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Commentary - Art. 18. Part II : General protection of populations against certain consequences of war
    ARTICLE 18. -- PROTECTION OF CIVILIAN HOSPITALS


    GENERAL BACKGROUND

    Article 27 of the Hague Regulations deals briefly with the protection of hospitals, together with that of buildings dedicated to religion, art, science and charitable purposes. It stipulates that their presence is to be indicated by distinctive and visible signs, but it does not say what the signs are to be. Article 5 of the Ninth Hague Convention provides that "hospitals and places where the sick or wounded are collected" are to be protected and indicated by "visible signs which shall consist of large, stiff rectangular panels, divided diagonally into two coloured triangular portions, the upper portion black, the [p.142] lower portion white". Here then the special sign is exactly defined; but the Ninth Hague Convention dealt only with bombardment by naval forces.
    In view of the inadequacy of these provisions, efforts were made from the time of the First World War onwards, to extend to civilian hospitals the protection to which military hospitals bad been entitled since 1864.
    Certain States militarized their civilian hospitals in order to bring them within the scope of the Geneva Convention. That meant placing them under military control, military management and military discipline. If the validity of this method was to be recognized by the enemy, however, the hospitals so militarized would have to be really used, at least in part, for wounded and sick of the armed forces. A provision stating that civilian hospitals would be placed under military control in case of war would not entitle them ipso facto to the protection of the Convention. It would be necessary for a hospital to fulfil the two conditions mentioned before it could claim an unquestionable right to protection under the Convention and obtain the military authorities' permission to fly a white flag with a red cross.
    Towards the end of the Second World War, certain belligerents, including Germany and Italy, marked their civilian hospitals with a red square in the centre of a white circle. That emblem was recognized by the adverse Powers. The Ceylon authorities took a similar step, marking their civilian hospitals with an emblem consisting of a red square placed in the centre of a white one and covering one ninth of its area (1).
    Although those three systems were of some service they were still no more than palliatives or makeshift solutions; it was still necessary to seek a general solution which would provide civilian hospitals with effective protection based on the provisions of a Convention of universal scope. The Preliminary Conference of the National Red Cross Societies, to which the International Committee had submitted the question in 1946, considered that civilian hospitals should be empowered to use the emblem of the Geneva Convention and discountenanced the idea of creating a new emblem (2).
    The following year the Conference of Government Experts was of the opinion that the Geneva Convention should confine itself to its traditional sphere and relate only to the armed forces, and suggested that the principles of that Convention could be extended to civilian [p.143] wounded and sick by the insertion of special Articles on the subject in the draft Convention for the general protection of civilians. The experts agreed with the Preliminary Conference of National Red Cross Societies that civilian hospitals should enjoy special protection, on condition that they were recognized as such by the State and were able permanently to care for wounded and sick civilians. Both the Experts and the Preliminary Conference advocated that the hospitals should use the red cross emblem (3), subject to the consent of the military authorities.
    The provisions which the International Committee of the Red Cross proposed to the XVIIth International Red Cross Conference in 1948, were very largely based on the ideas put forward by the Experts, and the Conference adopted them without any change of importance. The statement of the characteristics which a civilian hospital must have was retained, and the marking of civilian hospitals with the red cross was made conditional upon the joint authorization of the State and the National Red Cross Society (4).
    The Diplomatic Conference of 1949, to which the draft Convention was referred for final decision, was unanimous in recognizing the necessity for giving civilian hospitals better protection and of providing for the possibility of marking them. The discussions showed that wide differences of view existed in regard to the definition of civilian hospitals and the conditions on which their marking should depend. As we shall see, the wording finally adopted has all the characteristics of a compromise text.

