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Commentary - Members of the armed forces and military units assigned to civil defence organizations
    [p.791] Article 67 - Members of the armed forces and military units assigned to civil defence organizations


    [p.792] General Remarks

    2701 The protection of military civil defence organizations was not envisaged in the documentation presented to the Conference of Government Experts, (1) and it was [p.793] only during the second session of that Conference that a series of questions raised by one delegation cast doubt on this approach. It seemed particularly questionable to that delegation that reserve military personnel, mobilized for the sole purpose of serving in civil defence organizations under civilian management, and other members of the armed forces assigned to technical tasks of civil defence "subject to the policy and requirements direction of [...] a civilian" should not be entitled to "the proposed special protections when they are engaged in humanitarian activities, merely because they are in uniform". (2)

    2702 Based on these considerations and subsequent discussions, the ICRC introduced a remark on Article 55 of the 1973 draft in the commentary:

    Some experts consulted by the ICRC recommended adding here the following paragraph:
    "Personnel of military units assigned exclusively to civil defence tasks shall not be intentionnaly attacked provided they display the international distinctive sign of civil defence specified in Article 59 below, and bear only small-arms. If they fall into the power of the enemy they shall be considered to be prisoners of war."" (3)

    2703 This commentary then added:

    "This paragraph is based on Articles 25 and 29 of the First Convention relating to the protection and treatment of temporary personnel. It also takes into account the situation prevailing in several countries, namely the developing countries, which quite frequently do not yet possess any specialized bodies and where the civil defence tasks are therefore discharged by the army." (4)

    2704 However, the fact that the proposed provision was put forward only as a remark and was not contained in the draft itself is because of "the difficult problems which would be created by this provision and the opposition of other experts." (5)

    2705 In fact, this problem was one of the most discussed in Committee II, and it seems to us that it would be useful to examine the main arguments advanced on both sides before discussing the provision which was adopted, which is clearly the result of a compromise.

    2706 Four principal arguments were advanced in favour of protecting members of the armed forces and of military units assigned to civil defence organizations:

    1) The protection must be accorded to civil defence tasks and all those fulfilling such tasks must be protected ("functional" protection) independently of their military or civilian status. (6)
    [p.794]
    2) In many countries there is no civil defence structure or qualified civilian personnel are too scarce: it is therefore essential that they can count on all the personnel available, even military personnel. (7)
    3) There is no reason to refuse military civil defence personnel what is granted to military medical personnel. (8)
    4) Civil defence is organized in some countries along military lines and such countries would not accept changing their arrangements nor would they accept an agreement compelling them to protect civil defence personnel of an adverse Party if their own personnel did not enjoy similar protection. (9)

    2707 The main arguments of those who did not wish to grant such personnel protection may be summarized as follows:

    1) In order to be effective, the rules protecting the civilian population must be simple and clear, which will no longer be the case if military personnel enjoy some degree of protection as well. (10)
    2) In practice it will be difficult to distinguish military personnel assigned to civil defence from other military personnel, particularly if they carry arms, and this confusion will generally tend to impair civil defence tasks. (11)
    3) If military personnel enjoyed special protection, this would imply that they renounce participating in hostilities. Such renunciation is hardly likely in the majority of countries lacking qualified personnel for civil defence, as such countries also need the same personnel for military duties. It is therefore preferable that military personnel performing civil defence tasks retain their military status without any special protection and unequivocally. (12)
    4) Once military personnel are exclusively assigned to civil defence tasks for the duration of the conflict, the problem of structure only consists of having them officially attached and seems easily surmountable. (13)

    2708 An examination of the provisions that were finally adopted will reveal the importance attached to these various arguments.

