Traités, États parties et Commentaires
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Commentaire of 2016 
Article 15 : Search for casualties. Evacuation
Text of the provision*
(1) At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
(2) Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield.
(3) Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1476  Article 15 complements Article 12 and sets out certain core obligations on Parties to an international armed conflict vis-à-vis the wounded and sick. Obligations similar to those in Article 15 are contained in the Second Convention, the Fourth Convention, the Additional Protocols and customary international humanitarian law.[1] In particular, Article 15 fleshes out the general obligation laid down in Article 12 to protect the wounded and sick in all circumstances. Thus, Article 15(1) imposes an obligation ‘to search for and collect’ the wounded and sick, in order to remove them from the immediate danger zone and to enable them to receive the necessary medical treatment. Paragraph 1 also imposes certain obligations with regard to the dead. Paragraph 2 provides for arrangements to be made, for example a suspension of fire, to facilitate the execution of the obligations in paragraph 1. Lastly, paragraph 3 envisages such arrangements in particular situations, namely with respect to besieged and encircled areas.
1477  Article 15 is closely related to the original regime of legal protection for the wounded and sick on land as it was laid out in the 1864, 1906 and 1929 Geneva Conventions. Thus, like Article 12, Article 15 applies only during international armed conflict and only to the wounded and sick (and dead) who are members of the armed forces or otherwise entitled to prisoner-of-war status.
1478  Today, however, the obligation to search for and collect the wounded and sick, including civilians, is part of customary international humanitarian law, applicable in both international and non-international armed conflict.[2] The same holds true for the obligations to provide the wounded and sick with medical care and attention[3] and to protect them against pillage and ill-treatment.[4] Moreover, customary international humanitarian law today imposes obligations on the Parties to an armed conflict to search for and collect the dead,[5] to prevent them from being despoiled,[6] and to dispose of them in a respectful manner.[7]
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B. Historical background
1479  The obligation to collect the wounded and sick has been part of international humanitarian law since its inception as treaty law in 1864.[8] This is only logical, given that Henry Dunant’s proposal for an international convention to ameliorate the condition of wounded and sick soldiers was inspired by the appalling conditions he witnessed on the battlefield of Solferino, where some 40,000 fallen Austrian, French and Italian soldiers lay unattended.[9] The provision was expanded upon in the 1906, 1929 and 1949 Geneva Conventions.[10] The basic humanitarian rationale has, however, remained constant: that the wounded and sick must not be left to suffer without medical care.
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C. Scope of application
1480  Article 15 applies ‘at all times’ to the ‘Parties to the conflict’ during an international armed conflict. More specifically, it applies in relation to the wounded and sick as defined by Articles 12 and 13 and to the dead falling within the scope of the First Convention.
1481  The 1952 commentary asserted that ‘Article 15 applies exclusively to operations which take place at the front’.[11] Articles 12 and 15 are often perceived as regulating two distinct situations. According to this view, Article 12 would apply to the ‘rear’ and to situations where the wounded and sick are in the power of a Party to the conflict, while Article 15 would be confined to the front line of combat and to the area ‘between the lines’.[12] However, while in practice these are the typical fields of application, neither of the provisions is legally confined in such a way. Article 12(2) is the exception, as the text explicitly requires the wounded and sick to be in the power of a Party to the conflict.[13] The wording in Article 15(1) – ‘[a]t all times, and particularly after an engagement’ – rather suggests a broad interpretation and does not imply any geographical limitation. It would be inconsistent with the purpose of Article 15, which is to ensure that the wounded and sick receive the medical care their condition requires, if they had to be collected only in the actual zone of combat, which in any case defies a clear-cut definition or geographical delimitation. Especially in the context of contemporary armed conflicts, where there is often no front line in the traditional sense and where hostilities frequently shift from one location to another, such a qualification would be unduly restrictive.[14] Thus, even though the wording ‘particularly after an engagement’ in paragraph 1, ‘battlefield’ in paragraph 2 and ‘besieged or encircled area’ in paragraph 3 indicates that the combat zone is the primary field of application of Article 15, this reflects a pragmatic emphasis and not a legal limitation. Therefore, the territorial scope of application of Article 15 follows that of the First Convention as a whole in respect of persons who are wounded or sick as a result of the conflict, or whose access to medical treatment or care is affected by the conflict.
1482  That said, the standard of medical care that is owed in a given situation may vary depending on where the wounded and sick are found. Thus, it is clear that the kind of medical care that can be expected under secure conditions, for example when the wounded and sick are in a hospital, cannot be expected in close proximity to the combat zone, where the obligation to provide care typically concerns the administration of first aid. Under combat conditions more than that would appear to be unrealistic. Thus, Article 15(1) will require different kinds and levels of care in the immediate danger zone compared to those in the more secure conditions of a hospital further away from this zone, where other resources in terms of medically qualified personnel and equipment are available.
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D. Paragraph 1: Search, collection and care
1. The obligation to search for and collect the wounded and sick
1483  Under paragraph 1, Parties to an armed conflict are obliged to search for and collect the wounded and sick. The two obligations are complementary: in order to collect the wounded and sick, logically one must first search for them. The purpose of this provision is to remove the wounded and sick from the immediate danger zone and to enable them to receive adequate medical treatment as rapidly as possible and under better and more secure conditions.
