■ Wounded and Sick Persons
The protection and care of the wounded and sick in situation of armed conflict is the oldest impartial humanitarian activity regulated by the first Geneva Convention adopted in 1864. This protection was further codified in 1949 by the four Geneva Conventions (GCs) and later by their two 1977 additional Protocols (APs). Since 2005, it has also been recognized as a rule of customary international law (CIHL).
The first second and third 1949 GCs focused on improving the condition of the wounded and sick in armed forces in the course of land and maritime warfare (respectively GCI and GCII) or when being prisoners of war (GCIII). The protection and care of civilian wounded and sick was dealt with separately in the Fourth 1949 GC (GCIV, arts. 14-22).
It is important to note that even if combatant and civilian wounded and sick are both protected under the four 1949 GCs, this categorisation translated into two distinct regimes of protection applicable to military or civilian medical personnel, facilities, and transports. This may create confusion in both international (IAC) and non-international armed conflict (NIAC) regarding the civilian or military nature of medical and humanitarian personnel and facilities treating wounded and sick combatants, notably those affiliated to non-state armed groups.
The civilian or military nature of the wounded and sick as well as of the medical personnel and facilities involved in their medical care, is particularly relevant to their protection from the effects of hostilities. Indeed, the assessment of the proportionality and precaution of attacks imposed by IHL on military commanders only takes into account civilian casualties and damage.
Common article 3 of the four GCs, applicable to NIAC, affirms the imperative that all wounded and sick shall be collected and cared for without distinction. It is silent about their civilian or combatant status. These different regimes of protection have been unified by the two 1977 additional Protocols to the GCs (API and APII) (API, art. 16; APII, art. 7) and by customary IHL (CIHL) (rules 109-111).
However, the law of armed conflict in force in countries that have not ratified the additional Protocols to the GCs may still mirror the previous distinction between combatant and civilian wounded and sick status and its corollary on the military or civilian status of medical personnel, facilities and transports. Impartial humanitarian and medical organisations shall ensure that all parties to an armed conflict have a clear understanding of the protection afforded to medical missions by IHL, and that this is adhered to in all situations of armed conflict.
I. The Protection of and Obligations towards Wounded and sick
Wounded and sick persons in armed forces are defined in article 13 of GI and GII. However, since 1977, the IHL definition no longer distinguishes between civilian and military wounded and sick. They are now defined as persons, whether military or civilian, who, as a result of trauma, illness or other physical or mental disorder or disability, are in need of medical assistance or care, and who refrain from any act of hostility. It also includes maternity cases, new-born babies and other persons who may need immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility. (API, art. 8).
This definition protects all wounded and sick without discrimination, regardless of their combatant, civilian or enemy status. However, wounded and sick protection can only be granted to those who are effectively out of combat and who abstain from any act of hostility during the time they are receiving medical care in a medical facility or transport. Otherwise, such acts could lead to the loss of protection of the wounded and sick, and that person will become a legitimate military target while still present in a medical facility or transport and receiving medical care.
Understanding and preventing the type of behaviour of the wounded and sick that may amount to an act of hostility is paramount to preserving the IHL protection of medical services.
Situations of loss of protection can be exacerbated by an overly broad interpretation by armed forces and groups of what constitutes an act of hostilities.
The protection of the wounded and sick in situation of armed conflict, where combatants of non-state armed groups are labelled as terrorists by States parties to the conflict, requires special legal vigilance. Domestic criminal law will adversely affect their general protection under IHL and may criminalise those who provide medical care to wounded and sick persons suspected of belonging to terrorist groups. In this context, humanitarian and medical exemptions from anti-terrorist criminal law must be granted by States in accordance with IHL. Impartial humanitarian and medical organisations must engage with parties to the armed conflict to secure a general humanitarian exemption or a special humanitarian agreement that avoids military interference in medical facilities and ensures the safety of medical facilities, personnel and patients.
