ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 13. Chapter II : Wounded, sick and shipwrecked
    [p.93] ARTICLE 13. -- PROTECTED PERSONS


    [p.94] The main purpose of this Article is to specify to what persons, on their falling sick or being wounded or shipwrecked at sea, the Convention applies, it being understood that the term "at sea", which has the same meaning here as in Article 12 (1), covers persons picked up at sea as well as those carried on board a hospital ship or other vessel. The Article also makes it possible to define the various categories of medical and religious personnel entitled to protection under the Second Convention, pursuant to Article 37 . We shall examine below the value and scope of these two functions.

    1. ' Search for a definition. ' -- From the first, the Geneva Convention has always accorded its protection to wounded and sick members of the armed forces. But whereas in 1864 the only mention was of "combatants" (in French, "militaires"), in 1906 the wording adopted was "military combatants, and other persons officially attached to the armed forces". In adapting the Convention to maritime warfare, the phrase "sailors and soldiers" was used in both the Hague Convention of 1899 and that of 1907.
    At the time, those terms may well have appeared clear and adequate. Whereas it was felt necessary to protect combatants who were placed ' hors de combat, ' civilians were regarded as being outside the struggle and enjoying general immunity.
    The idea of belonging to an army is, however, a conception which gave rise to serious disputes during the Second World War, particularly when it came to determining the status of certain combatants who had fallen into the enemy's hands. It is common knowledge that national groups continued to take part in hostilities on land and sea, whereas the enemy refused to acknowledge their belligerent status and their members, or "partisans" as they were sometimes called, were often not regarded by the enemy as being regular combatants.
    That was one of the chief problems with which the experts and the International Committee of the Red Cross were concerned in [p.95] dealing with the revision of the Geneva Conventions. It further engaged the full attention of the 1949 Diplomatic Conference.
    It was in connection with the Convention relative to the Treatment of Prisoners of War that the problem demanded consideration and that the solution was finally found. For in that Convention the problem assumed its essential significance. It was necessary to determine what categories of persons falling into an enemy's hands were entitled to be treated as prisoners of war. Article 4 of the Third Geneva Convention of 1949 supplied the answer to the question.
    When the Diplomatic Conference set out to define the categories of persons to whom, on their falling sick or being wounded or shipwrecked, the First and Second Geneva Conventions were to apply, it noted that the categories in question were precisely those which were entitled, on falling into the enemy's hands, to be treated as prisoners of war. The Conference was thus logically led to refer to the contents of Article 4 of the Third Convention . It could do so either by merely referring to the Article in question, or by repeating its substance in the First and Second Conventions. The latter solution was adopted, in accordance with the general principle, to which the Conference adhered wherever possible, of endeavouring to make each of the four Geneva Conventions an independent diplomatic instrument. The course thus taken also covered the possible case of a Power being party to the present Convention without having ratified the Third.

    2. ' Value of the definition '

    A. ' With regard to the wounded, sick and shipwrecked '

    In the Convention now under consideration, the enumeration of the persons belonging to the armed forces is not of the same importance as in the Third Convention but is of purely theoretical value.
    Article 4 of the Third Convention is constitutive in character, and the enumeration which it gives is comprehensive. If an individual not belonging to one of the categories specified is captured [p.96] after committing hostile acts, he may find himself denied the right to be treated as a prisoner of war, not to mention the punishments which may be inflicted on him.
    On the other hand, this enumeration has by no means the same significance in the First and Second Conventions. In virtue of a humanitarian principle universally recognized in international law, of which the Geneva Conventions are merely the practical expression, any wounded, sick or shipwrecked person whatever -- even a ' franc-tireur ' or a criminal -- is entitled to respect and humane treatment and the care which his condition requires (2). Even civilians, when they are wounded, sick or shipwrecked, have the benefit of humanitarian safeguards (as embodied in Part II of the Fourth Geneva Convention of 1949) very similar to those which the First and Second Conventions prescribe in the case of members of the armed forces; and the applicability of those safeguards is quite general. In this respect the three Conventions are entirely complementary, and cover the whole field of human suffering.
    Article 13 cannot therefore in any way entitle a belligerent to refrain from respecting a wounded or shipwrecked person, or to deny him the requisite treatment, even where he does not belong to any of the categories specified in the Article. Any wounded person, whoever he may be, must be treated by the enemy in accordance with Article 12 of the present Convention. When a wounded person falls into the enemy's hands, the latter will have ample time to consider, at the proper time and place, what his status is, and whether or not he is a prisoner of war.
    At most, Article 13 will serve to determine under which Convention the shipwrecked or wounded person is to be rescued, respected, protected and cared for. Moreover, since Article 16 of the Convention stipulates that wounded, sick and shipwrecked who fall into enemy hands are to be prisoners of war, it was desirable that the Second and Third Conventions should be in exact accordance on the point. That does not, however, in any way, alter the fact that as regards the definition of these persons, Article 13 tends to meet a desire for precision rather than a vital need.

