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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Art. 5. Chapter I : General provisions
-- DURATION OF APPLICATION OF THE CONVENTION
This Article originated in two provisions introduced in 1949: Article 5 of the Third
and Article 6 of the Fourth
Convention. Their object is to determine from what moment, and until when, the Conventions in question are applicable.
Grave disputes on the subject during the Second World War made the stipulation necessary in the Prisoners of War and Civilian Conventions. Certain belligerents, denying sovereignty, or even any legal existence, to the defeated enemy, claimed the right to deal as they wished with prisoners from the defeated country and to deprive them of their treaty safeguards.
For the sake of uniformity and with the idea of having each Convention complete in itself so far as possible, the International Committee of the Red Cross proposed to the Diplomatic Conference of 1949 that the First Convention should have a similar stipulation, in simplified form.
There was no need for a clause saying from what moment the Convention would apply. The persons it protects already enjoy its protection while they are with their own armed forces: combatants, as soon as they are wounded or sick, and medical personnel, as soon as they comply with the prescribed conditions.
[p.65] It was therefore sufficient to decide when it would cease to apply, and even this was only necessary in respect of those who fell into enemy hands. (1) It was not the close of hostilities that was taken as the decisive date, but the final repatriation of the protected persons. It is indeed quite possible that some wounded and medical personnel will be retained by their captors after military operations have ended. (2) The word "final" excludes the subterfuge of releasing the wounded as prisoners of war and replacing them in captivity under some other name.
It is clear, however, that the Convention will cease to apply to the wounded and sick from the moment they are cured. This does not result from the actual Article under review, but from the general structure of the Convention. While in enemy hands, the wounded and sick -- who are also prisoners of war -- enjoy protection under both the First and the Third Conventions. Once they have regained their health, only the Third Convention, relative to the treatment of prisoners of war, applies. (3)
* (1) [(1) p.65] The provisions which are bound up with the
actual existence of hostilities (protection of the wounded
in their own armed forces or on the battlefield,
protection of medical establishments against bombardment,
etc.) will, by reason of that very fact, have no further
application once hostilities have ended;
(2) [(2) p.65] Article 118 of the Third Convention provides
that "prisoners of war shall be released and repatriated
without delay after the cessation of active hostilities";
(3) [(3) p.65] See below, page 147;