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Commentary - Art. 22. Chapter III : Hospital ships
    ARTICLE 22. -- NOTIFICATION AND PROTECTION
    OF MILITARY HOSPITAL SHIPS


    [p.156] The present Article contains no great changes of substance as compared with Article 1, paragraph 1 (1), of the 1907 Convention , which in turn was taken from the corresponding provision in the 1899 Convention .
    The two most important changes are, in the first place, the introduction of a stipulation that at least ten days must elapse after the notification of a hospital ship before it is put into service and, in the second place, the requirement that the notification must give not only the name of the ship but also its characteristics.
    The text contains additional details in three respects. The task of a hospital ship is no longer defined as being to assist the wounded, sick and shipwrecked, but also to treat and transport them. Hospital ships are no longer required to be merely "respected" but to be "respected and protected"; this corresponds to the traditional wording of the Geneva Conventions. It is now specified that they "may in no circumstances be attacked or captured", whereas this was formerly merely implicit in the reference to respect.
    Then there are a few modifications of form which concern only the French text. Here, as in the rest of the Convention, the word "bâtiment" has been replaced by "navire" to avoid any possible confusion. Similarly, the term "navires-hôpitaux" has been used throughout to indicate military hospital ships as well as private vessels, which in the earlier Conventions had been referred to as "navires hospitaliers". All enjoy the same status. The difference in terminology had perhaps survived from the 1868 Draft, in which military hospital ships remained liable to capture. Some experts proposed that Articles 22, 24 and 25 should be merged into a single provision. That recommendation was not adopted, in order better to stress the difference in origin of the three categories of hospital ships (2).

    [p.157] PARAGRAPH 1. -- PROTECTION AND CONDITIONS THEREFOR

    1. ' Protection '

    This provision extends to hospital ships the immunity which Article 12 confers on the wounded, sick and shipwrecked. Hospital ships are entitled to protection regardless whether or not they are carrying victims on board. They are protected not only because they carry wounded persons, but also in their capacity as an instrument ready to assist the victims.
    For the sense in which the words "respected and protected" are traditionally used, reference should be made to the comments on Article 12 (3). Respect for such ships means first of all that they may not be attacked, harmed or impeded in any way, with the exception that certain rights expressly mentioned in Article 31 may be exercised by the belligerents -- namely the right of control and search. One may therefore wonder whether it was really necessary to add here that such ships "may in no circumstances be attacked". Be that as it may, the expression is absolutely clear and explicit. To respect such ships means, secondly, not to interfere with their work or with the accomplishment of their task. To protect them is to ensure that they are respected, that is to say to oblige third parties to respect them. It also means coming to their help in case of need. It involves "active co-operation in rescue work" (4).
    Hospital ships are entitled to immunity "at all times", in all circumstances. They will therefore be protected even if they are lying in a port where the installations may be considered to be military objectives. In such a case, however, although the hospital ship is still legally entitled to protection, in fact its security will be impaired. If the port installations were bombed, the hospital ship would also inevitably be endangered. The attacker must take every precaution in order to reduce risks to a minimum, but at the same time the commander of the ship must evaluate the danger involved and must not expose his ship more than is absolutely necessary.
    [p.158] The Maritime Convention does not actually contain a provision corresponding to Article 19, paragraph 2 , of the First Convention of 1949, which recommends that medical establishments should not be situated in the vicinity of military objectives; that is undoubtedly a general principle, however, valid also at sea, all the more so because a hospital ship can move easily.
    In addition to respect and protection, there is an express reference to the fact that hospital ships may not be captured, nor may they be detained for more than seven days (Article 31 ). This rule is absolute, more categorical than anywhere else in the Geneva Conventions in the case of the wounded, land vehicles and even medical personnel. The privilege is granted because in wartime ships are in short supply, and hospital ships even more so. It would have been a very serious blow to the victims of conflicts to allow such floating hospitals to be taken out of service.
    Although hospital ships (Articles 22, 24 and 25 ) make up the largest single class of vessel protected by the Geneva Conventions, they are not the only ones to which immunity is accorded. Lifeboats of hospital ships (Article 26 ), coastal rescue craft (Article 27 ) and small craft used by the Medical Service (Article 43, paragraph 3 ) are also entitled to protection. In addition the International Committee of the Red Cross might have occasion to operate ships carrying out humanitarian tasks (5). Similarly, the Fourth Geneva Convention affords protection to vessels conveying wounded and sick civilians (5).

