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Commentary - Protection and care
    [p.145] Article 10 -- Protection and care


    General remarks

    441 The final version of the text of Article 10 that was adopted is close to the first draft.

    442 The proposal to add shipwrecked persons to those persons already covered by the article was adopted. On the other hand, the proposal discussed above with [p.146] regard to Article 8 (' Terminology ') (1) to treat persons who are in a dangerous situation on land, in a hostile environment, particularly the jungle or the desert, in the same way as the shipwrecked, was not finally adopted. Similarly, the proposal to add two paragraphs relating to the search, accommodation and exchange of the wounded, sick, shipwrecked and dead, was rejected, as many delegates considered that these matters were sufficiently provided for in the Conventions. However, it is worthy of note that they were included in Articles 32-34 , though only to a very limited extent.

    443 The question of the consent required from the patient to any surgical intervention was the subject of an amendment which was discussed, though it was finally dealt with under Article 11 (' Protection of persons '), paragraph 5.

    Paragraph 1

    444 This paragraph repeats one of the fundamental principles of international humanitarian law applicable in cases of armed conflict. It was not absolutely necessary to mention this in the context of the Protocol as, clearly, it is already prominently stated in the Conventions. (2) The reason for nonetheless repeating the principle was to clearly emphasize its importance, for almost all the obligations arising from Part II follow from it and the protection granted to medical personnel is justified only by reference to this principle. Thus the repetition of this principle at the beginning of this Part was indispensable for its harmonious structure, particularly as the Protocol covers all wounded, sick and shipwrecked persons, with no distinction between military and civilian persons.

    445 In the context of an international armed conflict this paragraph concerns all the wounded, sick and shipwrecked in the sense given to these terms in the Protocol. (3) Committee II considered that it was appropriate to add the expression "to whichever Party they belong" to the text of the 1973 draft in order to emphasize this point. In this way it is clearly stated that every Party to the conflict must respect and protect its own wounded, sick and shipwrecked -- which may seem self-evident, though it is perhaps a useful reminder -- and above all, that the wounded, sick and shipwrecked of the adverse Party are entitled to the same treatment. As we well know, this element of respect and protection of persons in the power of the enemy is certainly one of the essential characteristics of international humanitarian law.

    446 The concepts of "respect" and "protection" are taken from the Conventions. The first concept was introduced as far back as the 1906 revision, the second at the time of the 1929 revision. ' Respect ' means "to spare, not to attack", while ' protect ' means "to come to someone's defence, to lend help and support". Thus it is prohibited to attack the wounded, sick or shipwrecked, to kill them, maltreat them or injure them in any way, and there is also an obligation to come to their rescue. (4)

    [p.147] Paragraph 2

    447 The principle introduced in the first sentence of this paragraph regarding the humane treatment of the wounded, sick and shipwrecked, is also taken from the Conventions. (5)

    448 As stated in the Commentary to the first Convention:

    "It is not sufficient to respect the wounded. They require ' care. ' If a soldier who is ' hors de combat ' is respected and protected against injury of any kind, but is at the same time left to struggle alone against the effects of his wound or his sickness, he runs a great risk of succumbing. There is therefore a positive, as well as a negative, obligation: the wounded and sick must be given such care as their condition requires. This fundamental principle has remained unchanged since 1864." (6)

    449 Moreover, humane treatment does not refer only to medical treatment, but applies "to all aspects of a man's existence". (7) It is required under ' all circumstances ' from the moment that one comes across a wounded, sick or shipwrecked person.

    450 In practice, this requirement of humane treatment will generally be observed after the requirement for respect and protection. The latter requirement should already be taken into account during the battle, but only afterwards when it is possible to come and take care of the wounded, can they be treated humanely and cared for.

    451 The second stipulation was added by Committee II from a concern for the reality of the situation. The care required by the condition of the wounded, sick and shipwrecked shall be given them ' to the fullest extent practicable. ' This is again an expression of the maxim "no one is expected to do the impossible", and one might say that this addition to the text of the first draft was already implicit in it. It is obvious that some wounded or sick persons could be saved, or at any rate be better cared for, in the clinics of wealthy countries which have the most advanced resources at their disposal. However, the requirement imposed here relates to the material possibilities existing in the place and at the time that the wounded person is cared for. What is required is that everyone does his utmost. If, because there is no doctor, an orderly is left to care for the wounded on his own, he must do so to the best of its ability. If there is no well-equipped clinic and the wounded must be cared for in an antiquated hospital, an attempt should nevertheless be made to use it to the maximum of its capacity.

    452 An additional requirement is imposed with regard to the performance of these duties vis-à-vis the wounded, sick and shipwrecked in the second sentence of paragraph 2: ' There shall be no distinction among them founded on any grounds other than medical ones. '

    [p.148] 453 Article 12 of the first and Second Conventions contains a non-exhaustive list of the discriminatory criteria which cannot be applied with regard to the victims. As we have seen, this list was adopted and developed in Article 9 (' Field of application '), paragraph 1, which determines the field of application ' ratione personae ' of Part II. The principle laid down there applies to the Part as a whole and there was no need to repeat it in Article 10 . Thus the sentence which was finally included was not indispensable. Nevertheless it is useful, as it emphasizes a particular application of the principle which was stated in different words in Article 12 , paragraph 3, of the First and Second Conventions: "Only urgent medical reasons will authorize priority in the order of treatment to be administered". This is a reminder to the personnel taking care of the wounded that they shall ignore the nationality or uniform of the person they are taking care of. The only reason for treating one patient before another shall be because his wounds require more urgent care, independently of any non-medical considerations.

    454 On the other hand, neither the Conventions nor the Protocols specify which medical criteria should be observed. For example, should an overburdened doctor launch into a long and hazardous operation on an extremely seriously wounded patient, or should he "sacrifice" this patient for the benefit of other patients whose chances of survival are better? It is above all medical ethics and the doctor's own conscience which must provide the answer to such a question. (8)

    ' Y. S. '


    NOTES

    (1) Cf. commentary Art. 8, sub-para. (b), supra, p. 118;

    (2) Art. 12, First and Second Conventions; Art. 16, para. 1, Fourth Convention;

    (3) On this subject, cf. commentary Art. 8, sub-paras. (a) and (b), supra, pp. 116-124;

    (4) On the subject of these ideas, see also ' Commentary I, ' pp. 134-135;

    (5) Cf. Art 12, para. 2, First and Second Conventions;

    (6) ' Commentary I, ' pp. 136-137;

    (7) Ibid., p. 137;

    (8) On the subject of medical ethics, cf. commentary Art. 16, para. 1, infra, pp. 200-202;