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Commentary - Protection of medical and religious personnel
    [p.1417] Article 9 -- Protection of medical and religious personnel

    [p.1418] General remarks

    4658 The Conventions provide for protection of military medical and religious personnel, (1) and some members of civilian medical personnel. (2) Protocol I extended such protection to all civilian medical and religious personnel. (3) On the other hand, common Article 3 is silent on this point and merely lays down the principle that the wounded and sick should be protected. Although the implementation of this principle implied that respect and protection was due to medical personnel, it was necessary to make good this omission in order to strengthen the protection and improve the means of safeguarding the wounded and sick. This is the aim of Article 9.

    4659 Article 9 reflects the tenor of Article 15 of the ICRC draft. (4) Like the other provisions of this Part, Article 9 was negotiated and drafted on the basis of definitions developed for the two Protocols together.

    Paragraph 1

    4660 The first sentence lays down the principle that respect and protection is due to religious and medical personnel which shall display the distinctive emblem, as prescribed in article 12 ' (The distinctive emblem). ' It therefore seems essential to define such personnel who are entitled to display the red cross or red crescent emblem under the authorization and recognition of the authorities in power. If this were not the case, abuses would be inevitable.

    4661 Who fall under the definition of medical and religious personnel? The Working Group which studied questions relating to Articles 15, 16 and 18, (5) to be dealt with by Committee II, considered in its report that the term "medical personnel", as used in Protocol II, should include all the categories of persons listed in Article 8 ' (Terminology), ' sub-paragraph (d), of Protocol I. (6)

    4662 As regards religious personnel, the Working Group formally raised the question whether the term "religious personnel" should have a wider scope than it had at that stage of the negotiations in article 15 of Protocol I ' (Protection of [p.1419] civilian medical and religious personnel), ' and wider than was envisaged by Article 24 of the first Convention, and in Articles 36 and 37 of the Second Convention. (7) On the basis of an analysis of this question it was decided that religious personnel should be defined in the same way in the two Protocols.

    4663 We should therefore refer, both for medical personnel and for religious personnel, to the definitions of these terms given in Article 8 ' (Terminology) ' of Protocol I.

    4664 Medical personnel covers "those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated under sub-paragraph (e)", i.e., "the search for, collection, transportation, diagnosis or treatment -- including first-aid treatment -- (8) of the wounded, sick and shipwrecked, or for the prevention of disease", and

    "to the administration of medical units or to the operation or administration of medical transports. (9) Such assignments may be either permanent or temporary. The term includes:
    (i) medical personnel of a Party to the conflict, whether military or civilian, including those described in the first and Second Conventions, and those assigned to civil defence organizations;
    (ii) medical personnel of national Red Cross (Red Crescent, Red Lion and Sun) Societies (10) and other national voluntary aid societies duly recognized and authorized by a Party to the conflict;
    (iii) medical personnel of medical units or medical transports described in Article 9, paragraph 2".

    4665 At this point it is also appropriate to refer to the definition developed for Protocol II, which took into account the specific aspects of internal conflicts. This read as follows: (11)

    "The term [medical personnel] shall include:
    (i) medical personnel of a party to the conflict, whether military or civilian [including those assigned to medical tasks of civil defence];
    (ii) medical personnel of Red Cross (Red Crescent, Red Lion and Sun) organizations recognized and authorized by parties to the conflict;
    (iii) medical personnel of other aid societies recognized and authorized by a party to the conflict and located within the territory the conflict is taking place."

    [p.1420] 4666 The term "Red Cross organizations" was used in order to cover not only the assistance available on the government side, but also groups or sections of the Red Cross on the other side which already existed, and even improvised organizations which might be set up during the conflict. (12)

    4667 Such was the intention of the negotiators, and this interpretation remains in the absence of definitions in the Protocol. It is supported not only by the above-mentioned work of the Conference, but also by Article 18 ' (Relief societies and relief actions), ' paragraph 1, which uses the term "Red Cross organizations" in this sense. (13) As regards relief societies, it was considered necessary to specify that relief societies other than Red Cross organizations should be located within the territory of the Contracting Party where the armed conflict was taking place, to avoid private groups from outside the country establishing themselves by claiming the status of a relief society and then being recognized by the insurgents. (14)

    4668 In the absence of precise definition, the term "medical personnel" covers both permanent and temporary categories. The term permanent medical personnel" means medical personnel exclusively assigned to medical purposes for a unspecified length of time, while "temporary medical personnel" are personnel exclusively assigned to medical purposes for limited periods.

