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Commentary - Field of application
    [p.137] Article 9 -- Field of application


    [p.138] General remarks

    407 In 1972, during the debates of the second session of the Conference of Government Experts, Committee I of this Conference, which was dealing with Part II, decided to add an article to the ICRC draft which extended the scope of Article 27 of the first Convention to medical aircraft.

    408 As this extension concerned only Part II of the draft, the ICRC considered that it was necessary to insert an article concerning the scope of this Part only, right at the beginning (the specific scope of Part IV also in fact being defined at the beginning of that Part). This article, entitled "field of application", follows immediately upon the article devoted to the definitions at the beginning of Part II of the draft presented to the CDDH, where it becomes Article 9 .

    409 It was again debated at length by Committee II during the CDDH. The result of these debates included in particular the extension of the field of application mentioned in paragraph 1, which was considered to be too restrictive in the draft, and the amalgamation of paragraphs 2 and 3 of the draft into a single paragraph.

    Paragraph 1

    410 Although the article is simply entitled "field of application", the purpose is also mentioned in passing.

    411 Thus there is no doubt that the essential objective of the whole Part is certainly the protection of the wounded, sick and shipwrecked. This is stated unequivocally at the beginning of paragraph 1.

    412 On the other hand, it seemed too restrictive to limit the application of this Part to the wounded, sick and shipwrecked, and to medical personnel, units and transports. Even if this is not the principal objective, Part II does actually concern persons who are not included in these categories. Article 11 (' Protection of persons ') in particular, as noted at the time when Article 9 was presented, also deals with "persons in good health, prisoners of war and civilians". (1)

    413 Then, ' ratione loci ', it was noted during the CDDH discussions that it was too restrictive to limit the field of application of Part II only to the territory of the Parties to the conflict (the Protocol also being applicable on the high seas, in particular, and in disputed territory). It was therefore decided to delete any reference to application ' ratione loci ', because it was considered that the application ' ratione personae ' in itself determined the field of application of the Protocol in a sufficiently clear manner. For reasons given in the preceding paragraph it was clearly not possible to exclude from this field of application any of the persons covered by the Protocol as a whole. As a result the field of application of Part II could be determined simply by referring to Article 1 of the [p.139] Protocol (' General principles and scope of application '), and this solution was finally adopted. Some wondered whether it was necessary to retain this paragraph, which, they considered, did not provide any additional clarity. The precise definition of the field of application ' ratione personae ' (which is not given in Article 1 -- ' General principles and scope of application '), the reference to the purpose of Part II and the general balance of the article, from which paragraph 2 could not be omitted, justified the fact that it was retained.

    414 According to Article 9 , paragraph 1, Part II therefore applies "to all those affected by a situation referred to in Article 1 ". (2)

    415 The expression "all those who are affected by a situation referred to in Article 1 " is, however, insufficiently precise to determine exactly the field of application ' ratione personae ' of Part II. Only an examination, article by article, of the whole of this Part, makes it possible to provide a more precise list of the persons to whom it applies in various circumstances. We will not attempt to draw up this list here, as it is of virtually no interest in that the scope of the provisions varies considerably, depending on the categories of persons concerned. Thus it is with regard to each one of these provisions that we will examine, whenever necessary, which categories of persons are covered.

    416 Furthermore, it is significant that paragraph 1 does not mention the application of Part II to material elements such as medical units or transports. We will also examine these various material elements in the context of the provisions which directly concern them.

    417 Finally, paragraph 1 of Article 9 refers to a fundamental principle of application which applies not only to Part II, but to all the Conventions and Protocols, namely, the fact that this Part applies to persons concerned ' without any adverse distinction. ' This principle was already formulated in each of the four Conventions, (3) and it is also referred to in the fifth paragraph of the Preamble of the Protocol. It means that not all distinctions are prohibited, but only those designed to prejudice certain persons or categories of persons. Thus it is not contrary to the principle to give more care to seriously wounded persons, special food to persons whose state of health requires this, or an extra blanket to persons staying in particularly cold premises, or even to persons who are less able to tolerate the cold than others, for example, as a consequence of their place of origin. On the other hand, it is obviously incompatible with this principle to refuse a blanket, to reduce food rations, or to disadvantage any persons or categories of persons in any way solely because they belong to a particular race or practise a particular religion. In fact, a list is provided of the criteria on which no adverse distinction should be based. However, the list is not exhaustive, as it concludes: "or on any other similar criteria". The criteria mentioned in this list include those which were mentioned in the Conventions, (4) and a few others are added. As the debate on this list took place at the time of the discussion of the [p.140] present Article 75 (' Fundamental guarantees ') by Committee III, this question is further dealt with in the commentary on Article 75 . (5)

    418 Furthermore, it is appropriate to underline the fact that on the basis of these criteria, it is only adverse distinctions that are prohibited and that accordingly certain fundamental distinctions may not be incompatible with the principle, such as, for example, the distribution of Korans to Muslims or Bibles to Christians. However, there is a need for considerable caution. Any distinction should always have a humanitarian and rational cause.

