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Commentary - Art. 17. Chapter II : Wounded, sick and shipwrecked
    ARTICLE 17. -- WOUNDED LANDED IN A NEUTRAL PORT


    [p.117] 1. -- ' General remarks and historical background '

    This is probably the Article which, of all those contained in the Convention, has caused and still causes the most difficult problems of interpretation, not because of its contents but because of the gaps in it.
    It is truly surprising that the authors of the 1899 and 1907 Conventions concerning the victims of war at sea did not seek to solve certain important problems which are at the very heart of the matter, such as for instance the situation of wounded or shipwrecked persons who are landed by a hospital ship or merchant vessel in a neutral port, although there is no reference to such a case in any other Convention.
    But it is even more surprising that in 1949 the plenipotentiaries, to whose notice the gaps had already been brought, deliberately decided to retain an ambiguous wording, in order not to restrict the "liberty of interpretation" of the Powers (1).
    It is regrettable -- though this is a common occurrence in present times -- that the authors made provision only for the settlement of individual cases on the basis of past precedents, instead of first laying down general principles and rules for future application as part of a general solution.
    Article 17 is almost identical to Article 15 of the 1907 Convention, which in turn corresponded to Article 10 of the 1899 Convention. Only the phrase "where so required by international law" was added; for the meaning of that expression, reference should be made to the commentary on Article 15 (2).
    At the time of signature of the 1899 Convention, Germany, Turkey, the United Kingdom, and the United States of America each entered a reservation in regard to Article 10 . The United Kingdom stated that, because it implied internment, the Article was contrary to the law of ' habeas corpus, ' and that ratification would require the enactment of legislation which the British Government was not disposed to propose. After diplomatic negotiations, Article 10 was subsequently struck out of the Convention by all the States.
    [p.118] In 1900, the Institute of International Law adopted a recommendation calling for its reinstatement. In 1907, the Article was re-inserted in its place in the Tenth Convention of The Hague without opposition.
    When consideration was first given in 1937 to the possible revision of the Maritime Convention, the International Committee of the Red Cross pointed out to the experts that, in its view, it would be useful to supplement and clarify the Article. Various proposals were made, and it must be said that some of them had not been studied sufficiently.
    Those efforts eventually proved vain, for the 1949 Diplomatic Conference decided to revert purely and simply to the 1907 text, it being understood that each Power would retain its liberty of interpretation.

    2. -- ' Commentary on the Article '

    It is clear from the records of the 1899 and 1907 Conferences, and in particular from the reports of Louis Renault, that the present Article relates solely to wounded, sick or shipwrecked members of the armed forces of the two belligerents (3) who are landed by belligerent warships (4).
    The landing of wounded in a neutral country implies agreement between two parties: on the one hand, the belligerent to which the ship belongs, as represented by the commanding officer, and on the other hand the neutral Power, as represented by the port authorities.
    A belligerent warship may make a brief call at a neutral port if the neutral country consents; it is not thereby obliged to land any prisoners whom it may have on board, or a fortiori any wounded members of its own forces, and may leave again with them.
    The ship's commander may, however, wish to land and leave on neutral territory the wounded or shipwrecked persons on board, for instance because of urgent medical reasons or shortage of accommodation, especially if the ship is a long way from base.
    [p.119] The landing is subject to the consent of the local authorities in the neutral country and they are the second party to the agreement. They are not obliged to agree, for in certain cases hospital accommodation for disabled persons, who may be numerous, would prove a heavy burden. It is to be hoped that they will agree when the humanitarian interest of the victims so requires.
    It was only after some hesitation that provision was made for this possibility in 1899. It was wondered whether such a practice was compatible with neutrality, since it might be to the military advantage of a belligerent vessel to get rid of the wounded on board; having discharged its passengers, it could then resume military operations. "Nevertheless," wrote Renault, "it was realized that humanitarian considerations must prevail in this instance... for if the voyage were prolonged, the suffering of the wounded and sick would be aggravated to no purpose".
    If it is mutually agreed that the landing can take place, then failing arrangements to the contrary between the neutral State and the belligerent Powers, the wounded and sick as well as the shipwrecked must be so guarded (i.e. interned) where international law so requires (5) that they cannot return to their country and there again take part in operations of war. Neutral territory may be a place of asylum, but it must not be a place of transit on the way to the battle zones. An exception may be made to this principle only where agreement has been reached with the belligerent Powers, that is to say with both camps -- the Power of origin of the shipwrecked and the adverse Power -- and neutrality implies this condition.
    Lastly, the costs occasioned by the presence of such persons must not be borne by the neutral State, but must be reimbursed by the Power on which they depend, in accordance with the general principles of international law (Article 12 , Fifth Convention of the Hague, 1907).

