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Commentary - Terminology
    [p.113] Article 8 -- Terminology


    [p.115] General remarks

    295 The idea of defining the most widely used terms of this Part arose during the second session of the Conference of Government Experts in 1971. (1) Following numerous discussions regarding the terms to be defined, and with regard to where these definitions should come in the Protocol, (2) the ICRC introduced an article of definitions at the beginning of Part II, and another at the beginning of the second Section of Part II devoted to medical transportation.

    296 These definitions were examined by Committee II of the CDDH, which introduced some modifications and, in particular, decided to add two:
    1) On the initiative of the Holy See, which presented an amendment, (3) remarking that "religious personnel and medical personnel were mentioned together in a number of articles in the Geneva Conventions of 1949" and that "it was desirable that the former should be defined in order to avoid any misunderstanding", (4) the definition of the expression "religious personnel" [p.116] was inserted in Article 8 . This initiative was supported by a number of other delegations which presented a new amendment together with the Holy See. (5)
      2) The Drafting Committee of Committee II had noted that the notion "permanent" or "temporary" was applicable in a number of the expressions defined, and on the basis of a draft amendment, (6) it proposed the insertion in Article 8 of a definition of these terms (7) to avoid repetitions. This proposal was accepted.

      297 Moreover, the Drafting Committee of the CDDH decided to group together all the definitions of Part II in Article 8 , and therefore to transfer to this article the definitions of terms used in Section II devoted to medical transportation, which had formerly been placed at the beginning of this Section. (8)

      Opening sentence

      298 The definitions were given "for the purposes of the present Part" in the draft presented to the CDDH.

      299 At the first session an amendment was presented with a view to substituting the words "the terms used in the present Part have the following meaning" for "for the purposes of the present Part". (9) The purpose of this amendment was to prevent

      "an unduly restrictive interpretation being placed on the provisions of draft Protocol I, which did not exist as an independent instrument, but merely represented a supplement to the Geneva Conventions of 1949 and to international law on armed conflicts as a whole" (10)

      Some doubts were expressed regarding the competence of the Conference to modify the Geneva Conventions, and this amendment was referred to the Drafting Committee of Committee II, which provisionally accepted the expression "for the purposes of the present Protocol". This choice was confirmed by the Drafting Committee of the CDDH, which, although it decided to keep the definitions in different places in the Protocol, and to group the definitions relating in particular to Part II, at the beginning of Part II, did not wish to restrict their scope to this Part, particularly because some of the terms defined are also found outside Part II.

      Sub-paragraph (a)

      300 The 1973 draft had defined the expression "the wounded and sick", bringing together in a single category persons entitled to strictly identical protection. The [p.117] existence of a single category of persons is not put into question now. The reason it was decided to separate the terms was to enable them to be used more flexibly with various conjunctions (such as, for example, "to the wounded and to the sick"). The fact that persons who are neither wounded nor sick are included in this category shows that there is indeed only a single category: for example, new-born babies are included in the category "wounded" and "sick", even when they are neither wounded nor sick.

      301 Thus, when the Protocol mentions the wounded and sick, it is not concerned with the wounded and sick according to the ordinary meaning of these words, but with the persons defined here. The definition of the "wounded" and the "sick" is at the same time wider and narrower than the more common definition of these terms. It is wider in that it encompasses, as we have pointed out, persons who are not wounded or sick in the usual sense of these words, but narrower in that it does not protect such persons as a whole (i.e., also the wounded and sick according to the usual meaning) unless they abstain from all hostile acts.

      302 These two elements are examined below.

      1. ' Persons benefitting from protection '

      a) ' The wounded in the usual sense of the word '
      b) ' The sick in the usual sense of the word, whether the sickness is physical or psychological '

      303 The criterion for such persons is that they ' are in need of medical care. ' However, this first element is very difficult to assess in the heat of action, and it is above all with regard to the requirement made of such persons that they refrain from any act of hostility that a combatant must determine his attitude, if he is faced with a person who does not seem to have any obvious characteristics of injury or sickness. At this stage it is not significant for the combatant whether the person concerned fall under the category of the "wounded" and "sick", or whether he is soldier who "clearly expresses an intention to surrender" (Article 41 -- ' Safeguard of an enemy hors de combat): ' he must respect both because they are ' hors de combat. ' It is after the event, if such persons are captured, that a decision is made as to whether or not they are in need of medical care, and thus whether or not they fall under the category of the "wounded" and "sick".

      304 Moreover, it should be noted that this criterion -- being in need of medical care -- is the only valid one for determining whether a person is "wounded" or "sick" in the sense of the Protocol (insofar as the second condition -- infra, 2 -- is fulfilled). The persons concerned may be either civilians or soldiers and the Protocol does not retain the distinction made between these two categories by the Conventions as regards the wounded and sick. On this basis a wounded soldier and a wounded civilian are entitled to identical protection, even though, at the same time, there would be a significant difference in the status which applies to the one and the other if they fell into enemy hands (particularly that of prisoner of war for a combatant).

      [p.118]
      c) ' Persons who, although neither wounded nor sick in the usual sense of these words, may be in need of immediate medical care '

      305 These are persons who are not necessarily in urgent need of medical care at the time, as the persons described above in a) and b) are, but whose condition may at any moment necessitate immediate medical care. A list of such persons is given, though only by way of example. It includes:

      -- maternity cases;
      -- new-born babies;
      -- invalids; (11)
      -- expectant mothers.

      2. ' The necessity of refraining from any act of hostility '

      306 Although the status of "wounded" and "sick" can therefore be given to persons who are not wounded or sick in the usual sense of these words, it may on the other hand be refused to those who are: to benefit from this status it is necessary ' to refrain from any act of hostility. ' A person who has broken his leg is not wounded in the sense of the Protocol if he continues to shoot. This is a logical conclusion: it would be unreasonable to ask a soldier to spare someone who is threatening him, or, otherwise, who is attempting to escape. (12)

      307 If they wish to benefit from the status of "wounded" and "sick", those entitled to this status must therefore meet this requirement, though obviously only to the extent that it applies to them (naturally this problem does not arise for an unconscious wounded person or a new-born baby).

