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Max Planck Encyclopedia of Public International Law [MPEPIL]

Wounded, Sick, and Shipwrecked

Gregor Novak

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 August 2019

Subject(s):
International peace and security — Armed conflict — Care for the sick and wounded — Conduct of hostilities

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  The Historical Development of the Law Relating to the Wounded, Sick, and Shipwrecked

1.  Historical Background

The idea that the wounded, sick, and shipwrecked should be accorded respect and protection in the context of armed conflict has been recognized in some form in various cultures and in ancient times (see generally Henry Dunant Institute 5–19 and 29–64, O’Connell 16–23, Noone 180–81). Indeed, the International Court of Justice (‘ICJ’) has noted that certain rules of international humanitarian law, including those providing for the treatment of the sick and wounded in international and non-international armed conflict, reflect ‘elementary considerations of humanity’ (see, for example, Military and Paramilitary Activities in and against Nicaragua [Nicaragua v United States of America] [Merits] para. 218). However, despite the idea's long history and seemingly ‘elementary’ character, the contemporary international rules and principles relating to the wounded, sick, and shipwrecked in the context of armed conflict are of relatively recent origin.

During the 19th century, deficiencies in the treatment of wounded and sick soldiers in times of armed conflict motivated military commanders, private individuals (such as, eg, Florence Nightingale during the Crimean War [1853–1856]; see O'Connell 20), and associations to seek to change the norms governing the treatment of the wounded and sick on the battlefield. For instance, during the American Civil War, Francis Lieber created the ‘Instructions for the Government of Armies of the United States in the Field’ (the ‘Lieber Code’), a manual that provided for the humane treatment of the wounded and thus represented a significant step in the development of the law of armed conflict (see especially Arts 49 and 79; see generally Witt). However, it was the initiative of the merchant and activist Henry (born Henri) Dunant that is widely considered to have prompted the elaboration of the first general multilateral convention on the subject. Dunant witnessed the plight of many thousands of soldiers who had been wounded and left to suffer or die on the battlefield during the battle of Solferino of 24 June 1859. Afterwards, he vividly recounted his experiences in a memoir titled Un Souvenir de Solférino (1862). In this work, which stirred broad public opinion at the time, Dunant also proposed the creation of an international organization of national associations to care for wounded and sick soldiers in collaboration with governments (see Gumpert; Rothkopf). Subsequently, Dunant became a member of a private committee, initially called the ‘Permanent International Committee for the Relief of Wounded Soldiers’, thereafter known as the International Committee of the Red Cross (ICRC) (see Bugnion 1311; see also Forsythe). During an international conference convened by the Committee between 26 and 29 October 1863, agreement was reached among the participants that internationally connected national associations should be created and that in time of war ‘belligerent nations should proclaim the neutrality of ambulances and military hospitals, and that neutrality should … be recognized … in respect of official medical personnel, voluntary medical personnel, inhabitants of the country who go to the relief of the wounded, and the wounded themselves’, and that ‘a uniform distinctive sign be recognized for the Medical Corps of all armies … ’ (reprinted in D Schindler and J Toman (eds) 361–63). These recommendations and others, which were based on proposals made by Dunant, were incorporated in the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (‘1864 Geneva Convention’) (Bugnion 1321–27).

These events were at the origin of the development of the law of armed conflict (also referred to as ‘international humanitarian law’), which progressed in the 19th and especially in the 20th centuries, during which time the international rules governing the respect for and the protection of the sick, wounded, and shipwrecked in armed conflict solidified.

2.  The 1864 Geneva Convention

The landmark 1864 Geneva Convention had addressed key issues relevant for the protection of wounded and sick military personnel. Several articles of the 1864 Geneva Convention (Arts 1–4) dealt with the neutrality and inviolability of ambulances and military hospitals and their personnel. Art. 5 1864 Geneva Convention sought to ensure the protection and freedom of the individuals (‘inhabitants of the country’) assisting the wounded and the houses used to provide shelter and care. Art. 6 1864 Geneva Convention provided for the treatment, repatriation, and evacuation of wounded or sick combatants of whatever country. Finally, Art. 7 1864 Geneva Convention called for the adoption of a ‘distinctive and uniform flag’, bearing a red cross on a white ground to facilitate the identification of ‘hospitals, ambulances, and evacuation parties’.