    PARAGRAPH 1 -- DEFINITION AND PROTECTION

    1. ' Purpose '

    A. ' General principles. ' -- The main purpose of Article 18 is to protect civilian hospitals; by that very fact it protects also the wounded, sick, infirm and maternity cases under treatment in those hospitals. This list, which is exhaustive subject to the provision in Article 19, paragraph 2 , does not give a precise definition of a civilian hospital.
    The text recommended by the XVIIth International Red Cross Conference spoke of civilian hospitals recognized as such by the State [p.144] and able to give treatment on a permanent basis. That definition is clearer; it lays down two restrictive conditions in regard to civilian hospitals: viz. official recognition and the ability to give care to the sick on a permanent basis. Since agreement could not be reached, however, the Conference instructed an lad hoc Working Party to study the Article. After overcoming many difficulties the Working Party succeeded in finding a wording acceptable to all. It was primarily the fear of jeopardizing this delicately balanced and hardly won compromise which led the plenary assembly to adopt this definition of civilian hospitals without objection.
    Careful examination will nevertheless bring out the points of value in the definition of civilian hospitals in Article 18, and show that it expresses the intentions of the Diplomatic Conference and is in accordance with the spirit and general arrangement of the Conventions.
    In the first place the list of categories in paragraph 1 is not cumulative. It is not necessary, therefore, for a civilian hospital to be able to treat all categories in the list, in order to meet the requirements laid down in Article 18. It will suffice if the hospital devotes itself to one category only, as in the case of maternity hospitals.
    A civilian hospital must have the staff (including administrative staff) and the equipment required to fulfil its purpose. It must be organized to give hospital care. That is the essential point. It is not necessary for the hospital to function permanently as a hospital. The Diplomatic Conference considered that establishments converted into auxiliary hospitals as an emergency measure consequent upon the events of war, should not be excluded from the protection of the Convention (5), as such hospitals are very often established in the combat area itself, and their need for protection is thus all the greater. The deciding factor is, as has just been mentioned, that it must be effectively possible to give hospital treatment and care, and that necessarily implies a modicum of organization.
    The capacity of the establishment cannot be used as a criterion for deciding whether or not it is a civilian hospital. There is no mention of size in Article 18, and the preliminary discussions show that the point was deliberately omitted. It is possible, however, that in their national laws for applying the Convention, States may adopt size as a criterion and make recognition by the State depend on the number of beds. Twenty beds, the lower limit suggested by the Government Experts, would appear to be reasonable.
    Civilian hospitals are entitled to protection under the Convention, [p.145] whether they contain patients or not. That follows from the wording of the clause, which merely mentions the fact that they must be organized and lists the categories of people who are to receive treatment there. One thing is quite clear, however, and it is of great importance: if a hospital is to enjoy special protection under the Convention, it may under no circumstances be used for non-medical purposes. If a school has been converted into an emergency hospital, for instance, classes may no longer be held in it, even if there are periods when it contains no wounded or sick.
    Finally, it should be noted that Article 18 does not in any way depend on the legal status of the hospitals under the law of the country concerned. Private hospitals and State or municipal hospitals are alike entitled to special protection under the Convention, provided they satisfy the conditions laid down.

