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Commentary - Art. 19. Part II : General protection of populations against certain consequences of war


    1. ' Basic condition -- Acts harmful to the enemy '

    The immunity bestowed on civilian hospitals cannot be taken away unless they are used to commit acts harmful to the enemy. The wording adopted by the Diplomatic Conference was intended to draw attention to the exceptional character of the provision and to make it clear that protection could only be discontinued in this one case.
    Despite the efforts of the 1949 Conference (1), it was not found possible to produce a more concrete definition of the notion "acts harmful to the enemy" (in the French version: actes nuisibles à l'ennemi), which had already been used in the 1929 version of the First Geneva Convention. The idea was made clearer, however, by the insertion of the phrase "outside their humanitarian duties".
    Such harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre for liaison with fighting troops. The sense will become still clearer when paragraph 2, below is considered, which mentions two specific acts which are not to be regarded as being harmful to the enemy. One thing is certain. Civilian hospitals must observe, towards the enemy, the neutrality which they claim for themselves and which is their right under the Convention. Standing outside the struggle, they must steadfastly refrain from any interference, direct or indirect, in military [p.155] operations. An act harmful to the enemy is not only to be condemned for its treacherous nature, but also because the life and security of the patients in a hospital may be very seriously affected by its consequences. Furthermore, from a more general point of view, such acts may lessen the protective value of the Convention in other cases.
    It is possible for a humane act to be harmful to the enemy or for it to be wrongly interpreted as such by an enemy lacking in generosity. Thus the presence or activities of a hospital might interfere with tactical operations. By introducing the phrase "outside their humanitarian duties", the Diplomatic Conference emphasized explicitly that the accomplishment of a humanitarian duty can never under any circumstances be described as an act harmful to the enemy.

    2. ' Formal condition -- Warning and time limit '

    The object of the second sentence in the paragraph is to reduce the severity of the rule laid down in the first. Safeguards had, in fact, to be provided, in order to ensure the humane treatment of the patients in the hospital, who could not, of course, be held responsible for any unlawful acts committed.
    It is thus stipulated that protection may cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.
    The enemy will, therefore, warn the hospital to put an end to the harmful acts and will fix a time limit, on the expiry of which he may attack if the warning has not been heeded, The period of respite is not specified. All that is said is that it must be reasonable. How is it to be determined? It will obviously vary according to the particular case. One thing is certain however. It must be long enough to allow the unlawful acts to be stopped or for the hospital patients to be removed to a place of safety. The respite will also give the hospital an opportunity of replying to any unfounded accusation and clearing itself.


    Paragraph 2 gives two specific instances of circumstances which do not deprive a civilian hospital of its right to protection, or, in other words, which are not to be regarded as acts harmful to the enemy. The first case quoted is that of sick or wounded members of the armed forces being admitted to civilian hospitals. That cannot affect the hospital's right to immunity and protection. Civilian hospitals are therefore authorised implicitly, under the Fourth Geneva Convention, to take in sick and wounded members of the forces [p.156] as well as civilians. This provision has a counterpart in Article 22 (5) , of the First Geneva Convention of 1949, which permits units and establishments of the Army Medical Service to collect and treat civilian wounded and sick, and also in the Second Geneva Convention, Article 35 (4) , Which authorizes hospital ships and the sick-bays of vessels to do the same.
    This provision simply embodies the principle that, when it is a matter of relief, all wounded and sick persons, whether civilians or members of the armed forces, are placed on an equal footing. That conception is absolutely necessary in view of the character which modern warfare -- especially aerial warfare -- has assumed: military and civilians, friends and foes, may now be struck down by the same act of war and it must be possible in such cases for them to be treated by the same nursing orderlies and accommodated in the same buildings.
    In the second place, military wounded and sick, when admitted to a civilian hospital, may still be in possession of small arms and ammunition which will be taken from them and handed to the proper service; but this may take a certain time. Should the hospital be visited by the enemy before it has been done, he must not be entitled to consider the circumstance as a harmful act. That is what the last part of paragraph 2 makes clear.

    Notes: (1) [(1) p.154] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 632 and 703
    and ' Commentary, ' Vol. I, pp. 201 ff.;