3.  The Subsequent Development of International Humanitarian Law with Respect to the Protection of the Wounded, Sick, and Shipwrecked

(a)  Treaty Law

Following the 1864 Geneva Convention, the Additional Articles relating to the Condition of the Wounded in War (138 CTS 189) were adopted on 20 October 1868, but did not enter into force. The objective of this instrument was to extend the rules of the 1864 Geneva Convention to naval forces, and thus also to the shipwrecked, as well as to ‘further particularize’ some of the provisions of the Convention. The first aim was only realized with the adoption of the 1899 Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, later revised by the 1907 Convention for the Adaptation of the Principles of the Geneva Convention to Maritime Warfare (‘1907 Hague Convention X’). The second aim was achieved with the adoption of the 1906 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which was replaced by the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. The 1929 Convention was superseded by the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I; ‘GC I’), while the 1907 Hague Convention X was replaced by the 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II; ‘GC II’), which aims at a comprehensive protection of the wounded, sick, and shipwrecked members of armed forces at sea. The 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV; ‘GC IV’) led to a decisive extension of protection to wounded and sick civilians. The 1949 Geneva Convention relative to the Treatment of Prisoners of War (Geneva Convention III; ‘GC III’) also includes provisions on the protection of wounded and sick prisoners of war. Common Art. 3 to the Geneva Conventions provides for a minimum standard of treatment in non-international armed conflict of military personnel placed hors de combat by wounds or sickness. The Geneva Conventions Additional Protocol I (1977) (‘AP I’) formulated a common regime for all wounded, sick, and shipwrecked persons regardless of status. Thus, with common Art. 3 to the four Geneva Conventions and the Geneva Conventions Additional Protocol II (1977) (‘AP II’), the law of non-international armed conflict includes a number of treaty rules for the protection of the wounded, sick, and shipwrecked, albeit less detailed than the respective treaty rules for international armed conflict.

(b)  Customary International Law

Despite the decisive development of treaty law in the field of the protection of the wounded, sick, and shipwrecked, customary international law undoubtedly remains significant. In this respect, it is relevant that in contrast to the 1949 Geneva Conventions, AP I and AP II have not yet approached universal ratification. In addition to common Art. 3, AP II regulates the protection of the wounded, sick, and shipwrecked in non-international armed conflict, the most common form of armed conflict in the period after 1945 (see eg Lowe, Roberts, Welsh and Zaum 44–49). Moreover, while Art. 3 is less detailed than the respective rules codified in AP I, AP II is less comprehensive than AP I. At the same time, it has been acknowledged that many rules of customary international law apply equally in both international and non-international armed conflict and that some rules of customary international humanitarian law go beyond existing treaty law (see Henckaerts and Doswald-Beck at xxix; but see eg Benoit). Thus, the ICRC's work has produced a codification of the customary international law concerning the search for, collection, and evacuation of the wounded, sick, and shipwrecked (Rule 109), the treatment and care of the wounded, sick, and shipwrecked (Rule 110), and the protection of the wounded, sick, and shipwrecked against pillage and ill-treatment (Rule 111) (Henckaerts and Doswald-Beck at 396–405, including further references).

There have also been other attempts at codifying existing customary international law also relating to the wounded, sick, or shipwrecked. For example, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (‘San Remo Manual of 1994’) was elaborated by governmental representatives and scholars in cooperation with various institutions under the auspices of the Institute for International Humanitarian Law and was adopted in June 1994. Without being legally binding of itself, the 1994 Manual is the only comprehensive international document that has been drafted on the law of naval warfare since the Oxford Manual of the Laws of Naval War of 1913 and complements the rules relating to the wounded, sick, and shipwrecked, and in particular, the rules on the use of hospital ships in the context of naval warfare which are found in GC II and AP I (see Roach 74–76; see generally Heintschel von Heinegg [2014]).

