forces or the personnel of voluntary aid societies falling within the scope of Article 26 or 27. Thus, if combatants were to operate medical transports, it would compromise the protection of those transports.
    2372  Article 35 covers all vehicles of any type, as long as they are assigned exclusively to the transportation of the wounded and sick or of medical equipment and are not specifically covered by another provision of the Geneva Conventions (such as medical aircraft, dealt with under Article 36, or the various categories of vessels which are protected on the basis of the Second Convention). Accordingly, transports falling within the scope of this article may include automobiles, trucks, trains, motorcycles, small all-terrain vehicles and inland boats. They need not be motorized and can travel either individually or in convoy.
    2373  Technological advances may in the future result in new types of transports falling within the scope of Article 35. For example, it is increasingly likely that States will develop and employ unmanned ground and/or air medical evacuation vehicles that are either remotely controlled or autonomous to collect and transport wounded and sick personnel. As long as they meet the requirement for protection set forth in Article 35 (i.e. being assigned exclusively to medical transportation), there is no reason to exclude such transports from the scope of Article 35. Their protection can only contribute to the humanitarian objectives of the Convention.
    2374  Unlike under Article 17 of the 1929 Geneva Convention on the Wounded and Sick, medical transports are covered by Article 35 even when they have not been specifically ‘equipped’ for that purpose. Indeed, as the operational situation and casualty evacuation needs may require the use of any available transport asset for medical purposes, a restrictive definition of a medical transport would be contrary to the purpose of the article and to the overall humanitarian objectives of the Convention. Only medical transports specifically protected by other treaty provisions are excluded from the scope of Article 35. This means that vehicles and other transports normally performing a combat or combat-support function may be assigned, even on a temporary basis, to medical transportation. Once they are assigned to such transportation, however, they need to be exclusively engaged in such function. Conversely, the moment they cease to have a medical function, they lose their protected status. A change of status will also have implications for a medical transport’s entitlement to display the distinctive emblem.[11]
    2375  Military medical transports covered by Article 35 are different from ‘mobile medical units of the Medical Service’ covered by Article 19. While they enjoy the same protection on the battlefield, the distinction matters once they have fallen into enemy hands.[12] For a discussion of the difference between the two categories, see the commentary on Article 19, paragraph 1782. In this context, since military medical transports may contain on-board treatment facilities, the guiding principle is that the differentiation takes place on the basis of the more dominant element: the transport element in principle prevails in the case of ‘transports’, while the possibility of administering care prevails in the case of ‘mobile medical units’. This guiding principle may not solve all cases: if in doubt as to the qualification of an object which has fallen into their hands, Parties to the conflict should presume that the object in question is a mobile medical unit, unless objective information clearly exists to the contrary.[13]
    2376  ‘Medical transports’ is a broad term and is intended to cover all vehicles permanently or temporarily employed for such use,[14] whether operating in isolation or in medical convoys, or integrated into non-medical convoys. This is only logical, as tactical and operational considerations will invariably influence the employment of vehicles to transport the wounded and sick and/or medical equipment.[15] Thus, it is the purpose for which the vehicle is used, and not its location or proximity to other military or medical assets, that entitles it to protected status.
    2377  In all instances, two cumulative conditions must be met in order for a medical transport to be entitled to protection under Article 35: first, the assignment to medical transportation must be exclusive;[16] and second, the transport must be under the control of a competent authority, which, in the context of the First Convention, will be the armed forces or an aid society operating on the basis of Article 26 or 27.[17] Displaying the emblem, however, is not a prerequisite for protected status.[18]
    2378  Transports permanently designated or equipped as ambulances will not always be readily available, which makes it virtually inevitable that other vehicles will be used temporarily for medical transport. Thus, Article 35 anticipates the use of vehicles that would, prior to and upon completion of a medical transport mission, qualify as military objectives. The use of such vehicles is permissible under this article. As long as these vehicles are exclusively engaged in medical transport, they are, for the duration of their use in this capacity, to be respected and protected.
    2379  Any interpretation that would limit the protection to ‘permanent’ medical transport would be inconsistent with the purpose of the article and of the general humanitarian spirit of the First Convention. Such an interpretation would prevent armed forces from using any available vehicle, on a temporary basis, to transport the wounded and sick, which, in the absence of permanent medical transports, could prolong the suffering of victims of an armed conflict.
