Treaties, States Parties and Commentaries
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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- CONDITIONS NOT DEPRIVING MEDICAL
UNITS AND ESTABLISHMENTS OF PROTECTION
Article 22 -- unchanged except for sub-paragraph (5) which is new -- was adopted without discussion. It sets out five conditions not depriving a medical unit or establishment of protection, or, in other words, [p.203] which must not be regarded as acts harmful to the enemy. These are particular cases where a medical unit retains its character as such, and its right to immunity,in spite of certain appearances which might have led to the contrary conclusion or at least created some doubt. The object of the provision was to avoid disputes which arise only too easily between opposing parties.
This list is not, in our opinion, to be regarded as comprehensive, even though the customary "in particular" has been purposely omitted. Cases can be imagined where the good faith of the unit remains beyond question in spite of certain appearances to the contrary. For each party, the question will always be one of good faith.
(1) Medical personnel have the right to bear arms and may, in case of need, use them in their own defence or in that of the wounded and sick in their charge. That is the most important of the provisions which we are studying here. If a medical unit is attacked, in violation of the Convention, its personnel cannot be asked to sacrifice themselves without resistance. Quite apart from the above extreme case, it is clearly necessary for medical personnel to be in a position to ensure the maintenance of order and discipline in the units under their charge.
But such personnel may only resort to arms for purely defensive purposes, and in cases where it is obviously necessary. They must refrain from all aggressive action and may not use force to prevent the capture of their unit by the enemy. (1) Otherwise they would be violating the rules governing their status.
(2) In the absence of armed orderlies a medical unit may be protected by a picket, by sentries or by an escort, or, in other words, by a small number of armed soldiers.
How should the expression "in the absence of armed orderlies" be interpreted? Does it mean that the simultaneous presence of armed orderlies and a military guard is prohibited? A literal interpretation would lead one to suppose that this was so. We do not think, however, that this can possibly have been the intention of the authors. The correct interpretation of the phrase is a matter of common sense and good faith.
What was intended was that the guard of a medical unit would, as a rule, be provided by its own personnel, but that armed soldiers would be [p.204] brought in to help in exceptional cases, when this was necessary, e.g. where the orderlies had no weapons of their own or were too few in numbers, or for any other reason. The provision does not mean that a belligerent may dispute the immunity of a medical unit because certain of its orderlies are armed in addition to its having a picket or sentries. The expression should therefore be taken to mean: "in the absence of armed orderlies in sufficient numbers to ensure the protection of a medical unit in any given case".
Although this is not expressly indicated in the text, it is clear that a military guard attached to a medical unit may use its weapons in case of need, just as armed orderlies may, in order to ensure the protection of the unit. One cannot see what real use a guard would be if this were not so. But, as in the case of the orderlies, the soldiers may only act in a purely defensive manner, and may not oppose the occupation or control of the unit by the enemy.
What is the status of such soldiers? The 1906 Convention (Article 9, paragraph 2
) placed them on exactly the same footing as medical personnel, on condition that they were provided with regular instructions (Article 8, sub-paragraph (2)
). They were entitled to the same protection as medical personnel and were not to be treated as prisoners of war.
The 1929 Conference firmly rejected the above arrangement, regarding it as impracticable. It had not been respected during the First World War and had given rise to abuses. The provision of regular instructions appeared to be impossible in practice.
Their status will therefore be that of ordinary members of the armed forces, although the mere fact of their presence with a medical unit will shelter them from attack. This practical immunity is, after all, only reasonable, since they have no offensive role to play and are there only to protect the wounded and sick. But in case of capture they will be prisoners of war.
(3) Wounded arriving in a medical unit may still be in possession of small arms and ammunition, which will be taken from them and handed to the proper service; but this may take a certain time. Should a unit be visited by the enemy before it is able to get rid of these arms, it must not be liable to be accused of bad faith as a result.
(4) The presence with a medical unit of personnel and material of the Veterinary Service is authorized, even where they do not form an [p.205] integral part of such unit. This provision, which dates from 1929, was introduced at the suggestion of the United States Delegation, which pointed out that veterinary personnel were attached to medical units in the American Army. (2)
A proposal, made by another delegation in 1929, to place the Veterinary Service on the same footing as the Medical Service was, on the other hand, rejected.
Speaking generally, the provision in question appears to have lost some of its importance owing to the fact that modern armies are mechanized.
(5) The fifth provision, added in 1949, is very important. It lays down that a medical unit or establishment is not to be deprived of protection when its humanitarian activities or those of its personnel extend to the care of civilian wounded or sick. Establishments protected by the First Geneva Convention, and catering for military wounded or sick, are thus authorized to take in civilians as well, should they require treatment. This clause has its counterpart in Article 19, paragraph 2
, of the Fourth Geneva Convention, which authorizes civilian hospitals to shelter and treat military wounded and sick.
The innovation was unavoidable, in view of the character which modern warfare -- especially aerial warfare -- has taken on; military and civilians may now be struck down on the same spot and by the same act of war, and must in such cases be able to be treated by the same orderlies and accommodated in the same buidings. This clause, which merely sanctions what is actually done in practice, was adopted without opposition.
Since a soldier, whose particular function is to kill, is entitled when wounded to the compassion of his actual enemy, how can an inoffensive civilian be any less deserving of such compassion?
* (1) [(1) p.203] It is, on the other hand, perfectly legitimate
for a medical unit to withdraw in the face of the enemy;
(2) [(1) p.205] The English text of the 1949 Convention, which
is, of course, as authentic as the French text, uses the
expression "veterinary service" for the French phrase
"service vétérinaire". It should be noted, however, that
in the United States of America this expression has a much
wider meaning than in French, covering not only the
personnel who treat the animals, but also the
representatives of the Quartermaster's branch who are
responsible for checking the condition of certain
foodstuffs. Thus, the following passage may be found in
Webster's Dictionary (Volume II, page 2838, 1934 edition):
"Veterinary Corps. A component of the Medical Department
which concerns itself with the care and health of the
animals in the military establishment, and with the
inspection and certification of food supplies of animal
origin for the troops.";
See the Commentary of 2016