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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

Commentary - Protection of medical units and transports

[p.1431] Article 11

-- Protection of medical units and transports

[p.1432] General remarks

4707 To implement the principle that the wounded and sick be protected and respected, as laid down in common Article 3 and reaffirmed in

Article 7

' (Protection and care) ' of this Protocol, the protection

of medical units and transports (1) is just as essential as the

protection of medical and religious personnel (Article 9

' Protection of medical and religious personnel ') and protection of

medical duties (Article 10

-- ' General protection of medical

duties '). Article 11 is basically inspired by Articles 19

and 21

the first Convention, but it is clearly also related to Articles 20

and 36

of the First Convention, Articles 22

, 23

and 24

of the

Second Convention, and Articles 18

, 21

and 22

of the fourth

Convention. In fact, this provision seeks to secure protection and

respect for all military or civilian medical transports, on land, in

the air, at sea or on lakes or rivers.

4708 In situations of international armed conflicts the protection granted by the Conventions in the articles mentioned above is

developed in Article 12

' (Protection of medical units) ' and 13

' (Discontinuance of protection of civilian medical units), ' as well

as in Section II ' (Medical transportation) ' of Part II of Protocol

4709 As regards Protocol II, the ICRC draft merely laid down the principle that medical units and transports must be protected,

without explicitly providing when such protection may cease, i.e.,

without fixing the limitations of this right. (2) The parallel

negotiation of the two instruments in Committee led the delegates to

adopt a paragraph 2 on the discontinuance of protection based on

Article 13

of Protocol I ' (Discontinuance of protection of civilian

medical units). ' The text produced by the Committee also included a

paragraph 3 regarding acts which should not be considered to be

hostile acts, in this respect following the example of Article 13

Protocol I ' (Discontinuance of protection of civilian medical

units) '. (3) This paragraph was not included in the version which

was finally adopted. (4) This simplification means the text is less

clear, for it is less explicit, but it does not restrict the scope of

the principle, and should not give rise to subjective and

far-reaching interpretations of the concept of hostile acts. (5)

Paragraph 1

4710 Paragraph 1 lays down the principle that protection and respect are due to medical units and transports.

[p.1433] 4711 The term "medical unit" is a generic term covering both permanent units, which stay where they are (hospitals, laboratories, equipment

depots etc.), and mobile medical units, which may be moved as

required (field hospitals, first aid posts, ambulances etc.). (6)

4712 The term "medical transports" means any land vehicle (cars, trucks, trains etc.), ship, craft or aircraft assigned to

transporting the wounded, sick and shipwrecked, medical and religious

personnel, and medical equipment. Protection applies for military and

civilian medical units and transports, whether they are permanent or

temporary, provided that they are exclusively assigned to medical

purposes; while they are so assigned, whether or not for an

indefinite period, depending on whether they are permanent or

temporary, medical units and transports may not be used for any

purposes other than medical ones. (7) The concept "medical purposes"

should be understood in a broad sense. It covers not only the care

given the wounded, sick and shipwrecked, but also any activities for

the prevention of disease, blood transfusion centres, rehabilitation

centres for medical treatment and dental treatment. (8)

4713 Medical units and transports must at all times:

1) be respected,

2) be protected,

3) not be the object of attack.

4714 The words "respect and protection" are part of the classical vocabulary of international humanitarian law. They already appear in

Articles 7

' (Protection and care) ' and 9

' (Protection of medical

and religious personnel) ' in this Part of the Protocol. (9) It

should be recalled that respect and protection imply not only the

obligation to spare the people and objects concerned, but also to

actively take measures to ensure that medical units and transports

are able to perform their functions and to give them assistance where

necessary. "To respect such units means, not to attack them or harm

them in any way", according to the [p.1434] commentary on Article 19

of the first Convention. Thus it was not necessary to mention that

medical units and transports may not be the object of attack. The

formula dates back to 1949; it endorses the expression "respect and

protect". The commentary points out that "this strengthening of the

general form of wording may not, however, be superfluous in view of

the increasing scale of aerial bombardment". (10)

4715 This remark is undoubtedly still just as valid today, but, as we have indicated before, it is unfortunate that the reference to

attacks is not also included in Article 9

' (Protection of medical

and religious personnel), ' even though this omission does not affect

the substance of the provision. (11)

4716 The obligation to respect and protect medical units and transports applies "at all times", (12) i.e., even when they are not

used to accommodate any wounded or other patients, or not for the

time being, though of course, only provided that they remain assigned

exclusively to medical purposes. (13)

4717 By making it possible to identify medical units or transports, the distinctive emblem renders that protection visible (Article 12

' Distinctive emblem '). The use of the distinctive emblem of the red

cross or the red crescent, and in general the conditions of use of

medical units and transports should be governed by the rules issued

by the competent authority to which they belong. Such control is

essential to prevent abuse and ensure the application of the rules of

protection.