      Sub-paragraph (b)

      308 Two essential elements mentioned with regard to the definition of the "wounded" and "sick" are repeated with regard to the definition of the "shipwrecked": those who are not shipwrecked in the strict sense of the word may be covered by the definition, but anyone shipwrecked, even if he is shipwrecked in the usual sense of the word, is only considered as such if he refrains from any act of hostility.

      [p.119] 309 A particularly difficult question with regard to the protection given shipwrecked persons is also dealt with, namely, the duration of the "shipwrecked" status. We will consider these three elements in succession, devoting most attention to the third.

      1. ' Persons benefitting from protection '

      310 The condition laid down here is that the person concerned is in peril "at sea or in other waters". The Second Convention only mentions those shipwrecked "at sea". The 1973 draft also followed this restricted definition. One delegation regretted that persons in peril in inland waters (lakes, rivers etc.) seemed to be excluded and Committee II finally decided to broaden the definition by using the expression "at sea or in other waters". On the other hand, it did not adopt a proposal made by the ICRC, and taken up by several delegations at the beginning of the CDDH, to put those in peril ' on land ' (for example, in the desert) on a par with the shipwrecked.

      311 The definition was also widened in comparison with the original draft, in that it is not concerned only with the shipwrecked in a strict sense, i.e., those in distress as a result of a shipwreck or damage to a vessel, but with any person in peril, including in particular persons who have fallen into the sea, even when the vessel transporting them has not been damaged. Moreover, those who have fallen into the sea from or with an aircraft are also explicitly included.

      312 As in the case of the "wounded" and "sick", no distinction is made between civilians and soldiers as long as they are considered to be shipwrecked. This constitutes an important innovation in relation to the Conventions.

      313 The fact that the "shipwrecked" covered here must be in peril ' as a result of misfortune ' does not mean that the field of those concerned should be excessively restrained. Persons who are in distress as a result of their inexperience or their recklessness, are also protected. The aim was to exclude those who voluntarily put themselves in peril in order to accomplish a mission, such as military commandos or individual frogmen of the military commandos.

      314 However, it should be noted that if such men are in difficulties or in distress, and they give up their mission and all other acts of hostility, they will also enjoy the status of the "shipwrecked".

      2. ' The necessity of refraining from any act of hostility '

      315 In the exceptional case where someone who would normally be entitled to the protection given to the "shipwrecked" by the Protocol continues to fight, and in particular to fire shots, he would obviously lose his right to protection and would not even be defined as "shipwrecked", in the sense of the Protocol. The observations made in this respect with regard to the "wounded" and "sick" also apply here. (13)

      [p.120]
      3. ' Duration of the status of "shipwrecked" '

      316 First, it should be clarified that the status of "shipwrecked", which is only given, as we saw above, to persons who refrain from any act of hostility, is automatically lost by those who, having enjoyed such status, commit an act of hostility: committing such an act of hostility is incompatible with the "shipwrecked" status throughout its duration.

      317 It remains to be determined how long persons who are entitled to "shipwrecked" status and who continue to refrain from any act of hostility can enjoy such status. Without specifying this period exactly, the Second Convention implies that a shipwrecked person continues to be considered as such throughout the rescue operation, i.e., until he has been safely returned to land. This is shown, for example, in Article 14 of the Convention, which refers to the "shipwrecked on board military hospital ships".

      318 The Protocol specifies that the shipwrecked "shall be considered shipwrecked during their rescue", which means that they retain their status until they are returned to land. However, they can lose this status earlier if they acquire another status under the Conventions or the Protocol.

      319 For the sake of clarity, it is necessary to list the possibilities which may arise. A distinction is made between the case in which the shipwrecked person is a soldier and the case in which he is a civilian.

      3.1.' The shipwrecked person is a soldier '

      a) ' He is rescued by his own armed forces '

      320 In this case there are two possibilities:
      -- He was not wounded or traumatized by his experience (which, it must be noted, is exceptional), and can quickly assume an active role again. From this moment he again becomes a combatant and loses his "shipwrecked" status.
      -- He is wounded or traumatized. As a result he acquires the status of "wounded" or "sick", which gives him the same rights as the "shipwrecked" status. This means that if the vessel is attacked, he will be spared as far as possible (i.e., in practical terms, that he will be spared in the event -- though admittedly exceptional these days -- that the vessel is boarded and taken by force). (14) He will enjoy the status "wounded" and "sick" if the vessel which has rescued him is seized (and he becomes, moreover, a prisoner of war).

      b) ' He is rescued by enemy armed forces '

      321 Such a shipwrecked person becomes a prisoner of war. He loses his "shipwrecked" status as soon as he is on board, but in addition to his prisoner of war status, becomes "wounded" or "sick" in the case that his condition means that he falls in this category and he remains so as long as his condition justifies this.

      322 Anyone shipwrecked who has participated in hostilities, but is not entitled to prisoner-of-war status, (15) will be considered shipwrecked throughout the duration [p.121] of the rescue operation, i.e., in principle until he is taken back to land, unless his condition means he falls under the category of the wounded and sick (which actually assures him identical protection). This also applies to persons whose status has not been clearly determined. (16)

      c) ' He is rescued by a neutral warship (17) '

      323 In this case he will be considered throughout the rescue operation to be either wounded or sick if his condition warrants this, or shipwrecked, if not. (18)

      d) ' He is rescued by a hospital ship, a coastal rescue craft or other medical ship or craft belonging to his own Party to the conflict '

      324 He will be considered as either wounded or sick, or as shipwrecked, depending on his condition, until he lands. This does not give him any rights while he is on the vessel which rescued him, (19) but it is important for him and for the vessel if the latter is boarded and searched: if his transfer to an enemy warship is ordered, he is to be treated as though he had been directly picked up by such a vessel (cf. supra, b)). Moreover, the vessel transporting him shall not be accused of transporting a combatant.

