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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][Displayarticles][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 substanceas compared with Article 1, paragraph 1 (1), of the 1907Convention , which in turn was taken from the correspondingprovision in the 1899 Convention .The two most important changes are, in the first place, theintroduction of a stipulation that at least ten days must elapse afterthe notification of a hospital ship before it is put into service and, in

the second place, the requirement that the notification must give notonly the name of the ship but also its characteristics.The text contains additional details in three respects. The task of ahospital 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 "respected" but to be"respected and protected"; this corresponds to the traditional wordingof the Geneva Conventions. It is now specified that they "may in nocircumstances be attacked or captured", whereas this was formerlymerely implicit in the reference to respect.Then there are a few modifications of form which concern only theFrench text. Here, as in the rest of the Convention, the word"btiment" has been replaced by "navire" to avoid any possibleconfusion. Similarly, the term "navires-hpitaux" has been usedthroughout to indicate military hospital ships as well as privatevessels, 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 whichmilitary hospital ships remained liable to capture. Some expertsproposed that Articles 22, 24 and 25 should be merged into asingle provision. That recommendation was not adopted, in orderbetter to stress the difference in origin of the three categories ofhospital ships (2).


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[p.157] PARAGRAPH 1. -- PROTECTION AND CONDITIONSTHEREFOR

1. ' Protection '

This provision extends to hospital ships the immunity which Article12 confers on the wounded, sick and shipwrecked. Hospital shipsare entitled to protection regardless whether or not they are carrying

victims on board. They are protected not only because they carrywounded persons, but also in their capacity as an instrument ready toassist the victims.For the sense in which the words "respected and protected" aretraditionally used, reference should be made to the comments on

Article 12 (3). Respect for such ships means first of all that theymay not be attacked, harmed or impeded in any way, with the

exception that certain rights expressly mentioned in Article 31 maybe exercised by the belligerents -- namely the right of control andsearch. One may therefore wonder whether it was really necessary toadd here that such ships "may in no circumstances be attacked". Bethat as it may, the expression is absolutely clear and explicit. Torespect such ships means, secondly, not to interfere with their workor with the accomplishment of their task. To protect them is to ensurethat they are respected, that is to say to oblige third parties to respectthem. 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 allcircumstances. They will therefore be protected even if they are lyingin a port where the installations may be considered to be militaryobjectives. In such a case, however, although the hospital ship is stilllegally entitled to protection, in fact its security will be impaired. If theport installations were bombed, the hospital ship would alsoinevitably be endangered. The attacker must take every precaution inorder to reduce risks to a minimum, but at the same time thecommander 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 aprovision corresponding to Article 19, paragraph 2 , of the FirstConvention of 1949, which recommends that medical establishmentsshould not be situated in the vicinity of military objectives; that isundoubtedly a general principle, however, valid also at sea, all themore so because a hospital ship can move easily.In addition to respect and protection, there is an express reference tothe fact that hospital ships may not be captured, nor may they be


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detained for more than seven days (Article 31 ). This rule is

absolute, more categorical than anywhere else in the GenevaConventions in the case of the wounded, land vehicles and evenmedical personnel. The privilege is granted because in wartime shipsare in short supply, and hospital ships even more so. It would have

been a very serious blow to the victims of conflicts to allow suchfloating hospitals to be taken out of service. Although hospital ships (Articles 22, 24 and 25 ) make up thelargest single class of vessel protected by the Geneva Conventions,

they are not the only ones to which immunity is accorded. Lifeboatsof hospital ships (Article 26 ), coastal rescue craft (Article 27 ) andsmall craft used by the Medical Service (Article 43, paragraph 3 )are also entitled to protection. In addition the International Committeeof the Red Cross might have occasion to operate ships carrying outhumanitarian tasks (5). Similarly, the Fourth Geneva Conventionaffords 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 nameand characteristics must have been duly notified (6).

A. ' Exclusive use '. -- This condition is stated in the present Article inthe 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 toassisting the wounded, sick and shipwrecked, to tr eating them and totransporting them". This provision is supplemented by Article 33 ,which specifies that merchant vessels which have been transformedinto hospital ships may not be put to any other use throughout theduration of hostilities. Thus, the States are free to prepare hospitalships for service as they wish -- either by building them for thatparticular purpose or by converting other vessels, such as passenger

liners; nor are they restricted as to the type of vessel. But in return forthe complete immunity granted to such ships, they must be solelyand definitively assigned to service as hospital ships. There is someanalogy between this rule and those governing the status of medicalpersonnel of the armed forces, who must be exclusively employe d ontheir own particular duties. The charitable mission of hospital shipsmust therefore be entire, obvious and durable so that theirunimpaired status may be assured. It was in order to prevent anypossible abuse that improvised and temporary transformat ion was


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excluded.