1484  It is therefore logical to understand the seemingly distinct obligations of ‘to search for’ and ‘to collect’ as a single obligation to carry out search and rescue activities. Likewise, it is evident that merely collecting the wounded and sick without a corresponding obligation to evacuate them to a more secure place would be meaningless, particularly in the light of the well-established medical understanding that treatment within the first hour of injury often increases the likelihood of survival exponentially.[15] Therefore, regardless of the specific language used, the obligation in each case entails search, collection and evacuation. Accordingly, the rule as formulated in the ICRC’s study on customary international humanitarian law has not added a new dimension to this obligation; rather, by including a mention of ‘to evacuate’, it merely specifies an important aspect of this obligation that has been part and parcel of previous references to the obligation to search and collect.[16]
1485  The obligation to search and collect, i.e. to carry out search and rescue activities, is an obligation of conduct. This character of the obligation is made clear by the wording ‘take all possible measures’. As such, it is to be exercised with due diligence.[17] Precisely what due diligence requires in a given situation depends on the elements set down in the primary norm and on the circumstances.[18] The relevant point of reference is what would be expected of a reasonable commander under the given circumstances.[19] In addition to the timing of search and rescue activities, this applies to the kind of measures to be taken, such as the number of suitably qualified personnel and the type of equipment to be deployed.
1486  The following general parameters of the obligation to search and collect can be discerned. First, searching for and collecting the wounded and sick is a continuous obligation. As indicated by the wording ‘at all times’, it applies for the duration of the entire armed conflict. This does not mean, however, that Parties must search actively for the wounded and sick at all times, as that would be unrealistic. Yet whenever there is an indication that there may be wounded or sick people in an area, and circumstances permit, a reasonable commander should commence search and rescue activities. With regard to the precise point in time at which a duty to take all possible measures arises, the International Court of Justice held in the Application of the Genocide Convention case that ‘a State’s … duty to act, arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk …’ (emphasis added).[20] In this regard, Article 15(1) imposes an obligation to take steps ‘particularly after an engagement’ because of the likelihood that wounded, sick or dead persons may be present at that time. The term ‘engagement’ describes any kind of combat activity that may result in persons being wounded, sick or killed. Hence, it can be inferred that unless there are clear indications that combat activity has not given rise to any wounded, sick or dead, search and rescue activities are normally required after every engagement.
1487  Second, the measures that must be taken in each case have also to be determined on the basis of what may reasonably be expected. A variety of factors may need to be considered, which may include security considerations and the availability of (medical) personnel and of medical and other rescue equipment, in addition to such factors as the terrain and weather conditions. There are times when security considerations may, at least temporarily, make the obligation to search for the fallen impracticable. There will be cases which exceed the limits of what the medical personnel can be expected to do, however great their courage and devotion. It is for this reason that the obligation in the article is not absolute and that it provides that ‘Parties to the conflict shall, without delay, take all possible measures…’. The obligation to act without delay is strict, but the action to be taken is limited to what is feasible, in particular in the light of security considerations. The military command must judge reasonably and in good faith, based on the circumstances and the available information, what is possible and to what extent it can commit its medical personnel. In all cases, the operation must be conducted in full compliance with the principle of non-discrimination.
1488  Third, given that the obligation to search for and collect applies ‘at all times’, it applies even during an engagement. However, it may at times be difficult to strike a balance between the acceptable level of risk to one’s own life (or the lives of medical personnel) and performing search, collection and evacuation activities as rapidly as possible. That said, if during an engagement on the ground it becomes apparent that there are wounded soldiers in the area and if a Party to the conflict can locate and evacuate them without any major risk to its personnel, it would be required to do so. Especially during ongoing hostilities, when there is an increased likelihood that people will be wounded, the quick delivery of first aid is essential and often life-saving. The urgency of the task needs to be taken into consideration when deciding on whether to conduct search and rescue activities. Article 15 therefore emphasizes that search and rescue activities have to be commenced ‘without delay’, i.e. as soon as possible. The relevant reference point, therefore, is not only ‘after every engagement’ but rather every time there is reason to believe that there are wounded and sick people in the area and as soon as circumstances permit.[21] This reading is confirmed by Article 15(1) itself, which by using the word ‘particularly’ clarifies that the obligation is not in any way confined to post-engagement situations.
1489  Fourth, logically, a greater number of wounded and sick people may require greater search and rescue resources than a smaller number. A similar logic applies for search and rescue activities carried out in difficult terrain. If significant resources in terms of personnel and equipment are available, their deployment would be required insofar as it would be reasonable to use them. This is especially relevant when the known or suspected casualties are the result of an attack by air or other long-range/stand-off assets. In such cases, a commander may know or expect that the attack will result in casualties, but it may not be feasible for the attacking force to engage in search and rescue activities.
1490  Fifth, the Parties to an international armed conflict are the ones responsible for searching for and collecting the wounded and sick. However, Article 15 does not specify who has to carry out these activities. The typical scenario that paragraph 1 envisages involves soldiers or military medical personnel carrying out search and rescue activities, although the Convention also provides for the possibility of civilians helping to collect and care for the wounded and sick.[22] In situations in which multinational or coalition forces are engaged as Parties to a conflict, it may also mean that a Party that has not participated in a particular engagement nevertheless needs to assist in search, collection and evacuation activities if it is present in the area of an engagement. Armed forces remain responsible for search activities; however, those lacking the means to evacuate the wounded and sick should rely on external help. Practice shows that the ICRC in particular has frequently engaged in the evacuation of the wounded and sick in a variety of conflict settings.[23] Therefore, a Party to the conflict, knowing that wounded and sick people are in the vicinity, may be required, at a minimum, to inform other actors, especially neutral humanitarian organizations, of their presence and, if possible, to provide more detailed information (geographical coordinates) on their exact whereabouts. In addition, an offer of services from impartial humanitarian organizations to collect or evacuate the wounded and sick and the dead must not be refused on arbitrary grounds.[24] In practice, such organizations will seek the consent of the Parties to the conflict. This interpretation of paragraph 1 is based on the text, which explicitly requires Parties ‘to take all possible measures to search for and collect the wounded and sick’ (emphasis added) and also follows from the purpose of paragraph 1.