      325 In the case that a wounded, sick or shipwrecked person is not transferred to another vessel, the vessel which rescued him will most likely take him to his own Party to the conflict, unless it has to land him in a neutral port. In this case he will retain the status on "wounded" and "sick", if his condition warrants this, (20) and in any case, Article 17 of the Second Convention will apply to him.

      e) ' He is rescued by a hospital ship, coastal rescue craft or other medical vessel or craft belonging to the adverse Party '

      326 He will enjoy either the status of "wounded" and "sick", if his condition justifies this, or "shipwrecked" status, until he has landed. If he is transferred onto a warship of his own Party to the conflict, after it has boarded and searched the vessel which rescued him, he will be considered to have been rescued directly by the former (cf. supra, a)). If he remains on the first vessel until he lands, he will be treated as a prisoner of war (and will, moreover, continue to enjoy the status of "wounded" and "sick", if his condition justifies this), in case he lands in a port of the adverse Party; if he lands in a neutral port, Article 17 of the Second Convention will apply to him, and the status of "wounded" an "sick" will still be granted him, provided that his condition justifies this, in accordance with Article 19 of the Protocol ' (Neutral and other States not Parties to the conflict). '

      [p.122]
      f) ' He is rescued by a non-medical civilian vessel '

      327 The comments under letters d) and e) apply to a shipwrecked person rescued respectively by a civilian vessel belonging to his own Party, or to the adverse Party, even though, in this case, the vessel itself can also be seized.

      328 If it is a civilian vessel belonging to a State which is not a Party to the conflict, the solution mentioned under letter c) applies to him, but the vessel may be boarded and searched and in this case, either the solution mentioned under letter a) (if the searching vessel belongs to the shipwrecked person's Party to the conflict), or the solution mentioned under letter b) (if it belongs to the adverse Party), will apply.

      3.2.' The shipwrecked person is a civilian '

      a) ' He is rescued by a military vessel belonging to his own Party to the conflict '

      329 He enjoys the status of "wounded" and "sick", or "shipwrecked", depending on his condition, until he lands. Such status does not give him any rights in relation to his own Party to the conflict. (21) On the other hand, it is important if the vessel is seized: a person not wearing uniform on a warship could be suspected of espionage. In the case of such a seizure, solution b) described below applies.

      b) ' He is rescued by a military vessel belonging to the adverse Party '

      330 He enjoys the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed in a neutral port. In any case he will then no longer be considered to be shipwrecked, as the rescue operation has been completed, but will still be covered by Article 19 of the Protocol ' (Neutral and other States not Parties to the conflict) ' if he still falls under the category "wounded" and "sick".

      331 If he is taken to the territory of the adverse Party, which is probably usually the case, he will lose his "shipwrecked" status as soon as he lands, as the rescue operation has been completed by that time, but will enjoy the status of "protected person in the sense of Article 4 of the fourth Convention. This will apply to him, particularly Section II (Aliens within the territory of a Party to the conflict) of Part III. In addition, he will enjoy the status of "wounded" and "sick", if his condition justifies this.

      c) ' He is rescued by a neutral warship '

      332 He will enjoy the status of "wounded" and "sick".or "shipwrecked", depending on his condition, until he has landed. After he has landed in the neutral country, he will continue to enjoy the status of "wounded" and "sick", if he meets the necessary conditions. (22) If not, he will lose his "shipwrecked" status and no longer fall under the scope of application of the Conventions and the Protocol.

      [p.123]
      d) ' He is rescued by a hospital ship, coastal rescue craft or other medical craft or vessel belonging to his own Party to the conflict '

      333 He will have the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed. This does not give him any specific rights, as he is in the hands of personnel of his own Party to the conflict, (23) but it is important to justify his presence in case the vessel is submitted to an inspection. In principle he should not be transferred to a vessel belonging to the adverse Party. (24)

      e) ' He is rescued by a hospital ship, coastal rescue craft or other medical craft or vessel belonging to the adverse Party '

      334 He has the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed.

      335 If he lands in a port of the adverse Party, he becomes a protected person in the sense of Article 4 of the Fourth Convention, and this Convention then applies to him. In addition, he retains the status of "wounded" and "sick", if his condition justifies this.

      336 If he lands in a neutral port, the Conventions and the Protocol no longer apply to him, unless his condition justifies the status of "wounded" and "sick", which should be respected by the State where he has landed, in accordance with Article 19 of the Protocol ' (Neutral and other States not Parties to the conflict). '

      337 If the vessel is boarded and searched by a military vessel of his own Party to the conflict, and he is transferred onto the latter, the solution mentioned under letter a) applies.

      f) ' He is rescued by a non-medical civilian vessel belonging to a neutral State '

      338 The solution mentioned under letter c) applies.

      339 Even if a military vessel were to board and search the neutral civilian vessel, it should not require the transfer of the shipwrecked person.

      g) ' He is rescued by a civilian vessel belonging to his own Party '

      340 In principle there is no problem if he arrives safe and sound. However, if his own Party has to retain him for reasons related to the armed conflict (treason, desertion etc.), he should at least be granted the benefits of Article 75 ' (Fundamental guarantees) ' (25), as well a the status of "wounded" or "sick", if his condition justifies this.

      341 In the case that the vessel is seized by a military vessel of the adverse Party, the solution mentioned under letter b) applies.

      [p.124]
      h) ' He is rescued by a civilian vessel belonging to the adverse Party '

      342 He will have the status of "wounded" and "sick" or "shipwrecked", depending on his condition, until he has landed.

      343 If he lands in a port of the adverse Party, he will have the status of "protected person" in the sense of Article 4 of the Fourth Convention. This Convention will apply to him, particularly Section II (Aliens within the territory of a Party to the conflict) of Part III. In addition, he will enjoy the status of "wounded" and "sick", if his condition justifies this.