There was lengthy discussion at the Diplomatic Conference as towhether or not a minimum tonnage should be specified for hospitalships entitled to protection. It was finally decided not to include sucha requirement, but Article 26 remains and the reader should refer

to the commentary on that provision. The very notion of a "hospitalship", the wording used and the characteristics mentioned -- all theseindicate 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. Inaddition to "assisting" the wounded, sick and shipwrecked (7), it alsoinvolves "treating" them -- i.e. giving them medical care -- and"transporting" them; the latter reference was inserted following asuggestion made by the International Committee of the Red Cross in1937. 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 haveall the installations and equipment necessary for the accomplishmentof these three duties? We would be inclined to reply in the negative,and we do not believe that such was the intention of theplenipotentiaries at the 1949 Diplomatic Conference, any more thanthey intended the enumeration to be restrictive. And yet theRapporteur of Committee I states quite categorically: "It is notsufficient for the vessel in question to be merely capable of rescueoperations. It must be so equipped that it is in a position to care for

and transport the wounded, sick and shipwrecked. A very cleardistinction is therefore drawn between hospital ships and lifeboats"(8).We do not consider the problem as being of very great importancehere. In practice, one cannot imagine a hospital ship treatingwounded or sick persons without being able to transport them, ortransporting men who by definition are in need of virtually constantattention without being able to give them treatment at least of asummary nature. The three duties listed -- namely to assist, treat and

transport the victims -- constitute the special mission of hospitalships. As for determining whether or not a vessel is actually ahospital ship, that is a matter of common sense and good faith.The extension now afforded by Article 13, paragraph (5) , meansthat hospital ships may now carry sick, wounded or shipwreckedmembers of the merchant marine as well as those belonging to thearmed forces (9).

B. ' Notification '. -- The name and characteristics of a hospital ship


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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, theexperts had proposed a time-limit of thirty days, but at the suggestionof the International Committee of the Red Cross [p.161] it wasreduced 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 ofhospital ships. The belligerent Powers must have time to advise theirarmed forces everywhere, including even the most remote stations.

The commissioning of a hospital ship is an important event, and aswe have seen above, it cannot be improvised. Furthermore, there isno reason why the notification should not be sent when the ship isnearing completion, so that not a single day need be lost.If the notification is made during hostilities, it will usually be throughthe intermediary of the Protecting Power. And although theConvention does not say so, it would also be advisable to notify

neutral countries, since hospital ships may have occasion to put intoa neutral port.If the notification is made in peace-time (10), it can be sent direct bythe State concerned to all the other Powers party to the Convention.In that case, it would be desirable, by way of precaution, to confirmearlier notifications at the opening of hostilities.Since the signature of the 1949 texts, the Belgian Government hasproposed, at the suggestion of a Norwegian ship-owner, Mr. Paust(who was Chairman of the International Conference of LifeboatOrganizations in 1947), that the International Committee of the Red

Cross should be asked to centralize information regarding thecharacteristics of rescue craft, and to send periodic notifications tothe States bound by the Geneva Conventions. Certain States havesuggested that the procedure should be extended to hospital ships.The International Committee of the Red Cross has indicated that itwould be prepared to take on that duty if the majority of States sodesired. Switzerland, as depositary of the Geneva Conventions, hasconducted consultations on the matter but the results have nothitherto 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 ofhospital ships. In 1949, on a proposal by the United Kingdom an dDenmark, it was wisely decided to add a reference to thecharacteristics (12). We shall consider what they comprise.

PARAGRAPH 2. -- CHARACTERISTICS

Under this paragraph, the characteristics to be included in the


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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 begiven. It seems to us highly desirable that a ship's silhouette shouldbe included in the notification for it is the best means of identification

and is widely used in the navy. This would illustrate and supplementthe characteristics enumerated in the Convention. As regards the indication of tonnage, it should be briefly noted thatwarships are described in terms of displacement tonnage (i.e.

weight), while in the case of merchant vessels what is alwaysreferred to is the "registered tonnage", i.e. the usable volume of theship, one ton being equivalent to 100 cubic feet (2.83 cubic metres).The "registered gross weight" corresponds to the whole volume ofthe ship; the "registered net weight" is that volume less the volumetaken 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 Conventionhas 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 theDiplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.

63 ff., 71 ff., and 108 ff.;

(3) [(1) p.157] See above, pp. 89-90;

(4) [(2) p.157] See R. GEN T, op. cit., p. 66;

(5) [(1) p.158] See below, p. 228;

(6) [(2) p.158] In addition, marking should be mentioned,

pursuant to Article 43, and the reader should refer to thecommentary on that provision. Further, Article 34indicates the possible causes for discontinuance ofprotection;

(7) [(1) p.159] Article 30 of the present Convention definesthe task of a hospital ship as being to afford relief andassistance to the wounded, sick and shipwrecked withoutdistinction of nationality;


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(8) [(1) p.160] See ' Final Record of the DiplomaticConference of Geneva of 1949, ' Vol. 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 ittransports sick civilians. See the commentary o n Article35 (4). p. 196 below;

(10) [(1) p.161] Although the Convention refers to "Parties' to the conflict '", the validity, of a notification sentbefore 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". ' Revueinternationale de la Croix-Rouge, ' September 1955;

(12) [(1) p.162] Whereas the English text speaks of"descriptions" in paragraph 1 and "characteristics" inparagraph 2, the French text (which is equally authentic)

uses the word "caractristiques" in both places;

Convention (II) for the Amelioration of the Condition of


at Sea. Geneva, 12 August 1949.Commentary[Display Introduction] [Display Full text][Displayarticles][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 1907Convention , which in turn was taken from the correspondingprovision in the 1899 Convention .The two most important changes are, in the first place, theintroduction of a stipulation that at least ten days must elapse afterthe notification of a hospital ship before it is put into service and, in

the second place, the requirement that the notification must give notonly the name of the ship but also its characteristics.


