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Commentary - Protection of persons
    [p.149] Article 11 -- Protection of persons


    [p.150] General remarks

    455 The foremost aim of draft Article 11 was to clarify and develop the protection of persons protected by the Conventions and the Protocol against medical procedures not indicated by their state of health, and particularly against unlawful medical experiments. (1)

    456 This aim is certainly achieved by the article as it was finally adopted. However, numerous modifications or nuances were incorporated in the original draft and various elements were added. The most important modification concerns the categories of persons covered by the article. As regards the additions, these are mainly concerned with the possible derogations from explicit prohibitions on [p.151] particular acts, the breaches of the rules formulated at the
    beginning of the article, the possibility of refusing surgical operations and the keeping of medical records. We will examine these rules in greater detail in the analysis of each paragraph.

    457 Nevertheless, it is appropriate to point out a more general question which was raised in Committee II, i.e., the place of this article. Some considered that it would be more logical to place it in Section III of Part IV of the Protocol, entitled "Treatment of persons in the power of a Party to the conflict". In fact, the similarity between Article 11 and Article 75 (' Fundamental guarantees '), which is in Part IV, Section III, cannot be denied. Article 75 (' Fundamental guarantees ') covers "persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol", and "in so far as they are affected by a situation referred to in Article 1 of this Protocol".

    458 The connection with a situation referred to in Article 1 of the Protocol (' General principles and scope of application ') (2) exists for both articles.

    459 Furthermore, certain persons covered by Article 11 are also covered by Article 75 (' Fundamental guarantees '), and although the latter endeavours to cover fundamental guarantees as a whole, and not merely guarantees relating to medical abuses, these are included. To some extent the field of application ' ratione personae ' of the two articles thus overlap, and the field of application ' ratione materiae ' also seems to do so. Thus, for example, the question of mutilation, which a Party to the conflict is prohibited from committing, even on its own nationals who are detained for a reason related to the conflict, seems to fall under Article 11 , as well as Article 75 (' Fundamental guarantees '). However, we have deliberately used the word "seems", as there is a difficulty here which did not go unnoticed by the authors of the Protocol. Paragraph 1 of Article 75 (' Fundamental guarantees ') indicates that the provisions of this article apply only to persons covered by it to the extent that they "do not benefit from more favourable treatment under the Conventions or under this Protocol". With regard to the persons covered by the two articles, it is therefore the provisions of Article 11 which apply to the matters dealt with by that article, while the provisions of Article 75 (' Fundamental guarantees ') relating to other matters also apply to them. (3)

    460 However, there are basically two reasons why Article 11 was finally retained in Part II, viz.:

    a) this article concerns, above all, as regards the rights which it grants, the wounded, sick and shipwrecked, both civilian and military, who are protected by Part II as a whole;
    b) the obligations which it lays down are primarily addressed to medical personnel whose rights and duties are also essentially defined in Part II.

    [p.152] Paragraph 1

    ' First sentence '

    461 This sentence expresses the principle of the article and determines the persons to whom this principle applies in the context of the Protocol.

    462 First of all, health and integrity must not be endangered. Physical health is endangered, for example, if a wound is allowed to become infected through lack of hygiene or care, or because there is no medication, whether this is because of a harmful intention or gross negligence in the light of the local conditions and circumstances. Endangering physical integrity could be, for example, the amputation of an arm for no reason, or allowing a wound to become infected to the point where amputation becomes necessary. Thus these two elements -- health and integrity -- are often related, though this is not necessarily always the case. Matters affecting health may not be dangerous to a person's integrity, and experimental surgical operations can be performed with all possible precautions to ensure that the health of the patient undergoing the operation is not affected. This is why it is important to prohibit endangering both of these elements.

    463 In addition, it is also prohibited to endanger mental health and integrity. This refers to medical experiments which affect the mental equilibrium of persons subjected to them, as well as, for example, the practice of leaving a person in complete isolation for a very long period of time. In addition, mental health and integrity can be particularly endangered by the practice known as "brainwashing", i.e., the massive injection of propaganda by more or less scientific means. Here too, mental health and mental integrity generally go together, although this is not always the case, and the prohibition on endangering both makes any loopholes impossible.

