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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. 34. Chapter V : Buildings and material
[p.277] ARTICLE 34
-- PROPERTY OF AID SOCIETIES
PARAGRAPH 1 -- TREATMENT AS PRIVATE PROPERTY
As in the 1929 Convention, the real and personal property of National Red Cross Societies and other societies, duly recognized and authorized to lend their services to the Medical Service of the armed forces (see Article 26
), are declared to be private property, and may never, therefore, be regarded as war booty, or even confiscated (see Regulations annexed to the Fourth Hague Convention of 1907, Article 46
This provision naturally applies only to property belonging to societies engaged in caring for the wounded and sick of the armed forces, and used in connection with the assistance lent by these societies to the Medical Service of the armed forces. Property used for other purposes, especially for aid to civilians, is not thereby deprived of protection, but is governed by other provisions of international law, in particular the Fourth (Civilians) Convention.
The property of the Red Cross Societies and other societies referred to above, in so far as it falls under the present Convention, is fully protected, however, whatever its nature and wherever it may be. Protection is thus extended to fixed establishments and mobile units, separate objects and vehicles, apparatus and pharmaceutical products, and no distinction is drawn between property in a building belonging to the Society and property in army premises. In the latter case, proof of ownership will no doubt have to be produced. National Red Cross Societies will therefore be well advised to mark their material with a distinctive emblem to indicate that it is their property, as proposed by the International Committee at the XIVth International Red Cross Conference.
[p.278] The Convention does not say that the material must be actually owned by the Red Cross Societies. (1) Article 34 therefore covers all material used by them, irrespective of ownership.
Red Cross Societies and other aid societies are thus, in the matter of medical material, in a very advantageous position as compared with the Medical Service of the armed forces.
In 1949 the above solution was accepted without question; but this was not the case in 1906 and 1929, when it was felt by some that as the aid societies were merged into the Medical Service, their material should be placed on the same footing as that of the forces; any difference in treatment might, it was said, induce the State to turn its hospitals into Red Cross establishments, to prevent their material from being captured.
This view was not endorsed, humanitarian considerations prevailing once again. It was admitted that aid societies, although closely connected with the State in time of war, retained their own personality and their status as voluntary and private institutions. The Rapporteur to the 1906 Conference, Louis Renault, remarked: "To admit that the material of aid societies should be treated as war booty would seriously affect the development of these societies and make it far more difficult for them to find the resources they require. Private subscribers would not feel encouraged to make the sacrifices needed for the purchase of material, if it was liable to be captured out of hand."
PARAGRAPH 2 -- LIMITATION OF REQUISITION
The material of Red Cross Societies and other aid societies, although placed everywhere and in all circumstances on the same footing as private property, is nevertheless not absolutely immune -- such is the sense of paragraph 2 of Article 34. Like all private property, it is subject to requisition -- a right which the belligerent acquires through his temporary control of the territory. If the material in question is necessary to the armed forces of the enemy, they may requisition it.
[p.279] The right to requisition is, however, subject to a twofold limitation: it presupposes, firstly, an urgent medical -- and not military -- need, and secondly, that proper arrangements are made for the care of the wounded and sick concerned. This latter rule really follows logically from the obligation, assumed by every belligerent, never to leave the wounded without assistance, but always to provide for their treatment. It was, however, just as well to stress this fundamental duty once more.
The right to requisition the medical material of a National Red Cross Society must therefore only be exercised as an exceptional measure, and with discretion, when it is absolutely necessary to do so in order to assist the wounded and sick. The 1929 Conference had rejected, as being difficult to apply in practice, the proposal that material thus requisitioned should only be used on the spot and restored as soon as it was no longer indispensable. This idea was not put forward again in 1949.
The consequences of such requisition are governed by Article 52 of the Hague Regulations
, which shows that a transfer of property is involved. Fair compensation must, however, be paid, and receipts given for all material handed over. The Occupying Power must likewise bear in mind the obligations imposed on it under Articles 55
of the Fourth Geneva Convention of 1949.
Since Article 34 of the First Geneva Convention, which we are discussing, has thus limited the right of belligerents to requisition the property of aid societies, it must be assumed that the right of seizure (2) is limited in the same way. Under Article 53, paragraph 2, of the Hague Regulations
the right of seizure could in any case be applied only in regard to means of transport, which must, moreover, be restored as soon as possible.
* (1) [(1) p.278] In the French text the term used is "biens"
(property, goods) and not "propriété" (property, estate).
In French law, the latter term necessarily implies full
ownership, whereas the former term does not. --
(2) [(1) p.279] There is a distinction in law between seizure
and requisition. Seizure applies primarily to State
property which is war booty; requisition only affects
private property. There are, however, certain cases
mentioned in Article 53, paragraph 2, of the Hague
Convention in which private property can also be seized;
but such seizure is only sequestration, to be followed by
restitution and indemnity, whereas requisition implies a
transfer of ownership;