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Commentary - Protection of medical units
    [p.165] Article 12 -- Protection of medical units

    [p.166] General remarks

    512 The principal aim of this article is to extend to all civilian medical units the protection which hitherto applied to all military medical units on the one hand (cf. Article 19 , first Convention), but only to civilian hospitals on the other (cf. Article 18 , fourth Convention).

    513 Thus, paragraphs 1, 3 and 4 concern all medical units, whether military or civilian. As certain rules have been introduced which have no equivalent in the Conventions (even with regard to military units) with the object of increasing the protection of these units, it was obviously important that all units were covered, not just the civilian units.

    514 Paragraph 2 lays down three conditions, and all civilian medical units must comply at least with one of them to benefit from the right to respect and protection. Each of these conditions implies a certain degree of control by the authorities over these units, which is essential for the prevention of any form of abuse.

    Paragraph 1

    515 This paragraph lays down the three principles for all medical units which were already imposed in the Conventions for military medical units (or, according to the terminology of the Conventions, fixed establishments and mobile medical units). These units:

    -- shall be protected;
    -- shall be respected;
    -- shall not be the object of attack.

    516 These principles are taken from the Conventions. We have examined the general definition of the terms "to respect" and "to protect" above. (1)

    517 In the present context the term "to respect" the units means, first of all, that it is prohibited to attack or harm them in any way. This also means that there should be no interference with their work (for example, by preventing supplies from getting through) or preventing the possibility of continuing to give treatment to the wounded and sick who are in their care, as long as this is necessary.

    518 To protect these 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". (2) It is no longer only a matter of not preventing supplies from reaching these units, to take the example given above, but, if necessary, to help to ensure the delivery of these supplies (for example, by providing a vehicle) or even to make sure that they are not jeopardized by third parties (looting etc.).

    [p.167] 519 Finally, medical units should not be the object of attack. (3) The usefulness of this third point is not obvious, as the ' respect ' of the medical units implies the obligation not to attack them. However, this provision was explicitly formulated even in the Conventions in view of "the increasing scale of aerial bombardment". (4) The inclusion of this provision also means that an attack on a medical unit which is undertaken by commandos in enemy territory is unambiguously forbidden, even if the purpose of the attack is not to hinder the proper functioning of the unit, but, for example, to exert pressure or gain an advantage at a military level. Finally, it should be noted that even though an attack cannot be lawfully directed against medical units as such, it is not totally out of the question for them to be damaged during attacks on military objectives, even though various precautions must be taken during these attacks. (5) The rules laid down in paragraphs 3 and 4 of this article are aimed at preventing as far as possible the risks incurred by medical units during such attacks.

    520 These three principles should be observed ' at all times, ' i.e., even when the units have not yet received any wounded and sick, or when no more wounded and sick are with them at the time. (6) Obviously this only applies while the units continue to be ' assigned exclusively to medical purposes. ' However, it was not necessary to make this specific point in Article 12 , as the definition of medical units itself, whether permanent or temporary, requires that they are used exclusively for medical purposes. (7) If they are used for other purposes, they are no longer considered to be medical units within the meaning of the Protocol, and thus they lose their right to the use of the emblem, as well as the right to respect and protection if they are used in such a way that they could be categorized as military objectives. (8)

    521 The fact that a unit is assigned exclusively to medical purposes does not mean that it should be used at all times to care for the wounded and sick. For example, a first aid post, even if it is temporary, does not lose its rights merely because there are no wounded or sick patients there. It is sufficient that the post is intended to care for the wounded and sick and that it is not assigned for any other purpose, particularly a military purpose, for it to remain covered by the three above-mentioned principles.

    Paragraph 2

    522 As shown above, this paragraph lays down three conditions, with one of which civilian medical units must comply to be covered by the principles described in paragraph 1. These conditions all imply a certain degree of control by the Party to the conflict over the units, to ensure that they are strictly and exclusively used [p.168] for the intended purposes. This control is of paramount importance, for if a Party to the conflict discovers that the adverse Party has seriously and repeatedly been guilty of abuse, this could lead to a loss of confidence and cast doubt on the entire system of protection aimed at by the Conventions and the Protocols, which is based precisely on confidence.

    523 On the other hand, there was no need to impose similar conditions for military medical units as these, being part of the army, are subject to military hierarchy and discipline. The conditions are as follows:

    a) ' To belong to one of the Parties to the conflict '

    524 This concerns particularly hospitals or ambulance services of the State. The Party to the conflict is itself responsible for the administration of these units and therefore control is easy. The persons in charge of these units are appointed directly by the competent authority of the Party to the conflict, who can also remove them from this position.

    b) ' To be recognized and authorized by the competent authority of one of the Parties to the conflict '

    525 In the first place, this concerns medical units of the National Red Cross Society or a Society of a State not Party to the conflict. (9) It may also concern private medical units, such as private clinics or ambulance services. In addition, this category can also include units belonging to public bodies at a level below that of the State, and which have a certain degree of independence vis-à-vis the central government. For example, these could include, in particular, units belonging to the different States constituting a federal State.

