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Commentary - Discontinuance of protection of civilian medical units
[p.173] Article 13 -- Discontinuance of protection of civilian
medical units


[p.174] General remarks

546 The first paragraph of this article is based on Article 21 and the second on Article 22 of the First Convention. It lays down rules for all civilian medical units similar to those laid down in these articles for military medical units. With regard to civilian medical units, there is also a similar article in the Fourth Convention (Article 19 ), but its scope is restricted to civilian ' hospitals '.
    547 The aim of this article is to determine exactly which acts result in losing the right to protection, above all to prevent false pretexts from being resorted to.

    548 Paragraph 1 lays down the rule in the first sentence and in the second sentence goes on to introduce some flexibility for the benefit of the victims. Paragraph 2 describes four acts which shall not be considered harmful to the enemy (even though they might appear to be harmful) so that consequently the perpetration of these acts does not cancel the right of a medical unit to protection.

    Paragraph 1

    ' First sentence '

    549 This sentence clearly states that the protection to which civilian medical units are entitled shall not cease except in the case where the units are used to commit acts harmful to the enemy. No other reason can give rise to the termination of their right to protection. This formulation is derived from Article 21 of the First Convention. The 1949 Diplomatic Conference insisted that "protection could only cease in the one case mentioned above, whereas in 1929 it had merely been stated that protection would cease if such acts were committed". (1) However, if the medical unit were systematically used for purposes other than medical purposes, even if no acts harmful to the enemy were committed, it would lose its status as a medical unit within the meaning of the Protocol which ' defines ' these units as being ' exclusively ' dedicated to medical purposes. (2) As we are concerned here with medical units in the sense of the Protocol, it is clear that they are deemed to be dedicated exclusively to medical purposes and that, if acts which are harmful to the enemy are ascribed to them, these acts are accidental or sporadic and are not the result of any intention to use these units for military purposes.

    550 The next question is to know what would constitute ' acts which are harmful to the enemy ' and which are prohibited. The 1949 Diplomatic Conference, like the 1929 Diplomatic Conference, did not consider that there was a need for defining these because in their opinion this expression was self-explanatory and should remain very general. (3) The Diplomatic Conference of 1974-1977 followed [p.175] suit. However, the ICRC had come up with a more explicit formulation in 1949 in the event that the Diplomatic Conference should have felt the need for a more precise definition. This was worded as follows: "Acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations".

    551 Moreover, some examples of harmful acts are given in the commentary on Article 21 of the First Convention. These examples also elucidate the interpretation to be given to the expression: "the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack" (4) (this last act is in fact specifically prohibited by Article 12 ' (Protection of medical units), ' paragraph 4, first sentence, of the Protocol, examined above). Thus the definition of ' harmful ' is very broad. It refers not only to direct harm inflicted on the enemy, for example, by firing at him, but also to any attempts at deliberately hindering his military operations in any way whatsoever.

    552 In any event, in order to be classified as being prohibited, these acts which are harmful to the enemy must be committed ' outside the humanitarian function ' of the medical units, which implies that certain acts that are harmful to the enemy may be compatible with this humanitarian function, and as such may be lawfully committed. This clarification also appears in Article 21 of the First Convention, although it is formulated in a slightly different way (in this case the phrase is "outside their humanitarian duties"). It is justified because it may actually happen, though only in exceptional cases, that an act committed in accordance with the humanitarian function of the medical units is such as to be harmful to the enemy, or can incorrectly be interpreted in this sense. One might think, for example, of the case where a mobile medical unit accidentally breaks down while it is being moved in accordance with its humanitarian function, and thereby obstructs a crossroads of military importance. The 1949 Conference mentioned the example of the radiation emitted by X-ray apparatus which could interfere with the transmission or reception of wireless messages at a military location, or with the working of a radar unit . (5)

    553 As already stated, such acts are obviously exceptional and remedies should be found as soon as their harmful character to the enemy is realized. However, it was important to include this clarification to make a distinction between those acts that are committed without the intention of being harmful, but which could accidentally have an unfavourable effect on the enemy, and those acts which are deliberately committed in order to harm the enemy.