    2709 Before doing so, it should be noted that the problems broached in this article were first discussed in the context of the draft article concerning general protection (14) before various amendments proposed that they should be dealt with in a separate article. (15) A compromise solution was also proposed, consisting of adding a paragraph to the article on general protection, confirming the civilian status of personnel "whose liability to military service has definitely and finally ceased" and therefore the possibility of integrating them in civilian civil defence [p.795] organizations. (16) This solution was abandoned: on the one hand, it did not respond to the expectations of the supporters of protection for military civil defence personnel, while on the other, it could, as one delegate stated, in a way have created "a new category of protected civilians (persons whose liability to military service had definitely and finally ceased)". (17)

    2710 The question was then taken up by a Working Sub-Group which decided, from the various conceivable solutions, (18) to retain that of devoting a special article to members of the armed forces and military units assigned to civil defence organizations and to establish special rules for them. (19)

    Paragraph 1

    ' Introductory sentence '

    2711 This sentence covers members of the armed forces and "military units" assigned to civil defence organizations. The meaning of ' military units ' should be understood by analogy with the expression "medical units". (20) Thus they are "establishments and other units [...] organized for [...] purposes" (21) of civil defence, i.e., which are entrusted with the mission to carry out one or more of the tasks listed in Article 61 ' (Definitions and scope), ' sub-paragraph (a).

    2712 The text does not specify whether the organizations to which members of the armed forces and military units are assigned must be civilian, military, or whether they can be either. In fact the last solution should be accepted: Article 65 ' (Cessation of protection) ' implicitly authorizes the attachment of military personnel to civilian civil defence organizations, (22) but there is nothing to prevent the organizations themselves from belonging to the armed forces, provided of course that the conditions listed in this article are fulfilled.

    2713 If they are, the personnel and units in question will be "respected and protected". In the comments adopted with its report, Committee II stated that this expression here means that "the personnel must not knowingly be attacked [p.796] or unnecessarily prevented from discharging their proper functions", (23) on the understanding that "unnecessarily" relates to absence of "imperative military necessity". (24)

    ' Sub-paragraph ' (a)

    2714 The personnel and units concerned may be assigned to one or several of the tasks listed in Article 61 ' (Definitions and scope), ' sub-paragraph (a), but they must be assigned exclusively and permanently. (25) Furthermore, it should be recalled that civil defence tasks are intended to protect the civilian population: similar tasks carried out for the benefit of ' military personnel ' are not covered by this article.

    ' Sub-paragraph ' (b)

    2715 Permanent assignment is assignment for an indeterminate period of time, but does not exclude the possibility of a change of assignment during the conflict. Sub-paragraph (b) goes further, since it excludes such change of assignment. It is therefore a key element of the compromise which was achieved in the end for the protection of military personnel devoted to civil defence. In fact it would have been very difficult to ask a Party to the conflict to abstain from hostile acts against military personnel whom it knew could at a later date be recalled to combat. (26)

    2716 Moreover, this solution is in accordance with what was decided regarding civilian civil defence personnel: such personnel can in fact enjoy protection under the present Chapter once again after performing tasks other than civil defence tasks, always provided that such other tasks were not "harmful" to the enemy, i.e., equivalent to traditional military tasks. (27)

    [p.797] 2717 Although it was adopted by consensus, this solution was the object of many statements at a plenary meeting of the Diplomatic Conference by delegations which were not entirely satisfied (28)

    ' Sub-paragraph ' (c)

    2718 Civilians must not be made the object of attack, while in principle military personnel are military objectives. Identification of military personnel in their capacity of civil defence personnel is therefore even more important than that of civilian personnel. This is why there is an ' obligation ' on military personnel, who generally wear the uniform of the armed forces, to display the international distinctive sign of civil defence and carry an identity card certifying their status.

    2719 In this connection Committee II furthermore adopted the following comment at the same time as its report:

    "With regard to the display of the international distinctive sign of civil defence in sub-paragraph (c), it was suggested that a sign of a minimum size on a tabard of about 30 cm. x 30 cm. might be appropriate. The identity card referred to in sub-paragraph (c) will have to be carried in addition to the military identity card provided for in the Third Geneva Convention of 1949." (29)

    2720 It should be stressed that this large sized tabard is of course not a ' condition ' of protection, but the Committee decided to give such clear indications in order to prevent, as far as possible, the mistakes which would undoubtedly follow from a form of marking that was not so clear. (30)

    ' Sub-paragraph ' (d)

    2721 As regards the carrying of arms, members of the armed forces assigned to civil defence organizations are subject to the same rules as civilian civil defence personnel.