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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. Hospitalships 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 nocircumstances be attacked or captured", whereas this was formerlymerely 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 possibleconfusion. Similarly, the term "navires-hpitaux" has been usedthroughout to indicate military hospital ships as well as privatevessels, which in the earlier Conventions had been referred to as"navires hospitaliers". All enjoy the same status. The difference interminology had perhaps survived from the 1868 D raft, in which

military hospital ships remained liable to capture. Some expertsproposed that Articles 22, 24 and 25 should be merged into asingle provision. That recommendation was not adopted, in orderbetter to stress the difference in origin of the three categories ofhospital ships (2).

[p.157] PARAGRAPH 1. -- PROTECTION AND CONDITIONSTHEREFOR

1. ' Protection '

This provision extends to hospital ships the immunity which Article12 confers on the wounded, sick and shipwrecked. Hospital shipsare entitled to protection regardless whether or not they are carryingvictims on board. They are protected not only because they carrywounded persons, but also in their capacity as an instrument ready toassist the victims.For the sense in which the words "respected and protected" aretraditionally used, reference should be made to the comments on

Article 12 (3). Respect for such ships means first of all that theymay not be attacked, harmed or impeded in any way, with theexception that certain rights expressly mentioned in Article 31 maybe exercised by the belligerents -- namely the right of control andsearch. One may therefore wonder whether it was really necessary toadd here that such ships "may in no circumstances be attacked". Bethat as it may, the expression is absolutely clear and explicit. Torespect such ships means, secondly, not to interfere with their workor with the accomplishment of their task. To protect them is to ensure


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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 allcircumstances. They will therefore be protected even if they are lying

in a port where the installations may be considered to be militaryobjectives. In such a case, however, although the hospital ship is stilllegally entitled to protection, in fact its security will be impaired. If theport installations were bombed, the hospital ship would also

inevitably be endangered. The attacker must take every precaution inorder to reduce risks to a minimum, but at the same time thecommander of the ship must evaluate the danger involved and mustnot expose his ship more than is absolutely necessary.[p.158] The Maritime Convention does not actually contain aprovision corresponding to Article 19, paragraph 2 , of the FirstConvention of 1949, which recommends that medical establishments

should not be situated in the vicinity o f military objectives; that isundoubtedly a general principle, however, valid also at sea, all themore so because a hospital ship can move easily.In addition to respect and protection, there is an express reference tothe fact that hospital ships may no t be captured, nor may they bedetained for more than seven days (Article 31 ). This rule isabsolute, more categorical than anywhere else in the GenevaConventions in the case of the wounded, land vehicles and evenmedical personnel. The privilege is granted because in wartime shipsare in short supply, and hospital ships even more so. It would have

been a very serious blow to the victims of conflicts to allow suchfloating hospitals to be taken out of service.

Although hospital ships (Articles 22, 24 and 25 ) make up thelargest single class of vessel protected by the Geneva Conventions,they are not the only ones to which immunity is accorded. Lifeboatsof hospital ships (Article 26 ), coastal rescue craft (Article 27 ) andsmall craft used by the Medical Service (Article 43, paragraph 3 )are also entitled to protection. In addition the International Committeeof the Red Cross might have occasion to operate ships carrying out

humanitarian tasks (5). Similarly, the Fourth Geneva Conventionaffords 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 nameand characteristics must have been duly notified (6).


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A. ' Exclusive use '. -- This condition is stated in the present Article inthe form of a definition of hospital ships. In order to be entitled toprotection 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 totransporting them". This provision is supplemented by Article 33 ,which specifies that merchant vessels which have been transforme dinto hospital ships may not be put to any other use throughout the

duration of hostilities. Thus, the States are free to prepare hospitalships for service as they wish -- either by building them for thatparticular purpose or by converting other vessels, such as passengerliners; nor are they restricted as to the type of vessel. But in return forthe complete immunity granted to such ships, they must be solelyand definitively assigned to service as hospital ships. There is someanalogy between this rule and those governing the status of medical

personnel of the armed forces, who must be exclusively employed ontheir own particular duties. The charitable mission of hospital shipsmust therefore be entire, obvious and durable so that theirunimpaired status may be assured. It was in order to prevent anypossible abuse that improvised and temporary transformation wasexcluded.There was lengthy discussion at the Diplomatic Conference as towhether or not a minimum tonnage should be specified for hospitalships entitled to protection. It was finally decided not to include sucha requirement, but Article 26 remains and the reader should refer

to the commentary on that provision. The very notion of a "hospitalship", the wording used and the characteristics me ntioned -- all theseindicate that the Article concerns vessels of some size, for otherwise"small craft used by the Medical Service" would be involved, andprovision is made for the latter in Article 43 .The charitable mission of hospital ships has been better defined. Inaddition to "assisting" the wounded, sick and shipwrecked (7), it alsoinvolves "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 in1937. In the earlier Conventions, these notions were implied in thegeneral term of "assisting" the wounded, sick and shipwrecked.[p.160] In order to be recognized as such, must a hospital ship haveall the installations and equipment necessary for the accomplishmentof these three duties? We would be inclined to reply in the negative,and we do not believe that such was the intention of theplenipotentiaries at the 1949 Diplomatic Conference, any more thanthey intended the enumeration to be restrictive. And yet the


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Rapporteur of Committee I states quite categorically: "It is not

sufficient for the vessel in question to be merely capable of rescueoperations. It must be so equipped that it is in a position to care forand transport the wounded, sick and shipwrecked. A very cleardistinction is therefore drawn between hospital ships and lifeboats"

(8).We do not consider the problem as being of very great importancehere. In practice, one cannot imagine a hospital ship treatingwounded or sick persons without being able to transport them, or

transporting men who by definition are in need of virtually constantattention without being able to give them treatment at least of asummary nature. The three duties listed -- namely to assist, treat andtransport the victims -- constitute the special mission of hospitalships. As for determining whether or not a vessel is actually ahospital 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 shipwreckedmembers of the merchant marine as well as those belonging to thearmed forces (9).

