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Commentary - Art. 35. Chapter VI : Medical transports
    [p.280] ARTICLE 35 -- PROTECTION AND CAPTURE


    This Article is much simpler than the corresponding Article 17 of 1929 . For, once the principle of restoring the material of medical units had been abandoned, it was no longer necessary to make various distinctions.
    The term "medical transport" should be taken to mean either convoys or isolated vehicles.
    The word "vehicles" must be understood in its widest sense; it covers road, rail, and inland water transport, but not aircraft, which are dealt with in Articles 36 and 37 , or hospital ships and sea-going craft, which are dealt with in the Second Geneva Convention of 1949.

    PARAGRAPH 1 -- PROTECTION

    It was sufficient to specify that medical transports must be respected and protected in the same way as mobile medical units: for that is what they really are. We can therefore refer the reader, on this point, to our comments on Chapter III.
    [p.281] The 1929 Convention made a distinction between vehicles "equipped" or "specially organized" for the evacuation of wounded and sick, and other military vehicles employed temporarily as medical transport. The first had to be restored, whilst the others could be treated as captured material. This distinction has disappeared in the new text, which makes no provision for restoring medical vehicles.
    Thus, all vehicles employed, permanently or temporarily, on medical transport work are protected on the field of battle. (1) This was indeed already so under the 1929 text -- or it was, in any case, where the vehicles employed temporarily formed part of a medical convoy.
    The soundness of this provision does not appear to be open to question. It is absolutely essential that the wounded should be transported to a hospital as quickly as possible. A motor ambulance of the Medical Service will not always be readily available and, as has often happened, any vehicle available will be used. It must not be possible for this to be used as a pretext for opening fire on the wounded.
    The distinctive emblem must naturally appear on these vehicles during the whole of the time that they are employed on medical work; on the other hand, it is only during such periods that they may display the sign. The military authorities must take the greatest care to ensure that the red cross sign is removed as soon as a vehicle is no longer employed as medical transport, and strict orders to this effect must be given to all ranks. It is essential that the serious abuses which occurred during the Second World War should not be repeated. (2)
    For although there were very good reasons for introducing the principle of a distinctive emblem which could be removed, the risk of abuse has certainly been increased as a result. After the wounded have been taken to the rear under the protection of the red cross sign, there [p.282] will be a great temptation to load the empty vehicles returning to the front with war material. If the emblem then remains on the loaded vehicles, there is a grave breach of the Convention, even if the sign has simply been left on through negligence or because there has been no time to remove it. Such cases have occurred. Constant vigilance is therefore essential.
    The 1929 Convention spoke only of "vehicles equipped for the evacuation of wounded and sick." It might have been concluded from this that vehicles which carried medical material only were not protected. This is no longer so, as the new text refers expressly to "transports of wounded and sick or of medical equipment".

