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Commentary - Art. 16. Part II : General protection of populations against certain consequences of war
    ARTICLE 16. -- WOUNDED AND SICK: GENERAL PROTECTION


    PARAGRAPH 1. -- PROTECTION AND RESPECT

    1. ' General principles '

    "Protection and respect" is the time-honoured formula used in the First Geneva Convention (1), and appearing in the other three Conventions. Its importance and the fact that it also occurs in several other places in the Fourth Convention (2) make it desirable to say a few words here about its origin.
    The 1864 Convention confined itself to stating the principle in all its simplicity, but at the same time in all its strength, without developing its meaning in any way: "Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for".
    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.
    The idea of "neutralization", characteristic in the 1864 text of the immunity enjoyed by ambulances, medical personnel and, by implication, the wounded themselves, was dropped in 1906. This idea certainly made it clear enough that a combatant ceased to be an enemy [p.134] once he was wounded and therefore unable to fight, and that the medical personnel were outside the conflict; but it did not correspond to reality, as the term "neutrality" refers in international law to people who do not take part in a conflict. In place of this unsuitable form of wording, 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" (épargner, ne point attaquer), whereas "protect" (protéger) means "to come to someone's defence, to give help and support". These words make it unlawful to kill, ill-treat or in any way injure an unarmed enemy, while at the same time they impose an obligation to come to his aid and give
    him any care of which he stands in need.
    These rules are even more essential when the wounded or sick person is a civilian, i.e. a person who, by definition, takes no part in the hostilities.
    This leads logically to the provisions concerning the search for wounded and sick (Article 16, para. 2.), evacuation (Article 17 ), the protection of civilian hospitals and their staff (Articles 18 to 20), medical transport (Articles 21 and 22 ) and the consignment of medical supplies and equipment (Article 23 ). Articles 38 (2) , 56 and 59 in Part III are also based on them.

    2. ' Scope of the obligation '

    The obligation to protect and respect the wounded and sick, the infirm and expectant mothers is general and absolute in character. It applies to all Parties to the conflict, to all members of armed forces, combatant or non-combatant, as well as to persons who are placed in the same category by Article 4 of the Third Geneva Convention. It is an obligation which admits of no derogation and applies to wounded and sick civilians wherever they may be.
    The authors of the Convention have not defined what is meant by a "wounded or sick" civilian nor has there been any attempt to determine the degree of severity of a wound or the sickness entitling the wounded or sick person to respect. 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 an sick" is a matter of common sense and good faith.
    In addition to the wounded and sick the Diplomatic Conference mentions the infirm and also expectant mothers, as those persons are in a state of weakness which demands special consideration. Their being placed on the same footing as the wounded and sick is fully [p.135] justified by the fact that they belong to categories of the population which do not take part in hostilities.
    It should be emphasized once again in connection with this paragraph, that the special respect due to wounded, sick and infirm persons and expectant mothers cannot be considered under any circumstances or in any manner whatsoever to free the belligerents from their obligation to give the civilian population as a whole the respect and protection to which they are entitled. The special protection given to these special categories is not instead of, but in addition to the protection given generally.

    PARAGRAPH 2. -- SEARCH AND PROTECTION

    1. ' Search '

