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Commentary - Part II : Wounded, sick and shipwrecked
    [p.107] Part II - Wounded, sick and shipwrecked


    Introduction

    277 The fourth Convention contains only a few basic provisions on civilian medical personnel whose fate was therefore dealt with only in a very incomplete manner [p.108] by the 1949 Conference. Since then a number of humanitarian institutions have concerned themselves with this question, and a working group was set up (1) which has been engaged in numerous "Entretiens consacrés au droit international médical".

    278 The XXth International Conference of the Red Cross (Vienna, 1965) approved the basic elements of "Draft Rules for the Protection of Wounded and Sick and Civil Medical and Nursing Personnel in Time of Conflict", which the ICRC had prepared on the basis of the "Entretiens...", and requested that the whole question should be the object of a more thorough study, particularly with regard to the possibility of extending to civilian medical personnel the right to display the distinctive emblem for the purpose of protection.

    279 The XXIst International Conference of the Red Cross (Istanbul, 1969) declared that it was in favour of an extension of the right to distinctive emblem on certain conditions, and requested "the ICRC to submit concrete proposals to Governments along these lines with a view to a rapid conclusion of an additional protocol to the First and Fourth Geneva Conventions" (Res. XVI).

    280 In view of the increased importance attached to these matters, the ICRC considered it necessary to increase the number of institutions participating in the "Entretiens..." (2) Government enquiries were carried out and two draft Protocols were established, which took up to a large extent the contents of the Draft Rules submitted to the International Conferences of the Red Cross. They differed, however, materially on two points:
      1. Whilst the Draft Rules were conceived to apply both to international conflicts and to non-international conflicts, the establishment of two draft Protocols permitted a distinction to be made between these two types of conflict, one Protocol (which at that time elaborated only the Fourth Convention) being applicable to the former, while the other, developing Article 3 common to the Conventions, applied to the latter.
      2. The Draft Rules still favoured the use of a different emblem for civilian medical personnel. In accordance with the above-mentioned resolution formulated in Istanbul, the draft Protocols suggested an extension of the right to emblem of the red cross (red crescent, red lion and sun), while maintaining the use of a different emblem - the red Staff of Aesculapius, on a white background - for medical personnel which does not form part of the medical service organized by the State.
    281 The work of the first session of the Conference of Government Experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, held in Geneva from 24 May to 12 June 1971, permitted the [p.109] ICRC to establish two new draft Protocols which retained the two above-mentioned new features.

    282 When a second session of this Conference of Government Experts became necessary, it met again in Geneva from 3 May to 3 June 1972. (3)

    283 The drafts of the ICRC served as a basis for the work of this second session. The experts introduced certain modifications and added a new chapter consisting of only one article entitled "National Red Cross organizations and other humanitarian organizations". Apart from this, the only major change was in the chapter dealing with medical transportation. This was fundamentally amended, notably by the addition of three articles to the ICRC draft. (4)

    284 The drafts used by the CDDH as a basis for its work follow very closely, with regard to the subject matter with which we are concerned here, the drafts presented at the 1972 session and the work of this session.

    285 Part II (' Wounded, sick and shipwrecked ') is divided into two sections, one entitled " General protection ", and the other, " Medical transportation ". The question of the "National Red Cross organizations and other humanitarian organizations" being once more withdrawn.

    286 Only the second section is subdivided into two chapters, the first deals with "common provisions", the second with "medical transportation by air".

    287 The essential element of the 1973 draft of this Part II can be found in the Protocol which was finally adopted. However, a few refinements and additions have been introduced, at first by Committee II of the CDDH, which was responsible for examining it, and later by the CDDH as a whole during the final plenary sessions.

    288 In the commentary to each article we will see the various modifications to which they have been submitted. In the context of this introduction we will limit ourselves to a description of the structural modifications which the CDDH has introduced to Part II. There are three of these:
      1) all the definitions concerning Part II have been listed in the first article of this Part (Article 8 - ' Terminology '), while the definitions concerning medical transportation were to be found in the draft at the beginning of Section II, which deals with this subject matter;
      2) the draft subdivided Section II (' Medical transportation ') into two chapters, one dealing with the common provisions (five articles), the other with medical transportation by air (seven articles). The problem of medical transportation by air still forms the larger part of Section II, but it now no longer has a chapter to itself, as Section II is no longer subdivided and deals successively with medical transportation on land (one article), by sea (two articles) and by air (eight articles); [p.110]
      3) a new section, not included in the 1973 draft, was added at the end of Part II by the CDDH. This Section III deals with missing and dead persons and was first adopted by Committee II, and later at the plenary meetings of the CDDH. The Committee had discussed this subject on the basis of numerous amendments presented by various States at the first, second and third sessions. A number of these amendments recommended the adoption of a new article, while others were in favour of a new section. This last formula was finally adopted, the new Section (' Missing and dead persons ') containing three articles entitled respectively "General principle", "Missing persons", and "Remains of deceased".

    289 Finally, let us summarize the points which seem to reflect the essence of the contribution of Part II of Protocol I to the Geneva Conventions:
      1) the wounded, sick and shipwrecked, whether civilian or military, are only considered as such during an initial period;
      2) recognized civilian medical personnel, as well as civilian medical units, will henceforth receive the same protection as that formerly reserved for military medical personnel and units;
    3) medical activities as such are better protected;
    4) the role of the civilian population and of relief societies is confirmed and extended;
      5) the protection of maritime medical transportation, and above all, of medical transportation by air, has been developed by extending the scope of the right to protection and by increasing the flexibility of the procedures required to invoke this right;
      6) the principle that families have the right to be informed of the fate of their relatives has been introduced, and the provisions concerning missing persons and the remains of the deceased have been developed.

    ' Y. S. '

    NOTES

    (1) In 1955 the International Committee of the Red Cross set up this working group with the two large international associations representing the medical profession, the World Medical Association, which had 700,000 members, and the International Committee of Military Medicine and Pharmacy, which included the health services of eighty-one countries, and with an observer representing the World Health Organization;

    (2) The group was enlarged by taking in as observers experts from the League of Red Cross Societies, the International Law Association, the Commission médico-juridique de Monaco, and the International Committee for the Neutrality of Medicine;

    (3) On the basis of the work of the 1971 Conference, and after various subsequent consultations, the ICRC had already formulated the structure which was finally adopted, i.e., two Additional Protocols to the Geneva Conventions, one applicable to international conflicts (supplementing all four Conventions), the other to non-international conflicts (supplementing Article 3, common to the Conventions);

    (4) Moreover, it was during the course of this session that a Sub-Committee on the marking and identification of medical transports was set up. This Sub-Committee in particular drew up draft Annexes to Protocol I, which were later adopted (on this subject, cf. in particular, the commentary on Annex I to Protocol I, infra, p. 1137);