➔ Sanctions ▸ Special Agreement ▸ Terrorism
The protection of the wounded and sick individuals under IHL, includes the following rules, which have gained a customary status in international and non-international armed conflicts:
- The duty to search for, collect, and care for the wounded and sick in situation of armed conflict with the least minimum delay (GCI–IV, Common art. 3; GCIV, art. 16 and APII, arts. 7 and 8). Each party to the conflict must, without delay, take all possible measures to search for, collect, and evacuate (GCIV, art. 17) the wounded, sick, and shipwrecked without adverse distinction whenever circumstances permit, and particularly after an engagement. (CIHL, rule 109);
•The duty to provide medical care without adverse distinction, except where medical reasons require it:
The wounded, sick, and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There must be no distinction made among them on any grounds other than medical ones (CIHL, rule 110). Wounded and sick combatants are protected by IHL as wounded or sick person for as long as they are unable to participate in combat due to injury or illness (Out of combat) and in need of medical care. It is absolutely prohibited to deliberately delay medical care for a wounded and/or sick person in order to put pressure on them to provide information or any other military advantage. A wounded and sick person cannot be interrogated or arrested unless the medical doctor in charge gives their consent, based on the patient’s medical condition. A combatant who recovers while in the power of an adverse party may be arrested and then becomes a prisoner of war or a person otherwise deprived of liberty in relation to the armed conflict. At this point, they come under the provisions protecting such persons. Humanitarian and medical personnel must be aware of this limitation and obtain informed consent from the patient before planning a medical transfer across frontlines.
- The duty to protect the wounded and sick against any kind of violence and ill treatment: Each party to the armed conflict must take all possible measures to protect the wounded, sick, and shipwrecked against ill treatment and against pillage of their personal property. (CIHL, rule 111).
In view of their particular vulnerability, medical care of the wounded and sick must be in accordance with the rules of international medical ethics. Medical or biological experiments or mutilations are strictly forbidden, as well as all forms of medical involvement in ill treatment and torture.
Any wilful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a party to the conflict, constitutes a grave breach of IHL and a war crime. (API, art.11(2)-(4); ICC, art.8(2)(a)(iii), (x); art. 8(2)(e)(xi).
It is the duty of all parties to an armed conflict to treat the wounded and sick humanely in all circumstances and to provide them with the medical care they require to the fullest extent practicable and with the least possible delay. It is absolutely forbidden to make any distinction among them, except those based on medical grounds (GCI-IV, Common at. 3; API, arts. 8 and 10; APII, arts. 7 and 8; CIHL, rules 109-111). These rules apply in IAC and NIAC. They are part of CIHL. This is one of the oldest principles of IHL, enshrined in the first GC of 1864
II. Protection of and Obligations towards Medical Personnel
The protection of wounded and sick under IHL is inextricably linked to the security and availability of medical personnel and infrastructure necessary to support them.
IHL protects medical support services (including medical personnel, facilities, equipment, and transport) engaged in the care of the wounded and sick. However, they may lose their protection under IHL, if they commit outside their medical functions, acts harmful to the enemy. Consequently, medical personnel must be exclusively assigned to medical activities and must refrain from any act of hostility or act harmful to the enemy (CIHL, rule 25). They are required to treat all the wounded and sick impartially, while also being identifiable as to their medical function.
IHL protects the independence and integrity of doctors by reaffirming the rules of medical ethics. It clearly outlines which medical acts are permitted, and which are not. This includes situations where the wounded and sick persons are at the mercy of an authority that is not their own, due to a situation of occupation or detention (GCI–IV, Common art.3; API, arts. 10, 11 and 16; APII, arts. 9 and 10). Medical personnel must be protected in order to fulfil their obligation to search, collect and care for the wounded and sick. It is prohibited to punish a person for performing medical duties in accordance with medical ethics or to force a person engaged in medical activities to perform acts contrary to medical ethics (CIHL, rule 26). Moreover, medical personnel are entitled to a specific protection in order to facilitate their movement and access to any place where their services are needed (GCI, art.15; API, arts. 15 and 23; CIHL, rule 30).