The San Remo Manual on the Law of Non-International Armed Conflict (‘San Remo Manual of 2006’) was elaborated under the auspices of the Institute for International Humanitarian Law and was adopted in 2006. The objective of the drafters of the Manual was to restate the applicable rules of customary international law in the increasingly relevant area of non-international armed conflict. Accordingly, Chapter 3.1 reiterates the basic rules relating to the wounded, sick, and shipwrecked on the basis of common Art. 3 of the Geneva Conventions and AP II. It should be noted, however, that the mere restatement of rules cannot itself resolve the difficult question of how to ensure the observance of the applicable law by non-state parties and organized armed groups in non-international armed conflict.

United Nations forces, and other forces under the command of international organizations (such as the AU, EU, or NATO), are generally considered as bound to observe the relevant rules of the law of armed conflict as a matter of customary international law and also as a matter of the internal law of the respective organization (International Organizations or Institutions, Internal Law and Rules). For instance, Section 9 of the 1999 UN Secretary-General's ‘Bulletin on Observance by United Nations Forces of International Humanitarian Law’ specifically affirms the relevant rules for UN forces aimed at the ‘protection of the wounded, the sick, and medical and relief personnel’ (see on other organizations, with further references, Ferraro; Naert; Olson).

C.  The Basic Current Legal Framework

1.  Definitions and the Loss of Protection

10  Before AP I, a distinction between the protective regime applicable to military personnel (GC I and GC II) and to civilians (GC IV) existed, with the latter convention providing less detailed rules. AP I uniformly defines ‘wounded’ and ‘sick’ as military or civilian persons, who, because of trauma, disease, or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility (Art. 8 (a) AP I). The categories of ‘sick’ and ‘wounded’ persons also include ‘maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care’. Further, AP I defines ‘shipwrecked’ as military or civilian persons ‘who are in peril at sea or in other waters’ and who refrain from any act of hostility (Art. 8 (b) AP I).

11  Thus, only persons who ‘refrain from any act of hostility’ may be considered as ‘wounded’, ‘sick’, or ‘shipwrecked’ and accordingly benefit from protection. While AP I does not specify what is to be understood as an act of hostility, the meaning of the term may be ascertained inter alia by reference to its context, particularly Art. 41 (1) AP I, Arts 42 (2) and 51 (3) AP I. Thus, the ICRC Commentary on Art. 51 (3) of AP I (the latter provides that civilians shall be protected ‘unless and for such time as they take a direct part in hostilities’) defines ‘hostile acts’ as those ‘which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces’ (see Sandoz Swinarski and Zimmermann at para. 1942). Further guidance on the meaning of hostile acts may be gained from the ICRC's 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (‘2009 Interpretive Guidance’), which relates to the loss of civilian protection, even if its conclusions are not undisputed (see also Civilian Participation in Armed Conflict; Civilian Population in Armed Conflict). A person who acts as a human shield may also arguably lose protection as wounded or sick. Thus, in The Public Committee against Torture in Israel v The Government of Israel (14 December 2006) the High Court of Justice of Israel held that if individuals act as human shields ‘of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities’ (para. 36) and accordingly would not enjoy protection. In contrast, the ICRC held that voluntarily acting as a human shield ‘does not, without more’ entail a loss of protection (see in more detail the 2009 Interpretive Guidance).

12  The loss of protection is not only relevant with respect to the wounded, sick, and shipwrecked directly, but also in the context of the protective regimes relating to medical units and medical transport, medical aircraft, medical personnel, hospital and safety zones and localities, neutralized zones, and relief organizations. Thus, in a 2002 case, Physicians for Human Rights v The Commander of the Israeli Defence Forces in the West Bank (8 April 2002) the High Court of Justice of Israel had to determine whether certain acts by the Israel Defense Forces (IDF) which were said to have interfered inter alia with the work of medical teams and the evacuation of the wounded and sick had violated international humanitarian law. While the court found itself ‘unable to express a position’ with respect to those events, it emphasized that Israeli ‘combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill, and bodies of the deceased’. At the same time, the Court noted that ‘the fact that medical personnel have abused their position in hospitals and in ambulances has made it necessary for the IDF to act in order to prevent such activities but does not, in and of itself, justify sweeping breaches of humanitarian rules’ (at para. 3; see also Physicians for Human Rights and ors v Commander of the Israeli Defence Force in the Gaza Strip [30 May 2004]; Physicians for Human Rights v Commander of the IDF Forces in the West Bank [28 April 2002]).