1491  Lastly, there may be limits as to what can be expected in terms of search, collection and evacuation in certain circumstances, for example if one side in an armed conflict engages exclusively in long-distance (aerial) operations, without any forces on the ground. Still, at a minimum, after an engagement and as far as military considerations permit, the geographical location of the (aerial) attacks should be disclosed to third actors, namely impartial humanitarian organizations or other States that are in the vicinity and that can begin evacuation activities, normally with the agreement of the Party under whose jurisdiction the wounded are found. It would also appear essential for the Party that conducted the attacks to guarantee in advance that it will not attack while such activities are ongoing.
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2. The obligation to protect the wounded and sick against pillage and ill-treatment
1492  Parties to the conflict are obliged to (‘shall’) protect the wounded and sick against pillage and ill-treatment. The 1906 and 1929 Geneva Conventions contained the same obligation.[25] The obligation to protect in Article 15(1) is closely related to the obligation to respect and protect in Article 12(1), but Article 15(1) identifies concretely some of the dangers against which the wounded and sick are to be protected.
1493  Owing to their medical condition, the wounded and sick are particularly vulnerable to various kinds of ill-treatment. The obligation to protect them directly addresses this vulnerability and logically, therefore, ill-treatment should be interpreted broadly. In this light, the Parties to the conflict must take all possible measures to protect the wounded and sick against any form of ill-treatment, in particular the types of conduct listed in Article 12(2) and Article 50.
1494  ‘Pillage’ can be defined as the appropriation or obtaining of public or private property by an individual without the owner’s consent, in violation of international humanitarian law.[26] The appropriation or obtaining of the property is not necessarily done by force or violence but is carried out without the owner’s implied or express consent.[27]
1495  The prohibition of pillage covers both organized pillage, such as authorized or ordered forms of pillage, and individual acts.[28] Pillage can be carried out either by combatants or by civilians.
1496  It is important to distinguish between the unlawful appropriation of property that amounts to pillage, on the one hand, and the appropriation of property that is considered lawful under international humanitarian law, on the other hand. First, there is a recognized right in international armed conflict to capture as war booty any movable property belonging to the enemy State.[29] Booty of war covers all types of enemy movable public property that can be used for military operations, such as arms and munitions. If individuals were to take these types of public goods from a wounded or sick person on the battlefield, it might not amount to pillage if it is handed over to the State. If such goods are taken for private use, however, that would constitute pillage and would contravene the prohibition in Article 15. Second, in the conduct of hostilities, there are situations of lawful appropriation of property that are derived from Article 23(g) of the 1907 Hague Regulations. That article allows for the seizure of enemy property when such seizure is imperatively demanded by the necessities of war. Other than these listed exceptions,[30] appropriation of property during armed conflict without the consent of the owner constitutes pillage.[31]
1497  Article 15 refers specifically to the pillage of the wounded and sick, i.e. the unlawful appropriation of their property. The taking of property belonging to wounded or sick persons without their consent, unless it falls within one of the listed exceptions of legal appropriation of private and public property under the law of armed conflict, is prohibited by Article 15.
1498  Paragraph 1 does not specify against whom the wounded and sick must be protected. However, in the light of the purpose of this provision, and given that the wording of paragraph 1 does not contain any restrictions, they must be protected against ill-treatment or pillage no matter by whom committed. Thus, Parties to an armed conflict are obliged to protect the wounded and sick against ill-treatment and pillage by their own and enemy forces, as well as by civilians.
1499  The obligation to protect the wounded and sick is an obligation of conduct, to be carried out with due diligence. As far as protection against a State’s own forces is concerned, proactive steps must be taken to prevent any form of ill-treatment or pillage, including by ensuring that armed forces receive proper instruction and by punishing abuses. On the battlefield, Article 15 requires a Party to an armed conflict to guard the wounded and sick in order to prevent their ill-treatment or pillage. In case medical personnel need to resort to the use of their weapons in order to defend the wounded and sick in their charge against such acts, they do not thereby forfeit their protected status.[32]
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3. The obligation to ensure adequate care of the wounded and sick
1500  By virtue of paragraph 1, Parties to an armed conflict are under an obligation to ‘take all possible measures … to ensure … adequate care’ of the wounded and sick.
1501  In view of the wording ‘particularly after an engagement’, it appears that the typical – albeit not the only – situation that Article 15(1) envisages is the delivery of first aid on the battlefield. As noted, first aid is essential and often life-saving.[33]
1502  The obligation to ensure adequate care entails taking steps in advance to put in place the medical supplies and personnel necessary for the care of the wounded and sick under the anticipated conditions of hostilities. That is, it implies a double obligation, not only to provide care, but also to ensure that care can be provided. Given that medical care may have to be administered in the battle space after or possibly even during an engagement, it is clear that the Convention does not impose the same standard of treatment as would be required once the wounded and sick have been transferred to a hospital or to a more secure medical facility.
1503  The wounded and sick must receive the medical care and attention that their condition requires.[34] Even though medical care in accordance with the highest medical standards would be the most desirable, Article 15 requires that care be ‘adequate’. The exhortation to take all possible measures demands that Parties to a conflict do everything that can reasonably be expected of them in the circumstances to provide appropriate care. The kind of medical treatment that can reasonably be expected in a given situation depends on the availability of qualified personnel and on whether medical care is administered by doctors or paramedics or by ordinary soldiers or other persons without any medical training. The absence of qualified medical personnel may not, however, justify a failure to provide care, which must be provided with whatever resources are available.
