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Commentary - Art. 18. Chapter II : Wounded, sick and shipwrecked
    ARTICLE 18. -- SEARCH FOR CASUALTIES AFTER AN ENGAGEMENT


    With this Article and the two which follow it, the Convention enters a new domain: that of the search for the wounded, the shipwrecked and the dead, their removal, and the recording and forwarding of information about them. The most important of these provisions had already been included in the Tenth Hague [p.130] Convention of 1907 (Articles 16 and 17 ) in order to make it correspond to the Geneva Convention of 1906. The 1949 Conference dealt more fully with the whole subject, adding a considerable number of useful details while leaving the main features unchanged.
    Article 18 corresponds to Article 15 of the First Geneva Convention of 1949, the first and third paragraphs of which have been copied almost word-for-word. The second paragraph, providing for a suspension of fire to permit the removal of the wounded left on the battlefield, was not repeated, however, as it could not be applied in war at sea.

    PARAGRAPH 1. -- SEARCH, PROTECTION AND FIRST AID

    The obligation for belligerents to search for and collect the victims of a naval engagement follows logically from Article 12 . The requirement that the wounded, sick and shipwrecked must be respected and protected obviously implies that they must first be saved from immediate peril -- i.e. in most cases from shipwreck. One may therefore consider that the provision might have been placed more appropriately immediately after Articles 12 and 13 , which lay down the principle, and before Articles 14 to 17, which deal with the fate of the shipwrecked once they have been taken on board.
    In the Tenth Hague Convention of 1907 (Article 16, paragraph 1 ) the provision was less imperative; the belligerents were required to "take measures" to search for the shipwrecked only "so far as military interests permit". The 1949 Diplomatic Conference nevertheless decided, without discussing the point, that the stricter requirement adopted for war on land (First Convention, Article 15 ) could also be applied to war at sea. The reference to military interests was therefore dropped, and it was provided that "Parties to the conflict shall without delay take all possible measures". The obligation to act without delay is strict; but only measures within the possibilities of the Parties are to be taken; the military authorities will judge what is possible, and decide to what extent they can commit their units and men to searching for the shipwrecked.
    [p.131] Of course, one cannot always require certain fighting ships, such as fast torpedo-boats and submarines, to collect in all circumstances the crews of ships which they have sunk, for they will often have inadequate equipment and insufficient accommodation. Submarines stay at sea for a long time and sometimes they neither wish nor are able to put in at a port where they could land the persons whom they have collected. Generally speaking, one cannot lay down an absolute rule that the commander of a warship must engage in rescue operations if, by so doing, he would expose his vessel to attack (1).
    The "possible measures" which may be taken by the belligerents to collect the shipwrecked are, on the other hand, many and varied and in nearly all cases they should enable the purpose of the present paragraph to be achieved.
    Thus, a warship which was unable to collect the victims of an engagement should, for instance, alert a hospital ship if there is one in the vicinity, or even a ship of any kind better equipped than itself; otherwise, it should resort to the possibility provided in Article 21 , and appeal to neutral vessels. It can also alert the nearest coastal authorities, or request assistance from the air forces. Generally speaking, if a warship is forced to leave shipwrecked persons to their fate, it will endeavour to provide them with the means to enable them to await rescue or reach the coast: life-boats, food, water, a compass, charts, etc. It will do the same for the victims of an engagement with a merchant vessel which refused to stop after being summoned or actively resisted search.