    2722 However, agreement on this point was not reached without difficulties, as many delegations, already dubious about the fact that military personnel assigned to civil defence are protected, were even more dissatisfied about such personnel [p.798] being armed in view of "the dangers and difficulties of identifying military units and armed forces assigned to civil defence tasks". (31)

    2723 The purpose of bearing arms -- for maintaining order and the self-defence of personnel (32) -- is recalled. Apart from this, reference is simply made to Article 65 ' (Cessation of protection), ' paragraph 3, which deals with this question in depth. (33)

    2724 finally, it should be noted that, as in the case of civilian personnel, there is nothing to prevent the withholding of all weapons from such personnel, the provisions of Article 65 ' (Cessation of protection), ' paragraph 3, indicating the maximum allowed.

    ' Sub-paragraph ' (e)

    2725 This sub-paragraph may seem superfluous. As sub-paragraphs (a) and (b) lay down the condition that there must be an exclusive and permanent assignment to civil defence tasks throughout the duration of the conflict, it is difficult to see how the personnel concerned could commit acts harmful to the enemy without infringing the provisions of those sub-paragraphs.

    2726 Nevertheless, it has been retained to underline the fact that as all members of the armed forces are combatants and therefore have the right to participate directly in hostilities, (34) the object of the paragraph "was to neutralize that right, or to provide that it could not be exercised" (35) by the persons concerned here.

    2727 Apart from this, the different concepts raised in this sub-paragraph were examined above. (36)

    ' Sub-paragraph ' (f)

    2728 This is an important condition. It prohibits members of the armed forces of a Party who are assigned to civil defence organizations from:

    -- being sent to strengthen the civil defence of allied Parties;
    [p.799]
    -- being used by that Party in territories it has occupied; (37)
    -- being made available by that Party to a Party to a conflict in which it is not involved.

    2729 It should be noted that such a restriction to national territory does not apply to medical personnel attached to the armed forces, and that military civil defence personnel are therefore subject to stricter rules in this respect. However, this difference is not illogical: on the one hand, some civil defence tasks are undeniably more delicate than medical tasks; on the other hand, their essential function is to repair the damage caused by the enemy to the detriment of civilians in their own territory, while armies need medical personnel to care for their wounded wherever they are.

    ' Concluding sentence '

    2730 This sentence is aimed at further strengthening the guarantees that protection accorded members of the armed forces will not give rise to abuse.

    2731 By specifically stating that direct participation in hostilities and committing acts harmful to the enemy (cf. sub-paragraph (e)) are ' prohibited ' for members of the armed forces assigned to civil defence organizations in accordance with subparagraphs (a) and (b), this sentence shows that in such a case more is involved than the loss of the right to protection. In addition, it constitutes a ' breach ' of the Protocol, which the Parties to the conflict are obliged to suppress and which may give rise to disciplinary or penal punishment. (38)

    2732 It may even constitute a grave breach if the distinctive sign has been displayed to abuse the enemy, depending on the consequences of such abuse. (39) In such a case, penal sanctions are compulsory.

    Paragraph 2 -- Status of captured personnel

    ' First sentence '

    2733 The expression "military personnel serving within civil defence organizations" is equivalent to the expression "members of the armed forces and military units assigned to civil defence organizations" used in paragraph 1.

    2734 The persons concerned here become prisoners of war when they fall into the power of the adverse Party. They are therefore subject to similar rules to those which apply to temporary medical personnel. This may seem illogical. The reason [p.800] that temporary medical personnel are not released is actually that they may be used for military tasks and a Party to the conflict cannot be expected to release a person whom it knows may again commit harmful acts against it. Yet this is not the case with regard to military civil defence personnel, since they may not be assigned to other tasks or commit acts harmful to the enemy throughout the duration of the conflict.

