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Commentary - Protection of medical units and transports
    [p.1431] Article 11 -- Protection of medical units and transports


    [p.1432] General remarks

    4707 To implement the principle that the wounded and sick be protected and respected, as laid down in common Article 3 and reaffirmed in Article 7 ' (Protection and care) ' of this Protocol, the protection of medical units and transports (1) is just as essential as the protection of medical and religious personnel (Article 9 -- ' Protection of medical and religious personnel ') and protection of medical duties (Article 10 -- ' General protection of medical duties '). Article 11 is basically inspired by Articles 19 and 21 of the first Convention, but it is clearly also related to Articles 20 , 35 and 36 of the First Convention, Articles 22 , 23 and 24 of the Second Convention, and Articles 18 , 21 and 22 of the fourth Convention. In fact, this provision seeks to secure protection and respect for all military or civilian medical transports, on land, in the air, at sea or on lakes or rivers.

    4708 In situations of international armed conflicts the protection granted by the Conventions in the articles mentioned above is developed in Article 12 ' (Protection of medical units) ' and 13 ' (Discontinuance of protection of civilian medical units), ' as well as in Section II ' (Medical transportation) ' of Part II of Protocol I.

    4709 As regards Protocol II, the ICRC draft merely laid down the principle that medical units and transports must be protected, without explicitly providing when such protection may cease, i.e., without fixing the limitations of this right. (2) The parallel negotiation of the two instruments in Committee led the delegates to adopt a paragraph 2 on the discontinuance of protection based on Article 13 of Protocol I ' (Discontinuance of protection of civilian medical units). ' The text produced by the Committee also included a paragraph 3 regarding acts which should not be considered to be hostile acts, in this respect following the example of Article 13 of Protocol I ' (Discontinuance of protection of civilian medical units) '. (3) This paragraph was not included in the version which was finally adopted. (4) This simplification means the text is less clear, for it is less explicit, but it does not restrict the scope of the principle, and should not give rise to subjective and far-reaching interpretations of the concept of hostile acts. (5)

    Paragraph 1

    4710 Paragraph 1 lays down the principle that protection and respect are due to medical units and transports.

    [p.1433] 4711 The term "medical unit" is a generic term covering both permanent units, which stay where they are (hospitals, laboratories, equipment depots etc.), and mobile medical units, which may be moved as required (field hospitals, first aid posts, ambulances etc.). (6)

    4712 The term "medical transports" means any land vehicle (cars, trucks, trains etc.), ship, craft or aircraft assigned to transporting the wounded, sick and shipwrecked, medical and religious personnel, and medical equipment. Protection applies for military and civilian medical units and transports, whether they are permanent or temporary, provided that they are exclusively assigned to medical purposes; while they are so assigned, whether or not for an indefinite period, depending on whether they are permanent or temporary, medical units and transports may not be used for any purposes other than medical ones. (7) The concept "medical purposes" should be understood in a broad sense. It covers not only the care given the wounded, sick and shipwrecked, but also any activities for the prevention of disease, blood transfusion centres, rehabilitation centres for medical treatment and dental treatment. (8)

    4713 Medical units and transports must at all times:

    1) be respected,
    2) be protected,
    3) not be the object of attack.

    4714 The words "respect and protection" are part of the classical vocabulary of international humanitarian law. They already appear in Articles 7 ' (Protection and care) ' and 9 ' (Protection of medical and religious personnel) ' in this Part of the Protocol. (9) It should be recalled that respect and protection imply not only the obligation to spare the people and objects concerned, but also to actively take measures to ensure that medical units and transports are able to perform their functions and to give them assistance where necessary. "To respect such units means, not to attack them or harm them in any way", according to the [p.1434] commentary on Article 19 of the first Convention. Thus it was not necessary to mention that medical units and transports may not be the object of attack. The formula dates back to 1949; it endorses the expression "respect and protect". The commentary points out that "this strengthening of the general form of wording may not, however, be superfluous in view of the increasing scale of aerial bombardment". (10)

    4715 This remark is undoubtedly still just as valid today, but, as we have indicated before, it is unfortunate that the reference to attacks is not also included in Article 9 ' (Protection of medical and religious personnel), ' even though this omission does not affect the substance of the provision. (11)