4718 Finally, it should be noted that before definitively adopting Article 11 in Committee, the Conference waited for Section II

' (Medical transportation) ' of Part II of Protocol I to be adopted,

so as to make sure that Protocol II would not in any way clash with

Protocol I. (14) Article 11 covers indeed all medical transports on

land, in the air, and on water, but its succinct wording does not go

beyond expressing a general principle, while Protocol I is far more

detailed in this respect. In case of specific difficulties, in

particular to make sure that a given medical craft or aircraft is

properly protected, Protocol I may serve as a very useful guide and

provide practical solutions which may be relevant, by analogy, for

the implementation of the principle. (15)

[p.1435] Paragraph 2

' First sentence '

4719 Protection and respect for medical units and transports are permanent obligations: "at all times". However, there are some

exceptional cases in which protection for them may cease, namely, if

"they are used to commit hostile acts, outside their humanitarian

function".

4720 This paragraph reiterates Article 21

of the first Convention, with slight changes in the wording. In particular, Article 21

does

not refer to "hostile acts", but to "acts harmful to the enemy".

There is no difference of substance between these two terms. The

draft article provided by the Committee used the term "acts harmful

to the advers Party". (16) As all references to "parties to the

conflict" had been deleted from the text on the proposal of the

Pakistani delegation, (17) in order to eliminate any possibility of

an interpretation which would give any sort of recognition to the

insurgent party, the term "hostile acts" was finally adopted.

4721 The meaning is the same as in Article 21

of the first Convention: the acts concerned are those which are harmful to the adversary.

Whether an act is harmful or hostile must be judged objectively.

4722 Medical units and transports are under an obligation to remain strictly neutral, that is to say, that they should not in any way

interfere in military situations. However, it may happen that a

medical unit or transport, while strictly adhering to its duties,

unwittingly becomes a hindrance or a tactical obstacle. (18) Its

presence might incorrectly be interpreted as a hostile act, but this

does not mean that protection should cease. It only ceases if the

units or transports are used ' outside their humanitarian function. '

4723 Such examples can also be found in Article 13

' (Discontinuance of protection of civilian medical units), ' paragraph 2, of Protocol

I. Although they have no binding force in the context of Protocol II,

they may nevertheless help the interpretation thereof: (19)

"The following shall not be considered as acts harmful to the enemy:

(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;

(b) that the unit is guarded by a picket or by sentries or by an escort;

in the units;

(d) that members of the armed forces or other combatants are in the unit for medical reasons." (20)

[p.1436] 4724 As regards terminology, it should also be noted that the term "humanitarian duties", used in Article 21

of the First Convention,

was replaced in this article by the words "humanitarian function".

This change is a matter of drafting. The word "function" was found to

be more satisfactory, as this term applies not only to personnel, but

also to transports and buildings. Moreover, the term "tareas

humanitarias", used in the Spanish version, contains simultaneously

the concepts of duty and function.

' Second sentence ' (21)

4725 When medical units or transports commit a hostile act, they lose their right to protection, but in most cases they are entitled to be

given notice first: "Protection may, however, cease only after a

warning has been given, setting, whenever appropriate, a reasonable

time-limit, and after such warning has remained unheeded."

4726 Patients, wounded or sick, are not responsible for unlawful acts committed by personnel caring for them; therefore it is appropriate

to accord them guarantees of humane treatment. Moreover, the adverse

party may have made an error of judgment and the time-limit provides

the opportunity for correcting this; it also allows those responsible

to put an end to the acts which are considered as hostile acts, i.e.,

to correct them, or alternatively to take the wounded and sick to a

safe place. The adverse party must therefore order the unit or

transport to cease the hostile act and inform them how much time they

have before they may be attacked, if the warning has not been heeded.