B. ' Notification '. -- The name and characteristics of a hospital shipmust be notified to the Parties to the conflict ten days before it is putinto service. This is a new rule. At the Stockholm Conference, theexperts had proposed a time-limit of thirty days, but at the suggestionof the International Committee of the Red Cross [p.161] it wasreduced 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 ofhospital ships. The belligerent Powers must have time to advise theirarmed forces everywhere, including even the most remote stations.The commissioning of a hospital ship is an important event, and aswe have seen above, it cannot be improvised. Furthermore, there isno reason why the notification should not be sent when the ship isnearing 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 theConvention does not say so, it would also be advisable to notifyneutral countries, since hospital ships may have occasion to put intoa neutral port.If the notification is made in peace-time (10), it can be sent direct bythe State concerned to all the other Powers party to the Convention.In that case, it would be desirable, by way of precaution, to confirmearlier notifications at the opening of hostilities.Since the signature of the 1949 texts, the Belgian Government has


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proposed, at the suggestion of a Norwegian ship-owner, Mr. Paust

(who was Chairman of the International Conference of LifeboatOrganizations in 1947), that the International Committee of the RedCross should be asked to centralize information regarding thecharacteristics of rescue craft, and to send periodic notifications to

the States bound by the Geneva Conventions. Certain States havesuggested that the procedure should be extended to hospital ships.The International Committee of the Red Cross has indicated that itwould be prepared to take on that duty if the majority of States so

desired. Switzerland, as depositary of the Geneva Conventions, hasconducted consultations on the matter but the results have nothitherto 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 ofhospital ships. In 1949, on a proposal by the United Kingdom andDenmark, 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 thenotification are the registered gross tonnage, the length from stem tostern and the number of masts and funnels.There is, of course, no reason why a fuller description may not begiven. It seems to us highly desirable that a ship's silhouette shouldbe included in the notification for it is the best means of identification

and is widely used in the navy. This would illustrate and supplementthe characteristics enumerated in the Convention.

As regards the indication of tonnage, it should be briefly noted thatwarships are described in terms of displacement tonnage (i.e.weight), while in the case of merchant vessels what is alwaysreferred to is the "registered tonnage", i.e. the usable volume of theship, one ton being equivalent to 100 cubic feet (2.83 cubic metres).The "registered gross weight" corresponds to the whole volume ofthe 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 Conventionhas become Article 32 of the 1949 Convention;


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(2) [(2) p.156] For the origin of this Article, see ' Actes '

of the 1899 Conference, pp. 31- 32; ' Final Record of theDiplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.63 ff., 71 ff., and 108 ff.;

(3) [(1) p.157] See above, pp. 89-90;

(4) [(2) p.157] See R. GEN T, op. cit., p. 66;

(5) [(1) p.158] See below, p. 228;

(6) [(2) p.158] In addition, marking should be mentioned,pursuant to Article 43, and the reader should refer to thecommentary on that provision. Further, Article 34indicates the possible causes for discontinuance ofprotection;

(7) [(1) p.159] Article 30 of the present Convention definesthe task of a hospital ship as being to afford relief andassistance to the wounded, sick and shipwrecked w ithoutdistinction of nationality;


(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 ittransports sick civilians. See the commentary on Article35 (4). p. 196 below;

(10) [(1) p.161] Although the Convention refers to "Parties' to the conflict '", the validity, of a notification sentbefore the commencement of a conflict cannot be disputed,as the purpose is fully achieved;

(11) [(2) p.161) For further details, see Gilbert GIDEL: "Laprotection des embarcations de sauvetage". ' Revueinternationale de la Croix-Rouge, ' September 1955;

(12) [(1) p.162] Whereas the English text speaks of"descriptions" in paragraph 1 and "characteristics" inparagraph 2, the French text (which is equally authentic)

uses the word "caractristiques" in both places;


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at Sea. Geneva, 12 August 1949.Commentary[Display Introduction] [Display Full text][Displayarticles][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 expandedversion 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 hospitalships adopted in 1907, at a time when air forces did not exist, wascompletely inadequate. Hospital ships were to be painted whiteoutside with a horizontal band of green or red, and were to fly the redcross flag. The experts who met in 1937 recommended that large red

crosses on a white ground should be painted on the hull and deck ofhospital ships. During the Second World War, the belligerents oftenadopted that means of identification. It is clear from the records thatthe lack of an up-to-date system of marking, visible at a greatdistance, was the cause of most of the attacks made on hospitalships 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, forinstance, that the whole ship should be painted orange and black.The intention was to reach a simple, practical solution, not involvingmarking 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 reliefsociety, whereas under the 1907 Convention -- as a survival from the1868 text in which ships were treated differently according to their

origin -- some were to bear a green band, and others a red band. The1949 Diplomatic Conference decided to do away with bands of anykind, in order to make the red cross more clearly visible.

As in the past, all exterior surfaces of the ship are to be white. Anymention of ships being "painted" white was omitted deliberately, forthere may be other more convenient and more durable means ofapplying the colour i. On the other hand, the word "painted" wasretained in the case of lifeboats (paragraph 3) and the red crosses.


