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Commentary - Limitations on requisition of civilian medical units
    [p.181] Article 14 -- Limitations on requisition of civilian medical units


    [p.182] General remarks

    575 The purpose of this article is to regulate the problem of requisition of civilian medical units in occupied territory with a view to completing the provisions of Article 57 of the fourth Convention which are concerned only with requisitioning civilian hospitals.

    576 Before dealing with the problem of requisition itself, Committee II of the CDDH considered that it should be viewed in the light of the Occupying Power's duty to see that the medical needs of the civilian population of the occupied territory are attended to, as stipulated in paragraph 1. The principle laid down here is based on the more detailed provisions contained in Article 55 , paragraph 1, and Article 56 , paragraph 1, of the fourth Convention.

    577 The wide obligation referred to in paragraph 1 has the general consequence of imposing a strict limitation on the requisition of civilian medical units, which is in fact prohibited as long as these units are necessary for the health of the civilian population and for the wounded and sick receiving treatment. This is the content of the provision contained in paragraph 2.

    578 Thus requisitions are only allowed if they are carried out in accordance with the strict rule laid down in paragraph 2, and even then the three conditions mentioned in paragraph 3 must be complied with.

    579 finally it is worthy of note that this article is concerned only with the requisition of civilian medical units, while the fate of military medical units which have fallen into enemy hands is regulated by Article 33 of the first Convention.

    Paragraph 1

    580 The principle laid down here is restricted to the duties of the Occupying Power with regard to medical matters, for the problem of the requisition of civilian medical units is closely related to these duties. It should be read in connection with the following principles laid down in Article 55 , paragraph 1, and Article 56 , paragraph 1, of the fourth Convention, which complement it:

    "To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; [...]"

    "To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the co-operation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, [...]"

    581 There are two differences between the wording of these principles and the wording given in paragraph 1 of the article under consideration. The latter does not state that the duty imposed on the Occupying Power is "to the fullest extent of the means available to it". On the other hand, it does not state that the Occupying Power has the duty to ensure that the medical needs of the civilian [p.183] population ' are ' satisfied but that they ' continue ' to be satisfied. These differences in formulation are directly linked.

    582 The above-mentioned provisions of the fourth Convention are concerned with ensuring public health in the occupied territory, regardless of the public health situation previously. It may happen that health conditions existing in a territory before it is occupied are deplorable. In this case the Occupying Power will probably be unable to rectify this situation very quickly, particularly if the infrastructure itself is inadequate. This is why it was necessary to qualify the duty of the Occupying Power with the expression "to the fullest extent of the means available to it".

    583 On the other hand, the principle laid down in paragraph 1 of the article under consideration does not require a particular endeavour from the Occupying Power. It is merely required to ensure that the medical system which already exists in the occupied territory continues to function properly. There was no reason therefore not to impose this requirement in absolute terms.

    584 The problem of the requisition of civilian medical units directly affects the duty of ensuring the continuation of the existing medical system, rather than that of ensuring public health regardless of its former standard, as such requisition for the benefit of the Occupying Power may well have a harmful effect on the medical system already established in the occupied territory.

    Paragraph 2

    585 The provision contained in this paragraph is the consequence of the principle contained in paragraph 1 with regard to the Occupying Power's possibility of requisitioning civilian medical units.

    586 If the condition specified in this paragraph is met, the prohibition on requisitioning the personnel and the resources listed herein is absolute. Let us examine what is prohibited from being requisitioned, and in what circumstances.

    587 It is prohibited to requisition civilian medical units, their equipment, their ' matériel ' and the services of their personnel. Medical units, whether civilian or military, are defined earlier in this commentary. (1) The equipment of these units, whether this includes medical equipment, such as operating tables, or functional equipment, such as the heating system or the kitchen (much of which, it could even be argued, forms an integral part of the unit), as well as the ' matériel ' (surgical instruments, medication, but equally linen, and food services) cannot be requisitioned either, as they are actually indispensable to the proper functioning of the unit, and it would be pointless to prohibit the requisition of the unit if its functioning were allowed to be hampered. The same applies to the personnel of the unit, whether this concerns the personnel taking care of the patients, or other personnel essential to the proper functioning of the unit (administrators, cooks, [p.184] laundry staff etc.). It is worth noting that this type of personnel is also covered by the next article of the Protocol, Article 15 ' (Protection of civilian medical and religious personnel), ' which is concerned with all civilian medical and religious personnel.

    588 The condition attached to this absolute prohibition on requisition is that "these resources are necessary for the provision of adequate medical services for the civilian population and for the continuing medical care of any wounded and sick already under treatment".

    589 The prohibition is absolute "so long as" these resources are necessary, in other words, the absolute prohibition applies only to the resources necessary for the purposes mentioned, and ceases as soon as they are no longer necessary.

    590 The term ' resources ' refers to all the objects and services mentioned above, including the medical personnel, who are considered here only in the light of their role (while Article 15 -- ' Protection of civilian medical and religious personnel, ' deals with their protection).

    591 Obviously the word "necessary" is not very clear. It can be interpreted in a wide range of meanings from "useful" to indispensable". Any requisition which manifestly jeopardizes, in a medical context, any of the purposes for which the resources are intended, is prohibited. For example, it would not be permissible to requisition the only surgeon of a hospital containing a large number of wounded. On the other hand, a certain degree of flexibility is possible, depending on the circumstances, with regard to resources which are useful without being indispensable (for example, it might be possible to make a slight reduction in the number of orderlies if the hospital had a very large staff).

