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Commentary - Protection of civilian medical and religious personnel
[p.189] Article 15 -- Protection of civilian medical and religious
personnel


[p.190] General remarks

601 The object of this article is to allow civilian medical personnel, as well as civilian religious personnel, to fulfil their task, not only by ensuring that they will be respected and protected, but also by affording them help in areas and circumstances where this is required.

602 Thus respect and protection are extended to all civilian medical personnel (paragraph 1) and civilian religious personnel (paragraph 5), as they are defined in Article 8 ' (Terminology), ' sub-paragraphs (c) and (d) respectively, while such respect and protection are provided in the Conventions only for military medical and religious personnel, and for the medical personnel of civilian hospitals. (1)

603 Such an extension of protection is amply justified by the fact that a large number of States nowadays envisage the amalgamation, or at least coordination, between the military and civilian medical services in case of armed conflict.

604 A distinction is then made in the help to be given civilian medical personnel, depending on whether it is afforded in one of two areas: an area where medical services are disrupted by reason of combat activity (paragraph 2), and in occupied territories (paragraph 3). In fact only such areas deserve special attention. Apart from these two cases, civilian medical personnel will operate as normal in the context of a medical service which has not been disrupted by combat activity in the territory of the Party to the conflict on which it depends. There is no reason to provide special measures in these circumstances.

605 The problem of access of medical personnel to places where their services are indispensable -- a matter of great importance for the wounded -- is at last dealt with in this article (paragraph 4).

606 Moreover, it should be noted that the question of the identification of civilian medical personnel is dealt with later in Article 18 ' (Identification). '

607 On the other hand, there is no special provision for the case where members of the civilian medical personnel fall into the hands of the adverse Party (except [p.191] in the case of occupied territory). In principle such personnel should not be captured, but be left free to carry out its activities. However, if they are seized in a combat zone for reasons of security, or if they inadvertently find themselves in territory controlled by the adverse Party, they will be treated by the latter as protected persons in the sense of the fourth Convention and Part III, Section II, of that Convention will apply to them in particular. In addition, the rule that such personnel must not be compelled to carry out tasks incompatible with their humanitarian function, must also be observed in this case. (2)

Paragraph 1

608 The fundamental principle of respect and protection for medical personnel is simply mentioned without any addition or restriction. (3)

609 The draft specified that temporary civilian medical personnel are protected only "for the duration of their medical mission". This specification has become meaningless because of the adoption of a definition of the term "temporary", which states that temporary medical personnel is only considered to be medical personnel during such time as it is exclusively assigned to medical tasks. (4) The problem of their protection as civilian medical personnel therefore does not arise outside these periods when they are then considered to be on an equal footing with all other civilians.

610 Finally, it should be remembered that not all civilian medical and nursing personnel is covered here, but only those who have been assigned to medical tasks by the Party to the conflict on which they depend. (5)

Paragraph 2

611 The areas referred to here are those where the civilian medical services have been disrupted by reason of combat activity. The draft simply referred to combat zones. The present text is an improvement as it emphasizes the disruption of medical services. In fact, it may be that medical services remain properly organized in a combat zone, even though they are usually overburdened, and then it may also be that medical services are disrupted by combat activity, even though they are not situated in the combat zone. The example of bombing behind the lines springs to mind, or the problems of ensuring adequate supplies which may be caused by combat a long way away.

612 The help must be given "if needed". As a matter of fact, it may happen that the civilian medical personnel themselves are in a position to deal immediately with events immediately in case of the disruption of the civilian medical service (e.g., hospitals damaged by bombing). In such a case there is no need to insist on [p.192] helping those responsible for civilian medical services, if they do not want help, as this could lead to more problems than it would solve.

613 It is the ' available ' help which must be given and not the ' necessary ' help. It is not possible to ignore military necessity, particularly in combat zones. Thus it is a matter of affording help, as far as this is possible, without weakening one's own military position. This help may have a passive character (such as permitting the transit of medical supplies) or an active character (such as providing places to shelter the wounded and sick or providing a vehicle to transport them).

614 Finally, it is not specified who must provide this help; in fact, it is up to the Party to the conflict capable of providing such help. Obviously this is primarily the Party to the conflict on which the civilian personnel depend, but it can also be the adverse Party in some cases, particularly when a temporary advance places it in the presence of civilian medical units and personnel or when medical transports have to cross its lines.

Paragraph 3

615 This paragraph imposes three obligations upon the Occupying Power with respect to civilian medical personnel in occupied territories.

616 First, the Occupying Power must afford every assistance to such personnel to enable them to perform their humanitarian functions to the best of their ability.