    4716 The obligation to respect and protect medical units and transports applies "at all times", (12) i.e., even when they are not used to accommodate any wounded or other patients, or not for the time being, though of course, only provided that they remain assigned exclusively to medical purposes. (13)

    4717 By making it possible to identify medical units or transports, the distinctive emblem renders that protection visible (Article 12 -- ' Distinctive emblem '). The use of the distinctive emblem of the red cross or the red crescent, and in general the conditions of use of medical units and transports should be governed by the rules issued by the competent authority to which they belong. Such control is essential to prevent abuse and ensure the application of the rules of protection.

    4718 Finally, it should be noted that before definitively adopting Article 11 in Committee, the Conference waited for Section II ' (Medical transportation) ' of Part II of Protocol I to be adopted, so as to make sure that Protocol II would not in any way clash with Protocol I. (14) Article 11 covers indeed all medical transports on land, in the air, and on water, but its succinct wording does not go beyond expressing a general principle, while Protocol I is far more detailed in this respect. In case of specific difficulties, in particular to make sure that a given medical craft or aircraft is properly protected, Protocol I may serve as a very useful guide and provide practical solutions which may be relevant, by analogy, for the implementation of the principle. (15)

    [p.1435] Paragraph 2

    ' First sentence '

    4719 Protection and respect for medical units and transports are permanent obligations: "at all times". However, there are some exceptional cases in which protection for them may cease, namely, if "they are used to commit hostile acts, outside their humanitarian function".

    4720 This paragraph reiterates Article 21 of the first Convention, with slight changes in the wording. In particular, Article 21 does not refer to "hostile acts", but to "acts harmful to the enemy". There is no difference of substance between these two terms. The draft article provided by the Committee used the term "acts harmful to the advers Party". (16) As all references to "parties to the conflict" had been deleted from the text on the proposal of the Pakistani delegation, (17) in order to eliminate any possibility of an interpretation which would give any sort of recognition to the insurgent party, the term "hostile acts" was finally adopted.

    4721 The meaning is the same as in Article 21 of the first Convention: the acts concerned are those which are harmful to the adversary. Whether an act is harmful or hostile must be judged objectively.

    4722 Medical units and transports are under an obligation to remain strictly neutral, that is to say, that they should not in any way interfere in military situations. However, it may happen that a medical unit or transport, while strictly adhering to its duties, unwittingly becomes a hindrance or a tactical obstacle. (18) Its presence might incorrectly be interpreted as a hostile act, but this does not mean that protection should cease. It only ceases if the units or transports are used ' outside their humanitarian function. '

    4723 Such examples can also be found in Article 13 ' (Discontinuance of protection of civilian medical units), ' paragraph 2, of Protocol I. Although they have no binding force in the context of Protocol II, they may nevertheless help the interpretation thereof: (19)

    "The following shall not be considered as acts harmful to the enemy:
    (a) that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge;
    (b) that the unit is guarded by a picket or by sentries or by an escort;
    (c) that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the units;
    (d) that members of the armed forces or other combatants are in the unit for medical reasons." (20)

    [p.1436] 4724 As regards terminology, it should also be noted that the term "humanitarian duties", used in Article 21 of the First Convention, was replaced in this article by the words "humanitarian function". This change is a matter of drafting. The word "function" was found to be more satisfactory, as this term applies not only to personnel, but also to transports and buildings. Moreover, the term "tareashumanitarias", used in the Spanish version, contains simultaneously the concepts of duty and function.

    ' Second sentence ' (21)

    4725 When medical units or transports commit a hostile act, they lose their right to protection, but in most cases they are entitled to be given notice first: "Protection may, however, cease only after a warning has been given, setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded."

    4726 Patients, wounded or sick, are not responsible for unlawful acts committed by personnel caring for them; therefore it is appropriate to accord them guarantees of humane treatment. Moreover, the adverse party may have made an error of judgment and the time-limit provides the opportunity for correcting this; it also allows those responsible to put an end to the acts which are considered as hostile acts, i.e., to correct them, or alternatively to take the wounded and sick to a safe place. The adverse party must therefore order the unit or transport to cease the hostile act and inform them how much time they have before they may be attacked, if the warning has not been heeded.

