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Commentary - Art. 33. Chapter V : Buildings and material
    [p.272] ARTICLE 33 -- BUILDINGS AND MATERIAL
    OF THE MEDICAL SERVICE


    PARAGRAPH 1 -- MOBILE MEDICAL UNITS

    This paragraph speaks only of the material of mobile units, which, ordinarily, will not have buildings.

    A. ' Non-restitution of material. ' -- Under Article 14 of the 1929 Convention , mobile medical units falling into enemy hands kept their equipment and vehicles, and were to be restored, together with the said equipment and vehicles, under the conditions laid down for medical personnel and, as far as possible, at the same time -- or, in other words, during hostilities. A single exception had been provided for: the captor was to be free to use the material for the care of the wounded and sick. But he was obviously only entitled to do this in cases of immediate need, where the equipment required for the care of the wounded and sick in the captured unit was not immediately available from other sources; furthermore, the material had to be later restored or replaced. A medical unit was thus considered as a whole and was in principle to be given back as a complete unit.
    [p.273] In its first draft revisions, the International Committee of the Red Cross did not propose that these provisions should be modified. But at the Conference of Government Experts in 1947, and again during the Diplomatic Conference in 1949, the representatives of States pointed out that the far-reaching changes introduced into the Geneva Convention in regard to medical personnel who fell into enemy hands, and who might in future be legally retained, should logically lead to a radical change in the provision made for the disposal of the equipment of mobile medical units, which need no longer be restored to the country of origin. (1) This point of view prevailed in 1949. The practical obstacles to the restoring of equipment under modern war conditions also influenced the decision of the Conference to some extent. It should be noted, however, that this decision only affects material belonging to the Medical Service of the armed forces, and not that of Red Cross Societies, which should continue to be regarded as private property.

    B. ' Assignment to the wounded. ' -- The Conference of Government Experts in 1947, pursuing the above thesis to its logical conclusion, suggested further that the material of mobile units should be treated in the same way as that of fixed establishments; Paragraphs 1 and 2 of the present Article would then have become a single paragraph. At the XVIIth International Red Cross Conference in 1948, the International Committee of the Red Cross opposed this solution, which would have weakened the safeguards medical units and the wounded themselves had hitherto enjoyed; the material of the mobile units would have been liable to become war booty in the same way as that of the fixed establishments, and to be diverted from its proper use, whereas previously the capturing Power could only use it for the benefit of the wounded.
    This point of view was adopted by the XVIIth Conference and later by the Diplomatic Conference, although certain delegations again supported the thesis which had been accepted in 1947.
    Contrary to the policy laid down -- both in this and in previous Conventions -- in regard to the material of fixed medical establishments, [p.274] the equipment of mobile units will not be subject to the laws of war, but will be used for the care of the wounded and sick -- in the first instance, those cared for in the captured unit. If there are no patients in the unit, or when those who were there have been cured, the material is to be used for the treatment of other wounded and sick persons. Fairness demands, however, that the said material should preferably benefit patients of the same nationality as the unit from which it was taken.