    ' Second sentence '

    554 The second sentence applies in the case where there is a valid reason, in the sense of the first sentence examined above, for discontinuing the protection to [p.176] which a civilian medical unit is entitled. This sentence, too, has been taken from Article 21 of the First Convention, with some slight modifications.

    555 The principle laid down here is intended to temper the effect of the strict interpretation of the preceding sentence, above all with the aim of preventing the wounded and sick who are hospitalized in the unit from becoming the innocent victims of acts for which they are not responsible. If the medical unit is used to commit acts which are harmful to the enemy, it actually becomes a military objective which can legitimately be attacked, and even destroyed. Before resorting to this extreme action it is of paramount importance that the fate of the legitimate occupants of the medical unit is guaranteed. This is the aim of the warning referred to in the principle laid down here. Moreover, the warning may take various forms. In most cases it would simply consist of an order to cease the harmful act within a specified period. In the most serious cases there may be a time-limit for evacuating the unit which will be attacked after this time-limit.

    556 The period of respite must be ' reasonable, ' but it has not been specified. It will vary according to the particular case. As stated in the commentary on Article 21 of the First Convention, "one thing is certain, however. It must be long enough either to allow the unlawful acts to be stopped, or for the wounded and sick who are present with the unit to be removed to a place of safety". (6) This time-limit should also allow those in charge of the unit enough time to reply to the accusations that have been made, and if they can, to justify themselves. However, it is also specified that a time-limit will only be set "whenever appropriate". This stipulation, which has also been taken from Article 21 of the First Convention, is obviously not included to allow the possibility of evading the duty to set a time-limit. However, it takes into account the cases where it is not practicable to set a time-limit: an example might be a body of troops approaching a hospital being met by heavy fire. However, even in this case humanitarian considerations should not be forgotten. A hospital with eight hundred beds should not be destroyed by mortar-fire because one soldier has taken cover in one of the rooms. Here too, the principle of proportionality between military necessity and humanitarian exigencies (7) shall be taken into consideration.

    Paragraph 2

    557 This paragraph enumerates four acts which could give rise to misunderstanding and for which the perpetrators could be accused of committing acts which are harmful to the enemy, but which it has nevertheless been considered necessary to permit. It was essential therefore to stipulate that these acts shall not be considered as being harmful to the enemy, and thus shall not deprive the medical unit concerned of the protection to which it is entitled.

    558 This paragraph is based on both Article 22 of the First Convention, with the modifications necessitated by the fact that the units concerned here are ' civilian ' [p.177] medical units, and on Article 19 , paragraph 2, of the Fourth Convention, which it completes with two acts which are not included in this article. Thus the four acts included here which are not to be considered to be harmful to the enemy are the following:

    ' Sub-paragraph (a) -- "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" '

    559 Even though the right for medical personnel to bear arms is laid down in the Conventions since 1906, this point, which was not included in the first draft, was certainly responsible for the most heated discussions of Committee II during the CDDH. Two questions actually arose in succession with regard to this matter. The first of these is the actual principle of arming personnel of civilian medical units. Once this is accepted, the second question which was discussed was that of the type of arms with which this personnel may be equipped.

    560 In 1949 it was confirmed that military medical personnel have the right to bear arms, though there were objections to this. It is certainly possible to argue that the most certain guarantee of protection is to be absolutely defenceless, thus forming the least possible risk for the enemy. In fact, if the principle that medical personnel have the right to bear arms was finally accepted, it was obviously not for the reason that this personnel should use force to oppose the capture of the unit: in this case it would lose its status and the right to protection derived from this status. However, it is possible that the unit is attacked by uncontrolled elements or looters. It may also happen that considerable problems present themselves with regard to maintaining order amongst the convalescent wounded or sick. These sound reasons finally prevailed and therefore in 1949 the use of arms by military medical personnel was accepted. However, the CDDH was concerned with taking this matter one step further, as this time the medical personnel being given the use of arms was a civilian personnel, although throughout the CDDH the emphasis had been laid on the importance of maintaining a clear distinction between civilian and military personnel. Moreover, giving this right to bear arms was not in accordance with the protection given civilian hospitals in Article 19 of the fourth Convention. Nevertheless, the principle that civilian personnel of medical units could bear arms was finally adopted because it was admitted that civilian medical personnel were exposed to the same dangers and had to deal with the same situations as military medical personnel, as a result of the increased scope of its role in the Protocol. Therefore they should have the same means at their disposal for their own defence.

