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Commentary - Art. 16. Chapter II : Wounded, sick and shipwrecked
    ARTICLE 16. -- WOUNDED FALLING INTO ENEMY HANDS


    Except for two modifications of form, this provision is modelled on Article 14 of the 1907 Convention, which in turn corresponded to Article 9 of the 1899 Convention .
    The two modifications of form were made in order to ensure consistency between the Maritime Convention and that applicable to armed forces on land. The words "Subject to the provisions of Article 12 " and "and the provisions of international law concerning prisoners of war shall apply to them" were added. The provision corresponds to Article 14 of the First Geneva Convention of 1949.
    The present Article defines the status of the victim -- that is to say, the sick, wounded or shipwrecked person -- who has fallen into the hands of the adverse Party. He is at one and the same time a wounded, sick or shipwrecked person who must be respected, protected and cared for just as if he were not an enemy, and a combatant who is made a prisoner of war. A wound, an illness or the distress caused by shipwreck entitle the victim to the necessary care and treatment, but one cannot conceive of their changing the [p.113] status of a member of the armed forces who is captured. That is a long-standing principle admitted in international law and which was more or less explicit in the various Conventions on the subject. The framers of the 1899 and 1907 Conventions were guided by that principle (1). It makes no difference how a wounded or shipwrecked person falls into the hands of the opposing Party -- whether he was captured after an engagement, or was taken off a hospital ship or neutral merchant vessel (Article 14 ), or reached the coast of the enemy country by his own
    means; all that does not affect the status of persons who fall into the hands of the opposing Party.
    A hospital ship cannot take prisoner wounded or shipwrecked members of the enemy forces. If it rescues them at sea or receives them from a ship of their own nationality, they must not be considered as being prisoners of war. The fact of being landed in an enemy country or taken over by the enemy military authorities constitutes capture. A hospital ship may belong to the naval forces, but it is not a warship in the proper sense of the term; it does not have the characteristics of a warship; it is a charitable vessel, placed outside the fighting, and just as it may not offer any resistance to the belligerents, so it may not commit any act of war, for otherwise it would lose its protection, pursuant to Article 34 . It is an act of war to capture military personnel or hold them prisoner by force (2). Similarly, a wounded man cannot be captured by a doctor on the battlefield, but he will become a prisoner of war on arrival in enemy territory.
    The sea is a vast "no man's land", and if a warship transfers wounded or shipwrecked prisoners whom it has captured to a hospital ship of its own nationality, their prisoner-of-war status will be suspended temporarily; their final fate will be determined by the country in which they are landed or by the nationality of any warship which takes them aboard. In the meantime, if the fancy takes them to leave the hospital ship (for instance during a [p.114] call at a neutral port), and supposing their health so permits, there seems to be nothing to prevent them from doing so. If they are transferred to a hospital ship of their own nationality, they may no longer be considered as prisoners of war.
    In the same way, merchant vessels cannot take prisoner shipwrecked persons of the opposing nationality, for they are not warships even though they may be armed for purposes of self-defence.

