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Commentary - Part II : Wounded, sick and shipwrecked #Section II -- Medical transportation
    [p.245] Part II, Section II -- Medical transportation


    Introduction

    817 The title of the Section has a rather hybrid character in the light of the way that medical transportation and medical transports have been defined. (1) In fact, the Section is essentially concerned with the protection of medical transports.

    818 As was remarked in the introduction to this Part, the structure of the second Section of this Part was completely modified during the CDDH. Without examining this question at length, it seems useful to detail these structural modifications, and to analyse their substantive consequences on the protection of medical transportation.

    819 The draft divided the section into two chapters: one devoted to the common provisions, i.e., the provisions relating to all types of medical transports, the other devoted more specifically to medical aircraft. This distinction was abandoned by the CDDH. In the Protocol there are no longer any common provisions, but one article devoted to medical vehicles, two articles to medical ships and craft, and eight articles to medical aircraft. The latter therefore remains the core of the Section.

    820 Which were the common provisions of the draft, and why did they disappear?

    821 The first, Article 21, contained definitions relating more specifically to Section II. These definitions have been retained with some modifications, (2) but Committee II decided that it was better to group all the definitions relating to Part II at the beginning of this Part, and therefore they have been included in Article 8 ' (Terminology) ' in the final text.

    822 The second, Article 22 of the 1973 draft, laid down the possibility of using medical transports to search for and evacuate the wounded, sick and shipwrecked. The Working Group considered that it was not desirable to mention search and evacuation:

    "This function is fully covered in the first, Second and fourth Conventions, and in Article 17 of the Protocol. To refer to the matter again would be to cast doubt on the meaning of the Conventions, and if search and evacuation were mentioned, the other functions of medical transport when carrying medical personnel should also be included, and those are already fully covered under the definition of medical personnel." (3)

    [p.246] This point of view was approved by Committee II and then by the Conference in plenary meeting. Thus the removal of this article does not mean that transports may not be used for such essential tasks as the search for and evacuation of the wounded, sick and shipwrecked (though subject to an explicit restriction with regard to the use of medical aircraft (4)).

    823 The third common provision of the draft contained in Article 23 was entitled ' Application, ' and sought to determine precisely which provisions of the Conventions and the Protocols would apply to medical ships and craft, as well as to amphibious medical transports covered by the Conventions and the Protocol, and in which circumstances they would apply. However, with the exception of amphibious medical transports, this article was concerned only with medical ships and craft, and the problems with which it dealt were included and elaborated in the articles specifically devoted to these medical transports, i.e., Articles 22 ' (Hospital ships and coastal rescue craft) ' and Article 23 ' (Other medical ships and craft). ' As regards amphibious medical transports, the Committee decided not to mention these. In this it followed the conclusion of the Working Group which considered that such means were covered by the relevant provisions relating to medical vehicles when they are on land, and by the relevant provisions relating to medical ships and craft when they are on water. (5)

    824 The fourth of the common provisions of the draft, Article 24, entitled ' Protection, ' laid down the principle of respect and protection of medical transports, and made Article 12 of the Protocol ' (protection of medical units) ' and Article 13 ' (Discontinuance of protection of civilian medical units) ' applicable to medical transports by analogy. Finally, it added another two activities characteristic of medical transportation which should not be considered as being harmful to the enemy.

    825 The Working Group considered that it was preferable to include the provisions relating to protection in the articles concerning each type of medical transports. Consequently it also recommended the deletion of the general provisions contained in Article 24 of the draft. (6)

    826 However, it should be noted that the two activities of medical transports, which the draft had added and which should not be considered as being harmful to the enemy, were only finally included, subject to some slight changes, with regard to medical aircraft. (7)

    827 These related to:

    "(a) the carrying on board military or civilian means of medical transport of equipment to be used solely for such transmissions as may be necessary to movement or navigation;
    (b) the carrying on board military means of medical transport of armed military medical personnel who use such arms for their own protection and for that of the wounded and the sick being conveyed." (8)

    [p.247] 828 It is clear that the first of these activities cannot be considered as being harmful to the enemy, even if it is not specifically mentioned. However, to avoid all ambiguity, it is also necessary that medical transports only contain equipment indispensable for the purposes mentioned here. Nevertheless, when such a case arises, it is only by having full knowledge of the content of a communication -- rather than from the presence of instruments which often have many uses -- that it is really possible to discover whether abuse has taken place.

    829 The second condition has become superfluous because civilian medical personnel were henceforth also permitted to carry light arms. It is explicitly mentioned in Article 13 of the Protocol ' (Discontinuance of protection of civilian medical units) ' (which was not the case in the draft) that the fact "that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge" should not be considered as an act harmful to the enemy. (9) Thus this rule applies to the same extent to personnel of medical transports.

    830 Finally, the fifth and last article of the draft devoted to general provisions dealt with notification, and the Working Group "concluded that there was no requirement for a separate article on Notification". (10)

    831 The notification of medical aircraft in any case raises a very specific problem, and even in the draft this was dealt with separately. As the Working Group had expressed the opinion that "notification would be of no practical value in the case of medical vehicles", (11) a general provision lost its ' raison d'ĂȘtre ' and the provisions relating to notification of medical ships and craft were logically included in the articles relating to these types of medical transports.

    832 Nevertheless, the question arises whether the remark of the Working Group relating to the notification of medical vehicles is still altogether appropriate.

    833 Indeed, it should not be forgotten that trains also count as medical vehicles within the meaning of the Protocol: (12) notification of medical convoys travelling by rail, or those consisting of a number of trucks or ambulances, would certainly be useful.

    834 However, this omission is not of great importance. In general, the draft article itself provided only for the possibility, and not the obligation, to notify the characteristics useful for identifying medical transports. This possibility remains regardless of any official rule providing for it. There is nothing in the Protocol to prevent the notification of an important medical convoy -- in fact, this can only be recommended.

    835 Thus such considerations on the part of the Working Group led Committee II, and later the Conference as a whole, to abandon the division of Section II into chapters. Even so, Article 21 ' (Medical vehicles), ' Articles 22 and 23 relating to medical ships and craft, and finally Articles 24-31 relating to medical aircraft, form three separate groups. The articles on medical aircraft in particular form a whole and should be interpreted as such.

    ' Y. S. '


    NOTES

    (1) [(1) p.245] Cf. Art. 8, sub-paras. (f) and (g);

    (2) [(2) p.245] Cf. supra, commentary Art. 8, sub-paras. (f)-(j), pp. 130-132;

    (3) [(3) p.245] O.R. XIII, p. 231, CDDH/II/296, para. 3;

    (4) [(4) p.246] Cf. Art. 28, para. 4, and its commentary, infra, pp. 305-306;

    (5) [(5) p.246] Cf. O.R. XIII, p. 232, CDDH/II/296, para. 8;

    (6) [(6) p.246] Cf. ibid., p. 231, para. 2;

    (7) [(7) p.246] Cf. commentary Art. 28, para. 2, infra, pp. 302-304;

    (8) [(8) p.246] Draft Art. 24, para. 3;

    (9) [(9) p.247] On the meaning of such weapons and the limitations imposed on their use, cf. however, supra, commentary Art. 13, para. 2(a), p. 177;

    (10) [(10) p.247] Cf. O.R. XIII, p. 231, CDDH/II/296, para. 2;

    (11) [(11) p.247] Ibid;

    (12) [(12) p.247] Cf. supra, commentary Art. 8, sub-para. (h), pp. 131-132;