    561 However, it is appropriate to stress once again that as medical personnel and as civilians the personnel have a strict obligation to refrain from using arms except for their own defence or for that of the wounded and sick in their charge. In other words, to prevent themselves or the wounded and sick in their charge from becoming the victims of violence. The term "defence" should in fact be interpreted in the restricted sense of defence against violence, and medical personnel cannot use force to try and prevent combatants from the adverse Party from capturing the medical unit, without losing their right to protection.

    [p.178] 562 It is clear that when medical personnel were granted the right to bear arms in 1949, the views regarding the lawful use that this personnel could make of these arms implied that they must be light weapons. However, it was not considered necessary to specify this in Article 22 of the First Convention.

    563 Nevertheless, the question resurfaced to be discussed by Committee II during the CDDH, and the decision was finally taken to specify that the weapons that could lawfully be used by the civilian personnel of a medical unit were limited to "light individual weapons". This expression was not defined, but it appears from the discussions in Committee II regarding this article and, regarding the cessation of protection to which civilian civil defence organizations are entitled , (8) that it refers to weapons which are generally carried and used by a single individual. Thus not only hand weapons such as pistols are permitted, but also rifles or even sub-machine guns. On the other hand, machine guns and any other heavy arms which cannot easily be transported by an individual and which have to be operated by a number of people are prohibited. Thus it is evident that the level of acceptance is quite high. However, this is the case above all to prevent the unit's right to protection from being suppressed too easily. Independently of the weapons with which the personnel are equipped, they may use them, as we have seen, only for very specific purposes, and it is above all with regard to this that no abuses should be committed. Pistols should certainly be sufficient to carry out the tasks specified, but it makes little difference in the end if the personnel prefer rifles, provided that they stay strictly within their competence.

    564 Finally, it should be noted that Article 22 of the first Convention does not specify what type of arms the personnel of military medical units can carry. But as the tasks to be carried out are the same as in this article, any weapons that are heavier than those stipulated here could not be allocated to the military personnel without the risk of incurring serious suspicion, and therefore without endangering the protection of the medical unit.

    ' Sub-paragraph (b) -- "that the unit is guarded by a picket or by sentries or by an escort" '

    565 This act is also mentioned in Article 22 of the first Convention, though it is only provided for there "in the absence of armed orderlies". However, the commentary on this provision shows that there was no intention on the part of the drafters to exclude the simultaneous presence of armed orderlies and a military guard and that what was intended was that the guard of a medical unit would, as a rule, be provided by its own personnel . (9) However, as this point may give rise to misunderstanding, it was not included in the Protocol.

    566 Whether the guard consists of a picket, sentries or an escort, it is generally made up of soldiers, as the medical service is part of the army and is normally protected by a military authority. However, in the exceptional case where the [p.179] guard duties were to be entrusted to a civilian uniformed police force, this would not entail an infringement of the Protocol. Like medical personnel, the police are generally only equipped with light weapons. They should not exceed their functions.

    567 The use of weapons by the members of this guard detailed to a medical unit is subject to the same conditions as the use of arms by medical personnel. The guards are there to prevent looting and violence, but they should not attempt to oppose the capture or control of the medical unit by the adverse Party.

    568 With regard to the status of military guards, a passage from the Commentary on the First Convention is reproduced below, which clearly explains what this status was and what it is now (being understood that the members of the military guard of a medical unit have the same status whether the unit is a civilian or a military unit).