    2380  Accordingly, Article 35 covers all vehicles assigned exclusively to medical transportation, whether on a permanent or temporary basis. The notion of ‘permanent’ does not mean that a medical transport vehicle may never be converted to a non-medical use. It does suggest, however, that the primary and intended use of the vehicle will be exclusively for medical purposes for an indefinite period of time. An example of such a vehicle would be an ambulance specifically equipped to transport casualties. In contrast, ‘temporary’ does indicate use in a medical transport capacity at least for a defined, albeit possibly short, period of time. An example of such use would be a military truck assigned on a one-off basis to transport casualties from an area of engagement to a mobile medical unit. However, the Parties to the conflict must keep in mind that the more occasional the use of such vehicles – with or without special markings – the greater the risk they will be mistaken by enemy forces for lawful objects of attack.[19] Temporary use of a vehicle for medical transport must be distinguished from what is pragmatically characterized as a ‘mixed’ transport mission, i.e. use of a vehicle simultaneously for both a combat or combat-support function and for transporting casualties. Since, in this case, the vehicle is not ‘exclusively’ engaged in a medical transport function, it does not qualify for protection. Accordingly, it is the ‘exclusive’ nature of the medical transport mission, even if for a short duration, that triggers the protection of this article. In the same vein, it remains possible to use combat vehicles to transport the wounded and sick. Absent their being exclusively engaged in medical transport, they do not qualify for protection either.[20]
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    b. Wounded and sick
    2381  In the context of the First Convention, the term ‘wounded and sick’ should be understood as referring to persons belonging to the categories covered by Article 13, i.e. wounded or sick members of the armed forces of a Party to the conflict and members of groups affiliated with them. However, in line with the logic of Article 22(5) with regard to military medical units and establishments, if the humanitarian activities of medical transports covered by Article 35 happen to extend to the transport of wounded or sick civilians, it would not deprive these transports of their protected status. Such transport should not, however, be their primary purpose. If the transport of civilian battlefield casualties is the primary purpose of the vehicle, the appropriate legal provision, as far as the 1949 Geneva Conventions are concerned, is Article 21 of the Fourth Convention dealing specifically with ‘[c]onvoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases’. It is also worth noting that Additional Protocol I renders irrelevant the distinction between the transportation of ‘military’ or ‘civilian’ wounded or sick persons.[21]
    2382  While not explicitly mentioned in Article 35, it is in line with the object and purpose of the First Convention that military medical transports carrying dead persons also qualify for protection.
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    c. Medical equipment
    2383  The 1929 Geneva Convention mentioned only ‘[v]ehicles equipped for the evacuation of [the] wounded and sick’. This could have been taken to mean that vehicles that carried only medical material were not protected. However, Article 35 is clear on the matter, as it refers expressly to ‘[t]ransports of [the] wounded and sick or of medical equipment’.
    2384  Although not defined in Article 35, medical equipment includes drugs, bandages, medical instruments, stretchers and other supplies needed for the care of the wounded and sick.[22] The logic of extending humanitarian protection to transports carrying such items is obvious,[23] as they are essential for the care of all wounded and sick persons falling under the protection of international humanitarian law.
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    2. Status
    a. Obligation to respect and protect
    2385  Transports qualifying as military medical transports on the basis of Article 35 ‘shall be respected and protected in the same way as mobile medical units’. By these words, Article 35 declares Article 19(1), first sentence, and 19(2) applicable mutatis mutandis to military medical transports.[24] This means that they ‘may in no circumstances be attacked, but shall at all times be respected and protected’.
    2386  As flows from the phrase ‘at all times’, this requirement applies also at moments when no wounded or sick persons are in the transports. However, the requirement to ‘respect and protect’ military medical transports is without prejudice to the entitlement of the Parties to the armed conflict to exercise control rights, for example through a search. The exercise of such rights, however, may not lead to the care of the wounded and sick being jeopardized.[25]
    2387  Of particular relevance when it comes to the interpretation of the ‘protect’ component of this requirement is that Parties to the conflict may not unduly hold up, obstruct the passage of, or otherwise prevent military medical transports from fulfilling their task.[26] They must also actively ensure and enforce respect by any third parties that may seek to unjustifiably interfere with medical transports.[27]
    2388  The obligation to respect transports protected on the basis of Article 35 will be violated if belligerent reprisals are directed against them.[28] In this context, it bears recalling that transports covered by Article 35 are protected objects under the First Convention. Therefore, the acts listed in Article 50, if committed against these transports, may qualify as a grave breach of the Convention.
