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Commentary - Art. 23. Chapter III : Medical units and establishments
    [p.206] ARTICLE 23 -- HOSPITAL ZONES AND LOCALITIES


    GENERAL

    1. ' Terminology '

    The terminology in normal use should first be defined. A distinction is drawn between:

    (a) ' hospital zones and localities, ' generally of a permanent character, organized outside the combat zone in order to shelter military or civilian wounded and sick from long range weapons, especially aerial bombardment (1);

    (b) ' safety, zones and localities, ' generally of a permanent character, organized outside the combat zone in order to shelter certain categories of the civilian population, which owing to their weakness require special protection (children, old people, expectant mothers, etc.) from long range weapons, especially aerial bombardment (2).

    [p.207]
    (c) ' hospital and safety zones and localities, ' which are a combination of (a) and (b) above;

    (d) ' neutralized zones, ' generally of a temporary character, established in the actual combat zone to protect both combatant and non-combatant wounded and sick, as well as all members of the civilian population who are in the area and not taking part in the hostilities, from military operations in the neighbourhood.

    The above terminology is that used in the 1949 Geneva Conventions, ' Locality ' should be taken to mean a specific place of limited area, in which there are generally buildings. The term ' zone ' is used to describe a relatively large stretch of countryside and may include one or more localities.
    The Convention which we are studying in the present volume only deals with hospital zones and localities set aside for wounded and sick members of the armed forces. The hospital and safety zones and localities used for civilian wounded and sick, as well as for certain categories of the civilian population, are dealt with in Article 14 of the Fourth Geneva Convention of 1949 . Neutralized zones are dealt with in Article 15 of the same Convention.
    Although it was necessary to define the meaning of the various terms employed, it must be pointed out that in practice, and even in theory, the problem of providing places of refuge (3) is capable of one or more intermediate solutions. The system described in the Geneva Conventions provides all the flexibility required in this respect. One could, for instance, establish a hospital locality which sheltered both wounded soldiers and sick civilians. In the same way, a safety zone might shelter military or civilian wounded and sick in addition to certain categories of the civilian population.

    2. ' Historical background '