      344 If he lands in a neutral port, he will continue to enjoy the status of "wounded" and "sick", if his condition justifies this, in accordance with Article 19 of the Protocol ' (Neutral and other States not parties to the conflict). ' If not, he will no longer be within the scope of the Conventions and the Protocol.

      345 If the vessel is seized by a military vessel of the Party to the conflict to which he belongs, the solution mentioned under letter a) applies.

      Sub-paragraph (c)

      346 The ICRC draft mentioned the categories of persons covered by the expression "medical personnel", without first defining the expression. On the basis of an amendment presented by seven countries, (26) Committee II decided to define the expression before listing the categories of persons that it covers.

      1. ' Definition of medical personnel '

      347 Medical personnel covers such persons as are assigned to particular tasks necessary for the well-being of the wounded and sick. In fact the protection of medical personnel is a subsidiary protection granted to ensure the protection of the persons primarily concerned, namely, the wounded and sick.

      348 A number of modifications of greater or lesser importance were made to the protection of medical personnel as laid down in the Conventions.

      349 First of all, civilian medical personnel are also covered, provided that they are assigned to medical tasks by a Party to the conflict, in order to ensure in a better way the protection of all the wounded and sick, whether civilian or military.

      350 Furthermore, it is specified that only such persons as are ' exclusively ' assigned to medical tasks are covered, which is the case in the Conventions only for the permanent personnel, even if it is implied for the temporary personnel. The ' duration ' of such an exclusive assignment is a vexed question. We shall discuss it with respect to sub-paragraph (k), where the concept of permanent and temporary medical personnel was also modified. (27)

      351 Finally, the distinction which was made in the Conventions between the identification of different categories of medical personnel has disappeared. All medical personnel of any sort must be identifiable as easily as possible (28)

      [p.125] 352 A number of points which require elucidation are dealt with below.

      1.1.' Medical personnel must be assigned to one of the following tasks.: '

      a) The medical purposes enumerated in sub-paragraph (e). On this subject cf. infra, sub-paragraph (e).
        b) The administration of medical units. On the meaning of the expression "medical units", cf. infra, sub-paragraph (e). Administration must be considered here in a wide sense. It includes all persons who ensure the functioning of the units without directly caring for the wounded and sick: thus they include the administrators as such, as well as many other persons, such as, for example, hospital cooks and cleaners. (29)
        c) The operation or administration of medical transports. On the meaning of the expression "medical transports", cf. infra, sub-paragraph (g). Here again we are concerned with persons who, without caring directly for the wounded and sick, are nevertheless essential components in the system of protection. They include, in particular, persons who drive or pilot medical transports, as well as persons assisting in this task (co-pilot or navigator in medical aircraft, crew of a medical ship, etc.), persons who are responsible for the maintenance of medical transports (mechanics, personnel required for the maintenance of medical ships etc.), or finally, persons who plan the employment of medical transports. All such persons are essential for the proper functioning of the system.

      1.2.' Medical personnel must be assigned exclusively to these tasks '

      353 This means that protected medical personnel cannot spend any time on different activities as long as they are assigned to medical tasks. This is a necessary precaution to prevent abuses of the emblem for commercial purposes, for example, or above all for military purposes.

      1.3.' They must be assigned to such tasks by a Party to the conflict '

      354 The problem does not arise with military medical personnel, as military personnel are assigned ex officio by the competent authority. On the other hand, this clause is important for civilian medical personnel. Not every civilian doctor is protected by the Conventions. Indeed, there is no a priori reason why a plastic surgeon, for example, should be protected. On the other hand, if the Party to the conflict in the territory in which he works assigns him to tasks mentioned above, i.e., if he becomes useful for the protection of the wounded and sick, he deserves to be protected. This is an example of the derivative character of the protection of medical personnel, which is relevant only when such personnel is engaged in [p.126] the protection of the wounded and sick. Moreover, it is essential that the Party to the conflict, which is responsible for preventing the misuse of the protective emblem, retains the power to decide who is entitled to the protection reserved for medical personnel.

      1.4.' The assignment may be either permanent or temporary '

      355 For the meaning of these terms, cf. infra, sub-paragraph (k).

      2. ' Categories covered by the expression "medical personnel" ' (sub-paragraphs (c) (i), (ii), (iii))

      356 Three categories are mentioned by the Protocol.

      2.1.' Sub-paragraph (c)(i) '

      357 The first category comprises the medical personnel of a Party to the conflict, viz.:

      -- military medical personnel already protected by the first and Second Conventions (although the States Parties to the Protocol should review the organization of their medical service, and in particular, the problem of temporary medical personnel, in relation to the Protocol);
      -- civilian medical personnel, viz. civilian personnel exclusively assigned by a Party to the conflict to one of the tasks listed above;
      -- medical personnel assigned to civil defence organizations. In principle this is civilian personnel, although it could include military personnel. (30) For such personnel the status of medical personnel continues, despite their assignment to civil defence organizations. This is clearly shown by the fact that they must continue to be identifiable by means of the distinctive emblem of the red cross or the red crescent. (31)

      2.2.' Sub-paragraph (c) (ii) '

      358 This is personnel already covered by Article 26 of the first Convention. The societies concerned must fulfil three conditions:

      -- they must be ' national ' societies, i.e., societies established in the territory of the Party to the conflict concerned;
      -- these societies must be ' recognized ' by the Party to the conflict concerned, which, in the most usual case where this Party is a State, means that the society must at least have been regularly constituted in accordance with national legislation. Therefore this excludes clandestine societies;

      [p.127]
      -- these societies must be ' authorized ' by the Party to the conflict concerned, i.e., the latter must agree that personnel of these societies are employed as medical personnel.

