ICRC databases on international humanitarian law
  • Print page
Commentary - Part III : Wounded, sick and shipwrecked
    [p.1403] Part III -- Wounded, sick and shipwrecked


    Introduction

    4619 This Part is aimed at developing the fundamental principle that the wounded and sick should be respected and protected, as contained, very succinctly, in common Article 3, paragraph 1, sub-paragraph (2) , of the Conventions: "The wounded and sick shall be collected and cared for". It also applies to the shipwrecked, who are put on the same footing as the wounded and sick under the Geneva Conventions.

    4620 After 1949, the ICRC became concerned with the situation of civilian medical personnel who were only partially protected under the fourth Convention. As a first step the problem was studied from a general point of view, both for international and non-international conflicts.

    4621 For this purpose, the ICRC acted together with the two large international associations representing the medical profession, the World Medical Association and the International Committee of Military Medicine and Pharmacy, in which the medical corps of more than eighty countries participate. They jointly formed a working group which held a great many "Entretiens consacrés au droit international médical" in the presence of an observer representing the WHO. Draft Rules for the Protection of the Wounded and Sick and of Civilian Medical and Nursing Personnel in Time of Conflict were presented at the XXth International Conference of the Red Cross (Vienna 1965). (1)

    4622 The draft was favourably received, but the Conference wanted a thorough study to be carried out on an extension of the use of the red cross and red crescent emblem.

    4623 The XXIst International Conference of the Red Cross (Istanbul, 1969) required concrete proposals to be put forward this time by the ICRC and by governments. At that time a Protocol additional to the Fourth Convention was envisaged.

    4624 The Working Group was extended by a number of observers, in particular experts from the League of Red Cross and Red Crescent Societies, the International Law Association, the Commission Médico-juridique de Monaco, and the International Committee for the Neutrality of Medicine. On reflection, it appeared that it would be preferable to provide separate rules for situations of non-international armed conflicts, and two drafts, one for international conflicts and the other for internal conflicts, were submitted to the Conference of [p.1404] Government Experts in 1971. The draft relating to non-international armed conflicts was aimed at developing common Article 3 by introducing therein some basic concepts concerning not only civilian medical personnel, but also on the protection of the wounded and sick, and of medical personnel, units and materials for their care, irrespective of whether these are military or civilian. (2)

    4625 This 1971 draft forms the basis of this Part.

    4626 It should also be recalled that the XIXth International Conference of the Red Cross (New Delhi, 1957) had expressed

    "the wish that a new provision be added to the existing Geneva Conventions of 1949, extending the provisions of Article 3 thereof so that:

    a) the wounded may be cared for without discrimination and doctors in no way hindered when giving the care which they are called upon to provide in these circumstances,
    b) the inviolable principle of medical professional secrecy may be respected,
    c) there may be no restrictions, other than those provided by international legislation, on the sale and free circulation of medicines, it being understood that these will be used exclusively for therapeutic purposes." (3)

    4627 These concerted efforts undertaken more than twenty years previously resulted in the adoption of this Part, whose object and purpose was clearly defined by a delegate of Committee II of the Diplomatic Conference:

    "The Committee's essential task was to make explicit what was implicit in the very simple general statement in Article 3 common to the Geneva Conventions [...] by formulating a number of derivative rules specifying the protection to be given to medical personnel, units and installations, the standard of care, and so forth." (4)

    4628 This Part reiterates the essential substance of Part II ' (Wounded, sick and shipwrecked) ' of Protocol I, which corresponds to it. The rules were negotiated on parallel lines, taking into account the particular context of each category of conflict.

    4629 In the drafts the ICRC proposed that each of these two Parts on the "Wounded, sick and shipwrecked", one in each Protocol, would open with definitions. (5) The question of these definitions was discussed at great length.

    4630 In fact, from the beginning there was no unanimous view about the whole question of having definitions; some delegations considered that definitions did not belong in an instrument relating to non-international armed conflicts and would merely complicate an understanding of the text. It was even considered to place these definitions in an annex to the Protocol. Despite such initial doubts, definitions were nevertheless scrupulously established and adopted by Committee [p.1405] II and the delegates endeavoured to achieve a degree of uniformity in the terminology used in the two Protocols. (6)

    4631 In the end the definitions were omitted from the final version of Protocol II as part of the proposal to simplify the text, put forward by the Pakistani delegation. (7) This was not because of controversies about matters of substance, but in a genuine attempt to simplify the text. The Part as a whole was not called into question, even though it was negotiated on the basis of definitions which were not adopted. The terminology used is identical to that of Protocol I and the definitions given there in Article 8 ' (Terminology), ' though of course they have no binding force in Protocol II, nevertheless constitute a guide for the interpretation of the terms. For this reason we will, in our commentary on the articles, often refer to those definitions.

    4632 Part III supplements Part II ' (Humane treatment). ' The right of the wounded, sick and shipwrecked to receive aid is a fundamental guarantee of humane treatment in a specific situation. As is the case in Part II ' (Humane treatment), ' Part III sets forth individual rights which are directly applicable to those entitled to them, without being dependent on bilateral arrangements being made between the two opposing parties.

    ' S.J. '


    * (1) [(1) p.1403] ' CE/7 'b, pp. 1-3;

    (2) [(2) p.1404] Ibid., pp. 30-38;

    (3) [(3) p.1404] Resolution XVII of the XIXth International Conference of the Red Cross, New Delhi, 1957;

    (4) [(4) p.1404] O.R. XI, p. 209, CDDH/II/SR.21, para. 43;

    (5) [(5) p.1404] See draft Art. 8, Protocol I, and Art. 11, Protocol II;

    (6) [(6) p.1405] This is evidenced by the explanatory notes given by the Rapporteur of Committee II on the report of the Drafting Committee, which read: "A number of the terms defined in draft Protocol II, article 11, were also defined in draft Protocol I, article 8, concerning which he had made a number of interpretative statements; those statements applied equally to the definitions in draft Protocol II, article 11, where the same words were used. The same words had, in fact, been used in the two sets of definitions wherever that was appropriate." O.R. XII, p. 260, CDDH/II/SR.79, para. 19;

    (7) [(7) p.1405] O.R. IV, p. 43, CDDH/427;