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Commentary - Art. 12. Chapter II : Wounded and sick
    ARTICLE 12 -- PROTECTION AND CARE


    This Article, as the commentator on the 1929 Geneva Convention (1) very properly emphasized, is the keystone of the whole Convention. The principle of the inviolability of the wounded and sick, which figured [p.134] as Article 6 in 1864 , had been transferred in 1906 to its natural and logical place at the beginning of the Convention, as Article 1 . In 1949, however, the necessity of commencing the four Geneva Conventions with common general provisions caused it to become Article 12. It is none the less true that the Article opens the Convention proper and dominates it throughout. From the great principle laid down in that Article flow all the other obligations imposed upon Parties to a conflict in the subsequent Chapters -- namely, the obligation to respect medical units and establishments (Chapter III), the personnel entrusted with the care of the wounded (Chapter IV), buildings and material (Chapter V), medical transports (Chapter VI) and, lastly, the emblem, which is to serve as the common visible symbol of immunity (Chapter VII).

    PARAGRAPH 1 -- RESPECT AND PROTECTION

    A. ' General. ' -- The 1864 Convention confined itself to stating the principle in all its simplicity, but at the same time with all its force, without developing its meaning in any way: "The military wounded and sick shall be collected and cared for, to whatever nation they may belong."
    At the time of the first revision in 1906 the idea of ' respect ' for the wounded -- implicit until then -- was expressly added. At the second revision; in 1929, the formula was further extended by speaking of ' protection ' and ' humanity. '
    It should be pointed out in this connection that the notion of "neutrality", a term which in the 1864 text expressed the immunity enjoyed by ambulances, medical personnel, and by implication the wounded themselves, had already been dropped by 1906, The notion in question no doubt conveyed clearly enough that a combatant ceased to be an enemy once he was wounded and therefore harmless, and also the conception of medical personnel as being outside the conflict; but it did not correspond to reality, as the term "neutrality" refers essentially to the abstention of persons who are taking no part in the conflict. In place of this unsuitable and inexact expression it was thought preferable to substitute the notion of respect and protection in all circumstances. The word "respect" (' respecter ') means, according to the Dictionary of the French Academy, "to spare, not to attack" [p.135] (' épargner, ne point attaquer ') (2), whereas "protect" (' protéger ') means "to come to someone's defence, to lend help and support" (' prendre la défense de
    quelqu'un, prêter secours et appui '). The introduction of these words made it unlawful for an enemy to attack, kill, illtreat or in any way harm a fallen and unarmed soldier, while it at the same time imposed upon the enemy an obligation to come to his aid and give him such care as his condition required.
    The Diplomatic Conference of 1949 very rightly considered that this great principle, the corner-stone of the Convention, must not be touched. It accordingly left intact the four imperatives which had in 1929 defined the inviolability of the wounded -- namely, respect, protection, humane treatment and care. It was desired, however, to make the last two of these unconditional requirements more precise in certain respects. For greater clarity, and with a view to rendering more formal the absolute command regarding respect and protection, two separate paragraphs, which will be considered below, were devoted to these principles.

    B. ' Extent of the obligation. ' -- The obligation embodied in this paragraph (paragraph 1) is general in character: it is applicable "in all circumstances". The wounded are to be respected just as much when they are with their own army or in no man's land as when they have fallen into the hands of the enemy. The obligation applies to all combatants in an army, whoever they may be, and also to non-combatants. It applies also to civilians, in regard to whom Article 18 specifically states: "The civilian population shall respect these wounded and sick, and in particular abstain from offering them violence." A clear statement to that effect was essential in view of the special character which modern warfare is liable to assume (dispersion of combatants, isolation of units, mobility of fronts, etc.) and which may lead to closer and more frequent contacts between military and civilians. It was necessary therefore, and more necessary today than in the past, that the principle of the inviolability of wounded combatants should be brought home, not
    only to the fighting forces, but also to the general public. That principle is one of the fine flowers of civilization, and should be implanted firmly in public morals and in the public conscience.
    The necessity of not confining the benefits of the Convention to [p.136] officers and soldiers alone, but of extending it to include "other persons officially attached to the armed forces", had been recognized in 1906; but no attempt was made to specify who such persons might be, as it was desired to avoid encumbering the text and above all to avoid the drawbacks to a restrictive and possibly incomplete enumeration. It was felt that the fact of officially belonging to an army could be shown sufficiently clearly by an entry in the paybook of the man concerned or by some other authentic document. This attitude continued to be maintained by the 1929 Conference.
    The Diplomatic Conference of 1949, on the other hand, took a different view for reasons which will be indicated below in connection with Article 13 . It decided to incorporate in the Convention itself as complete a list as possible of the persons to whom the Convention was to be applicable. It is to this list that the paragraph under consideration (paragraph 1) refers.