      2.3.' Sub-paragraph (c) (iii) '

      359 This third category covers medical personnel who have been made available to a Party to the conflict without belonging to this Party, together with permanent medical units and medical transports (with the exception of hospital ships which are subject to a separate régime, regulated by Article 24 of the Second Convention). It should be noted that only certain States, societies or organizations may make such personnel available, and then only under certainconditions. (32)

      Sub-paragraph (d)

      360 The original draft of the Protocol did not contain a definition of religious personnel, but it is appropriate to recall that chaplains attached to armed forces were covered by the proposed definition of medical personnel. This actually comprised military medical personnel as defined in the first and Second Conventions, and these chaplains fall under the definition of such personnel.

      361 However, this seemed inadequate to some delegations. Largely as a result of two amendments, the present paragraph was added to define religious personnel explicitly (cf. supra, p. 115).

      362 The persons concerned here must fulfil two conditions:

      -- They are exclusively devoted to their ministry. Thus they could not fulfil functions other than their religious functions, though carrying out medical tasks could obviously not be considered an infringement of this rule. On the other hand, the religion to which they belong is immaterial. Thus it has been said that the term "chaplain", which is actually used only by way of example, does not refer exclusively to Christian religious personnel. (33). They do not have to be themselves incorporated into the army: it does not matter whether they are military or civilian.
      -- They have a specific attachment which presumes the agreement of the Party to the conflict concerned, to one of the four categories listed.

      ' Sub-paragraph (d) (i) '

      363 This is the personnel covered by Article 24 of the first Convention.

      [p.128]
      Sub-paragraph (d) (ii) '

      364 On the meaning of the expressions "medical units" and "medical transports", cf. infra, sub-paragraphs (e) and (g) respectively.

      ' Sub-paragraph (d) (iii) '

      365 On this subject, cf. infra, commentary on Article 9, paragraph 2, pp. 140-143.

      ' Sub-paragraph (d) (iv) '

      366 On this subject, cf. infra, commentary on Article 61, sub-paragraph (b), pp. 732-735.

      367 Like medical personnel, religious personnel may be assigned either permanently or temporarily. One delegate expressed the opinion that the temporary assignment of religious personnel has no effect on the type of status of religious personnel which, by its very nature, is permanent. (34) However, the Protocol does not prohibit the temporary assignment of laymen for religious purposes, and the possibility that they may be protected as religious personnel during the fulfilment of these tasks remains open. On the meaning of the terms "permanent" and "temporary", cf., apart from this, infra, sub-paragraph (k).

      ' Sub-paragraph (e) '

      368 In order to simplify and clarify matters, a single expression was chosen to cover the entire range of medical establishments and other medical units.

      369 As in the case of medical personnel, medical units may be either military or civilian and when the expression is used without the qualifying adjective "military" or "civilian", it covers both categories.

      370 Medical units are protected whether they are fixed or mobile, i.e., whether they consist of buildings built to remain where they are, or whether they are structures or establishments which can be moved according to needs. Moreover, they can be permanent or temporary (on the subject of these expressions, cf. infra, sub-paragraph (k)).

      371 The only decisive condition which is imposed upon these establishments or other units to qualify as medical units is this: they must be "organized for medical purposes" and exclusively assigned to these purposes.

      372 Irrespective of the reason for which the unit was established, it is the use at the relevant moment which counts. A hospital which is used as a barracks is not a medical unit, while a barracks equipped as a makeshift hospital becomes one.

      [p.129] 373 The medical purposes envisaged here are broad. The search for, evacuation and transportation of the wounded, sick and shipwrecked, particularly concern mobile units. Some confusion may arise between these units and medical transports (the transport element in principle prevails in the latter, the possibility of administering care in the former). In any case such confusion is not particularly important, as medical transports are entitled to a similar protection to that accorded mobile medical units. Moreover, the protection of medical transports also implies that of fixed units such as the garages where these vehicles are parked, and the workshops where they are repaired.

      374 The diagnosis and treatment of injuries and sickness are usually carried out in fixed establishments, but may also be done in mobile establishments such as field hospitals.

      375 The degree of care to be given is not a determining element: a simple first-aid post improvized near the battlefield is considered to be a medical unit.

      376 Similarly establishments which do not directly care for victims, namely, the wounded, sick and shipwrecked, but attempt to reduce the number of these by preventing diseases, are also considered to be medical units. This applies in particular to vaccination centres or other preventive medicine centres and institutes, and blood transfusion centres.

      377 In addition it is clear that a surgeon without instruments and medicine cannot do a great deal: for this reason, places where medicines, surgical instruments and in general any medical supplies are stored also qualify as medical units, whether these are simple depots attached to a hospital, for example, or centres where these can obtain supplies.

      378 Finally, it should be noted that Committee II of the CDDH, which dealt with this article, wished to mention in its report drawn up at the end of the third session, that dental treatment is included in the medical purposes mentioned here. (35) Thus establishments where dental care is administered have also to be considered as medical units. It also mentioned that hospitals and other medical units include "rehabilitation centres providing medical treatment". (36)

      379 Thus it is clear that the assignment for medical purposes must be interpreted very flexibly. However, as mentioned above, such assignment has to be made to the exclusion of any other for a unit to qualify as a medical unit. This does not follow from the paragraph under consideration here, but from the definition given below of the terms "permanent" and "temporary". (37) As for medical personnel, this condition is perfectly logical for obvious reasons: it would not be possible to ask a Party to the conflict to spare a hospital, even if it contains a large number of wounded, if it is also sheltering an arsenal in the cellar or an army headquarters in one of the wings.

      380 The list of establishments covered by the expression "medical units" mentioned in this paragraph, is by way of example. It does not require any further commentary.

      [p.130]
      Sub-paragraph (f)

      381 This is a definition of medical transportation as such, independently of the means used. All movement is intended to be covered, which explains the specific mention of transportation by land, water or air. The expression "by water" was preferred to the expression "by sea" used in the initial draft, to emphasize that it concerned not only transportation across the seas or oceans, but also transportation across inland waters, such as rivers and lakes.