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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 ofmaintenance might be entailed, and it would be inappropriate toreproach a ship's captain with the fact that small patches of the deckwere worn or soiled by footmarks. The essential thing is that an

aircraft should at first glance be able to identify the deck as beingwhite.The provision also stipulates that one or more dark red crosses, aslarge as possible, are to be painted on each side of the hull and on

the horizontal surfaces, so as to afford the greatest possible visibilityfrom the sea and from the air. The number and size of crosses to bepainted was intentionally not specified, for they will depend on thesize and shape of the vessel (2). The essential thing is that it shouldbe as clear as possible that the vessel is a hospital ship. Similarly,the reference to "dark red" obviously does not mean that a ship onwhich the red crosses were of another shade would not be protected.

This is merely a recommendation intended to increase the effectivesecurity 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 butalso to coastal rescue craft. By another reference, in paragraph 3, italso applies "in general" to lifeboats of hospital ships, coastallifeboats and all small craft used by the Medical Service.

PARAGRAPH 2. -- FLAGS

This provision lays down rules regarding the three types of flagapplicable to hospital ships (and also to other protected craft in virtueof 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 belligerentmust fly their national flag as well as that of the belligerentconcerned. The records of the 1907 Conference at The Hagueindicate where the flags should be flown: the f lag of the neutral State

is to be flown in its usual place, and the flag of the belligerenttogether 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 ared cross. That provision already existed in the earlier instruments,but the 1949 Diplomatic Conference decided to specify where itshould be flown, although that place had already become traditionalas may be seen from the reference above: it is to be flown at themainmast, as high as possible. Why should this be so? Because it isthe part of the ship which first appears over the horizon. The white


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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 Article26 ); (b) coastal lifeboats (which are protected pursuant to Article27 ); and (c) small craft used by the Medical Service. [p.244] There

is no other provision specifying that the latter category is to beprotected, and a similar anomaly existed in the 1907 text: the threecategories of craft mentioned above were granted protection onlyindirectly under Article 5 , relating to marking. The situation was putright in 1949 in the case of the first two categories, but the anomalystill remains in the case of the third. This means that "all small craftused by the Medical Service" are protected only pursuant to a single

reference, that in the present paragraph, which is included in anArticle relating to the distinctive emblem. The reference neverthelessestablishes the fact of protection, but the anomaly as regards formmeans that it will not be compulsory to send a notification to the otherParties to the conflict concerning such small craft. In practice,however, the Powers would do well to send a notification, inaccordance with the rules set forth in Article 22 .For these three categories of small craft, there are two compulsoryrules in regard to marking: firstly, they must be painted white, andsecondly, dark red crosses must be prominently displayed on them.

There are other stipulations which are not compulsory, such as, forinstance, that such craft "shall, in general, comply with theidentification system prescribed above for hospital ships". Theidentification system, in addition to the requirements repeated here,includes those which follow from paragraphs 1 and 2 (marking on thedeck, flags). "In general" means to the extent possible having regardto the size and shape of such craft, for some of them are not deckedover 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 craftand protected under Article 27 . The Second Geneva Conventiondoes not actually stipulate that such installations may or must bemarked with the emblem of a red cross on a white ground, but that isan obvious gap in the provisions. It seems to us sound doctrine and areasonable interpretation of the relevant texts to acknowledge thatsuch installations may, in war-time, display the distinctive emblemeven though they are not hospital buildings accommodating woundedpersons, but boat-houses, hangars or workshops. If the enemy is to


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origin of the lifeboats" (5).The wording of the paragraph shows that in certain cases wherecircumstances so warrant, the Occupying Power might refuse toconsent to the use of lifeboats. In general, however, such consentmust be given pursuant to the principles resulting in particular from

Article 27 of the present Convention and Article 16 of the FourthGeneva Convention. The expression "when away from their base"must be interpreted as meaning when lifeboats put to sea, when theyleave harbour.The notification mentioned here, which is in addition to thenotification specified in Articles 27 and 22 , will normally be sentby the Occupying Power, through the intermediary of the Protecting

Power.

' Paragraph 7 ' may seem superfluous in view of Article 41 , the

commentary on which should be referred to.

' Paragraph 8 ' is new and the idea it contains is a good one. With thespeed of technical progress, the Convention was always liable to beone war behind in this domain. All the methods of marking referred toabove may therefore be brought up to date at a later stage. In 1949new inventions were referred to, but the Parties to a conflict wouldhave to agree on their use.

At the 1949 Diplomatic Conference, it was proposed that hospitalships should "try to make known, periodically and adequately, their

position, course and speed". The suggestion was rejected i, but itwas embodied in a Resolution of the Conference (Resolution No. 7)(6).

* (1) [(1) p.241] See ' Report of the International Committee ofthe Red Cross on its activities during the Second WorldWar, ' Vol. I, p. 213;

(2) [(1) p.242] See ' Final Record of the Diplomatic

Conference of Geneva of 1949, ' Vol. II-A, p. 160;

(3) [(1) p.243] ' Actes ' of the 1907 Conference, Vol. III, p.296;



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(5) [(1) p.246] See ' Final Record of the Diplomatic

Conference of Geneva of 1949, ' Vol. II-A, p. 161;

(6) [(2) p.246] For the text of the Resolution, see below, p.

287;



at Sea. Geneva, 12 August 1949.Article[Display Introduction] [Display Full text][Display articles][Displaycommentaries]Chapter VI : The distinctive emblem

ARTICLE 43

The ships designated in Articles 22 , 24 , 25 and 27 shall bedistinctively marked as follows:

(a) All exterior surfaces shall be white.