1504  The relevant standards and procedures may change over time and there may be differences from country to country.[35] Nevertheless, some general guidance regarding the applicable standards of medical ethics and professional medical conduct may be derived from universally applicable, general stipulations and documents adopted by the World Medical Association (WMA).[36] There are many studies on the type of equipment and techniques that medical personnel should use and on the procedures they should follow. Again, it must be underscored that the provision of care must always be in accordance with the applicable standards of medical ethics.[37]
1505  The Eritrea-Ethiopia Claims Commission held that ‘the requirement to provide … medical care during the initial period after capture must be assessed in light of the harsh conditions on the battlefield and the limited extent of medical training and equipment available to front line troops’.[38] Caring for the wounded and sick may give rise to an array of questions. Thus, it may also be necessary to distinguish between decisions that need to be taken by a military commander, in which case the relevant point of reference will be a reasonable military commander, and decisions that need to be taken by a doctor, which are to be measured against the standard of a reasonable medical practitioner.[39]
1506  As noted above, the obligation to ‘ensure’ the ‘adequate care’ of the wounded and sick implies having the necessary personnel and equipment in place before the outbreak of an armed conflict, i.e. it requires the establishment of a medical service. Furthermore, the considerations relating to the obligation to have medical services discussed in the commentary on Article 12 of the First Convention also apply, mutatis mutandis, to Article 15.[40]
1507  The obligation to care for the wounded and sick also includes the provision of other – similarly essential – forms of non-medical care, such as food, shelter, clothing and hygiene. This is because the exclusively medical treatment of a wound or sickness is not sufficient to ameliorate the condition of the wounded and sick. Indeed, it would be meaningless to provide medical care if food, shelter, clothing and hygiene were denied. Hence, the provision merely of medical care would not qualify as ‘adequate care’ because the wounded and sick are unlikely to recover if their other basic needs are not met. Accordingly, by virtue of the obligation to ensure adequate care, Parties are under a due diligence obligation to provide the wounded and sick also with food, shelter, clothing and hygiene items.
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4. The obligation to search for the dead and to prevent their being despoiled
1508  Paragraph 1 stipulates two distinct obligations regarding the dead, namely to search for them and to prevent their being despoiled. These obligations are important in ensuring respect for the dignity of the dead, which is crucial, not least because disrespect for the dead might set off a cycle of barbarity.[41] In addition, the search for and collection of the dead helps to prevent people from going ‘missing’. The obligation to search for the dead in international armed conflict was first codified in the 1929 Geneva Convention on the Wounded and Sick.[42] The obligation to protect the dead ‘from robbery and ill treatment’ had already been included in the 1906 Geneva Convention.[43]
1509  The two obligations laid out in paragraph 1 in relation to the dead are similar to the obligations to search for the wounded and sick and to protect them against pillage and ill-treatment.[44] In both cases, they are obligations of conduct. This may include permitting and facilitating the search for the dead by other actors, notably impartial humanitarian organizations. In practice, the ICRC has frequently been engaged in the collection of the dead.[45] A Party may not arbitrarily withhold consent for such organizations to carry out collection and evacuation activities.[46] Moreover, in situations in which Parties’ resources in terms of personnel and equipment are scarce and where there are dead and wounded soldiers in the area, the wounded and sick must be given priority.
1510  Although Article 15 states an obligation to search for the dead, that obligation logically also comprises their collection.[47] The obligation to search for and collect the dead is complemented by the obligations set forth in Article 17 to identify them, ensure their honourable burial, and mark their graves. These measures aim to avoid people going missing.[48]
1511  The obligations in Article 15(1) apply regardless of the Party to which the dead belong and whether or not they have taken a direct part in the hostilities. The obligations set out in Article 15(1) do not apply as such to dead civilians; nevertheless, other treaty provisions and customary international law contain corresponding obligations in respect of dead civilians.[49]
1512  Parties must prevent the dead from being despoiled. Despoilment is a form of pillage and, as such, prohibited.[50] In the Pohl case in 1947, for example, the US Military Tribunal at Nuremberg stated that robbing the dead ‘is and always has been a crime’.[51] Moreover, it should be noted that, under Additional Protocol I, the protection of the dead goes further than their protection against despoilment: Parties to an armed conflict are obliged more broadly to ‘respect’ the dead.[52] Although not specifically provided for in Article 15, the mutilation of dead bodies is prohibited under customary international law and is covered by the war crime of ‘committing outrages upon personal dignity’ under the 1998 ICC Statute.[53]
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E. Paragraph 2: Arrangements to permit the removal, exchange and transport of the wounded and sick
1513  Paragraph 2 aims to enable and facilitate the evacuation of the wounded so that they can receive adequate treatment.[54] To this end, paragraph 2 lists different mechanisms, namely the conclusion of an armistice, a suspension of fire, or local arrangements, which can create the (security) conditions needed to carry out search and rescue activities. It is thus complementary to the obligations laid out in paragraph 1.
1514  The provision stipulates that ‘a suspension of fire shall be arranged’ to permit the removal of the wounded from the battlefield (emphasis added). The seemingly imperative character of this obligation is qualified by the phrase ‘whenever circumstances permit’, leaving the Parties with a significant margin of discretion. It is nevertheless an urgent and important recommendation from the humanitarian point of view for the welfare and even the survival of the wounded. Commanders are therefore urged to keep this possibility always in mind, to have recourse to it whenever they are able, and to bring it to the attention of their troops at all levels in the chain of command.