    592 These resources must be necessary for either of the following two purposes:

    a) ' The provision of adequate medical services for the civilian population '

    593 Again the provision leaves a great deal of leeway for interpretation. The ratio of doctors per head of population varies enormously from one area of the world to another, more for economic reasons than in relation to the medical needs of the population. Bearing this in mind, how can one assess the medical needs of the civilian population? Obviously it is not within the scope of the Protocol to lay down social policies or to determine a general criterion defining the needs of a civilian population, wherever it may be. The context in which this question must be dealt with here is with regard to the ' continuation ' of the medical system existing before the occupation. Thus, in order to assess the medical needs in the sense intended here, it is a matter above all of taking into account the customary medical practices of the local population. For example, the services of a gynaecologist are considered essential in some areas for childbirth, while it is considered a superfluous luxury in other areas. The concept of medical needs for that matter, must be interpreted in a wide sense. Customary prophylactic measures (hygiene, vaccination, check-ups) should also be taken into consideration.

    [p.185]
    b) ' Ensuring the continuing medical care of any wounded or sick already under treatment '

    594 This is a short-term necessity which it was important to emphasize. Even if certain forms of treatment (such as cosmetic surgery) do not fall under the category of medical ' needs ' of the civilian population, it is important that any treatment being undertaken is completed (or perhaps in certain cases, interrupted) without endangering the life or the health of the patient because of insufficient or inadequate care.

    595 Moreover, it should be noted that the principle laid down in this paragraph might seem to contradict the principle of non-discrimination in the treatment of the wounded and sick, founded on any grounds other than medical ones. (2) How should an Occupying Power act if large numbers of its armed forces are wounded and without care, if the conditions for requisition are not met? In the long term it is clear that its responsibility as an Occupying Power means that it must find a solution which is not prejudicial to the civilian population of the occupied territory in any way. However, in the short term, although the Occupying Power certainly does not have the right to ' requisition ' the medical "resources" mentioned here, which is contrary to the principle expressed in this paragraph, it can nevertheless provisionally transfer the wounded into the civilian medical units of the occupied territory. In fact the principle of non-discrimination with regard to treatment means that those in charge of these units cannot refuse to accept the wounded and means that they must be treated in the same way as the civilian wounded in the unit. They should be concerned only with the medical condition of the patients under their care. Even if the medical orderlies are overburdened and the hospital corridors are crowded with the wounded, which is obviously not without some inconvenience for the civilian wounded being treated in this hospital, it would be intolerable to have wounded dying outside the doors of the hospital without being treated. However, it must be emphasized once again that this can only be a provisional solution and that the responsibility of an Occupying Power is such that it implies the duty to deal with this sort of situation.

    Paragraph 3

    596 Thus the requisition of civilian medical units, of their equipment, their ' matériel, ' or the services of their personnel, can only be considered if these "resources" are not necessary for the purposes examined above in the preceding paragraph. However, even if they are not necessary for these purposes, these "resources" cannot be lawfully requisitioned by the Occupying Power unless the additional following three conditions contained in the paragraph under consideration are all fulfilled.

    [p.186]
    ' Sub-paragraph (a) -- The resources are necessary for the adequate and immediate medical treatment of the wounded and sick members of the armed forces of the Occupying Power or of prisoners of war '

    597 Thus these resources should retain their medical purpose. For example, it is out of the question to requisition a medical unit for use as a munitions depot.

    598 Moreover, they must be necessary for the ' adequate ' and ' immediate ' medical treatment. The term ' immediate ' means that they must be used without delay for providing care for the wounded and sick needing care. They cannot be requisitioned for future needs, even if these are genuinely predictable. The term ' adequate ' means that the resources that have been requisitioned should correspond to the treatment to be given and the possibility of giving it. It is not permitted to requisition equipment which is not needed, or if there is no personnel available who know how to operate it. Finally, the wounded and sick for whom these resources may be requisitioned are those belonging to the armed forces of the Occupying Power or the prisoners of war who have fallen into their hands. Thus these are the wounded and sick of the occupying forces and the captured enemy combatants (i.e., in particular, native soldiers of the occupied territory who were defending their country). Consequently it is unlawful to requisition the "resources" referred to here to use them in the Occupying Power's own territory.

    ' Sub-paragraph (b) -- The requisition continues only while such necessity exists '

    599 This second condition follows from the first. It is also intended to prevent abuse. The medical necessity for the requisitioned "resources" should not exist only at the moment of requisition, butthroughout the period of requisition. As soon as there is no longer any necessity for the resources, their requisition should cease and they should be restored to their former use, or be returned to the service of the civilian population of the occupied territory.

    ' Sub-paragraph (c) -- immediate arrangements are made to ensure that the medical needs of the civilian population, as well as those of any wounded and sick under treatment who are affected by the requisition, continue to be satisfied '

    600 At first sight this third condition seems superfluous, as paragraph 2 prohibits any requisition of "resources" necessary for these needs. However, it is not superfluous. It could be the case that certain "resources" can be requisitioned without prejudicing in any way the wounded and sick under treatment or the civilian population, but only provided that adequate arrangements are made. Thus, for example, this could be the case if two hospitals were identically equipped and certain pieces of equipment were used to only half their capacity. In this case certain resources could be requisitioned provided that certain measures were taken (specialization of the hospitals, transfer of particular [p.187] patients etc.). Thus it was important to state that requisition is prohibited not only if those resources are necessary for the overall medical needs of the civilian population, but also in the case where they may not be necessary in an absolute sense, if practical arrangements are not taken to remove the harmful effects which the requisition might have for the civilian population of the occupied territory.

    Y. S.


    NOTES (1) Cf. commentary Art. 8, sub-para. (e), supra, pp. 128-129;

    (2) Cf. commentary Art. 10, para. 2, supra, pp. 147-148;