1 van Bergen, Leo, Before my Helpless Sight: Suffering, Dying and Military Medicine on the Western Front, 1914–1918, UK, Ashgate, 2009 Google Scholar.

2 Mark Harrison describes the fact that the British public began to consider its servicemen more compassionately beginning in the 1850s. See Harrison, The Medical War: British Military Medicine in the First World War, Oxford University Press, 2010, p. 7 ffGoogle ScholarPubMed. See also Hull, Isabel V., A Scrap of Paper: Breaking and Making International Law during the Great War, Ithaca, Cornell University Press, 2014, p. 3Google Scholar.

3 Hull makes the same point, ibid. See also Neff, Stephen, War and the Law of Nations, Cambridge, Cambridge University Press, 2005, p. 203CrossRefGoogle Scholar, who makes the point that the law at the time was more limited when it comes to prohibitions on certain weapons.

4 Strachan, Hew, “The First World War as a global war”, First World War Studies, vol. 1, 2010 CrossRefGoogle Scholar; Marc Ferro, La Grande Guerre 1914–1918, Editions Gallimard, 1966 (reprint 1990)Google Scholar.

5 H. Strachan, above note 4.

6 Reynolds, David, The Long Shadow: The Great War and the Twentieth Century, London, Simon and Schuster, 2013, pp. xix–xxiii Google Scholar.

7 Palmieri, Daniel, “An institution standing the test of time? A review of 150 years of the history of the International Committee of the Red Cross”, International Review of the Red Cross, vol. 95, 2013, p. 7Google Scholar.

8 Ibid ., footnote 21 and accompanying text.

9 See for example Becker, Annette, Les Oubliés de la Grande Guerre: Humanitaire et culture de guerre, Paris, Hachette, 2003 Google Scholar; Jones, Heather, “International or transnational? Humanitarian action during the First World War”, European History Review, vol. 16, 2009 CrossRefGoogle ScholarPubMed; Cabanes, Bruno, The Great War and the Origins of Humanitarianism 1918–1924, Cambridge, Cambridge University Press, 2014 Google Scholar; Little, Branden, “An explosion of new endeavours: global humanitarian responses to industrialized warfare in the First World War era”, First World War Studies, vol. 5, 2014 CrossRefGoogle Scholar; see also other articles in the same “Special Issue: Humanitarianism in the Era of the First World War”, First World War Studies, vol. 5, 2014 Google Scholar. For histories of the ICRC with a section on ICRC action during the First World War, see Hutchinson, John, Champions of Charity: War and the Rise of the Red Cross, Colorado, Westview Press, 1996, pp. 280–285 Google Scholar; Durand, André, History of the International Committee of the Red Cross: from Sarajevo to Hiroshima, Geneva, Henry Dunant Institute, 1978/1984Google Scholar; Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, Geneva, ICRC, 2003 Google Scholar.

10 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 6 July 1906 (entered into force 9 August 1907).

11 Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. The Hague, 18 October 1907 (entered into force 26 January 1910).

12 There are many other important aspects of its work that are interlinked with this issue – in particular, its position on the use of poison gas, which deserves further research in its own right. See also van Bergen, Leo and Abbenhuis, Maartje, “Man-monkey, monkey-man: neutrality and the discussions about the ‘inhumanity’ of poison gas in the Netherlands and International Committee of the Red Cross”, First World War Studies, vol. 3, 2012 CrossRefGoogle Scholar, among others.

13 See Bulletin International des Sociétés de la Croix-Rouge, no. 2, January 1870, p. 60. Berlin Conference of 1869. The first Bulletin International des Sociétés de la Croix-Rouge (BISCR) was published in October 1869, and it appeared four times per year thereafter. The limited primary sources on which this paper is based (ICRC Archives) means that it cannot claim to be part of a “critical” history of the institution, but hopefully makes a meaningful contribution to the debate. See also the contribution of Daniel Palmieri in this volume.

14 Convention for the Amelioration of the Conditions of the Wounded in Armies in the Field, Geneva, 22 August 1864 (entered into force 22 June 1865).

15 E. Odier, “La Convention de Genève par le Dr. C. Lueder”, BISCR, no. 26, April 1876, p. 84.

16 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929.

17 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950).

18 Article 1 of the 1906 Convention.

19 Articles 3 and 4 of the 1906 Convention.

20 Articles 6–9 of the 1906 Convention.

21 Article 7 of the 1906 Convention.

22 Articles 9 and 12 of the 1906 Convention.

23 Hague Convention on Maritime Warfare, above note 11.

24 Hague Convention X of 1907 was the revised version of Hague Convention III of 1899. See Neville Wylie, “Muddied Waters: The Influence of the First Hague Conference on the Evolution of the Geneva Conventions of 1864 and 1906”, in Maartje Abbenjuis, Annelise Higgins and Christopher Barber (eds), War, Peace and International Order? The Legacies of the Hague Conferences of 1899 and 1907, Abingdon, Routledge, forthcoming.