    4727 A "reasonable time-limit", is not defined: it is the time they need, depending on the circumstances, to change their approach, to explain themselves if a mistake has been made, or to evacuate the wounded and sick.

    4728 The time-limit will be set "whenever appropriate". Article 21 of the first Convention refers to "all appropriate cases". In fact, this mainly applies to situations in which there is some doubt regarding the hostile character of a medical unit or transport. In some cases it is not appropriate to allow a time-limit. The commentary on Article 21 of the First Convention illustrates this possibility very clearly by imagining a body of troops approaching a hospital and being met by heavy fire from every window. (22)

    ' S.J. '


    * (1) [(1) p.1432] For the definitions of the terms "medical units", "medical transports" and "medical transportation", cf. infra, commentary para. 1 and note 7;

    (2) [(2) p.1432] Cf. draft Art. 17;

    (3) [(3) p.1432] O.R. XIII, p. 229, CDDH/II/287;

    (4) [(4) p.1432] O.R. IV, p. 58, CDDH/427;

    (5) [(5) p.1432] See infra, commentary para. 2, p. 1435;

    (6) [(6) p.1433] See ' Commentary I ', pp. 194-195 (Art. 19);

    (7) [(7) p.1433] The definitions given in Art. 11 of the draft produced by Committee II, which was not adopted, read as follows:
    "(c)'Medical units' means establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment -- including first aid treatment -- of the wounded, sick and shipwrecked, and the prevention of disease, which belong to or are recognized and authorized by a party to the conflict. Medical units may be fixed or mobile, permanent or temporary.
    (d)'Medical transportation' means the conveyance by land, water or air of the wounded, sick and shipwrecked, medical and religious personnel and medical equipment and supplies protected by this Protocol.
    (e)'Medical transport' is a means of transportation, be it military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a party to the conflict." Cf. O.R. XIII, pp. 303-304, CDDH/235/Rev. 1;

    (8) [(8) p.1433] Rehabilitation centres providing medical treatment and dental treatment were explicitly included under medical purposes: cf. ibid., p. 253, para. 20. This clarification was given on Art. 8, Protocol I, but also applies for Protocol II; cf. O.R. XII, p. 260, CDDH/II/SR.79, para. 19;

    (9) [(9) p.1433] See commentary Art. 7, supra, p. 1407;

    (10) [(10) p.1434] Cf. ' Commentary I, ' p. 196;

    (11) [(11) p.1434] Cf. commentary Art. 9, supra, p. 1417. We should call to mind the definition of attacks given in Art. 49, para. 1, o Protocol I: "'Attacks' means acts of violence against the adversary, whether in offence or defence." See supra, p. 602;

    (12) [(12) p.1434] See commentary Art. 4, para. 2(b), on the prohibition of collective punishments and "reprisals" in Protocol II, supra, p. 1374;

    (13) [(13) p.1434] See supra, p. 1432;

    (14) [(14) p.1434] Cf. O.R. XI, p. 603, CDDH/II/SR.53, para. 37;

    (15) [(15) p.1434] Cf. the articles of Part II, Section II, Medical transportation", of Protocol I, and the commentary thereon, supra, p. 245;

    (16) [(16) p.1435] O.R. XIII, p. 229, CDDH/II/287;

    (17) [(17) p.1435] An oral proposal in plenary meeting, cf. O.R. VII, p. 113, CDDH/SR.51, paras. 43-46;

    (18) [(18) p.1435] Cf. ' Commentary I ', pp. 200-201 (Art. 21);

    (19) [(19) p.1435] Para. 3, which was deleted during the final stage of the adoption of Protocol II, provided an a contrario explanation of the nature of hostile acts by giving a list of acts which should not be considered to be hostile. See supra, p. 176;

    (20) [(20) p.1435] See also O.R. XIII, p. 229, CDDH/II/287, ad Art. 17, para. 3;

    (21) [(21) p.1436] The commentary on this second sentence is ased on the commentary on Art. 21 of the First Convention, ' Commentary I ', p. 201;

    (22) [(22) p.1436] Cf. ibid. p. 202;