2.  Principal Obligations

13  At the heart of the protective regime for the wounded, sick, and shipwrecked lies the obligation to respect and to protect them under all circumstances, without adverse distinction. The obligation to respect and protect entails not only the obligation of the parties to abstain from acts that would endanger or injure a wounded, sick, or shipwrecked person, but also to actively ensure the protection of the wounded, sick, and shipwrecked. As Art. 10 (2) AP I provides, the wounded, sick, and shipwrecked ‘shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition [without distinction] founded on any grounds other than medical ones.’ Any attempts upon their lives, or violence to their persons, are prohibited (see especially Art. 12 GC I, Art. 12 GC II, Art. 3 GC III, Art. 16 GC IV, Art. 10 AP I, and Art. 7 AP II). While the exact meaning of ‘humane treatment’ depends on the respective context, it is at least considered as ‘a minimum to be reserved for the individual to enable him to lead an acceptable existence in as normal a manner as possible’ (J Pictet [1984] I. Humanity). Reprisals against wounded, sick, and shipwrecked persons are likewise prohibited (see Art. 46 GC I, Art. 47 GC II, and Art. 20 AP I).

14  Moreover, the parties to an armed conflict are under the obligation to take all possible measures to collect and evacuate the wounded, sick, and shipwrecked without delay and without adverse distinction and to ensure the required medical assistance (see especially Art. 15 GC I, Art. 18 GC II, Art. 19 GC II, Art. 16 GC IV, Art. 10 AP I, and Art. 8 AP II). The Eritrea–Ethiopia Claims Commission dealt in some detail with the rules governing the treatment of wounded and sick prisoners of war by Eritrea and Ethiopia (see particularly Eritrea–Ethiopia Claims Commission Partial Award on Prisoners of War (Eritrea's Claim 17) and Partial Award on Prisoners of War (Ethiopia's Claim 4); see in this context also Physicians for Human Rights and ors v Prime Minister and ors (19 January 2009) where the High Court of Justice of Israel discussed whether Israel had complied with international humanitarian law concerning the evacuation of wounded persons during Operation ‘Cast Lead’ in Gaza in 2009; see also the 1991 Case of Aloeboetoe and ors v Suriname, whose underlying facts included disregard by Suriname armed forces in 1988 of the fate of wounded members of a guerrilla movement, and was decided primarily on the basis of the American Convention on Human Rights [1969]).

15  The wounded, sick, and shipwrecked shall also be protected against pillage, ie looting and plunder, as well as ‘ill-treatment’. The latter term has been construed broadly and encompasses any form of treatment causing physical pain or mental suffering to the respective person (Kleffner and Heintschel von Heinegg 329).

16  The protection against certain medical procedures already found in GC I and GC II (Art. 12 (2) GC I and Art. 12 GC II) is supplemented by the prohibition, found in AP I and AP II, of subjecting wounded, sick, and shipwrecked persons who are deprived of their liberty as a result of an armed conflict or occupation to any medical procedure not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are not deprived of their liberty. Whereas AP I provides for unconditional rules (Art. 11 AP I), AP II subjects this general obligation to the limits of the capabilities of those who are responsible for the internment or detention (Art. 5 (2) (e) AP II). AP I further specifies the rules concerning the protection of persons in the context of their medical treatment. Thus, it is prohibited to carry out on the respective persons, even with their consent, physical mutilations, medical or scientific experiments, removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in Art. 11 (1) AP I (see Art. 11 (2) AP I). Exceptions to the prohibition on the removal of tissue or organs for transplantation (Art. 11 (2) (c) AP I) ‘may be made only in the case of donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient’ (Art. 11 (3) AP I). Moreover, the wounded, sick, and shipwrecked have the absolute right to refuse any surgical operation (Art. 11 (5) AP I). Additionally, each party to a conflict is obliged to ‘keep a medical record for every donation of blood for transfusion or skin for grafting by [the wounded, sick, or shipwrecked] if that donation is made under the responsibility of that Party.’ Generally, each party to a conflict ‘shall endeavour to keep a record of all medical procedures undertaken with respect to any person who is interned, detained or otherwise deprived of liberty as a result’ of an international armed conflict. This record is to be made ‘available at all times for inspection by the Protecting Power’ (see Art. 11 (6) AP I).

