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Commentary - Art. 35. Chapter III : Hospital ships
    ARTICLE 35. -- CONDITIONS NOT DEPRIVING HOSPITAL SHIPS
    OF PROTECTION


    The principle of this Article was contained in the 1907 Convention. Like the preceding provision, it was adopted with a view to concordance with the First Geneva Convention. In 1949, the last three sub-paragraphs were added.
    The Article sets out five conditions not depriving a hospital ship or sick-bay of protection, or, in other words, which must not be regarded as acts harmful to the enemy. They are particular [p.194] cases where hospital ships and sick-bays retain their character as such and their right to immunity, despite certain appearances which might have led to the contrary conclusion or at least given rise to some doubt. The object of the provision was to avoid disputes which arise only too easily between opposing Parties.
    The list is not, in our opinion, to be considered as comprehensive, even though the customary "in particular" has been purposely omitted. Cases can be imagined where the good faith of a hospital ship remains beyond question despite certain appearances to the contrary. For each Party, the question will always be one of good faith.

    (1) Medical personnel have the right to bear arms and may, in case of need, use them in their own defence or in that of the wounded and sick in their charge. That is the most important of the provisions which we are studying here. It already existed in the 1907 Convention (Article 8 ) and has a counterpart in Article 22 of the First Convention of 1949 (1).
    The purpose of the provision is undoubtedly to make it possible for the medical personnel to ensure the maintenance of order and discipline in a hospital ship or sick-bay, as in a hospital on land, and protect it against individual hostile acts (by pillagers or irresponsible members of the armed forces). A medical establishment is under military discipline, and must be provided with the necessary guards, if only to prevent patients from leaving the premises without permission or from committing hostile acts, to ensure that nurses enjoy the respect to which they are entitled, and so forth. Similarly, access must be denied to unauthorized persons, for instance members of the armed forces who might seek refuge there though not entitled to do so. Medical personnel will, therefore, need only individual portable weapons, such as side-arms, revolvers or even rifles.
    On the other hand, a medical establishment, whether on land or at sea, cannot have a real system of defence against military operations. It is inconceivable that a medical unit could resist by force of arms a systematic and deliberate attack by the enemy. [p.195] Forces of considerable strength would be needed, and by definition a medical establishment cannot have such forces at its disposal. If such an attack were made, any resistance by a few orderlies would be ridiculous and would probably serve only to intensify the attack. It is the business of the armed forces alone to repulse attacks, and only they can do so successfully.
    If by chance a medical unit were attacked -- though it is to be hoped that this will never occur -- the personnel should use all the means at their disposal to warn the enemy of the error and of the consequences entailed (by signals, notification, sending a spokesman bearing a flag of truce, etc.).
    If, despite the warnings given, it became apparent that the enemy was making a deliberate attack on the hospital ship or medical unit, in flagrant violation of the Geneva Conventions, then the medical personnel would have no option but to surrender and hoist the white flag. If the adversary were to announce his criminal intent of destroying the establishment and killing its occupants, the medical personnel could obviously use their weapons. One cannot expect men to allow themselves to be slaughtered like sheep. But one fails to see how such desperate action could change the situation. In no case, however, may the fact that a member of the medical personnel defends himself or the wounded in his charge against an illicit attack be considered as an "act harmful to the enemy" depriving him of his right to protection. Similarly, if a neutral State has resort to arms in order to defend itself against a violation of neutrality, that may not be considered as a hostile act (Fifth Convention of The Hague of 1907).

    (2) Hospital ships may possess apparatus exclusively intended to facilitate navigation or communication. This provision existed partially in the 1907 Convention. At that time, for reasons of military security, the question was raised as to whether hospital ships should be allowed to possess radio equipment. It was decided that they should, in recognition of the fact that radio was so important in telecommunication that hospital ships could not be deprived of it (2). Half a century later, the need for such apparatus is still more obvious.
    [p.196] The experts who met in 1937 proposed the insertion of a provision permitting hospital ships to carry small signal guns or line-carrying guns (3). This reference was not inserted because it is self-evident. A child could see that such guns are not weapons.

