Section B. Respect by civilians for the wounded, sick and shipwrecked
Geneva Convention I
Article 18, second paragraph, of the 1949 Geneva Convention I states: “The civilian population shall respect [the] wounded and sick, and in particular abstain from offering them violence.”
Additional Protocol I
Article 17(1) of the 1977 Additional Protocol I provides: “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.”
Argentina’s Law of War Manual (1989) provides that the civilian population shall respect the wounded, sick and shipwrecked and shall not commit any act of violence against them.
Australia’s Defence Force Manual (1994) states that while personnel from a disabled aircraft may be captured by non-combatants, they may not be subjected to violent assault by them.
Australia’s LOAC Manual (2006) states that “personnel from a disabled aircraft … may be captured by non-combatants, [however] they may not be subjected to violent assault by them”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Germany’s Military Manual (1992) provides: “Civilians must respect the wounded, the sick and the shipwrecked, even if they belong to the opposite party. They must not use violence against them.”
South Africa’s LOAC Teaching Manual (2008) states:
Role of the Population (Article 18 Geneva Convention I)
- The civilian population must also respect the wounded and sick and in particular refrain from violence directed against them.
Spain’s LOAC Manual (1996) refers to Article 17 of the 1977 Additional Protocol I.
Spain’s LOAC Manual (2007) states: “Civilians are … bound to refrain from acts of violence against the wounded, sick and shipwrecked of the adverse party.”
Sweden’s IHL Manual (1991) considers that Article 17 of the 1977 Additional Protocol I on the role of aid organizations has the status of customary law.
Switzerland’s Basic Military Manual (1987), although it refers to Article 18 of the 1949 Geneva Convention I, does not provide explicitly for the duty of civilians to respect the wounded and sick. The commentary gives as an example, however, that if “a seriously injured parachutist lands near a farm, he shall be cared for until the arrival of the authorities”.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “The civilian population must respect the wounded and sick, and refrain from offering them violence.” The manual further provides: “Nursing the wounded and sick should not be penalised, though this immunity does not extend to the concealment of enemy personnel or the activities of escape organizations.”
United States of America
The US Field Manual (1956) provides: “The civilian population shall respect [the] wounded and sick, and in particular abstain from offering them violence.”
United States of America
The US Health Service Manual (1991) reproduces Article 18 of the 1949 Geneva Convention I and provides: “The civilian population must respect the wounded and the sick and refrain from offering them violence.”
Bahrain’s Penal Code (1976), as amended in 2005, provides: “If wounded soldiers, even enemy soldiers, are subject to plunder during war, the perpetrator shall be liable to imprisonment for a period not less than three months.”
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Burundi’s Military Penal Code (1980) states:
Any person, military or not, who, in the area of operation of a force or a unit:
1. Plunders a wounded, sick, shipwrecked or dead person, is punished with five years’ imprisonment;
2. With a view to plundering, subjects a wounded, sick or shipwrecked person to violence that deteriorates their condition, is punished with ten to twenty years’ imprisonment.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
France’s Code of Military Justice (1982) provides for the punishment of “any individual, military or not, who, in the area of operation of a force or a unit, … plunders a wounded, sick [or] shipwrecked … person”.
France’s Code of Military Justice (2006) states:
The offence by any person, military or not, who, in the area of operation of a force or a unit:
1. Plunders a wounded, sick, shipwrecked or dead person, is punished with ten years’ imprisonment;
2. With a view to plundering, subjects a wounded, sick or shipwrecked person to violence that deteriorates their condition, is punished with life imprisonment.
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 18 of the Geneva Convention I, and of the 1977 Additional Protocol I, including violations of Article 17(1), are punishable offences.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
According to the Report on the Practice of Chile, civilians also have a duty to respect persons hors de combat
According to the Report on the Practice of Indonesia, although civilians do not have the legal duty to safeguard the enemy hors de combat
, they would have a moral duty to do so under the principle of humanity stated in the State’s fundamental philosophy (Pancasila
Islamic Republic of Iran
According to the Report on the Practice of the Islamic Republic of Iran, during the Iran–Iraq War, in reply to allegations that “angry [Iranian] mobs had killed parachuting Iraqis”, Iranian military authorities stated that pilots were under the control of the army and well treated.
The Iranian authorities repeatedly asked the Iranian population not to shoot at parachuting pilots and to capture them alive.
The Report on the Practice of Israel states:
With respect to civilians, the Israeli Penal Law 1997 prohibits any assault on the person of another, except in situations where there exists a defence prescribed by law, such as self defence. Civilians are, therefore, also under the duty not to harm [the] enemy hors de combat
According to the Report on the Practice of Jordan, civilians also have a duty to respect persons hors de combat
UN Security Council
In a resolution adopted in 1993 on the situation in Angola, the UN Security Council condemned the “violations of international humanitarian law, in particular … the extensive killings carried out by armed civilians”.
The ICRC Commentary on Article 17 of the 1977 Additional Protocol I states that its “provision was inspired by Article 18, paragraphs 2, 3 and 4, of the First Convention – the principle of which came from the original Convention of 22 August 1864 (Article 5) – and it was aimed at extending the scope of Article 18 to the civilian wounded and sick”.