25 The ICRC had been given the mandate, through the Resolutions adopted at Red Cross Conferences, to coordinate the work of the National Societies.

26 See especially A. Durand, above note 9, pp. 31–96; J. Hutchinson, above note 9, pp. 280–283. The ICRC's role in assessing legal aspects of the treatment of POWs is beyond the scope of this article.

27 BISCR, vol. 45, no. 180, October 1914, pp. 239–240. Also reprinted in André Durand, De Sarajevo à Hiroshima, p. 36.

28 A rappel du droit is probably best thought of as a kind of note verbale.

29 BISCR, no. 180, October 1914, pp. 239–240 (author's translation).

30 During the Franco-Prussian war of 1870–71, instead of issuing the appeal itself, the ICRC planned to ask the Swiss Federal Council to obtain the word of the French and German governments that they would “se conformer” not only to the 1864 Geneva Convention, but also to the 1868 draft articles (that had not been ratified). By coincidence, the Swiss had already planned to do so. See BISCR, no. 5, October, 1870, pp. 10–11. At the time of the Russo-Japanese war, the ICRC sent an offer of services to the National Societies of Russia and Japan and published their responses in the Bulletin. See BISCR, no. 137, January 1904, p. 136.

31 BISCR, no. 180, October 1914, p. 239.

32 For examples of notes verbales, or rappels du droit, see ICRC, “Conflict in the Middle-East”, International Review of the Red Cross, vol. 31, issue 280, 1991, pp. 22–28 CrossRefGoogle ScholarPubMed.

33 See also the updated Commentary on Article 47 of the First Geneva Convention, ICRC, Commentary on the First Geneva Convention, 2016.

34 See especially Article 1 common to all four Geneva Conventions and Article 45 of the First Geneva Convention. The predecessor to Article 45 is Article 25 in the 1906 Convention: “It shall be the duty of the commanders in chief of the belligerent armies to provide for the details of execution of the foregoing articles, as well as for unforeseen cases, in accordance with the instructions of their respective governments, and conformably to the general principles of this convention.”

35 I. Hull, above note 2, pp. 83–88.

36 Article 24 of the 1906 Convention reads: “The provisions of the present Convention are obligatory only on the Contracting Powers, in case of war between two or more of them. The said provisions shall cease to be obligatory if one of the belligerent Powers should not be signatory to the Convention”.

37 Gouttes, Paul Des, “De l'applicabilité des Conventions de La Haye de 1889 [sic] et de 1907, ainsi que de celles de Genève de 1864 et de 1906”, Revue Internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, vol. 1, issue 1, 1919, pp. 3–10 CrossRefGoogle Scholar.

38 Ibid , pp. 9–10, emphasis in original (author's translation).

39 BISCR, no. 179, July 1914, pp. 171–174.

40 “Le torpillage des navires-hôpitaux: Etude de droit et de fait”, BISCR, vol. 48, no. 191 July 1917, p. 223; “De l'applicabilité des Conventions de La Haye de 1899 et de 1907 concernant les lois et coutumes de la guerre sur terre”, BISCR, vol. 49, no. 193, January 1918, p. 18.

41 The communication was published in BISCR, vol. 48, no. 190, pp. 140–142. See also BISCR, vol. 48, no. 191, July 1917, pp. 223–236.

42 BISCR, vol. 48, no. 191, July 1917, pp. 226–227.

43 Original interpretation: BISCR, vol. 48, no. 191, July 1917, pp. 226–227. Revised interpretation: BISCR, vol. 49, no. 193, January 1918, pp. 18–27.

44 See Paul des Gouttes, above note 37, p. 3. According to des Gouttes, this was a change from the 1899 Convention to the 1907 Convention – the 1899 Convention required only signature.

45 “De l'applicabilité des Conventions de La Haye de 1899 et de 1907 concernant les lois et coutumes de la guerre sur terre”, BISCR, vol. 49, no. 193, January 1918, p. 26. See, however, I. Hull, above, note 2, p. 89, stating that the Hague Convention II of 1899 was “in effect for the entire First World War” (citing Oppenheim).