    3. -- ' Cases not provided for '

    The present Article was intended to cover only wounded persons landed in a neutral country by a belligerent warship. The question naturally arises of how other cases should be settled.
    [p.120] First of all, it seems to us desirable to give a summary table of the most important among them. The solution to some is to be found in the present Convention; others are answered by provisions contained in other Conventions, or by customary law and still others by established interpretation; there are also some possible cases which have not been solved, and we shall consider them afterwards.
    The table therefore answers the following question: what will be the fate -- freedom or internment -- of wounded, sick or shipwrecked members of the armed forces and persons with similar status (Article 13 ) who are landed in a neutral country, according to the kind of ship (or aircraft) on board which they were, and provided that the neutral country accepts them?

    (a) ' belligerent warships simply making a call: '
    internment (Article 17 of the present Convention)

    (b) ' belligerent warships disarmed in a neutral country: '
    internment for nationals, freedom for enemies (Article 24 , Thirteenth
    Hague Convention, 1907 and interpretation) (6).

    (c) ' medical aircraft of the belligerents: '
    internment (Article 40 of the present Convention)

    (d) ' neutral warships: '
    internment (Article 15 of the present Convention)

    (e) ' neutral merchant vessels: '
    freedom (interpretation -- see above, commentary on Article 15 , in
    fine).

    (f) ' shipwrecked and escaped persons who reached neutral territory by
    their own means: '
    freedom (interpretation) (7).

    [p.121] We now come to two cases which remain unsolved: firstly, wounded or shipwrecked persons who are landed in a neutral port by a hospital ship, and secondly those landed by a belligerent merchant vessel. In this regard, the Conventions contain no reference, existing interpretations are few and imprecise, and doctrine and practice are confused and in conflict.

    A. ' Hospital ships. ' -- A distinction must first be made between belligerent hospital ships (including those of a neutral country which have placed themselves under the control of a belligerent, pursuant to Article 25 ) and the hospital ships of a neutral country which have remained in the service of their own navy and may on occasion pick up shipwrecked persons belonging to the belligerent forces. The latter category is subdivided into military hospital ships and those belonging to relief societies or private persons. The first, being public vessels, are not liable to be searched, and any shipwrecked whom they may have taken aboard cannot be captured. It is precisely because the right of search and surrender can be exercised ' vis-à-vis ' neutral merchant vessels that it was considered that any shipwrecked persons landed by them should be left free. Conversely, shipwrecked persons landed in a neutral country by a military hospital ship belonging to that country should be interned, in the sense of Article 15 of the present Convention.
    The Convention is not applicable to private hospital ships which have remained in the service of the neutral country. They are considered in the same way as neutral merchant vessels. The belligerents can exercise the right of search and surrender with regard to them. Consequently, any shipwrecked persons who may have been picked up by such a ship will remain free after landing in a neutral country.
    There remains the more important -- and more difficult -- case of wounded put ashore by belligerent hospital ships. One can to some extent realise why no provision was made to cover it. The task of hospital ships, particularly in modern times, is to evacuate the wounded to their home country. They were built for that purpose and have all the necessary installations. They would be failing in their normal duty if they disembarked their patients ' en route. ' The case may, however, arise, for instance if land or sea [p.122] engagements have caused so many victims that there is not enough space in the hospital ships for their evacuation to their home country. If a neutral country is near, the hospital ships might then take some of the wounded there.
    The 1899 and 1907 Conventions made no reference to this possibility, but an interesting note as regards interpretation appears in the record of the third meeting of Sub-Committee I of the Conference, held on June 1, 1899, in the introduction to the discussion of the new Article 10 . Louis Renault made the following statement: "The Sub-Committee would have to examine a case for which no provision was made in the additional Articles: that of a hospital ship carrying sick and wounded persons which called at a neutral port." The speaker recalled that the question had been raised a few years earlier by Commander Houette, and the record then states, a few lines further on, that "Mr. Renault did not consider that attention need be given to the status of the ship from which the wounded were disembarked."
    It might have been deduced from the foregoing that Renault and his colleagues had in mind that wounded persons landed by hospital ships should be interned. Renault's own statement was weakened singularly in 1907, however, when in establishing by interpretation that shipwrecked persons landed by a neutral merchant vessel should be free, this same jurist showed that -- eight years later at any rate -- the status of the ship was considered in determining the situation of war victims on board.
    Paul Fauchille had no hesitation in classifying hospital ships among those vessels whose wounded or shipwrecked passengers are liable to internment in a neutral country (8). Other writers consulted have made no comment on the matter.
    When consideration was given in 1937 to the possible revision of the Tenth Hague Convention of 1907, the International Committee of the Red Cross raised this question, but the views expressed by the experts remained divergent. In 1937 and 1947, opinion was divided regarding internment. At Stockholm in 1948, the majority favoured internment, and the draft Convention was thus amended.
    [p.123] At the 1949 Diplomatic Conference, only one delegate spoke out in favour of treating hospital ships and warships alike in the present instance (9). On the other hand, representatives of countries which had remained neutral during one or other of the world conflicts expressed concern at the idea of such countries being obliged to intern victims, because of the heavy burden which would thus be imposed on them (10). Their apprehension is perfectly understandable considering that some neutral countries have never been reimbursed for the considerable expense which they incurred in this regard. As we have already said, the delegates to the Conference eventually decided to revert purely and simply to the 1907 text, despite its ambiguity, considering that they were not competent "to interpret international law concerning survivors who had been landed", it being understood "that each contracting State would have complete liberty of interpretation" (11).
    In written law, therefore, one is hardly any further advanced than in 1899, and perhaps even less, since the recent addition of the words, "where so required by international law" seems to indicate that the solution should be found outside the Article itself.
    In doctrine, two theories have to be considered. According to the first, which seems the most widespread, wounded, sick or shipwrecked persons depending on a belligerent who are landed in a neutral port by a hospital ship with the consent of the local authorities must be so guarded that they cannot again take part in operations of war. The arguments in favour of this theory are the following: hospital ships are part of the naval armed forces and are therefore covered by Article 17; the criterion for internment must be sought not in the status of the ship, but in that of the persons concerned (12).
    [p.124] According to the contrary theory, such shipwrecked and wounded persons must remain free in a neutral country. It has been pointed out in support of this view that because of their charitable mission, hospital ships must not be considered on the same basis as warships properly so called; hospital ships are subject to the right of search and surrender by the belligerents just as neutral merchant vessels are, and it is for that reason that disabled persons who have been picked up by the latter are left free (13).
    Mention may also be made of the opinion that in cases Hot specifically covered by the Second Convention, and in view of varying practices in past wars, the neutral country can be considered as under no ' obligation ' to intern belligerents (14).
    We shall indicate later the new solution which we feel might solve the problem.