    526 It is up to the competent authority of the Party to the conflict (i.e., in the case of a federal State, the central government) to recognize and authorize these units. Thus there are two elements: the ' recognition ' implies that the competent authority agrees that this unit is a medical unit within the meaning of the Protocol; the ' authorization ' is the right conferred upon this unit by the Party to the conflict to exercise the prerogatives granted to civilian medical units by the Protocol. In exceptional circumstances it may happen that a Party to the conflict recognizes a medical unit without granting this authorization (which the Protocol leaves to the Party's discretion). However, the authorization implies preliminary recognition of the unit.

    527 The control in this case is less direct than in the case of units belonging to one of the Parties to the conflict. For example, the latter cannot replace the director of a private medical unit who has been guilty of abuses, as it can in the case of units that belong to it. It can threaten to withdraw its authorization if this replacement is not carried out, and as a last resort can actually withdraw its authorization.

    c) ' To be authorized in conformity with Article 9 , paragraph 2, of this Protocol or Article 27 of the First Convention '

    528 This refers to the civilian medical units placed at the disposal of a Party to the conflict for humanitarian purposes by a neutral State or another State not Party to the conflict, by an aid society recognized and authorized by a neutral State or another State not Party to the conflict, or by an impartial international humanitarian organization. (10)

    Paragraph 3

    ' First sentence '

    529 This concerns a simple recommendation to the Parties to the conflict, aimed at reinforcing the security of medical units. The Conventions do not contain an equivalent provision. However, it should be noted that the notification of hospital zones is prescribed in the Draft Agreement annexed to the first Convention. (11)

    530 For obvious practical reasons the medical units concerned here are only fixed medical units. There is clearly no question of keeping the adverse Party constantly informed about all the movements of mobile units (although there is nothing to prevent a Party to the conflict from informing the adverse Party about an important movement of these units).

    531 Some delegations would have preferred to restrict this recommendation to ' civilian ' medical units, but the opinion which finally prevailed was that there was no reason why the location of military medical units should not also be communicated with a view to reinforcing the protection of these units.

    532 On the other hand, it was widely agreed that this provision should not have a mandatory character, but should retain the form of a recommendation to the Parties to the conflict, as it was in the draft. (12)

    ' Second sentence '

    533 This sentence was not contained in the draft and is the result of an amendment submitted in Committee II. In fact, it is not really a modification of the draft, but a clarification. It was not considered to be indispensable by the authors of the draft, but it clearly expresses their intention.

    534 As notification is only recommended, it is clear that the right to protection does not depend on it and exists independently of it. Failure to notify increases the risk of the units being damaged incidentally during an attack on military objectives, [p.170] but it in no way impairs the obligation to respect, protect and refrain from attacking the units, nor that of taking the necessary precautions to prevent, as far as possible, inflicting any damage on them during an attack on military objectives.

    535 The clarification given in the second sentence of paragraph 3 removes any ambiguity which might have existed on this point.

    Paragraph 4

    536 This paragraph is in a way the corollary to the principles described in paragraph 1. The right to protection also implies certain obligations on the part of the Parties to the conflict with regard to their own units -- or the units which have fallen into their hands -- which benefit from it. Certainly the most important obligation is to refrain from making improper use of the signs and signals of protection described in the Conventions and the Protocol, as laid down in Article 38 of the Protocol (' Recognized emblems '). This is complemented by the two rules contained in paragraph 4, one of which contains an unequivocal prohibition, while the other contains a more flexible provision: to comply with "whenever possible". The aim of these rules is, on the one hand, to make it possible for an adverse Party to carry out its duty to respect medical units, and on the other hand, and above all, to increase the security of medical units and their occupants, which should never become the object of any form of moral blackmail.

    ' First sentence '

    537 The aim of this first sentence is precisely to prohibit what we have qualified as blackmail.

    538 It may happen that medical units are sited on the periphery of military objectives, (13) and it is probably impossible to avoid this in all cases, as will be seen with regard to the rule laid down in the second sentence of this paragraph. However, it is not admissible that a Party to the conflict should intentionally place medical units on the periphery of military objectives in the hope that the adverse Party would hesitate to attack these objectives for humanitarian reasons. This would completely distort the spirit of humanitarian law and devalue both the victims being cared for in these units and the medical personnel who would be knowingly exposed to very grave danger. Thus this type of action constitutes a breach of the Protocol and can be justified "under no circumstances".

