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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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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.
-- DISCONTINUANCE OF PROTECTION
OF MEDICAL ESTABLISHMENTS AND UNITS
A. ' Acts harmful to the enemy. ' -- The protection to which medical establishments and units are entitled cannot cease unless they are used to commit acts harmful to the enemy. The wording adopted by the Diplomatic Conference of 1949 was intended to make it clear that protection could only cease in the one case mentioned above, whereas in 1929 it had merely been stated that protection would cease if such acts were committed.
In 1949, as in 1929, it was considered unnecessary to define "acts harmful to the enemy" -- an expression whose meaning is self-evident and which must remain quite general. (1)
While the International Committee of the Red Cross shared this view, it had prepared an alternative wording expressing the same idea in case the Conference should wish to be more explicit. We quote it here, as we think it may throw light on the meaning to be attached to the words "acts harmful to the enemy". It reads as follows: "acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations".
Such harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or [p.201] ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack. The sense will become still clearer when we consider Article 22
which quotes a series of conditions which are not to be regarded as being harmful to the enemy.
One thing is certain. Medical establishments and units must observe, towards the opposing belligerent, the neutrality which they claim for themselves and which is their right under the Convention. Being placed outside the struggle, they must loyally refrain from all interference, direct or indirect, in military operations. An act harmful to the enemy is not only to be condemned for its treacherous nature, but also because the life and security of the wounded may be very seriously affected by its consequences.
The Diplomatic Conference of 1949 stated specifically that protection could only cease in the case of harmful acts committed by the units "outside their humanitarian duties". It is possible for a humane act to be harmful to the enemy, or for it to be wrongly interpreted as so being by an enemy lacking in generosity. Thus the presence or activities of a medical unit might interfere with tactical operations; so might its lights at night. It was stated, for example, at the Conference, that the waves given off by an X-ray apparatus could interfere with the transmission or reception of wireless messages by a military set, or with the working of a radar unit.
B. ' Warning and time limit. ' -- The corresponding Article of the 1929 Convention merely provided that the protection to which medical units and establishments were entitled would cease if use were made of them to commit acts harmful to the enemy. The 1949 Conference added a further sentence with the object of tempering the possible consequences of too strict an application of the above principle. Safeguards had, in fact, to be provided in order to ensure the humane treatment of the wounded themselves, who could not be held responsible for any unlawful acts committed.
It is thus stipulated that protection may cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.
The enemy has therefore to warn the unit to put an end to the harmful acts and must fix a time limit, on the conclusion of which he may open [p.202] fire or attack if the warning has not been complied with. The period of respite is not specified. All that is said is that it must be reasonable. How is it to be determined? It will obviously vary according to the particular case. One thing is certain, however. It must be long enough either to allow the unlawful acts to be stopped or for the wounded and sick who are present with the unit to be removed to a place of safety. The respite will also give the unit an opportunity of replying to an unfounded accusation and clearing itself.
As we have seen, a time limit is to be named "in all appropriate cases". There might obviously be cases where no time limit could be allowed. Suppose, for example, that a body of troops approaching a hospital were met by heavy fire from every window. Fire would be returned without delay.
* (1) [(1) p.200] The Diplomatic Conference also quite rightly
discarded the expression "acts not compatible with their
humanitarian duties" which the XVIIth International Red
Cross Conference had proposed substituting for "acts
harmful to the enemy". Fortunately, however, the notion of
humanitarian duties was retained in addition;
See the Commentary of 2016