    4669 In both cases such assignment must be exclusive. It should be noted that such status is based on the functions carried out, and not on qualifications. The Working Group which examined this article shed some light on this point in its report to Committee II, stating that:

    "The categories cover all supporting personnel, i.e., medical personnel who have not completed their medical studies together with personnel with no medical qualifications or working as auxiliaries or assistants. This category might have increased significance under the circumstances of an internal conflict." (15)

    4670 Article 8 ' (Terminology), ' sub-paragraph (d), of Protocol I, defines religious personnel as follows:

    ""religious personnel" means military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached:
    (i) to the armed forces of a Party to the conflict;
    (ii to medical units or medical transports of a Party to the conflict;
    (iii) to medical units or medical transports described in Article 9, paragraph 2; or
    (iv) to civil defence organizations of a Party to the conflict."

    [p.1421] 4671 The definition formulated for Protocol II mentioned, in addition, religious personnel attached to medical units of relief societies authorized by a party to the conflict. (16)

    4672 The term "religious personnel" is a generic term and covers all religions; the word "chaplain" is used by way of example, but is was specified that this does not mean that only Christian religious personnel are referred to. (17)

    4673 Naturally, respect and protection imply that personnel in enjoyment thereof must refrain from all acts of hostility and will not themselves be made the object of attacks. Article 11 ' (Protection of medical units and transports) ' specifies that the units and transports in question must be "respected and protected at all times and shall not be the object of attack". (18) This point is not contained in Article 9, which merely mentions respect and protection, and this omission could give rise to different interpretations.

    4674 The concept of respect implies a duty not to attack, so that it is not necessary from a legal point of view to mention attacks. (19) However, this term was retained in Article 11 of the Protocol ' (Protection of medical units and transports) ' because it was taken from Article 19 of the first Convention. The scope of the protection granted by Articles 9 and 11 ' (Protection of medical units and transports) ' is in fact the same. Thus the reference to attacks in the latter article, and not in the former, is an error of methodology which is regrettable. It would have been better to be consistent.

    4675 Protection of medical and religious personnel applies throughout the duration of their mission, including times when such personnel do not carry out their duties temporarily. It should be noted that this specific protection of medical and religious personnel, visibly reflected in the emblem of the red cross, does not in any way prejudice any assistance and support that may come from the population when they spontaneously offer their services, as provided in Article 18 ' (Relief societies and relief actions), ' paragraph 1. Indeed, the authorities may very well incorporate voluntary workers among medical personnel; if this is not done, in particular becausevoluntary civilians may not devote themselves exclusively to medical tasks, they continue to be protected as civilians. Civilian doctors and paramedical personnel who care for the wounded and sick without being members of medical personnel within the meaning of this article, enjoy the protection of Article 10 ' (General protection of medical duties). '

    4676 The first sentence of paragraph 1 also provides that medical and religious personnel must be granted all available help for the performance of their duties, and the second sentence provides that they may not be compelled to carry out [p.1422] tasks which are not compatible with their humanitarian mission. In the draft the ICRC had provided that they "shall not be compelled to carry out tasks unrelated to their mission". (20) The Conference considered that it should suffice to provide that medical personnel should not be employed on tasks which are not compatible with their humanitarian mission. (21) The use of the verb "to compel", taken from Article 33 of the Third Convention, refers to cases where medical and religious personnel have fallen into the hands of the adversary. (22) In addition to being protected by Article 5 ' (Persons whose liberty has been restricted), ' like any other persons deprived of their liberty for reasons related to the conflict, they are also granted the guarantee of not being compelled to carry out tasks which are incompatible with their mission. This could refer to medical experiments, but also, for example, to camouflaging military operations under cover of medical tasks. The second possibility may materialize not only when medical or religious personnel have fallen into the hands of the adversary: the parties to the conflict may in no case compel the personnel in question to carry out military tasks as these are, by their very nature, incompatible with any humanitarian mission; medical assignment must be exclusive.