    2735 In fact, some recommended that such personnel should be treated in the same way as members of permanent military medical personnel, and only joined the consensus on this point with some reluctance. (40)

    2736 Moreover, it should be noted that those who recommended prisoner-of-war status for military civil defence personnel initially defended the view that such personnel should not be given any protection before they were captured. (41)

    2737 Finally, it was the concern to make a clear distinction between military civil defence personnel and civilian civil defence personnel which led to attributing prisoner-of-war status to the former in the compromise which was finally adopted with regard to the protection of military personnel. (42)

    2738 Moreover, it should be noted that in practice the interest of military medical personnel not to be considered as prisoners of war basically lies in the fact that in principle, if they are captured, they should be returned to the Party to whom they belong as soon as there is a way to do so and they are no longer required to care for prisoners of war. But the question does not arise in a comparable way for military civil defence personnel since their activities are confined to national territory.

    2739 Thus there is a difficult question as to what will be the fate of such personnel if they are captured when the adverse Party occupies their national territory where they are legitimately performing their activities. This question is dealt with in the second sentence of the paragraph.

    ' Second sentence '

    2740 This sentence aroused controversy in Committee II. The Chairman of the special Working Sub-Group which was concerned with this article considered that it was not superfluous, although it covered elements dealt with in Articles 50 and 52 of the Third Convention, since it contained "an explicit stimulation addressed to the Detaining Power to make use of the specific abilities of that exceptional category of prisoner of war". (43)

    [p.801] 2741 Other delegations expressed doubts as to how appropriate this sentence was or considered that it was superfluous or even damaging, in that it was "likely to open the door to abuse by the Occupying Power". (44) finally it was adopted by a vote in Committee II. (45)

    2742 The expression "but only in the interest of the civilian population of that territory" was added later in a spirit of conciliation. (46)

    2743 In general, it should not be forgotten that for reasons of security prisoners of war are normally kept in the national territory of the captor, and not in occupied territory. As the recommendation made in the second sentence implies that the prisoners concerned remain in occupied territory -- which is justified by the nonmilitary functions they fulfil -- the possibility of releasing such prisoners of war on parole in accordance with Article 21 , paragraphs 2 and 3, of the Third Convention with a view to carrying out civil defence tasks, should be examined.

    2744 Anyway, this sentence merely offers a possibility without removing any rights inherent in prisoner-of-war status. Therefore it does not give the Occupying Power any right to require those concerned to perform work which is not in accordance with the provisions of Section III of the Third Convention.

    2745 This provision is similar to Article 29 of the First Convention which deals with the fate of auxiliary medical personnel who have been captured. Such personnel are prisoners of war just like any captured combatant "but shall be employed on their medical duties in so far as the need arises".

    2746 The provision under consideration here is slightly more flexible: they ' may, ' but do not necessarily ' have to ' be employed on civil defence tasks insofar as the need arises.

    2747 Apart from this, the proviso that such personnel may not be ' requested ' to do dangerous work is merely a reminder of the provision of Article 52 of the Third Convention, which is actually even broader, since it refers to "labour which is of an unhealthy or dangerous nature". Thus a person covered by the article under consideration here could not be obliged to do unhealthy work either. However, the concept of unhealthy or dangerous work was not defined. The Commentary on the Third Convention states that, as external safety measures must always be taken pursuant to Article 51 of the Third Convention, the essential difference between what is authorized and what is not lies "in the nature of the work". (47) Yet there is no doubt that some civil defence tasks, such as fire-fighting or marking danger zones, are dangerous by their very nature.

