Practice Relating to Rule 110. Treatment and Care of the Wounded, Sick and Shipwrecked

1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.

2. In all circumstances, they shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. 

1. All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected.

2. In all circumstances they shall 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. 

While the medical personnel are likely to be attached to the law enforcement operation, law enforcement officials must take into account the judgement of such personnel when they recommend providing the person in custody with appropriate treatment through, or in consultation with, medical personnel from outside the law enforcement operation. 

In all circumstances, the wounded, sick and shipwrecked of either party shall be respected, protected … and shall receive, to the fullest extent practicable and with the least possible delay, appropriate medical care. 

9.91 The parties to a conflict must take all possible measures to search for and collect the wounded, sick and shipwrecked … and to ensure their care.

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9.95 Sick, wounded and shipwrecked combatants are to be protected and respected, treated humanely, and cared for by any detaining power without any adverse discrimination … They shall not be:

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9.98 A party to an armed conflict if compelled to abandon wounded and sick must, so far as military considerations permit, leave medical personnel and equipment to care for those left behind. 

In case the wounded have been abandoned by the enemy, the [capturing] unit in question must leave a part of its medical personnel and its medical equipment behind to continue to care for them if the tactical situation permits. In this context, the aforementioned victims must be registered. 

2.[sic] The two major treaties in this area are the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GI) and the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GII). Additional Protocol I to the Geneva Conventions (AP I) also contains provisions amplifying the obligation to care for persons protected by GI and GII. [T]he innovation of AP I in this area is to extend the scope of the earlier Conventions so that civilians as well as military personnel are entitled to protection.

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1. Following an engagement, parties to a conflict are obliged to take all possible measures to search for and collect without delay the wounded, sick and shipwrecked.

2. The parties to a conflict must protect the wounded, sick and shipwrecked from pillage and ill-treatment and ensure their adequate care …

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1. The wounded, sick and shipwrecked are to be protected, respected, treated humanely and cared for by the Detaining Power without any adverse discrimination.

2. … They shall not be … left without proper medical care and attention or exposed to conditions, which might result in contagion or infection. The term “wounded, sick and shipwrecked”, includes civilians.

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1. In land warfare, a belligerent compelled to abandon its wounded and sick is obliged, so far as military considerations permit, to leave medical personnel and equipment to care for them. Their presence does not, however, exempt the Detaining Power from providing any additional assistance that may be necessary. 

By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:

All the wounded and sick, whether friend or foe, shall be respected and protected. In all circumstances they shall 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. There shall be no distinction among them based on any grounds other than medical ones. 

I.1 Basic rules

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[Basic Rule No. 5]:

Collect, protect and care for the wounded, shipwrecked and sick, whether they be friends, enemies or civilians.

[Observation]:

- The wounded, shipwrecked and sick enemies no longer take part in combat.

- As human beings, they are in need of assistance and protection.

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I.2 Specific rules

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8. Disarm them:

9. Hand them over to the closest medical personnel or to your superior. 

The measures that will be taken by the commander, superior or officer on duty … to preserve the place [where an extraordinary or allegedly criminal act has occurred], until the arrival of the competent personnel, are the following:

In accordance with the international agreements signed by the government of Guinea, military personnel in combat are required:

At all times, and particularly after an engagement … adequate care [must be] given [to the wounded and sick] … . Where a side is compelled to abandon wounded and sick, it must, if possible, leave some of its medical personnel and material to care for them. 

Belonging to combatant forces entitles the combatant to special rights when he steps out of the sphere of hostilities by surrendering, being taken as a prisoner of war, injury or loss of fighting ability. Such a combatant is entitled to the status of a prisoner of war, according him medical treatment. 

Being a member of the combatant forces entitles a combatant to special rights when he exits the theatre of war by surrendering, falling into captivity, being wounded or losing the ability to fight. Such a combatant receives the status of prisoner-of-war (POW) entitling him to medical treatment. 