    B. ' Application. ' -- In the case of establishments where medical attention is given, whatever they are called -- hospitals, clinics, sanatoria, health centres, ophthalmic, psychiatric or child clinics -- there can be no doubt that they are hospitals within the meaning of Article 18 and it is unnecessary to labour the point.
    The problem becomes more complicated in the case of establishments intended for persons whose state of health demands attention although they cannot be said to be sick: for example, homes for children, infants or the old, preventive sanatoria, invalid hostels, hydropathics, etc.
    Of course, the Convention nowhere contains a definition of a sick or infirm person. Nevertheless it should be possible, on the basis of general principles and the end in view, to determine the scope of the Article in such a way as to decide on a suitable dividing line permitting the exclusion of establishments not fulfilling true hospital functions.
    Institutions for the old are not of the nature of civilian hospitals. They are intended to enable old and lonely people to live without having to bother about their accommodation and subsistence, but are not designed to provide hospital treatment for the inmates; they could be likened to ' pensions ' or homes rather than to hospitals. To class them as hospitals would be contrary to what is understood by the word. For this reason institutions for the old cannot be regarded as covered by Article 18.
    On the other hand, those establishments whose sole end is the care of the sick, infirm, old people or old people suffering from incurable diseases, could be classified as civilian hospitals within the meaning of Article 18.
    [p.146] As for homes intended solely for the care of infirm persons, for instance homes for the blind or the deaf and dumb, they should for inclusion in the civilian hospital category as defined in Article 18, provided that the inmates are receiving care.
    Invalids are not included in the list contained in Article 18. However, establishments where they are treated can be considered civilian hospitals, for invalids are also wounded or sick so long as their state of health requires hospital treatment. Article 18, however, does not cover establishments intended solely to receive invalids whose state of health does not necessitate hospital treatment.
    Homes for infants and children, like institutions for the aged, house the weak to whom care is given but whose health is not impaired. For that reason they cannot be classed as civilian hospitals.
    It seems reasonable to class preventive sanatoria, in most instances at least, with sanatoria and hospitals. The distinction between sanatoria and preventive sanatoria will often be difficult to establish. Of course, if their name only is considered, preventive sanatoria do not in principle receive persons actually suffering from a disease, but only persons predisposed to that disease; however, in so far as these establishments are organized in much the same way as civilian hospitals and the persons accepted there are subject to medical discipline and are given preventive care, it would seem justified to treat them as civilian hospitals. It may be added that preventive sanatoria frequently accommodate persons already ill, if only slightly, and the name "preventive sanatorium" is, in many cases, merely a euphemism.
    The great majority of hydropathics, on the other hand, are not frequented solely by the ailing and infirm, but also -- for the most varied reasons -- by persons in good health or at least by persons who are not ill in the proper sense of the word. Moreover, persons who frequent these establishments live in hotels or boarding-houses for the greater part of the time and are not subject to medical supervision outside the hydropathic itself ; they are therefore not hospital patients. Hence it may be concluded, in general, that hydropathics are not covered by Article 18. There may conceivably occur cases, however, where a hydropathic is organized on the lines of a civilian hospital and that the persons using it are sick in the proper sense of the word. In that case it could be classed as a civilian hospital.
    In view of the great variety of cases which may arise, it is difficult to give a priori a general definition of the civilian hospitals referred to in Article 18. It would therefore be very desirable for the measures of application in each country to specify as precisely as possible the conditions for recognition of an establishment as a civilian hospital.
    [p.147] If several types of institution have been omitted from this study of establishments which may be classed as civilian hospitals as defined by the Convention, that does not mean that they do not benefit from protection by virtue of other provisions of the law of nations. Thus it is certain that several of the establishments mentioned above, but which it was decided could not be included, are devoted to charitable purposes and may therefore claim protection under the articles of the Hague Regulations quoted above (6). Furthermore, while it may be wondered whether these establishments are entitled to protection as such, it should be noted that the persons housed therein are all protected persons, since they have taken no part or no longer take part in the fighting (children, women, old people, wounded and sick).

    2. ' Respect and protection '

    After defining what the object of the protection is, paragraph 1 goes on to say against what the protection is given. The provision gives two indications: the first, negative in character, states that hospitals may not be the object of attacks; the second, in positive form, lays certain duties on the belligerents.
    The idea contained in the words "may not be the object of attack" is implicit in the idea of "respecting". It was deliberately emphasized in the same way in the corresponding provision of the First Geneva Convention, and it can only be assumed that the authors of the provision had in mind the increasing scale of bombing from the air (7). The prohibition in paragraph 1 obviously refers primarily to attacks ' deliberately ' directed against hospitals. Under war conditions, however, such an intention is infrequent and in any case difficult t prove. The prohibition must therefore be regarded as wider in it significance; some light may be thrown on this by the use of the term "respect" and by the absolute quality of the obligations expressed in paragraph 1 ("in no circumstances" and "at all times"); the belligerents are under a general obligation to do everything possible to spare hospitals. That is the essential point.
    Understood in that way, as it should be, the prohibition of attacks on hospitals will have very definite consequences because of the conditions in which most of them have to work today. They are very often situated either close to or inside towns which may also contain military objectives. When attacking such objectives, the attacking force is [p.148] bound under paragraph 1 to take special precautions to spare hospitals as far as is humanly possible. That is a reasonable corollary to the precautions which the State to which the hospital belongs must itself take by siting them as far as possible from any military objectives, as recommended in the last paragraph of Article 18 (8).
    If a hospital, by and large, fulfils this requirement -- which is no more than a recommendation -- direct hits on it by an attacking force which has not taken such precautions during operations against a military objective might with justice be regarded as a violation of paragraph 1.
    Furthermore, under certain circumstances (during an attack by air-borne troops, for example), a point close to a hospital may suddenly become a military objective, without there being any practical possibility of transporting the sick and equipment to a sufficient distance. The general obligation to spare hospitals requires, even in such cases, that the two belligerents should take precautions to ensure that hospitals should suffer as little as possible from the attacks and from hostilities in general.
    After this negative statement of principle, there follows the now conventional positive form of wording, prescribing that the Parties shall at all times ' respect ' and ' protect ' civilian hospitals. While the word "respect" expresses positively the idea behind the prohibition of attack, the word "protect" strengthens that idea by making it obligatory to ensure that respect and impose it on others. Like the prohibition of attack, the obligation to respect and protect is absolute and universal. However, civilian hospitals in occupied territory are subject to requisition within the limits set forth in Article 57 of the Convention.