17  With regard to wounded, sick, and shipwrecked persons falling into the hands of a party to an armed conflict, the latter is also under an obligation to record any particulars which may assist in the person's identification and to forward all pertinent information to the appropriate information bureau, instituted by each party as an official information bureau and obliged to cooperate with the Central Prisoners of War Information Agency of the ICRC (see especially Art. 16 GC I, Art. 19 GC II, and Arts 122 and 123 GC III).

18  Where specified in the respective provisions, the obligations concerning the wounded, sick, and shipwrecked may be ones of means and are therefore subject to certain practical considerations. Thus, eg, Art. 10 (2) AP I provides that the wounded, sick, and shipwrecked shall receive the required medical care ‘to the fullest extent practicable and with the least possible delay’ and subject to no distinction other than on medical grounds. Art. 8 AP II provides that ‘whenever circumstances permit … all possible measures shall be taken’ inter alia to search and collect the wounded, sick, and shipwrecked (see in this context Jenks).

19  The rules relating directly to the wounded, sick, and shipwrecked are complemented by provisions relating to inter alia medical units, medical transport, medical aircraft, medical personnel, hospital ships, and distinctive emblems.

C.  Assessment

20  The principles and rules of international law relating to the wounded, sick, and shipwrecked reflect a balance achieved in the law of armed conflict (also known as ‘international humanitarian law’) between the humanitarian aims of minimizing human suffering and respecting human dignity, on the one hand, and enabling effective military operations, on the other. Given that the wounded, sick, and shipwrecked are especially vulnerable, and usually cannot pose military threats, humanitarian concerns overweigh. At the same time, implementing the respect for and protection of the wounded and sick can impose significant burdens on the responsible parties. These and other factors have historically contributed to grave deficiencies in their protection.

21  The rules governing the wounded and sick appeared early in the development of the law of armed conflict. The scope ratione personae and ratione materiae of the treaty law aiming to protect inter alia the wounded, sick, and shipwrecked in armed conflict has significantly developed since the adoption of the 1864 Geneva Convention, particularly through the Geneva Conventions I–IV (1949) and the Additional Protocols of 1977, whose provisions largely reflect customary international law but are at the same time complemented by other customary international rules.

22  However, the universal application and enforcement of the applicable rules, especially in new types of armed conflicts and with respect to all participants, remain issues of concern. For example, with respect to the situation in Syria, the UN Human Rights Council's ‘Independent International Commission of Inquiry on the Syrian Arab Republic’ noted in 2015 that Syrian ‘[s]ecurity forces [had] arrested and detained wounded persons seeking treatment’, that medical personnel had ‘been forced to withhold treatment under violent threat’, and that the ‘sick and wounded [had] been targeted with sniper fire and during military assaults on medical facilities’ (at para. 76).

23  Thus, a marked discrepancy between the substance of international humanitarian law and reality persists and affects the wounded, sick, and shipwrecked. While the reduction in the number of international armed conflicts, particularly since the mid-1970s, is heartening, the historical experience with war and its effects as well as the problems posed by internal armed conflicts and terrorism show that the protection of victims of armed conflicts not only remains relevant but also continues to face new challenges. Thus, improvements in the monitoring of compliance with the applicable law as well as the development and clarification of treaty and customary international law as a response to new types of armed conflicts and new actors involved in such conflicts are called for. At the same time, the protection of the wounded, sick, and shipwrecked must be viewed in the broader context of the development of various other areas of international law, including particularly international criminal law, the law relating to the methods and means of warfare, the law relating to international peace and security, and human rights law.

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