617 This does not only refer to "possible" assistance. The Occupying Power has a responsibility to maintain public health and hygiene, (6) and its duty to assist in territories which are no longer combat zones, but are considered to have regained a measure of stability, is clearly expressed. Humanitarian considerations carry great weight here yet again. Thus the Occupying Power should provide the ' necessary ' assistance for the civilian medical personnel to perform their humanitarian functions. (7)

618 Moreover, this requirement complements the principles laid down in Article 14 ' (Limitations on requisition of civilian medical units), ' paragraphs 1 and 2.

619 Such assistance must be afforded civilian medical personnel "to enable them to perform, to the best of their ability, their humanitarian functions". This is a reminder that the ultimate aim of such assistance, like that of the protection accorded medical personnel, is the help and care given to the wounded and sick. Such assistance can take a concrete form, such as medical supplies or vehicles, but it can also consist of removing hindrances which could be put in the way of the work of medical personnel, particularly by facilitating access to places where the presence of such personnel is required.

620 The second obligation imposed on the Occupying Power is to refrain from requiring that the civilian medical personnel should give priority to any person in the performance of their functions, except on medical grounds.

621 In fact, this obligation follows from the general principle also contained in Article 10 ' (Protection and care), ' paragraph 2, second sentence, of the Protocol, [p.193] which provides that no distinction shall be made between the wounded, sick and shipwrecked, founded on any grounds other than medical ones. (8)

622 Obviously this principle should be observed primarily by medical personnel, but it should also be observed by any person in contact with the wounded, sick or shipwrecked. Above all, it imposes upon the Parties to the conflict an obligation not to do anything to prevent compliance with it. Thus, in a strict sense, the repetition of this principle in Article 15 was not indispensable. However, it was considered to be useful because it is precisely in situations of occupation that abuse is most to be feared. It can be very tempting for the Occupying Power to order the civilian medical personnel to give priority to the care of its own wounded and sick to the detriment of the civilian wounded and sick of the occupied territory. It was therefore important to stress that such behaviour would be unlawful. But, conversely, it should also be recalled that on the basis of the same principle civilian medical personnel cannot leave without care the wounded and sick of the Occupying Power taken to them in emergencies. (9)

623 In all cases the priorities regarding the care to be given should solely be based on criteria derived from medical ethics.

624 Finally, the third obligation imposed on the Occupying Power is to refrain from compelling civilian medical personnel from carrying out tasks which are not compatible with their humanitarian mission.

625 The text of the draft went further in prohibiting such personnel from being compelled to carry out tasks "unrelated to their mission". A careful examination by Committee II of Article 15 of draft Protocol II, which was also devoted to medical and religious personnel, resulted in the setting up of a Working Group which considered that the text of the draft was "unnecessarily restrictive on this point, and that it should be sufficient to provide that medical personnel shall not be employed on tasks which are not compatible with their humanitarian role" (10) following an amendment, Committee II then accepted the reopening of the discussion on the corresponding article of Protocol I, with which we are concerned here, and the insertion of the present wording in preference to the wording of the draft. (11)

626 The present text, as shown by the above-mentioned Working Group, is less restrictive than the text of the draft as regards the prohibition of tasks which medical personnel may be compelled to perform. While of course all tasks incompatible with the mission of medical personnel are extraneous, i.e., unrelated to that mission, there are tasks unrelated to that mission which are not incompatible with it. For example, to make nursing personnel take part in the construction of medical buildings is certainly unrelated to their mission, but not incompatible with it.

627 Certain acts are incompatible as such with the humanitarian mission of medical personnel, particularly such acts as could lead to a loss of trust in such personnel by the wounded and sick whom they are detailed to look after. However, some acts which are not in themselves incompatible may become so if carrying out such [p.194] acts overburdens the work of the medical personnel to the point where they are prevented from properly carrying out the tasks necessary for their humanitarian mission.

628 Moreover, this provision should be read in conjunction with Article 14 ' (Limitation on requisition of civilian medical units), ' which imposes strict limitations on the requisition of civilian medical "resources" -- including personnel -- and in particular imposes the condition that such "resources" should be necessary on medical grounds. It should also be read in conjunction with Article 16 ' (General protection of medical duties), ' which specifically prohibits any persons engaged in medical activities from being compelled to perform acts contrary to the rules of medical ethics.

629 Finally, nothing is mentioned concerning the arming of civilian medical personnel in occupied territories, but it seems to be well within the competence of the Occupying Power to disarm this personnel if it deems the measure necessary for security reasons. (12)

Paragraph 4

630 The provision laid down in this paragraph is essential to ensure that the extension introduced in the Protocol of the protection granted military medical personnel to civilian medical personnel is effective. Indeed, for civilian medical personnel to be able to provide the services which justify their protection, it is necessary that they are mobile, and it is especially while they are moving around that the protection afforded them is of paramount importance.