    PARAGRAPH 2. -- OFFICIAL RECOGNITION

    Only recognized establishments may avail themselves of the emblem with a view to obtaining protection. This recognition is expressed in an official document testifying that they are civilian hospitals; that goes without saying. The text adds, however, that this document must show that the buildings are not used for any purpose which would deprive these hospitals of protection under the terms of Article 18. This second condition, added by the Diplomatic Conference, is open to criticism. Indeed such an assurance would only have very dubious value, for it is impossible for a State at the beginning [p.149] of a war or even -- and this would more often be the case -- during peace time, to give a cogent undertaking that in the future a hospital would in fact refrain from acts harmful to the enemy. All that may reasonably be done is to declare that the hospital at the time of issue of the document is intended strictly for humanitarian tasks and contains nothing which might serve military ends.
    Recognition should take the form in the first place of a legal instrument drawn up by the State concerned. The authority responsible for issuing certificates of recognition is not specified. States are therefore free to designate it themselves and may delegate their functions to the National Red Cross Society. There is nothing in the Convention against such a delegation of functions. The possibility was even expressly mentioned in the course of the discussions at the Diplomatic Conference (9).
    The belligerents have the duty (and not merely the right) to issue the certificate of recognition. This provision is mandatory: whenever a hospital fulfils the conditions laid down in the first paragraph, it has a right to official recognition. Recognition means that the State recognizing assumes responsibilities towards the hospital, which are not affected by the fact that the State may have delegated its powers of recognition to an organization which is not part of the State administration. The State continues to be responsible towards any contracting Powers for the consequences of any abuse committed by the organization in which this administrative function has been vested.

    PARAGRAPH 3. -- MARKING

    1. ' Authorization by the State '