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

All hospital ships shall make themselves known by

hoisting their national flag and further, if they belongto a neutral state, the flag of the Party to the conflictwhose direction they have accepted. A white flagwith a red cross shall be flown at the mainmast ashigh as possible.Lifeboats of hospital ships, coastal lifeboats and all small craft usedby the Medical Service shall be painted white with dark red crossesprominently displayed and shall, in general, comply with theidentification system prescribed above for hospital ships.

The above-mentioned ships and craft, which may wish to ensure bynight and in times of reduced visibility the protection to which they areentitled, must, subject to the assent of the Party to the conflict underwhose power they are, take the necessary measures to render theirpainting and distinctive emblems sufficiently appar ent.Hospital ships which, in accordance with Article 31 , areprovisionally detained by the enemy, must haul down the flag of theParty to the conflict in whose service they are or whose direction they


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have accepted.

Coastal lifeboats, if they continue to operate with the consent of theOccupying Power from a base which is occupied, may be allowed,when away from their base, to continue to fly their own nationalcolours 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 applyequally 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 12August 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 -- Hospital ships and coastal rescue craft

[p.254] General remarks

848 The 1973 draft divided the Section devoted to medicaltransportation 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, aclose examination reveals that apart from paragraph 3, which dealswith amphibious medical transports, Article 23 of the draft actuallydeals exclusively with medical ships and craft.

849 The first paragraph of the draft sought to bring civilian medicalships and craft, as defined by the Protocol, under the terms ofthe Second Convention. Up to that time they had not been covered

by that Convention.

850 The second paragraph was concerned with clarifying theprovisions applicable to medical ships and craft on inland waterways,i.e., ' not at sea. ' As a matter of fact, the Second Convention


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856 The articles which were adopted go further and are much moredetailed than Article 23 of the 1973 draft while resolvingthe questions raised in the draft. Moreover, although this questionwas not mentioned in Article 22 as finally adopted, it was clearly

stated during the discussions in Committee II that, unlike whatwas indicated in Article 23, paragraph 2, of the draft: "a hospitalship enjoyed its privileged status wherever it might be, andno distinction was drawn whether it happened to be on the high seas

or elsewhere". (4) This point of view prevailed, and it mustbe concluded that hospital ships fall under the scope of theSecond 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 Powersspecially and solely with a view to assisting the wounded, sickand shipwrecked, to treating them and to transporting them". (5)The wounded, sick and shipwrecked referred to are essentiallymembers of the armed forces. (6)

858 As one of the main aims of Part II of the Protocol is to grant thesame protection to any wounded, sick or shipwreckedperson, whether civilian or military, it was deemed necessary tospecify 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 theyretain the rights granted them under the Second Convention, as dotheir personnel and crew.

859 Nevertheless, it should be noted that even under the rgime ofthe Second Convention, the ships and craft that are coveredwere already under an obligation to offer assistance to anyshipwrecked person they came across, in accordance with the

general law of the sea. However, a specific task of taking care ofcivilian wounded, sick and shipwrecked persons could not be said torest upon them, nor, in particular, that of transporting such woundedand sick civilians.

' Sub-paragraph (a) '

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


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coastal rescue craft. ' As such ships and craft are described in the

articles of the Second Convention that are mentioned, reference canbe made to them. However, the provisions relating to such ships andcraft are not only those where they are described, but also Article26 , which recommends a minimum tonnage of 2,000 tons gross for

hospital ships transporting wounded, sick and shipwrecked over longdistances; Article 29 , which permits hospital ships to leave portsfalling into the hands of the enemy; Article 30 , concerning the useof hospital ships and small craft; Article 31 , granting the right of

Parties to the conflict to control, search, and, where justified even todetain 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 intohospital ships the obligation to remain dedicated to such usethroughout 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 totheir lifeboats -- which is obviously necessary -- by theSecond Convention. (8) On the other hand, the latter does not referto the ' small craft ' of such ships. Yet there is no doubt that thesewere also covered. To mention them separately has the advantageof removing any ambiguity about the fact that auxiliary craftbelonging 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 Conventionrelating to the medical personnel (9) of hospital ships, and thoseof Article 37 for any religious or medical personnel who might beon board coastal rescue craft.

[p.257] ' Sub-paragraph (d) '

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


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persons. Only the surrender to those who are nationals of the State

whose flag the warship is flying can be lawfully required by this ship. As regardsshipwrecked persons who have not yet been taken onboard, a rather subtle distinction has to be made between the act oftaking them on board and capturing them. When not engaged in

combat, a warship has the duty to ' take on board ' shipwreckedpersons, and in by far the majority of cases this could not be terme"capture". Such action could be termed "capture" only in the possiblyrather academic case that shipwrecked persons are manifestly on the

point of reaching dry land safe and sound, or of being taken on boardby another craft. In this respect the determining factor is the intentionof the captain of the warship.

870 The hospital ships covered by Articles 22 , 24 and 25 ofthe 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 enterthe territorial waters or approach the territory of an adverse Partyto that on which they depend. Nevertheless, they may be compelledto do so by adverse circumstances (storms, damage etc.), and againin such a case the surrender of the civilian wounded, sick andshipwrecked who are not covered by Article 13 of the SecondConvention, or are not nationals of the adverse Party, cannot berequired by the latter either. However, hospital ships will entrust suchpersons to thisParty if their condition requires care which they areunable to provide. In this the victim's interests are predominant -- a

matter of common sense. Moreover, as they do not enjoyextraterritorial rights, hospital ships have no power to oppose thewishes of those in their care who ask the adverse Party to land in thelatter's territory.