    2389  The fact that transports covered by Article 35 ‘shall be respected and protected in the same way as mobile medical units’ entails that the same rules apply to their loss of protection if they are used, outside their humanitarian function, to commit an act harmful to the enemy. What qualifies in this case as ‘harmful to the enemy’ is inherently fact-specific. However, it is fairly clear that using such vehicles in a capacity inconsistent with their exclusively medical transport function will in many (though not necessarily all) cases qualify as an act harmful to the enemy. Examples of acts harmful to the enemy include the transport of weapons and ammunition (other than weapons or ammunition taken from the wounded and sick occupants of the vehicle and not yet handed over to the proper service) or the use of the vehicle as a mobile military command post or as a base from which to launch an attack. Depending on the circumstances, and provided the constitutive requirements have been met, engaging in any of the foregoing may also qualify as prohibited perfidy, improper use of the distinctive emblem or use of a medical transport in an attempt to shield a military objective from attack.[29]
    2390  In contrast, the fact that the availability of such vehicles mitigates the need to use temporarily as medical transports other vehicles normally providing combat support, thereby giving an opponent a tactical benefit, does not qualify as an act harmful to the enemy. Between the two extremes are many potential variables. For example, a military medical transport may be located in a position that functionally impedes forces engaged in hostilities and thereby provides a benefit to the force to which the vehicle belongs. Whether this is an ‘act harmful to the enemy’ would depend on how and why the transport is in that position. In many cases, it might be merely incidental to the performance of the transport’s legitimate humanitarian function. Ultimately, the Parties to the conflict must have a reasonable basis before concluding that a military medical transport has forfeited the protection provided by this article. Even acts which, legally speaking, do not qualify as harmful to the enemy yet which constitute misuse of the military medical transport, may lead, in practice, to perception problems when it comes to the belligerents’ willingness to respect their legal status, thereby diluting the functional protection afforded to all properly marked medical transports.[30]
    2391  Where it is established that a vehicle covered by Article 35 is being used, outside its humanitarian function, for the commission of an act harmful to the enemy, the same constraints as those outlined in section C.2 of the commentary on Article 21 apply (warning, time limit, etc.). In particular, regard must be had for the measures which have to be taken to spare, as far as possible, the wounded and sick who may suffer from such an attack.
    2392  There is one exception to the logic of extending, mutatis mutandis, the rules governing mobile medical units to military medical transports: when the latter fall into enemy hands, Article 35(2) provides for different, and less protective, regulation than that applicable to mobile medical units in similar circumstances (Article 19(1), second sentence).[31]
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    b. Arming of military medical transports
    2393  The question of whether arms may be mounted on medical transports must be distinguished from the question of whether they may be armoured.[32] The latter is generally permitted because it is a purely deflective means of defence.[33]
    2394  Article 35 does not specify whether military medical transports covered by this provision may be armed and, if so, with which types of weapons without losing their protection under the Convention. This question should be seen as distinct from that concerning the possibility of the personnel operating those transports being armed, which is addressed in other provisions of the Convention and Protocol I.[34] The reality is that operational considerations may necessitate measures to protect medical transports from unlawful attack. Accordingly, if, when and how military medical transports may be armed must be assessed on a case-by-case basis.[35]
    2395  Within certain limits, medical units and establishments are permitted to be armed and to use their weapons, but only for self-defence or for the defence of the wounded and sick in their charge.[36] As under Article 35 military medical transports are afforded the same protections as mobile medical units, permission to use arms in similar circumstances logically extends to them too. Given that medical transports must travel through areas that are often more volatile than those where mobile medical units are located, they may have an even more compelling need to act in self-defence and/or the defence of their wounded and sick occupants against unlawful attack.
    2396  As already noted, Article 35 is silent on this issue. Article 22 does not address the arming of medical transports, only the arming of the personnel of military medical transports. As a result, resolution of the issue is based on analogy with the authority to use weapons to protect mobile medical units. Because there is no internationally accepted categorization of weapon systems, it is difficult to identify, in concrete terms, any clear categories of permissible versus impermissible armaments that may be used for the legitimate and limited purpose of defending a military medical transport against unlawful attack.
    2397  As a general rule, however, only ‘light’ weapons may be mounted on military medical transports. While the nature of the anticipated threat will certainly influence the type of defensive armament used, mounting heavy weapons, sometimes referred to as ‘crew served’ (meaning they require a team of at least two people to operate them), is inconsistent with the protected status of such transports.[37] Whether every belt-fed machine gun falls into this category is uncertain, as some light, belt-fed machine guns are individually operated. Ultimately, in the light of these strictly defensive purposes and also to avoid the perception that a medical transport, displaying the distinctive emblem, is armed in a manner beyond that necessary for its self-defence, a narrow interpretation of what constitutes a ‘light’ versus ‘heavy’ weapon is called for: the larger the weapon system, the greater the risk that its presence on the vehicle could lead an adversary to conclude that the transport may be engaged in ‘acts harmful to the enemy’, and thus no longer be entitled to protection. The nature of the display of the weapons, in other words, must not be such as to lead the enemy to believe that the medical transport is equipped with non-defensive weaponry.[38] In short, it must be ensured that transports protected by Article 35 are not armed to an extent that they can be perceived as being capable of inflicting harm on the adversary because this would amount to an act the purpose or effect of which is to facilitate or impede the military operations of a Party to the conflict. Otherwise, there is a risk of their being mistaken for ‘fighting vehicles’.[39]
    2398  Where a commander anticipates general compliance with international humanitarian law and respect for the medical mission and the distinctive emblem, limiting armaments to light weapons carried by the crew members of the military medical transport would be appropriate, as the anticipated threat to the transport would be minimal.