    464 The original draft referred to acts and omissions "harmful to the health or to the physical or mental well-being". The article, as it is now, goes further when it states that health and integrity ' shall not be endangered. ' Indeed, it is possible to endanger health, for example, by leaving a contagious patient together with another detainee, without this necessarily having any effect. (4)

    465 Moreover, the text refers to acts or omissions. The traditional term used in continental criminal law is "acts of commission or omission".

    466 In fact, it is just as possible to endanger a person's health or integrity, for example, by removing an organ unnecessarily, as by depriving him of food or drink, or leaving unattended a wound which is becoming infected. Moreover, an omission may be voluntary (intent to harm his health), or be the result of gross negligence (failure to take care of persons for whom one is responsible).

    467 These acts or omissions which endanger health or integrity must be ' unjustified. ' This term was discussed in Committee II, and some delegations requested that it be deleted. The reason that it was finally retained was that some justified acts or omissions can in fact endanger health. This is the case in particular when a doctor decides to operate in an almost hopeless case. This operation may result in the patient dying even sooner, but it may also save his life. It is impossible to exclude [p.153] such a risk in all cases, and it did not seem wise to paralyse doctors' actions by an excessively strict provision on this point. Moreover, it should be noted that the act or omission must obviously be "justified" on medical and ethical grounds, with two exceptions: this article is not intended to prevent the execution of persons who have been lawfully condemned to death, and the omission of a surgical operation which is justified by the refusal of the person who has to undergo this operation. (5)

    468 Secondly, this first sentence defines the persons covered by the application of the principle in the context of the Protocol. These are primarily all persons in the power of the adverse Party, i.e., prisoners of war, civilian internees, persons who have been refused authorization to leave the territory of this adverse Party, and even all persons belonging to a Party to the conflict who simply find themselves in the territory of the adverse Party. The term "territory o the adverse Party" is used here to mean the territory in which this Party exercises public authority de facto. However, enemy aliens need not necessarily have anything to do directly with the authorities: the simple fact of being in the territory of the adverse Party, as defined above, implies that one is "in the power" of the latter. In other words, as specified in the commentary on the fourth Convention, the expression "in the power" should not necessarily be taken in the literal sense; it simply signifies that the person is in the territory under control of the Power in question. (6) Finally, the inhabitants of territory occupied by the adverse Party are also in the power of this adverse Party.

    469 Moreover, other persons are also covered by the article: persons "interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1". Thus these are persons who do not come under the authority of the adverse Party. In fact, as we have just seen, the latter (i.e., those who are subject to the authority of the adverse Party) benefit from a very wide protection because of the broad concept covered by the expression "in the power". Obviously such a wide protection was not justified for others: for example, there is no reason to protect a priori a national of a State not Party to the conflict (7) who is in the territory of a Party to the conflict. On the other hand, it seemed appropriate to protect any person from the moment his freedom of movement is denied because of hostilities or, more specifically, because of a situation referred to in Article 1 of the Protocol ' General principles and scope of application ').

    470 Apart from the nationals of the adverse Party, all persons in territory controlled by a Party to the conflict may therefore be covered. Obviously the article is primarily concerned with persons protected stricto sensu by the Conventions and the Protocol, but it is also concerned with persons who are not, viz.:

    -- nationals of neutral States or other States not Parties to the conflict which have normal diplomatic relations with this Party to the conflict, who are in the territory of the latter (in occupied territory they are protected persons in the sense of the Fourth Convention);

    [p.154]

    -- nationals of a co-belligerent State;
    -- persons who have become refugees after the outbreak of hostilities; (8)
    -- nationals of States not Parties to the Protocol (whether or not these States are engaged in the conflict);
    -- the nationals of the Party to the conflict.