    Since hospital zones made their first appearance in positive law in 1949, it is fitting that the origin and development of the problem should [p.208] be described at some length. (4) In 1870, at the time of the Franco-Prussian War, Henry Dunant, the founder of the Red Cross, suggested that certain towns should be neutralized and wounded members of the armed forces concentrated there. That was the first time the idea of hospital localities was put forward. The proposal was not followed up owing to the rapid development of military events.
    The following year, at the time of the revolt of the Commune, Dunant tried in vain to set up places of refuge for the civilian population in Paris. That was the first time the idea of having safety zones arose.
    In 1929, General Georges Saint-Paul, of the French Medical Service, drew up a plan for setting up places of refuge to provide shelter not only for military wounded and sick, but also for sick civilians and certain other elements among the civilian population whose weakness placed them on the same footing as the sick (children, old people, etc.). In Paris, in 1931, General Saint-Paul founded the ' Association internationale des Lieux de Genève ' (International Association for the Lieux de Genève) for the purpose of giving publicity to the plan and working towards its realization. (5)
    In 1934, a Commission of medical and legal experts, meeting in Monaco on the recommendation of the Congress for Military Medicine and Pharmacy, drew up a Draft Convention dealing with respect for human life in wartime. This document, which is known as the Monaco Draft, contains important provisions concerning hospital localities and safety zones. The Belgian Government, which had at first contemplated holding a Diplomatic Conference to approve the draft, was later obliged to abandon its intention. The Monaco texts were then handed over to the International Committee of the Red Cross.
    In 1936, the International Committee of the Red Cross, which had also been studying the question, convened a Commission of experts nominated by the National Red Cross Societies and by the Standing Committee of the International Congress for Military Medicine and Pharmacy. The Commission considered that some progress might be made, at least as far as hospital zones were concerned; but pointed out that the assistance of military experts would be essential. It felt, however. [p.209] that it was first necessary to concentrate on the creation of hospital zones for wounded and sick members of the armed forces, and that the wider problem of safety zones to shelter the whole or part of the civilian population, could be tackled later with a greater chance of success.
    The International Committee of the Red Cross then drew up a preliminary draft Convention, and proposed that a Commission of military experts and international jurists should be convened. In spite of repeated representations, this Commission was only able to meet in October, 1938, following a recommendation to that effect by the XVIth International Red Cross Conference.
    Basing themselves on the whole of the documents which existed at that time, the Commission drew up a Draft Convention (known as the 1938 Draft) for the creation of hospital zones and localities for wounded and sick members of the armed forces. This draft, together with a report by the International Committee of the Red Cross, was transmitted to all States by the Swiss Government. It was intended to serve as a working basis for the Diplomatic Conference which it was proposed to hold at the beginning of 1940 to revise the Geneva Conventions and conclude new humanitarian agreements. The Diplomatic Conference was adjourned owing to the outbreak of hostilities.
    During the Second World War, the International Committee of the Red Cross proposed on several occasions (especially in 1939 and 1944) that the belligerent Powers should conclude agreements for the setting up of hospital and safety zones. The 1938 Draft was to have provided the basis for these agreements, even though it had only been designed to shelter military wounded. It would have been applied by analogy to safety zones for certain categories of the civilian population. The fact that neutralized zones had been successfully established at Madrid, in 1936, and at Shanghai, in 1937, was an encouraging precedent. But although a number of States sent replies which were favourable in principle, none of them followed up the precise and concrete proposals which had been put forward by the International Committee of the Red Cross.
    Apart from negotiations of a general nature, the International Committee was concerned, during the hostilities, with a certain number of more or less private proposals to set up hospital or safety zones (e.g. at Sienna, Bologna, Imola, Constance, Tromsö and Shanghai). These proposals could not be brought into effect officially, as they did not come [p.210] from belligerent Governments and the latter continued to treat the whole question with great reserve.
    The International Committee took the 1938 Draft relating to hospital localities and zones as its basis in the preparatory work undertaken by it in 1945 in connection with the revision and development of the Geneva Conventions. It also applied it to the case of safety zones for certain elements of the civilian population who needed special protection.
    The 1947 Conference of Government Experts showed that States were not inclined to adopt clauses of a mandatory nature in this matter. The most the experts would agree to was that the Geneva Conventions should provide for the possible creation of such places of refuge; their recognition by the enemy was, however, to be dependent upon the conclusion of special agreements.
    The International Committee of the Red Cross accordingly drafted two Articles, for insertion in the First Convention and Fourth Convention respectively, recommending that the Powers should establish hospital zones and safety zones, defining the object of such zones and enumerating the categories of persons who could find shelter there. To encourage the setting up of such zones, it proposed that a Draft Agreement, which States could take as a model when establishing and recognizing the zones, should be annexed to the two Conventions.
    About the same time, i.e. in 1948, the International Committee of the Red Cross was able to establish and administer places of refuge in Jerusalem. This experience encouraged it to propose, for inclusion in the Convention, a provision which would enable Powers to set up safety zones of a new type. The zones in Jerusalem, like those in Madrid and Shanghai, were different from the earlier theoretical idea of what such zones should be. In theory, the first tendency had been to establish permanent zones behind the front, in order to shelter certain elements only of the civilian population from long range weapons, especially bomber aircraft. But in actual practice, it was, on each occasion, found necessary to establish temporary places of refuge in the actual area where fighting was taking place, in order to provide shelter for the whole of the local population, who were in danger as a result of the military operations in the vicinity.
    The International Committee of the Red Cross accordingly prepared a new draft Article for insertion in the Fourth Geneva Convention, providing for the setting up of places of refuge of the type just described, [p.211] open without distinction to the wounded and sick and to all non-combatants, and to be known from then on as "neutralized zones".
    The various Articles mentioned, together with the Draft Agreement, were approved, with no change of any importance, by the XVIIth International Red Cross Conference, and later by the Diplomatic Conference of 1949. The latter separated the Draft Agreement, which had previously been common to the First and Fourth Conventions, into two distinct documents, one referring only to hospital zones for wounded and sick members of the armed forces, and the other dealing with hospital zones for wounded and sick civilians and safety zones for certain categories of the population.

