Rule 109. Search for, Collection and Evacuation of the Wounded, Sick and Shipwrecked
Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The duty to collect wounded and sick combatants without distinction in international armed conflicts was first codified in the 1864 Geneva Convention.[1] This subject is dealt with in more detail in the 1949 Geneva Conventions.[2] This duty is now codified in Article 10 of Additional Protocol I,[3] albeit in more general terms of “protecting” the wounded, sick and shipwrecked, which means “coming to their defence, lending help and support”.[4]
The numerous military manuals which contain this rule are phrased in general terms covering all wounded, sick and shipwrecked, whether military or civilian.[5] Sweden’s IHL Manual, in particular, identifies Article 10 of Additional Protocol I as a codification of customary international law.[6] The legislation of several States provides for the punishment of persons who abandon the wounded, sick and shipwrecked.[7]
In the context of non-international armed conflicts, this rule is based on common Article 3 of the Geneva Conventions, which provides that “the wounded and sick shall be collected”.[8] It is codified in a more detailed manner in Additional Protocol II.[9] In addition, it is set forth in a number of other instruments pertaining also to non-international armed conflicts.[10]
The duty to search for, collect and evacuate the wounded, sick and shipwrecked is contained in a number of military manuals which are applicable in or have been applied in non-international armed conflicts.[11] It is an offence under the legislation of several States to abandon the wounded and sick.[12]
No official contrary practice was found with respect to either international or non-international armed conflicts. The ICRC has called on parties to both international and non-international armed conflicts to respect this rule.[13]
The obligation to search for, collect and evacuate the wounded, sick and shipwrecked is an obligation of means. Each party to the conflict has to take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked. This includes permitting humanitarian organizations to assist in their search and collection. Practice shows that the ICRC in particular has engaged in the evacuation of the wounded and sick.[14] It is clear that in practice humanitarian organizations will need permission from the party in control of a certain area to carry out such activities, but such permission must not be denied arbitrarily (see also commentary to Rule 55). The UN Security Council, UN General Assembly and UN Commission on Human Rights have called upon the parties to the conflicts in El Salvador and Lebanon to permit the ICRC to evacuate the wounded and sick.[15]
In addition, the possibility of calling upon the civilian population to assist in the search, collection and evacuation of the wounded, sick and shipwrecked is recognized in the Geneva Conventions and their Additional Protocols.[16] It is also provided for in several military manuals.[17] Article 18 of the First Geneva Convention provides that “no one may ever be molested or convicted for having nursed the wounded or sick”.[18] This principle is also set forth in Article 17(1) of Additional Protocol I, to which no reservations have been made.[19]
The Geneva Conventions and other instruments, such as the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law, state that cease-fires and other local arrangements are seen as appropriate ways to create the conditions in which the wounded and sick can be evacuated and require the parties to the conflict to conclude such agreements, whenever circumstances permit, to remove, exchange and transport the wounded from the battlefield.[20] Many military manuals make the same point.[21]
This rule applies to all wounded, sick and shipwrecked, without adverse distinction (see Rule 88). This means that it applies to the wounded, sick and shipwrecked regardless to which party they belong, but also regardless of whether or not they have taken a direct part in hostilities. The application of this rule to civilians was already the case pursuant to Article 16 of the Fourth Geneva Convention, which applies to the whole of the populations of the countries in conflict, and is repeated in Article 10 of Additional Protocol I.[22] With respect to non-international armed conflicts, common Article 3 of the Geneva Conventions applies to all persons taking no active part in the hostilities, which includes civilians.[23] In addition, Article 8 of Additional Protocol II does not indicate any distinction (see also Article 2(1) of Additional Protocol II on non-discrimination).[24] Most military manuals state this rule in general terms.[25]
[1] 1864 Geneva Convention, Article 6 (cited in Vol. II, Ch. 34, § 1).
[2] First Geneva Convention, Article 15, first paragraph (ibid., § 5); Second Geneva Convention, Article 18, first paragraph (ibid., § 7); Fourth Geneva Convention, Article 16, second paragraph (ibid., § 10).
[3] Additional Protocol I, Article 10 (adopted by consensus) (ibid., § 199).
[4] Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 446.
