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convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Commentary [Display Introduction ] [Display Full text ] [Display articles] [ Display commentaries] Chapter III : Hospital ships ARTICLE 22 . -- NOTIFICATION AND PROTECTION OF MILITARY HOSPITAL SHIPS

[p.156] The present Article contains no great changes of substance as compared with Article 1, paragraph 1 (1), of the 1907 Convention , which in turn was taken from the corresponding provision in the 1899 Convention . The two most important changes are, in the first place, the introduction of a stipulation that at least ten days must elapse after the notification of a hospital ship before it is put into service and, in the second place, the requirement that the notification must give not only the name of the ship but also its characteristics. The text contains additional details in three respects. The task of a hospital ship is no longer define d as being to assist the wounded, sick and shipwrecked, but also to treat and transport them. Hospital ships are no longer required to be merely "respected" but to be "respected and protected"; this corresponds to the traditional wording of the Geneva Conventions. It is now specified that they "may in no circumstances be attacked or captured", whereas this was formerly merely implicit in the reference to respect. Then there are a few modifications of form which concern only the French text. Here, as in the rest of the Convention, the word "btiment" has been replaced by "navire" to avoid any possible confusion. Similarly, the term "navires-hpitaux" has been used throughout to indicate military hospital ships as well as private vessels, which in the earlier Conventions had been referred to as "navires hospitaliers". All enjoy the same status. The difference in terminology had perhaps survived from the 1868 Draft, in which military hospital ships remained liable to capture. Some experts proposed that Articles 22, 24 and 25 should be merged into a single provision. That recommendation was not adopted, in order better to stress the difference in origin of the three categories of hospital ships (2).

[p.157] PARAGRAPH 1. -- PROTECTION AND CONDITIONS THEREFOR 1. ' Protection '

This provision extends to hospital ships the immunity which Article 12 confers on the wounded, sick and shipwrecked. Hospital ships are entitled to protection regardless whether or not they are carrying victims on board. They are prote cted not only because they carry wounded persons, but also in their capacity as an instrument ready to assist the victims. For the sense in which the words "respected and protected" are traditionally used, reference should be made to the comments on Article 12 (3). Respect for such ships means first of all that they may not be attacked, harmed or impeded in any way, with the exception that certain rights expressly mentioned in Article 31 may be exercised by the belligerents -- namely the right of contro l and search. One may therefore wonder whether it was really necessary to add here that such ships "may in no circumstances be attacked". Be that as it may, the expression is absolutely clear and explicit. To respect such ships means, secondly, not to inte rfere with their work or with the accomplishment of their task. To protect them is to ensure that they are respected, that is to say to oblige third parties to respect them. It also means coming to their help in case of need. It involves "active co-operation in rescue work" (4). Hospital ships are entitled to immunity "at all times", in all circumstances. They will therefore be protected even if they are lying in a port where the installations may be considered to be military objectives. In such a case, however, although the hospital ship is still legally entitled to protection, in fact its security will be impaired. If the port installations were bombed, the hospital ship would also inevitably be endangered. The attacker must take every precaution in order to reduce risks to a minimum, but at the same time the commander of the ship must evaluate the danger involved and must not expose his ship more than is absolutely necessary. [p.158] The Maritime Convention does not actually contain a provision corresponding to Article 19, paragraph 2 , of the First Convention of 1949, which recommends that medical establishments should not be situated in the vicinity of military objectives; that is undoubtedly a general principle, however, valid also at sea, all the more so because a hospital ship can move easily. In addition to respect and protection, there is an express reference to the fact that hospital ships may not be captured, nor may they be

detained for more than seven days (Article 31 ). This rule is absolute, more categorical than anywhere else in the Geneva Conventions in the case of the wounded, land vehicles and even medical personnel. The privilege is granted because in wartime ships are in short supply, and hospital ships even more so. It would have been a very serious blow to the victims of conflicts to allow such floating hospitals to be taken out of service. Although hospital ships (Articles 22, 24 and 25 ) make up the largest single class of vessel protected by the Geneva Conventions, they are not the only ones to which immunity is accorded. Lifeboats of hospital ships (Article 26 ), coastal rescue craft (Article 27 ) and small craft used by the Medical Service (Article 43, paragraph 3 ) are also entitled to protection. In addition the International Committee of the Red Cross might have occasion to operate ships carrying out humanitarian tasks (5). Similarly, the Fourth Geneva Convention affords protection to vessels conveying wounded and sick civilians (5). 2. ' Conditions for protection '

There are two conditions for according immunity to hospital ships: they must be intended solely for use in that capacity, and their name and characteristics must have been duly notified (6). A. ' Exclusive use '. -- This condition is stated in the present Article in the form of a definition of hospital ships. In order to be entitled to protection under the Convention, they must have been "built [p.159] or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to tr eating them and to transporting them". This provision is supplemented by Article 33 , which specifies that merchant vessels which have been transformed into hospital ships may not be put to any other use throughout the duration of hostilities. Thus, the S tates are free to prepare hospital ships for service as they wish -- either by building them for that particular purpose or by converting other vessels, such as passenger liners; nor are they restricted as to the type of vessel. But in return for the complete immunity granted to such ships, they must be solely and definitively assigned to service as hospital ships. There is some analogy between this rule and those governing the status of medical personnel of the armed forces, who must be exclusively employe d on their own particular duties. The charitable mission of hospital ships must therefore be entire, obvious and durable so that their unimpaired status may be assured. It was in order to prevent any possible abuse that improvised and temporary transformat ion was

excluded. There was lengthy discussion at the Diplomatic Conference as to whether or not a minimum tonnage should be specified for hospital ships entitled to protection. It was finally decided not to include such a requirement, but Article 26 remains and the reader should refer to the commentary on that provision. The very notion of a "hospital ship", the wording used and the characteristics mentioned -- all these indicate that the Article concerns vessels of some size, for otherwise "small craft used by the Medical Service" would be involved, and provision is made for the latter in Article 43 . The charitable mission of hospital ships has been better defined. In addition to "assisting" the wounded, sick and shipwrecked (7), it also involves "treating" them -- i.e. giving them medical care -- and "transporting" them; the latter reference was inserted following a suggestion made by the International Committee of the Red Cross in 1937. In the earlier Conventions, these notions were implied in the general term of "assisting" the wounded, sick and shipwrecked. [p.160] In order to be recognized as such, must a hospital ship have all the installations and equipment necessary for the accomplishment of these three duties? We would be inclined to reply in the negative, and we do not believe that such was the intention of the plenipotentiaries at the 1949 Diplomatic Conference, any more than they intended the enumeration to be restrictive. And yet the Rapporteur of Committee I states quite categorically: "It is not sufficient for the vessel in question to be merely capable of rescue operations. It must be so equipped that it is in a position to care for and transport the wounded, sick and shipwrecked. A very clear distinction is therefore drawn between hospital ships and lifeboats" (8). We do not consider the problem as being of very great importance here. In practice, one cannot imagine a hospital ship treating wounded or sick persons without being able to transport them, or transporting men who by definition are in need of virtually constant attention without being able to give them treatment at least of a summary nature. The three duties listed -- namely to assist, treat and transport the victims -- constitute the special mission of hospital ships. As for determining whether or not a vessel is actually a hospital ship, that is a matter of common sense and good faith. The extension now afforded by Article 13, paragraph (5) , means that hospital ships may now carry sick, wounded or shipwrecked members of the merchant marine as well as those belonging to the armed forces (9). B. ' Notification '. -- The name and characteristics of a hospital ship