    3. ' Nature of hospital zones and localities '

    Attention should first be drawn here to certain principles formulated by the experts of 1938, authors of the Draft Convention on which Article 23 of the First Geneva Convention of 1949, and the model agreement annexed thereto, are very largely based.
    The experts were unanimous in recognizing the usefulness of setting up hospital zones and localities, where wounded and sick members of the armed forces could be concentrated far away from the fighting and protected from aerial bombardment. They pointed out that the medical treatment of the wounded and sick would be facilitated by such a measure, if only because of the greater degree of security provided. The recovery of those concerned would be enhanced by this feeling of additional protection.
    The experts agreed that the setting up of hospital zones must in no case have the effect of decreasing the protection to which the wounded and sick as a whole were entitled, outside such zones, under the Conventions and general rules of international law.
    Finally they pointed out that in law the protection provided by setting up hospital zones and localities in no way differed from that accorded to medical establishments and units under the Geneva Convention. It was merely a matter of making such protection more effective in practice.
    Article 23 (new) of the 1949 Convention is optional in character. It should be noted, however, that the object of international Conventions is to define the obligations which States contract towards one another. [p.212] It is not customary for them to include mere suggestions, although examples of this do exist. The above course has been adopted in the case of hospital zones, because the authors of the Convention wished to draw attention to their importance from the humanitarian point of view, and to recommend their adoption in practice. The responsible authorities in each country should not, therefore, regard Article 23 as being a mere reference to a possible solution; they should look upon it as a recommendation to make every effort to apply that solution in practice.

    PARAGRAPH 1 -- CREATION OF ZONES

    This clause mentions the option which the Powers have of setting up and organizing hospital zones and localities in their own territory, or in territory occupied by them.
    The zones and localities may be set up in case of war or in peacetime. Their establishment remains a purely internal measure and in no way binds the adverse Party, which will only contract obligations under the special agreement, relating to the recognition of zones, referred to in paragraph 2. Although the establishment of zones -- that is to say their actual organization -- may take place in peacetime, they are not, as a rule, recognized by the enemy until war breaks out.
    It has been suggested in certain quarters that it would be difficult, or even impossible, to set up hospital zones in peacetime, especially in a small country, the reason given being that, since the zones must be at some distance from the fighting, the area selected will vary according to which enemy has to be faced. The difficulty pointed out is a real one, but it does not appear to be unsurmountable. A State will, it is true, be unaware of the strategical situation in which it will find itself in case of war; but it should be possible for it to establish a number of zones, of which some only will be utilized, the choice depending upon events.
    The Convention makes express mention of the possibility of establishing zones in time of peace, in spite of the fact that States are quite obviously free to organize them when they please; this is to show the importance attached to preparatory measures of this sort. The many problems set by the organization, control, population and feeding of a refuge zone cannot be solved during the first days of a war, at a moment when the administration of the country is overburdened with many other [p.213] tasks. It is, on the contrary, desirable that the whole question of establishing the zones should be studied in detail in peacetime, so as to be able to proceed with their notification as soon as war breaks out.
    For this purpose, it would appear necessary to take the rules contained in the Draft Agreement annexed to the Convention, as a basis in peacetime, even though the agreement in question is not obligatory. It is, in fact, essential that the zones should be established without delay on a basis which has already been approved in principle at the Diplomatic Conference and which will in all probability obtain final agreement from the adverse Party. The recognition of zones established on some other basis might be problematical.
    As we have already pointed out, the establishment of hospital zones or localities does not add anything essentially new to the Convention. The establishment of such zones was actually already possible in theory under earlier Conventions, all that was necessary being to group medical establishments or units in the open. As each of them was protected, the whole would also be protected.
    In practice, however, the problem is a little more complicated. Protection will be given, not only to each medical establishment contained in the zone, but also to the area surrounding such establishments. If the locality or zone is of some size, protection will be extended to a whole group of buildings and even to the population which normally resides in the zone. (6)
    That brings us to the subject of the categories of persons who may find shelter in hospital zones. They are as follows:

    (a) The wounded and sick. The whole object of the First Geneva Convention indicates that it is essentially the wounded and sick of the armed forces who are referred to here. It should be noted, however, that Article 14 of the Fourth Geneva Convention of 1949 authorizes the establishment of hospital zones for wounded and sick civilians. Consequently there is no reason why a hospital zone should not combine the two types and provide shelter for both soldiers and civilians in need of treatment. Besides, the First Geneva Convention lays down, in Article 22, sub-paragraph (5) , that a medical unit or establishment shall not be deprived of protection if its activities extend to the care of civilian [p.214] wounded and sick (7), and this must admittedly also apply, by analogy, to a hospital zone established by virtue of the First Convention. It should, finally, be noted that Article 1 5 of the Fourth Convention provides for the creation of neutralized zones open without distinction to wounded and sick combatants and non-combatants and to ' bona fide ' civilians who take no part in hostilities.