    C. ' Definition of the wounded. ' -- No attempt has ever been made in the Geneva Convention to define what is meant by a "wounded or sick" combatant; nor has there ever been any definition of the degree of severity of a wound or a sickness entitling the wounded or sick combatant to respect. That is as well; for any definition would necessarily be restrictive in character, and would thereby open the door to every kind of misinterpretation and abuse. The meaning of the words "wounded and sick" is a matter of common sense and good faith. They cover combatants who have fallen by reason of a wound or sickness of any kind, or who have ceased to fight and laid down their arms as a consequence of what they themselves think about their health (3). It is the fact of falling or laying down of arms which constitutes the claim to protection. It is only the soldier who is himself seeking to kill who may be killed. The abandonment of all aggressiveness should put an end to aggression.

    PARAGRAPH 2 -- TREATMENT AND CARE

    A. ' General. ' -- It is not sufficient to respect the wounded. They require ' care, ' If a soldier, who is ' hors de combat, ' is respected and [p.137] protected against injury of any kind, but is at the same time left to struggle alone against the effects of his wound or his sickness, he runs a great risk of succumbing. There is therefore a positive, as well as a negative, obligation: the wounded and sick must be given such medical care as their condition requires. This fundamental principle has remained unchanged since 1864.
    As in the case of protection, the work of relief must be impartial: that is to say, each belligerent must treat his fallen adversaries as he would the wounded of his own army. This duty falls on every individual. Any soldier coming upon a wounded enemy must give him such care as he has at his command, and must endeavour to hand him over to a medical unit.
    The 1929 Conference was further anxious to include in the Convention a rule which had until then been implicit because of its obvious character -- to the effect, namely, that wounded and sick must be treated with humanity. The word "treatment" in this connection is to be taken in its most general sense, as applying to all aspects of a man's existence and not merely in a medical sense. A surgeon "treats" a wounded man by operating on him; but he would be treating him inhumanely, if he did not give him an anaesthetic first.
    The Diplomatic Conference of 1949, as we have already seen, made a point of defining and developing certain terms in the existing text. The conceptions of respect and protection were left as they were in the 1906 text; but the conceptions of humane treatment and care were considerably expanded in paragraphs 2, 3 and 4.
    The 1949 Conference sought in the first place to determine what distinctions might, or might not, legitimately be made in the treatment of the wounded or sick. It went on to illustrate its meaning by a list of particularly grave offences against the lives and persons of wounded individuals. Such offences were, of course, most strictly prohibited, and constitute "grave breaches" within the meaning of Articles 49 and 50 of the Convention (4).

    B. ' Distinctions. ' -- Paragraph 2 begins by laying down that ' adverse ' distinctions are prohibited. By this novel provision the Conference very rightly sought to make it clear that it was not intended to exclude distinctions made in favour of enemy wounded or sick and in order to [p.138] take their physical attributes into account. Women, for example, must receive special consideration; (specific provision for this is made in the Convention); and special treatment in the matter of lodging, heating and clothing is naturally indicated in the case of wounded or sick accustomed to a tropical climate.
    The paragraph goes on to enumerate the adverse distinctions which are, in particular, forbidden -- such, namely, as are founded on sex, race, nationality, religion, political opinions or other similar criteria. In the successive versions of the Convention down to 1929, the only distinction which might not be made between wounded or sick picked up on the battlefield, was in respect of ' nationality. ' But the painful experience of the Second World War clearly showed the need for further definition and development of this conception. The Preliminary Conference of National Red Cross Societies was already urging in 1946 that the criteria of race, sex, religion and political opinions should be included in addition to that of nationality. This contention was supported by the Experts Commission of 1947 and by the XVIIth International Red Cross Conference in 2948; and the Diplomatic Conference of 1949 fully concurred, and even went further, adding the words "or any other similar criteria" in order to strengthen the prohibition and make it more
    general. Accordingly there is nothing now which can justify a belligerent in making any adverse distinction between wounded or sick who require his attention, whether they be friend or foe. Both are on a footing of complete equality in the matter of their claims to protection, respect and care. Only grounds of medical urgency can justify priority in the order of treatment, as will be seen in the next paragraph.