    It should be noted here that in the event of an engagement with a vessel of war, the crew and passengers of merchant vessels are protected not only by the present Article but also by the Procès-Verbal of London of 1936 ("relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of April 22, 1930") which in Rule 2 stipulates: "In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, [p.132] crew and ship's papers in a place of safety. For this purpose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board" (2).
    The words "after each engagement" with which the paragraph opens were already included in the corresponding provision of the 1907 text, which had taken them from the Geneva Convention of 1906. In the First Convention, the 1949 Conference replaced the phrase by the words "at all times, and particularly after an engagement", but left the old wording in the Second Convention, thus tacitly accepting the view of the Government experts, who had met in 1947, that the words "after each engagement" were better suited to the special conditions prevailing at sea.
    It is nevertheless regrettable that the general wording adopted for war on land was not reproduced here. Whether in peace or in war, and whatever the circumstances of shipwreck, the rescue of shipwrecked military personnel or civilians remains an obligation which can only be evaded because of military necessity or because material conditions make it impossible (3). The present wording should therefore be considered as a reminder to the belligerents that after an engagement -- and that means not only a naval battle, but also any kind of engagement or attack, even from the air, which may have caused victims whether by wounding, illness or shipwreck -- it is their duty to search for and rescue the victims. But this in no way affects the duty to search for and collect the victims, whether military or civilian, of any incident occurring at sea.
    [p.133] The general character of the provision is also emphasized by the use of the term "Parties to the conflict". It is the duty not only of naval units but also of all authorities on land, whether military or civilian, to search for and collect persons in distress. This will apply particularly in the event of an engagement off the coast or in a port, and in general whenever shipwrecked persons are reported either at sea or on the coast or an island. The authorities on land will also intervene in the case of incidents occurring on inland waterways (rivers or lakes). They must remember, particularly in the case of the victims of fighting between land forces, that the shipwrecked are entitled to respect and protection exactly as the wounded and sick are, and that they must be rescued -- as the First Convention does not expressly stipulate.
    Not only the living must be searched for and collected, but also ' the dead. ' It is not always certain that death has taken place. Furthermore, pursuant to Article 20 , the dead must be identified and given a decent burial, on land or at sea, and a proper report must be sent to their country of origin.
    When the shipwrecked and dead are picked up, all objects belonging to them or found in the vicinity should also be collected, for such objects may make it possible to identify the owners or missing persons. Pursuant to Article 19, paragraph 3 , any articles thus found will in case of death be sent to the authorities of the deceased's country.
    Once the shipwrecked have been picked up, they must be protected against ' ill-treatment, ' and any pillage of the dead must be prevented. This follows from the general principle of respect and protection as set forth in Article 12 . The wounded, the shipwrecked and the dead must be defended, if need be by the use of arms (4), against all who may seek to lay hands on them (5).
    They must also be given ' first aid. ' The general obligation to care for the wounded and sick irrespective of their nationality arises out of Article 12 . The reason for repeating this idea in the present [p.134] paragraph as in the corresponding provision of the First Convention, was to emphasize the necessity of giving first aid immediately because it is now recognized that such treatment may have a determining effect on the patient's recovery. That is moreover one of the essential duties of a hospital ship.