    Paragraph 2

    4677 This paragraph reaffirms the principle that there may be no discrimination between the wounded, sick and shipwrecked, a principle already contained in Article 7 ' (Protection and care), ' and now expressed by providing that "in the performance of their duties medical personnel may not be required to give priority to any person except on medical grounds". For example, it would be prohibited to ' compel ' medical personnel to give priority to lightly wounded soldiers, to the detriment of others who were more seriously injured, regardless of the party to the conflict to which they belong. On the other hand, neither the Conventions nor the Protocols determine what medical criteria should be used. Should a doctor choose to perform a long surgical operation on a seriously wounded person, or should he sacrifice such a case for the benefit of other wounded people whose chances of survival are better? (23) Medical personnel must remain the judges on where to give priority, a matter which should only be decided on medical grounds, (24) in accordance with medical ethics and professional conscience. In fact, such a case by definition belongs to medical ethics and to the professional conscience.

    ' S. J. '

    * (1) [(1) p.1418] See Commentary I, pp. 217-229 (Arts. 24-26). It should be recalled that Article 26 treats, under certain conditions, personnel of Red Cross Societies and of other recognized relief societies in the same way as military medical personnel;

    (2) [(2) p.1418] Art. 20, Fourth Convention: "Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick civilians, the infirm and maternity cases shall be respected an protected." See Commentary IV, pp. 156 ff;

    (3) [(3) p.1418] Cf. commentary Art. 15, and Art. 8, sub-paras. (c) and (d) of Protocol I, supra, pp. 189 and 124;

    (4) [(4) p.1418] See ' Commentary Drafts, ' pp. 147-148 (Art. 15);

    (5) [(5) p.1418] See present Arts. 9, 10 and 12;

    (6) [(6) p.1418] O.R. XIII, p. 217, CDDH/II/269;

    (7) [(7) p.1419] O.R. XI, p. 318, CDDH/II/SR.31, para. 6;

    (8) [(8) p.1419] Rehabilitation centres providing medical treatment and dental treatment are explicitly included under medical purposes; cf. O.R. XIII, p. 253, CDDH/235/Rev.1, para. 20. This explanation was given for Art. 8 of Protocol I, but also applies for Protocol II. Cf. statement by the Rapporteur, O.R. XII, p. 260, CDDH/II/SR.79, para. 19;

    (9) [(9) p.1419] See commentary Art. 11, infra, p. 1431;

    (10) [(10) p.1419] Iran renounced the use of the red lion and sun emblem in favour of the red crescent. Cf. also Supra, Editor's note;

    (11) [(11) p.1419] O.R. XIII, p. 304, CDDH/235/Rev.1;

    (12) [(12) p.1420] O.R. XI, pp. 430-431, CDDH/II/SR.40, para. 9;

    (13) [(13) p.1420] Cf. commentary Art. 18, para. 1, and Art. 12, infra, pp. 1477 and 1437;

    (14) [(14) p.1420] O.R. XII, p. 270, CDDH/II/SR.80, para. 16;

    (15) [(15) p.1420] O.R. XIII, p. 218, CDDH/II/269;

    (16) [(16) p.1421] O.R. XIII, p. 347, CDDH/II/386:
    h) 'religious personnel' means persons such as chaplains, whether military or civilian, exclusively engaged in the work of their ministry and attached either to:
    (i) the armed forces or other armed groups of a party to the conflict, or to
    (ii) medical units of a party to the conflict, or to
    (iii)medical units of the aid societies referred to in sub-paragraph (f)." ;

    (17) [(17) p.1421] See O.R. XII, p. 220, CDDH/II/SR.75, para. 20, and commentary Art. 8, sub-para. (d), Protocol I, supra, p. 127;

    (18) [(18) p.1421] See commentary Art. 11, infra, p. 1431;

    (19) [(19) p.1421] ' Commentary I, ' p. 195 (Art. 19);

    (20) [(20) p.1422] ' Commentary Drafts, ' p. 147 (Art. 15, para. 2);

    (21) [(21) p.1422] O.R. XIII, p. 218, CDDH/II/269. "The Working Group feels that the ICRC text is unnecessarily restrictive on this point, and that it should be sufficient to provide that medical personnel shall not be employed on tasks which are not compatible with their humanitarian role.";

    (22) [(22) p.1422] See Commentary III, pp. 216 ff. (Art. 33);

    (23) [(23) p.1422] See commentary Art. 10, para. 2, of Protocol I, supra, p. 147;

    (24) [(24) p.1422] "Urgent medical reasons" is the criterion used in Art. 12, para. 3, of the First Convention;