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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.
-- APPLICATION OF THE CONVENTION BY NEUTRAL POWERS
Although this Article is new in the Geneva Convention, it is not new in international law. Article 15 of the Fifth Hague Convention of 1907
respecting the rights and duties of neutral Powers and persons in case of war on land stated: "The Geneva Convention applies to sick and wounded interned in neutral territory."
In the Draft Convention which was submitted to the Stockholm Conference in 1948, the International Committee of the Red Cross thought well to introduce the text which, without any notable change, has become Article 4. The Committee had several reasons for doing this.
Firstly, it seemed logical to insert into the Geneva Convention itself a provision which concerned its application.
[p.62] Moreover, the Hague text referred to the 1906 Geneva Convention. As the latter had already been revised in 1929, and was now being recast once again, the reference should obviously be to the most recent version. A general reference covering the whole Convention eliminated the need for special references in certain Articles.
Lastly, if there was a need to confirm a humane principle already admitted in international law and respected by neutrals during two world wars, its completion was no less needed. There was an obvious gap in Article 15 of the Fifth Hague Convention
: it mentions only the wounded and sick and ignores medical and religious personnel and the dead. Even though it may be admitted that by implication the 1907 provision covers all of them, it was preferable to say so clearly.
A similar provision to the one we are examining was introduced into the 1949 Prisoners of War Convention ( Article 4 B (2)
). It stipulates, with certain reservations, that personnel belonging to the armed forces of a belligerent who are interned by a neutral Power shall be given the benefit of the treatment which the Third Convention lays down for prisoners of war.
Further, a clause in the Convention which we are studying allows medical aircraft of Parties to the conflict to fly over the territory of neutral Powers and deals with the treatment of wounded persons who, under these conditions, arrive on neutral soil. (1)
Let us now examine the contents of Article 4 in greater detail.
The wounded and sick referred to are those mentioned in Article 13
: they must belong to the armed forces of a belligerent or to categories of persons considered as being on the same footing as members of such armed forces.
The medical and religious personnel referred to are those dealt with in Chapter IV of the Convention; they comprise not only the medical personnel proper but also, for example, the administrative personnel of medical units. The phrase "received or interned" in the territory of neutrals was deliberately selected in order to cover all cases which might arise through the application of the Fifth Hague Convention of 1907. The latter Convention provides for the internment of troops [p.63] who seek refuge in a neutral country (Article 11
) and of the wounded who are brought into its territory (Article 14, paragraph 2
). It does not, however, require the internment of escaped prisoners or of prisoners brought by troops taking refuge in such territory (Article 13
). In certain cases the neutral Power may authorize the passage of the wounded over its territory (Article 14, paragraph 1
Medical personnel need not necessarily be interned. According to the spirit of the Geneva Convention, they may be called upon for medical duty and allowed more or less complete freedom to enable them to perform it. If their presence is not or is no longer necessary to the wounded, they shall be returned to the belligerent on whom they depend.
The present Article introduces the principle of the application "by analogy" of the Geneva Convention by neutral Powers. The Convention, having been drawn up with a View to determining the treatment of enemies, contains a number of provisions which could only apply to belligerents -- as, for example, Article 14
dealing with capture, Articles 33, paragraph 2
, and 35, paragraph 2
, dealing with the seizure of property, and Article 8
dealing with the appointment of a Protecting Power. (3)
Some delegations at the 1949 Conference would have preferred an enumeration of the Articles which do not apply to neutral States, as was done in Article 4 B (2) of the 1949 Prisoners of War Convention
. An enumeration is justified in the Third Convention, whose object is to lay down regulations for the treatment of men who are interned; in the First Convention it would necessarily have been somewhat rigid and arbitrary, some of the Articles being partially applicable. The application of the Convention by neutral Powers is primarily a question of common sense, guided by a humane spirit. The interests of the wounded themselves will provide a touchstone in cases of doubt. The very fact of having employed an enumeration in the Third Convention made it unnecessary to do so in the First, as the wounded interned in neutral countries can claim the benefit of most of the provisions of the Third Convention.
The arrangement adopted has much in common with that which prevailed during the Second World War in regard to civilians of enemy [p.64] nationality in belligerent territory. On the proposal of the international Committee of the Red Cross, such persons were in most countries given the benefit of the 1929 Prisoner of War Convention, applied "by analogy".
Article 4 of the 1949 Prisoner of War Convention
leaves the door open for "any more favourable treatment which these Powers (neutrals) may choose to give" to internees. This reservation is so obvious that it may be considered as being implicit in Article 4 of the First Convention. In general, the Conventions represent minimum safeguards to be accorded to war victims, and the Powers are invited to act more generously.
* (1) [(1) p.62] See below, page 294;
(2) [(1) p.63] See also Article 37 of the First Geneva
Convention, below, page 294;
(3) [(2) p.63] Nevertheless, in cases where diplomatic
relations between a belligerent State and a neutral State
have been broken off, a third Power may act in a capacity
similar to that of a Protecting Power;
See the Commentary of 2016