1515  Unlike paragraph 1, paragraph 2 only refers to the wounded, without explicitly mentioning the sick or the dead. Logically, the sick can also be included in such agreements. The preparatory work contains no evidence of any intentional omission.[55] In the light of the scope of the First Convention as a whole and of paragraphs 1 and 3 specifically, which consistently refer to the ‘wounded and sick’, and given that there is not always a clear distinction between persons who are wounded and persons who are sick, paragraph 2 should be understood to apply also to the sick. This view is supported by the reference in the corresponding provision in the Second Convention, Article 18(2), to both the wounded and the sick. Moreover, paragraph 2 complements the obligations set down in paragraph 1, which mentions the wounded, the sick and the dead. In practice, the same search and rescue activities for the wounded and sick might also be used to search for and collect the dead, although different procedures may need to be followed.[56] According to Additional Protocol I, Parties must endeavour to agree on arrangements for teams to search for and recover the dead from the battlefield areas.[57]
1516  In terms of the agreements that are to be concluded, paragraph 2 explicitly mentions an armistice, a suspension of fire or local arrangements.[58] For the purposes of paragraph 2, the exact (legal) differentiation between these various forms of agreements is irrelevant.[59] In any case, an authoritative legal definition of either an armistice or a suspension of fire does not exist. In practice, a number of terms, such as armistice, ceasefire, suspension of fire or hostilities and cessation of hostilities, are used interchangeably.[60] Today, an armistice is commonly understood as a more formal agreement concluded between two or more States waging war against each other and denoting the end of war without, however, restoring peace in the full sense of that term.[61] A suspension or cessation of hostilities or a ceasefire, on the other hand, is more informal and may be a preliminary step towards a more formal agreement.[62] The term ‘suspension of fire’ may be understood as a synonym for the terms ‘suspension of hostilities’ or ceasefire.[63] As such, it is understood as an agreed cessation, local or general, of the fighting within a period of armed conflict.[64] It does not necessarily terminate the armed conflict existing between the belligerents, either de jure or de facto.[65]
1517  The aforementioned agreements are specifically covered by Article 6 of the First Convention. Such special agreements create binding legal obligations for States. This is the case whether they are concluded between commanders with full treaty-making powers or by commanders on the battlefield in regard to a particular issue or locality.[66]
1518  The explicit reference to ‘local arrangements’ indicates that paragraph 2 covers all agreements between the Parties to an armed conflict that will bring about the necessary conditions for the removal, exchange and transport of the wounded and sick, regardless of their precise legal qualification or designation. Indeed, by including ‘local arrangements’ in paragraph 2, the Diplomatic Conference of 1949 specifically intended to respond to practical needs and to allow even the commanders of small units to make arrangements that would enable search and rescue activities to be carried out.[67] Thus, paragraph 2 covers international treaties negotiated by plenipotentiaries and concluded in a formalized procedure between States, as well as impromptu, informal oral agreements reached by local commanders. In fact, the latter kind of informal agreements with a limited scope of application ratione loci are typical for the situation envisaged in paragraph 2, namely agreements that aim to respond to humanitarian needs as they arise in a particular location.[68] In practice, neutral intermediaries such as the ICRC,[69] National Red Cross and Red Crescent Societies[70] and Médecins Sans Frontières[71] have played an important role in initiating or facilitating such agreements between the Parties to a conflict.
1519  Paragraph 2 is not limited to agreements between the Parties to a conflict nor does it require that the Parties themselves carry out the removal and transport of the wounded and sick and the dead. Of course, it is evidently inherent in any armistice or suspension of fire that it is concluded between the belligerent Parties. However, the term ‘local arrangements’ is broad enough to also cover agreements with third parties. Thus, if Parties to an armed conflict, rather than concluding an agreement with each other, enter into an agreement with an impartial humanitarian organization (thus creating a triangular relationship) in order to facilitate the removal, exchange and transport of the wounded and sick and the dead, this would appear to suffice. The purpose of paragraph 2 is to enable and facilitate the evacuation of the wounded and sick so that they can be adequately treated (and the dead identified and thereby prevented from going ‘missing’, as well as honourably interred). It therefore covers any kind of arrangement that will help to achieve these goals. Indeed, in practice, Parties to an armed conflict may often be more inclined to contact an impartial humanitarian organization for help in evacuating the wounded and sick and the dead than to enter into direct contact with one another to make local arrangements for a ceasefire.[72] It is important for the terms of such agreements to be clearly communicated to all who are in a position to comply with or violate them if they are to fulfil their purpose.
1520  Lastly, unlike the corresponding provision in the 1929 Geneva Convention on the Wounded and Sick,[73] paragraph 2 also envisages the ‘exchange’ of the wounded left on the battlefield. This had also been provided for in the 1864 Geneva Convention,[74] but was omitted in 1929 because the immediate exchange of the wounded on the battlefield was perceived as utopian.[75] Paragraph 2 clarifies that exchanging the wounded and sick, albeit rare in practice,[76] is a feasible option and does not conflict with a Party’s obligations under paragraph 1. Nothing would seem to bar a broad interpretation of the term ‘exchange’, which thus also comprises the unilateral cession of the wounded (and sick) by one Party to another Party. Exchange of the (untreated) wounded (and sick) on the spot is different from the situation envisaged by Article 109 of the Third Convention, where ‘seriously wounded and seriously sick prisoners of war’, after Parties have cared for them and provided they are fit to travel, have to be sent back to their home countries. In paragraph 2, ‘exchange’ of the wounded is mentioned as one possibility for removing the wounded from the battlefield and ensuring that they will be cared for under more secure conditions.
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F. Paragraph 3: Arrangements for the removal or exchange of the wounded and sick from besieged or encircled areas
1521  Paragraph 3 focuses on the conclusion of local arrangements for the exchange of the wounded and sick or their removal from besieged or encircled areas and the passage of medical and religious personnel and equipment into those areas.[77] The terms of such arrangements should, like more formal agreements, also be clearly communicated to anyone in a position to either comply with or violate them. Like paragraph 2, paragraph 3 aims to enable and facilitate care of the wounded and sick, either by removing them from an area where such care is no longer possible or by creating conditions in the area which will again allow the provision of both medical and spiritual care. In the light of the purpose of this paragraph, it should also be applied in relation to the dead.
1522  Paragraph 3 strongly encourages the Parties to conclude local arrangements to allow the removal of the wounded or sick and the passage of medical and religious personnel and their equipment to such areas, ‘whenever circumstances permit’. It follows from paragraph 3 that the strategic aim of burdening the besieged Party with the wounded and sick is not a legitimate consideration. If it were, the obligation to facilitate the exchange of the wounded and sick or their removal from besieged or encircled areas would be meaningless.