4727 A "reasonable time-limit", is not defined: it is the time they need, depending on the circumstances, to change their approach, to

explain themselves if a mistake has been made, or to evacuate the

wounded and sick.

4728 The time-limit will be set "whenever appropriate". Article 21

of the first Convention refers to "all appropriate cases". In fact, this

mainly applies to situations in which there is some doubt regarding

the hostile character of a medical unit or transport. In some cases

it is not appropriate to allow a time-limit. The commentary on

Article 21

of the First Convention illustrates this possibility very

clearly by imagining a body of troops approaching a hospital and

being met by heavy fire from every window. (22)

' S.J. '

* (1) [(1) p.1432] For the definitions of the terms "medical units", "medical transports" and "medical transportation",

cf. infra, commentary para. 1 and note 7;

(2) [(2) p.1432] Cf. draft Art. 17;

(3) [(3) p.1432] O.R. XIII, p. 229, CDDH/II/287;

(4) [(4) p.1432] O.R. IV, p. 58, CDDH/427;

(5) [(5) p.1432] See infra, commentary para. 2, p. 1435;

(6) [(6) p.1433] See ' Commentary I ', pp. 194-195 (Art. 19);

(7) [(7) p.1433] The definitions given in Art. 11 of the draft produced by Committee II, which was not adopted, read as

follows:

"(c)'Medical units' means establishments and other units, whether military or civilian, organized for medical

purposes, namely the search for, collection,

transportation, diagnosis or treatment -- including first

aid treatment -- of the wounded, sick and shipwrecked, and

the prevention of disease, which belong to or are

recognized and authorized by a party to the conflict.

Medical units may be fixed or mobile, permanent or

temporary.

(d)'Medical transportation' means the conveyance by land, water or air of the wounded, sick and shipwrecked,

medical and religious personnel and medical equipment and

supplies protected by this Protocol.

(e)'Medical transport' is a means of transportation, be it military or civilian, permanent or temporary,

assigned exclusively to medical transportation and under

the control of a party to the conflict."

Cf. O.R. XIII, pp. 303-304, CDDH/235/Rev. 1;

(8) [(8) p.1433] Rehabilitation centres providing medical treatment and dental treatment were explicitly included

under medical purposes: cf. ibid., p. 253, para. 20. This

clarification was given on Art. 8, Protocol I, but also

applies for Protocol II; cf. O.R. XII, p. 260,

CDDH/II/SR.79, para. 19;

(9) [(9) p.1433] See commentary Art. 7, supra, p. 1407;

(10) [(10) p.1434] Cf. ' Commentary I, ' p. 196;

(11) [(11) p.1434] Cf. commentary Art. 9, supra, p. 1417. We should call to mind the definition of attacks given in

Art. 49, para. 1, o Protocol I: "'Attacks' means acts of

violence against the adversary, whether in offence or

defence." See supra, p. 602;

(12) [(12) p.1434] See commentary Art. 4, para. 2(b), on the prohibition of collective punishments and "reprisals" in

Protocol II, supra, p. 1374;

(13) [(13) p.1434] See supra, p. 1432;

(14) [(14) p.1434] Cf. O.R. XI, p. 603, CDDH/II/SR.53, para. 37;

(15) [(15) p.1434] Cf. the articles of Part II, Section II, Medical transportation", of Protocol I, and the

commentary thereon, supra, p. 245;

(16) [(16) p.1435] O.R. XIII, p. 229, CDDH/II/287;

(17) [(17) p.1435] An oral proposal in plenary meeting, cf. O.R. VII, p. 113, CDDH/SR.51, paras. 43-46;

(18) [(18) p.1435] Cf. ' Commentary I ', pp. 200-201 (Art. 21);

(19) [(19) p.1435] Para. 3, which was deleted during the final stage of the adoption of Protocol II, provided an a

contrario explanation of the nature of hostile acts by

giving a list of acts which should not be considered to be

hostile. See supra, p. 176;

(20) [(20) p.1435] See also O.R. XIII, p. 229, CDDH/II/287, ad Art. 17, para. 3;

(21) [(21) p.1436] The commentary on this second sentence is ased on the commentary on Art. 21 of the First

Convention, ' Commentary I ', p. 201;

(22) [(22) p.1436] Cf. ibid. p. 202;