    (b) Medical personnel. All medical personnel protected under the Convention are fully entitled to reside in the zones. It should be remembered that this includes not only persons directly employed in the care of wounded, but also the administrative personnel of medical units, as well as chaplains.

    (c) Personnel concerned with the organization and administration of the zones. Owing to the size of hospital zones it will no doubt be necessary in most cases to employ special personnel for their administration and organization, in addition to the administrative personnel already mentioned under (b). Members of Commissions of control (8) may also have to be included.

    (d) Local population. Although the Convention itself makes no allusion to this category of persons, they must, as we have seen, be taken into consideration when the hospital zone is of any size.

    The very silence of the Convention on this point implies that the rules which apply to medical establishments and units also apply, by analogy, to hospital zones and localities. The latter must be respected and protected under all circumstances; but they must not contain any part of the military potential of the country, and no act harmful to the enemy must be committed in them.
    Nor does the Convention mention the marking of hospital zones; but it is only logical that they should be protected by the red cross emblem, since they are intended to provide shelter for categories of persons and things which are already entitled to such protection. (9)

    [p.215] PARAGRAPH 2 -- RECOGNITION OF ZONES

    The zones will not, strictly speaking, have any legal existence, or enjoy protection under the Convention, until such time as they have been recognized by the adverse Party. This will entail the conclusion of an agreement between the Power which has established zones in its territory and the Powers with which it is at war. The agreement will thus be concluded, as a general rule, after the outbreak of hostilities. (10) It should contain a number of clauses relating to the definition of the zones, their organization, the procedure for supervising them, etc., for the Convention itself says practically nothing about these various points and it is essential to come to an exact arrangement with regard to them.
    With the object of promoting the establishment of hospital zones, the Diplomatic Conference decided to annex to the Convention a Draft Agreement which States could bring into force with whatever modifications they considered necessary. The Draft Agreement is therefore only in the nature of a suggestion or example. Nevertheless, the fact that it was carefully drawn up by experts and was adopted by the Plenipotentiaries of 1949, gives it a definite value. We have seen above how desirable it is that the principles contained in it should be taken as a basis, without further discussion, whenever a hospital zone is set up (11). Comments on the Draft Agreement are to be found at the end of the present volume. (12)

    PARAGRAPH 3 -- GOOD OFFICES

    The establishment of hospital zones, their notification, the conclusion of the agreement mentioned above, and, above all, the arrangements for supervision, all presuppose in wartime the existence of a neutral intermediary acting between the belligerents.
    In accordance with the general plan adopted in the Geneva Conventions, it was natural to think in this connection of the Protecting [p.216] Powers and of the International Committee of the Red Cross, which are "invited" by the Convention itself to lend their good offices in this matter. That means that, when they think it advisable, they may put forward proposals to Governments, without waiting for the latter to ask for them.


    * (1) [(1) p.206] The expression "hospital towns" has been
    dropped by the experts since 1938;

    (2) [(2) p.206] The ' Association internationale des Lieux de
    Genève ' adopted the terms "lieux de Genève" (Geneva
    localities) or "zones blanches" (white zones);

    (3) [(1) p.207] The expression "places of refuge", which is a
    current term, may be used to denote any piece of territory
    organized in such a way as to afford shelter to certain
    categories of persons. It may therefore cover hospital
    zones and localities as well as safety zones and
    localities, and may even be applied to neutralized zones;

    (4) [(1) p.208] The present review is nevertheless very brief.
    Further details may be obtained from the pamphlet entitled
    "Hospital Localities and Safety Zones", published by the
    International Committee of the Red Cross in 1951;

    (5) [(2) p.208] The Headquarters of the Association is now at
    Geneva;

    (6) [(1) p.213] See below, on Draft Agreement relating to
    Hospital Zones and Localities, Article 1, page 415;

    (7) [(1) p.214] See above, page 202;

    (8) [(2) p.214] See below, on Draft Agreement relating to
    Hospital Zones and Localities, Article 8, page 423;

    (9) [(3) p.214] See below, on Draft Agreement relating to
    Hospital Zones and Localities, Article 6, page 422;

    (10) [(1) p.215] Article 7 of the Draft Agreement provides,
    however, for the possibility of zones being recognized in
    time of peace. See below, page 422;

    (11) [(2) p.215] See above, page 213;

    (12) [(3) p.215] See below, page 415;