    Paragraph 2

    419 According to the first Convention, recognized organizations of neutral countries can make their medical personnel and units available to the Parties to the conflict in accordance with the procedure and rules laid down in Article 27 of this Convention. The aim of paragraph 2 is to extend this possibility to two other categories.

    420 Reference was simply made in the draft to the "provisions of Article 27 ", but in Article 9 , paragraph 2, there is a mention of the ' relevant ' provisions. This amendment can be justified for a number of reasons.

    421 The first relate to terminology. The terms "medical establishment and medical unit" have been replaced in the Protocols by the expression "medical unit" (6) while the expression "neutral State" has been replaced by the expression "neutral or other State not a Party to the conflict". (7)

    422 Finally, in the French original text, the expression "adverse Party" is used with a lower case letter in the Conventions but with an upper case letter in the Protocol.

    423 However, there is also a substantive reason. In the Conventions there is a mention of "the State" which accepts the assistance of the aid society while the Protocol also considers entities which are not States as being possible Parties to the conflict. (8) The reference to the ' relevant ' provisions of Articles 27 and 32 of the first Convention makes it possible to overcome this difference and to read the articles of the Conventions to which reference is made, within the meaning of the Protocol. Furthermore it is clear that, at any rate for the States which are Parties to the Protocol, Article 27 of the first Convention will itself apply to the Parties to the conflict within the meaning of the Protocol, and not only to States, even if the text of the Protocol may seem to indicate the contrary. Even though the Conventions have not been formally revised, the Protocol has modified the whole system on certain points.

    424 On the other hand, it should be noted that the draft referred only to Article 27 of the first Convention, but Committee II of the CDDH quite logically decided to add a reference to Article 32 of this Convention, which deals with the fate of persons covered by Article 27 if they fall into the hands of an adverse Party.

    [p.141] 425 Now let us read Article 9 , paragraph 2, of the Protocol, in conjunction with Articles 27 and 32 of the first Convention in order to understand exactly what the Protocol adds here.

    426 According to the first Convention, "medical personnel and units", and according to the Protocol, "permanent medical units and transports [...] and their personnel", can be made available to the Parties to the conflict.

    427 The medical units mentioned in the Conventions now apply to both mobile medical units and to the means of transport referred to in the Protocols: thus it is quite clear, on the one hand, that only ' mobile ' medical units can be made available because it is essential that they can be transported, while on the other hand, the expression "medical units" in the Conventions covers the means of medical transport, these transports being by definition, mobile medical services. (9) The insertion of the term "permanent" in the Protocol does not, moreover, constitute a restriction compared with the Conventions. The latter only use the concepts "permanent" and "temporary" with regard to medical personnel, but not with regard to equipment. However, it is clear that it would be contrary to the Conventions to use the medical units lent by a national aid society for purposes other than medical purposes. Thus units which are exclusively destined for medical purposes during the entire period of their use in the conflict meet the qualification "permanent" as understood in the Protocol. (10) Finally, the question of hospital ships used by societies or private persons of neutral or other States not Parties to the conflict is dealt with elsewhere in the Conventions, (11) and has not been included in the Protocol as is expressly mentioned in the brackets in this paragraph.

    428 On the other hand, the text of the Protocol is slightly more restrictive than that of the first Convention with regard to the personnel that may be made available. In fact the Convention permits the authorized society to give the assistance of its personnel independently from that of its medical units, while the Protocol only envisages making available the personnel attached to medical units and transports which have themselves been put at the disposal of one of the Parties to the conflict. However, this restriction will obviously not apply to the societies authorized by Article 27 of the first Convention, which retain the possibility of sending medical personnel independently of sending medical units or transports; this follows from this article and the conditions which it lays down. Moreover, the commentary to the initial draft of this article, (12) which has not been changed on this point, indicates that there was no intention of being more restrictive than the Conventions were, and one can hope that as a result some flexibility will be retained in practice.

    429 However, as has been shown, the purpose of paragraph 2 is to extend to other categories than the recognized societies of neutral or other States not Parties to the conflict the possibility of making available to the Parties to the conflict medical personnel, units and transports. According to the Protocol, the following categories may be so authorized:

    [p.142]
    1. ' Neutral and other States not Parties to the conflict '

    430 This permits the States themselves to take the initiative with regard to making available the personnel and equipment in question, obviously to the extent that they are not Parties to the conflict.