0821. Medical assistance to the civilian population

The parties to a conflict must provide assistance, if necessary, to civilian medical personnel in areas where civilian medical services are disrupted by hostilities. Civilian medical personnel must have access to all places where their services are essential. They may be subject to such safety measures as the relevant party to the conflict may deem necessary.

0822. For military medical units, the rule is that humanitarian medical help may be given to the civilian population if the operation, circumstances and resources permit. Such help is preferably implemented in consultation and cooperation with Red Cross and other civilian aid organizations. The starting point is that only help of primary necessity is provided to civilians who directly ask for help from a military medical unit.

0823. To remedy a life-threatening medical condition of a member of the civilian population, emergency medical help should be provided as quickly and adequately as possible, to remedy the acute threat to life. 

It is unclear whether the peace force is also bound to treat those who are sick and wounded as a result of the conflict between the belligerent parties. No such obligation can be inferred from the Geneva Conventions and Additional Protocols. The medical support of the peace force is primarily intended for the peace force itself. Detainees or internees of course have a right to medical help from the peace force: they are dependent upon such facilities. The same applies to persons assigned to medical evacuation zones or hospitals. Given sufficient capacity and resources, the humanitarian principle will entail the deployment of medical support if the local population is cut off from medical assistance. If there is a humanitarian operation and humanitarian relief, such assistance should not generally lead to problems: the medical support is designed for this. However, it may happen that the medical capacity and resources present are barely enough to maintain the peace force, while the local population is in acute (medical) need. The mission of the relevant peace force (or part thereof) must then be the decisive factor. If the mission of the peace force is not humanitarian relief, medical support to the local population will be less important than if it is. To add clarity, the CDS [Chief of Defence Staff] has written an instruction on this (A25) entitled “Health Care During Deployment on Peace Operations” (17 October 2000). This clearly states how far Dutch troops are obliged to provide life-saving emergency relief to the civilian population. 

A party to the conflict may be compelled to withdraw hastily and leave behind the wounded and sick. In such cases, the [1949] First Geneva Convention provides that that party should leave with them a part of its medical personnel and material to assist in their care, as far as military considerations permit. Although this rule is not absolute, as observed in the Commentary to the First Geneva Convention, it represents nonetheless a clear moral obligation. 

A party to the conflict may be compelled to withdraw hastily and leave behind the wounded and sick. In such cases, the [1949] First Geneva Convention provides that that party should leave with them a part of its medical personnel and material to assist in their care, as far as military considerations permit. Although this rule is not absolute, as observed in the Commentary to the [First Geneva] Convention, it represents nonetheless a clear moral obligation. 

Medical teams must be made available to provide emergency medical attention … to injured civilians caught in the crossfire …

To demonstrate AFP [Armed Forces of the Philippines] and government concern for the population, military civic action shall be undertaken immediately after the operation. This includes such immediate tasks as providing medical aid to sick and wounded civilians; procuring and distributing food and shelter to displaced persons; and, restoring vital facilities.  

In the aftermath of military or law enforcement operations involving firefight that results in unavoidable casualties, caring for the wounded … which includes our own troops, the enemy and particularly innocent civilians must be a paramount concern of all commanders and troops at all levels. In the scene of the incident, all wounded must be treated with care and their wounds attended by providing them with first aid. 

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3. Report the circumstances of the death or wounding of the enemies. If it is possible and the circumstances permit, report to your superiors in writing the detailed circumstances of the death or wounding of the enemy.

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5. Give immediate medical attention to wounded. Under HR/IHL, it is your duty to treat wounded enemy combatants or crossfire victims. If a wounded enemy or civilian dies long after the battle or in your care, it may be used as an issue against you. Make sure that a barangay [local government] official is assisting you in bringing the wounded to the nearest hospital or clinic. 

All the wounded, sick and shipwrecked, of whatever nationality, shall receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. 

All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict … shall receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.

