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Commentary - Hospitals ships and coastal rescue craft
    [p.253] Article 22 -- Hospital ships and coastal rescue craft


    [p.254] General remarks

    848 The 1973 draft divided the Section devoted to medical transportation into two chapters: "common provisions" and "Medical aircraft". At first sight it apparently did not contain any article solely devoted to medical ships and craft. However, a close examination reveals that apart from paragraph 3, which deals with amphibious medical transports, Article 23 of the draft actually deals exclusively with medical ships and craft.

    849 The first paragraph of the draft sought to bring civilian medical ships and craft, as defined by the Protocol, under the terms of the Second Convention. Up to that time they had not been covered by that Convention.

    850 The second paragraph was concerned with clarifying the provisions applicable to medical ships and craft on inland waterways, i.e., ' not at sea. ' As a matter of fact, the Second Convention only covers protection ' at sea ', and some doubt remained regarding the legal régime which applies to medical ships and craft navigating on waters other than the sea.

    851 The third paragraph dealt with amphibious medical transports, specifying that they were subject to "the provisions relating to their use at a given time". Thus the Second Convention would be applicable to them at sea, and the first (or perhaps even the fourth Convention) would apply on land.

    852 Finally, the fourth paragraph specified that though medical ships and craft, as defined by the Protocol -- i.e., also ' civilian ' medical ships and craft -- were covered by the Second Convention as a whole, the articles devoted to hospital ships were applicable only to such ships. The need to clarify this point seemed to be indispensable due to the fact that the function of hospital ships justifies more extensive privileges, while at the same time also requiring a stricter notification procedure.

    853 As we saw above, (1) the structure of the ICRC draft of the Section devoted to medical transportation was completely modified during the Diplomatic [p.255] Conference. On this occasion the problem of medical ships and craft was seriously taken up by a Working Group of Committee II on the basis of numerous amendments, (2) and finally, two long articles exclusively devoted to this question were included in the Protocol.

    854 These articles basically offer a solution to the two following subjects of concern:

    -- to permit ships and craft already covered by the Second Convention to also be available for all ' civilian ' wounded, sick and shipwrecked persons;
    -- to provide protection for medical ships and craft which had not been covered by the Second Convention.

    855 These two concerns are reflected in two separate articles, the first of which deals with the new privileges granted ships and craft already covered by the Second Convention, while at the same time slightly extending the category of hospital ships; (3) and the second of which deals with the protection of medical ships and craft not covered by the Second Convention, which will benefit from privileges slightly less extensive than the former, though in accordance with a more flexible procedure.

    856 The articles which were adopted go further and are much more detailed than Article 23 of the 1973 draft while resolving the questions raised in the draft. Moreover, although this question was not mentioned in Article 22 as finally adopted, it was clearly stated during the discussions in Committee II that, unlike what was indicated in Article 23, paragraph 2, of the draft: "a hospital ship enjoyed its privileged status wherever it might be, and no distinction was drawn whether it happened to be on the high seas or elsewhere". (4) This point of view prevailed, and it must be concluded that hospital ships fall under the scope of the Second Convention wherever they happen to be.

    Paragraph 1

    857 In the Second Convention, the ships described in Articles 22 , 24 and 25 are those which are "built 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". (5) The wounded, sick and shipwrecked referred to are essentially members of the armed forces. (6)

    858 As one of the main aims of Part II of the Protocol is to grant the same protection to any wounded, sick or shipwrecked person, whether civilian or military, it was deemed necessary to specify that such ships, as well as their lifeboats and small craft, and coastal rescue craft, (7) can lawfully be used for civilian wounded, sick [p.256] and shipwrecked persons, and that in doing so they retain the rights granted them under the Second Convention, as do their personnel and crew.

    859 Nevertheless, it should be noted that even under the régime of the Second Convention, the ships and craft that are covered were already under an obligation to offer assistance to any shipwrecked person they came across, in accordance with the general law of the sea. However, a specific task of taking care of civilian wounded, sick and shipwrecked persons could not be said to rest upon them, nor, in particular, that of transporting such wounded and sick civilians.

    ' Sub-paragraph (a) '

    860 To be absolutely precise, this should have referred to "ships and craft", since Article 27 of the Second Convention deals with ' coastal rescue craft. ' As such ships and craft are described in the articles of the Second Convention that are mentioned, reference can be made to them. However, the provisions relating to such ships and craft are not only those where they are described, but also Article 26 , which recommends a minimum tonnage of 2,000 tons gross for hospital ships transporting wounded, sick and shipwrecked over long distances; Article 29 , which permits hospital ships to leave ports falling into the hands of the enemy; Article 30 , concerning the use of hospital ships and small craft; Article 31 , granting the right of Parties to the conflict to control, search, and, where justified even to detain such ships and craft for a period not exceeding seven days; Article 32 , which deals with their stay in a neutral port; Article 33 , which imposes on merchant vessels which have been converted into hospital ships the obligation to remain dedicated to such use throughout the duration of hostilities; and Articles 34 and 35 , which cover the cessation of protection.

