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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.
This Article defines the status of a person who is wounded and then captured. The wounded soldier who falls into enemy hands is at one and the same time a wounded person who needs treatment, just as if he were not an enemy, and a combatant who is made a prisoner of war. In certain quarters in 1929 it was even desired to give a soldier captured solely by reason of his being wounded a special status more favourable than that of prisoner of war. But such a distinction, quite apart from the legal objections to which it would have given rise, would have involved clamant inequalities and practical difficulties of an insuperable nature. A wound entitles the wounded man to the necessary care and treatment, but one cannot conceive of its changing the status of a member of the armed forces who is captured. That is a principle which is [p.147] admitted in international law and which was already implicit in the Regulations annexed to the Fourth Hague Convention of 1907.
A. ' Law applicable '. -- That is why Article 14 states that "the provisions of international law" -- that is to say, customary law, as well as the principles of the Conventions relating to prisoners -- are to be applicable to the wounded who fall into enemy hands, These rules may vary, and have in fact already been amplified to a considerable extent. They are laid down in the first place in Chapter II of the Regulations on the Laws and Customs of War annexed to the Hague Conventions of 1899 and 1907, but have been amplified and rendered more explicit in the 1929 Convention relative to the treatment of prisoners of war, and improved still further in the Third Geneva Convention of 1949. They are applicable ipso facto to wounded prisoners. It is in fact the provisions of the Third Geneva Convention of 1949 which will usually be applicable. It is true, of course, that no express reference to that Convention occurs in the Article. But that is in order to make the provision more adaptable, especially where States which are parties to the First Convention are not parties to the Third, and also in the case of the latter Convention alone being revised.
It follows from the above considerations that a wounded or sick officer or soldier, who falls into the hands of an enemy who is a party to the First and Third Geneva Conventions, will enjoy protection under both Conventions until his recovery, the First Convention taking precedence over the other where the two overlap. After recovery, his lot will be governed solely by the Third Convention, even in the event of his again being wounded or falling sick. The point is one of academic rather than practical interest, since the safeguards which the Third Convention accords to prisoners of war are equivalent to those accorded by the First Convention, particularly in the matter of hygiene and medical treatment.
The position may be put in this way. There are two stages -- that of the combat and of its direct sequel, when the wounded of both sides are mingled together, and the stage of captivity, when the State in whose hands the captives are has to make provision for a lengthy period of detention. General stipulations, appropriate to a temporary situation and capable of being put into immediate operation, are applicable to the first stage. In the second stage, the provisions which are applicable [p.148] are those dealing with long-term organization, which can only take form and shape behind the lines and is bound to take time before it can become efficient. The First Convention relates primarily to the wounded and sick in armed forces ' in the field ', whereas the Third Convention regulates the treatment of prisoners of war, and includes a whole series of detailed provisions relating to the circumstances of their captivity. But the fact remains that the two stages overlap to a certain extent.
B. ' Preferential clauses '. -- The corresponding provision in the 1929 Convention (Article 2
), the first paragraph of which was identical with the present Article 14, contained a second paragraph, which left belligerents free to prescribe, for the benefit of wounded or sick prisoners, such arrangements as they might think fit over and above the existing obligations. This clause does not form part of the present Article 14, but is nevertheless still part of the Convention, having been taken over and restated at greater length in Chapter I (General Provisions), Article 6
(1). The Diplomatic Conference of 1949, in fact, alive to the necessity of having such a clause for all the different categories of persons protected by the four Conventions, gave it an identical form in each Convention and accordingly incorporated it in Chapter I.
In the 1906 Convention this clause loomed particularly large, because it was followed by examples of preferential measures which the Parties to the conflict were invited to take. It suggested, for instance, that belligerents should:
(1) deliver to each other, after an engagement, the wounded remaining on the battlefield;
(2) send back to their country, after rendering them fit to travel or after their recovery, the wounded or sick whom they do not wish to retain as prisoners of war;
(3) transfer to a neutral State, with its consent, the wounded and sick of the adverse Party for internment by the neutral State until the close of hostilities.
These examples were dropped in 1929, not because they were thought unnecessary or inopportune, but because the development of humanitarian law called for a different solution. When once, namely, it had [p.149] been decided in conjunction with the revision of the 1906 Convention to draft a separate Convention on the treatment of prisoners of war, it could be confidently left to the latter Convention to deal with a matter relating primarily to the lot of wounded prisoners.
The new Convention dealt at length, as the subject merited, with the repatriation of seriously wounded or seriously sick persons and their accommodation in neutral countries, giving to these arrangements an executory force which they had previously lacked. The provisions in question were still further developed in 1949 (Articles 109
-117 of the Third Geneva Convention).
The first of the specific preferential measures suggested to belligerents in the 1906 Convention, namely the immediate exchange of wounded left on the battlefield, was dropped in 1929; but the idea was taken up again in 1949 and embodied in Article 15, paragraph 2
C. ' Reservation with regard to Article 12
'. -- The 1929 text began with the words: "Except as regards the treatment to be provided for them in virtue of the preceding Article". This reservation has been replaced by the words: "Subject to the provisions of Article 12". The sense is similar; but the new wording is more general in character, and constitutes a reservation, not only with regard to the medical treatment which is to be provided prior to any other measure consequent upon the capture of the wounded person, but also with regard to the special protection to which all physically injured persons are entitled under Article 12
as a whole. This provision ensures that the First Convention shall take priority over the Third. The latter is to be applicable to the wounded and sick who are prisoners, only when all relevant obligations under the First Convention have been fulfilled. The reservation may thus be taken to refer, not only to Article 12
, but also to the first paragraph of Article 15
, which provides that the wounded and sick shall at all times, and particularly after an engagement, be searched for and collected, protected against pillage and ill-treatment, and given the requisite initial treatment. All these obligations must obviously be fulfilled before the provisions of the Third Convention become operative.
* (1) [(1) p.148] See above, page 65;
(2) [(1) p.149] See below, page 150;