must be notified to the Parties to the conflict ten days before it is put into service. This is a new rule. At the Sto ckholm Conference, the experts had proposed a time-limit of thirty days, but at the suggestion of the International Committee of the Red Cross [p.161] it was reduced to ten days. This period should suffice, in view of the means of rapid communication now available. The time-limit was introduced in order to guarantee the security of hospital ships. The belligerent Powers must have time to advise their armed forces everywhere, including even the most remote stations. The commissioning of a hospital ship is an important event, and as we have seen above, it cannot be improvised. Furthermore, there is no reason why the notification should not be sent when the ship is nearing completion, so that not a single day need be lost. If the notification is made during hostilities, it will usually be through the intermediary of the Protecting Power. And although the Convention does not say so, it would also be advisable to notify neutral countries, since hospital ships may have occasion to put into a neutral port. If the notification is made in peace-time (10), it can be sent direct by the State concerned to all the other Powers party to the Convention. In that case, it would be desirable, by way of precaution, to confirm earlier notifications at the opening of hostilities. Since the signature of the 1949 texts, the Belgian Government has proposed, at the suggestion of a Norwegian ship-owner, Mr. Paust (who was Chairman of the International Conference of Lifeboat Organizations in 1947), that the International Committee of the Red Cross should be asked to centralize information regarding the characteristics of rescue craft, and to send periodic notifications to the States bound by the Geneva Conventions. Certain States have suggested that the procedure should be extended to hospital ships. The International Committee of the Red Cross has indicated that it would be prepared to take on that duty if the majority of States so desired. Switzerland, as depositary of the Geneva Conventions, has conducted consultations on the matter but the results have not hitherto proved sufficiently conclusive for any decision to be taken, and the question remains open (11). [p.162] The 1907 text required notification only of the names of hospital ships. In 1949, on a proposal by the United Kingdom an d Denmark, it was wisely decided to add a reference to the characteristics (12). We shall consider what they comprise. PARAGRAPH 2. -CHARACTERISTICS

Under this paragraph, the characteristics to be included in the

notification are the registered gross tonnage, the length from stem to stern and the number of masts and funnels. There is, of course, no reason why a fuller description may not be given. It seems to us highly desirable that a ship's silhouette should be included in the notification for it is t he best means of identification and is widely used in the navy. This would illustrate and supplement the characteristics enumerated in the Convention. As regards the indication of tonnage, it should be briefly noted that warships are described in terms of displacement tonnage (i.e. weight), while in the case of merchant vessels what is always referred to is the "registered tonnage", i.e. the usable volume of the ship, one ton being equivalent to 100 cubic feet (2.83 cubic metres). The "registered gross weight" corresponds to the whole volume of the ship; the "registered net weight" is that volume less the volume taken up by the engines, crew's quarters, supplies of fuel, food, water, and so forth. In this respect, hospital ships are considered like merchant vessels, the determining factor being the hospital accommodation in them.

* (1) [(1) p.156] Article 1, paragraph 2, of the 1907 Convention has become Article 32 of the 1949 Convention; (2) [(2) p.156] For the origin of this Article, see ' Actes ' of the 1899 Conference, pp. 31- 32; ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp. 63 ff., 71 ff., and 108 ff.; (3) (4) (5) [(1) [(2) [(1) p.157] p.157] See p.158] See R. above, GEN T, op. pp. cit., p. p. 89-90; 66; 228;

See

below,

(6) [(2) p.158] In addition, marking should be mentioned, pursuant to Article 43, and the reader should refer to the commentary on that provision. Further, Article 34 indicates the possible causes for discontinuance of protection; (7) [(1) p.159] Article 30 of the task of a hospital ship assistance to the wounded, distinction the present Convention defines as being to afford relief and sick and shipwrecked without of nationality;

(8) [(1) p.160] See ' Final Record of Conference of Geneva of 1949, ' Vol.

the Diplomatic II-A, p. 202;

(9) [(2) p.160] That was in fact the practice during the Second World War (see TUCKER: op. cit., p. 119). Moreover, a hospital ship will not be deprived of protection if it transports sick civilians. See the commentary o n Article 35 (4). p. 196 below; (10) [(1) p.161] Although the Convention refers to "Parties ' to the conflict '", the validity, of a notification sent before the commencement of a conflict cannot be disputed, as the purpose is fully achieved; (11) [(2) p.161) For further details, see Gilbert GIDEL: "La protection des embarcations de sauvetage". ' Revue internationale de la Croix-Rouge, ' September 1955; (12) [(1) p.162] Whereas the English text speaks of "descriptions" in paragraph 1 and "characteristics " in paragraph 2, the French text (which is equally authentic) uses the word "caractristiques" in both places; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Commentary [Display Introduction ] [Display Full text ] [Display articles] [ Display commentaries ] Chapter III : Hospital ships ARTICLE 22 . -- NOTIFICATION AND PROTECTION OF MILITARY HOSPITAL SHIPS

[p.156] The present Article contains no great changes of substance as compared with Article 1, paragraph 1 (1), of the 1907 Convention , which in turn was taken from the corresponding provision in the 1899 Convention . The two most important changes are, in the first place, the introduction of a stipulation that at least ten days must elapse after the notification of a hospital ship before it is put into service and, in the second place, the requirement that the notification must give not only the name of the ship but also its characteristics.

The text contains additional details in three respects. The task of a hospital ship is no longer defined as being to assist the wounded, sick and shipwrecked, but also to treat and transport them. Hospital ships are no longer required to be merely "respect ed" but to be "respected and protected"; this corresponds to the traditional wording of the Geneva Conventions. It is now specified that they "may in no circumstances be attacked or captured", whereas this was formerly merely implicit in the reference to r espect. Then there are a few modifications of form which concern only the French text. Here, as in the rest of the Convention, the word "btiment" has been replaced by "navire" to avoid any possible confusion. Similarly, the term "navires-hpitaux" has been used throughout to indicate military hospital ships as well as private vessels, which in the earlier Conventions had been referred to as "navires hospitaliers". All enjoy the same status. The difference in terminology had perhaps survived from the 1868 D raft, in which military hospital ships remained liable to capture. Some experts proposed that Articles 22, 24 and 25 should be merged into a single provision. That recommendation was not adopted, in order better to stress the difference in origin of the three categories of hospital ships (2). [p.157] PARAGRAPH 1. -- PROTECTION AND CONDITIONS THEREFOR 1. ' Protection '