    2. ' Conditions for protection '

    There are two conditions for according immunity to hospital ships: they must be intended solely for use in that capacity, and their name and characteristics must have been duly notified (6).

    A. ' Exclusive use '. -- This condition is stated in the present Article in the form of a definition of hospital ships. In order to be entitled to protection under the Convention, they must have been "built [p.159] or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them". This provision is supplemented by Article 33 , which specifies that merchant vessels which have been transformed into hospital ships may not be put to any other use throughout the duration of hostilities. Thus, the States are free to prepare hospital ships for service as they wish -- either by building them for that particular purpose or by converting other vessels, such as passenger liners; nor are they restricted as to the type of vessel. But in return for the complete immunity granted to such ships, they must be solely and definitively assigned to service as hospital ships. There is some analogy between this rule and those governing the status of medical personnel of the armed forces, who must be exclusively employed on their own particular duties. The charitable mission of hospital ships must therefore be entire, obvious and durable so that their unimpaired status may be assured. It was in order to prevent any possible abuse that improvised and temporary transformation was excluded.
    There was lengthy discussion at the Diplomatic Conference as to whether or not a minimum tonnage should be specified for hospital ships entitled to protection. It was finally decided not to include such a requirement, but Article 26 remains and the reader should refer to the commentary on that provision. The very notion of a "hospital ship", the wording used and the characteristics mentioned -- all these indicate that the Article concerns vessels of some size, for otherwise "small craft used by the Medical Service" would be involved, and provision is made for the latter in Article 43 .
    The charitable mission of hospital ships has been better defined. In addition to "assisting" the wounded, sick and shipwrecked (7), it also involves "treating" them -- i.e. giving them medical care -- and "transporting" them; the latter reference was inserted following a suggestion made by the International Committee of the Red Cross in 1937. In the earlier Conventions, these notions were implied in the general term of "assisting" the wounded, sick and shipwrecked.
    [p.160] In order to be recognized as such, must a hospital ship have all the installations and equipment necessary for the accomplishment of these three duties? We would be inclined to reply in the negative, and we do not believe that such was the intention of the plenipotentiaries at the 1949 Diplomatic Conference, any more than they intended the enumeration to be restrictive. And yet the Rapporteur of Committee I states quite categorically: "It is not sufficient for the vessel in question to be merely capable of rescue operations. It must be so equipped that it is in a position to care for and transport the wounded, sick and shipwrecked. A very clear distinction is therefore drawn between hospital ships and lifeboats" (8).
    We do not consider the problem as being of very great importance here. In practice, one cannot imagine a hospital ship treating wounded or sick persons without being able to transport them, or transporting men who by definition are in need of virtually constant attention without being able to give them treatment at least of a summary nature. The three duties listed -- namely to assist, treat and transport the victims -- constitute the special mission of hospital ships. As for determining whether or not a vessel is actually a hospital ship, that is a matter of common sense and good faith.
    The extension now afforded by Article 13, paragraph (5) , means that hospital ships may now carry sick, wounded or shipwrecked members of the merchant marine as well as those belonging to the armed forces (9).