1523  Paragraph 3 explicitly mentions the ‘sick’, making it clear that they may also be the subject of an arrangement to evacuate them from a besieged or encircled area. Paragraph 3 mentions only ‘local arrangements’ and explicitly refers to the Parties to the conflict. The term ‘local arrangements’ is broad enough to cover armistices and ceasefires. Given its purpose, it also allows for the conclusion of other agreements and arrangements – possibly with third actors, such as impartial humanitarian organizations – to enhance the care of the wounded and sick and facilitate the removal of the dead.
1524  The concept of a ‘besieged or encircled area’ has not been defined under international humanitarian law.[78] Although not prohibited as such, it follows from various provisions of international humanitarian law, including those pertaining to the conduct of hostilities – for example, the prohibition against attacking or rendering useless objects indispensable to the survival of the civilian population or against starving the civilian population[79] – that many aspects of traditional siege warfare are no longer permissible today. Furthermore, the provisions of international law applicable to humanitarian activities also need to be considered.[80] Starvation of the civilian population as a method of warfare by depriving it of objects indispensable to its survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions, would amount to a war crime.[81] In the light of the purpose of Article 15 as a whole, it is of little relevance whether an area is ‘besieged’ or ‘encircled’. Rather, what matters is whether the wounded and sick have been cut off from adequate medical or spiritual care owing to ongoing hostilities. Conversely, if the wounded and sick are trapped by the hostilities in a location where medical treatment is still adequate, there may be no humanitarian need to evacuate them.
1525  Paragraph 3 envisages arrangements that will allow for the exchange of the wounded and sick or their removal from the area in question or permit ‘the passage of medical and religious personnel and equipment on their way to that area’. The nationality of such personnel is not specified.[82] With regard to the removal of people, it is important to note that paragraph 3 applies only to those who qualify as wounded or sick under Article 12.[83] A similar provision regarding civilians is contained in Article 17 of the Fourth Convention. In any case, neither Article 15(3) nor Article 17 may be used as a legal pretext to implement a policy of ethnic cleansing and to justify the removal of parts of the population from specific areas.[84]
1526  Whenever a situation exists in which the wounded and sick cannot be retrieved, arrangements must be made to enable them to receive the care their condition requires, either by sending medical personnel or by allowing the wounded and sick to be removed to an area where they can receive treatment. In cases where such situations persist, a one-time agreement would not suffice.
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1 - Second Convention, Article 18; Fourth Convention, Articles 16–17; Additional Protocol I, Article 10; Additional Protocol II, Article 8; ICRC Study on Customary International Humanitarian Law (2005), Rules 109–113.
2 - ICRC Study on Customary International Humanitarian Law (2005), Rule 109. For a different view, see Benoit. For those States party to it, Additional Protocol I also extends this obligation to all wounded and sick civilians. See also United States, Law of War Manual, 2015, pp. 477–478.
3 - ICRC Study on Customary International Humanitarian Law (2005), Rule 110.
4 - Ibid. Rule 111.
5 - Ibid. Rule 112.
6 - Ibid. Rule 113.
7 - Ibid. Rule 115.
8 - Geneva Convention (1864), Article 6(1).
9 - Dunant, p. 126.
10 - Geneva Convention (1906), Article 3; Geneva Convention on the Wounded and Sick (1929), Article 3. Moreover, in 1899, the principles of the 1864 Geneva Convention were adapted for the first time to maritime warfare and to wounded, sick and shipwrecked members of the armed forces and sailors at sea by virtue of the Hague Convention (III), which was superseded in 1907 by the Hague Convention (X) (see Article 25 of the 1907 Hague Convention (X)).
11 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 150.
12 - Ibid. pp. 150–151. The 1929 Geneva Convention on the Wounded and Sick had already attempted, for the sake of clarity, to draw a distinction between these different stages by dealing first with operations taking place at the front and then with those in the rear, where it is possible to have recourse to installations of a more permanent character.
13 - See the commentary on Article 12, para. 1370.
14 - See Bart, pp. 33–43, especially at 43.
15 - Atul Gawande, ‘Casualties of War – Military Care for the Wounded from Iraq and Afghanistan’, The New England Journal of Medicine, Vol. 351, 2004, pp. 2471−2475.
16 - In addition, Article 16(1) of the First Convention requires Parties to the conflict to ‘record as soon as possible … any particulars which may assist in [the] identification [of the wounded and sick]’, which implies that any belongings of the wounded or sick should also be collected.
17 - See Koivurova, paras 1–3; Dupuy, pp. 378 and 384; Pisillo-Mazzeschi, pp. 41–46; and Hessbruegge, p. 270.
18 - See ICJ, Application of the Genocide Convention case, Merits, Judgment, 2007, para. 430, and Pisillo-Mazzeschi, p. 44.
19 - Pisillo-Mazzeschi, pp. 44–45.
20 - ICJ, Application of the Genocide Convention case, Merits, Judgment, 2007, para. 431. However, as far as State responsibility for the breach of the obligation to prevent is concerned, the ICJ was more cautious and, in accordance with Article 14(3) of the 2001 Draft Articles on State Responsibility, ruled that ‘a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act … begins that the breach of an obligation of prevention occurs.’ For a critique, see Dupuy, pp. 381–384.
21 - ICJ, Application of the Genocide Convention case, Merits, Judgment, 2007, para. 431.
22 - See Article 18. See also Giacca, para. 29.
23 - See e.g. Henckaerts/Doswald-Beck, commentary on Rule 109, p. 398. For example: during the Palestinian conflict (between June and August 1948) (Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 30, No. 354, June 1948, pp. 401–407 and further references); during the conflict between the armed forces of France and Tunisia in Bizerte (July 1961) (Revue internationale de la Croix-Rouge, Vol. 43, No. 515, November 1961, p. 530; Keesing’s Contemporary Archives, 1961, pp. 18341–18343); and during the war between Egypt and Israel (November 1973 and January 1974) (Revue internationale de la Croix-Rouge, Vol. 55, No. 660, December 1973, p. 728).
