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Commentary - Art. 28. Chapter III : Hospital ships
    ARTICLE 28. -- PROTECTION OF SICK-BAYS


    This Article is taken from Article 7 of the 1907 text, with a few minor modifications as to form. It did not give rise to any discussion at the 1949 Diplomatic Conference.
    Although included in the Chapter entitled "Hospital Ships", the present provision in no way relates to them. It deals with respect for the sick-bays on warships and with the fate of equipment therein.

    A. ' Respect for sick-bays. ' -- At the 1907 Conference at The Hague, the Rapporteur, Louis Renault, explained that "this Article constitutes the application to war at sea of the principles contained in Articles 6 and 15 of the 1906 Geneva Convention. It can apply only in the case of fighting on board, which is very rare in naval warfare nowadays. The provision is self-explanatory." The Article was then adopted without discussion (1).
    [p.176] The above remarks apply mainly to the first sentence of the Article. Fifty years later, there is little to add except perhaps that the possibility of boarding has become still more unlikely.
    The experts who met in 1937 and 1947 acknowledged that the provision was somewhat obsolete, but decided that it should be maintained, in order to conform to the First Convention, and since the stipulation was in no way objectionable. In fact, it expresses a general principle of the Geneva Conventions: all installations devoted to tending the wounded must be respected.
    The reader should also refer to the commentary on Articles 34 and 35 which deal in part with sick-bays of vessels.

    B. ' Equipment. ' -- On the other hand, the two remaining sentences of the Article are fully justified, since they concern the fate of sick-bay equipment following the capture of a vessel, and there is nothing outdated about this possibility.
    Here the provision must be compared with Article 53 of the First Convention , and the commentary on that clause should be referred to. The wording corresponds to that of paragraph 2.
    As in the case of fixed medical establishments of land forces and the equipment of such establishments, sick-bays and their equipment "shall remain subject to the laws of warfare".
    On this point as on others, the Convention limits itself in part to a reference to the laws of war in force under other provisions of international law. In general, recourse to such references is justified, since the laws of war may change.
    We are not called upon here to comment on the laws of war, except those contained in the Geneva Conventions themselves. It will suffice to recall those rules very briefly. In the present case of warships, the question is a simple one: ships belonging to the enemy armed forces together with their contents are liable to be destroyed or to be captured forthwith, without any other formalities (2).
    Thus, the rather euphemistic statement that the sick-bays of warships and the equipment therein will remain subject to the [p.177] laws of warfare simply means that the captor will be at liberty to take whatever action he thinks fit in regard to them.
    The present Article refers to the application of the laws of war, but there is an important limitation: sick-bays and their equipment "may not be diverted from their purpose so long as they are required for the wounded and sick". In other words, the captor may not make use of them so long as the interests of the wounded and sick nursed there demand that he should not do so.
    In accordance with an accepted principle of international law, this humanitarian ruling -- which recurs several times in the Geneva Conventions -- is in turn subject to the exception of urgent military necessity. If tactical considerations demand that a sick-bay be used for another purpose or that the vessel be destroyed, they will be imperative. But here we find a further exception: before resorting to such a measure, the belligerent must first make arrangements for the safety and welfare of the wounded and sick nursed in the sick-bay, in other words must have them transferred to another vessel with adequate equipment and installations for them to be given the treatment and accommodation which their condition requires (3).
    Thus, by a succession of alternate compromises, a balance can be found between military needs and the dictates of humanity.


    * (1) [(2) p.175] See ' Actes ' of the 1907 Conference, Vol.
    III, p. 300;

    (2) [(1) p.176] See FAUCHILLE op. cit., paragraph 1322; see
    also OPPENHEIM-LAUTERPACHT, op. cit., II, p. 476;

    (3) [(1) p.177] Here the English text "ensuring the proper
    care" is more satisfactory than the French: "assurer le
    sort des blessés";