    431 The following conditions are imposed on this:

    a) authorization by the Party to the conflict concerned (Article 27 , first Convention);
    b) notification of this consent to the adverse Party of the Party mentioned under a);
    c) supplying the medical personnel with identification, as laid down in Article 40 of the first Convention, as supplemented by Articles 1 and 2 of Annex I to the Protocol;
    d) control of the Party to the conflict concerned over the personnel and equipment put at its disposal;
    e) notification by the Party to the conflict concerned to the adverse Party, of any use made of this personnel and equipment, prior to their use.

    432 The condition laid down in Article 27 regarding the consent of the government of the State on which the aid society depends is obviously irrelevant as the present initiative is taken by the State itself.

    2. ' The recognized and authorized aid societies of the States mentioned under point 1 '

    433 This concerns the category already covered by Article 27 of the first Convention. Admittedly this article did not mention laid societies, but as the commentary on Article 27 reveals, the societies referred to are the same as those mentioned in Article 26 , namely, the National Red Cross, Red Crescent and Red Lion and Sun Societies, as well as the other voluntary aid societies. (13) In practice, this "will always, or nearly always, be a society which has already been authorized to assist the Medical Service of its own armed forces". (14)

    434 Conditions a) to e) enumerated above under point 1 have also to be fulfilled by the societies concerned, with the additional condition of having the consent of their own government as mentioned explicitly in Article 27 of the first Convention, and repeated in Article 9 , paragraph 2, of the Protocol, to ensure that the societies are "authorized".

    [p.143]
    3. ' The impartial international humanitarian organizations '

    435 The 1973 draft referred to organizations with an international character in a broader sense. It adopted a suggestion made during the Conference of Government Experts which, in accordance with the author's intention, was to have permitted international airlines in particular to make aircraft available for the purposes of medical transportation. (15)

    436 Following a proposal of its Drafting Committee, Committee II added two supplementary characteristics required of the organizations concerned, viz., their impartiality and their humanitarian character.

    437 This reference to impartial international humanitarian organizations, which can be either governmental or non-governmental organizations, amounts to an open invitation, though it is not currently possible to designate the organizations which comply with the required criteria and are ready to make medical personnel, units and transport available.

    438 The conditions required of the international organization are the conditions listed under a) to e) above, with regard to point 1. The consent of the government of the country where the organization is established is irrelevant here as it is an international organization. On the other hand, it must comply with the two characteristics mentioned in the Protocol: i.e., it must be impartial and have a humanitarian character.

    439 An organization can be described as being "impartial" when it "fulfils the qualifications of being genuinely impartial". (16) This implies that it observes the principle of non-discrimination in its activities and, when providing medical aid as laid down in Article 9 , does not make

    "any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria".

    In other words, the organization must respect the principle of impartiality, which is one of the fundamental principles of the Red Cross.

    440 With regard to the organization's "humanitarian character", it is necessary first of all that its activities in the context of the armed conflict retain a purely humanitarian character. However, it is equally essential that the organization ' itself ' has a humanitarian character, and as such, follows only humanitarian aims. This restriction excludes organizations with a political or commercial character. Nevertheless, it is not possible to designate precisely all the organizations covered by the definition, (17) and it will be necessary to examine every case independently.

    ' Y. S. '


    NOTES

    (1) O.R. XI, p. 55, CDDH/II/SR.7, para. 42;

    (2) With regard to what exactly constitutes "a situation referred to in Article 1", cf. commentary Art. 1, paras. 3 and 4, supra, pp. 39-56, and with regard to the persons "affected" by such a situation, cf. commentary Art. 75, para. 1, infra, p. 866;

    (3) Cf. in particular on this subject ' Commentary I, ' pp. 137 ff.;

    (4) Cf. Art. 12, First and Second Conventions; Art. 16, Third Convention and Art. 13, Fourth Convention;

    (5) Cf. infra, p. 870. See also commentary Art. 2 of Protocol II, infra, p. 1358;

    (6) In this respect, cf. commentary Art. 8, sub-para. (e), supra, pp. 128-129;

    (7) In this respect, cf. commentary Art. 2, sub-para. (c), supra, p. 61;

    (8) In this respect, cf. commentary Art. 1, para. 4, supra, pp. 41-56;

    (9) ' Commentary I, ' p. 280;

    (10) With regard to this definition, cf. commentary Art. 8, sub-para. (k), supra, pp. 132-133;

    (11) In Art. 25 of the Second Convention;

    (12) Cf. commentary Art. 9, paras. 2 and 3, of the Draft, ' Commentary Drafts ', p. 20;

    (13) Cf. ' Commentary I, ' p. 230 and p. 232, para. 3;

    (14) Ibid., p. 230;

    (15) Cf. O.R. XII, p. 224, CDD/II/SR.75, para. 42;

    (16) In this respect, see O.R. VI, p. 68, CDDH/II/SR.37, para. 22;

    (17) Cf. Art. 10/10/10/11 common to the four Conventions. Besides, on the meaning of this expression, cf. ' Commentary I ', pp. 118 and 109-110;