24 - See also the commentary on Article 9, section C.4.b.
25 - Geneva Convention (1906), Article 3; Geneva Convention on the Wounded and Sick (1929), Article 3.
26 - The ICTY discussed the definition of plunder or pillage in the following judgments: Delalić Trial Judgment, 1998, paras 587–591; Simić Trial Judgment, 2003, para. 99; Kordić and Čerkez Appeal Judgment, 2004, paras 79–84; Naletilić and Martinović Trial Judgment, 2003, paras 612–615; and Hadžihasanović Trial Judgment, 2006, paras 49–51. The SCSL discussed the war crime of pillage in the following cases, among others: Brima Trial Judgment, 2007, para. 754; Fofana and Kondewa Trial Judgment, 2007, para. 160; and Taylor Trial Judgment, 2012, para. 452. The ICC discussed the war crime of pillage in Bemba Trial Judgment, 2016, paras 113–125 and 639–648.
27 - ICTY, Delalić Trial Judgment, 1998, para. 591. See also France, Permanent Military Tribunal at Metz, Bommer case, Judgment, 1947. During the negotiation of the elements of the war crime of pillage under the 1998 ICC Statute, States rejected the element of ‘force’, concentrating instead on the ‘absence of consent’. See the commentary on Article 33 of the Fourth Convention.
28 - See e.g. ICTY, Delalić Trial Judgment, 1998, para. 590, and ICC, Bemba Trial Judgment, 2016, para. 117.
29 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 49: ‘The parties to the conflict may seize military equipment belonging to an adverse party as war booty.’
30 - An additional exception in international armed conflict is that the prohibition of pillage does not affect the right of an Occupying Power to use the resources of the occupied territory for the maintenance and needs of the army of occupation within the limits of the law of occupation. See Articles 52, 53 and 55 of the 1907 Hague Regulations, as well as Articles 55 and 57 of the Fourth Convention. See also the commentary on Article 33 of the Fourth Convention.
31 - This presupposes, of course, that a link can be established between the act of pillage and the armed conflict. This nexus is what distinguishes pillage from theft in domestic law.
32 - First Convention, Article 22(1). See also the commentary on Article 24, paras 2004–2005.
33 - See Atul Gawande, ‘Casualties of War – Military Care for the Wounded from Iraq and Afghanistan’, The New England Journal of Medicine, Vol. 351, 2004, pp. 2471−2475.
34 - See the commentary on Article 12, para. 1383.
35 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 106.
36 - Instruments concerning medical ethics in times of armed conflict, especially: the World Medical Association’s Regulations in Times of Armed Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, as amended or revised in 1957, 1983, 2004, 2006 and 2012); Rules Governing the Care of Sick and Wounded, Particularly in Time of Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, edited and amended in 1957 and 1983); Standards of Professional Conduct regarding the Hippocratic Oath and its modern version, the Declaration of Geneva, and its supplementary International Code of Medical Ethics (adopted by the 3rd WMA General Assembly, London, England, October 1949, as amended in 1968, 1983 and 2006). See also ICRC, Health Care in Danger: The Responsibilities of Health-Care Personnel Working in Armed Conflicts and Other Emergencies, ICRC, Geneva, 2012, pp. 55–62.
37 - See also Additional Protocol I, Article 16(1)–(2); ICRC Study on Customary International Humanitarian Law (2005), Rule 26; and Bothe/Partsch/Solf, p. 108, para. 2.3 (end).
38 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 69–70. Ethiopia had alleged that Eritrea had ‘failed to provide necessary medical attention to Ethiopian POWs [prisoners of war] after capture and during evacuation, as required under customary international law reflected in Geneva Conventions I (Article 12) and III (Articles 20 and 15)’. Ethiopia further argued that ‘[m]any Ethiopian declarants testified that their wounds were not cleaned and bandaged at or shortly after capture, leading to infection and other complications’. Eritrea responded that ‘its troops provided rudimentary first aid as soon as possible, including in transit camps’. While the Commission came to the general conclusion that there was no violation, logistical and resource constraints may not excuse a failure to provide even basic care.
39 - Israel, Supreme Court sitting as High Court of Justice, Physicians for Human Rights v. Prime Minister of Israel and others, Judgment, 2009, para. 23: The respondents said that on 5 January 2009 a special health operations room was established, under the command of an officer with the rank of major, who is responsible for … coordinating the evacuation of the wounded and the dead from the area where fighting is taking place. Professional matters that arise in the operations room are decided by a doctor, who is an officer with the rank of lieutenant-colonel.
40 - See the commentary on Article 12, paras 1389–1391.
41 - See also Article 17.
42 - Geneva Convention on the Wounded and Sick (1929), Article 3.
43 - Geneva Convention (1906), Article 3. This obligation was maintained in 1929 (Article 3).
44 - This is the case notwithstanding the slight difference in wording: Article 15(1) uses ‘prevent’ instead of ‘protect’ in relation to the dead.
45 - Henckaerts/Doswald-Beck, commentary on Rule 112, p. 407. For example, ICRC delegates recovered the war dead in Bosnia and Herzegovina (UN Secretary-General, Report pursuant to Security Council resolution 752 (1992), UN Doc. S/24000, 26 May 1992, para. 9).
46 - See the commentary on Article 9, section C.4.b.
47 - Similarly, albeit in relation to non-international armed conflict, see Sivakumaran, pp. 280–281. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 112.
48 - See also the commentary on Article 17, para. 1663.
49 - See Fourth Convention, Article 16; Additional Protocol I, Articles 33(4) and 34(1); Additional Protocol II, Article 8; and ICRC Study on Customary International Humanitarian Law (2005), Rules 112–113.