This provision extends to hospital ships the immunity which Article 12 confers on the wounded, sick and shipwrecked. Hospital ships are entitled to protection regardless whether or not they are carrying victims on board. They are protected not only because they carry wounded persons, but also in their capacity as an instrument ready to assist the victims. For the sense in which the words "respected and protected" are traditionally used, reference should be made to the comments on Article 12 (3). Respect for such ships means first of all that they may not be attacked, harmed or impeded in any way, with the exception that certain rights expressly mentioned in Article 31 may be exercised by the belligerents -- namely the right of control and search. One may therefore wonder whether it was really necessary to add here that such ships "may in no circumstances be attacked". Be that as it may, the expression is absolutely clear and explicit. To respect such ships means, secondly, not to interfere with their work or with the accomplishment of their task. To protect them is to ensure

that they are respected, that is to say to oblige third pa rties to respect them. It also means coming to their help in case of need. It involves "active co-operation in rescue work" (4). Hospital ships are entitled to immunity "at all times", in all circumstances. They will therefore be protected even if they are lying in a port where the installations may be considered to be military objectives. In such a case, however, although the hospital ship is still legally entitled to protection, in fact its security will be impaired. If the port installations were bombed, the hospital ship would also inevitably be endangered. The attacker must take every precaution in order to reduce risks to a minimum, but at the same time the commander of the ship must evaluate the danger involved and must not expose his ship more than i s absolutely necessary. [p.158] The Maritime Convention does not actually contain a provision corresponding to Article 19, paragraph 2 , of the First Convention of 1949, which recommends that medical establishments should not be situated in the vicinity o f military objectives; that is undoubtedly a general principle, however, valid also at sea, all the more so because a hospital ship can move easily. In addition to respect and protection, there is an express reference to the fact that hospital ships may no t be captured, nor may they be detained for more than seven days (Article 31 ). This rule is absolute, more categorical than anywhere else in the Geneva Conventions in the case of the wounded, land vehicles and even medical personnel. The privilege is gra nted because in wartime ships are in short supply, and hospital ships even more so. It would have been a very serious blow to the victims of conflicts to allow such floating hospitals to be taken out of service. Although hospital ships (Articles 22, 24 and 25 ) make up the largest single class of vessel protected by the Geneva Conventions, they are not the only ones to which immunity is accorded. Lifeboats of hospital ships (Article 26 ), coastal rescue craft (Article 27 ) and small craft used by the Medical Service (Article 43, paragraph 3 ) are also entitled to protection. In addition the International Committee of the Red Cross might have occasion to operate ships carrying out humanitarian tasks (5). Similarly, the Fourth Geneva Convention affords protection to vessels conveying wounded and sick civilians (5). 2. ' Conditions for protection '

There are two conditions for according immunity to hospital ships: they must be intended solely for use in that capacity, and their name and characteristics must have been duly notified (6).

A. ' Exclusive use '. -- This condition is stated in the present Article in the form of a definition of hospital ships. In order to be entitled to protection under the Convention, they must have been "built [p.159] or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them". This provision is supplemented by Article 33 , which specifies that merchant vessels which have been transforme d into hospital ships may not be put to any other use throughout the duration of hostilities. Thus, the States are free to prepare hospital ships for service as they wish -- either by building them for that particular purpose or by converting other vessels , such as passenger liners; nor are they restricted as to the type of vessel. But in return for the complete immunity granted to such ships, they must be solely and definitively assigned to service as hospital ships. There is some analogy between this rule and those governing the status of medical personnel of the armed forces, who must be exclusively employed on their own particular duties. The charitable mission of hospital ships must therefore be entire, obvious and durable so that their unimpaired status may be assured. It was in order to prevent any possible abuse that improvised and temporary transformation was excluded. There was lengthy discussion at the Diplomatic Conference as to whether or not a minimum tonnage should be specified for hospital ships entitled to protection. It was finally decided not to include such a requirement, but Article 26 remains and the reader should refer to the commentary on that provision. The very notion of a "hospital ship", the wording used and the characteristics me ntioned -- all these indicate that the Article concerns vessels of some size, for otherwise "small craft used by the Medical Service" would be involved, and provision is made for the latter in Article 43 . The charitable mission of hospital ships has been better defined. In addition to "assisting" the wounded, sick and shipwrecked (7), it also involves "treating" them -- i.e. giving them medical care -- and "transporting" them; the latter reference was inserted following a suggestion made by the International Committee of the Red Cross in 1937. In the earlier Conventions, these notions were implied in the general term of "assisting" the wounded, sick and shipwrecked. [p.160] In order to be recognized as such, must a hospital ship have all the installations and equipment necessary for the accomplishment of these three duties? We would be inclined to reply in the negative, and we do not believe that such was the intention of the plenipotentiaries at the 1949 Diplomatic Conference, any more than they intended the enumeration to be restrictive. And yet the

Rapporteur of Committee I states quite categorically: "It is not sufficient for the vessel in question to be merely capable of rescue operations. It must be so equipped that it is in a position to care for and transport the wounded, sick and shipwrecked. A very clear distinction is therefore drawn between hospital ships and lifeboats" (8). We do not consider the problem as being of very great importance here. In practice, one cannot imagine a hospital ship treating wounded or sick persons without being able to transport them, or transporting men who by definition are in need of virtually constant attention without being able to give them treatment at least of a summary nature. The three duties listed -- namely to assist, treat and transport the victims -- constitute the special mission of hospital ships. As for determining whether or not a vessel is actually a hospital ship, that is a matter of common sense and good faith. The extension now afforded by Article 13, paragraph (5) , means that hospital ships may now carry sick, wounded or shipwrecked members of the merchant marine as well as those belonging to the armed forces (9). B. ' Notification '. -- The name and characteristics of a hospital ship must be notified to the Parties to the conflict ten days before it is put into service. This is a new rule. At the Stockholm Conference, the experts had proposed a time-limit of thirty days, but at the suggestion of the International Committee of the Red Cross [p.161] it was reduced to ten days. This period should suffice, in view of the means of rapid communication now available. The time-limit was introduced in order to guarantee the security of hospital ships. The belligerent Powers must have time to advise their armed forces everywhere, including even the most remote stations. The commissioning of a hospital ship is an important event, and as we have seen above, it cannot be improvised. Furthermore, there is no reason why the notification should not be sent when the ship is nearing completion, so that not a single day need be lost. If the notification is made during hostilities, it will usually be through the intermediary of the Protecting Power. And although the Convention does not say so, it would also be advisable to notify neutral countries, since hospital ships may have occasion to put into a neutral port. If the notification is made in peace-time (10), it can be sent direct by the State concerned to all the other Powers party to the Convention. In that case, it would be desirable, by way of precaution, to confirm earlier notifications at the opening of hostilities. Since the signature of the 1949 texts, the Belgian Government has

proposed, at the suggestion of a Norwegian ship-owner, Mr. Paust (who was Chairman of the International Conference of Lifeboat Organizations in 1947), that the International Committee of the Red Cross should be asked to centralize information regarding the characteristics of rescue craft, and to send periodic notifications to the States bound by the Geneva Conventions. Certain States have suggested that the procedure should be extended to hospital ships. The International Committee of the Red Cross has indicated that it would be prepared to take on that duty if the majority of States so desired. Switzerland, as depositary of the Geneva Conventions, has conducted consultations on the matter but the results have not hitherto proved sufficiently conclusive for any decision to be taken, and the question remains open (11). [p.162] The 1907 text required notification only of the names of hospital ships. In 1949, on a proposal by the United Kingdom and Denmark, it was wisely decided to add a reference to the characteristics (12). We shall consider what they comprise. PARAGRAPH 2. -CHARACTERISTICS

Under this paragraph, the characteristics to be included in the notification are the registered gross tonnage, the length from stem to stern and the number of masts and funnels. There is, of course, no reason why a fuller description may not be given. It seems to us highly desirable that a ship's silhouette should be included in the notification for it is the best means of identification and is widely used in the navy. This would illustrate and supplement the characteristics enumerated in the Convention. As regards the indication of tonnage, it should be briefly noted that warships are described in terms of displacement tonnage (i.e. weight), while in the case of merchant vessels what is always referred to is the "registered tonnage", i.e. the usable volume of the ship, one ton being equivalent to 100 cubic feet (2.83 cubic metres). The "registered gross weight" corresponds to the whole volume of the ship; the "registered net weight" is that volume less the volume taken up by the engines, crew's quarters, s upplies of fuel, food, water, and so forth. In this respect, hospital ships are considered like merchant vessels, the determining factor being the hospital accommodation in them.