    2748 The expression "only in the interest of the civilian population of that territory" does not actually add anything to the article, at least in the context of a normal situation: indeed, the fourth Convention in any case prohibits an Occupying Power from transferring part of its own population into the territory it has occupied. (48) The meaning of the provision is certainly not to make a distinction between the national population of occupied territory and civilians of other [p.802] nationalities who are there: the very nature of civil defence work prohibits such a distinction, which would not, moreover, be in accordance with one of the fundamental principles of international humanitarian law, i.e., nondiscrimination in aiding victims. Thus this expression acts as a reminder that such work should not be carried out for the benefit of soldiers occupying the territory. Apart from being useful to emphasize this point in context, it should be remembered that this condition follows naturally from the definition of civil defence. (49)

    2749 The Chairman of the Working Sub-Group which examined this article considered that this provision should allow those concerned here to "continue their work within the structure of their own national civil defence organization". (50) This solution is certainly desirable. Nevertheless, such prisoners of war must "remain under the control of and administratively part of a prisoner of war camp", according to the rules laid down by the Third Convention for labour detachments, (51) unless the above-mentioned release on parole is followed.

    Paragraph 3 -- Marking of buildings and equipment

    2750 As with personnel, the use of the distinctive sign is mandatory for the buildings, equipment and transports of ' military ' units assigned to civil defence organizations. As we explained in our comments on paragraph 1, such a strict provision is justified by the military character of the objects in question, which would be military objectives if they were not assigned to civil defence.

    2751 The list of objects which must be marked does not appear to be very logical in relation to the definition given of "matériel" of civil defence organizations, which includes transports, (52) but this was merely due to a lack of co-ordination; it was not deliberate, as the paragraph was adopted by Committee II without discussion. Thus for this paragraph alone the traditional distinction between buildings, equipment and transport is made once more (53)

    2752 The expression ' major items ' of equipment and transports was
    not explained. It is clear with regard to small items of equipment such as boots or bandages that marking is unnecessary. As regards transports, it is clearly important that they should always be marked.

    2753 As regards the provision that such objects should be ' clearly ' marked with the distinctive sign, "as large as appropriate", this follows the logic of all the [p.803] provisions in the Protocol concerning identification, and of Annex I, which emphasizes the need to enhance the visibility of the sign. (54)

    Paragraph 4 -- Buildings and matériel which have fallen into the hands of the adverse party

    2754 "Matériel", as mentioned in this paragraph, should once again be understood in the sense of Article 61 ' (Definitions and scope), ' sub-paragraph (d). Thus it includes transports.

    2755 While Article 63 ' (Civil defence in occupied territories), ' paragraphs 4 and 5, lays down very restrictive rules regarding the requisition and diversion of objects of civilian civil defence organizations in occupied territories, the paragraph under consideration here in the first sentence merely refers to the laws of war in case such objects assigned to ' military ' civil defence units fall into the hands of the adverse Party. However, the second sentence imposes restrictions on the application of the laws of war.

    2756 Thus, when the paragraph restricts its application to objects ' permanently ' assigned to the performance of civil defence tasks, it does so with a view to the second sentence. It goes without saying that objects temporarily assigned are also subject to the laws of war, but they are not covered by the second sentence, which moderates the first.

    2757 The reference to the "laws of war" was contested, and one delegate stated that the term "war" had "been generally replaced by the term "armed conflict". (55) However, others raised the point that this expression "was a standard formula which was to be found in all legal handbooks on the subject and appeared also in paragraph 33 of the first Geneva Convention of 1949", and that it had already been discussed in connection with Article 23 ' (Other medical ships and craft), ' paragraph 2, of the Protocol. (56)

    2758 The rules laid down with regard to military civil defence objects are quite similar to those laid down in the first Convention, particularly for medical buildings, materials and transports. (57)

    2759 In fact, the reference to the "laws of war" is essentially a reference to the Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the fourth Hague Convention of 1907. In short, the Regulations prohibit the destruction or seizing of the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war. It also prohibits pillage. On the other hand, it admits the right to booty, but this right may be exercised only with regard to any movable property of the enemy State, and in respect of such booty there is no obligation of restitution or compensation. (58)

    [p.804] 2760 Subject to the second sentence, a Party to the conflict in whose power the movable objects concerned here fall, may therefore use them as it sees fit.

    2761 On the other hand, immovable property of the enemy is not war booty. Nevertheless, the Occupying State may make use of buildings, though only as administrator and usufructuary, (59) and still subject to the second sentence.