      382 Thus the concept of transportation aims to cover the whole range of transportation: any form of transportation may be medical. However, to qualify as ' medical ' transportation, it obviously has to fulfil another condition, that of being linked directly or indirectly to the wounded, sick and shipwrecked protected by the Conventions and the Protocol. There is a direct link when the persons being transported are the wounded, sick or shipwrecked themselves, an indirect link when these are medical or religious personnel, or medical equipment and supplies. The terms or expressions "wounded", "sick" or "shipwrecked", "medical personnel" and "religious personnel" are defined elsewhere and we will not reconsider this question here. As regards the expression "medical equipment or medical supplies", this should be interpreted broadly. It includes any equipment and supplies necessary for medical care -- particularly surgical equipment -- but also heavier equipment (for example, the equipment for an operating theatre or even an entire field hospital), or even, quite simply, medicines themselves.

      383 It is indeed sufficient that one of these categories of persons, equipment or supplies are transported for it to qualify as medical transportation. On the other hand, it is quite clear that no category of persons, equipment or supplies other than these should be included in the transportation, if it is to retain its status of medical transportation. The transportation of wounded with able-bodied soldiers or the transportation of medical equipment and armaments is not medical transportation in the sense of the Protocol.

      Sub-paragraph (g)

      384 The transportation of specific persons, equipment or supplies, irrespective of the means used, was defined in sub-paragraph (f); the means themselves are defined here. They are defined in a very broad sense. Whether they are designated for civilian or military use is of no importance: like the wounded, sick and shipwrecked, medical transports are considered as such, irrespective of such designation. Moreover, they may be permanent or temporary. (38) finally, this provision covers ' any ' means of transportation: none is excluded, from the oxdrawn cart to the supersonic jet, or any future means of transportation; the absence of an exhaustive list leaves the field open for the latter.

      [p.131] 385 However, two conditions have been laid down for any means of transportation to qualify as ' medical ' transports:
        1) It must be assigned ' exclusively ' to medical transportation. In practical terms, this means first of all that the means of transportation must only contain such categories of persons, equipment and supplies as fall under the definition of medical transportation. (39) As we saw above, without such a restriction there would not be any medical transportation. However, exclusive assignment also means that a means of transportation may not be used for purposes other than medical transportation, as long as it is assigned to this. Let us examine the example of a medical convoy consisting of trucks ordered to transport the wounded a considerable distance from the front. The trip takes a week and the lodging of the wounded is organized every evening. The trucks could not be said to be assigned exclusively to medical transportation if, during the night, they were used to transport weapons or for other military purposes. However, this is a knotty problem centred on the definition of ' temporary ' assignment. It will be further considered below with the definition of the terms "permanent" and "temporary". (40)
        2) It has to be placed under the control of a competent authority of a Party to the conflict. As the Party to the conflict is responsible for any abuse which could be committed, it is natural, as in the case of medical personnel, that it exercises control over the persons, equipment or supplies which are entitled to bear the protective sign, which is the case for medical transports. For such transports, there is, moreover, a more direct control than for personnel. The Party to the conflict exercises its control not only when it makes the assignment, but it does so constantly. In fact, such transports should be used under the control of a competent authority of the Party to the conflict, i.e., an authority dependent, ultimately, on the highest authority of that country.

      Sub-paragraphs (h), (i) and (j)

      386 As the transports have been defined, the particular names of these means of transportation by land, by water and by air, i.e., medical vehicles, medical ships and craft and medical aircraft, require very little further commentary.

      387 It suffices to note that the expression "medical vehicle" is used here in a wide sense, as it covers all means of transportation by land. For example, railway vehicles may count as medical vehicles, just as motor cars do.

      388 Moreover, it should be noted that the expression "medical ships and craft" covers all means of medical transportation by water, and that any means of transportation by water may become a medical transport. This was not the case in the Second Convention, which only protected hospital ships and coastal rescue craft. In the context of the Protocol, merchant ships, for example, assigned for a particular period to medical transportation may enjoy protection, as may barges [p.132] used to transport the wounded on navigable canals outside the context of war at sea.

      389 Finally, it is appropriate to mention, for the three categories of medical transports, that the fact that a means of transportation comes within the definition of a "medical vehicle", "medical ships an craft" or "medical aircraft", does not automatically imply protection. To enjoy protection, such transports must be used in accordance with certain well-established rules (cf. Articles 21 -31).

      Sub-paragraph (k)

      390 In the Protocol a development can be discerned, when compared with the Conventions, with regard to the protection of permanent and temporary medical personnel and equipment or supplies (in the general sense of anything that is not personnel). As regards medical personnel, there is a tendency to reduce the difference between the protection granted permanent personnel and that granted temporary personnel, and to increase the possibility for all medical personnel to be employed on a temporary basis, while on the other hand, strictly insisting on the obligation of temporary personnel to be exclusively assigned to medical tasks during their assignment. For equipment and supplies the tendency is to be more flexible with regard to accepting their temporary use for medical purposes.

      391 To be considered permanent, medical personnel, medical units and medical transports must be "assigned exclusively to medical purposes for an indeterminate period".