* (1) [(1) p.156] Article 1, paragraph 2, of the 1907 Convention has become Article 32 of the 1949 Convention;

(2) [(2) p.156] For the origin of this Article, see ' Actes ' of the 1899 Conference, pp. 31- 32; ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp. 63 ff., 71 ff., and 108 ff.; (3) (4) (5) [(1) [(2) [(1) p.157] p.157] See p.158] See R. above, GEN T, op. pp. cit., p. p. 89-90; 66; 228;

See

below,

(6) [(2) p.158] In addition, marking should be mentioned, pursuant to Article 43, and the reader should refer to the commentary on that provision. Further, Article 34 indicates the possible causes for discontinuance of protection; (7) [(1) p.159] Article 30 of the task of a hospital ship assistance to the wounded, distinction the present Convention defines as being to afford relief and sick and shipwrecked w ithout of nationality; the Diplomatic II-A, p. 202;

(8) [(1) p.160] See ' Final Record of Conference of Geneva of 1949, ' Vol.

(9) [(2) p.160] That was in fact the practice during the Second World War (see TUCKER: op. cit., p. 119). Moreover, a hospital ship will not be deprived of protection if it transports sick civilians. See the commentary on Article 35 (4). p. 196 below; (10) [(1) p.161] Although the Convention refers to "Parties ' to the conflict '", the validity, of a notification sent before the commencement of a conflict cannot be disputed, as the purpose is fully achieved; (11) [(2) p.161) For further details, see Gilbert GIDEL: "La protection des embarcations de sauvetage". ' Revue internationale de la Croix-Rouge, ' September 1955; (12) [(1) p.162] Whereas the English text speaks of "descriptions" in paragraph 1 and "characteristics" in paragraph 2, the French text (which is equally authentic) uses the word "caractristiques" in both places;

Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Commentary [Display Introduction ] [Display Full text ] [Display articles] [ Display commentaries] Chapter VI : The distinctive emblem ARTICLE 43 . -- MARKING OF HOSPITAL SHIPS AND SMALL CRAFT [p.241] This long provision merely develops and brings up to date Article 5 of the 1907 Convention , which in turn was an expanded version of the corresponding provisions in the 1899 and 1868 Conventions. Paragraphs 6 and 8 are, however, completely new. PARAGRAPH 1. -METHODS OF MARKING

It had long been acknowledged that the system of marking hospital ships adopted in 1907, at a time when air forces did not exist, was completely inadequate. Hospital ships were to be painted white outside with a horizontal band of green or red, and were to fly the red cross flag. The experts who met in 1937 recommended that large red crosses on a white ground should be painted on the hull and deck of hospital ships. During the Second World War, the belligerents often adopted that means of identification. It is clear from the records that the lack of an up-to-date system of marking, visible at a great distance, was the cause of most of the attacks made on hospital ships during the Second World War (1). On this point, the 1949 Diplomatic Conference therefore adopted far reaching amendments to the 1907 text. It did not, however, adopt the radical innovations proposed by certain delegations such as, for instance, that the whole ship should be painted orange and black. The intention was to reach a simple, practical solution, not involving marking on the superstructure. [p.242] A uniform system of marking was adopted for hospital ships, whether they belong to a State or to a belligerent or neutral relief society, whereas under the 1907 Convention -- as a survival from the 1868 text in which ships were treated differently according to their origin -- some were to bear a green band, and others a red band. The 1949 Diplomatic Conference decided to do away with bands of any kind, in order to make the red cross more clearly visible. As in the past, all exterior surfaces of the ship are to be white. Any mention of ships being "painted" white was omitted deliberately, for there may be other more convenient and more durable means of applying the colour i. On the other hand, the word "painted" was retained in the case of lifeboats (paragraph 3) and the red crosses.

The text specifies that ' all ' exterior surfaces must be white, and this therefore applies also to the visible parts of the deck. A great deal of maintenance might be entailed, and it would be inappropriate to reproach a ship's captain with the fact that small patches of the deck were worn or soiled by footmarks. The essential thing is that an aircraft should at first glance be able to identify the deck as being white. The provision also stipulates that one or more dark red crosses, as large as possible, are to be painted on each side of the hull and on the horizontal surfaces, so as to afford the greatest possible visibility from the sea and from the air. The number and size of crosses to be painted was intentionally not specified, for they will depend on the size and shape of the vessel (2). The essential thing is that it should be as clear as possible that the vessel is a hospital ship. Similarly, the reference to "dark red" obviously does not mean that a ship on which the red crosses were of another shade would not be protected. This is merely a recommendation intended to increase the effective security of a floating hospital by providing a better colour contrast. In accordance with the references to other Articles of the Convention, the present paragraph applies not only to hospital [p.243] ships but also to coastal rescue craft. By another reference, in paragraph 3, it also applies "in general" to lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service. PARAGRAPH 2. -FLAGS

This provision lays down rules regarding the three types of flag applicable to hospital ships (and also to other protected craft in virtue of the reference made in paragraph 3). The national flag of the belligerent must be flown. On the other hand, a hospital ship will not fly the pennant hoisted by warships. Hospital ships belonging to a neutral State and assisting a belligerent must fly their national flag as well as that of the belligerent concerned. The records of the 1907 Conference at The Hague indicate where the flags should be flown: the flag of the neutral State is to be flown in its usual place, and the flag of the belligerent together with the red cross flag is to be flown from the mainmast (3). Last and most important, hospital ships must fly a white flag with a red cross. That provision already existed in the earlier instruments, but the 1949 Diplomatic Conference decided to specify where it should be flown, although that place had already become traditional as may be seen from the reference above: it is to be flown at the mainmast, as high as possible. Why should this be so? Because it is the part of the ship which first appears over the horizon. The white

flag with a red cross will therefore be placed above the flag of the belligerent. PARAGRAPH 3. -LIFEBOATS