    2399  There may be situations where military medical transports are at particular risk of unlawful attack. In these cases, there may be a genuine need to employ suppressive fire against the attacking force at a range beyond the capability of light individual weapons. Nevertheless, the paramount concern in such situations should be the preservation of respect for the medical mission, for the wounded and sick, and in particular, if used, for the distinctive emblem. For that reason, it would not be appropriate to mark a heavily armed medical transport with the distinctive emblem. When they wish to mount heavy weapons on a military medical transport, commanders must order the distinctive emblem removed or fully concealed.[40] Nothing precludes such an unmarked and heavily armed vehicle, which will not be entitled to the protection of the Convention, from being subsequently embedded in a tactical convoy that includes other vehicles capable of responding to an attack with effective combat power.
    2400  As some military transports may be assigned temporarily to medical transportation, it may not always be feasible to remove mounted weapons. Where it is not considered necessary to protect the transport, the weapon should not be left mounted on the vehicle merely because removal would be considered inconvenient. However, where the time needed to remove it would interfere with the legitimate medical transport mission of a vehicle temporarily used for that task, and thereby place the wounded and sick in greater jeopardy by delaying their evacuation and treatment, proceeding with the existing armament may be necessary. If the vehicle is marked with the distinctive emblem, this may raise concerns that it is being misused, and therefore any emblem should be removed or concealed. The nature of a combat vehicle may lead to the conclusion that it should not be marked with the distinctive emblem, even if temporarily used exclusively for medical transport. For example, it would be hard to accept the marking of a tank temporarily being used as a medical transport, the risk being too great that the opposing side would perceive it as an improper use of the distinctive emblem. Beyond such extremes, however, the nature of the arming of medical transports must be dictated by considerations such as mission, threat and available transport.
    2401  There is no doubt that the improper use of any weapon would cause the transport to forfeit the protection provided by this article. Whatever their nature, weapons may be used only to defend the medical transport and/or the wounded and sick from unlawful attack, as is the case for those assigned to the protection of medical establishments.
    2402  Like mobile medical units, military medical transports are subject to capture by the enemy and must submit to lawful enemy control (for example at a checkpoint) without resistance. Article 35(2) regulates the fate of military medical transports if they fall into enemy hands. Even if armed, the crew of the vehicle may not use force to prevent such capture, unless they are subject to unlawful attack, in which case they may use force to defend the wounded and sick in their charge. Resistance in other circumstances would render the vehicle and personnel open to lawful attack by the enemy and potential criminal sanction, for example for improper use of the emblem. The prohibition on using force to resist lawful capture includes firing on an enemy attempting to force the transport to cease movement. Refusing to heed a warning issued by the enemy to cease an act harmful to the enemy outside their humanitarian function (such as transporting troops, carrying military supplies, or failing to stop moving across a designated area) will result in forfeiture of the protection provided by this article and may justify an attack against the vehicle, if the vehicle constitutes a lawful target.[41]
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    c. Display of the distinctive emblem
    2403  Article 35 does not say whether the transports covered by its provisions may or may not display the distinctive emblem. In the First Convention, this issue is regulated by Article 39: ‘Under the direction of the competent military authority, the emblem shall be displayed on the flags, armlets and on all equipment employed in the Medical Service.’[42] Military medical transports fall within the term ‘equipment’ as used in Article 39.[43] Moreover, as flows from the reference to ‘in the same way as mobile medical units’ in Article 35(1), Article 42 also applies to military medical transports with regard to the display of the distinctive emblem. It must be recalled that the distinctive emblem is only intended to facilitate identification and does not, in and of itself, confer protected status.[44]
    2404  In order to ensure military medical transports receive the respect and protection due to them under Article 35, Parties to a conflict should strive always to mark them with the distinctive emblem for the entire duration of their being assigned exclusively to medical transportation. Such marking is the only sure and effective method of informing the enemy of the vehicle’s protected status. This approach derives from the very purpose of the emblem: to ensure that protected persons and objects are identifiable and spared from attack during hostilities.