Whenever circumstances permit and particularly after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked [and] to ensure their adequate care. 

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The fundamental norms/val[u]es which underlie the LOAC are:

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Current Op[]inio Juris on Common Article 3 [of the 1949] Geneva Conventions. This article determines that, in the case of armed conflicts not of an international character, each Party to the conflict shall be bound to apply certain minimum rules. Although originally written for situations of non-international armed conflict, the current legal opinion is that its contents are so fundamental that it is applicable in both international and non-international armed conflicts. The minimum rules contained in Common article 3 Geneva Conventions, are the following:

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[1949] Geneva Convention I article 15 stipulates that the Parties to the conflict must, at all times, particularly after an engagement, without delay, take all possible measures to[:]

Whenever a Party to the conflict is compelled to abandon wounded or sick to the enemy, that Party must, as far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care. 

In combat, the disarmament, rescue of and the provision of first aid to the wounded, sick and shipwrecked begins as soon as the situation allows. For security reasons this usually does not happen spontaneously. The superiors make the necessary arrangements. No distinction may be made between friend and enemy or between civilian and military personnel. Purely medical criteria determine the priority in medical treatment. No one may be punished for having cared for the wounded or sick. 

1.7.1. While performing their military duty, military medical personnel shall be guided by the generally recognized rules of international humanitarian law that oblige them:

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2.5.2.1. … All wounded, sick and shipwrecked (persons who have suffered an aircraft crash) irrespective of their belonging of any party, to the fullest extent and within the shortest period of time possible, shall receive medical assistance and care adequate to the state of their health. 

7.3. The wounded and sick are to be protected and respected. They may not be attacked. They must be treated humanely. They must be provided with medical care. They may not wilfully be left without medical assistance nor exposed to contagious diseases or infection. …

7.3.1. … The duty of protection imposes positive duties to assist them. The Geneva Conventions and Additional Protocol I do not seek the unattainable by what would be a vain attempt at removing all hardships arising from armed conflict affecting the groups of persons defined above; they merely seek to ameliorate their conditions. …

7.3.2. Paragraph 7.3 applies to all wounded and sick, whether United Kingdom, allied or enemy, military or civilian. They are entitled to respect and protection, humane treatment and, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. It is forbidden, for example, to give the treatment of United Kingdom and allied wounded priority over the treatment of wounded enemy personnel. The only distinction which is permitted in dealing with the wounded or sick is that founded on real medical need. There is no absolute obligation on the part of the military medical services to accept civilian wounded and sick – that is to be done only so far as it is practicable to do so. For example, the commander of a field hospital placed to deal with casualties from an impending battle would be entitled to refer non-urgent cases elsewhere, even if the hospital had the capacity to treat them at the time. Once the treatment of a civilian patient has commenced, however, discrimination against him on other than medical grounds is not permissible.

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7.7. A party to a conflict compelled to abandon wounded or sick to his adversary, must, so far as military considerations permit, leave with them a part of his medical personnel and equipment to help in caring for them. Their presence does not, however, exempt the detaining power from providing any additional assistance that may be necessary.

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7.9. The wounded and sick, as well as medical personnel and chaplains, may in no circumstances renounce in whole or in part, the rights secured to them by the Convention or by Additional Protocol I. 

Combatants who have been rendered incapable of combat (hors de combat) by wounds, sickness, shipwreck … are entitled to special protections including assistance and medical attention if necessary. Parties to the conflict must … take all possible measures to … protect them from harm and ensure their care. 

a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …

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c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:

DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …

the Armed Forces of the Azerbaijan Republic and appropriate authorities and governmental bodies shall ensure [in all circumstances and with the least possible delay] medical assistance and care needed for the wounded and sick. 

Whoever, being charged with the duty of saving and treating servicemen during wartime, refuses to do so to a serviceman who, though critically sick or wounded, can be saved or treated, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if he causes serious disability or death of the sick or wounded serviceman or if there are other serious circumstances involved, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years. 