50 - Hague Regulations (1907), Article 28; see also ICRC Study on Customary International Humanitarian Law (2005), Rule 52.
51 - United States, Military Tribunal at Nuremberg, Pohl case, Judgment, 1947, p. 996.
52 - See Additional Protocol I, Article 34, and Petrig, pp. 350–351.
53 - ICRC Study on Customary International Humanitarian Law (2005), Rule 113; ICC Elements of Crimes (2002), Definition of the war crime of outrages upon personal dignity (ICC Statute (1998), fn. 49 relating to Article 8(2)(b)(xxi)). For a commentary on this war crime, see Dörmann, p. 314, and Roberta Arnold and Stefan Wehrenberg, ‘Outrages upon personal dignity’, in Triffterer/Ambos, pp. 469–476.
54 - See also Articles 19 and 20 of the Third Convention, which specify conditions for the evacuation of wounded and sick prisoners of war.
55 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 155–156.
56 - For example, ambulances should usually not be used to collect the dead, as the collection of dead bodies should not take priority over the collection of the wounded. See also ICRC, Management of Dead Bodies after Disasters: A Field Manual for First Responders, ICRC, Geneva, 2009, pp. 7–8.
57 - Additional Protocol I, Article 33(4).
58 - See Ary, pp. 192–195 and 233–242, and Dinstein, 2000, pp. 146–151.
59 - For example, Canada’s military manual stipulates: ‘In the case of a land engagement, agreements between commanders, whether by armistice or by cease-fire, may be made for the exchange, removal and transport of the wounded left on the field’ (Canada, LOAC Manual, 2001, para. 904.3).
60 - See Dinstein, 2000, p. 140.
61 - See Dinstein, 2009, para. 1, and Bell, para. 5. Until the two world wars, an armistice meant an agreement designed to bring about a mere suspension of hostilities between belligerent Parties, which remained locked in a state of war, and the expression was synonymous with truce. Its meaning has since evolved from suspension of hostilities to termination of war. See also Levie, pp. 884–888.
62 - See Bell, para. 6, and Dinstein, 2009, paras 25–27.
63 - See Azarov/Blum, paras 1, 2 and 8.
64 - See ibid. para. 1.
65 - See Levie, p. 884.
66 - See the commentary on Article 6, paras 963–964.
67 - In relation to Article 15 of the First Convention, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 154. In relation to Article 12 of the Fourth Convention, see Pictet, Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 139.
68 - See Germany, Military Manual, 1992, p. 238. Dinstein notes that: ‘The area of application of a limited armistice shall be defined as precisely as possible. If, for instance, wounded persons are to be recovered it must be clear if and up to what line bombardments further to the rear remain permissible. Sometimes it will also be necessary to coordinate the utilization of the airspace and the passage of ships.’ (Yoram Dinstein, War, Aggression and Self-Defence, 5th edition, Cambridge University Press, 2011, p. 52.) This is also evidenced by the fact that the historical predecessor of paragraph 2, namely Article 3(2) of the Geneva Convention on the Wounded and Sick (1929), spoke of the conclusion of a ‘local armistice’; see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 154.
69 - For an example from a non-international armed conflict, see Stephanie Nebehay, ‘Syria, rebels agree truce for Homs evacuation: ICRC’, Reuters, 20 June 2012.
70 - For example, the Norwegian Red Cross has done so; see ICRC, Annual Report 2011, ICRC, Geneva, 2012, p. 369.
71 - Médecins Sans Frontières, Activity Report 2011, pp. 14–15.
72 - Médecins Sans Frontières has also carried out large-scale medical evacuations, e.g. in Libya in March 2011; see ibid. pp. 72–73.
73 - Article 3 of the 1929 Geneva Convention on the Wounded and Sick provided for the conclusion of a local armistice or a suspension of fire merely ‘to permit the removal of the wounded remaining between the lines’.
74 - Article 6 of the 1864 Geneva Convention provided that: ‘Commanders-in-Chief may hand over immediately to the enemy outposts enemy combatants wounded during an engagement, when circumstances allow and subject to the agreement of both parties.’
75 - Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 24.
76 - During the Falklands/Malvinas conflict, the hospital ships in the Red Cross Box apparently did exchange war casualties; see http://blog.usni.org/2011/06/29/the-red-cross-box.
77 - See also Fourth Convention, Article 17.
78 - Although Article 27 of the 1907 Hague Regulations refers to ‘sieges’, the term is not defined. A siege is a concept confined to land warfare. The equivalent in a naval or aerial context would be a blockade. For a restatement of the rules applicable to a naval blockade, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rules 93–104; for a restatement of the rules applicable to an aerial blockade, see Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 147–159. In the latter, Rule 147 defines an ‘aerial blockade’ as ‘a belligerent operation to prevent aircraft (including [Unmanned Aerial Vehicles/Unmanned Combat Aerial Vehicles] from entering or exiting specified airfields or coastal areas belonging to, occupied by, or under the control of the enemy’. The term ‘encircled area’ only appears in the Geneva Conventions; see Article 18(2) of the Second Convention and Article 17 of the Fourth Convention.
79 - Additional Protocol I, Article 54(1)–(2); ICRC Study on Customary International Humanitarian Law (2005), Rules 54 and 53.
80 - See Article 9.
81 - ICC Statute (1998), Article 8(2)(b)(xxv). On starvation, see Michael Cottier and Emilia Richard, ‘Starvation of civilians as a method of warfare’, in Triffterer/Ambos, pp. 508–519. See also Dinstein, 2010, pp. 220–223.
82 - With regard to religious personnel, the Pictet commentary held: ‘As for religious personnel, the most elementary sentiments of humanity and respect for the individual demand that they should always be allowed free access when their presence is required, in order that they may bring the consolations of religion to all, whether wounded or fit.’ (Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 157.)
83 - See the commentary on Article 12, para. 1338.
84 - Geiss, paras 3–8.