46 Ibid ., pp. 26–27.

47 P. des Gouttes, above note 37, pp. 6 and 7.

48 Ibid .

49 Original: “retard apporté par la Turquie à la ratification de cette Convention [Hague].”

50 BISCR, no. 181, January 1915, pp. 18–21 (author's translation).

51 P. des Gouttes, above note 37, p. 10.

52 Letter (no. 8247) from Dr Ferrière to Carl P. Bennett (American Red Cross), 4 July 1918. Archives, CICR, A CS 069.

53 Letter (no. 8387) from Dr Ferrière to M le Docteur Hecker (Department of Medicine, War Ministry), 22 July 1918, Archives, CICR, A CS 069.

54 Letter in response to letter no. 8387, From “J.A.” (War Ministry) to the ICRC, 6 September 1918. Curiously, the ICRC does not seem to have pursued the avenue that this state of affairs opened up, which would have been to rely on the 1864 Geneva Convention and the principle that medical personnel must be entirely at liberty to choose whether they remain or return to their forces (Article 3), Archives, CICR, A CS 069.

55 Letter (no. 6048) from President Naville to Minister Stovall, 23 September 1918, Archives CICR, A CS 069. Note that the US Ambassador in Bern during the war had the title “Envoy Extraordinary and Minister Plenipotentiary”, which explains the use of the title “Minister”.

56 Ibid .

57 The letter from the United States Legation in Berne explaining the position based on Article 24 of the 1906 Convention was sent to Mr Naville on 9 December 1918, and des Gouttes’ article appeared in the January 1919 issue of the International Review. See Letter from R. [sic, P.] Stovall to Edouard Naville, 9 December 1918, A, CICR, A CS 069.

58 BISCR, vol. 48, no. 191, July 1917, p. 225. See also BISCR, vol. 49, no. 193, January 1918, p. 23.

59 Article 25 of the 1929 Convention on Wounded and Sick.

60 Gouttes, P. Des, Commentaire de la Convention de Genève de 1929 sur les blesses et maladies, ICRC, 1930, p. 188Google Scholar; quoted in Pictet, J. (ed.), Commentary on the First Geneva Convention, Geneva, ICRC, 1952, p. 34Google Scholar.

61 A. Durand, above note 9, p. 38.

62 ICRC, “The International Committee of the Red Cross's (ICRC's) confidential approach: Specific means employed by the ICRC to ensure respect for the law by State and non-State authorities. Policy document. December 2012”, International Review of the Red Cross, vol. 94, no. 887, 2012, pp. 1135–1144 CrossRefGoogle Scholar. See also “Memorandum: The ICRC's privilege of non-disclosure of confidential information”, International Review of the Red Cross, vol. 97, issues 897/898, 2015, pp. 433–444 CrossRefGoogle Scholar.

63 BISCR, no. 5, October 1870, p. 11. In the words of the Bulletin, “d'une notoriété incontestable”. There may have been such requests made during the wars prior to the beginning of publication of the Bulletin, but the ICRC's archives have not been consulted on this point.

64 BISCR, no. 25, April 1876, pp. 164–165.

65 “Memorandum sur l'activité du Comité international de la Croix-Rouge en ce qui a trait aux violations du droit international”, BISCR, September 1939, vol. 70, no. 445, pp. 766–769.

66 Max Huber, “Croix-Rouge et neutralité”, Revue International de la Croix-Rouge, 18th year, May 1936 p. 359. The research undertaken for this paper did not include an empirical analysis to determine the accuracy of Huber's statement.

67 The Stenographic notes from the Stockholm Conference in 1948 reveal the ICRC's motivation for doing so, and also its despair at the end of the Second World War in relation to the effectiveness of this practice and the lack of investigations following the receipt of a complaint. See XVIIe Conférence Internationale de la Croix-Rouge (Stockholm, August 1948), Commission Juridique, Sténogramme des séances, “Sixième séance”, 28 August 1948, pp. 121–124.

68 “La guerre européenne”, BISCR, no. 180, October 1914, pp. 241–242. This was a continuation of a practice it had developed in the Balkan wars prior to the First World War. They also said, “Nous mentionnons, sous la rubrique des pays respectifs, les mémoires et rapports des commissions d'enquêtes officielles, dont les affirmations, ne fussent-elles que partiellement vraies, sont un tissu d'indescriptibles horreurs et procurent un invincible haut-le-cœur. Il ne nous appartient pas, heureusement, de nous prononcer à cet égard. Tout au plus pouvons-nous mentionner ici les violations précises de la Convention de Genève qui ont été portés directement à notre connaissance.” “La guerre européenne”, BISCR, no. 183, July 1915, p. 303 (but see also summary of reports in that issue, pp. 353 and 388–289).