    Civilian hospitals may be marked by means of the red cross emblem defined in Article 38 of the First Geneva Convention of 1949, namely the heraldic emblem of the red cross on a white ground (red crescent, red lion and sun) (10).
    The general rule that "civilian hospitals ' shall be ' marked..." is nevertheless subject to State authorization and this is optional. It follows therefrom that while marking of civilian hospitals is obligatory in principle, its application depends on authorization by the State.
    [p.150] The marking of civilian hospitals is then a different matter from their recognition. It does not necessarily follow upon recognition. Whereas all civilian hospitals marked with the protective emblem must necessarily have been officially recognized, all recognized civilian hospitals may not necessarily be marked. Of course, in practice official recognition is most often accompanied by authority to display the distinctive sign. It is also possible, however, for a belligerent to authorize certain hospital establishments, because of their situation or importance, to be marked with the protective emblem whilst refusing this right to other hospitals, also recognized, when, for one reason or another, such marking is considered inopportune. It may so happen, for instance, that the State wishes to confine this marking to the large civilian hospitals and in this respect lays down the standards of application.
    This system, which leaves discretionary power to the State, reveals clearly the anxiety of the Diplomatic Conference which, alive to the risks attendant upon any extension of the use of the emblem preferred to proceed with caution by making the authorization of the emblem optional. The Diplomatic Conference made the marking dependent on State authorization, thus enabling the Powers to wield this authority according to circumstances and experience gained: it will be widely applied if results are good in practice, whereas its use will be limited if experience shows that extended use of the red cross results in abuses harmful to its prestige and, consequently, to the cause of those whom it is designed to protect. Thus States conscious of their responsibility will be able to regulate what is done in this matter.
    This provision does not, any more than the previous paragraph, specify the body which is to give permission for marking; it merely says that the authority to do so is vested in the State. The provision thus possesses all the necessary flexibility and it will be for internal legislation to determine the responsible body.
    The system of joint authorization by the State and the National Red Cross Society adopted at Stockholm was not accepted by the Conference, nor was the condition of military consent, as provide for in the Government Experts' draft and which certain delegations to the Diplomatic Conference would have liked to see reinserted.
    However, nothing in the present wording prevents States delegating their powers in this matter to the military authorities, to the National Red Cross or to any other qualified body. What is important is that the responsibility of the State is clearly established by the Convention.
    [p.151] The marking of civilian hospitals is intended essentially for time of war; it is then that it takes on its real importance. However, the rule may be made more flexible in application, in order to ensure that practical considerations are taken into account so that the marking will be completely effective. There is in fact no reason why a State, which is obliged to consider every possibility, should not be able to mark its civilian hospitals in peace time.
    As for the choice of the best time to carry out the marking, it is advisable to leave the Governments concerned a wide discretionary power. In particular, a State would appear to be justified in using the sign for its hospitals in peace time when circumstances are such that war may be considered imminent and when other preparatory measures are being taken against the possibility of a conflict (preparations for mobilisation, partial mobilisation, general mobilisation, etc.). However, it would seem preferable in this case to confine action to putting up fixed signs requiring a certain amount of work and time (painted signs for instance on roofs).
    The unnecessary and inordinate use of the red cross in peace time on buildings not belonging to the Red Cross Society may create confusion in people's minds (11). It would not affect only the Society in question, whose premises might be confused with other buildings similarly marked, but would impair the prestige and symbolic force of the emblem.

    2. ' Supervision '

    It seems essential that the body entrusted under the national laws with the issue of certificates and the granting of authorization to mark the hospitals by means of the red cross emblem, should also be given the necessary powers of supervision. It is important that all establishments recognized by the State should be subject to continuous and strict supervision. It is even absolutely necessary in the case of hospitals granted the right to display the emblem. This strict supervision is the inevitable consequence of extending the use of the red cross emblem, which would otherwise run the risk of being misused and therefore of losing its high significance and its authority. For that reason, the right of a civilian hospital to fly the flag should always be accompanied by the obligation to submit to supervision.

    [p.152] PARAGRAPH 4. -- VISIBILITY OF THE MARKING

    The protective emblem is of practical value only in so far as it is recognizable. For that reason, the Convention recommends that the Parties to the conflict should make the distinctive emblem indicating civilian hospitals clearly visible to the enemy land, air and naval forces.
    The emblems should be large enough to be recognized from a distance, particularly by high-flying planes, and from all directions.
    Experiments carried out by one Government at the request of the International Committee of the Red Cross have shown, for example, that a red cross on a white ground five metres square, placed on a roof, is scarcely recognizable from altitude of more than 8000 feet (12).
    For the emblem to be visible from a distance and from all sides, use may be made of rigid panels placed in different planes (horizontal, vertical, oblique), or large red crosses on a white ground painted on the roof and walls or marked out on the ground with suitable material.
    It is naturally desirable that civilian hospitals should be marked at night, for instance by lines of lights to outline the red crosses. However, the military command is most unlikely to give its consent, total blackout being the most effective practical means of safeguarding an area from air attack. If civilian hospitals whose position had been spotted during the day were lighted up at night, enemy aircraft would be provided with useful landmarks. Lighting of civilian hospitals might, however, conceivably be used only where an attack is being made on a military objective. As will be noted in the following paragraph, the safety of civilian hospitals is best ensured by siting them well away from military objectives.
    The danger that marking may facilitate the enemy's operations exists not only at night but also during the day, although to a lesser degree. It is for this reason that the obligation to ensure perfect visibility of the protective emblem is subject to military requirements, as by the terms of the similar provision in Article 42, paragraph 4 , of the First Geneva Convention. This reservation is justified, for the marking of a hospital may, for one reason or another, assist the enemy forces.