    However, all these persons are covered only if two conditions are met:

    a) they have been deprived of liberty in one way or another, whether they are detained in prison, hospital or any other place, interned in a camp or even simply confined to a designated residence;
    b) they are deprived of liberty as a result of a situation described in Article 1 . The draft stated more simply: "as a result of hostilities". However, it was justifiably noted that the Conventions and the Protocol also apply in cases of occupation where there is no military resistance (cf. Article 2 , paragraph 2, common to the four Conventions). The formula which was finally adopted removes any ambiguity by referring to Article 1 (' General principles and scope of application '), which defines the situations in which the Protocol applies, and which in turn refers to Article 2 of the Conventions. (9)

    471 However, it is also necessary to define the relationship which must exist between the persons concerned and such a situation, since these persons must be deprived of liberty ' as a result ' of such a situation. (10)

    472 Finally, it should be noted that the principle laid down in Article 11 is quite generally accepted, even outside armed conflict, in the context of human rights. However, it is not immaterial whether or not a person is covered by the Protocol, as the system of supervision and of sanctions is more strict than with regard to the rules for the protection of human rights.

    ' Second sentence '

    473 As mentioned above, Article 11 is basically aimed at preventing medical procedures not indicated by the state of health of the persons concerned. The principle laid down in the first sentence goes beyond the context of medical procedures. For example, the fact that a prison warden deprives detainees of food cannot be considered to be a medical procedure; though the principle covers such acts or omissions. However, in the second sentence of paragraph 1 the concern which is at the root of the article is revealed again, and as aresult of the general principle contained in the first sentence, is applied to medical procedures.

    474 A medical procedure must be understood to mean any procedure which has the purpose of influencing the state of health of the person undergoing it. Obviously this refers to any surgical operation, but it also covers medication or even diets or courses oftreatment prescribed for medical reasons. If a negligent warden fails [p.155] to provide adequate food for the detainees for whom he is responsible, this could not be considered as a medical procedure. On the other hand, a doctor who prescribes a diet is certainly performing a medical procedure. The french text uses the word "acte", which, however, must not be given a more restricted meaning than the broader term "procedure" used in the English text.

    475 In order to be authorized, a medical procedure must fulfil two cumulative) conditions:

    a) It must be indicated by the state of health of the person concerned. If this condition had been laid down outside the context of the article, and in particular without being accompanied by a second condition, it would have been inadequate and could even have justified the worst forms of abuse: it is conceivable that a tyrannical régime would seek to justify the physical elimination of the chronically sick or mentally retarded with arguments relating to the state of health of the persons concerned. However, there is no room for doubt here. The reason for a medical procedure must be the improvement of the state of health of the person concerned: this is obviously a humanitarian perspective. Thus this reason may be either to improve the health of the person to whom the procedure is applied, or to relieve his suffering. As health also covers physical well-being, it can be argued that the relief of suffering amounts to a short-term improvement in health. Obviously a knotty problem would arise if this short-term improvement is at the expense of the patient's health in the long term. This problem becomes even more acute in cases of active or passive euthanasia aimed at terminating the intolerable suffering of persons whose death is inevitable. The condition laid down here is certainly not aimed at answering this type of problem which belongs to medical ethics. It is limited to prohibiting medical procedures which are not performed for the benefit of the person concerned. The medical norms mentioned under the second condition must provide the answers to such questions.
    b) Secondly, the medical procedure must be consistent with generally accepted medical standards which the Party responsible for the procedure would apply under similar medical circumstances to its own nationals who are at liberty. This second condition contains a universal element -- generally recognized medical standards -- tempered by an element related to local medical conditions.

    476 Unfortunately "generally accepted medical standards" have not been assembled in a universally adopted international instrument, and it is certainly beyond the scope of this commentary to attempt to list these standards. At most it is possible to mention certain instruments which give some indications of this matter. (11) However, it is clear that some standards are undeniable, such as that [p.156] expressed above, which requires that medical procedures are performed in the interests of the patient. Thus, although the reference to generally accepted medical standards is insufficient to precisely define the field which it covers, it does allow for certain lines to be drawn. There is no doubt that there are "minimum standards", though it is certainly necessary to define these better. The humanitarian perspective from which we must consider the state of health of a person on whom a medical procedure is performed, as in the case quoted above, is a good example.

