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Commentary - Art. 38. Chapter V : Medical transports
    [p.212] CHAPTER V


    MEDICAL TRANSPORTS

    A chapter with the title of the present one might well include all the provisions of the Convention dealing with hospital ships, which are, after all, "medical transports" in the highest sense of the term.
    As it is, the Chapter comprises three Articles , all of them new as compared with the 1907 text. The first extends international humanitarian law to a fresh category of vessels now entitled to immunity -- namely, those used for the conveyance of medical equipment; the other two are merely a repetition of the provisions of the First Geneva Convention of 1949 which relate to medical aircraft.


    ARTICLE 38. -- SHIPS USED FOR THE CONVEYANCE
    OF MEDICAL EQUIPMENT


    Following the suggestion made by the government experts who met in 1947, the 1949 Diplomatic Conference introduced [p.213] this new provision into the Convention; it is truly humanitarian in scope and is moreover fully consistent with the spirit of the Geneva Conventions and the fundamental principle which dissociates the wounded from the fighting and demands that they be cared for without distinction of nationality (1).
    In addition to hospital ships, this Article adds a new category of vessel to those entitled to protection. It provides safe conduct at sea for medical equipment intended for wounded and sick members of the armed forces, even if those persons are in their home country. It may be compared with Article 23 of the Fourth Convention of 1949 , which lays down a similar rule in the case of civilians. In accordance with the terminology of the First Geneva Convention, "medical equipment" must be taken as denoting not only instruments and all necessary supplies for dressing wounds, but also medicaments.
    The Convention goes still further and authorizes the conveyance of "equipment" -- that is to say, pharmaceutical products -- intended for the prevention of disease. Since the reference is to the prevention of disease, it cannot be asserted that such medicaments are intended for sick persons; they may therefore be given to able-bodied military personnel in combat units, in order to keep them in good health. That is certainly a very liberal provision. Were the plenipotentiaries who met in 1949 fully aware that they had gone so far? Until then, the concessions made by the military authorities to humanitarian requirements had benefited only victims or human beings in a weakened state, who were thus incapable of doing harm. That is no longer the case here. Be that as it may, a concept of this kind is consistent with the Red Cross spirit which holds that the fight against suffering must have priority and, at the same time, that prevention is better than cure. The Red Cross would be only too happy to see unrestricted exchange of medicaments at all times
    in the world, as of all medical discoveries.
    [p.214] By specifying that the equipment in question must be "exclusively intended" for its humanitarian purpose, the text excludes the transport of products such as raw cotton or crude rubber which could also be used for the war effort.
    There is a further condition for the granting of protection to such vessels; they must have been chartered for the purpose, that is to say must have no cargo other than the equipment authorized under the present Article. It is, however, not necessary for such ships to be permanently assigned to the transport of equipment of this kind. They may be used for other purposes during a subsequent voyage, but obviously would then enjoy no special protection.
    Lastly, the particulars regarding the voyage must have been notified to and approved by the adverse Power. These conditions having been fulfilled, the adverse Power remains entitled to board the carrier ships in order to inspect them, but not to capture them or seize the equipment carried.
    The adverse Power is not called upon to approve the principle of such transport, for it is fully authorized by the Convention (2). Only the "particulars regarding the voyage" may be contested by it, namely the course to be followed, the date, the speed of the vessel, its marking, etc. Any objections which the adverse Party may wish to make must be in the nature of reasons, not pretexts.
    Under the second paragraph of this Article, the belligerents may agree that neutral observers should be placed on board such ships to verify the equipment carried. This provision is similar to that contained in Article 31, paragraph 4 , which provides that neutral observers may be placed on board hospital ships to verify the strict observance of the Convention. The reader should therefore refer to the commentary on that provision.
    In order to facilitate verification, the last sentence provides that the equipment transported must be easily accessible (in French "aisément accessible"). This recommendation seems superfluous, for if the equipment is not easily accessible, those responsible for the transport will be the ones to suffer the consequences, [p.215] since the adverse Power is entitled to carry out an inspection (3). In this respect, the English version of the Convention, which speaks of "free access" (equivalent in French to "libre accès") is preferable.


    * (1) [(1) p.213] During the Second World War, the vessel
    ' Awa-Maru ' was granted a safe-conduct to transport
    relief supplies intended for Allied prisoners of war in
    Japanese hands. It was torpedoed by a submarine, and the
    commander of the latter was held responsible. See
    Rear-Admiral VOGE: ' Too much accuracy, ' U.S. Naval
    Institute Proceedings, March 1950, pp. 257-263;

    (2) [(1) p.214] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 140-141 and
    204-205;

    (3) [(1) p.215] See R. GENET: op. cit., p. 85;