    2762 The second sentence therefore mitigates the strict application of the first sentence. Although the Occupying State may use the objects concerned here as it wishes, this applies only under certain conditions.

    2763 One needs either:

    -- an "imperative military necessity" (60) to divert such objects; or
    -- the objects must be no longer required for the performance of civil defence tasks; or
    -- finally, if the objects are still required for the performance of civil defence tasks, previous arrangements must have been made for adequate provision for the needs of the civilian population.

    2764 Nevertheless, all these conditions, which are similar to those contained in Article 14 ' (Limitations on requisition of civilian medical units), ' paragraph 3, for the requisition of civilian medical units, leave some margin of judgment, and it is important that this judgment should be made in good faith. It follows from the spirit of the provision that in principle the civilian population should not suffer as a result of the requisition or diversion of the objects concerned here. If, in exceptional cases, it does suffer, this may only be for reasons of imperative military necessity, which must respect the principle of proportionality between the military advantage anticipated and the damage caused to the civilian population. (61)

    ' Y. S. '


    NOTES

    (1) [(1) p.792] The ICRC stated that one of the main difficulties encountered during its work was as follows: "The organization and structure of civil defence services vary considerably from one country to another. Some countries have no such services. Sometimes the services are military or paramilitary and their personnel may have to discharge the duties of military and combat personnel. By contrast, some of the organizations are purely civilian and their duties purely humanitarian. It goes without saying that it is only for the latter that the Red Cross may contemplate granting protection and special facilities in humanitarian law." (CE/3b, p. 144);

    (2) [(2) p.793] Cf. ' CE 1972, Report ', Vol. II, p. 94, CE/COM III/OPC 13, paras. 4-5;

    (3) [(3) p.793] ' Commentary Drafts, ' p. 72;

    (4) [(4) p.793] Ibid., p. 73;

    (5) [(5) p.793] Ibid;

    (6) [(6) p.793] Cf. particularly O.R. XII, p. 76, CDDH/II/SR.61, para. 41; p. 77, para. 44; p. 78, para. 48;

    (7) [(7) p.794] Cf. particularly O.R. XI, p. 584, CDDH/SR.51, para. 38; p. 586, para. 47; O.R. XII, p. 77, CDDH/II/SR.61, para. 44;

    (8) [(8) p.794] Cf. particularly ibid., p. 107, CDDH/II/SR.64, para. 12; p. 112, para. 37; p. 115, paras. 53-54;

    (9) [(9) p.794] Cf. particularly ibid., p. 114, para. 51;

    (10) [(10) p.794] Cf. particularly ibid., p. 79, , CDDH/II/SR.61, para. 54; p. 113, para. 46; p. 114, para. 49;

    (11) [(11) p.794] Cf. particularly ibid., p. 108, , CDDH/II/SR.64, para. 17; p. 113, para. 45; p. 114, para. 48;

    (12) [(12) p.794] Cf. particularly ibid., pp. 107-108, para. 14; p. 113, para. 44; p. 114, para. 48;

    (13) [(13) p.794] Cf. particularly ibid., p. 114, para. 50;

    (14) [(14) p.794] Draft Article 55, present Article 62;

    (15) [(15) p.794] Cf. O.R. III, p. 277, CDDH/II/335; p. 278, CDDH/II/407 and 419;

    (16) [(16) p.795] Cf. ibid., pp. 263-264, CDDH/II/325, 325/Rev.1 and 342;

    (17) [(17) p.795] Cf. O.R. XII, p. 110, CDDH/II/SR.64, para. 30. As this delegate also stated, Article 4 B (1) of the Third Geneva Convention, which provides that persons belonging to the armed forces of an occupied country shall be treated as prisoners of war if they are interned, was not decisive in this respect: cf. ibid, para. 31;

    (18) [(18) p.795] I.e., no protection for military civil defence personnel; the new paragraph discussed above which was to be added to the article on general protection; an article (and conditions) relating to military civil defence personnel and units; identical protection for military and civilian civil defence personnel: in the sense of this last solution, cf. in particular O.R. XII, p. 116, CDDH/II/SR.64, para. 58;