      392 We saw above what was meant by exclusive assignment. (41) However, it is appropriate to note the explanation given by the Drafting Committee of Committee II for using the word "assign", when the personnel, units and medical transports are permanent and the word "devote" when they are temporary:

      "These different words have been chosen in order to make it clear, that the protection of permanent units or personnel starts at the time of the order, assignment or similar act creating the unit or giving a medical task to the personnel. The protection of temporary units or personnel, however, commences only when they have in fact ceased to do other than medical work". (42)

      393 We will not reconsider the expression "medical purposes", which has already been analysed. (43)

      394 On the other hand, it is appropriate to ascertain what is meant by the expression "for an indeterminate period". This expression was also used in the original ICRC draft. The exact meaning to be given to this expression was not discussed in depth, but it is actually quite clear. It covers persons or objects which can be expected to be assigned definitively to medical purposes. Thus, if a hospital is [p.133] built with operating theatres and all the necessaryequipment, this is certainly with a view to using it solely and definitively as a hospital. Similarly, if a soldier is assigned to the medical troops, it is to function in a medical capacity whenever he is called up. Obviously it may happen that a new hospital is built and the old one is converted into a school, or even into an arsenal or a barracks. It is also possible that as a result of a lack of combatants, the army is obliged to change the assignment of medical soldiers and to transfer them to active combat duty. However, this is dependent on unforseeable elements. If at the outset the idea is to make the assignment of personnel, units or transports to medical purposes definitive (i.e., without imposing any time limit), they are permanent.

      395 The qualification of the word "temporary" is more delicate. As the Drafting Committee of Committee II explained, as shown above, the protection of temporary personnel begins only when these units have in fact ceased to perform other tasks than medical work. Does this mean that protection ceases the moment they are no longer carrying out a medical task? This would render the protection too uncertain. The criterion to adopt is rather that of the new assignment or use. From the moment that medical personnel or medical objects concerned are devoted or assigned to other purposes, they lose their right to protection. However, the real question to be resolved is that of the minimum time that must be observed for the assignment or use to be termed "exclusive". There is no doubt that by putting the emphasis on the exclusive character of use, a choice has been made in the Protocol for a certain guarantee. No time limit was fixed, but common sense dictates that to the greatest possible extent, there should be no change in the assignment of medical personnel or medical objects during an operation, as we tried to show above with the example of the medical convoy. (44) If the medical assignment is too short and changes too often, this could only serve to introduce a generally harmful mistrust regarding the protection of medical personnel and medical objects, particularly as the identification of such personnel and objects will in future be the same as that for permanent medical personnel and objects.

      396 Nevertheless, it is important not to be dogmatic in this field as the contributory role of temporary medical personnel, sometimes for a very short period of time, may constitute a considerable source of aid. Sometimes it has even happened that soldiers who do not belong to the medical personnel have spontaneously acted as stretcher bearers and were respected while they were carrying out this task. It is therefore essential to find in practice an equilibrium between the flexibility necessary to ensure the greatest possible aid for the wounded, and strict rules regarding the exclusive character of medical assignment which is indispensable to the survival of this system of protection, based as it is, on trust.

      397 The last sentence of the paragraph does not require a great deal of commentary. It explains that the rules of the Protocol relate to medical personnel, medical units and medical transports, irrespective of their permanent or temporary character, unless it is explicitly specified in the rule that only one of these categories is intended.

      [p.134] Sub-paragraph (l)

      398 There is no real definition of the distinctive emblem in the Conventions. On the other hand, a description is given of "the emblem and distinctive sign of the Medical Service of armed forces" in Article 38 of the first Convention, which is then referred to as "the emblem", "the distinctive emblem", "the distinctive emblem of the Convention", or even "the distinctive emblem conferring the protection of the Convention". Mention is also made of "the distinctive flag of the Convention" or "the flag of the Convention".

      399 In passing, it should be noted that the expression "distinctive sign" is sometimes used to designate a sign which is not that of the red cross, as evidenced by the reference to a "fixed distinctive sign recognizable at a distance", which should be displayed by members of the militia who do not form part of the armed forces of a Party to the conflict, and other volunteer corps, in order that their wounded and sick members may be covered by the first Convention. (45)

      400 The advantage of having a simple, clearly defined expression which is thereafter used throughout the Protocol, was soon admitted during the discussions for the formulation of the Protocols. (46)

      401 Committee II of the CDDH did not waste time on this problem, and with a slight modification of form, it retained the definition proposed in the 1973 draft. The three signs currently recognized in the Conventions and the Protocols, i.e., the red cross, the red crescent and the red lion and sun (47), displayed on a white ground, are thus covered by the expression "distinctive emblem" as used in the Protocol. Article 18 of the Protocol ' (Identification) ' also deals with the use of this emblem, while Annex I to the Protocol broaches the technical problems of identification (48)

      402 At the Drafting Committee's suggestion, the Committee nevertheless added a phrase to the definition of the original draft specifying that each of the emblems described is only covered by the expression "distinctive emblem" when "used for the protection of medical units and transports or medical and religious personnel, equipment or supplies". This addition is justified by the fact that the use of the emblem of the red cross, the red crescent or the red lion and sun is only laid down in the Protocol for the purposes of protection. (49) The question of the use of the emblem purely as an "indicatory" sign, to indicate that a person or object is linked [p.135] with the Red Cross institution, without either being able or intending to place it under treaty protection, is not actually broached in the Protocol. (50)

      403 In short, when reference is made in the Protocol to the distinctive emblem, this always refers to the use of the emblem for the purposes of protection: the addition made to the definition by Committee II of the CDDH removes any ambiguity in this respect.

      Sub-paragraph (m)

      404 It had already become clear, even during the first session of the Conference of Government Experts in 1971, that the problem of the security of medical transports could only be resolved by finding solutions adapted to "modern means of marking, pinpointing and identification". (51) In fact it is no longer possible today to base effective protection solely on a visual distinctive emblem. This inevitable development has led to the adoption of an Annex to the Protocol which introduces light signals which are visible over longer distances than emblems painted in red, and above all, signals which are not solely visual (radio signals, electronic means of identification etc.).

      405 It would have been very complicated to have provided precise technical descriptions of the distinctive signals every time they are mentioned in the Protocol. It was therefore considered useful to adopt a definition of the "distinctive signal" which is given in Chapter III of Annex I to the Protocol, which contains these technical descriptions. (52)

      406 Moreover, the definition of the distinctive signal mentions the object of such signals: i.e., of permitting the identification of medical units and transports. In addition, it is specified that such use must be exclusive. This point is essential: the use of signals laid down in Chapter III of Annex I for other purposes would very probably lead to a great mistrust with respect to these signals and this would entail the risk of seriously weakening the system of protection provided for in the Protocol.