    477 However, there are also norms which, even though they are generally accepted, cannot be universally applied, because of insufficient means. This applies, for example, to the norms concerning the minimum medical environment for a given population, or the training of medical personnel. It would be pointless to ignore reality and require the strict application of standards by impecunious States which cannot observe such standards in peacetime with regard to their own population. Thus the criterion which has been used is the following: the medical personnel of a Party to the conflict must treat the persons referred to in this article in accordance with the criteria that it would apply in similar medical circumstances -- i.e., having regard to the severity of the case concerned and the availability of medical personnel and means -- to the nationals of the Party to the conflict itself who are ' in no way deprived of liberty. ' This last condition is appropriate to the extent that, as we saw above, the persons who are nationals of the Party to the conflict and are deprived of liberty by that Party, can be amongst the persons covered by the article. Thus reference is not made here to such persons or to any other detainees, but to the population as a whole. In other words, the Parties to the conflict are required not to make any discrimination in the application of medical standards between the persons covered by the present article and their own population as a whole.

    Paragraph 2

    478 This paragraph supplements the preceding paragraph. Without purporting to enumerate the procedures prohibited by paragraph 1 -- the text states: "it is, in particular, prohibited" -- it highlights a certain number of medical procedures which can easily give rise to abuse and which are in principle prohibited. These are:

    a) physical mutilations, i.e., particularly amputations and injury to limbs;
    b) medical or scientific experiments. Indeed, the persons concerned here are especially vulnerable in this field. Thus it was important to specify the prohibition against using them as guinea-pigs;
    c) removal of tissue or organs for transplantation. The possibility of transplanting organs for therapeutic purposes is relatively new, but it is obviously essential to observe very strict ethical rules with regard to the donor. The risk of abuse with regard to the persons concerned here is clear, and this explains the specific mention of operations such as the removal of tissue, especially skin, and of blood -- which are prohibited for the same reasons.

    479 However, there are some logical exceptions if the procedures are "justified in conformity with the conditions provided for in paragraph 1", i.e., essentially, as [p.157] we have seen, if they are conducive to improving the state of health of the person concerned.

    480 In this sense it is clear that some mutilations may be indispensable, such as the amputation of a gangrenous limb.

    481 On the other hand, it is far less common for medical or scientific experiments to conform with the criteria of paragraph 1. Experiments carried out purely for scientific purposes are in any case categorically excluded. The only case in which such an experiment might be allowed if it could be considered as a medical experiment might be if a doctor tried out a new cure on a person who definitely could not be cured through the known methods. However, this is a marginal case which once again raises questions of medical ethics more than anything else.

    482 With regard to the removal of organs for transplantation, this is prohibited in any case because this cannot be justified by referring to the state of health of the person donating the organ. Such practices are not completely out of the question in time of peace (as in the case of a father donating a kidney to his son), but it was essential to prohibit them totally with regard to the persons concerned here, as the danger of abuse would have been too great. However, this obviously does not prevent removals carried out for therapeutic purposes, as in the case of appendicitis or cancerous organs.

    483 The removal of diseased tissue is also permitted for therapeutic purposes. The transplantation of healthy tissue is not excluded either if this is carried out on one and the same person (for example, the removal of skin to repair a badly burned face). As regards the removal of tissue for transplantation on other persons, this is prohibited in principle by paragraph 1, as it is not carried out for the benefit of the person whose tissue is removed. However, we will see below that a derogation has been made to this rule. (12)

    484 If they are not justified by paragraph 1, and apart from the minor derogation permitted in paragraph 3 with regard to the removal of tissue, the acts mentioned in paragraph 2 are absolutely prohibited. In this sense it is explicitly stated that such acts could not be justified even with the consent of the person concerned. This rule applies in any case to all medical acts which are not performed in the interests of the person undergoing the treatment. This unequivocal statement is intended to prevent any possibility of justification on such grounds, and to prevent pressure being improperly exerted on the persons concerned here to obtain their consent.