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]. 

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]. 

(1) Whoever, in the circumstances defined above [i.e., in time of war, armed conflict or occupation and in violation of the rules of public international law and of international humanitarian conventions] organizes, orders or engages in:

is punishable in accordance with Article 270 [i.e., with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death]. 

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. 

“War crime” shall also mean any of the following acts committed in armed conflicts:

Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:

In order to achieve [the] objectives [of the 2008 Convention on Cluster Munitions], each State Party has an obligation to adequately provide assistance, including medical care, rehabilitation, psychological support and social and economic inclusion … to cluster munitions victims in areas under its direction and control. 

374. Failure to assist sick, wounded or shipwrecked soldiers. — 1. A soldier assigned to the medical service who, during or after combat, fails to lend his assistance to soldiers or other persons regularly accompanying the belligerent armed forces who are sick, wounded or shipwrecked, even if they are enemies, shall be punished by military confinement for 1 to 10 years.

2. If any of the above-mentioned offences is committed culpably, the penalty shall be military confinement for up to seven years.

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382. Arbitrary refusal to recognize the status of lawful belligerent. — A commander who causes serious harm … to the sick, wounded or shipwrecked, by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:

The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.

It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.

You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 

Chapter XXV

INFRINGEMENTS UPON DUTIES AND RESPONSIBILITIES OF SERVICEMEN AND COOPERATORS WITH THE ARMY IN WARTIME

1. Servicemen, military workers and employees.

2. Reserve servicemen during training period.

3. Militia members [cooperating] with the army in wartime.

4. Citizens recruited to the army.

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1. Any person who is responsible but deliberately abandons a wounded or dead soldier in the battlefield or fails to treat a wounded soldier and causes the missing or death of such soldier shall face a penalty of up to 03 years’ community [service] or 06–60 months’ imprisonment.

2. This offence committed in any of the following cases shall carry a penalty of 03–10 years’ imprisonment:

The code of conduct for CF [Canadian Forces] personnel clearly states that we must offer assistance to wounded enemies that do not pose a threat to us. The code of conduct was taught to every OMLT member and was part of the soldier’s card issued to every OMLT member. 

Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the obligation to … assist the wounded and sick.  [footnote in original omitted]

Though we are unable to express a position regarding the specific events mentioned in the petition … we see fit to emphasize that our combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill and bodies of the deceased. 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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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 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.

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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:

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]

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. 

In application of its long dated experience, Egypt considers the … care for wounded [and] sick … as a tradition which should be respected at all times and in any circumstance, particularly in time of military operations. 

All wounded and sick – also attackers – are to be given medical care if the situation permits. 

If persons are wounded during actions in which Dutch soldiers are involved, then they will be treated in accordance with international humanitarian law. International humanitarian law contains, amongst others, the obligation to take all possible measures to trace the wounded and sick and to provide them with the necessary care. 

In an armed conflict where guerilla warfare is the strategy used, distinguishing between civilians and combatants is very difficult. This is precisely the reason why the Philippines have adopted the same rules for both civilians and combatants with regard to the … care of the wounded [and] sick. 

[A]fter the battle was over, a wounded man from the enemy was found on the battlefield, the traditional immunity code would require that he should … be … cared for and nursed until he was well again.

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Examining the actual treatment of the war-wounded in traditional Somali conflicts, we find that, generally, … the enemy’s wounded who were found lying on the battlefield … were … treated for their wounds and given nutritious food to enhance the process of their healing. 

In times of hostilities, the Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups. 

The Ministry of Health has begun a school to train prosthetist-orthotists, in order to cater to the needs of amputees and others with physical disabilities. Training is ongoing, including for individuals from the North and East, with the potential to assist persons injured by war including landmine victims. It is expected to establish 24 training centres across the island. 

Wounded and sick are defined as members of the armed forces or Civilians, who are in need of medical attention and who renounce all acts of hostility. According to this definition, a wounded combatant who continues to make use of a weapon does not qualify.