    A. ' Law applicable. ' -- Article 16 states that "the provisions of international law" -- that is to say, customary law as well as the principles of the Conventions relating to prisoners of war -- are to be applicable ipso facto to the wounded, sick and shipwrecked who fall into enemy hands. Those rules may vary, and have in fact already been developed to a considerable extent. They were laid down in the first place in the Regulations on the Laws and Customs of War annexed to the Hague Conventions of 1899 and 1907, but were amplified and rendered more explicit in the 1929 Convention relative to the Treatment of Prisoners of War, and improved still further in the Third Geneva Convention of 1949. The latter Convention is now almost universal, and in practice it is the provisions of that instrument which will be applicable. It is true, of course, that no express reference to that Convention occurs in the Article. But that is in order to make the provision more adaptable where States are not parties to the Third Convention, and also in the case of the latter Convention alone being revised or supplemented.
    It follows from the above considerations that a wounded, sick or shipwrecked member of the armed forces who falls into the hands of an enemy party to the Second and Third Geneva Conventions will enjoy protection under both Conventions until his recovery, the Second Convention taking precedence over the Third where the two overlap. After recovery, his situation will be governed solely by the Third Convention, even in the event of his again being wounded or falling sick. The point is one of academic rather than practical interest, since the safeguards which the Third Convention accords to prisoners of war are equivalent to those accorded by the Second Convention, particularly in the matter of medical treatment.
    It is clear, however, that as long as the victims are on board ship, the rules governing the treatment of prisoners of war can be [p.115] applied to them only by analogy and to the extent permitted by the installations and equipment of the ship. Many of those provisions are incompatible with living conditions at sea. They will apply fully after landing. Lastly, the Second Convention relates primarily to wounded, sick and shipwrecked members of the armed forces ' at sea, ' in a temporary situation where the principal concern is to rescue and tend the victims. The Third Convention applies fully in the following stage, that of captivity on land, when the detaining State must make all necessary arrangements for prolonged detention. But the fact remains that the two stages overlap to a certain extent.

    B. ' Reservation in regard to Article 12 . ' -- The provision begins with the words: "Subject to the provisions of Article 12 ", which constitute a reservation not only with regard to the medical treatment to be provided prior to any other measure consequent upon the capture of the victim, but also with regard to the special protection to which all physically injured persons are entitled under Article 12 as a whole. The provision ensures that the Second Convention shall take priority over the Third. The latter is to be applicable to the wounded, sick and shipwrecked who are prisoners only when all relevant obligations under the Second Convention have been fulfilled. The reservation may thus be taken to refer not only to Article 12 , but also to the first paragraph of Article 18 , which provides that after each engagement the shipwrecked, wounded and sick must be searched for and collected, protected against pillage and ill-treatment and given the requisite initial treatment. All those obligations must obviously be fulfilled before the provisions of
    the Third Convention become operative.

    C. ' Decisions to be taken by the captor. ' -- Several alternative solutions are open to a belligerent holding on board one of its ships wounded, sick or shipwrecked personnel of the opposing Party, that is to say, men whom it holds as prisoners of war.

    1. The most usual case is that they will be transferred to the territory of the detaining State and interned in a prisoner-of-war camp. If it "holds" them, to use the wording of the Convention, [p.116] that is to say if it keeps them on board a warship, this may be only as a temporary measure pending transfer on land.

    2. In the second possible case the belligerent will land them in neutral territory. This may occur when warships are far from their own country or when they are carrying an excessive number of wounded on board, and in particular when they do not have the necessary equipment on board for giving all appropriate treatment to seriously wounded or seriously sick persons. The ship may even land only some of the victims on board.
    The conditions for landing and the status of those concerned are laid down by the next Article and the reader should refer to the commentary on that provision.

    3. Lastly, the Convention provides that the wounded may be returned to their home country, although we do not know of any instances of such action (3). In that event, since the belligerent has acted charitably in the interest of the victims, the latter must not serve again during the hostilities, which means that they must not resume "active military service" in the sense of Article 117 of the Third Convention (4).


    * (1) [(1) p.113] See ' Actes ' of the 1899 Conference, pp.
    37-38, and of the 1907 Conference, Vol. III, p. 565;

    (2) [(2) p.113] This in no way precludes special security
    measures on board hospital ships ' vis-à-vis ' wounded or
    shipwrecked members of the enemy forces, for instance
    locking them up. It is perfectly legitimate to protect the
    personnel and crew against any groups which might cause
    disturbances or even try to take over the ship;

    (3) [(1) p.116] This refers here to immediate return, the
    decision being taken by the commanding officer of the
    ship. On the other hand, seriously wounded and seriously
    sick prisoners of war may be repatriated under the Third
    Convention, and such repatriations took place during the
    First and Second World Wars;

    (4) [(2) p.116] That Article reads as follows: "No repatriated
    person may be employed on active military service";