    B. ' Belligerent merchant vessels. ' -- Here doctrine and the records of past conferences are still more imprecise. In support of the theory of internment, one may again cite Louis Renault's interpretation referred to above, which stated that no attention need be given to the status of the ship from which wounded were disembarked. That statement was, however, made in regard to hospital ships and there was no reference to belligerent merchant vessels. Moreover, Renault recognized that shipwrecked persons landed by a neutral merchant vessel should be free.
    Article 5 of the Netherlands Proclamation of neutrality of 1939 states that shipwrecked persons landed in a neutral country by merchant vessels are to be free, subject to any other arrangement made with the adverse Party. The text makes no distinction between [p.125] belligerent or neutral merchant vessels, and that is the line followed by Netherlands practice and doctrine (15).
    As in the case of hospital ships, the experts consulted between 1937 and 1948 held various views.
    At the 1949 Diplomatic Conference, the Swedish delegate, Mr. Gihl, stated: "If wounded, sick or shipwrecked persons were disembarked in a neutral country by a merchant ship, belligerent or neutral. they should be free. According to a general rule of the law of neutrality, shipwrecked crews of a belligerent warship were not interned if they arrived in a neutral country, since, being deprived of their ship, they would not be able to use neutral territory as a base for warlike operations" (16).
    Thus, here again, we are faced with two conflicting theories, which may be summarized as follows: on the one hand, internment depends on whether or not the ship concerned belongs to a belligerent country; in the second case, it depends not on the status of the ship, but on that of the persons concerned.
    The arguments in favour of non-internment may be summed up as follows: belligerent and neutral merchant vessels are more closely related by the fact of belonging to the merchant marine than they are set apart by their belligerent or neutral status; they are not warships, and the same solution can therefore be applied to them (17).
    This seems an appropriate moment to outline the new solution which we propose. It deals at the same time with hospital ships and belligerent merchant vessels.