This provision indicates the method of marking to be used for (a) lifeboats of hospital ships (which are protected pursuant to Article 26 ); (b) coastal lifeboats (which are protected pursuant to Article 27 ); and (c) small craft used by the Medical Service. [p.244] There is no other provision specifying that the latter category is to be protected, and a similar anomaly existed in the 1907 text: the three categories of craft mentioned above were granted protection only indirectly under Article 5 , relating to marking. The situation was put right in 1949 in the case of the first two categories, but the anomaly still remains in the case of the third. This means that "all small craft used by the Medical Service" are protected only pursuant to a si ngle reference, that in the present paragraph, which is included in an Article relating to the distinctive emblem. The reference nevertheless establishes the fact of protection, but the anomaly as regards form means that it will not be compulsory to send a notification to the other Parties to the conflict concerning such small craft. In practice, however, the Powers would do well to send a notification, in accordance with the rules set forth in Article 22 . For these three categories of small craft, there are two compulsory rules in regard to marking: firstly, they must be painted white, and secondly, dark red crosses must be prominently displayed on them. There are other stipulations which are not compulsory, such as, for instance, that such craft "shall, in general, comply with the identification system prescribed above for hospital ships". The identification system, in addition to the requirements repeated here, includes those which follow from paragraphs 1 and 2 (marking on the deck, flags). "In general" means to the extent possible having regard to the size and shape of such craft, for some of them are not decked over or have no masts. Reference should be made here to the problem of ' the marking of fixed coastal installations ' used exclusively by coast al rescue craft and protected under Article 27 . The Second Geneva Convention does not actually stipulate that such installations may or must be marked with the emblem of a red cross on a white ground, but that is an obvious gap in the provisions. It seem s to us sound doctrine and a reasonable interpretation of the relevant texts to acknowledge that such installations may, in war -time, display the distinctive emblem even though they are not hospital buildings accommodating wounded persons, but boat-houses, hangars or workshops. If the enemy is to

be able to respect them, as required under the Convention, he must be able to identify them from far off. [p.245] What method of marking should be used for coastal installations? Need they only display the red cros s emblem, or should all the external surfaces of the installations be entirely painted white? The Convention makes no reference to this point, and it seems to us sufficient if they display the sign of the red cross on a white ground. Only in the case of vessels are all exterior surfaces required to be white, and there is no similar provision regarding hospitals on land. Obviously, however, there is nothing to prevent coastal rescue installations from being painted white. As regards ' paragraph 4, ' concerning ' marking at night, ' we will merely quote the relevant passage by the Rapporteur of Committee I at the 1949 Diplomatic Conference: "At night and at times of reduced visibility, hospital ships are to display their various markings, unless the belligeren t in whose hands they are prohibits them from doing so. The Committee was not prepared to dictate any system of lighting, floodlighting, crosses illuminated from within, etc. The solution chosen will, for that matter, vary with the size and special constru ction of the ship, and with geographical and meteorological conditions, etc." (4). ' Paragraph 5, ' which relates to detained hospital ships, is self explanatory. If a hospital ship is provisionally detained by the enemy for the specified maximum period of seven days, in exceptional circumstances, pursuant to Article 31 , that ship must haul down the flag of the belligerent in whose service it normally is, in order to make clear its special position. It will not be required to fly the flag of the belligerent detaining it. ' Paragraph 6 ' is entirely new and was proposed by the Netherlands Delegation. As stated in the Final Record of the Diplomatic Conference of 1949, it "met the wishes of a great number of national lifeboat institutions belonging to forme rly occupied countries which had experienced difficulties during the last war. Crews of lifeboats had refused to put to sea under the flag of the Occupying Power. He (Rapporteur of the working party which considered these questions) would have preferred such lifeboats to have been [p.246]

able to operate under the red cross flag only. The suggestion, however, had been considered dangerous by other delegates, who thought it necessary to be able to recognize the country of

origin of the lifeboats" (5). The wording of the paragraph shows that in certain cases where circumstances so warrant, the Occupying Power might refuse to consent to the use of lifeboats. In general, however, such consent must be given pursuant to the principles resulting in particular from Article 27 of the present Convention and Article 16 of the Fourth Geneva Convention. The expression "when away from their base" must be interpreted as meaning when lifeboats put to sea, when they leave harbour. The notification mentioned here, which is in addition to the notification specified in Articles 27 and 22 , will normally be sent by the Occupying Power, through the intermediary of the Protecting Power.
' Paragraph 7 ' may seem superfluous in view of Article 41 commentary on which should be referred , the to.

' Paragraph 8 ' is new and the idea it contains is a good one. With the speed of technical progress, the Convention was always liable to be one war behind in this domain. All the methods of marking referred to above may therefore be brought up to date at a later stage. In 1949 new inventions were referred to, but the Parties to a conflict would have to agree on their use. At the 1949 Diplomatic Conference, it was proposed that hospital ships should "try to make known, periodically and adequately, their position, course and speed". The suggestion was rejected i, but it was embodied in a Resolution of the Conference (Resolution No. 7) (6).

* (1) [(1) p.241] See ' Report of the International Committee of the Red Cross on its activities during the Second World War, ' Vol. I, p. 213; (2) [(1) p.242] See ' Final Record of Conference of Geneva of 1949, ' Vol. the Diplomatic II-A, p. 160;

(3) [(1) p.243] ' Actes ' of the 1907 Conference, Vol. III, p. 296; (4) [(1) p.245] See ' Final Record of Conference of Geneva of 1949, ' Vol. the Diplomatic II-A, p. 205;

(5) [(1) p.246] See ' Final Record of Conference of Geneva of 1949, ' Vol.

the Diplomatic II-A, p. 161;

(6) [(2) p.246] For the text of the Resolution, see below, p. 287; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Article [Display Introduction ] [Display Full text] [Display articles] [Display commentaries ] Chapter VI : The distinctive emblem ARTICLE 43 The ships designated in Articles 22 , 24 , 25 distinctively marked as (a) All exterior surfaces shall and 27 shall be follows: white.

be

(b) One or more dark red crosses, as large as possible, shall be painted and displayed on each side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible visibility from the sea and from the air.

All hospital ships shall make themselves known by hoisting their national flag and further, if they belong to a neutral state, the flag of the Party to the conflict whose direction they have accepted. A white flag with a red cross shall be flown at the mainmast as high as possible.
Lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service shall be painted white with dark red crosses prominently displayed and shall, in general, comply with the identification system prescribed above for hospital ships. The above-mentioned ships and craft, which may wish to ensure by night and in times of reduced visibility the protection to which they are entitled, must, subject to the assent of the Party to the conflict under whose power they are, take the necessary measures to render their painting and distinctive emblems sufficiently appar ent. Hospital ships which, in accordance with Article 31 , are provisionally detained by the enemy, must haul down the flag of the Party to the conflict in whose service they are or whose direction they

have accepted. Coastal lifeboats, if they continue to operate with the consent of the Occupying Power from a base which is occupied, may be allowed, when away from their base, to continue to fly their own national colours along with a flag carrying a red cross on a white ground, subject to prior notification to all the Parties to the conflict concerned. All the provisions in this Article relating to the red cross shall apply equally to the other emblems mentioned in Article 41 . Parties to the conflict shall at all times endeavour to conclude mutual agreements, in order to use the most modern methods available to facilitate the identification of hospital ships.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Commentary [Display Introduction ] [Display Full text ] [Display articles] Part II : Wounded, sick and shipwrecked #Section II -- Medical transportation [p.253] Article 22 [p.254] -- Hospital ships and coastal rescue craft General remarks