➔ Medical ethics ▸ Medical personnel ▸ Right of access
IHL unequivocally protects medical units and transports from attacks (GCIV, art. 18; API, art. 12 and APII, art. 11) and against requisitions (GCIV, art. 57 and API, art. 14). IHL also allows the use of the distinctive emblem of the red cross to protect medical services (GCI, arts. 38-44; GCIV, art. 18; API, art. 18 and APII, art. 12). Finally, it authorises the free passage and delivery of medicine and medical supplies, including to besieged areas (GCIV, art. 23).
➔ Distinctive (or protective) emblems, signs, and signals ▸ Medical services ▸ Requisition ▸ Siege
Expectant women, maternity cases, new-born infants, and infirm persons are included in the IHL definition of the wounded and sick. This is to ensure that they receive the greater protection and assistance required by their particular vulnerability (API, art. 8). Humanitarian and medical organisations have a special responsibility to provide appropriate assistance to these members of the civilian population.
III. Wounded or Sick Prisoners of War
Wounded or sick prisoners of war who are suffering from certain serious injuries or diseases are entitled to special measures of protection under IHL. These provisions take into account the vulnerability and the risks of abuse faced by such seriously ill or injured persons. They also recognise the advantages that may be gained by treating them in a peaceful and safe environment (GCIII, arts. 109–117). The GCs and their additional Protocols set out the conditions under which seriously sick or wounded prisoners of war may be evacuated or hospitalised in a neutral State, rather than being treated in the hospitals of the detaining power and continuing to consider them as prisoners of war.
Article 110 of GCIII sets forth the list of diseases and illnesses that require a prisoner of war to be repatriated directly or accommodated in a neutral country.
Those whose diseases or wounds warrant a direct repatriation are:
•the incurably wounded or sick whose mental or physical fitness seems to have been gravely diminished;
•the wounded or sick who have recovered but whose mental or physical fitness seems to have been gravely and permanently diminished;
•the wounded or sick who, according to medical opinion, are not likely to recover within one year.
Those who may be accommodated in a neutral State are:
•wounded and sick whose recovery may be expected within one year, or sooner if treated in a neutral country;
•prisoners of war whose mental or physical health, according to medical opinion, is seriously threatened by continued captivity but whose accommodation in a neutral country might remove such a threat.
Certain prisoners of war accommodated in a neutral country can be directly repatriated following their treatment, under an agreement between the powers concerned, if:
—their state of health has deteriorated so as to fulfil the conditions laid down for direct repatriation;
—their mental or physical powers remain considerably impaired, even after treatment.
Such measures must also be implemented for civilian internees who are seriously ill or injured (GCIV, art. 132).
IHL also provides minimal guarantees for medical care in detention for wounded and sick who are deprived of liberty in relation with the armed conflict but detained under different legal status than that of prisoner of war.
➔ Detention; Medical duties; Medical ethics; Medical personnel; Medical services; Prisoners of war; Relief; Terrorism
Authorities are responsible to ensure the health and physical integrity of those under their control/power. They must therefore provide necessary care to a person under their authority and cannot endanger that person’s health.
The additional Protocols of the GCs makes it clear that victims of armed conflict, and in particular the wounded and sick, must be protected. “The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of a [conflict] shall not be endangered by any unjustified act or omission.” Any such act or omission constitutes serious violations and crimes (API, art. 11; APII, art. 5).
This provision emphasises the responsibility of humanitarian and medical organisations in terms of monitoring the state of health of the civilian population and the fate of the wounded and sick.
➔ Detention ▸ Medical duties ▸ Medical ethics ▸ Medical personnel ▸ Medical services ▸ Prisoners of war; ▸ Relief ▸ Terrorism
For Additional Information:
Bellal, Annyssa, “Who Is Wounded and Sick?”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary , Oxford University Press, 2015, p. 757-765.
Benoit, James, P., “Mistreatment of the Wounded, Sick and Shipwrecked by the ICRC Study on Customary International Humanitarian Law”, Yearbook of International Humanitarian Law , vol. 11, 2008, p. 175-219.