    Paragraph 3

    485 This paragraph permits a slight exception to the strict prohibition, contained in paragraphs 1 and 2, to subject the persons concerned here to medical procedures which are not solely undertaken for their own benefit. It only concerns the withdrawal of blood for transfusion and the removal of skin for grafting. In both cases such removal may be invaluable from the medical point of view, and of considerable practical importance. Large numbers of the wounded may die for [p.158] lack of blood for transfusions and skin grafts can also save lives, especially in cases of severe burns. Thus it seemed to be going too far to totally prohibit donations of blood and skin from persons covered by Article 11 , particularly as the risk of abuse in such cases is not as great. Besides, the article itself imposes very rigorous rules on such removals.

    486 First, the removals must be ' donations '. It is therefore strictly prohibited to ' impose ' the taking of blood or skin. To prevent any ambiguity it is stipulated that such donations must be voluntary, which may seem tautologous, but clearly indicates that the donor must be capable of expressing his will (in this way taking blood or skin from unconscious persons or those incapable to make a decision is prevented). Moreover, it is specified that the will must be expressed voluntarily and any coercive measures (threats, discriminatory measures, punishments etc.) and even inducements (promises of important advantages, pressure on those who hold out etc.) were explicitly prohibited.

    487 Secondly, there can only be two sorts of donations: donations of blood and donations of skin, which each have a specific purpose, i.e., blood transfusions and grafts respectively. Moreover, such transfusions or grafts must obviously be intended to improve the state of health of the recipient. Simple experiments are strictly prohibited, as is clearly specified: the donations must be "for therapeutic purposes".

    488 In addition, they must be carried out "under conditions consistent with generally accepted medical standards". This refers in particular to conditions of hygiene and safety needed to provide guarantees for the donor's health. (13)

    489 Finally, taking blood for transfusion or skin for grafts must be done with adequate controls prior to and during the operation, "designed for the benefit of both the donor and the recipient". This means, in particular, that it should be clearly established that taking the blood or skin does not present any special danger to the donor's health, and that the transfusions or grafts are necessary for the improvement of the health of the recipient. These controls should also be exercised during and after the operation.

    490 In short, the exception allowed in paragraph 3 is justified in that it makes it possible to help many wounded and sick, and because all the guarantees are given in its application to prevent abuse.

    Paragraph 4

    491 The problem broached in this paragraph is that of establishing the degree of gravity of any breaches of the provisions of the preceding paragraphs, with a view to sanctions. The repression of breaches of the Conventions and the Protocol is dealt with in Section II of Part V of this Protocol. (14) However, to understand the paragraph under examination here, it is important to recall the main distinction made in the Conventions and the Protocol between ' breaches ' and ' grave breaches ' of these instruments. Although the Parties to the conflict are under the obligation [p.159] to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions and Protocol I, they are only bound to bring to court persons having committed grave breaches of these treaties, which are in any case considered to be war crimes.

    492 Paragraph 4 qualifies as "grave breaches" some of the breaches which may be committed with respect to paragraphs 1, 2 and 3, with all the attendant consequences.

    493 For a breach of these paragraphs to be considered grave breach, it must fulfil the following conditions cumulatively:

    a) it must be a ' wilful ' act or omission. Thus it is not possible to commit a grave breach through negligence, even though this may constitute a breach of paragraphs 1, 2 and 3, as we have seen. Moreover, the adjective "wilful" also excludes persons with an immature or greatly impaired intellectual capacity (children, mentally retarded persons etc.) or persons acting without knowing what they are doing (e.g., under the influence of drugs or medication). On the other hand, the concept of recklessness that may come into play -- the person in question accepts the risk in full knowledge of what he is doing -- must also be taken to be part and parcel of the concept of ' wilfulness '. (15)
    b) The act or omission must "seriously endanger the physical or mental health o integrity" of the persons concerned. This does not go as far as the principle contained in paragraph 1 which prohibits acts or omissions which "endanger health". (16) The scope of the acts or omissions covered by paragraph 4 is therefore more restricted. However, the health does not necessarily have to be affected by the act or omission, but it must be clearly and significantly endangered. It is difficult to be more specific on this point. To know whether a person's health has or has not been seriously endangered is a matter of judgment and a tribunal should settle this on the basis not only of the act or omission concerned, but also on the foreseeable consequences having regard to the state of health of the person subjected to them.
    c) Moreover, the act or omission must ' violate any of the prohibitions in paragraphs 1 and 2 ' or ' fail to comply with the requirements of paragraph 3 '. The very broad principle expressed in the first sentence of paragraph 1 certainly covers all acts and omissions complying with the above condition (cf. letter b)). Thus this is not really an additional condition, but merely a reminder that the transgression of any of the prohibitions and conditions mentioned in the preceding paragraphs may constitute a grave breach of the Protocol, given that they only constitute a grave breach if the other conditions (letters a), b) and d)) are also fulfilled.