631 The principle of free movement for medical personnel is thus laid down, though with two reservations.

632 The first is that the movement is related to the medical function. In principle, medical personnel can only move to places "where their services are essential". However, the word "essential" should not be interpreted in an excessively restrictive sense. It is not only in emergencies -- e.g., large numbers of wounded after combat or bombing -- that medical personnel must be able to move around, but whenever there is medical justification for such movement: a surgeon who has to perform an operation must have access to the hospital without prolonged discussions regarding the essential nature or not of the operation he wishes to perform.

633 On the other hand, apart from movements justified by their function, civilian medical personnel are, if necessary, subject to the same restrictions on movements as the rest of the civilian population.

634 The second reservation imposed on such freedom of movement is left to the discretion of the Party to the conflict concerned, i.e., the Party which controls the territory where freedom of movement is required, whether this is its own territory or occupied territory. In these circumstances there are certain security requirements which cannot be ignored. Thus all movement is subject to "such [p.195] supervisory and safety measures as the relevant Party to the conflict may deem necessary". In extreme cases movement may even therefore be prohibited, though the Party concerned must also take into account its responsibility towards public health in the territory which it controls, and must avoid imposing such categorical restrictions as far as possible. On the other hand, it is quite legitimate for the Party concerned to carry out checks, particularly identity checks, and to take various measures to ensure its own security, especially if it fears espionage or sabotage, or the safety of the medical personnel for whom it could, for example, provide an escort on dangerous journeys.

Paragraph 5

635 This paragraph lays down the principle of respect and protection (13) for civilian religious personnel which is additional to that enjoyed by all civilians.

636 Up to now protection has only been accorded to chaplains attached to armed forces, (14) religious personnel of hospital ships, (15) and religious personnel assigned to the spiritual care of the wounded, sick and shipwrecked covered by the Second Convention. (16) To enjoy such protection, such personnel had to be attached to the armed forces, i.e., there had to be "an official relationship" established by "the competent military authorities". (17)

637 Article 15 , paragraph 5, extends the protection to all civilian religious personnel. However, it is appropriate to be aware of the fact that this covers only the personnel defined in Article 8 ' (Terminology), ' sub-paragraph (d). Only religious personnel attached either to the armed forces of the Parties to the conflict, to medical units or transports, or to civil defence organizations are considered to be religious personnel. (18) As in the case of civilian medical personnel, the competent authorities of the Parties to the conflict therefore retain responsibility for designating, or at least accepting, religious personnel who will enjoy protection. It should be remembered that this restriction is justified by the fact that the authorities of the Parties to the conflict are responsible for the application of the Protocol, and in particular for ensuring that no abuses will be committed by protected persons. To automatically and generally attribute the right to protection to all medical or religious personnel would make such a task extremely difficult, if not impossible.

638 The majority of civilian religious personnel in the usual meaning of the term, i.e., those carrying out their function amongst the civilian population, are therefore not covered by this provision. However, special protection cannot be justified for such personnel, who, it should be remembered, remain covered by the general protection accorded the population and all civilian persons.

[p.196] 639 As the second sentence of paragraph 5 makes clear, the right of religious personnel to protection and the measures of identification taken in their regard are the same as those for medical personnel. Thus paragraph 5 simply operates by reference. We will do the same, recalling that this is essentially covered by the provisions of Chapter IV and Article 40 of the first Convention, Chapter IV and Article 42 of the Second Convention, and Articles 15 and 18 ' (Identification) ' of this Protocol.

Y.S.


NOTES (1) Cf. First Convention, Arts. 24-26; Fourth Convention, Art. 20;

(2) Cf. commentary para. 3, in fine, infra, pp. 193-194;

(3) On the concepts of "respect" and "protection", cf. commentary Art. 10, para. 1, supra, p. 146;

(4) Cf. commentary Art. 8, sub-para. (c), supra, pp. 124-127;

(5) Ibid;

(6) Cf. in particular Fourth Convention, Art. 56;

(7) On the interpretation of the term "necessary", cf. commentary Art. 14, para. 2, supra, p. 184;

(8) On this subject, cf. commentary Art. 10, para. 2, second sentence, supra, pp. 147-148;

(9) On this subject, cf. commentary Art. 14, para. 2, in fine, supra, p. 185;

(10) O.R. XIII, p. 218, CDDH/II/269, question 5;

(11) O.R. XII, p. 281, CDDH/II/SR.81, paras. 1-2;

(12) It is to be noted that this competence is explicitly provided regarding civil defence personnel: cf. Art. 63, para. 3;

(13) On the concept of "respect" and "protection", cf. commentary Art. 10, para. 1, supra, p. 146;

(14) Cf. Art. 24, First Convention;

(15) Cf. Art. 36, Second Convention;

(16) Cf. Art. 37, Second Convention;

(17) Cf. ' Commentary I ', p. 220;

(18) For further details, cf. commentary Art. 8. sub-para. (d), supra, pp. 127-128;