    (19) [(19) p.795] On the work of the this Sub-Group, cf. in addition O.R. XIII, pp. 315-319; CDDH/325/Rev.1, Appendix; pp. 375-377, CDDH/406/Rev.1, paras. 63-66; O.R. XII, pp. 431-433, CDDH/II/SR.96, paras. 23-28;

    (20) [(20) p.795] Cf. Art. 8, sub-para. (e);

    (21) [(21) p.795] On the meaning of these expressions, cf. commentary Art. 8, sub-para. (e), supra, pp. 128-129;

    (22) [(22) p.795] Cf. Art. 65, para. 2(b);

    (23) [(23) p.796] Cf. O.R. XIII, p. 377, CDDH/406/Rev.1, para. 67; O.R. XII, pp. 433-434, CDDH/II/SR.96, paras. 31-34; cf. also commentary Art. 65, supra, p. 777-778 and note 50;

    (24) [(24) p.796] In this sense cf. O.R. XIII, p. 376, CDDH/II/406/Rev.1, para. 67, which contains the proposal of the Working Group and clearly indicates that there was no intention to change the substance of this proposal. Cf. also O.R. XII, pp. 433-434, CDDH/II/SR.96, paras. 32-35. On the meaning of the expression "imperative military necessity", cf. commentary Art. 62, para. 1, supra, p. 740;

    (25) [(25) p.796] On the meaning of the words "permanently" and "exclusively" cf. commentary Art. 8, sub-para. (k), supra, pp. 132-133;

    (26) [(26) p.796] Despite the exception made for auxiliary medical personnel: in fact, that type of personnel is mainly intended to fill a gap in the strength of permanent personnel in emergencies and is little used in practice. Thus this precedent is not decisive;

    (27) [(27) p.796] Cf. commentary Art. 61, sub-para. (c), supra, pp. 735-736;

    (28) [(28) p.797] We should mention, on the one hand, the view that later assignment to other military tasks should have been permitted: cf. in particular O.R. VI, pp. 269-270, CDDH/II/SR.43, Annex (Ghana); p. 271 (Indonesia); on the other hand, the doubt expressed about the compatibility of this provision with Article 43, paragraph 2, which gives members of the armed forces the right "to participate directly in hostilities": cf. ibid, p. 266 (Egypt). However, these two points of view had been previously refuted, the first because of the guarantees which must be given by those protected; the second on the basis that the intention of this provision was precisely for members of the armed forces to which it applied to renounce the right to participate in hostilities in exchange for total protection: cf. O.R. XII, pp. 433-434, CDDH/II/SR.96, para. 34;

    (29) [(29) p.797] Cf. O.R. XIII, p. 377, CDDH/406/Rev.1, para. 67. Cf. in addition Annex I, Art. 15;

    (30) [(30) p.797] Regarding the identity card, cf. Annex I, Art. 14;

    (31) [(31) p.798] Cf. O.R. VI, p. 264, CDDH/SR.43, Annex (Austria); cf. also p. 266 (Egypt); pp. 275-276 (Sweden);

    (32) [(32) p.798] In this context it should be noted that the French text uses the expression "propre protection" in Art. 65, para. 3, and the expression "propre défense" in this paragraph. However, this is merely a translation error, as shown by the English text which uses the expression "self-defence" in both articles;

    (33) [(33) p.798] On this subject, cf. commentary Art. 65, para. 3, supra, pp. 777-778. In its report the Committee explicitly stated that the comments it had made on Article 65, paragraph 3, were equally applicable to this paragraph, cf. O.R. XIII, p. 377, CDDH/406/Rev. 1, para. 67;

    (34) [(34) p.798] Cf. Art. 43, para. 2;

    (35) [(35) p.798] O.R. XII, p. 440, CDDH/II/SR.97, para. 6;