    [p.160]

    d) Finally, the act or omission concerned must be committed against a "person who is in the power of a Party other than the one on which he depends". Thus acts or omissions committed in connection with deprivation of liberty imposed by a Party to the conflict on its own nationals are not considered as grave breaches, even if they are wilful and seriously endanger their physical or mental health or integrity, and even if they are deprived of liberty "as a result of a situation referred to in Article 1". (17) At first sight this restriction hardly seems logical. The same acts prohibited by the Protocol with regard to different categories of persons which it defines are not considered as grave breaches if they are committed against one of these categories. This does not seem fair, but it is not the purpose of this provision to arbitrarily exempt some persons from a just punishment. (18)

    Paragraph 5

    494 This paragraph lays down a principle and determines the way in which this principle is to be applied.

    ' First sentence '

    495 The principle is that of the right of persons concerned to refuse any surgical operation. We have seen that acts or omissions endangering the physical health or integrity of the persons concerned are prohibited, unless they are justified, and that the justification must generally be of a medical and ethical nature. This paragraph is therefore an exception, as the rule laid down is unrestricted: the person concerned may refuse an operation, even if the surgeon considers it to be essential for his survival and therefore perfectly justified at a medical level. This question actually raises a problem of medical ethics for which we have not yet come up with a clear and universal solution in time of peace. However, the principle contained here in the context of the Protocol is unequivocal. Nevertheless, it is admitted that the surgeon is only bound by such a refusal if the person expressing it has reached a high enough age to be capable of judgement and his intellectual capacities are unimpaired.

    496 One question remains open: if a patient who has refused a surgical operation falls into a coma, should the surgeon consider this to be a new situation and operate anyway, or should he consider himself bound by the patient's refusal. Again this raises a delicate problem of medical ethics which the doctor will have [p.161] to deal with to the best of his conscience and without incurring the risk of being accused of committing a breach of the Protocol, whatever solution he has chosen. However, in one case it is clear that the surgeon must act: viz., when the operation required by the comatose condition is unrelated to the operation the patient had previously refused.

    ' Second sentence '

    497 As mentioned above, the second sentence determines the way in which the principle is to be applied. In case of refusal, medical personnel (19) should endeavour to obtain a written statement. Every effort should be made to obtain such a statement, but if the person refusing the operation also refuses to make a statement, medical personnel cannot be expected to waste a lot of time in trying to persuade him, especially when they are overworked, which is often the case in time of war.

    498 The word "endeavour" also clearly indicates the secondary importance of the statement in relation to the refusal: the fact that a person refuses to make the statement does not mean that his refusal of the surgical operation can be ignored.

    499 However, this statement may also be important to the medical personnel, who, without such a statement, might be afraid of being accused of having endangered the patient's health by omitting to carry out the necessary medical treatment. Thus in the case of a double refusal -- refusing a necessary surgical operation and refusing to acknowledge this first refusal in a statement (actually a very rare occurence) -- it is in the interests of the medical personnel concerned to compile a case history containing, if at all possible, evidence from third parties of the patient's double refusal.

    500 Finally, paragraph 5 stipulates a technical point with regard to the declaration to be made by the patient: it should be "signed or acknowledged" by him. The patient may be prevented from signing the declaration for two reasons: either because he does not know how to write, or because he is physically prevented from signing. If he does not know how to write, he can be asked to add an identification mark such as his thumbprint, to the statement, after the text has been read to him. If he is physically disabled, as in the case of a completely paralysed person, the best solution would be to read the statement to him in front of witnesses who could then sign it, certifying that the statement is in accordance with the patient's wishes.