    [p.97] B. ' With regard to medical personnel '

    Pursuant to Articles 24 and 25 of the First Geneva Convention, the protection afforded to the medical personnel of the armed forces on land is bound up with their duties, which are listed. A different system was adopted for the Second Convention. Mainly for reasons of clarity (3), in Article 37 the Diplomatic Conference embodied a definition of the medical and religious personnel who, if they fall into the hands of the enemy, are to be protected by the Second Convention, namely, those "assigned to the medical or spiritual care of the persons designated in Articles 12 and 13" (4).
    This somewhat indirect use of Article 13 makes its significance far greater than its original purpose would warrant. Here, the enumeration is a constitutive element for the protection of medical personnel, and it is comprehensive.

    3. ' Different categories '

    As Article 13 has its origin, and finds its real significance, in the Convention relative to the Treatment of Prisoners of War, the different categories which it specifies cannot usefully be considered except in connection with the Third Convention, and the reader should therefore refer to the Commentary on that instrument (5). We shall, however, consider here the categories listed under paragraph (5), which refers particularly to the merchant marine. It should be noted that the present Article in its recapitulation of the categories specified in Article 4 of the Third Convention has not included those referred to in that Article under Part B , which relates to persons already in enemy hands or coming under the control of a neutral Power.
    With regard to paragraph (1), it should be noted that apart from the regular forces there are no longer volunteer units in the navy. During the Second World War, nationals of an occupied [p.98] country allied to one of the belligerents who continued the fight at sea were under military command, as were their ships. Moreover, privateering was abolished by the Paris Declaration of 1856 and if it were ever to be resumed in any form the crews would be protected only if they met the conditions set forth in paragraph (2). As regards paragraph (4), it would seem that nowadays in wartime there are no longer any civilians on board warships who meet the definition given. Lastly, as regards paragraph (6) -- relating to mass levy -- it may be noted that in the "Law of Naval War" drawn up at Oxford in 1913, the Institute of International Law gave the following definition of this notion as applied to war at sea, in Article 13: "The inhabitants of a territory which has not been occupied, who, upon the approach of the enemy, spontaneously arm vessels to fight
    him, without having had time to convert them into warships ... shall be considered as belligerents... if they respect the laws and usages of war" (6). It seems unlikely, however, that such a situation could arise in modern warfare.