848 The 1973 draft divided the Section devoted to medical transportation into two chapters: "common provisions" and "Medical aircraft". At first sight it apparently did not contain any articlesolely devoted to medical ships and craft. However, a close examination reveals that apart from paragraph 3, which deals with amphibious medical transports, Article 23 of the draft actually deals exclusively with medical ships and craft. 849 The first paragraph of the draft sought to bring civilian medical ships and craft, as defined by the Protocol, under the terms of the Second Convention. Up to that time they had not been covered by that Convention. 850 The second paragraph was concerned with clarifying the provisions applicable to medical ships and craft on inland waterways, i.e., ' not at sea. ' As a matter of fact, the Second Convention

only covers protection ' at sea ', and some doubt remained regarding the legal rgime which applies to medical ships and craft navigating on waters other than the sea. 851 The third paragraph dealt with amphibious medical transp orts, specifying that they were subject to "the provisions relating to their use at a given time". Thus the Second Convention would be applicable to them at sea, and the first (or perhaps even the fourth Convention) would apply on land. 852 Finally, the fourth paragraph specified that though medical ships and craft, as defined by the Protocol -- i.e., also ' civilian ' medical ships and craft -- were covered by the Second Convention as a whole, the articles devoted to hospital ships were applicable only to such ships. The need to clarify this point seemed to be indispensable due to the fact that the function of hospital ships justifies more extensive privileges, while at the same time also requiring a stricter notification procedure. 853 As we saw above, (1) the structure of the ICRC draft of the Section devoted to medical transportation was completely modified during the Diplomatic [p.255] Conference. On this occasion the problem of medical ships and craft was seriously taken up by a Working Group of Committee II on the basis of numerous amendments, (2) and finally, two long articles exclusively devoted to this question were included in the Protocol. 854 These articles basically offer a solution to the two following subjects of concern: -- to permit ships and craft already covered by the Second Convention to also be available for all ' civilian ' wounded, sick and shipwrecked persons; -- to provide protection for medical ships and craft which had not been covered by the Second Convention. 855 These two concerns are reflected in two separate articles, the first of which deals with the new privileges granted ships and craft already covered by the Second Convention, while at the same time slightly extending the category of hospital ships; (3) and the second of which deals with the protection of medical ships and craft not covered by the Second Convention, which will benefit from privileges slightly less extensive than the former, though in accordance with a more flexible procedure.

856 The articles which were adopted go further and are much more detailed than Article 23 of the 1973 draft while resolving the questions raised in the draft. Moreover, although this question was not mentioned in Article 22 as finally adopted, it was clearly stated during the discussions in Committee II that, unlike what was indicated in Article 23, paragraph 2, of the draft: "a hospital ship enjoyed its privileged status wherever it might be, and no distinction was drawn whether it happened to be on the high seas or elsewhere". (4) This point of view prevailed, and it must be concluded that hospital ships fall under the scope of the Second Convention wherever they happen to be. Paragraph 1

857 In the Second Convention, the ships described in Articles 22 , 24 and 25 are those which are "built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them". (5) The wounded, sick and shipwrecked referred to are essentially members of the armed forces. (6) 858 As one of the main aims of Part II of the Protocol is to grant the same protection to any wounded, sick or shipwrecked person, whether civilian or military, it was deemed necessary to specify that such ships, as well as their lifeboats and small craft, and coastal rescue craft, (7) can lawfully be used for civilian wounded, sick [p.256] and shipwrecked persons, and that in doing so they retain the rights granted them under the Second Convention, as do their personnel and crew. 859 Nevertheless, it should be noted that even under the rgime of the Second Convention, the ships and craft that are covered were already under an obligation to offer assistance to any shipwrecked person they came across, in accordance with the general law of the sea. However, a specific task of taking care of civilian wounded, sick and shipwrecked persons could not be said to rest upon them, nor, in particular, that of transporting such wounded and sick civilians. ' Sub-paragraph (a) '

860 To be absolutely precise, this should have referred to "ships and craft", since Article 27 of the Second Convention deals with '

coastal rescue craft. ' As such ships and craft are described in the articles of the Second Convention that are mentioned, reference can be made to them. However, the provisions relating to such ships and craft are not only those where they are described, but also Article 26 , which recommends a minimum tonnage of 2,000 tons gross for hospital ships transporting wounded, sick and shipwrecked over long distances; Article 29 , which permits hospital ships to leave ports falling into the hands of the enemy; Article 30 , concerning the use of hospital ships and small craft; Article 31 , granting the right of Parties to the conflict to control, search, and, where justified even to detain such ships and craft for a period not exceeding seven days; Article 32 , which deals with their stay in a neutral port; Article 33 , which imposes on merchant vessels which have been converted into hospital ships the obligation to remain dedicated to such use throughout the duration of hostilities; and Articles 34 and 35 , which cover the cessation of protection. ' Sub-paragraph (b) '

861 The protection granted hospital ships is explicitly extended to their lifeboats -- which is obviously necessary -- by the Second Convention. (8) On the other hand, the latter does not refer to the ' small craft ' of such ships. Yet there is no doubt that these were also covered. To mention them separately has the advantage of removing any ambiguity about the fact that auxiliary craft belonging to a hospital ship for the purpose of helping it to carry out its tasks is also protected. ' Sub-paragraph (c) '

862 This refers to the rules of Article 36 of the Second Convention relating to the medical personnel (9) of hospital ships, and those of Article 37 for any religious or medical personnel who might be on board coastal rescue craft. [p.257] ' Sub-paragraph (d) '

863 The provisions of the Second Convention relating to such wounded, sick and shipwrecked persons are those of Article 12 , which describes the protection and treatment to which they are entitled; Article 14 , which lays down the conditions under which a belligerent may require the surrender of such persons; Article 15 , which deals with cases in which they are taken on board a neutral warship or neutral military aircraft; Article 16 , which provides for

the fate of those who have fallen into enemy hands; and finally, Article 17 , which deals withsuch persons who are landed in a neutral port. 864 As regards civilian wounded, sick and shipwrecked persons covered by the Protocol but not by the Second Convention, we will see below that only Article 12 of the latter remains applicable. However, it was necessary to point out that the fate of the wounded, sick and shipwrecked covered by the Second Convention is not affected by the presence on board ship of wounded, sick and shipwrecked persons not covered by that Convention. 865 Therefore, what new category of wounded, sick and shipwrecked persons can henceforth be taken on board, treated and transported without restriction? This covers all civilian wounded, sick and shipwrecked persons who are not already covered by Article 13 of the Second Convention. 866 The Protocol describes in detail which persons are included in the categories of wounded, sick and shipwrecked. (10) 867 As regards Article 13 of the Second Convention, this basically covers military wounded, sick and shipwrecked, though it also covers some well-defined categories of civilians. (11) Nevertheless, the great majority of civilians are not covered by this article, and in this respect the present article represents a step forward. 868 Although on the main points the rules applicable to such civil ians are the same -- i.e., the right to protection and care (12) -- they are not identical with regard to other points, as wasmentioned above: 1) ' Such civilians (viz., those not covered by Article 13 of the Second Convention) may not be surrendered to any Party which is not their own ' 869 Article 14 of the Second Convention permits warships of belligerent Parties to require that the wounded, sick or shipwrecked on board hospital ships or other craft shall be surrendered to them, provided that the condition of the persons to [p.258] be transferred permits this, and that the warship can provide adequate facilities for necessary medical treatment. Though this rule continues to apply to the wounded, sick and shipwrecked covered by Article 13 of the Second Convention, regardless of their nationality, it does not apply to all ' civilian ' wounded, sick and shipwrecked