871 Finally, it should be noted that no reservation has been made f orcivilian wounded, sick and shipwrecked who do not wish to returnto their own territory, even though they are nationals of a Party tothe 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 lattershould 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 ormedical craft which has landed in a neutral port is examined below.(14)


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[p.259]

2) ' Nevertheless, such civilians may find themselves in the power ofa party to the conflict other than their own, and in this case they willbe covered by the Fourth Convention and this Protocol '

873 The Protocol provides that civilians not covered by Article13 of the Second Convention may not be surrendered to a Party tothe conflict of which they are not nationals. However, it isconceivable that such civilians could fall into the hands of such a

Party, particularly if they are taken on board a ship belonging tothe latter. In such cases they should obviously not be treatedas civilians covered by Article 13 of the Second Convention, whobecome prisoners of war, but as aliens within the territory of a Partyto 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 aParty to the conflict) of Part III, and in the case that they are interned,Section IV (Regulations for the treatment of internees). As regardsthe Protocol, one or more provisions of Section III (Treatment ofpersons in the power of a Party to theconflict) of Part IV may also beapplicable to them, depending on the circumstances.

875 If they are nationals of a neutral or other State not Party to theconflict, the above-mentioned provisions of the fourth Convention andthe Protocol apply to them only if the State of which they

are nationals has no "normal diplomatic representation in the Statein whose hands they are". (15) The general question of the statusof shipwrecked persons, and the rights and obligationsarising therefrom, was examined above. (16)

Paragraph 2

876 Article 25 of the Second Convention provides for thepossibility that hospital ships are used by National Red Cross

Societies, or other officially recognized relief societies, or evenprivate persons of ' neutral countries ' -- according to the terminologyof Protocol I, of a "neutral or other State not Party to the conflict" (17)-- under the control of a Party to the conflict. The presentparagraph deals with the possibility, not provided for in Article25 of the Second Convention, that a hospital ship is madeavailable directly to a Party to the conflict by a neutral or other Statenot Party to the conflict, or by an impartial international humanitarianorganization.


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877 Such a hospital ship must be made available "for humanitarianpurposes".

878 This last point was hardly necessary considering it is a

requirement for all hospital ships. However, it was stressed inthis context to remove any possible doubt regarding the character ofthe donor's intention.

879 Article 25 of the Second Convention specifies that the hospitalship is "utilized" by the society or the private person makingit available, which implies that the latter provides the necessarycrew and medical personnel. As the present [p.260] paragraph doesnot specify whether the hospital ship is made available with orwithout an adequate crew and medical personnel, it must berecognized that both possibilities exist.

880 In any case, protection is granted such a hospital ship only if theconditions listed under Article 25 of the Second Conventionare fulfilled, viz.:

- the hospital ship is placed under the control -- and under theresponsibility -- of the Party to the conflict to which it has been madeavailable;- it has been made available with the consent not only of the Partyreceiving it, but also with that of the government of those providing it.

This last condition is obviously superfluous whenthe neutral Stateitself provides the hospital ship. Its meaning is more difficult todetermine when it is provided by an impartial internationalhumanitarian organization, (18) but it would seem that in most casesthe agreement of a government other than that of the beneficiaryState is not required. Nevertheless, a more precise answer could begiven only after an analysis of the various organizations concerned;- the provisions of Article 22 of the Second Convention concerningnotification must be observed: the names and characteristics

of hospital ships made available in this way must be notified tothe Parties to the conflict ten days before those ships areused. Moreover, it is specified that "the characteristics whichmust 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


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881 This paragraph makes a more flexible provision for one of the

conditions to which the protection of coastal rescue craft is subject. Infact, it seemed excessively formal to make thenotification of suchcraft a condition of their protection, as is the case in Article 27 ofthe Second Convention. Thus the Protocol recommends such

notification, which provides an additional guarantee for such craft tobe respected, but it does not make it a ' condition ' of protection.Thus, this should prevent such craft from being immobilized at a timewhen their services could be of enormous value from a humanitarian

point of view.

' Y.S. '



at Sea. Geneva, 12 August 1949.

Commentary[Display Introduction] [Display Full text][Displayarticles][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 toconcordance with the First Geneva Convention. In 1949, the lastthree sub-paragraphs were added.The Article sets out five conditions not depriving a hospital ship orsick-bay of protection, or, in other words, which must not be regardedas acts harmful to the enemy. They are particular [p.194] caseswhere hospital ships and sick-bays retain their character as such andtheir right to immunity, despite certain appearances which might have

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 tooeasily between opposing Parties.The list is not, in our opinion, to be considered as comprehensive,even though the customary "in particular" has been purposelyomitted. Cases can be imagined where the good faith of a hospital

ship remains beyond question despite certain appearances to thecontrary. For each Party, the question will always be one of good


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faith.