    ' The merchant marine. ' -- Until the latter part of the XIXth century, it was the usual practice for the crews and officers of captured enemy merchant vessels, who were themselves of enemy nationality, to be taken prisoner. This practice was confirmed by the prize rules of many States, as well as by doctrine (7).
    After 1870, however, a contrary trend became apparent: in its conflict with France, Germany took the stand that such personnel should not be taken prisoner, although Napoleon I seems to have been the first to declare this principle. The trend towards more liberal laws was followed first in doctrine (8), then in practice. Enemy crews were usually set free by the Americans during the Spanish-American war of 1898, and by the Japanese during their conflict with Russia in 1904-1905.
    At the Second Hague Conference of 1907, this more liberal tendency culminated in the adoption of the Eleventh Convention [p.99] "relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval Warfare". Article 6 of that Convention specifies that "the captain, officers and members of the crew, when nationals of the enemy State, are not made prisoners of war, on condition that they make a formal promise in writing not to undertake, while hostilities last, any service connected with the operations of the war" (9).
    In fact, as can be seen, the 1907 Conference made no change in the principle regarding the capture of enemy merchant crews, for it may be deduced, a contrario, from Article 6 that such crews are to be made prisoners of war if they do not comply with the requisite condition. The Conference merely wished to make the principle less strict, so as to take account of the evolution which was taking shape. The British delegate to the Conference made a point of emphasizing that the aim of the proposal was precisely to mitigate the conditions applicable to a certain category of persons who, under current international law, were liable to be made prisoners of war. The chairman of the committee and the rapporteur to the Conference spoke in like terms (10). The rule is therefore still that enemy crews are liable to capture, but a loop-hole is provided. The rule applies a fortiori where a merchant ship is attacked and defends itself; under Article 8 of the 1907 Hague Convention, the crew are then considered as combatants, and as such are liable to capture (11). The Hague provisions were reproduced in most of the prize rules and instructions drawn up by the maritime States in ensuing years (12).
    [p.100] The experience of two world wars showed, however, that the flexibility introduced in 1907 was not accepted in practice. Between 1914 and 1918, all the belligerents interned crews of captured enemy merchant vessels, in application of the rule that any enemy civilian of military age could be prevented from returning home, and could be interned (13).
    When the 1929 Diplomatic Conference drew up the Prisoners of War Convention, it considered whether or not the crews of merchant vessels should be expressly included in the list of persons who might be accorded prisoner-of-war status. It found, however, that such an extension would involve an amendment to the Regulations concerning the Laws and Customs of War on Land, annexed to the Fourth Hague Convention of 1907, and the Diplomatic Conference was Hot qualified to make such an amendment. It therefore declared itself incompetent in the matter. The rapporteur of the Conference's Second Committee made a point of stating that the Convention which was to be adopted was not applicable to the crews of merchant vessels (14).
    In theory, therefore, the 1907 rules alone were valid during the Second World War, but the flexibility which they afforded was not put into practice any more than during the First World War. This was not only for the same reason, but also because in many States the merchant navy, normally in private hands, was taken over by the Government authorities, and even the crews were frequently made part of the armed forces. Last and most important, almost all the merchant ships of the belligerents were armed for defensive purposes (15). Crews of prizes and survivors of naval operations were always taken prisoner, but there was no uniformity of treatment. Germany, Italy, the United States, Brazil and the Union of South Africa placed them on the same footing as civilian internees, whereas Great Britain, Canada, Australia and New Zealand [p.101] considered them as prisoners of war but did not apply the provisions of the 1929 Convention relative to pay and employment, so that they were treated in virtually the same way as civilian internees (16).
    Many difficulties arose from this vague situation. As soon as work was begun on the revision of the Geneva Conventions, the experts therefore recommended unanimously that prisoner-of-war status should be expressly granted to members of the enemy merchant marine. The 1949 Diplomatic Conference adopted that proposal (17); it considered, like the experts, that prisoner-of-war status was in that instance preferable to that of a civilian internee in every respect and in fact corresponded to the nature of the duties of belligerent merchant crews, which were comparable in importance with those of members of the armed forces.
    The provision adopted thus represents a positive and categorical codification not only of current practice, but also of doctrine. It does not in any way alter the 1907 principle and even retains the escape clause provided at The Hague, for the phrase "who do not benefit by more favourable treatment under any other provisions of international law" is simply a reference back to Articles 5 to 8 of the Eleventh Convention of 1907. Under the new rules, masters and officers of neutral nationality and masters, officers and crews of enemy nationality can therefore escape capture by offering or agreeing to make a promise in writing not to serve any more (18).
    The nationality of crew members is no longer determining as regards their status. That fact does not, however, modify the usual rule and practice according to which neutral persons serving on board enemy merchant ships are not prisoners of war if neither the crew nor the ship have committed any hostile act before capture or resisted capture. On the other hand, the provision requires prisoner-of-war status to be applied to them if they are [p.102] detained. Crews of neutral vessels in the service of a belligerent will also be prisoners of war, since they will have acquired an enemy character.
    In the same way, the status of the crew is no longer determined by the question of armament of a merchant vessel. Regardless whether or not the ship is equipped with weapons for its own defence, as was customary for many States in past centuries and still more so in the Second World War, the crew will be taken prisoner.
    One point has been clarified: the word "crews" includes "masters, pilots and apprentices". In some countries, and in particular in Great Britain, masters, pilots and apprentices are not members of the crew and it was therefore necessary to make express provision for them (19). The term "master" must not be taken here as a rank but as denoting the person in command of the ship.
    The phrase "members of crews" covers only members of the merchant marine who have mustered on a ship but not those who, after completing their term of service, are on board ship as passengers and still less those who are on shore leave (20).
    The place where a captured vessel is does not in any way affect the status of the crew. The Diplomatic Conference agreed with the proposal by the XVIIth International Conference of the Red Cross that the words "captured at sea" should be deleted from the draft text. The provision therefore applies to the crews of ships captured, for instance, in an enemy or occupied port.
    The main purpose of the foregoing considerations is to help to determine the status of members of the merchant marine who fall into enemy hands. They should therefore be read in the original context of the provision (Article 4 of the Third Convention ). Here, the provision means simply that the wounded, sick and shipwrecked as well as medical personnel of the merchant marine will be entitled, in the same way as members of the regular navy, to protection under the Second Convention. As regards the wounded, [p.103] sick and shipwrecked not in the categories listed in Article 13, we must emphasize once more that they remain protected, not only in virtue of general humanitarian principles, but also under the Brussels Conventions of 1910 (21), in which these principles were set forth. Consequently, any victim, whoever he may be, must be treated properly. In the present Convention and from the humanitarian point of view, the enumeration given in Article 13 is thus of purely theoretical value.
    The reservation regarding more favourable treatment under any other provisions of international law, which attains its full importance in the Third Convention, is also theoretical here. For at the present stage of international law, there is no provision for treatment more favourable than that provided under the Second Convention for the wounded, sick and shipwrecked. Of course, if one considers that the purpose of the present Article is to define which wounded, sick and shipwrecked persons are entitled to prisoner-of-war status, then one can understand that there is some point in specifying here that, in certain circumstances, members of the merchant marine would not be granted that status. That would only occur at a later stage, however, after the persons concerned have come within the scope of the Third Convention.
    The Conference of Government Experts proposed hat, by analogy, the "civilian members of air crews attached to t e armed forces" should be accorded the same treatment as members of the merchant marine (22). That proposal was dropped during later discussions, and was taken up again by the 1949 Diplomatic Conference which extended its scope and made it applicable to the crews of all ' civil aircraft '. That was logical, since, like military aircraft, enemy civil aircraft are liable to capture in the same way as enemy ships. The rules governing the status and treatment of members of the enemy merchant marine therefore apply mutatis mutandis to the crews of enemy civil aircraft (23), it being understood that the term "civil aircraft" covers any type of aircraft. The Diplomatic Conference emphasized the point by specifying, in Article 12 , that the term "shipwreck" includes forced landings at sea by or from [p.104] aircraft. The reservation regarding "more favourable treatment under any other provisions of international law" is for the time being of no significance here, since no such provisions at present exist. As regards the status of medical personnel of civil aircraft, reference should be made to the commentary on Article 37 (24).


