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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
A. ' Fixed establishments and mobile units. ' -- Medical units may be either mobile, or in fixed establishments.
Fixed establishments are, as their name indicates, permanent buildings used as hospitals or stores.
[p.195] Mobile units are defined as establishments which can move from place to place as circumstances require following the movement of the troops. It is field hospitals and ambulances which are in particular referred to, but it is not necessary for them to be accommodated in shelters or tents; an establishment in the open, however small, is a medical unit if its object is to collect the wounded. In the same way, it is not necessary for the wounded to be actually cared for in an establishment for the latter to be regarded as a medical unit. A post where they are collected before being evacuated will be protected, even if no dressings are kept there. Finally, a mobile medical unit may have to be accommodated in a building (such as a school, hotel, etc.), which would then receive protection provided it were occupied exclusively by that unit.
It was advisable to refer expressly to the two categories of medical units, in order that the text of the Convention should be clear and complete. This distinction was also made necessary by the fact that under the 1929 Convention the material of such units, when captured, was dealt with quite differently according to whether it belonged to a fixed establishment or a mobile unit. The procedure today is very much the same in the two cases, but there is still some difference. (1)
At the Diplomatic Conference of 1949, one delegation suggested that the Article should contain a definition of the term "medical units". A medical store or a laboratory attached to a field hospital would, for example, have been mentioned as being covered by the above term, whereas a military or civilian labour unit engaged on drainage work as part of an anti-malaria campaign, would have been expressly excluded.
Definitions may often be dangerous, however, and the Conference rightly refrained from any attempt to produce one. It noted that the established term "medical units" had not in the past been the subject of divergent interpretations and that in the light of the other provisions of the Convention, it was at once sufficiently comprehensive and sufficiently specific. (2)
[p.196] As indicated in Article 19, medical establishments and units must form part of the Medical Service (3) in order to be protected. They may only be composed of personnel and material belonging to the Medical Service and may not be intended to serve any purpose outside that Service. Such establishments and units must therefore, by analogy with Article 24
among others, be used exclusively for the treatment of the wounded and sick or for the prevention of disease.
Let us again consider the examples given above; a store or a laboratory belonging to the Medical Service is automatically entitled to protection; on the other hand, a labour unit engaged on drainage work could only be protected if its members were regularly incorporated in the Medical Service and employed exclusively and permanently on medical duties, which appears hardly likely to be the case in practice.
B. ' Respect and protection. ' -- Under paragraph 1 fixed establishments and mobile units of the Medical Service continue to benefit by the respect and protection which was accorded to them under Article 6 of the 1929 Convention
For the sense in which the words "respect and protect" are traditionally used, reference should be made to the comments on Article 12
To respect such units means, first of all, not to attack them or harm them in any way. It might therefore be thought unnecessary to specify, in the provision, that they may not "be attacked"; this strengthening of the general form of wording may not, however, be superfluous in view of the increasing scale of aerial bombardment.
To respect such units means, secondly, not to interfere with their work.It is not enough for the enemy simply to refrain from taking action against them; he must also allow them to continue to give treatment to the wounded in their care, as long as this is necessary.
To protect the units is to ensure that they are respected, that is to say to oblige third parties to respect them. It also means coming to their help in case of need.
Medical units and establishments are guaranteed respect and protection even when they have not yet received any wounded, or when no [p.197] more wounded are with them for the moment. The corresponding Article in the 1864 Convention only laid down that they were to be respected as long as they accommodated wounded. This led to hesitation in sending empty ambulances, containing no wounded, onto the field of battle. Since 1906, the above restriction has fortunately been dropped.
At the Diplomatic Conference of 1949, one delegation proposed that a clause of the present Article should be devoted to the protection of civilian hospitals. The suggestion was not adopted, as the Conference considered that there was no reason for the First Geneva Convention to go outside its proper sphere. Civilian hospitals are fully and completely protected by Article 18 of the Fourth Geneva Convention of 1949
. Besides, the First Convention lays down that establishments and units of the Army Medical Service are not to be deprived of protection when their activities extend to the care of civilian wounded and sick. (5) In the same way the Fourth Convention authorizes civilian hospitals to care for military wounded or sick. (6)
C. ' In case of capture. ' -- A new second sentence has been added to the first paragraph. It lays down that fixed establishments and mobile units, should they fall into the hands of the adverse Party, are to be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units.