    2405  On the other hand, there is no rule against using a vehicle to transport the wounded and sick and/or medical equipment without it being marked with the distinctive emblem. The emblem, therefore, may be removable.[45] Indeed, there may be situations where a commander determines, based on the information reasonably available to him or to her at the time, that the removal or concealment of the distinctive emblem on a vehicle assigned temporarily or permanently to medical transportation is essential for tactical reasons. This may be the case, for example, when the medical transport is part of a military convoy attempting to avoid enemy observation or when enemy forces make a point of attacking transports marked with the emblem. In such circumstances, there may be reason to believe that the medical transport will be better protected if it is not marked with the distinctive emblem. In such exceptional cases, removing or concealing the emblem is permissible.
    2406  It must be acknowledged that while military medical transports not marked with the emblem remain protected, it will often be very difficult for the opposing Party to distinguish them from other military vehicles, increasing the risk that the vehicle will be subject to attack. This risk may be particularly acute when the medical vehicle operates in close proximity to military objectives. The Party using a medical transport that does not display the distinctive emblem therefore accepts the risk that the vehicle may find itself attacked. Provided the attack complies with all the other requirements flowing from the applicable law on the conduct of hostilities, it will be lawful. The attack will be unlawful, however, if and as soon as the attacking Party knows, or has reason to know, that the vehicle is exclusively engaged in a medical transport function, an unlikely but not impossible scenario.
    2407  Although there were good reasons for introducing the principle of a distinctive emblem that can be removed, the risk of abuse of the emblem has certainly increased as a result. After the wounded have been taken to the rear under the protection of the distinctive emblem, it may be tempting to load the empty vehicles returning to the front with war material. If the emblem then remains on the loaded vehicles, this constitutes an improper use of the emblem (and hence prohibited on the basis of Article 38 of Additional Protocol I), even if the sign has simply been left on through negligence or because there has been no time to remove or conceal it. Parties to a conflict must therefore be constantly vigilant in ensuring that the distinctive emblem is immediately removed or concealed whenever a vehicle used for medical transport is no longer exclusively employed for that purpose.
    2408  The same rules and considerations apply to temporary military medical transports: normally, it will be necessary to mark the vehicle visibly with the distinctive emblem so that the enemy is aware of its temporary use as a medical transport and thus of its protected status. It is also essential to remove or conceal such markings as soon as the temporary medical use ceases.
    2409  No matter how the enemy is made aware of a military medical transport’s temporary use – by it being marked with the distinctive emblem or possibly through recognition of its exclusive medical transport purpose – the fact that the vehicle was previously, and may again in the future, be used in a capacity subjecting it to lawful attack may not be used as a pretext for attacking it or for taking any other unlawful action short of attack. Any such action would violate the protection afforded to medical transports and cannot be justified by military necessity. Article 35 reflects the view of the States party to the Convention that no military advantage can be derived from attacking transports abiding by all applicable law in maintaining and making known their protected status.[46]
    2410  It must be kept in mind at all times that, under the ICC Statute, it is a war crime in both international and non-international armed conflict to ‘[i]ntentionally direc[t] attacks against … medical … transport using the distinctive emblems of the Geneva Conventions in conformity with international law’.[47]
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    D. Paragraph 2: Military medical transports in enemy hands
    2411  Article 35(2) regulates the fate of military medical transports which have fallen into enemy hands. This paragraph applies irrespective of the circumstances in which these transports fell into enemy hands. Thus, included in its scope of application are the capture of military medical transports or the surrender of their crew.
    2412  The paragraph applies only to the medical transports used by the armed forces proper and not to those of voluntary aid societies acting on the basis of Article 26 or 27. Under the special provision set down in Article 34 and in common with all other material belonging to these societies, the latter are to be considered as private property and, accordingly, are exempt from capture. However, to maintain their protected status, they must abide by the applicable law in all instances.
