Wounded and Sick Persons

A. Definition

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).

B. Legal protection

This definition protects all wounded and sick without discrimination, regardless of their combatant or civilian 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. Any alledged acts of hostility by these wounded and sick individuals could result in the loss of their special protection under IHL. This creates the risk that these wounded and sick individuals could be targeted and attacked despite their presence and the medical care they are receiving in a medical facility or medical transport. 

Understanding and controlling the interpretation of acts of hostility that could result in the loss of protected status for the wounded and sick is essential to preventing such acts and preserving the special protection afforded to medical missions under international humanitarian law. 

Situations of loss of protection can be exacerbated by an overly broad unilateral interpretation by armed forces and armed groups of what constitutes an act of hostilities.

The protection of wounded and sick persons affiliated with non-State armed groups or considered terrorists by States parties to the conflict requires particular legal vigilance. Their status as criminals under national criminal law risks unfairly undermining the special protection afforded by IHL and unjustly criminalizing those who provide medical care to the wounded and sick suspected of belonging to terrorist groups. To maintain the protective status of medical missions under IHL, it is imperative to incorporate humanitarian and medical exemptions based on IHL into national and international counterterrorism criminal law.

Impartial humanitarian and medical organizations must, at a minimum, negotiate with the parties to the conflict to secure the signing of special humanitarian agreements that include such a humanitarian exemption. This helps clarify the precise scope of the medical mission’s protected status, prevent military and security interference in medical facilities, and uphold the protected status and security of medical facilities, personnel, and patients as provided for under IHL.

➔ 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 persons (out of combat), as long as they are unable (or refrain) from participating in combat due to injury or illness and are 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 of the wounded and sick.

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).

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 provide medical care. 

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.

International humanitarian law protects the independence and integrity of physicians in the face of the various pressures that may arise in conflict situations reaffirming the imperative duty to respect the rules of medical ethics. 

IHL 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

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.

➔ Prisoners of war

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.