    C. ' Prohibited attempts. ' -- Paragraph 2 then proceeds to enumerate derelictions of duty considered as being the gravest a belligerent can commit in regard to the wounded and sick in his power. This decision of the 1949 Conference also finds its explanation in the recollection of barbarous acts of which the last World War furnished all too many examples. It is quite clear, however, that the heinous crimes in question were already prohibited in the 1929 text, which established the principle of respect and protection in all circumstances -- a principle which is general and absolute in character.
    The injunction begins with an imperative prohibition ("shall be [p.139] strictly prohibited"), first in general terms, of "any attempts upon their lives, or violence to their persons", the word "persons" meaning here the moral as well as the physical person. The enumeration proper follows after the general prohibition, and is not limitative: "they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created".
    This enumeration calls for comment.
    It was intended, by prohibiting the subjection of wounded and sick to biological experiments, to put an end for all time to criminal practices of which certain prisoners have been the victims, and also to prevent wounded or sick in captivity from being used as "guinea-pigs" for medical experiments.
    But the provision refers only to "biological experiments". Its effect is not to prevent the doctors in charge of wounded and sick from trying new therapeutic methods which are justified on medical grounds and are dictated solely by a desire to improve the patient's condition. Doctors must be free to resort to the new remedies which science offers, provided always that such remedies have first been satisfactorily proved to be innocuous and that they are administered for purely therapeutic purposes.
    This interpretation is in complete accordance with the corresponding provisions of the three other Geneva Conventions -- in particular Article 13 of the Third Convention , which is the most explicit and lays down specifically that "no prisoner of war may be subjected to... medical or scientific experiments of any kind which are not justified by the medical treatment of the prisoner concerned and carried out in his interest".
    The rule which forbids the creation of conditions exposing the wounded or sick to contagion or infection is bound up with the one just discussed.

    PARAGRAPH 3 -- ORDER OF TREATMENT

    The first effect of paragraph 3 is to strengthen the principle of the equality of treatment of the wounded, which was embodied in the preceding paragraph. It indicates the ' only ' reasons which can justify [p.140] priority in the order of treatment -- namely reasons of medical urgency.
    The paragraph also indicates an exception to the above principle, but an exception which is perfectly justified. Let us suppose that the Medical Service in some place is overwhelmed by an influx of wounded, both friends and enemies. The doctors, in such a case, will attend first to those patients for whom delay might be fatal or at any rate prejudicial, proceeding afterwards to those whose condition is not such as to necessitate immediate attention.

    PARAGRAPH 4 -- TREATMENT OF WOMEN

    Paragraph 4 is an example of a favourable distinction which is made compulsory. Its introduction by the Diplomatic Conference of 1949 merely made good an omission in the 1929 text. At that time it was already recognized as necessary that women taking part officially in military operations should be treated with the special consideration due to their sex; and a clause to that effect was introduced in the Convention relative to the treatment of prisoners of war, but not in the Geneva Convention properly so called. It was no doubt felt that this special consideration for wounded or sick women combatants was self-evident and implied. But in view of the continually increasing participation of women in military operations, and in view also of painful experiences during the Second World War, it seemed necessary to include a special injunction on the point.
    The special consideration with which women must be treated is of course in addition to the safeguards embodied in the preceding paragraphs, to the benefits of which women are entitled equally with men.
    What special consideration? No doubt that consideration which is accorded in every civilized country to beings who are weaker than oneself and whose honour and modesty call for respect. Apart from this, the principle of equality of treatment as between enemies and nationals is involved. Women of the enemy's side will be allowed to enjoy the same advantages as women patients who are nationals, as well as any other favourable distinctions to which they are entitled by reason of their race, or because of the climate or food to which they are accustomed, in the same way as men of the same origin as themselves.

