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Commentary - Art. 43. Chapter VI : The distinctive emblem
    ARTICLE 43. -- MARKING OF HOSPITAL SHIPS AND SMALL CRAFT


    [p.241] This long provision merely develops and brings up to date Article 5 of the 1907 Convention , which in turn was an expanded version of the corresponding provisions in the 1899 and 1868 Conventions. Paragraphs 6 and 8 are, however, completely new.

    PARAGRAPH 1. -- METHODS OF MARKING

    It had long been acknowledged that the system of marking hospital ships adopted in 1907, at a time when air forces did not exist, was completely inadequate. Hospital ships were to be painted white outside with a horizontal band of green or red, and were to fly the red cross flag. The experts who met in 1937 recommended that large red crosses on a white ground should be painted on the hull and deck of hospital ships. During the Second World War, the belligerents often adopted that means of identification. It is clear from the records that the lack of an up-to-date system of marking, visible at a great distance, was the cause of most of the attacks made on hospital ships during the Second World War (1).
    On this point, the 1949 Diplomatic Conference therefore adopted far-reaching amendments to the 1907 text. It did not, however, adopt the radical innovations proposed by certain delegations such as, for instance, that the whole ship should be painted orange and black. The intention was to reach a simple, practical solution, not involving marking on the superstructure.
    [p.242] A uniform system of marking was adopted for hospital ships, whether they belong to a State or to a belligerent or neutral relief society, whereas under the 1907 Convention -- as a survival from the 1868 text in which ships were treated differently according to their origin -- some were to bear a green band, and others a red band. The 1949 Diplomatic Conference decided to do away with bands of any kind, in order to make the red cross more clearly visible.
    As in the past, all exterior surfaces of the ship are to be white. Any mention of ships being "painted" white was omitted deliberately, for there may be other more convenient and more durable means of applying the colour i. On the other hand, the word "painted" was retained in the case of lifeboats (paragraph 3) and the red crosses.
    The text specifies that ' all ' exterior surfaces must be white, and this therefore applies also to the visible parts of the deck. A great deal of maintenance might be entailed, and it would be inappropriate to reproach a ship's captain with the fact that small patches of the deck were worn or soiled by footmarks. The essential thing is that an aircraft should at first glance be able to identify the deck as being white.
    The provision also stipulates that one or more dark red crosses, as large as possible, are to be painted on each side of the hull and on the horizontal surfaces, so as to afford the greatest possible visibility from the sea and from the air. The number and size of crosses to be painted was intentionally not specified, for they will depend on the size and shape of the vessel (2). The essential thing is that it should be as clear as possible that the vessel is a hospital ship. Similarly, the reference to "dark red" obviously does not mean that a ship on which the red crosses were of another shade would not be protected. This is merely a recommendation intended to increase the effective security of a floating hospital by providing a better colour contrast.
    In accordance with the references to other Articles of the Convention, the present paragraph applies not only to hospital [p.243] ships but also to coastal rescue craft. By another reference, in paragraph 3, it also applies "in general" to lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service.

    PARAGRAPH 2. -- FLAGS

    This provision lays down rules regarding the three types of flag applicable to hospital ships (and also to other protected craft in virtue of the reference made in paragraph 3).
    The national flag of the belligerent must be flown. On the other hand, a hospital ship will not fly the pennant hoisted by warships.
    Hospital ships belonging to a neutral State and assisting a belligerent must fly their national flag as well as that of the belligerent concerned. The records of the 1907 Conference at The Hague indicate where the flags should be flown: the flag of the neutral State is to be flown in its usual place, and the flag of the belligerent together with the red cross flag is to be flown from the mainmast (3).
    Last and most important, hospital ships must fly a white flag with a red cross. That provision already existed in the earlier instruments, but the 1949 Diplomatic Conference decided to specify where it should be flown, although that place had already become traditional as may be seen from the reference above: it is to be flown at the mainmast, as high as possible. Why should this be so? Because it is the part of the ship which first appears over the horizon. The white flag with a red cross will therefore be placed above the flag of the belligerent.