    * (1) [(1) p.94]) See above, p. 88-89;

    (2) [(1) p.96] Subject, of course, to any judicial proceedings
    to which he may be liable;

    (3) [(1) p.97] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 129;

    (4) [(2) p.97] In addition, of course, to the personnel and
    crew of hospital ships, who are afforded protection
    pursuant to Article 36;

    (5) [(3) p.97] See ' Commentary III, ' p. 44 ff.;

    (6) [(1) p.98] See R. GENET: ' La Revision de la Xe Convention
    de La Haye, ' Paris, 1951-53, pp. 55-56;

    (7) [(2) p.98] See FAUCHILLE: ' Traité de droit international
    public, ' Vol. II, par. 1395 -- 48 to 51;

    (8) [(3) p.98] Ibid., par. 1395 -- 51;

    (9) [(1) p.99] Article 5 contains a similar rule, applicable
    to the captain and officers when nationals of a neutral
    State serving on an enemy ship, whereas neutral members of
    the crew are released completely;

    (10) [(2) p.99] See ' Actes ' of the 1907 Hague Conference,
    Vol. III, pp. 959, 962, 1027, and Vol. I, p. 267.
    FAUCHILLE (op. cit., par. 1395 -- 52) has also noted that
    the principles adopted by the 1907 Peace Conference
    undoubtedly represented a relaxation of the practices
    followed until then. Some authors have, however, taken
    Article 6 meaning that the principle accepted in 1907 was
    that thenceforth enemy merchant seamen were not to be made
    prisoners of war. It must be acknowledged, however, that
    the Article sets forth the exception, not the rule. The
    intention of the drafters of the Article in so doing was
    no doubt to emphasize that they wanted the rule to be less
    strict;

    (11) [(3) p.99] See OPPENHEIM-LAUTERPACHT: ' International Law,
    Law, ' Vol. II, 1952, p. 266 (  85) and MOUTON:
    MOUTON: ' Nederlands Juristenblad, ' February 1950,
    pp.135-136;

    (12) [(4) p.99] See FAUCHILLE: op. cit., par. 1395 -- 54;

    (13) [(1) p.100] See OPPENHEIM-LAUTERPACHT, op. cit., p. 267 ( 
    85);

    (14) [(2) p.100] See ' Actes de la Conférence diplomatique de
    1929, ' p. 633;

    (15) [(3) p.100] This sometimes led them to attack first.
    TUCKER notes that "during World War II, armed merchant
    vessels were instructed to use their armament upon
    sighting an enemy submarine: the assumption being that
    unlawful attack by the submarine would -- in any event --
    be forthcoming".(Op. cit., p. 58, note 30.);

    (16) [(1) p.101] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 552-554;

    (17) [(2) p.101] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 238-239 and
    418-419;

    (18) [(3) p.101] The Powers which resort to these provisions
    must therefore duly apply Article 7 of the Eleventh
    Convention of 1907 which requires the captor to notify the
    names of such persons to the Power of origin, and enjoins
    the latter to see that the written promise given by its
    nationals is kept;

    (19) [(1) p.102] The French text here uses the term
    "' commandants" ' for the English word "masters". The
    translation is unsatisfactory and "' patrons" ' or
    "' capitaines" ' would probably have been more suitable;

    (20) [(2) p.102] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 418-419;

    (21) [(1) p.103] See above, p. 87;

    (22) [(2) p.103] See ' Report on the Work of the Conference of
    Government Experts, ' p. 104;

    (23) [(3) p.103] See TUCKER, op. cit., p. 113, note 59;

    (24) [(1) p.104] See below, pp. 208-209;