69 “La guerre européenne”, BISCR, no. 180, October 1914, p. 241.

70 In at least one case, however, the ICRC pointed out that it had not received any photos along with the letter it reprinted, and presumably for that reason, no photos were reproduced in the Bulletin. See “La guerre européenne”, BISCR, no. 189, January 1917, pp. 15–17.

71 See, for example, the letter sent on 29 April 1916, in relation to the torpedoing of the hospital ship Portugal. In its letter of transmission to the Ottoman Red Crescent, the ICRC acknowledges that it cannot say whether, as the Ottoman government had alleged, the ship was being used as a troop transport and was not marked as a hospital ship in accordance with the Hague Convention, but it recalls that it had officially communicated that the Portugal was a hospital ship. BISCR, no. 187, July 1916, pp. 285–286.

72 See the enumeration of complaints in the Rapport Général du Comité international de la Croix-Rouge sur son activité de 1912 à 1920, Genève, 1921, pp. 14–16.

73 See ibid . pp. 16–18. Numbers are approximate because the ICRC included complaints of allegations regarding events occurring during the Russian Revolution and other conflicts that followed the First World War in its 1921 Report.

74 Ibid . pp. 18–19.

75 See above note 49 and accompanying text.

76 For example, in BISCR, vol 47, no. 185, January 1916, pp. 23–29.

77 In one case it was suggested that recourse be had to an arbitral tribunal, but this proposal was rejected. Baron von Spiegelfeld of the Austrian Red Cross made the suggestion. See BISCR, no. 188, October 1916, pp. 391–394.

78 Appeal of 12 July 1916. Again, the ICRC published the responses it received to its appeal in the Bulletin, BISCR, No. 188, October 1916, pp. 379–387.

79 Daniel Segesser made this point during the conference “Law as an Ideal? The Protection of Military and Civilian Victims to the Test of the First World War”, Geneva, 26–27 September 2014. He argues that the propensity of Balkan states to send protests to the ICRC flows from the action of the ICRC during the Balkan wars immediately preceding the First World War. By 1919, however, the ICRC remarked that governments were now contacting it directly in regard to violations, instead of going through Red Cross or Red Crescent National Societies. BISCR, no. 204, August 1919, p. 1000.

80 des Gouttes, Paul, “Les Conventions de la Haye de 1899 et de 1907 d'après le professeur A. Pillet”, Revue Internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, vol. 2, issue 13, 1920, pp. 22–26 CrossRefGoogle Scholar, at p. 26 (author's translation).

81 See for example “Le torpillage des navires-hôpitaux Etude de droit et de fait”, BISCR, no. 191, July 1917, pp. 223–236.

82 Rapport Général du Comité international de la Croix-Rouge sur son activité de 1912 à 1920, Genève, 1921, p. 92 (author's translation). This may have been particularly a problem in Europe: Mark Harrison indicates that captured medical personnel seem to have usually been returned in accordance with the Conventions between the UK and Turkey, for example. See Harrison, above note 2 at pp. 285–287.

83 An explanation of the regime on the retention of medical personnel under the 1949 Conventions can be found in the updated commentaries to Article 28 of the First Geneva Convention: ICRC, Commentary on the First Geneva Convention, 2nd edn, 2016.

84 In particular, the ICRC seems to have considered that while the 1864 Convention was clearly under its purview, the 1906 Convention was completely independent of the organization and within the domain of States. See BISCR, no. 181, January 1915, pp. 23–80 at p. 33.

85 BISCR, no. 181, January 1915, p. 37 (plain meaning of word “continue”).

86 In the 1864 Convention, medical personnel were to be free to choose whether they remained in captivity with their own armed forces or returned to the forces still in the field. See Article 3 of the Convention for the Amelioration of the Wounded in Armies in the Field, Geneva, 22 August 1864.

87 BISCR, no. 181, January 1915, p. 35.

88 Ibid ., pp. 44–45.

89 The German government circulated its interpretation in January 1915 and the British government circulated its in March 1915; the ICRC reproduced both in the July Bulletin. It is not entirely apparent that these interpretations were issued in response to that given by the ICRC. The ICRC indicates that the German government's interpretation was received in London on 28 January 1915; the British Government's response was dated 22 March. See BISCR, no. 183, July 1915, pp. 314–319.

90 Jones, Heather, Violence against Prisoners of War in the First World War: Britain, France and Germany, 1914–1920, Cambridge, Cambridge University Press, 2011, pp. 93–110 CrossRefGoogle Scholar especially at pp. 96–97; Médard, Frédéric, Les Prisonniers en 1914–1918: Acteurs méconnus de la Grande Guerre, France, Editions Soteca, 2010, pp. 235–237 Google Scholar.