    (3) Wounded, sick or shipwrecked persons who are picked up may still be in possession of small arms and ammunition, which will be taken from them and handed to the proper service -- here this means a warship or the military authorities on land. That may take a certain time, however. Should a hospital ship be inspected by the enemy before it has been able to get rid of those arms, it must not be liable to be accused of bad faith as a result. The clause is new and its insertion was recommended by the experts who met in 1937. It corresponds to Article 22, sub-paragraph (3) , of the First Geneva Convention of 1949.

    (4) This provision, which is also new, is very important. It was formulated by the experts who met in 1948, and has its counterpart in Article 22, sub-paragraph (5) , of the First Convention. It lays down that hospital ships and sick-bays are not to be deprived of protection when their humanitarian activities extend to the care of wounded, sick or shipwrecked civilians. At sea as on land, military medical establishments may take in civilians. Similarly, civilian establishments may take in wounded members of the armed forces (4).
    The extension was essential in view of the character which modern warfare has taken on; military personnel and civilians may now be struck down on the same spot and by the same act of war. In such cases, they must be able to be treated by the same orderlies and accommodated in the same ships or establishments. Since a soldier, whose particular function is to kill, is entitled as soon as he is placed ' hors de combat ' to the compassion of his actual enemy, how can an inoffensive civilian be any less deserving of such compassion?
    The Convention contains no restriction, and the term "wounded, sick or shipwrecked civilians" must therefore be taken in its [p.197] broadest sense. It does not refer merely to civilians who are in distress because of an event which occurred at sea, although the provision was inserted with a particular view to such cases. In view of the fact that the present Article is complementary in character, it is neither the purpose nor the effect of this sub-paragraph to extend the benefits of the Second Geneva Convention to all sick civilians in general. If disabled civilians are taken on board a hospital ship, it must be as an exceptional measure resulting from force of circumstances. One cannot envisage that a hospital ship would regularly transport large numbers of civilians whose health was affected, for that should be arranged pursuant to Article 21 of the Fourth Geneva Convention. The present provision means, however, that if a belligerent had any objection to such a practice on the part of the adversary, it would in no way be justified in depriving the hospital ship of protection, but should merely make representations through the Protecting Power.

    (5) Hospital ships may transport medical personnel and equipment over and above their normal requirements. This provision was formulated at the 1949 Diplomatic Conference, and in connection with it the rapporteur wrote as follows: "The intention of this provision is to prevent hospital ships being used as a means of transport for large quantities of material, in particular rolling-stock, or large units of medical personnel. Had this paragraph not been inserted, difficulties might have arisen from the presence on board a hospital ship of personnel on their way to undertake the care of wounded and sick, on the pretext that they were not members of its usual personnel" (5).
    Ships used for the conveyance of medical equipment are the subject of Article 38 , and the reader should refer to the commentary [p.198] on that provision. As regards hospital ships, we have already seen in connection with Article 22 that they have been specially equipped with a view to assisting the wounded, treating and transporting them. In the normal course of events, they should retain their special character. If, however, because of special requirements -- not as a general rule but in isolated cases -- it is found necessary to use them for the transport of medical equipment and personnel over and above their normal requirements, no complaint must be made (6). That is the purpose of the provision.


    * (1) [(1) p.194] In the present study, we must supplement and
    modify what has already been stated on this point in the
    Commentary on the First Convention, p. 203;

    (2) [(1) p.195] See ' Actes ' of the 1907 Conference, Vol.
    III, pp. 300-301;

    (3) [(1) p.196] As recommended by the London Convention of
    June 10, 1948, for the Safety of Life at Sea;

    (4) [(2) p.196] Fourth Convention, Article 19, paragraph 2;

    (5) [(1) p.197] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 203. This
    view is confirmed by Mossop (op. cit., p. 401): "... The
    fact that they (the hospital ships) usually have a one-way
    flow of passengers -- from the fighting line overseas to
    base at home -- makes it economical to use them to
    transport medical stores and supplies for the forces in
    the field on the outward voyage... The carriage of such
    supplies must be subordinate to the dominant object of the
    voyage, i.e. to pick up casualties at its destination, so
    that it would not be a legitimate use of a hospital ship
    simply to visit neutral ports and there collect medical
    stores under the immunity afforded by the Convention.";

    (6) [(1) p.197] During the Second World War, in the Pacific
    theatre, hospital ships transported a mobile field
    hospital ready for installation on land;