“Wounded and sick, and medical services”, in Livoja, Rain and MCcormack, Tim (eds), Routledge Handbook of the Law of Armed Conflict , London/New York, Routledge, 2016, p. 317-334.
Bothe, Michael and Janssen, Karin, “The implementation of international humanitarian law at national level: Issues in the Protection of the Wounded and Sick”, International Review of the Red Cross , vol. 26, no. 253, August 1986, p. 189-199.
Bouchet-Saulnier, Francoise, “How counterterrorism throws back wartime medical assistance and care to pre-Solferino times”, International Review of the Red Cross , vol. 103, No. 916-917, February 2022, p. 479-516. Available https://international-review.icrc.org/articles/how-counterterrorism-throws-back-wartime-medical-assistance-to-pre-solferino-times-916.
De Currea-Lugo, Victor, “Protecting the health sector in Colombia: A step to make the conflict less cruel”, International Review of the Red Cross , no. 844, December 2001, p. 1111-1126.
Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge : Cambridge University Press, 2004.
Fleck, Dieter, Chapter 12 “Protection of the Wounded, Sick, and Shipwrecked” in The Handbook of International Humanitarian Law (4th Edition), Oxford, February 2021.
Geiss, Robin and Durham, Helen, “Protection and care of the wounded and sick”, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Commentaries on the 1949 Geneva Conventions , Cambridge University Press, 2016: 471-514.
Grignon Julia and Ouigou Savadogo, Raymond, “Les attaques contre les blessés, les malades, les naufragés, le personnel médical et les défis posés par les attaques subséquentes”, in Actes du 14e Colloque de Bruges, La protection des personnes particulièrement vulnérables : quelques enjeux, 17-18 October 2013 , Collège d’Europe/Comité international de la Croix-Rouge, Brugge, No. 44, 2014, p. 37-49.
Haynes Steven, “Who is Shipwrecked?”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary , Oxford University Press, 2015, p. 767-780.
Henckaert, Jean-Marie and Doswald-Beck, Louise, (eds.), Customary International Law, vol. 1, The Rules , Cambridge: Cambridge University Press, 2005, p. 396-405.
International Committee of the Red Cross:
– How does law protect in War?, The Law, Wounded, sick, shipwrecked, dead and missing . Available at https://casebook.icrc.org/law/wounded-sick-shipwrecked-dead-and-missing#chapter3
– First Aid in Armed Conflicts and Other Situations of Violence , ICRC, Geneva, 2010.
– Health Care in Danger: Violent Incidents Affecting the Delivery of Health Care , January 2012 to December 2013, ICRC, Geneva, 2014. – Promoting Military Operational Practice that Ensures Safe Access to and Delivery of Health Care, ICRC, Geneva, 2014
Kleffner, Jann, K., “Protection of the Wounded, Sick, and Shipwrecked”, in Fleck Dieter (ed.), The Handbook of International Humanitarian Law, Oxford, Oxford University Press, 3rd ed., 2013, p. 321-357.
McCoubrey, Hilaire, “The Wounded and Sick”, in Rowe, Peter, (ed), The Gulf War 1990–91 in International and English Law , New York, Routledge, 1993, p. 171-189.
Milikowski, Matthew, “There Are No Enemies After Victory: The Laws Against Killing the Wounded”, Georgetown Journal of International Law , vol. 47, no. 4, 2016, p. 1221-1269.
Perrin, Pierre, (ed.), Handbook on War and Public Health , Geneva, International Committee of the Red Cross, 1996, 446 pages.
Sassòli, Marco, Chapter 8 “The protective regimes”, International humanitarian law: Rules, controversies, and Solutions to Problems Arising in Warfar e, Edward Elgar Publishing Limited, February 2024, p. 255-457.
Solf, Waldemar, A., “Development of the Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conventions”, Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet , Geneva/The Hague, ICRC/M. Nijhoff, 1984, p. 237-248.