    C. ' Solution by the commentator ' (18)

    It is a striking fact that in both the cases considered above, neither of the opposing theories is fully satisfactory, whether from [p.126] the point of view of logic, law or humanity. The reason is that originally a solution was sought which could apply without distinction to all wounded, sick or shipwrecked persons on board a hospital ship or merchant vessel of one of the belligerents, regardless of the fact that they might be either "nationals" (belonging to the same country or the same belligerent camp as the ship) or "enemies" (belonging to the opposing camp). One may reasonably assume that the former have every chance of remaining free later, but that the latter will most likely be held prisoner after being handed over to the armed forces of the same nationality as the ship (19).
    It seems to us that the problem will always remain unless recourse is had to a more detailed solution. It has been said that the criterion of internment or non-internment depended not on the status of the ship but on that of the individuals concerned. That idea was not fully developed, however, and in fact the status of both must be taken into account.
    Any study of this kind must start from fundamental concepts. The Geneva Conventions are based on a proper balance between military requirements and those of humanity. The interest of the victims, of the neutral States and of the belligerent States as well as the general principles of law must therefore all be taken into account.
    It is difficult if not impossible to determine the interest of wounded, sick or shipwrecked persons other than that they must be well cared for, which will be the case whether or not they are interned. First of all, their interest will vary according to the hazards of war. If they are on board a ship of their own nationality, they will remain free if it reaches the home country without interference, but will become prisoners of war if the ship is boarded by the enemy and the latter demands their surrender. On the other hand, if they are on board an enemy ship, captivity will await them if the ship continues on its course without hindrance, but they may be set free if the armed forces of their own country intervene. Thus, landing in a neutral country may be an advantage or a disadvantage, depending on military events in an uncertain future.
    [p.127] Then too, conditions of internment in a neutral country will depend on many factors which will vary from one case to another: it will be more or less easy or pleasant to bear according to that country's resources, its climate, the attitude of its inhabitants, etc.
    For all these reasons, it is difficult to determine the real interest of the wounded (20).
    Let us now consider the interest of the neutral country, which has no advantage in having to intern a greater number of persons because of the obligations involved and the uncertainty of being able to recover the costs. On the other hand, the neutral country must observe the rules of neutrality which forbid it to assist the war operations of one belligerent to the detriment of the other. This brings us to the next consideration -- the interest of the belligerents.
    If a hospital ship or merchant vessel of a belligerent had on board wounded, sick or shipwrecked persons of its own nationality and the latter were to be free after landing in a neutral country, then it would be to the considerable -- we would even say overwhelming -- advantage of the ship to land them. Space would be made available on the ship, the adversary would no longer be able to exercise the right of surrender, a longer voyage would be avoided and once they had recovered, those members of the armed forces could be taken back again. A neutral country which took part in such an undertaking would be favouring that belligerent unduly. We therefore deduce that wounded and shipwrecked persons of the same nationality as the ship should be interned. There would then be no risk of the belligerent making abusive use of the possibility of landing such persons and swamping the facilities available in the neutral country.
    If, on the other hand, the hospital ship were carrying enemy personnel and the latter were to be liable to internment, then [p.128] again there would be an excessive advantage in landing them. As in the preceding case, the ship would be able to free accommodation, avoid having to surrender its passengers, avoid a voyage and at the same time would be assured that its enemies would be kept out of the fighting, just as if the belligerent was holding them in its own prisoner-of-war camps. By acting as gaoler in its place and on its behalf, the neutral Power would assist the belligerent. We therefore conclude that enemy wounded and shipwrecked persons should remain free. That would also make the belligerent less inclined to flood neutral countries with its captives.
    This brings us to the only practical solution, which is that a distinction should be made between persons of the same nationality as the ship and persons of enemy nationality. The fate of these two categories will be different: nationals would have to be interned and enemies would remain free.
    Lastly, this thesis is confirmed by the general principles of law. While it does not favour the belligerents unduly, one should not forget that it will nearly always be at the entire discretion of the Party to the conflict to which the ship belongs to land anyone in a neutral port. The Party to the conflict will therefore do so only for serious humanitarian reasons and not merely in order to maintain its own active forces at little cost, while at the same time diminishing those of the enemy. Moreover, it would be neither just nor appropriate to oblige neutral States always to intern war victims. If that were the rule, they would be tempted not to allow wounded and shipwrecked persons to be landed and humanity would not profit thereby. Lastly, the solution proposed is consistent with the principles governing the status of belligerent persons in a neutral country: members of the armed forces who flee from battle and voluntarily come to a neutral country are interned; those who are brought there as prisoners of war or reach a neutral country after escaping are not interned.
    One might therefore complete the summary table on page 120 above as follows:

    (g) ' neutral military hospital ships in the service of their naval
    forces: '

    internment

    [p.129] (h) ' neutral private hospital ships in the service of their naval
    forces: '

    freedom

    (i) ' hospital ships belonging to and in the service of a belligerent: '

    internment for nationals; freedom for enemies

    (j) ' belligerent merchant vessels: '

    internment for nationals; freedom for enemies.