    PARAGRAPH 2. -- EVACUATION OF A BESIEGED AREA

    The various meetings of experts held before the 1949 Diplomatic Conference all supported the proposal by the International Committee of the Red Cross for the inclusion of a new and important idea -- that of inviting the belligerents to conclude truces to permit the removal of wounded and sick from a besieged area, and to allow medical personnel and equipment to be sent to that area.
    In addition, the XVIIth International Conference of the Red Cross rightly pointed out that besieged areas might be on the edge of the sea, or might even be islands (6); provision should therefore be made for evacuating the wounded by sea, through the insertion of a similar text in the Second Convention. The Diplomatic Conference agreed without discussion, and the relevant clauses are to be found in Article 15, paragraph 3 , of the First Convention and the present paragraph of the Second Convention (7).
    It should be noted, however, that the repetition of this provision in the present Convention adds nothing either in theory or in practice. The fact that it was included in the First Convention would have sufficed to cover the evacuation of the wounded from a besieged area or the admission of medical supplies by land as well as by sea. Be that as it may, the present paragraph serves to remind the naval forces of the humanitarian task which they may have to carry out, and to ensure that the provisions of the Second Convention will be applied, should occasion arise. In all cases, the authorities on land will probably be responsible for negotiating and [p.135] concluding the necessary arrangements, either in the form of an armistice, a suspension of fire or simply a promise not to attack.
    The ' wounded and sick ' referred to here will be those in the categories listed in Article 13 . They may also include wounded or sick civilians for whom arrangements for evacuation have been made under Article 17 of the Fourth Convention. The victims may be evacuated by hospital ships, ordinary vessels, or even small craft if the distance involved is not great. Hospital ships or lifeboats should preferably be used, however, for they are entitled to be marked with the red cross emblem (8).
    What will ' evacuation ' of the sick and wounded mean? That will depend on their own status and on the terms of the arrangement concluded. It may merely mean handing them over to the besieger, in which case the nationals of the latter will become free, while the wounded and sick of the same nationality as the besieged forces will become prisoners of war, if they are persons entitled to protection under the present Convention. Evacuation may also mean returning wounded and sick of the same nationality as the besieged forces to a place where they will again meet their own troops, from whom they were cut off by the siege. In that case, evacuation by sea through the blockade of the besieging forces will usually be carried out by hospital ships or other vessels flying the flag of the besieged forces or that of a neutral country. A hospital ship belonging to the besieging forces may also, however, fetch the persons to be evacuated and land them in a neutral port or even in an enemy port if the arrangement provides that they will not be detained there. If wounded and sick persons of the besieged forces belonging to any of the categories listed in Article 13 were landed in this way in a neutral country, they would become free since the enemy landing them would have undertaken not to capture them; this is consistent with the solution proposed in connection with Article 17 , regarding the status of wounded and sick persons landed in a neutral port (9).
    [p.136] The commander of a besieged place may request permission to evacuate his wounded and sick or ask the besieger to allow free passage of ' medical personnel and equipment ' to look after them. But it is conceivable that he will make both requests. The Convention does not treat them as alternatives. As for religious personnel, the most elementary sentiments of humanity demand that they should always be allowed free access.
    The nationality of the medical and religious personnel in question is not specified. That is a happy omission. The besieging Power must either permit the passage of enemy personnel of the same nationality as the wounded requiring attention or, if such personnel are not available or other circumstances make it more desirable, send members of its own personnel into the besieged place, in conformity with the general principles of the Convention. In the latter case, the status of the besieger's personnel and the conditions of their stay must then be specified in the arrangement concluded. In any event, the conditions must not be less favourable than those provided in the Convention (see Article 6 ).


    * (1) [(1) p.131] See TUCKER, op. cit., pp. 70-73;

    (2) [(1) p.132] This Rule was cited by the International
    Military Tribunal at Nuremberg during the trial of Admiral
    Doenitz. During the Second World War, there were many
    instances where the victims of a naval engagement --
    mainly the crews of merchant vessels which had been sunk
    by submarines -- were lost at sea for lack of rescue. Some
    of those cases were brought before war crimes tribunals.
    See TUCKER, op. cit., p. 72. Some of the judgments are
    cited below in connection with Article 51. See below, p.
    267;

    (3) [(2) p.132] Article 16 of the Fourth Convention of 1949
    states that as far as military considerations allow, each
    Party to the conflict must facilitate the steps taken to
    search for shipwrecked civilians. Reference should also be
    made to Article 11 of the Convention for the unification
    of certain rules respecting assistance and salvage at sea
    (Brussels, 1910), which states that each captain is
    required, to the extent that he can do so without serious
    risk to his ship, crew, or passengers, to give assistance
    to any person, even an enemy, found at sea in danger of
    perishing;

    (4) [(1) p.133] Article 35 authorizes the crews of hospital
    ships and sick-bays to carry arms and to use them for
    their own defence and that of wounded, sick and
    shipwrecked persons;

    (5) [(2) p.133] It should be noted here that Article 47
    prohibits any reprisals against the wounded, sick or
    shipwrecked;

    (6) [(1) p.134] There were a number of such areas during the
    Second World War, and delegates of the International
    Committee of the Red Cross succeeded in delivering relief
    supplies to some of them, for instance Sebastopol, Tobruk,
    the German pockets on the Atlantic coast, and the Channel
    Islands (see ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. III, p. 439 ff.;

    (7) [(2) p.134] Article 17 of the Fourth Convention contains a
    similar provision;

    (8) [(1) p.135] In this connection it may be recalled that
    under Article 21 of the Fourth Convention, ships conveying
    wounded and sick civilians must be respected and
    protected, and are also entitled to display the
    distinctive emblem;

    (9) [(2) p.135] See above, pp. 121-129;