    [p.141] PARAGRAPH 5 -- CONTRIBUTION TO TREATMENT

    A Party to a conflict may rightly expect his wounded to be cared for by the enemy, but he must nevertheless continue to assist in their treatment, and must accordingly leave with those whom he cannot withdraw within his own lines, and must abandon to his adversary, part of his medical personnel and equipment, as far as military considerations permit. This provision, which was introduced as far back as 1906, meets a humanitarian requirement so obviously necessary that it was not affected by the recasting of 1929 and 1949, with the single exception that in 1949 the expression "belligerent" was replaced by the more general expression "the Parties to the conflict" -- a change which was, incidentally, introduced throughout the four Conventions.
    The problem thus arising for the military commands concerned may no doubt in certain circumstances be a very difficult one; and the commentator on the 1929 Convention very properly observed as follows: "This obligation, natural and necessary as it is, may be a heavy charge if, for example, a retreating belligerent is compelled to abandon several groups of wounded in turn, leaving medical personnel and equipment with them each time. He runs the risk in such a case of having no medical personnel or equipment left for those of his troops who are the last to fall. That cannot be helped. It is his duty to provide for present needs without keeping back the means of relieving future casualties. If as a result he has no more medical personnel or equipment for subsequent casualties, he will have to do all he can to ensure that they receive relief, even appealing, in such a case, to the charity of the inhabitants, as he is entitled to do under Article 5 (5)"
    But the rule laid down in this Article is not absolute. It is qualified by the reservation "as far as military considerations permit". The 1906 Convention used the expression "military circumstances". In 1929 the term "considerations" (in French, ' exigences ') was preferred as being clearer and more restrictive; and the term has been retained.
    It is not indeed feasible to impose upon a military command an obligation which circumstances may render impossible of fulfilment, or to place the commander before the alternative of failing in his duty [p.142] as a leader or violating a positive engagement. As Louis Renault wrote: "It may be necessary in certain cases to correct the rigidity of a particular provision by a reminder that commanders of troops may relax such rigidity where that appears to them to be compatible with the objects of the war." (6)
    If this provision cannot, therefore, be considered imperative, it represents none the less a clear moral obligation which the responsible authority cannot evade except in cases of urgent necessity. It is, moreover, as the Secretary-General of the Diplomatic Conference of 1906 pointed out, "a serious warning to belligerents to make provision in advance for medical personnel and equipment sufficient to ensure the fulfilment of their obligations." (7) Today, as then, that warning holds good.
    It should, moreover, be noted that this provision is in no way bound up with the obligation, imposed upon the Parties to the conflict by paragraph 2, to care for the wounded. A belligerent can never refuse to care for enemy wounded he has picked up, on the pretext that his adversary has abandoned them without medical personnel and equipment. On the contrary, he is bound to give to them the same care as he gives the wounded of his own army. Paragraph 2 imposes an absolute obligation, to which there are no exceptions; paragraph 5 is a recommendation, but an urgent and forcible one.


    * (1) [(1) p.133] Paul DES GOUTTES, ' Commentaire de la
    Convention de Genève du 27 juillet 1929, ' Geneva, 1930,
    page 11;

    (2) [(1) p.135] The word "respect" has even a more active
    connotation: it comprises such action as is necessary to
    ensure respect, as in the phrase "respect of the human
    person";

    (3) [(1) p.136] Cases are frequent of soldiers who have
    heroically continued to fight in spite of serious wounds.
    It goes without saying that in so doing they renounce any
    claim to protection under the Convention;

    (4) [(1) p.137] See below, page 362;

    (5) [(1) p.141] Article 18 in the 1949 Convention. See Paul
    DES GOUTTES, ' Commentaire de la Convention de Genève du
    27 juillet 1929, ' Geneva, 1930, page 15;

    (6) [(1) p.142] ' Actes de la Conférence de 1906, ' page 246;

    (7) [(2) p.142] ROETHLISBERGER, ' Die neue Genfer Konvention
    vom 6. Juli 1906, ' Berne, 1908, page 20;