    It is our earnest hope that this proposal will be taken into consideration when the necessary task of revising and codifying the rights of neutral countries is undertaken. Perhaps in the meantime the Powers will adopt it as a modus vivendi for application to any cases which may arise under the present Convention.
    Once an official ruling has been given on the two cases considered above for which no provision is at present made, a general review should obviously be made of the solutions accepted hitherto for all other cases, with a view to arriving at a rule applicable to them all.


    * (1) [(1) p.117] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 105-106,
    181 and 201;

    (2) [(2) p.117] See above, p. 107;

    (3) [(1) p.118] See ' Actes ' of the 1899 Conference, p. 38;

    (4) [(2) p.118] See ' Actes ' of the 1907 Conference, Vol.
    III, p. 311;

    (5) [(1) p.119] See above, commentary on Article 15, p. 107;

    (6) [(1) p.120] By "nationals" we mean wounded, sick or
    shipwrecked persons of the same country or the same
    belligerent camp as the ship which picked them up. By
    "enemies" we mean nationals of countries in the opposing
    camp. For case (b) see FAUCHILLE, op. cit., par. 1463 --
    28/29. Agreement is not complete, however, regarding the
    fate of "enemies". See OPPENHEIM-LAUTERPACHT, op. cit.,
    par. 345 and 348(a);

    (7) [(2) p.120] See FAUCHILLE, op. cit., par. 1463 -- 29;
    OPPENHEIM-LAUTERPACHT, op. cit., par. 348 (a) 3;

    (8) [(1) p.122] op. cit., par. 1463 -- 28;

    (9) [(1) p.123] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 61-62;

    (10) [(2) p.123] Ibid., pp. 61, 105-106; Vol. II-B, p. 248;

    (11) [(3) p.123] Ibid., pp. 105-106, 181 and 201;

    (12) [(4) p.123] A number of spurious arguments have also been
    adduced, such as the following: the belligerents will no
    longer accept assistance from neutral Powers if their
    prisoners are to be able to escape capture; they will not
    avail themselves of the possibility of landing the wounded
    in a neutral country; they will resort extensively to the
    right of surrender, etc. Those arguments are valueless
    here, however, for they can be turned one way or the other
    depending on whether one is considering the case of
    "nationals" or of "enemies" on board a hospital ship;

    (13) [(1) p.124] The solution envisaged by doctrine (see above,
    ad Article 15, p. 111) for shipwrecked persons picked up
    by neutral merchant vessels justifies non-internment by
    the fact that although such vessels were liable to be
    searched and the persons on board captured, the opposing
    belligerent did not avail himself of that possibility. If
    that solution were recognized as just and fully
    satisfactory, then the same criterion would certainly be
    valid for the wounded and shipwrecked on board hospital
    ships or merchant vessels belonging to one of the
    belligerents. But is that solution in fact fully
    satisfactory and likely to provide a basis for a general
    settlement ? That is the question;

    (14) [(2) p.124] See TUCKER, op. cit., p. 123;

    (15) [(1) p.125] See ' Oranjeboek ' -- October 1915-July 1916,
    p. 29. See also FRANCOIS: ' Handboek van het
    Volkenrecht, ' 1950, Vol. II, p. 676; L. CARSTEN:
    ' Maatregelen ten Handlaving onzer Onzijdigheid in den
    Huidigen Oorlog, ' 1916, p. 97. According to doctrine, if
    a belligerent warship which has stopped a neutral merchant
    vessel has not taken on board the shipwrecked who were on
    the latter, it may require their internment in the neutral
    country;

    (16) [(2) p.125] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 61;

    (17) [(3) p.125] See p. 124, note 1;

    (18) [(4) p.125] Proposed on the sole responsibility of its
    author, J. PICTET;

    (19) [(1) p.126] As regards the fate of the wounded on board a
    ship belonging to the opposing Party, see the commentary
    on Article 16 above;

    (20) [(1) p.127] We have considered only their immediate
    interest. It is still more difficult to make an objective
    assessment of their long-term interest. Is it preferable
    for a member of the armed forces to spend the war years in
    a country at peace, but as a captive and far from his own
    folk, powerless to defend his native land, or on the other
    hand for him to return home and regain his freedom, but
    also be exposed to fresh fighting and perhaps to fresh
    wounds or even death? There could be endless discussion of
    such questions;