    2413  As for medical transports employed by the armed forces medical service, the 1949 Diplomatic Conference recognized their military importance in modern warfare and the value of converting them to military use by the Party into whose hands they have fallen. Such military use may, in addition, have been their primary function prior to being assigned to medical transportation. Accordingly, the provision that military medical transports ‘shall be subject to the laws of war’ means that they – like the material of fixed medical establishments covered by Article 33 but unlike mobile medical units covered by Article 19(1) – may be treated in the same way as any other equipment subject to the laws of war. Thus, once captured, military medical transports become booty of war, and the property title passes to the Power into whose hands they have fallen. Consequently, they may be disposed of (even destroyed) or converted to use by the capturing Power.[48] Notably, such use need not be limited to medical transport, but may extend to any function whatsoever, including combat. However, if a medical transport is used for another purpose, such as military transport, the distinctive emblem must be immediately removed or concealed.[49]
    2414  A military medical transport may not be captured and retained unless the capturing force can ensure that its wounded and sick occupants receive the necessary treatment and care in accordance with the non-discrimination principle. The wording ‘ensure the care of’ must be interpreted as safeguarding the inalienable rights of the wounded and sick: they must receive adequate care and the treatment required by their state of health; and they must not suffer any adverse consequences of the impounding of the vehicles. The Party to the conflict into whose hands the military medical transport has fallen remains bound by the provisions of Article 12 on respect for and protection of the wounded and sick.
    2415  If, for any reason, the capturing force is unable to provide the wounded and sick with the care they require, it must allow the medical transport to pursue its journey and return to its own lines. Moreover, the words ‘the wounded and sick they contain’ must be interpreted broadly to cover all the wounded and sick whose health depends on the transport, including casualties that will be stranded or abandoned if the medical transport is unable to complete its mission. In other words, the capturing force is prohibited from retaining the medical transport if it is incapable of providing care not only of the wounded and sick on board at the moment of capture. Arguably, in view of the purpose of the First Convention, the same considerations should apply as long as the needs of the wounded and sick awaiting collection by that vehicle have not first been taken care of.
    2416  Article 35 deals only with the disposal or use of the vehicles themselves when they fall into enemy hands. Should the transports be carrying wounded and sick people, medical personnel or medical material, other rules of international humanitarian law apply. When it comes to determining the status of medical personnel when they fall into enemy hands, the rights of the capturing Power in this respect (for example the retention of enemy medical personnel on the basis of Article 28) are subject, however, to the same limitation as in respect of the vehicles: they may be exercised only if the captor ensures the care of the wounded and sick occupants of the transport. If the inability to provide the necessary care of the wounded or sick occupants prohibits retention of the transport, it is self-evident that the crew must also be permitted to remain with the vehicle, as it would be incapable of performing its humanitarian mission without the services of its operators. The safeguards laid down in the Convention would then become void of any meaningful effect.
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    E. Paragraph 3: Requisitioned civilian personnel and means of transport
    2417  Article 35(3) states that ‘[t]he civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law’. The same rule, with identical wording, appeared as Article 17(6) of the 1929 Geneva Convention on the Wounded and Sick. The interpretation of this sentence, which does not seem to have led to any reported application in practice or been the object of any analysis in the literature, is not clear.
    2418  The assumption which seems to underpin this paragraph is the eventuality that a Party to an international armed conflict lacks sufficient military medical transports and/or qualified personnel to operate them and therefore decides to requisition civilian personnel or civilian means of transport. When this occurs, this article suggests that the fate of civilian personnel and means of transport is governed by the general rules of international law. What those ‘general rules of international law’ are is not further clarified in the article. While this approach has the advantage of allowing for international law to evolve on the matter, it renders the task of the commentator or operational legal adviser all the more difficult.[50]
    2419  A scenario in which the paragraph could play a role is when a State would, on the basis of its domestic law, wish to requisition the property or services of persons under its jurisdiction. Through the reference to ‘the general rules of international law’, it is clear that any applicable human rights law protecting persons in this case must be complied with.
    2420  Clearly, the paragraph may also have a role to play in occupied territory, where the Occupying Power may wish to requisition civilian personnel or civilian means of transport. Based on the law of occupation, an Occupying Power is entitled to requisition civilian means of transport or the services of civilian personnel if required to meet the needs of its armed forces. In that case, the reference in Article 35(3) to the ‘general rules of international law’ is to Articles 52 and 53(2) of the 1907 Hague Regulations. Article 52 of the Regulations provides in relevant part that ‘[c]ontributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible’. According to Article 53(2) of the Regulations, means of transport must be restored and compensation fixed when peace is made.
    2421  Where an Occupying Power wishes to requisition the property of aid societies which are admitted to the privileges of the Convention (i.e. those operating on the basis of Article 26 or 27), it must comply with the conditions set down in Article 34(2).
    2422  The question could be asked whether the more stringent conditions of Article 34(2) apply to requisition undertaken on the basis of Article 35(3). There is no clear textual basis for answering this question in the affirmative. However, in the light of the object and purpose of the First Convention, the Occupying Power is advised, also in this instance, to requisition civilian personnel and civilian means of transport only ‘in case of urgent necessity, and only after the welfare of the wounded and sick has been ensured’.[51] This would be in line with the conditions set down in Article 57 of the Fourth Convention for an Occupying Power to requisition civilian hospitals.