    "The 1906 Convention (Article 9 , paragraph 2) placed them on exactly the same footing as medical personnel, on condition that they were provided with regular instructions (Article 8 , sub-paragraph (2)). They were entitled to the same protection as medical personnel and were not to be treated as prisoners of war.

    The 1929 Conference firmly rejected the above arrangement, regarding it as impracticable. It had not been respected during the First World War and had given rise to abuses. The provision of regular instructions appeared to be impossible in practice.

    Their status will therefore be that of ordinary members of the armed forces, although the mere fact of their presence with a medical unit will shelter them from attack. This practical immunity is, after all, only reasonable, since they have no offensive role to play and are there only to protect the wounded and sick. But in case of capture they will be prisoners of war. " (10)

    ' Sub-paragraph (c) -- "that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the units" '

    569 This provision is taken from Article 22 of the First Convention. The arms and ammunition will be taken from the wounded and handed to the proper service. However, this may take some time, and it is important to clarify that, if the arms are kept in the medical unit for a while, the unit will not lose its right to protection as a result.

    570 The arms concerned are small arms, in other words, arms which can be carried by men. On the other hand, there is no indication that they must be individual arms. Thus some weapons which are slightly heavier than those which are authorized for medical personnel could be involved, such as, for example, small machine guns, provided that they are portable (even if this should require two or [p.180] three soldiers). However, the extremely deadly character of some of these portable arms should be emphasized, this being a result of technological progress.

    ' Sub-paragraph (d) -- "that members of the armed forces or other combatants are in the unit for medical reasons " '

    571 In view of the conditions of modern warfare, military and civilian wounded and sick are often found in the same place, and consequently they may be collected by the same medical units. Thus it is not possible to complain about the presence of wounded and sick civilians in a military unit, or that of military wounded and sick in a civilian unit, as a reason to terminate the protection to which these units are entitled. The provision quoted above removes any ambiguity on this point, as do the equivalent provisions of Article 22 of the First Convention with regard to military medical units, and of Article 19 of the Fourth Convention for civilian hospitals.

    572 The expression "or other combatants" was added to the expression "members of the armed forces" to ensure that all combatants within the meaning of Article 43 of the Protocol ' (Armed forces) ' are included. This addition, which was made during the CDDH, was retained in the end, even though it had become superfluous in view of the final wording of Article 43 ' (Armed forces) '. As armed forces are defined in a very broad sense in paragraph 1 of that article, there are no combatants who are not members of the armed forces of a Party to the conflict within the meaning of the Protocol.

    573 The expression "for medical reasons" was preferred to the expression "for medical treatment", which appeared in the draft. It may happen that members of the armed forces are in a medical unit for medical reasons when they are not receiving medical ' treatment ' as such. For example, this could be the case with medical examinations or vaccinations. The formulation which was finally adopted is more flexible and should make it possible to avoid unjustified accusations that a medical unit is being used to commit acts which are harmful to the enemy.

    574 Finally, it should be noted that the soldiers being treated in a civilian medical unit can be soldiers belonging to the Party to which the unit belongs, but they may also, in urgent cases, be combatants of the adverse Party who must be treated in accordance with the principle of non-discrimination among the wounded and sick. (11) As they are prisoners of war these wounded will nevertheless be transferred to a military medical unit as soon as their condition and situation permit, as a civilian medical unit does not in principle have to guard prisoners of war.

    Y.S.


    NOTES (1) ' Commentary I, ' p. 200;

    (2) Cf. commentary Art. 8, sub-para. (k), supra, pp. 132-133;

    (3) Cf. ' Commentary I, ' p. 200;

    (4) Ibid., pp. 200-201;

    (5) Cf. ibid., p. 201;

    (6) Ibid., p. 202;

    (7) On this subject see commentary Art. 12, par. 4, first sentence, supra, pp. 170-171;

    (8) Cf. commentary Art. 65, par. 3, infra, pp. 774-778;

    (9) Cf. ' Commentary I, ' p. 203;

    (10) Ibid., p. 204;

    (11) Cf. commentary Art. 10, par. 2, second sentence, supra, pp. 147-148;