    (36) [(36) p.798] On the concept of participating directly in hostilities, cf. commentary Art. 43, para. 2, supra, pp. 514-517; see also Art. 51, para. 3, which provides that civilians participating directly in hostilities lose their right to protection for so long as the participation lasts, and the commentary thereon, supra, pp. 618-619; for the rest of this sub-paragraph, cf. commentary Art. 65, para. 1, supra, pp. 770-771;

    (37) [(37) p.799] The question of members of the armed forces of a Party to the conflict whose territory is occupied is a different matter. It is dealt with in paragraph 2;

    (38) [(38) p.799] On this subject, cf. Art. 85, para. 1, of the Protocol; Art. 49, para. 4, First Convention; Art. 50, para. 4, Second Convention; Art. 129, para. 4, Third Convention; Art. 146, para. 4, Fourth Convention;

    (39) [(39) p.799] Cf. commentary Art. 85, para. 3(f), infra, pp. 998-999;

    (40) [(40) p.800] Cf. O.R. III, p. 277, CDDH/III/335; O.R. VI, p. 276, CDDH/SR.43, Annex (Switzerland); O.R. XII, p.66, CDDH/II/SR.60, para.64; pp. 111-112, CDDH/II/SR.64, para.36; p. 115, paras. 53-54;

    (41) [(41) p.800] Cf. particularly O.R. XII, p. 64, CDDH/II/SR.60, para. 54; p. 71, CDDH/II/SR.61, para. 10;

    (42) [(42) p.800] In this sense, cf. particularly O.R. XII, p. 74, CDDH/II/SR.61, para. 28;

    (43) [(43) p.800] O.R. XII, p. 432, CDDH/II/SR.96, para. 27. Cf. also p. 441, CDDH/II/SR.97, para. 19;

    (44) [(44) p.801] On that debate, cf. O.R. XII, pp. 441-444, CDDH/II/SR.97, paras. 19-34;

    (45) [(45) p.801] Cf. ibid., pp. 443-444, para. 34;

    (46) [(46) p.801] Cf. ibid., p. 444, paras. 35-37 and p. 445, paras. 48-50;

    (47) [(47) p.801] Cf. ' Commentary III ', p. 276. Cf. also O.R. XII, p. 443, CDDH/II/SR.97, paras. 31-33;

    (48) [(48) p.801] Cf. Art. 49, para. 6, Fourth Convention;

    (49) [(49) p.802] Cf. commentary Art. 61, sub-para. (a), supra,
    pp. 719-722;

    (50) [(50) p.802] Cf. O.R. XII, p. 442, CDDH/II/SR.97, para. 24;

    (51) [(51) p.802] Cf. Art. 56, Third Convention. However, in this connection, see the explanation of vote of a delegation which, without explicitly giving its view on this question of administrative dependency on a camp, "understands the provision in paragraph 2 to mean that the adverse Party may authorize volunteers from among the personnel described in paragraph 2 to continue their civil defence activities without interruption", O.R. VI, p. 276, CDDH/SR.43, Annex (Switzerland);

    (52) [(52) p.802] Cf. Art. 61, sub-para. (d);

    (53) [(53) p.802] Cf. particularly Chapters V and VI of the First Convention;

    (54) [(54) p.803] In this respect, cf. particularly commentary Annex I, Art. 15, para. 3, infra, p. 1293;

    (55) [(55) p.803] Cf. O.R. XII, p. 444 CDDH/II/SR.97, para. 43;

    (56) [(56) p.803] Cf. ibid., p. 445, paras. 44-45;

    (57) [(57) p.803] Cf. First Convention, Articles 33 to 35;

    (58) [(58) p.803] Cf. Hague Regulations, Arts. 23, para. 1(g); 28; 47; 53, para. 1 and 56; cf. also Commentary I, p. 275 (Art. 33, para. 2);

    (59) [(59) p.804] Cf. Hague Regulations, Art. 55;

    (60) [(60) p.804] On the meaning of this expression, cf. commentary Art. 62, para. 1, supra, p. 740;

    (61) [(61) p.804] On the concept of proportionality, cf., by analogy, commentary Art. 51, para. 5(b), supra, pp. 623-626;