Although this provision follows from one of the basic principles of the Convention and may appear to be self-evident, its express confirmation at this point is fully justified in view of the changes made in 1949 in the provisions dealing with captured medical personnel and equipment. Article 14 of the 1929 Convention
provided that mobile units falling into enemy hands were to retain their equipment, means of transport and drivers. This clause has disappeared in the new Article 33
which corresponds to the former Article 14
, but the idea has been maintained and is expressed elsewhere.
After capture the ultimate fate reserved for the various elements which go to make up a fixed or mobile medical unit (buildings, personnel and equipment) varies according to their nature and the existing circumstances; [p.198] this we shall see later. But there is a period during which a medical unit will remain a whole, during which its elements cannot be separated but must be treated alike -- the period, namely, during which the wounded and sick which are with the unit, or in its neighbourhood, need its help.
Apart from the fact that the authorities controlling it are not the same, the establishment will continue to function as if it had not been captured. This phase must continue until such time as the capturing Power is itself in a position to provide the wounded with all the necessary care.
PARAGRAPH 2 -- REMOTENESS OF MILITARY OBJECTIVES
Under this provision, which is new, the responsible authorities are to ensure that medical establishments and units are, as far as possible, so situated that attacks against military objectives cannot imperil their safety. It was obviously intended that the provision should apply above all to aerial bombardment and that medical units should be protected against dispersion of projectiles. In the Fourth Geneva Convention, civilian hospitals were protected by the introduction of a similar clause (Article 18, paragraph 5
) the wording of which is, incidentally, much to be preferred. It reads as follows: "In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives."
The obligations imposed by the Geneva Conventions are almost exclusively those which belligerents are called upon to assume towards enemy nationals; only rarely do they lay down that belligerents are to take specific measures on behalf of their own wounded. We have, however, seen one example of this in Article 12, paragraph 5
(7), and the present case is another.
Certain delegations had objected to the provision, considering that the matter it dealt with was in fact the private concern of individual States. It was nevertheless retained. It is obviously of vital importance that medical establishments and units should not be situated close to military objectives.
[p.199] Such proximity would not weaken the legal protection enjoyed by a medical establishment, but it would, in practice, endanger its security to some extent. Legal protection is certainly valuable; but it is more valuable still when accompanied by practical safeguards. Moreover, such proximity must not appear to be an indirect attempt to protect a military objective from attack.
It should also be emphasized that the stipulation in paragraph 2 is addressed to belligerents both in regard to their own medical units and in regard to those of the enemy which have fallen into their hands.
* (1) [(1) p.195] See below, page 273;
(2) [(2) p.195] The Conference also rejected a proposal to
adopt the term "formations médicales" (in place of
"formations sanitaires") in the French text in order to
agree more closely with the English expression "medical
units". It seemed best for one and the same word --
"sanitaire" ("medical" or "hospital") -- to continue to
apply to everything which contributed to the care of the
wounded and was protected by the Convention, whether
units, personnel or material. Moreover, the expression
"formations médicales" might, in French, have given rise
to the completely erroneous idea that the presence of a
doctor with such units was necessary in order that they
should be protected. Each language therefore continues to
use the adjective which is most suitable in that language,
and to which a definite meaning has long been attached;
(3) [(1) p.196] They may, of course, belong to the National
Red Cross of the country or to another society assisting
the Medical Service;
(4) [(2) p.196] See above, page 134;
(5) [(1) p.197] Article 22, sub-paragraph (5). See below, page
(6) [(2) p.197] Fourth Geneva Convention of 1949, Article 19,
(7) [(1) p.198] See above, page 133;
See the Commentary of 2016
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