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    Select bibliography
    Breitegger, Alexander, ‘The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 83–127.
    Cassese, Antonio, ‘Under What Conditions May Belligerents be Acquitted of the Crime of Attacking an Ambulance?’, Journal of International Criminal Justice, Vol. 6, No. 2, 2008, pp. 385–397.
    Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume 1: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1.
    ICRC, Ambulance and Pre-hospital Services in Risk Situations, ICRC, Geneva, 2013.
    Langdon, J.B.R.L, Rogers, A.P.V. and Eadie, C.J., ‘The use of transport under the additional protocols 1977’, in Hazel Fox and Michael A. Meyer (eds), Effecting Compliance – Armed Conflict and the New Law, British Institute of International and Comparative Law, London, 1993, pp. 177–193.
    Schöberl, Katja, ‘Buildings, Material, and Transports’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 825–838.
    Spieker, Heike, ‘Medical Transportation’, version of March 2013, in Rüdiger Wolfrum, Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.

    1 - Paragraphs 1 and 3 of Article 35 also apply to medical transports used by voluntary aid societies acting as auxiliaries to the armed forces medical service on the basis of Article 26 or 27; however, that arrangement has rarely occurred in practice since 1949. For details, see the commentaries on Article 26, section F, and Article 27, para. 2116. Article 35(2) does not apply to such transports; see para. 2412.
    2 - For example, the United States, Medical Evacuation Manual, 2007, para. 1-15, provides: Ensure that medical evacuation assets are in close proximity to supported elements to enhance response time, increase Soldier confidence and be a combat multiplier. This is accomplished by complementing organic medical evacuation assets with medical evacuation assets placed in DS [Direct Support], GS [General Support], and area support roles.
    3 - See Second Convention, Article 22 (hospital ships), Article 27 (coastal rescue craft) and Article 38 (ships chartered for the transport of medical equipment).
    4 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 29.
    5 - Geneva Convention (1864), Article 1.
    6 - Geneva Convention (1906), Article 17.
    7 - Geneva Convention on the Wounded and Sick (1929), Article 17.
    8 - Additional Protocol I, Article 8(g) (‘medical transports’) and (h) (‘medical vehicles’). See also Article 8(f), which defines the overarching notion of ‘medical transportation’.
    9 - Additional Protocol I, Article 8(k).
    10 - See Henckaerts/Doswald-Beck, commentary on Rule 29, p. 100, ‘Definition of medical transports’, with references to military manuals.
    11 - For details, see section C.2.c.
    12 - Compare the second sentence of Article 19(1) with Article 35(2).
    13 - For an explanation of why the rule governing mobile medical units in enemy hands confers more protection than the rule governing military medical transports in enemy hands, see paras 2412–2413.
    14 - Langdon/Rogers/Eadie, p. 181. See also Additional Protocol I, Article 8(k).
    15 - See e.g. United States, Medical Evacuation Manual, 2007, para. 1-10, which provides: ‘The location of medical evacuation assets in support of combat operations is dictated by orders and the tactical situation (mission, enemy, terrain and weather, troops and support available, time available, and civil considerations.’
    16 - See also the definitions of ‘permanent’ and ‘temporary’ in Article 8(k) of Additional Protocol I.
    17 - Today, these requirements, set down in Article 8(g) of Additional Protocol I, are viewed as authoritative for the purpose of interpreting what qualifies as ‘transports of wounded and sick [persons] or of medical equipment’ in the sense of Article 35; see para. 2370.
    18 - For details, see the commentary on Article 39, para. 2578.
    19 - See Langdon/Rogers/Eadie, p. 182.
    20 - United States, Medical Evacuation Manual, 2007, Section III, ‘Medical evacuation versus casualty evacuation’, para. 1-27: ‘Medical evacuation is performed by dedicated, standardized evacuation platforms’; para. 1-31: ‘Casualty evacuation is a term used to refer to the movement of casualties aboard nonmedical vehicles or aircraft’; and para. 1-33: ‘Since [casualty evacuation] operations can reduce combat power and degrade the efficiency of the [army health system], units should only use [casualty evacuation] to move Soldiers with less severe injuries when medical evacuation assets are overwhelmed.’
    21 - See Additional Protocol I, Articles 8 and 21.
    22 - In relation to the display of the distinctive emblem, Article 39 speaks of ‘all equipment employed in the Medical Service’. For details, see the commentary on that article, section B.3.