    PARAGRAPH 2 -- FIXED MEDICAL ESTABLISHMENTS

    In the 1864 Geneva Convention (Article 4 ), a distinction had already been drawn between the material of fixed medical establishments and that of mobile units: the material of military hospitals was to be subject to the laws of war, but the ambulances retained theirs. This distinction was maintained in the 1906 and 1929 texts and, also to some extent, as we have just seen, in the existing text.
    As before, the buildings, material and stores of fixed medical establishments of the armed forces "shall remain subject to the laws of war".
    On this point, as on others, the Convention limits itself in part to a reference to the laws of war in force under other provisions of international law. Recourse to such references is justified, since the laws of war may change. It is possible to vizualize a gradual change for the better which would automatically benefit medical buildings and material.
    We are not called upon here to comment on the laws of war, except those contained in the Geneva Conventions themselves. It will be sufficient to recall those rules very briefly; they are often summary and not very precise, and have not always been accepted unanimously by legal authorities.
    As matters stand at present, it is the Regulations respecting the Laws and Customs of War on Land, annexed to the Fourth Hague Convention of 1907, which are relevant here. Under one stipulation, it is forbidden to destroy or seize enemy property unless such destruction or seizure is imperatively demanded by the necessities of war (Article 23 (g) ). (2) Pillage is formally prohibited in Articles 28 and 47 .
    [p.275] A distinction is, however, made between pillage and the right to booty. This right may be exercised in regard to any movable property of the enemy State which may be used, directly or indirectly, for military operations (Article 53, paragraph 1 ). (3) A State which takes booty is regarded as acquiring property without any obligation of restitution or indemnity. (4) The capturing State, subject to the conditions stated in the Geneva Convention, which we shall examine later, may therefore utilize such movable property in any way it wishes.
    The real property of enemy States, however, is not war booty. The Occupying Power may only administer it and have the use of it. (Article 55 .)
    Let us now return to Article 33 of the Geneva Convention. It refers back to the laws of war, but there is an important limitation: the buildings, material, and stores of fixed medical establishments "may not be diverted from their purpose as long as they are required for the care of wounded and sick." In other words, the captor may not make use of them so long as the interests of the wounded and sick nursed in such buildings demand that he should not do so.
    This humanitarian ruling -- which recurs several times in the Convention -- is in turn subject, in accordance with an accepted principle of international law, to the exception of urgent military necessity. If tactical considerations demand that a medical establishment be used for another purpose, they will be imperative. But here we find a further exception: before resorting to such an extreme measure, the belligerent must make prior arrangements for the safety and welfare of the wounded and sick who are nursed in the said establishment.
    The paragraph therefore lays down a principle derived from the circumstances of war, and then quotes an exception based on humanitarian considerations; this exception is itself tempered by a further concession to military realities, which are once again subordinated to humanitarian requirements. Thus, by alternate compromises between military needs and the dictates of humanity, a ' via media ' has been found. [p.276] It may even be affirmed that the entire Geneva Convention is the outcome of similar compromises between the two main opposing tendencies. It was due to its authors in 1864, who grasped this fact, and to their successors, who continued to appreciate its importance, that the Geneva Convention gained its prestige and has become an enduring force.

    PARAGRAPH 3 -- PROHIBITION OF DESTRUCTION

    This is a new provision born of the Diplomatic Conference of 1949: the material and stores defined in the present Article are not to be intentionally destroyed.
    The provision covers the material of both mobile units and fixed establishments. It also refers to stores of material, but only to those belonging to fixed establishments, as the nature of mobile units excludes their having stores in the real sense. The stipulation does not, however, cover the actual buildings, which may in certain extreme cases have to be destroyed for tactical reasons.
    The introduction of the paragraph is a remarkable step forward in humanitarian legislation. It does not confine itself to protecting the material of fixed establishments against the enemy (which is done by the general provisions of the Convention -- and was in fact already done in 1929); it also protects the material in cases where those holding it might be tempted to destroy it to prevent it from falling into enemy hands. (5)
    Such acts are not unprecedented, but they are altogether contrary to the spirit of the Geneva Convention, an essential aim of which is to "neutralize", as it were, all persons or objects potentially useful to the wounded and sick, whatever their nationality. Destruction of this sort is now expressly forbidden.


    * (1) [(1) p.273] We are referring here to the handing back of
    material during hostilities, as provided for in the 1929
    text. The Convention does not decide what is to be done
    with such material after hostilities end. The latter
    question is governed by the general provisions of the laws
    of war, according to which, subject to contrary
    stipulation in the peace treaty, it would not appear that
    the State which had originally owned the material could
    demand to have it restored or look for compensation. See
    below, page 275;

    (2) [(1) p.274] This provision was introduced into Article 53
    of the Fourth Geneva Convention of 1949 in connection with
    the destruction of property;

    (3) [(1) p.275] Article 56 of the Regulations provides that
    the property of municipalities and that of institutions
    dedicated to religion, charity and education, and the arts
    and sciences, shall be exempted. Rut as the property
    mentioned in Article 33 of the 1949 Geneva Convention
    belongs to the armed forces, it would not be considered as
    exempted by this provision;

    (4) [(2) p.275] In spite of the fact that the expression used
    in Article 53, Paragraph 1, of the Regulations is "take
    possession of" tin the French version -- "saisir");

    (5) [(1) p.276] See ' Final Record of the Diplomatic
    Conference of Geneva, 1949, ' Vol. II-A, page 83;