91 Jones indicates that some British reports of German POW camps allege that POWs who had typhus were isolated and left to their fate. It is difficult, she acknowledges, however, to know to what extent these claims were based in truth and to what extent they were mostly propaganda. See H. Jones, above note 90, p. 97.

92 The issue of whether the typhus epidemics were intentionally permitted to ravage POW populations by the detaining power is irrelevant for the legal interpretation under scrutiny here. On that question, see H. Jones, above note 90, pp. 93–110.

93 F. Médard, above note 90, pp. 233–236.

94 Ibid ., p. 234.

95 See e.g. BISCR, no. 185, January 1916, pp. 41–42.

96 BISCR, no. 185, January 1916, pp. 70–72.

97 Ibid .

98 Ibid ., p. 72.

99 Article 12, paragraph 2 of the 1929 Convention on the Wounded and Sick.

100 Article 31, paragraph 2: “As from the outbreak of hostilities, Parties to the conflict may determine by special agreement the percentage of personnel to be retained, in proportion to the number of prisoners and the distribution of the said personnel in the camps.” See also the updated commentary on Articles 28 and 31 of the First Convention in ICRC, Commentary on the First Geneva Convention, 2nd edn, 2016.

101 Rapport Général du Comité international de la Croix-Rouge sur son activité de 1912 à 1920, Genève, 1921, p. 92 (author's translation).

102 In July 1917, Dr Ferrière's report on the POW Agency indicates some of the progress made on this file. In relation to yet another practical problem that impeded the timely return of such personnel, the German government had proposed the establishment of a uniform certificate, produced by the Defence Minister (war minister), to clearly prove the status of medical personnel and allow them to have the benefit of the Convention. Ferrière concedes that a uniform certificate would certainly provide a better guarantee than papers given by chefs de corps or units and is in principle accepted by the French. Expressing a hope that this solution will be applied regularly and will allow for rapid repatriation without new formalities or negotiations, Ferrière concludes, “If not, what is the Geneva Convention, and the humanitarian principal it wanted to ensure, worth?” “Agence international des prisonniers de guerre”, BISCR, no. 191, July 1917, p. 296. Curiously, at the Conference of Neutral National Societies in 1917, acting President E. Naville presented the implementation of the 1906 Convention as greatly satisfactory. On the other hand, he presented the situation of POWs as highly worrisome due to the unprecedented scale of the situation. Of course, internal discord in an organization in terms of perception of a situation is not unusual and may explain the disconnection between Naville's remarks and Ferrière's despair. Furthermore, Naville probably wanted to encourage the Neutral National Red Cross Societies to focus on POWs, an area in which they may have had more agency.

103 Rapport Général du Comité international de la Croix-Rouge sur son activité de 1912 à 1920, Genève, 1921, p. 94 (author's translation).

104 Rapport Général du Comité international de la Croix-Rouge sur son activité de 1912 à 1920, Genève, 1921, pp. 75–76 (author's translation).

105 At least on the Western Front. The historical record available to the author does not permit to determine the extent to which this respect was generalized throughout the world.

106 This may be seen as an informal way to exchange the wounded on the battlefield, as provided for in Article 2 of the 1906 Convention.

107 van Bergen, above note 1, pp. 297–300.

108 Ibid ., pp. 292–294, 306.

109 See, for example, Mark Harrison; Vincent Viet. The picture of readiness is uneven, however. While the British had 20,000 medical personnel at the start of the war (and 150,000 at the end), the Belgians had only five ambulances in 1914. van Bergen, above note 1, p. 285 ff. The medical services of the colonial armed forces were also more sparsely staffed and equipped. Harrison, pp. 52–58.

110 Mark Harrison, The Medical War, pp. 3–8, comparing UK, US and German medical services. For the French, see Vincent Viet, La santé en guerre 1914–1918: Une politique pionnière en univers incertain, 2015, Presses de Sciences Po. Only some fifteen years prior to the outbreak of the First World War, for example, during the war in South Africa, Lord Kitchener had requisitioned medical transports for other purposes, with the result that thousands of servicemen sick and dying of typhus were left exposed near the front. Harrison, pp. 6–7.

111 Harrison (Conclusion) and van Bergen, above note 1.

112 Vincent Viet, La santé en guerre 1914–1918: Une politique pionnière en univers incertain, 2015, Presses de Sciences Po, pp. 294–295.

113 Ibid .

114 Harrison, above note 2.

115 On the Western Front, stretcher bearers had high casualty rates. van Bergen, above note 1, pp. 288 and 299.