89 See ICRC Commentary on APs, above note 59, paras. 549–53, 555 and 557 on AP I, Art. 13; AP I, Art. 13(1); ICRC Commentary on APs, above note 59, paras. 4636–9 and 4642 on AP II, Art. 7; AP II, Art. 11(1). Para. 4636: “What is meant by the phrase ‘wounded, sick and shipwrecked’? Protection of the wounded, sick and shipwrecked responds to a fundamental humanitarian requirement and was not cast into doubt in the context of drawing up rules to govern non-international armed conflicts; this is why it is possible to use the same definition of the wounded, sick and shipwrecked as the point of departure in the two Protocols. In the light of the negotiations it can be noted that the basic terminology is uniform.” Para. 4637: “In the absence of a provision of definitions, which was finally not adopted for Protocol II, we refer to Article 8 (Terminology), sub-paragraph (a), of Protocol I, which defines the wounded and sick as follows: [p.1409] ‘“Wounded” and “sick” mean persons, whether military or civilian, 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. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility.’” Para. 4638: “The definition of the wounded and sick protected by this Part is based on two criteria: 1) requiring medical care; 2) refraining from any act of hostility.” Para. 4639: “Any person, military or civilian, fulfilling these two conditions is included amongst the wounded or sick; maternity cases, new-born babies, the infirm and expectant mothers are examples thereof, but this is not an exhaustive list. Thus this definition differs from the usual meaning of the terms ‘wounded’ and ‘sick’. In fact, a wounded or sick person who continued to fight would not be considered as such under the terms of the Protocol, and would consequently not be entitled to protection under this article.” (footnote citation omitted). Para. 4642: “In a situation of non-international armed conflict people cannot acquire a different status to the same extent as in an international conflict, since there are not, strictly speaking, different categories of protected persons: ‘all persons who do not take a direct part or who have ceased to take part in hostilities’ are protected. Nevertheless, after the end of the rescue operation the shipwrecked are no longer considered as such, and, depending on the circumstances, will be protected under one or other of the rules of the Protocol. As the case may be, they will be wounded or sick within the meaning of this article, if their state of health requires care; they will fall in the category of those detained or interned, if they have been captured by the adverse party, or they may simply be civilians. Protection is due to all the wounded, sick and shipwrecked, ‘whether or not they have taken part in the armed conflict’. No distinction is made between members of the armed forces and civilians or according to whether they belong to the one party or the other concerned; the obligation to respect and protect is general and absolute.” (footnote citations omitted).