    Paragraph 6

    501 This paragraph deals with the problem of supervision. If proper supervision regarding the application of the Protocol by the Protecting Powers or their substitute is to be guaranteed, in accordance with the system established by the [p.162] Conventions and the Protocol, (20) it is essential, or at any rate very useful to keep medical records with a view to the supervision of acts covered by this article.

    502 The wording of the paragraph was proposed by the Drafting Committee of Committee II, before being approved by the latter, on the basis of oral proposals presented during the Conference. It makes a distinction between two cases: one in which keeping records is compulsory; the other in which it is not necessarily so. Finally, it explains the reason for keeping records: they must be available for inspection by the Protecting Power.

    ' First sentence '

    503 There is an absolute obligation to keep records concerning donations of blood for transfusion or skin for grafting, i.e., for the operations carried out in accordance with paragraph 3. This strict obligation is justified by the fact that it covers the only operations that can be lawfully carried out on a person covered by this article, without it being in his own interest. The compulsory keeping of records constitutes an additional means of preventing abuses. The record will contain not only the details of the procedure (place, date, nature, etc.), but also the agreement of the patient, signed or acknowledged by him.

    504 Moreover, it is specified that this obligation on the Party to the conflict exists only if the donation "is made under the responsibility of that Party". This clarification was added in order to absolve an Occupying Power from this obligation for acts accomplished in hospitals (or other places) in occupied territory where it does not exercise control, particularly when it leaves the management of a hospital to the staff established there before the occupation. On the other hand, it will be bound by the obligation if, for example, it collects blood itself in the occupied territory.

    ' Second sentence '

    505 The scope of this sentence is much broader, since it is concerned with keeping records of "all medical procedures undertaken with respect to any person who is interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1 ". This does not include procedures undertaken with respect to all persons in the power of an adverse Party covered by the rest of the article. In fact, it would have been going too far to request keeping medical records for all persons in the power of an adverse Party and particularly for all the inhabitants of an occupied territory. In general, an Occupying Power will allow the medical services in place to continue functioning to take care of the health of the inhabitants of occupied territory. To ask them to keep medical records for the procedures undertaken with respect to such inhabitants would lead to the establishment of an extremely cumbersome administrative system, which would not be justified.

    [p.163] 506 Obviously the case of persons deprived of liberty as a result of a situation referred to in Article 1 (' General principles and scope of application ') (21) is different, as they are more vulnerable, being much more dependent on the Party to the conflict. Thus we are concerned here with medical procedures undertaken on them.

    507 Bearing in mind the practical impossibilities some Parties to the conflict may encounter, the obligation to keep such records was not made in an unrestricted fashion. Each Party to the conflict ' shall endeavour ' to keep such records. Thus there is no absolute obligation, but nor is it simply a matter of choice left up to the Parties to the conflict. They must keep such records if they have the means to do so, and if not, they must be able to justify the fact that they genuinely could not keep them.

    508 Finally, the records concerned are for all ' medical procedures ' undertaken with respect to the persons concerned. Thus they are not kept only for surgical operations, but also for various types of treatment (cures, radiation, medication taken, etc.) or care which has been given. On the other hand, the simple administration of a light sedative or sleeping pill by non-medical staff could not be described as a ' medical ' procedure.

    ' Third sentence '

    509 Such records are certainly useful in themselves, particularly at a medical level. It is important for a doctor to be aware of wounds and illnesses suffered by a patient, and the treatment that has been given.

    510 However, the obligation to keep records in the context of the Protocol is intended rather to prevent abuse and to detect breaches committed with regard to the provisions of this article. It is true that the records do not constitute a foolproof means of supervision. In particular, they do not allow for any control on omissions endangering the health of persons concerned. Nevertheless, they form a by no means negligible means of supervision if they can be consulted without warning, which allows the inspector to supervise the way in which they are kept and the truthfulness of the entries.