International humanitarian law calls on all parties to a conflict to treat the wounded and sick in a humane way, i.e. to shelter, rescue and protect them and to provide medical care. No distinction is to be made, except of a medical nature, and Women are given special consideration. The same rules apply to shipwrecked persons, i.e. to all members of the armed forces and civilians in danger at sea or in any other body of water. Wounded, sick and shipwrecked Combatants are to be accorded Prisoner of war status. 

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Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions.  [footnotes in original omitted]

The Deployed Operating Instructions issued to all United Kingdom military units state that enemy dead are to be treated the same as UK military dead. This includes a direction that, where next of kin cannot be traced, the bodies are to be given the same funeral as would UK military personnel, subject to religious practices. Wounded enemy personnel are given care and medical attention that accord fully with our obligations under the Geneva Convention. 

It was quite normal to prevent assistance to be provided to the wounded YPA [Yugoslav People’s Army] soldiers … Civilian hospitals and clinics have refused to provide medical assistance to the wounded and sick soldiers and their dependants. 

the Government of El Salvador that in accordance with Additional Protocol II to the Geneva Conventions, it must respect and give protection to the war-wounded and disabled, it may not prevent their evacuation by the International Committee of the Red Cross so that they may receive the medical attention they require. 

A State’s obligation to ensure humane treatment of enemy soldiers can be severely tested in the heated and confused moments immediately following capture or surrender and during evacuation from the battlefront to the rear. Nevertheless, customary international law as reflected in [the 1949] Geneva Conventions I and III … requires the wounded and sick to be … cared for. 

The wounded, sick and shipwrecked shall be … cared for …

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The wounded and sick shall receive the medical care and attention required by their state of health. 

In every circumstance, the wounded and sick, whether or not they have taken part in acts of violence, … shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. 

In all circumstances, the wounded, sick and shipwrecked, to whichever party they belong, must be respected and protected … There shall be no distinction based on any grounds other than medical ones.   (emphasis added)

1. The wounded, sick and shipwrecked are to be protected, respected, treated humanely and cared for by the Detaining Power without any adverse discrimination.

2. … The term “wounded, sick and shipwrecked”, includes civilians.

1. Only urgent medical requirements will justify any priority in treatment among those who are sick and wounded.

2. Regardless of the party to which they belong, or whether they are combatants or non-combatants, the wounded, sick and shipwrecked are to be respected and protected without any adverse discrimination. 

As a matter of law, wounded PW [prisoners of war] are to receive the same medical treatment as Canadian casualties with priorities for treatment and evacuation being allocated solely according to medical criteria. 

Persons who do not directly participate in hostilities and those rendered hors de combat because they are sick, wounded, shipwrecked, captured or for other reasons, must be respected and protected against the consequences of the war. All victims must be assisted without discrimination. 

Prisoners of war can be sick, traumatized or wounded. In such cases, they must be evacuated and cared for by the friendly or enemy medical service at the front. Medical urgency must be the only factor which determines the priority of care. There must be no discrimination in favour of friendly troops. 

The wounded, sick and shipwrecked shall be respected and protected in all circumstances … They shall be treated humanely and cared for …

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There shall be no distinction among them other than on medical grounds. 

There is no absolute obligation to accept civilian wounded and sick only so far as it is practicable to do so. For example, if military medical facilities are not being used but might be used in the immediate future because of an impending battle, there is no obligation to treat civilians. Once a civilian patient has been accepted, however, discrimination against him/her on other than medical grounds is not permissible. 

[a.] Medical ethics in armed conflict are the same as in peacetime, taking into account that:

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c. Assistance must be provided without making any distinction based on criteria other than medical grounds.

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Priority of treatment must always be dictated by the degree of medical urgency. 

[a.] Medical ethics in armed conflict are the same as in peacetime, taking into account that:

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c. Assistance must be provided without making any distinction based on criteria other than medical grounds.