    23 - See Langdon/Rogers/Eadie, p. 182. See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for the Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague, 1982, p. 101.
    24 - There is only one difference, pertaining to what may be done with mobile medical units and medical transports, respectively, when they fall into enemy hands; see para. 2412–2413.
    25 - See Spieker, para. 9.
    26 - ICRC, Ambulance and Pre-Hospital Services in Risk Situations, p. 17. See also Breitegger, pp. 114–115.
    27 - See Spieker, para. 11.
    28 - See also Article 46.
    29 - On conduct which qualifies as prohibited perfidy, see the first sentence of Article 37(1) of Additional Protocol I. For proper and improper use of the distinctive emblem, respectively, see Article 39 of the First Convention and Article 38(1) of Additional Protocol I. As to the prohibition on shielding a military objective from attack, see Article 12(4) of Additional Protocol I.
    30 - ICRC, Ambulance and Pre-Hospital Services in Risk Situations, p. 16: [M]isuse can also take less serious forms and the reasons for it may not always be military: even these form[s] of misuse can have serious consequences in terms of public perceptions, effectiveness and security. For instance, ambulances can be misused as personal vehicles for hospital directors or managers, as taxis, or to carry goods. When that happens, they fall under suspicion and are, at best, subjected to delays and obstructed or, at worst, become objects of attack.
    31 - See para. 2412–2413.
    32 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 71, defining ‘armour’ as ‘the tough metal layer covering a military vehicle or ship’.
    33 - See Breitegger, p. 112.
    34 - For a discussion, see the commentaries on Article 24, paras 2005–2006, Article 26, section E, and Article 27, section C.2. See also Additional Protocol I, Article 13(2).
    35 - For an overview of the type of considerations which may inform this decision, see ICRC, Ambulance and Pre-Hospital Services in Risk Situations, pp. 35–38, under the heading ‘The question of personal protective equipment (PPE) should be analysed by country and/or context and proper training provided.’
    36 - See the commentary on Article 22(1), section C.1.
    37 - See Breitegger, p. 112: ‘[N]o armaments could be mounted that could potentially be used in an offensive fashion. On the other hand, purely deflective means of defence, such as chaff, infrared flares or jammers, may be permissible.’
    38 - See the commentary on Rule 74(c)(i) of the 2009 Manual on International Law Applicable to Air and Missile Warfare, p. 217. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 170.1, if transposed to the situation of military medical transports: ‘[A]s there is no prohibition on [such transports] defending themselves, it would be unreasonable not to allow them to do so as long as it is in a way that cannot be interpreted as being potentially aggressive.’
    39 - Canada, Code of Conduct, 2007, p. 2-16, para. 6.
    40 - See e.g. United Kingdom, Allied Joint Doctrine for Medical Support, with UK National Elements, 2015, p. 1-99: Where a threat exists from non-state actors, commanders are empowered, subject to legal and policy advice, to remove the Red Cross insignia, and to fit a mounted weapon system for the protection of that platform and those within their care. However, such a platform will no longer be recognisable as an ambulance and it, and its occupants, will lose the protection that the distinctive emblem would otherwise confer. Under no circumstances may the Red Cross emblem be displayed on an ambulance platform at the same time as a weapon system is mounted on it.
    41 - See Langdon/Rogers/Eadie, p. 182.
    42 - See also Additional Protocol I, Article 18.
    43 - See the commentary on Article 39, section B.3.
    44 - See ibid. section B.4. See also Breitegger, p. 124.
    45 - See Langdon/Rogers/Eadie, p. 184.
    46 - See Cassese, p. 388 (the Italian Court recognized that military necessity as a defence was not applicable to Article 191 of Italy’s Wartime Military Criminal Code, 1941, which provides that whoever fires on ambulances, hospitals or other medical facilities where, ‘pursuant to the law or international conventions they must be respected and protected’, may be punished with imprisonment”).
    47 - See ICC Statute (1998), Article 8(2)(b)(xxiv) and (e)(ii).
    48 - See Schöberl, pp. 829 and 838.
    49 - See e.g. United Kingdom, Allied Joint Doctrine for Medical Support, with UK National Elements, 2015, p. 1-99: ‘Under no circumstances may the Red Cross emblem be displayed on an ambulance platform at the same time as a weapon system is mounted on it.’ See also Langdon/Rogers/Eadie, p. 183.
    50 - In view of the undefined character of the words ‘general rules of international law’, the added value of this paragraph was already questioned during the 1929 Diplomatic Conference; see Proceedings of the Geneva Diplomatic Conference of 1929, p. 219.
    51 - Article 34(2).