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Commentary - Art. 26. Chapter III : Hospital ships
    ARTICLE 26. -- TONNAGE


    This is a new provision.
    After the Second World War, when the revision of the humanitarian Conventions was under study, the International Committee [p.170] of the Red Cross drew the attention of the experts to disputes which had arisen between belligerents regarding the tonnage of hospital ships. In 1940, for instance, Great Britain refused to recognize as hospital ships sixty-four small vessels which Germany proposed to use in the Channel to search for airmen who had come down at sea. Great Britain announced that for reasons of military security it would not recognize hospital ships of less than 3,000 tons; it was facing the enemy across a narrow stretch of water, invasion seemed imminent, and Great Britain considered that it could not permit rapid small craft to operate in the vicinity of its coast (1).
    At the preliminary conferences and then at the 1949 Diplomatic Conference, experts from a number of countries proposed that the Convention should set a minimum tonnage below which hospital ships would not be protected; the figures suggested ranged from 1,000 to 6,000 tons, and 2,000 was finally adopted as a criterion. The arguments for and against the idea were briefly as follows (2). Some delegations pointed out that hospital ships should be as large as possible to ensure the necessary comfort and proper care for the wounded; moreover, it would be easier to identify large ships, their distinctive markings would be more clearly visible and thus they would be afforded greater security. Other delegations, in particular those of the Scandinavian countries, stressed in reply that if a minimum tonnage was set, the small countries would be virtually deprived of hospital ships, since they would be unable to assign large ships for the purpose, and moreover such vessels would be unsuitable for use along coasts studded with islands where the water was
    shallow.
    After lengthy discussion, the Conference abandoned the idea of setting a compulsory limit, but Article 26 reflects the concern of the experts, and contains a simple recommendation; in order to ensure the maximum comfort and security, the Parties to the conflict are asked to endeavour to utilize, for the transport of wounded over long distances and on the high seas, only hospital ships of over 2,000 tons gross (3).
    [p.171] The purpose of the provision is thus to afford additional guarantees of security to hospital ships, but the legal protection to which they are entitled remains full and complete regardless of their tonnage and wherever they are operating, as specified in Article 26.
    They must still be "hospital ships" in the true sense of the two components of the term (4). Vessels below a certain size are only small craft used by the Medical Service, for which special provision is made in Article 43 . As we have already said in connection with Article 22 , the determination as to what a hospital ship is must be a question of common sense and good faith.
    Article 26 also affords protection to lifeboats belonging to hospital ships; such protection was provided only indirectly in the 1907 Convention, in Article 5, paragraph 3 , relating to marking.


    * (1) [(1) p.170] See OPPENHEIM-LAUTERPACHT: op. cit., Vol. II,
    p. 503;

    (2) [(2) p.170] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 63, 71,
    108, 145 and 202;

    (3) [(3) p.170] As regards the assessment of tonnage, see
    above, p. 162;

    (4) [(1) p.171] In this connection, see the statement by the
    Rapporteur of Committee I at the 1949 Diplomatic
    Conference (' Final Record of the Diplomatic Conference of
    Geneva of 1949, ' Vol. II-A, p. 202);