    511 Paragraph 6 certainly provides that the records shall be available at all times for inspection, and the role of inspector is played by the representative of the Protecting Power or its substitute. (22) The latter can compare the contents of the records with the statements of the protected persons whom he is able to visit, and should therefore be able to form a fairly clear picture of the situation.

    ' Y. S. '


    NOTES (1) Cf. Art. 12, para. 2, First and Second Conventions; Art. 13, para. 1, Third Convention; Art. 32, Fourth Convention;

    (2) With regard to this expression, cf. infra., pp. 153-154;

    (3) On this subject, cf. also commentary Art. 75, para. 1, infra, pp. 866-869;

    (4) On this subject, cf. also infra, p. 159 and note 16;

    (5) On this subject, cf. commentary para. 5, infra., pp. 160-161;

    (6) ' Commentary IV, ' p. 47; cf. also commentary
    Art. 75, para. 1, infra, p. 866;

    (7) On the exact meaning of the expression "neutral or other States not Parties to the conflict", cf.commentary Art. 2, sub-para. (c), supra, p. 61. For the purpose of simplification, we refer here to "States not Parties to the conflict";

    (8) On this subject, cf. Art. 73. It is to be noted in this respect that stateless persons, even if they were not considered as such until after the commencement of hostilities, are protected by Article 4, para. 1, of the Fourth Convention. Cf. commentary Art. 73, infra, p. 845;

    (9) Cf. commentary Art. 1, paras. 3 and 4, supra, pp. 39-56;

    (10) On this subject, cf. commentary Art. 75, para. 1, infra, pp. 866-867;

    (11) In this respect we refer in particular to the ' Declaration of Geneva ' (modern version of the Hippocratic Oath) (1948), the ' International code of medical ethics ' (1949), the ' Rules of medical ethics in time of war ' (1962) and the ' Rules to ensure aid and care for the wounded and sick, particularly in time of armed conflict ' (1962). All these instruments were adopted by the World Medical Association, the latter two jointly with the International Committee of Military Medicine and Pharmacy and the ICRC. For a thorough study of this question and accompanying bibliography, cf. in particular, M. Torrelli, ' Le Médecin et les droits de l'homme, ' Paris, 1983;

    (12) Cf. commentary para. 3, infra;

    (13) Cf. moreover, supra, pp. 154-156;

    (14) For an analysis of the problems raised in this Section, refer to the commentary thereon, infra, p. 973;

    (15) In the French text of this commentary and of Art. 85 the term "intentionnel" is used. This is the legal term generally used, particularly in the context of penal law. The French text of Art. 11, para. 4, however, uses the term "volontaire", which is another translation of "wilful". As the latter term being used in the English text both in Art. 11, para. 4, and in Art. 85, paras. 3 and 4, it is clear that there is no difference of meaning.
    As to recklessness, the concept used in Civil Law systems "dol éventuel" can also be translated in English as "malice prepense";

    (16) The French text uses the expressions "compromettre" and "mettre en danger" where the English text uses the single verb "endanger", revealing that the two French terms have the same meaning. On the other hand, the addition of the adverb "seriously", both in the English and French texts, is significant;

    (17) It could be noted that the word "Party", used here on its own, actually means "Party to the conflict"; there can be no doubt on this point;

    (18) In fact, this restrictive clause was introduced as a result of an amendment during the last session of the CDDH because of a concern to preserve the sovereignty of States. According to the authors of the amendment, only the State is responsible in all circumstances for the repression of breaches, no matter how grave, committed by one of its nationals upon another. It was also stated that these might be crimes against humanity, but that it was important to distinguish them from war crimes. Cf. O.R. III, p. 62, CDDH/II/438; O.R. XII, pp. 463-464, CDDH/II/SR.98, para. 58, and p. 465, CDDH/II/SR.99, paras. 3 and 4;

    (19) As defined in Art. 8, sub-para. (c), cf. supra, pp. 124-127;

    (20) On this subject, cf. in particular commentary Art. 5, supra, p. 75;

    (21) Enumerated in the commentary on para. 1, supra, pp. 153-154;

    (22) On the subject of the role of the Protecting Power or its substitute, cf. also commentary Art. 5, supra, p. 75;