      ' Y. S. '


      NOTES

      (1) Cf. in particular CE 1971, ' Report, ' p. 24, para. 46;

      (2) Cf. in particular ibid., p. 24, para. 46; p. 32, para. 90; CE 1972, ' Report, ' Vol. I, p. 33, para. 1.11; p. 209, para. 5.48;

      (3) O.R. III, p. 51, CDDH/II/58;

      (4) O.R. XI, p. 50, CDDH/II/SR.7, para. 6;

      (5) O.R. III, p. 53, CDDH/II/374;

      (6) Ibid., p. 52, CDDH/II/239;

      (7) Cf. CDDH/II/240/Add. 1, p. 1;

      (8) Cf. CDDH/CR/RD/13/Rev.1, p. 1, note 1;

      (9) O.R. III, p. 46, CDDH/II/17;

      (10) O.R. XI, p. 21, CDDH/II/SR.3;

      (11) This obviously refers to infirmity of some seriousness, which has in principle justified exemption from military service. However, the fact of knowing exactly how serious the infirmity covered here is, is not very important. If his infirmity was not considered sufficient and the invalid was enlisted as a combatant, he has in any case no right to any special treatment as long as he engages in combat. On the other hand, if his condition obviously prevents him from continuing to engage in combat, or if he wishes to surrender and clearly shows his intention of refraining from hostile acts, he must be spared by the combatant who has him in his power, either in accordance with Article 10 or in accordance with Article 41. Only when he is captured should it be determined whether his infirmity is considered sufficiently serious -- i e., may require immediate medical care -- to warrant classifying him in the category of the "wounded" and "sick";

      (12) For further details on the concept of an "act of hostility", cf. commentary Art. 41, infra, pp. 488-489;

      (13) Cf. supra, p. 118;

      (14) However, see also Art. 28, Second Convention;

      (15) Cf. in particular Art. 45, para 3, and Art. 47, para. 1;

      (16) Cf. in particular Art. 45, paras. 2 and 3;

      (17) I. e., from a State which is not a Party to the conflict; on this subject, cf. commentary Art. 2, sub-para. (c), supra, p. 61;

      (18) Cf. also Protocol I, Art. 19, and Second Convention, Art. 15;

      (19) Cf., however, commentary Art. 11, infra, pp. 152-154;

      (20) Cf. Protocol I, Art. 19;

      (21) Cf., however, commentary Art. 11, infra, pp. 152-154;

      (22) Cf. Protocol I, Art. 19;

      (23) Cf., however, commentary Art. 11, infra, pp.152-154;

      (24) Cf. Protocol I, Art. 22, para. 1, in fine and Art. 23, para. 6. On this subject, cf. also infra, commentary Arts. 22 and 23, p. 253;

      (25) Cf. commentary Art. 75, infra, p. 866;

      (26) O.R. III pp. 46-47 CDDH/II/19 and Corr.1;

      (27) Cf. infra, pp. 132-133;

      (28) Cf. commentary Art. 18, infra, p. 221;

      (29) It should be noted that Committee II included in its report at the end of the 3rd session of the CDDH an explanation -- in line with what was said above -- of the phrase commented upon here (cf. O.R. XIII, pp. 253-254, CDDH/235/Rev.1, para. 20);

      (30) Cf. commentary Art. 67, infra, p. 791;

      (31) Cf. also commentary Art. 66, para. 9, infra, pp. 788-789;

      (32) On this subject, cf. commentary Art. 9, para. 2, infra, pp. 140-143;

      (33) Cf. O.R. XII, p. 220, CDDH/II/SR.75, para. 20;

      (34) O.R. XII, p. 217, CDDH/II/SR.75, para. 3;

      (35) Cf. O.R. XII, p. 238, CDDH/II/SR.77, para. 8 and O.R. XIII, pp. 253-254, CDDH/235/ Rev.1, para. 20;

      (36) O.R. XIII, ibid;

      (37) Cf. commentary sub-para. (k), infra, pp. 132-133;

      (38) On the exact meaning to be given to these terms, cf. commentary sub-para. (k), infra, pp. 132-133;

      (39) Cf. commentary sub-para. (f), supra, p. 130;

      (40) Cf. commentary sub-para. (k), infra, pp. 132-133;

      (41) Cf. commentary sub-para. (c), supra, p. 125 and sub-para. (g), supra, p. 131;

      (42) O.R. XIII, p. 338, CDDH/II/379;

      (43) Cf. commentary sub-para. (e), supra, pp. 128-129;

      (44) Cf. commentary sub-para. (g), supra, pp. 130-131;

      (45) Cf. Art 13, para. 2, of the First Convention;

      (46) The Committee given the task of examining a draft Protocol on the protection of the wounded and sick in international armed conflicts during the Conference of Government Experts in 1971 had already included the "distinctive emblem" among the definitions which it proposed introducing at the beginning of the Protocol;

      (47) On the subject of the emblem of the red lion and sun, cf. moreover supra, Editors' note;

      (48) On this subject, cf. commentary Art. 18, infra, p. 221, and commentary Annex I, infra, p. 1137;

      (49) However, on this subject, cf. Art. 18, para. 7, infra, pp. 233-234;

      (50) On the subject of the distinction to be made between the emblem used for the purposes of protection and the emblem used as an indicatory sign, cf. ' Commentary I, ' pp. 323 ff. See also the Regulations on the Use of the Emblem of the Red Cross (Red Crescent and Red Lion and Sun) by National Societies, adopted by Resolution XXXII of the XXth International Conference of the Red Cross (Vienna, 1965);

      (51) CE 1971,' Report, ' p. 28, para. 91;

      (52) On this subject, cf. commentary Annex I, infra, pp. 1185-1255;