[5] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 34, §§ 21–22 and 127), Australia (ibid., §§ 23 and 128–129), Belgium (ibid., §§ 24–25 and 130), Benin (ibid., §§ 26 and 131), Burkina Faso (ibid., § 27), Cameroon (ibid., §§ 28–29 and 134), Canada (ibid., §§ 30–31 and 132–133), Colombia (ibid., §§ 32–35), Congo (ibid., § 36), Croatia (ibid., §§ 37–40 and 135), Dominican Republic (ibid., § 136), Ecuador (ibid., §§ 41 and 137), France (ibid., §§ 42–43 and 138), Germany (ibid., § 44), Hungary (ibid., §§ 45 and 139), India (ibid., § 140), Indonesia (ibid., § 46), Italy (ibid., §§ 47 and 141), Kenya (ibid., §§ 48 and 142), Lebanon (ibid., § 49), Madagascar (ibid., §§ 50 and 143), Mali (ibid., § 51), Morocco (ibid., § 52), Netherlands (ibid., §§ 53–55 and 144), New Zealand (ibid., §§ 56 and 145), Nigeria (ibid., §§ 58–60 and 146), Philippines (ibid., §§ 61 and 147–149), Romania (ibid., §§ 62 and 150), Rwanda (ibid., § 151), Senegal (ibid., § 64), Spain (ibid., §§ 66 and 153), Switzerland (ibid., §§ 68 and 154), Togo (ibid., §§ 69 and 155), United Kingdom (ibid., §§ 70–71 and 156–157), United States (ibid., §§ 72–74 and 158–161) and Yugoslavia (ibid., §§ 75 and 162).
[6] Sweden, IHL Manual (1991), Section 2.2.3, p. 18.
[7] See, e.g., the legislation of China (cited in Vol. II, Ch. 34, § 80), Colombia (ibid., § 81), Democratic Republic of the Congo (ibid., § 82), Iraq (ibid., § 84), Italy (ibid., § 86), Nicaragua (ibid., § 87), Spain (ibid., § 90), Uruguay (ibid., § 93), Bolivarian Republic of Venezuela (ibid., § 94) and Viet Nam (ibid., § 95); see also the draft legislation of Argentina (ibid., § 76), El Salvador (ibid., § 83) and Nicaragua (ibid., § 88).
[8] Geneva Conventions, common Article 3 (ibid., § 3).
[9] Additional Protocol II, Article 8 (adopted by consensus) (ibid., § 13).
[10] See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 1 (ibid., § 16); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.1 (ibid., § 18); Hague Statement on Respect for Humanitarian Principles (ibid., § 17); Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines, Part IV, Article 4(2) and (9) (ibid., § 19).
[11] See, e.g., the military manuals of Argentina (ibid., § 22), Australia (ibid., §§ 23 and 128), Belgium (ibid., § 24), Benin (ibid., §§ 26 and 131), Cameroon (ibid., § 29), Canada (ibid., §§ 30–31 and 133), Colombia (ibid., §§ 32–35), Croatia (ibid., §§ 37–40 and 135), Ecuador (ibid., §§ 41 and 137), Germany (ibid., § 44), Hungary (ibid., § 45), India (ibid., § 140), Italy (ibid., §§ 47 and 141), Kenya (ibid., §§ 48 and 142), Lebanon (
ibid., § 49), Madagascar (ibid., §§ 50 and 143), Netherlands (ibid., §§ 53–54), New Zealand (ibid., § 56), Nicaragua (ibid., § 57), Nigeria (ibid., §§ 58 and 60), Philippines (ibid., §§ 61 and 147–149), Rwanda (ibid., § 151), Senegal (ibid., § 65), Spain (ibid., § 66), Togo (ibid., §§ 69 and 155), United Kingdom (ibid., §§ 70–71), United States (ibid., §§ 72–73) and Yugoslavia (ibid., §§ 75 and 162).
[12] See, e.g., the legislation of Colombia (ibid., § 81), Democratic Republic of the Congo (ibid., § 82), Nicaragua (ibid., § 87), Bolivarian Republic of Venezuela (ibid., § 94) and Viet Nam (ibid., § 95); see also the legislation of Italy (ibid., § 86) and Uruguay (ibid., § 93), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 76), El Salvador (ibid., § 83) and Nicaragua (ibid., § 88).
[13] See, e.g., ICRC, Conflict between Iraq and Iran: ICRC Appeal (ibid., § 110), Memorandum on the Applicability of International Humanitarian Law (ibid., § 111), Communication to the Press No. 93/17 (ibid., § 112), Memorandum on Respect for International Humanitarian Law in Angola (ibid., § 113), Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise (ibid., § 114) and Communication to the Press No. 00/42 (ibid., § 115).