persons. Only the surrender to those who are nationals of the State whose flag the warship is flying can be lawfully required by this shi p. As regardsshipwrecked persons who have not yet been taken on board, a rather subtle distinction has to be made between the act of taking them on board and capturing them. When not engaged in combat, a warship has the duty to ' take on board ' shipwrecke d persons, and in by far the majority of cases this could not be terme "capture". Such action could be termed "capture" only in the possibly rather academic case that shipwrecked persons are manifestly on the point of reaching dry land safe and sound, or of being taken on board by another craft. In this respect the determining factor is the intention of the captain of the warship. 870 The hospital ships covered by Articles 22 , 24 and 25 of the Second Convention all depend on a Party to the conflict, either belonging to it, or officially commissioned by it or otherwise placed under its command. Thus, in principle they will not enter the territorial waters or approach the territory of an adverse Party to that on which they depend. Nevertheless, they may be compelled to do so by adverse circumstances (storms, damage etc.), and again in such a case the surrender of the civilian wounded, sick and shipwrecked who are not covered by Article 13 of the Second Convention, or are not nationals of the adverse Party, cannot be required by the latter either. However, hospital ships will entrust such persons to thisParty if their condition requires care which they are unable to provide. In this the victim's interests are predominant -- a matter of common sense. Moreover, as they do not enjoy extraterritorial rights, hospital ships have no power to oppose the wishes of those in their care who ask the adverse Party to land in the latter's territory. 871 Finally, it should be noted that no reservation has been made f or civilian wounded, sick and shipwrecked who do not wish to return to their own territory, even though they are nationals of a Party to the conflict (refugees, political dissidents etc.) The Protocol does not prevent a Party to the conflict -- particularly one of its warships -from requiring the surrender of such persons. Nevertheless, the latter should still enjoy at least the guarantees provided by Article 75 ' (Fundamental guarantees). ' (13) 872 The question of the fate of those on board a hospita l ship or medical craft which has landed in a neutral port is examined below. (14)

[p.259] 2) ' Nevertheless, such civilians may find themselves in the power of a party to the conflict other than their own, and in this case they will be covered by the Fourth Convention and this Protocol ' 873 The Protocol provides that civilians not covered by Article 13 of the Second Convention may not be surrendered to a Party to the conflict of which they are not nationals. However, it is conceivable that such civilians could fall into the hands of such a Party, particularly if they are taken on board a ship belonging to the latter. In such cases they should obviously not be treated as civilians covered by Article 13 of the Second Convention, who become prisoners of war, but as aliens within the territory of a Party to the conflict. 874 If they are nationals of an adverse Party, the fourth Convention applies to them, particularly Section II (Aliens within the territory of a Party to the conflict) of Part III, and in the case that they are interned, Section IV (Regulations for the treatment of internees). As regards the Protocol, one or more provisions of Section III (Treatment of persons in the power of a Party to theconflict) of Part IV may also be applicable to them, depending on the circumstances. 875 If they are nationals of a neutral or other State not Party to the conflict, the above-mentioned provisions of the fourth Convention and the Protocol apply to them only if the State of which they are nationals has no "normal diplomatic representation in the State in whose hands they are". (15) The general question of the status of shipwrecked persons, and the rights and obligations arising therefrom, was examined above. (16) Paragraph 2

876 Article 25 of the Second Convention provides for the possibility that hospital ships are used by National Red Cross Societies, or other officially recognized relief societies, or even private persons of ' neutral countries ' -- according to the terminology of Protocol I, of a "neutral or other State not Party to the conflict" (17) -- under the control of a Party to the conflict. The present paragraph deals with the possibility, not provided for in Article 25 of the Second Convention, that a hospital ship is made available directly to a Party to the conflict by a neutral or other State not Party to the conflict, or by an impartial international humanitarian organization.

877 Such a hospital ship must be made available "for humanitarian purposes". 878 This last point was ha rdly necessary considering it is a requirement for all hospital ships. However, it was stressed in this context to remove any possible doubt regarding the character of the donor's intention. 879 Article 25 of the Second Convention specifies that the hos pital ship is "utilized" by the society or the private person making it available, which implies that the latter provides the necessary crew and medical personnel. As the present [p.260] paragraph does not specify whether the hospital ship is made available with or without an adequate crew and medical personnel, it must be recognized that both possibilities exist. 880 In any case, protection is granted such a hospital ship only if the conditions listed under Article 25 of the Second Convention are fulfilled, viz.: - the hospital ship is placed under the control -- and under the responsibility -- of the Party to the conflict to which it has been made available; - it has been made available with the consent not only of the Party receiving it, but also with that of the government of those providing it. This last condition is obviously superfluous whenthe neutral State itself provides the hospital ship. Its meaning is more difficult to determine when it is provided by an impartial international humanitarian organization, (18) but it would seem that in most cases the agreement of a government other than that of the beneficiary State is not required. Nevertheless, a more precise answer could be given only after an analysis of the various organizations concerned; - the provisions of Article 22 of the Second Convention concerning notification must be observed: the names and characteristics of hospital ships made available in this way must be notified to the Parties to the conflict ten days before those ships are used. Moreover, it is specified that "the characteristics which must appear in the notification shall include registered gross tonnage, the length from stem to stern, and the number of masts and funnels". (19) Paragraph 3

881 This paragraph makes a more flexible provision for one of the conditions to which the protection of coastal rescue craft is subject. In fact, it seemed excessively formal to make thenotification of such craft a condition of their protection, as is the case in Article 27 of the Second Convention. Thus the Protocol recommends such notification, which provides an additional guarantee for such craft to be respected, but it does not make it a ' condition ' of protection. Thus, this should prevent such craft from being immobilized at a time when their services could be of enormous value from a humanitarian point of view. ' Y.S. ' Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Commentary [Display Introduction ] [Display Full text ] [Display articles] [ Display commentaries ] Chapter III : Hospital ships ARTICLE 35 . -- CONDITIONS NOT DEPRIVING HOSPITAL SHIPS OF PROTECTION