    PARAGRAPH 2 -- DISPOSAL IN CASE OF CAPTURE

    Once it had been decided to place medical transports on the same footing as medical units, the question remained of what was to happen to the actual vehicles should they fall into enemy hands. Paragraph 2 deals with this question. Had this specific provision not been included, the rule relating to mobile medical units would have applied, and the vehicles would have had to continue to be used for the wounded and sick.
    The 1949 Conference, however, taking into account the military importance of transport vehicles in modern warfare, adopted a less liberal arrangement. Medical vehicles -- like the material of fixed medical establishments -- are to be subject to the laws of war. The captor may thus dispose of these vehicles, and may even use them as military transport. Naturally, in the latter case, the emblem must be at once removed.
    The usual exception is introduced, however: the captor may use the vehicles only on condition that in all cases he ensures the care of the wounded and sick they contain. The words "ensure the care of" must be interpreted as safeguarding the inalienable rights of the wounded: they must be treated as their state of health requires and must receive adequate care; they must not suffer in any way as a result of the impounding of the vehicles.
    If, therefore, the captor is unable to give the wounded the care they require, he must allow the convoy or vehicle to pursue its journey and return to its own lines.
    [p.283] Similarly the words "the wounded and sick they contain" must not be interpreted in a narrow sense, but must be taken to cover all the wounded and sick whose health depends on the convoy, if it has been unable to evacuate them all in one trip.
    Article 35 deals only with the disposal of the actual vehicles in the event of capture. Should they contain men who are wounded and sick, or medical personnel or material, the rules laid down in the previous Chapters for each of these three categories will apply.
    What is to happen to military personnel not attached to the Medical Service who are detailed to medical transport, as drivers for example? The 1929 Convention laid down that they were to be treated in the same way as medical personnel and given all the latter's prerogatives (Article 17, paragraph 3 ). It also stipulated that mobile medical units were to retain their drivers (Article 14, paragraph 1 ). As these clauses have disappeared in the 1949 text, it must be assumed that these men may, as a general rule, be made prisoners of war. The rights of the capturing Power in this respect are subject, however, to the same limitation as in respect of the vehicles -- they may be exercised only if the captor ensures the care of the wounded. If he is not in a position to do so, he must allow the convoy to pass and go back to its own lines with the drivers necessary for this purpose. If he does not do this, he will deprive the convoy of its essential character by preventing it from moving. The safeguards laid down in the Convention would then become
    completely illusory. A transport group without its drivers is like a knife without a blade.
    Lastly, the provisions of this Article do not affect medical vehicles belonging to National Red Cross Societies or other recognized aid societies. Under the special provision made in Article 34 , which we have examined above, they, in common with all the other material of these societies, are to be considered as private property and exempt from capture.

    PARAGRAPH 3 -- CIVILIAN PERSONNEL AND MEANS OF TRANSPORT

    This paragraph dates from 1929 and is unchanged. It provides for the case in which a belligerent has not sufficient medical or military transport available to evacuate the wounded and has to requisition [p.284] civilian personnel or material. The words "civilian" and "requisition" show clearly that the personnel and material in question do not belong either to the armed forces or to voluntary aid societies. What will happen to them if the convoy is captured?
    The general rules of international law must needs apply to such persons and vehicles. These rules cannot be specified as they will vary with the evolution of international law.
    There are two possible cases to be considered. In the first place, the persons and vehicles may have been requisitioned in occupied territory by the Occupying Power; on being captured, they will be released automatically.
    On the other hand, the persons and vehicles may have been requisitioned by the belligerent within his own territory. (3) On capture, the persons concerned will have the benefit of the provisions of the Fourth Geneva Convention of 1949. (4) The disposal of the vehicles is governed by Articles 52 and 53 of the Hague Regulations. Under paragraph 2 of Article 53 such vehicles, which belong by definition to private persons or private institutions, may be seized, but must later be restored and compensation paid for them.


    * (1) [(1) p.281] Certain delegations at the 1949 Conference
    feared abuses and would have liked protection to be
    confined to vehicles employed exclusively on medical work;
    they proposed to delete from the draft a sentence to the
    effect that vehicles employed temporarily for medical work
    would be protected as long as they were so used. The
    sentence was removed, but -- as was underlined at the
    Conference -- the effect is by no means to deprive these
    vehicles of protection. In actual fact, paragraph 1 is
    completely general in its application, and the sentence to
    which objection was made was therefore superfluous. To
    obtain the desired result, it would have been necessary to
    stipulate in the paragraph that it referred only to
    vehicles used exclusively for medical transport;

    (2) [(2) p.281] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ' (September 1, 1939 -- June 30, 1947), Geneva, 1948,
    Vol. I, pages 210 and 211;

    (3) [(1) p.284] This is unlikely to occur often, except for
    purely temporary work. In most cases the belligerent would
    no doubt prefer to attach such persons to the armed
    forces, and more particularly to the Medical Service;

    (4) [(2) p.284] If, however, such persons can be considered as
    "persons who accompany the armed forces without actually
    being members thereof," in the sense of Article 4 A (4) of
    the Third (Prisoners of War) Convention, they will be
    protected under this latter Convention;