    PARAGRAPH 5. -- DISTANCE FROM MILITARY OBJECTIVES

    This provision recommends that the responsible authorities should ensure that hospitals are, as far as possible, situated at a distance [p.153] from military objectives. The provision was obviously intended to cover the possibility of bombing from the air and to ensure that civilian hospitals should be protected against stray bombs. In the First Geneva Convention medical units of the armed forces were protected by the introduction of a similar clause (Article 19, paragraph 2 ). In neither clause is the term "military objective" defined. Attempts to define the term officially, independently of the Geneva Conventions, have failed, although several Governments declared before the Second World War that they subscribed to the definition given in Article 24 of the Hague Rules of 1923.
    It would nevertheless appear necessary, and of obvious importance from the humanitarian point of view, to arrive by international agreement at some sort of definition of the term, since a whole series of measures for the protection of civilians are based on its use.
    Accordingly, the International Committee of the Red Cross has made a proposal, a mere suggestion to that effect, with a view to the re-affirmation of the rules of international law protecting civilian population as a whole.
    The expression "military objectives" must undoubtedly be understood in the strictest sense as a clearly defined point of actual or potential military importance. Needless to say the civilian population can never be regarded as a military objective. That truth is the very basis of the whole law of war.
    When studying paragraph 1 we saw the scope of the clause prohibiting attacks on hospitals. The last paragraph shows clearly that wide as that scope is, it is not intended to confer immunity on military objectives situated close to a hospital or to restrict the right to attack them as such. It is for that reason that the legal protection accorded to military hospitals must be accompanied by practical measures to ensure that they are situated as far as possible from military objectives and to protect them from the accidental consequences of attacks on such objectives. If that is not done the protection is very likely to be illusory, even if the hospitals are clearly marked.
    It will no longer be possible to change the location of many civilian hospitals already in existence. That is why the provision is recommendatory and not mandatory in character. In such cases the precautionary measure will consist in seeing that no military objectives are sited in the vicinity, and, if they are already there, that they are removed if possible. Needless to say close co-operation between the responsible civilian and military authorities is highly desirable.


    Notes: (1) [(1) p.142] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 708;

    (2) [(2) p.142] See ' Report on the Work of the Preliminary
    Conference of National Red Cross Societies for the Study
    of the Conventions and of various Problems relative to the
    Red Cross, ' Geneva, 1947, p. 64;

    (3) [(1) p.143] See ' Report on the Work of the Conference of
    Government Experts for the Study of the Conventions for
    the Protection of War Victims, ' Geneva, 1947, pp. 69
    sqq.;

    (4) [(2) p.143] See ' XVIIth International Red Cross
    Conference: Revised and New Draft Conventions for the
    Protection of War Victims, ' Geneva, 1948, p. 120;

    (5) [(1) p.144] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 701-703;

    (6) [(1) p.147] See above, p. 141;

    (7) [(2) p.147] See ' Commentary I, ' page 196. See also
    ' Report on the Work of the Conference of Government
    experts ', Geneva, 1947, pp. 23-24;

    (8) [(1) p.148] See in this connection: ' Les Conventions de
    Genève et la Guerre aérienne, ' par R.-J. WILHELM, Revue
    internationale de la Croix-Rouge, janvier 1952, p. 30;

    (9) [(1) p.149] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-B, p. 469;

    (10) [(2) p.149] See ' Commentary on the Geneva Convention for
    the Amelioration of the Condition of the Wounded and Sick
    in Armed Forces in the Field, ' Geneva, 1952, pp. 330 ff.;

    (11) [(1) p.151] To avoid any, confusion, it will be in the
    interest of the National Society to display its name
    distinctly together with the emblem on its premises and
    property;

    (12) [(1) p.152] See ' Revue Internationale de la
    Croix-Rouge, ' May 1936, p. 409 (inset);