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Priority of treatment must always be dictated by the degree of medical urgency. 

Military commanders may appeal to the charity of the local population to voluntarily collect and care for the wounded and sick. The military authorities must permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality.  [emphasis added]

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Civilian medical personnel shall be respected and protected. … Occupying Powers must assist them with the performance of their functions and may not require from them to give priority to the treatment of any person, except on medical grounds.

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- Wounded and sick may not be adversely discriminated against on grounds of sex, race, nationality, religion, political convictions or any other similar criteria. Only urgent medical reasons will determine the order of treatment.  [emphasis in original]

In combat, the disarmament, rescue of and the provision of first aid to the wounded, sick and shipwrecked begins as soon as the situation allows. … No distinction may be made between friend and enemy or between civilian and military personnel. Purely medical criteria determine the priority in medical treatment. No one may be punished for having cared for the wounded or sick. 

While performing their military duty, military medical personnel shall be guided by the generally recognized rules of international humanitarian law that oblige them … to render medical assistance during armed conflicts as necessary without any discrimination save for medical reasons. 

7.3. The wounded and sick are to be protected and respected. They may not be attacked. They must be treated humanely. They must be provided with medical care. They may not wilfully be left without medical assistance nor exposed to contagious diseases or infection. Priority of treatment is dictated by medical reasons only …

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7.3.2. Paragraph 7.3 applies to all wounded and sick, whether United Kingdom, allied or enemy, military or civilian. They are entitled to respect and protection, humane treatment and, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. It is forbidden, for example, to give the treatment of United Kingdom and allied wounded priority over the treatment of wounded enemy personnel. The only distinction which is permitted in dealing with the wounded or sick is that founded on real medical need. There is no absolute obligation on the part of the military medical services to accept civilian wounded and sick – that is to be done only so far as it is practicable to do so. For example, the commander of a field hospital placed to deal with casualties from an impending battle would be entitled to refer non-urgent cases elsewhere, even if the hospital had the capacity to treat them at the time. Once the treatment of a civilian patient has commenced, however, discrimination against him on other than medical grounds is not permissible. 

There must be no discrimination on grounds of sex, race, nationality, religion, political belief or any other similar test. Spies, saboteurs, partisans and illegal combatants who are wounded or sick are entitled to the same treatment. 

Wounded and sick personnel falling into enemy hands must be treated humanely and cared for without adverse distinction along with the enemy’s own casualties. Priority in order of treatment may only be justified by urgent medical considerations. 

Article 18. Provision of Emergency Medical Aid.

Health services shall be provided by the nearest health facility to … those whose health condition requires emergency aid, without any discrimination, and by taking into consideration the prioritized status of patients. 

the Armed Forces of the Azerbaijan Republic and appropriate authorities and governmental bodies shall ensure [in all circumstances and with the least possible delay] medical assistance and care, needed for the wounded and sick irrespective of their status.  [emphasis added]

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]. 

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]. 

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. 

A commander who causes serious harm … to the sick, wounded or shipwrecked, by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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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 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.

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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:

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]

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. 

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International humanitarian law calls on all parties to a conflict to treat the wounded and sick in a humane way, i.e. to shelter, rescue and protect them and to provide medical care. No distinction is to be made, except of a medical nature, and Women are given special consideration. The same rules apply to shipwrecked persons, i.e. to all members of the armed forces and civilians in danger at sea or in any other body of water. 

The access of the only two civilian hospitals which have surgical units, Benadir and Digfer, was blocked on July 17, 1993 by the deployment of United Nations’ tanks.

The military hospitals were reserved exclusively for the treatment of United Nations’ troops, thus setting up an unacceptable discrimination between the wounded.

Only the Moroccan hospital remained open to the wounded Somalis. This building was inaccessible to the residents west of the K6/Digfer axis. Moreover, as the Moroccan troops were involved in front line military operations, the civilian population could expect little help from them.