The principle of this Article was contained in the 1907 Convention. Like the preceding provision, it was adopted with a view to concordance with the First Geneva Convention. In 1949, the last three sub-paragraphs were added. The Article sets out five conditions not depriving a hospital ship or sick-bay of protection, or, in other words, which must not be regarded as acts harmful to the enemy. They are particular [p.194] cases where hospital ships and sick-bays retain their character as such and their right to immunity, despite certain appearances which might hav e led to the contrary conclusion or at least given rise to some doubt. The object of the provision was to avoid disputes which arise only too easily between opposing Parties. The list is not, in our opinion, to be considered as comprehensive, even though the customary "in particular" has been purposely omitted. Cases can be imagined where the good faith of a hospital ship remains beyond question despite certain appearances to the contrary. For each Party, the question will always be one of good

faith. (1) Medical personnel have the right to bear arms and may, in case of need, use them in their own defence or in that of the wounded and sick in their charge. That is the most important of the provisions which we are studying here. It already existed in the 190 7 Convention (Article 8 ) and has a counterpart in Article 22 of the First Convention of 1949 (1). The purpose of the provision is undoubtedly to make it possible for the medical personnel to ensure the maintenance of order and discipline in a hospital ship or sick-bay, as in a hospital on land, and protect it against individual hostile acts (by pillagers or irresponsible members of the armed forces). A medical establishment is under military discipline, and must be provided with the necessary guards, if only to prevent patients from leaving the premises without permission or from committing hostile acts, to ensure that nurses enjoy the respect to which they are entitled, and so forth. Similarly, access must be denied to unauthorized persons, for instance members of the armed forces who might seek refuge there though not entitled to do so. Medical personnel will, therefore, need only individual portable weapons, such as side-arms, revolvers or even rifles. On the other hand, a medical establishment, whether on land or at sea, cannot have a real system of defence against military operations. It is inconceivable that a medical unit could resist by force of arms a systematic and deliberate attack by the enemy. [p.195] Forces of considerable strength would be needed, and by definition a medical establishment cannot have such forces at its disposal. If such an attack were made, any resistance by a few orderlies would be ridiculous and would probably serve only to intensify the attack. It is the business of the armed forces alone to repulse attacks, and only they can do so successfully. If by chance a medical unit were attacked -- though it is to be hoped that this will never occur -- the personnel should use all the means at their disposal to warn the enemy of the error and of the consequences entailed (by signals, notification, sending a spokesman bearing a flag of truce, etc.). If, despite the warnings given, it became apparent that the enemy was making a deliberate attack on the hospital ship or medical unit, in flagrant violation of the Geneva Conventions, then the medical personnel would have no option but to surrender and hoist the white flag. If the adversary were to announce his criminal intent of destroying the establishment and killing its occupants, the m edical personnel could obviously use their weapons. One cannot expect men to allow themselves to be slaughtered like sheep. But one fails

to see how such desperate action could change the situation. In no case, however, may the fact that a member of the medical personnel defends himself or the wounded in his charge against an illicit attack be considered as an "act harmful to the enemy" depriving him of his right to protection. Similarly, if a neutral State has resort to arms in order to defend itself against a violation of neutrality, that may not be considered as a hostile act (Fifth Convention of The Hague of 1907). (2) Hospital ships may possess apparatus exclusively intended to facilitate navigation or communication. This provision existed partially in the 1907 Convention. At that time, for reasons of military security, the question was raised as to whether hospital ships should be allowed to possess radio equipment. It was decided that they should, in recognition of the fact that radio was so important in telecommunication that hospital ships could not be deprived of it (2). Half a century later, the need for such apparatus is still more obvious. [p.196] The experts who met in 1937 proposed the insertion of a provision permitting hospital ships to carry small signal guns or linecarrying guns (3). This reference was not inserted because it is self evident. A child could see that such guns are not weapons. (3) Wounded, sick or shipwrecked persons who are picked up may still be in possession of small arms and ammunition, which will be taken from them and handed to the proper service -- here this means a warship or the military authorities on land. That may take a certain time, however. Should a hospital ship be inspected by the enemy before it has been able to get rid of those arms, it must not be liable to be accused of bad faith as a result. The clause is new and its insertion was recommended by the experts who met in 1937. It corresponds to Article 22, sub-paragraph (3) , of the First Geneva Convention of 1949. (4) This provision, which is also new, is very important. It was formulated by the experts who met in 1948, and has its counterpart in Article 22, sub-paragraph (5) , of the First Convention. It lays down that hospital ships and sick-bays are not to be deprived of protection when their humanitarian activities extend to the care of wounded, sick or shipwrecked civilians. At sea as on land, military medical establishments may take in civilians. Similarly, civilian establishments may take in wounded members of the armed forces (4). The extension was essential in view of the character which modern warfare has taken on; military personnel and civilians may now be struck down on the same spot and by the same act of war. In such cases, they must be able to be treated by the same orderlies and

accommodated in the same ships or establishments. Since a soldier, whose particular function is to kill, is entitled as soon as he is placed ' hors de combat ' to the compassion of his actual enemy, how can an inoffensive civilian be any less deserving of such compassion? The Convention contains no restriction, and the term "wounded, sick or shipwrecked civilians" must therefore be taken in its [p.197] broadest sense. It does not refer merely to civilians who are in distress because of an event which occurred at sea, although the provision was inserted with a particular view to such cases. In view of the fact that the present Article is complementary in character, it is neither the purpose nor the effect of this sub-paragraph to extend the benefits of the Second Geneva Convention to all sick civilians in general. If disabled civilians are taken on board a hospital ship, it must be as an exceptional measure resulting from force of circumstances. One cannot envisage that a hospital ship would regularly transport large numbers of civilians whose health was affected, for that should be arranged pursuant to Article 21 of the Fourth Geneva Convention. The present provision means, however, that if a belligerent had any objection to such a practice on the part of the adversary, it would in no way be justified in depriving the hospital ship of protection, but should merely make representations through the Protecting Power. (5) Hospital ships may transport medical personnel and equipment over and above their normal requirements. This provision was formulated at the 1949 Diplomatic Conference, and in connection with it the rapporteur wrote as follows: "The intention of this provision is to prevent hospital ships being used as a means of transport for large quantities of material, in particular rolling -stock, or large units of medical personnel. Had this paragraph not been inserted, difficulties might have arisen from the presence on board a hospital ship of personnel on their way to undertake the care of wounded and sick, on the pretext that they were not members of its usual personnel" (5). Ships used for the conveyance of medical equipment are the subject of Article 38 , and the reader should refer to the commentary [p.198] on that provision. As regards hospital ships, we have already seen in connection with Article 22 that they have been specially equipped with a view to assisting the wounded, treating and transporting them. In the normal course of events, they should retain their special character. If, however, because of special requirements -- not as a general rule but in isolated cases -- it is found necessary to use them for the transport of medical equipment and personnel over and above their normal requirements, no compla int must be made (6). That is the purpose of the provision.

* (1) [(1) p.194] In the present study, we must supplement and modify what has already been stated on this point in the Commentary on the First Convention, p. 203; (2) [(1) p.195] See ' Actes ' of the 1907 Conference, Vol. III, pp. 300-301; (3) [(1) p.196] As recommended by the London Convention of June 10, 1948, for the Safety of Life at Sea; (4) [(2) p.196] Fourth Convention, Article 19, paragraph 2; (5) [(1) p.197] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, p. 203. This view is confirmed by Mossop (op. cit., p. 401): "... The fact that they (the hospital ships) usually have a one -way flow of passengers -- from the fighting line overseas to base at home -- makes it economical to use them to transport medical stores and supplies for the forces in the field on the outward voyage... The carriage of such supplies must be subordinate to the dominant object of the voyage, i.e. to pick up casualties at its destin ation, so that it would not be a legitimate use of a hospital ship simply to visit neutral ports and there collect medical stores under the immunity afforded by the Convention."; (6) [(1) p.197] During the Second World War, in the Pacific theatre, hospital ships transported a mobile field hospital ready for installation on land;