    PARAGRAPH 3. -- LIFEBOATS

    This provision indicates the method of marking to be used for (a) lifeboats of hospital ships (which are protected pursuant to Article 26 ); (b) coastal lifeboats (which are protected pursuant to Article 27 ); and (c) small craft used by the Medical Service. [p.244] There is no other provision specifying that the latter category is to be protected, and a similar anomaly existed in the 1907 text: the three categories of craft mentioned above were granted protection only indirectly under Article 5 , relating to marking. The situation was put right in 1949 in the case of the first two categories, but the anomaly still remains in the case of the third. This means that "all small craft used by the Medical Service" are protected only pursuant to a single reference, that in the present paragraph, which is included in an Article relating to the distinctive emblem. The reference nevertheless establishes the fact of protection, but the anomaly as regards form means that it will not be compulsory to send a notification to the other Parties to the conflict concerning such small craft. In practice, however, the Powers would do well to send a notification, in accordance with the rules set forth in Article 22 .
    For these three categories of small craft, there are two compulsory rules in regard to marking: firstly, they must be painted white, and secondly, dark red crosses must be prominently displayed on them. There are other stipulations which are not compulsory, such as, for instance, that such craft "shall, in general, comply with the identification system prescribed above for hospital ships". The identification system, in addition to the requirements repeated here, includes those which follow from paragraphs 1 and 2 (marking on the deck, flags). "In general" means to the extent possible having regard to the size and shape of such craft, for some of them are not decked over or have no masts.
    Reference should be made here to the problem of ' the marking of fixed coastal installations ' used exclusively by coastal rescue craft and protected under Article 27 . The Second Geneva Convention does not actually stipulate that such installations may or must be marked with the emblem of a red cross on a white ground, but that is an obvious gap in the provisions. It seems to us sound doctrine and a reasonable interpretation of the relevant texts to acknowledge that such installations may, in war-time, display the distinctive emblem even though they are not hospital buildings accommodating wounded persons, but boat-houses, hangars or workshops. If the enemy is to be able to respect them, as required under the Convention, he must be able to identify them from far off.
    [p.245] What method of marking should be used for coastal installations? Need they only display the red cross emblem, or should all the external surfaces of the installations be entirely painted white? The Convention makes no reference to this point, and it seems to us sufficient if they display the sign of the red cross on a white ground. Only in the case of vessels are all exterior surfaces required to be white, and there is no similar provision regarding hospitals on land. Obviously, however, there is nothing to prevent coastal rescue installations from being painted white.
    As regards ' paragraph 4, ' concerning ' marking at night, ' we will merely quote the relevant passage by the Rapporteur of Committee I at the 1949 Diplomatic Conference:
    "At night and at times of reduced visibility, hospital ships are to display their various markings, unless the belligerent in whose hands they are prohibits them from doing so. The Committee was not prepared to dictate any system of lighting, floodlighting, crosses illuminated from within, etc. The solution chosen will, for that matter, vary with the size and special construction of the ship, and with geographical and meteorological conditions, etc." (4).

    ' Paragraph 5, ' which relates to detained hospital ships, is self-explanatory. If a hospital ship is provisionally detained by the enemy for the specified maximum period of seven days, in exceptional circumstances, pursuant to Article 31 , that ship must haul down the flag of the belligerent in whose service it normally is, in order to make clear its special position. It will not be required to fly the flag of the belligerent detaining it.

    ' Paragraph 6 ' is entirely new and was proposed by the Netherlands Delegation. As stated in the Final Record of the Diplomatic Conference of 1949, it "met the wishes of a great number of national lifeboat institutions belonging to formerly occupied countries which had experienced difficulties during the last war. Crews of lifeboats had refused to put to sea under the flag of the Occupying Power. He (Rapporteur of the working party which considered these questions) would have preferred such lifeboats to have been [p.246] able to operate under the red cross flag only. The suggestion, however, had been considered dangerous by other delegates, who thought it necessary to be able to recognize the country of origin of the lifeboats" (5).
    The wording of the paragraph shows that in certain cases where circumstances so warrant, the Occupying Power might refuse to consent to the use of lifeboats. In general, however, such consent must be given pursuant to the principles resulting in particular from Article 27 of the present Convention and Article 16 of the Fourth Geneva Convention. The expression "when away from their base" must be interpreted as meaning when lifeboats put to sea, when they leave harbour.
    The notification mentioned here, which is in addition to the notification specified in Articles 27 and 22 , will normally be sent by the Occupying Power, through the intermediary of the Protecting Power.

    ' Paragraph 7 ' may seem superfluous in view of Article 41 , the commentary on which should be referred to.

    ' Paragraph 8 ' is new and the idea it contains is a good one. With the speed of technical progress, the Convention was always liable to be one war behind in this domain. All the methods of marking referred to above may therefore be brought up to date at a later stage. In 1949 new inventions were referred to, but the Parties to a conflict would have to agree on their use.

    At the 1949 Diplomatic Conference, it was proposed that hospital ships should "try to make known, periodically and adequately, their position, course and speed". The suggestion was rejected i, but it was embodied in a Resolution of the Conference (Resolution No. 7) (6).


    * (1) [(1) p.241] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 213;

    (2) [(1) p.242] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 160;

    (3) [(1) p.243] ' Actes ' of the 1907 Conference, Vol. III, p.
    296;

    (4) [(1) p.245] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 205;

    (5) [(1) p.246] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 161;

    (6) [(2) p.246] For the text of the Resolution, see below, p.
    287;