[14] See, e.g., the practice of the ICRC (ibid., § 185) and Communication to the Press No. 96/25 (ibid., § 189).
[15] UN Security Council, Res. 436 (ibid., § 173); UN General Assembly, Res. 40/139 (ibid., § 174); UN Commission on Human Rights, Res. 1986/39 (ibid., § 175).
[16] First Geneva Convention, Article 18 (ibid., § 6); Second Geneva Convention, Article 21, first paragraph (ibid., § 8); Additional Protocol I, Article 17(2) (adopted by consensus) (ibid., § 11); Additional Protocol II, Article 18(1) (adopted by consensus) (ibid., § 14).
[17] See, e.g., the military manuals of Argentina (ibid., § 21), Cameroon (ibid., § 29), Canada (ibid., §§ 30–31), Germany (ibid., § 44), Kenya (ibid., § 48), New Zealand (ibid., § 56), Russian Federation (ibid., § 63), Switzerland (ibid., § 68), United Kingdom (ibid., §§ 70–71), United States (ibid., § 72) and Yugoslavia (ibid., § 75 ).
[18] First Geneva Convention, Article 18 (cited in Vol. II, Ch. 7, § 231).
[19] Additional Protocol I, Article 17(1) (adopted by consensus).
[20] First Geneva Convention, Article 15, second and third paragraphs (cited in Vol. II, Ch. 34, § 118); Second Geneva Convention, Article 18, second paragraph (ibid., § 119); Fourth Geneva Convention, Article 17 (ibid., § 120); UN Secretary-General’s Bulletin, Section 9.2 (ibid., § 126).
[21] See, e.g., the military manuals of Argentina (ibid., § 127), Australia (ibid., §§ 128–129), Cameroon (ibid., § 134), Canada (ibid., §§ 132–133), Ecuador (ibid., § 137), France (ibid., § 138), India (ibid., § 140), Kenya (ibid., § 142), Madagascar (ibid., § 143), Netherlands (ibid., § 144), New Zealand (ibid., § 145), Nigeria (ibid., § 146), Senegal (ibid., § 152), Spain (ibid., § 153), Switzerland (ibid., § 154), United Kingdom (ibid., §§ 156–157), United States (ibid., §§ 158–159 and 161) and Yugoslavia (ibid., § 162).
[22] Fourth Geneva Convention, Article 16 (ibid., §§ 10 and 198); Additional Protocol I, Article 10 (adopted by consensus) (ibid., §§ 199 and 346).
[23] Geneva Conventions, common Article 3 (ibid., § 3).
[24] Additional Protocol II, Article 8 (adopted by consensus) (ibid., § 13) and Article 2(1) (adopted by consensus) (cited in Vol. II, Ch. 32, § 369).
[25] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 34, §§ 21–22 and 127), Australia (ibid., §§ 23 and 128–129), Belgium (ibid., §§ 24–25 and 130), Benin (ibid., §§ 26 and 131), Burkina Faso (ibid., § 27), Cameroon (ibid., §§ 28–29 and 134), Canada (ibid., §§ 30–31 and 132–133), Colombia (ibid., §§ 32–35), Congo (ibid., § 36), Croatia (ibid., §§ 37–40 and 135), Dominican Republic (ibid., § 136), Ecuador (ibid., §§ 41 and 137), France (ibid., §§ 42–43 and 138), Germany (ibid., § 44), Hungary (ibid., §§ 45 and 139), India (ibid., § 140), Indonesia (ibid., § 46), Italy (ibid., §§ 47 and 141), Kenya (ibid., §§ 48 and 142), Lebanon (ibid., § 49), Madagascar (ibid., §§ 50 and 143), Mali (ibid., § 51), Morocco (ibid., § 52), Netherlands (ibid., §§ 53–55 and 144), New Zealand (ibid., §§ 56 and 145), Nigeria (ibid., §§ 58–60 and 146), Philippines (ibid., §§ 61 and 147–149), Romania (ibid., §§ 62 and 150), Rwanda (ibid., § 151), Senegal (ibid., § 64), Spain (ibid., §§ 66 and 153), Switzerland (ibid., §§ 68 and 154), Togo (ibid., §§ 69 and 155), United Kingdom (ibid., §§ 70–71 and 156–157), United States (ibid., §§ 72–74 and 158–161) and Yugoslavia (ibid., §§ 75 and 162).