(1) Medical personnel have the right to bear arms and may, in caseof need, use them in their own defence or in that of the wounded andsick in their charge. That is the most important of the provisions

which we are studying here. It already existed in the 190 7Convention (Article 8 ) and has a counterpart in Article 22 of theFirst 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 anddiscipline in a hospital ship or sick-bay, as in a hospital on land, andprotect it against individual hostile acts (by pillagers or irresponsiblemembers of the armed forces). A medical establishment is undermilitary discipline, and must be provided with the necessary guards, ifonly to prevent patients from leaving the premises without permissionor from committing hostile acts, to ensure that nurses enjoy the

respect to which they are entitled, and so forth. Similarly, accessmust be denied to unauthorized persons, for instance members ofthe armed forces who might seek refuge there though not entitled todo so. Medical personnel will, therefore, need only individual portableweapons, such as side-arms, revolvers or even rifles.On the other hand, a medical establishment, whether on land or atsea, cannot have a real system of defence against militaryoperations. It is inconceivable that a medical unit could resist by forceof 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. Ifsuch an attack were made, any resistance by a few orderlies wouldbe ridiculous and would probably serve only to intensify the attack. Itis the business of the armed forces alone to repulse attacks, and onlythey can do so successfully.If by chance a medical unit were attacked -- though it is to be hopedthat this will never occur -- the personnel should use all the means attheir disposal to warn the enemy of the error and of theconsequences entailed (by signals, notification, sending a

spokesman bearing a flag of truce, etc.).If, despite the warnings given, it became apparent that the enemywas making a deliberate attack on the hospital ship or medical unit, inflagrant violation of the Geneva Conventions, then the medicalpersonnel would have no option but to surrender and hoist the whiteflag. If the adversary were to announce his criminal intent ofdestroying the establishment and killing its occupants, the m edicalpersonnel could obviously use their weapons. One cannot expectmen to allow themselves to be slaughtered like sheep. But one fails


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to see how such desperate action could change the situation. In no

case, however, may the fact that a member of the medical personneldefends himself or the wounded in his charge against an illicit attackbe considered as an "act harmful to the enemy" depriving him of hisright to protection. Similarly, if a neutral State has resort to arms in

order to defend itself against a violation of neutrality, that may not beconsidered 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 partiallyin the 1907 Convention. At that time, for reasons of military security,the question was raised as to whether hospital ships should beallowed to possess radio equipment. It was decided that they should,in recognition of the fact that radio was so important intelecommunication 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 aprovision permitting hospital ships to carry small signal guns or line-carrying 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 maystill be in possession of small arms and ammunition, which will betaken from them and handed to the proper service -- here this meansa warship or the military authorities on land. That may take a certaintime, 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 liableto be accused of bad faith as a result. The clause is new and itsinsertion was recommended by the experts who met in 1937. Itcorresponds to Article 22, sub-paragraph (3) , of the First GenevaConvention of 1949.

(4) This provision, which is also new, is very important. It wasformulated 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 protectionwhen their humanitarian activities extend to the care of wounded,sick or shipwrecked civilians. At sea as on land, military medicalestablishments may take in civilians. Similarly, civilian establishmentsmay take in wounded members of the armed forces (4).The extension was essential in view of the character which modernwarfare has taken on; military personnel and civilians may now bestruck down on the same spot and by the same act of war. In suchcases, they must be able to be treated by the same orderlies and


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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 aninoffensive 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 indistress because of an event which occurred at sea, although theprovision was inserted with a particular view to such cases. In view of

the fact that the present Article is complementary in character, it isneither the purpose nor the effect of this sub-paragraph to extend thebenefits of the Second Geneva Convention to all sick civilians ingeneral. If disabled civilians are taken on board a hospital ship, itmust be as an exceptional measure resulting from force ofcircumstances. One cannot envisage that a hospital ship wouldregularly transport large numbers of civilians whose health was

affected, for that should be arranged pursuant to Article 21 of theFourth Geneva Convention. The present provision means, however,that if a belligerent had any objection to such a practice on the part ofthe adversary, it would in no way be justified in depriving the hospitalship of protection, but should merely make representations throughthe Protecting Power.

(5) Hospital ships may transport medical personnel and equipmentover and above their normal requirements. This provision wasformulated at the 1949 Diplomatic Conference, and in connection

with it the rapporteur wrote as follows: "The intention of this provisionis to prevent hospital ships being used as a means of transport forlarge quantities of material, in particular rolling-stock, or large units ofmedical personnel. Had this paragraph not been inserted, difficultiesmight have arisen from the presence on board a hospital ship ofpersonnel 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 subjectof Article 38 , and the reader should refer to the commentary

[p.198] on that provision. As regards hospital ships, we have alreadyseen in connection with Article 22 that they have been speciallyequipped with a view to assisting the wounded, treating andtransporting them. In the normal course of events, they should retaintheir special character. If, however, because of special requirements-- not as a general rule but in isolated cases -- it is found necessaryto use them for the transport of medical equipment and personnelover and above their normal requirements, no compla int must bemade (6). That is the purpose of the provision.


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* (1) [(1) p.194] In the present study, we must supplement andmodify what has already been stated on this point in theCommentary 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 ofJune 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 DiplomaticConference of Geneva of 1949, ' Vol. II-A, p. 203. This

view is confirmed by Mossop (op. cit., p. 401): "... Thefact that they (the hospital ships) usually have a one -wayflow of passengers -- from the fighting line overseas tobase at home -- makes it economical to use them totransport medical stores and supplies for the forces inthe field on the outward voyage... The carriage of suchsupplies must be subordinate to the dominant object of thevoyage, i.e. to pick up casualties at its destin ation, sothat it would not be a legitimate use of a hospital shipsimply 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 Pacifictheatre, hospital ships transported a mobile fieldhospital ready for installation on land;

rules 4 medical ships

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