    539 One may certainly wonder whether such an action could release the adverse Party from its obligation to respect the medical units sited in this way. With regard to this question, see Article 51 of the Protocol (' Protection of the civilian population '). The second sentence of its paragraph 7 contains a similar rule to that given here for medical units, relating to the movement of the civilian population or civilian persons. Paragraph 8 of the same article explains that a violation of [p.171] this prohibition (as of any other prohibitions laid down in the article) does not release the Parties to the conflict from taking the precautionary measures provided for in Article 57 (' Precautions in attack '). (14)

    540 Although not explicitly mentioned, these precautions should also be taken with regard to the wounded and sick, and consequently the medical units where they are being cared for. The victims should not have to pay for trickery for which they are not responsible, particularly as the ' intention ' of siting the medical units in the vicinity of military objectives in an attempt to shield the latter from attacks is rarely easy to establish with any certainty. However, it is clear that if one of the Parties to the conflict is unmistakably continuing to use this unlawful method for endeavouring to shield military objectives from attack, the delicate balance established in the Conventions and the Protocols between military necessity and humanitarian needs would be in great danger of being jeopardized and consequently so would the protection of the units concerned.

    ' Second sentence '

    541 This sentence repeats a rule introduced in 1949 in Article 19 , paragraph 2, of the first Convention, though the formulation is slightly different. It extends the scope of application to all the medical units covered by the Protocol, and not only to military units.

    542 We are not concerned here, as in the rule contained in the first sentence, with prohibiting the wrongful use of medical units, but with including an additional precaution for safeguarding their function. The provision requires that care should be taken to ensure that medical units are so sited that attacks against military objectives do not imperil their safety, in other words that they are sufficiently removed from these objectives not to be affected by damage in the surrounding area which is very likely to occur during an attack. As stated in the Commentary on the first Convention, this precaution is obviously taken above all against aerial bombardment. (15)

    543 Moreover, it should be noted that this provision requires the Parties to the conflict to take precautions which are essentially for the benefit of persons belonging to their own side. This led to objections when a similar provision was adopted in 1949, and still remains an exception, albeit an important one, in the Protocols.

    544 In practical terms this provision should already have been taken into consideration by the contracting Parties in time of peace, for example by avoiding the construction of a hospital next to a barracks, or vice versa.

    545 The obligation should be observed "whenever possible". It is quite clear that the Parties to the conflict should always do so to the best of their capability. However, this expression was inserted because it was generally agreed that it was not always possible to shield medical units from the danger one wishes to avoid. [p.172] When it was proposed to remove this expression in Committee II, it was not considered possible to prohibit mobile medical units from moving into the vicinity of combat in order to retrieve and care for the wounded as quickly as possible, despite the risks that this would incur. (16) Thus there are two interests to weigh up, and the obligation to favour one of the two should not be too rigid.

    ' Y. S. '

    NOTES (1) Cf. commentary Art. 10, para. 1, supra, p. 146;

    (2) ' Commentary I, ' p. 196;

    (3) The expression "attacks" is defined in Art. 49, para. 1. On this subject, see infra, pp. 602-603;

    (4) ' Commentary I, ' p. 196;

    (5) On this subject, cf., in particular, commentary Art. 57, infra, pp. 680-687;

    (6) The expression "at all times" was introduced in 1906, but was not included in the Convention of 1864. On this subject, cf. ' Commentary I, ' p. 196;

    (7) Cf. commentary Art. 8, sub-para. (e), supra, pp. 128-129;

    (8) On this subject, cf. commentary Art. 52, infra, pp. 635-637; cf. also commentary Art. 13, infra, p. 173;

    (9) Cf. Art. 27, First Convention;

    (10) For further details on this subject, cf. commentary Art. 9, para. 2, supra, pp. 140-142;

    (11) Cf. Draft Agreement relating to hospital zones and localities, Art. 7;

    (12) All those who spoke on this subject in Committee II agreed that this was a matter to be decided in the last resort by the authorities of the Parties to the conflict. Cf. O.R. XI, pp. 115-118, CDDH/II/SR.13, paras. 19-43;

    (13) On the meaning of the expression "military objective", cf. commentary Art. 52, para. 2, infra, pp. 635-637;

    (14) On the subject of these, cf. commentary Art. 57, infra, pp. 680-687. Cf. also commentary Art. 51, infra, pp. 627-628;

    (15) Cf. ' Commentary I, ' p. 198;

    (16) Cf. particularly O.R. XI, pp. 117-118, CDDH/II/SR.13, para. 41;