    A. ' Practical measures. ' -- Each Party to the conflict must facilitate steps taken to search for and bring in the killed and wounded. That is a measure for which the First Geneva Convention has made provision since 1864, and experience in two world wars has shown the necessity of applying it to the case of civilians who in modern wars may be struck down in the same way as members of the armed forces (3).
    The provision applies in particular to the actual theatre of operations and the most frequent and most important instance is when an army is retreating before an enemy offensive. The victorious forces must search the terrain without delay for the wounded and for the dead. They must all be brought to a safe place. Even human remains must be collected with the utmost care. Apart from moral considerations, the interest of the next-of-kin of the deceased demands that the legal consequences of disappearances without the issue of a death certificate should be avoided as far as possible.
    In carrying out these various tasks close co-operation must undoubtedly be established between the medical personnel of the armed forces and the relief organizations responsible for searching for, collecting and bringing in civilian casualties. It is true that saving civilians is the responsibility of the civilian authorities rather than of the military. That is why the wording of Article 16 ("each Party to the conflict shall facilitate the steps"...) is slightly different from the corresponding Article in the First Geneva Convention ("Parties to the conflict shall, without delay... take all possible measures..."). In actual practice, however, when it is necessary to search devastated [p.136] areas, the military and civilian bodies will usually carry out a joint relief operation covering all war casualties, civilians and members of the armed forces, friends and enemies. This is the only attitude to adopt in work of this description which consists, in short, not in helping soldiers on the one hand and civilians on the other, but simply
    in assisting human beings plunged into suffering by a common destiny -- human beings among whom all distinctions have been wiped out by suffering. That is the fundamental principle of humanity in virtue of which the Convention, as will be seen later (4), authorizes civilian hospitals to give shelter to military wounded and sick; and it is in virtue of the same principle that the First Convention (Article 22 (5)) allows the Army Medical Service to extend its humanitarian work to wounded and sick civilians. The two Conventions thus overlap, which shows clearly that in both of them the human aspect takes precedence over the distinction normally drawn between civilians and members of the armed forces.
    The same rules apply to civilian casualties resulting from naval action. The Parties to the conflict should, in such cases, facilitate the steps taken to bring help to the shipwrecked, pick them up, take them on board, tend them and send them to a port. This provision is complementary to Article 18 of the Second Convention, which deals with the search for service casualties of a naval engagement, as the counterpart of Article 15 of the First Convention. Furthermore, the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Article 35 (4) ) makes detailed provision for the Naval Medical Services to give attention to wounded, sick and shipwrecked civilians as part of its humanitarian work.
    In addition to the killed, wounded and shipwrecked the Article mentions "other persons exposed to grave danger", in a general clause ensuring that the list is not in any way restrictive. It covers any civilians who while not being either wounded or shipwrecked are exposed to some grave danger as a result of military operations. A particular case which the Conference had in mind was civilians trapped in air-raid shelters.

    B. ' Reservation. ' -- The obligation under paragraph 2 is not absolute. Indeed, the provision begins with a reservation (in regard to military considerations) which is not contained in the corresponding articles of the First and Second Geneva Conventions. The difference is more apparent than real, however, as the search for casualties is undertaken [p.137] by the Army or Navy Medical Services, which are bound to take military requirements into account. Under the Fourth Convention the service responsible for searching for wounded and dead is placed not under the control of military commanders, but under that of the civilian authorities; it is obvious that the latter could not send relief teams into the battle area without taking into account the essential military requirements. Consequently, the Diplomatic Conference rejected various proposals that the reservation should be omitted (5).

    2. ' Protection '

    As has just been mentioned, it will not always be possible to evacuate civilian wounded at once, and it will be necessary to protect them in the meantime against pillage and ill-treatment and also to prevent the dead from being robbed. Pillage is certainly prohibited under Article 33, paragraph 2 , of the Convention, which repeats a similar provision in the Hague Regulations of 1907; but in Article 33 the prohibition refers to the pillaging of towns and whole areas as well as individual cases, and the fact that it is in Part III restricts its scope to protected persons in the sense of Article 4 of the Convention.
    The present paragraph requires belligerents to facilitate steps taken to prevent any act of pillage either by civilians or by members of the armed forces, whatever their nationality (6).
    The presence of hordes of pillagers, formerly called the "hyenas of the battlefield" may not be so common today but the possessions of the wounded and dead may well excite the greed of unscrupulous soldiers or civilians and incite them to pillage. Such acts are odious and must be prevented.


    Notes: (1) [(2) p.133] See First Geneva Convention of 1949, Article
    12, para. 1, which corresponds to this provision;

    (2) [(3) p.133] See Articles 18, 20, 21 and 27;

    (3) [(1) p.135] The corresponding provision dealing with the
    search for wounded and sick of the armed forces is in
    Article 15, para. 1, of the First Geneva Convention of
    1949;

    (4) [(1) p.136] See below, p. 155;

    (5) [(1) p.137] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-B, p. 392;

    (6) [(2) p.137] Most penal codes, both civil and military,
    already provide for the punishment of pillage on the field
    of battle. For countries where this is not yet the case,
    see Article 146;