    B. ' Notification '. -- The name and characteristics of a hospital ship must be notified to the Parties to the conflict ten days before it is put into service. This is a new rule. At the Stockholm Conference, the experts had proposed a time-limit of thirty days, but at the suggestion of the International Committee of the Red Cross [p.161] it was reduced to ten days. This period should suffice, in view of the means of rapid communication now available.
    The time-limit was introduced in order to guarantee the security of hospital ships. The belligerent Powers must have time to advise their armed forces everywhere, including even the most remote stations. The commissioning of a hospital ship is an important event, and as we have seen above, it cannot be improvised. Furthermore, there is no reason why the notification should not be sent when the ship is nearing completion, so that not a single day need be lost.
    If the notification is made during hostilities, it will usually be through the intermediary of the Protecting Power. And although the Convention does not say so, it would also be advisable to notify neutral countries, since hospital ships may have occasion to put into a neutral port.
    If the notification is made in peace-time (10), it can be sent direct by the State concerned to all the other Powers party to the Convention. In that case, it would be desirable, by way of precaution, to confirm earlier notifications at the opening of hostilities.
    Since the signature of the 1949 texts, the Belgian Government has proposed, at the suggestion of a Norwegian ship-owner, Mr. Paust (who was Chairman of the International Conference of Lifeboat Organizations in 1947), that the International Committee of the Red Cross should be asked to centralize information regarding the characteristics of rescue craft, and to send periodic notifications to the States bound by the Geneva Conventions. Certain States have suggested that the procedure should be extended to hospital ships. The International Committee of the Red Cross has indicated that it would be prepared to take on that duty if the majority of States so desired. Switzerland, as depositary of the Geneva Conventions, has conducted consultations on the matter but the results have not hitherto proved sufficiently conclusive for any decision to be taken, and the question remains open (11).
    [p.162] The 1907 text required notification only of the names of hospital ships. In 1949, on a proposal by the United Kingdom and Denmark, it was wisely decided to add a reference to the characteristics (12). We shall consider what they comprise.

    PARAGRAPH 2. -- CHARACTERISTICS

    Under this paragraph, the characteristics to be included in the notification are the registered gross tonnage, the length from stem to stern and the number of masts and funnels.
    There is, of course, no reason why a fuller description may not be given. It seems to us highly desirable that a ship's silhouette should be included in the notification for it is the best means of identification and is widely used in the navy. This would illustrate and supplement the characteristics enumerated in the Convention.
    As regards the indication of tonnage, it should be briefly noted that warships are described in terms of displacement tonnage (i.e. weight), while in the case of merchant vessels what is always referred to is the "registered tonnage", i.e. the usable volume of the ship, one ton being equivalent to 100 cubic feet (2.83 cubic metres). The "registered gross weight" corresponds to the whole volume of the ship; the "registered net weight" is that volume less the volume taken up by the engines, crew's quarters, supplies of fuel, food, water, and so forth.
    In this respect, hospital ships are considered like merchant vessels, the determining factor being the hospital accommodation in them.


    * (1) [(1) p.156] Article 1, paragraph 2, of the 1907 Convention
    has become Article 32 of the 1949 Convention;

    (2) [(2) p.156] For the origin of this Article, see ' Actes '
    of the 1899 Conference, pp. 31- 32; ' Final Record of the
    Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.
    63 ff., 71 ff., and 108 ff.;

    (3) [(1) p.157] See above, pp. 89-90;

    (4) [(2) p.157] See R. GEN T, op. cit., p. 66;

    (5) [(1) p.158] See below, p. 228;

    (6) [(2) p.158] In addition, marking should be mentioned,
    pursuant to Article 43, and the reader should refer to the
    commentary on that provision. Further, Article 34
    indicates the possible causes for discontinuance of
    protection;

    (7) [(1) p.159] Article 30 of the present Convention defines
    the task of a hospital ship as being to afford relief and
    assistance to the wounded, sick and shipwrecked without
    distinction of nationality;

    (8) [(1) p.160] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 202;

    (9) [(2) p.160] That was in fact the practice during the
    Second World War (see TUCKER: op. cit., p. 119). Moreover,
    a hospital ship will not be deprived of protection if it
    transports sick civilians. See the commentary on Article
    35 (4). p. 196 below;

    (10) [(1) p.161] Although the Convention refers to "Parties
    ' to the conflict '", the validity, of a notification sent
    before the commencement of a conflict cannot be disputed,
    as the purpose is fully achieved;

    (11) [(2) p.161) For further details, see Gilbert GIDEL: "La
    protection des embarcations de sauvetage". ' Revue
    internationale de la Croix-Rouge, ' September 1955;

    (12) [(1) p.162] Whereas the English text speaks of
    "descriptions" in paragraph 1 and "characteristics" in
    paragraph 2, the French text (which is equally authentic)
    uses the word "caractéristiques" in both places;