    ' Sub-paragraph (b) '

    861 The protection granted hospital ships is explicitly extended to their lifeboats -- which is obviously necessary -- by the Second Convention. (8) On the other hand, the latter does not refer to the ' small craft ' of such ships. Yet there is no doubt that these were also covered. To mention them separately has the advantage of removing any ambiguity about the fact that auxiliary craft belonging to a hospital ship for the purpose of helping it to carry out its tasks is also protected.

    ' Sub-paragraph (c) '

    862 This refers to the rules of Article 36 of the Second Convention relating to the medical personnel (9) of hospital ships, and those of Article 37 for any religious or medical personnel who might be on board coastal rescue craft.

    [p.257] ' Sub-paragraph (d) '

    863 The provisions of the Second Convention relating to such wounded, sick and shipwrecked persons are those of Article 12 , which describes the protection and treatment to which they are entitled; Article 14 , which lays down the conditions under which a belligerent may require the surrender of such persons; Article 15 , which deals with cases in which they are taken on board a neutral warship or neutral military aircraft; Article 16 , which provides for the fate of those who have fallen into enemy hands; and finally, Article 17 , which deals with such persons who are landed in a neutral port.

    864 As regards civilian wounded, sick and shipwrecked persons covered by the Protocol but not by the Second Convention, we will see below that only Article 12 of the latter remains applicable. However, it was necessary to point out that the fate of the wounded, sick and shipwrecked covered by the Second Convention is not affected by the presence on board ship of wounded, sick and shipwrecked persons not covered by that Convention.

    865 Therefore, what new category of wounded, sick and shipwrecked persons can henceforth be taken on board, treated and transported without restriction? This covers all civilian wounded, sick and shipwrecked persons who are not already covered by Article 13 of the Second Convention.

    866 The Protocol describes in detail which persons are included in the categories of wounded, sick and shipwrecked. (10)

    867 As regards Article 13 of the Second Convention, this basically covers military wounded, sick and shipwrecked, though it also covers some well-defined categories of civilians. (11) Nevertheless, the great majority of civilians are not covered by this article, and in this respect the present article represents a step forward.

    868 Although on the main points the rules applicable to such civilians are the same -- i.e., the right to protection and care (12) -- they are not identical with regard to other points, as was mentioned above:

    1) ' Such civilians (viz., those not covered by Article 13 of the Second Convention) may not be surrendered to any Party which is not their own '

    869 Article 14 of the Second Convention permits warships of belligerent Parties to require that the wounded, sick or shipwrecked on board hospital ships or other craft shall be surrendered to them, provided that the condition of the persons to [p.258] be transferred permits this, and that the warship can provide adequate facilities for necessary medical treatment. Though this rule continues to apply to the wounded, sick and shipwrecked covered by Article 13 of the Second Convention, regardless of their nationality, it does not apply to all ' civilian ' wounded, sick and shipwrecked persons. Only the surrender to those who are nationals of the State whose flag the warship is flying can be lawfully required by this ship. As regards shipwrecked persons who have not yet been taken on board, a rather subtle distinction has to be made between the act of taking them on board and capturing them. When not engaged in combat, a warship has the duty to ' take on board ' shipwrecked persons, and in by far the majority of cases this could not be terme "capture". Such action could be termed "capture" only in the possibly rather academic case that shipwrecked persons are manifestly on the point of reaching dry land safe and sound, or of being taken on board by another craft. In this respect the determining factor is the intention of the captain of the warship.

    870 The hospital ships covered by Articles 22 , 24 and 25 of the Second Convention all depend on a Party to the conflict, either belonging to it, or officially commissioned by it or otherwise placed under its command. Thus, in principle they will not enter the territorial waters or approach the territory of an adverse Party to that on which they depend. Nevertheless, they may be compelled to do so by adverse circumstances (storms, damage etc.), and again in such a case the surrender of the civilian wounded, sick and shipwrecked who are not covered by Article 13 of the Second Convention, or are not nationals of the adverse Party, cannot be required by the latter either. However, hospital ships will entrust such persons to this Party if their condition requires care which they are unable to provide. In this the victim's interests are predominant -- a matter of common sense. Moreover, as they do not enjoy extraterritorial rights, hospital ships have no power to oppose the wishes of those in their care who ask the adverse Party to land in the latter's territory.

    871 Finally, it should be noted that no reservation has been made for civilian wounded, sick and shipwrecked who do not wish to return to their own territory, even though they are nationals of a Party to the conflict (refugees, political dissidents etc.) The Protocol does not prevent a Party to the conflict -- particularly one of its warships -- from requiring the surrender of such persons. Nevertheless, the latter should still enjoy at least the guarantees provided by Article 75 ' (Fundamental guarantees). ' (13)

    872 The question of the fate of those on board a hospital ship or medical craft which has landed in a neutral port is examined below. (14)

    [p.259]
    2) ' Nevertheless, such civilians may find themselves in the power of a party to the conflict other than their own, and in this case they will be covered by the Fourth Convention and this Protocol '

    873 The Protocol provides that civilians not covered by Article 13 of the Second Convention may not be surrendered to a Party to the conflict of which they are not nationals. However, it is conceivable that such civilians could fall into the hands of such a Party, particularly if they are taken on board a ship belonging to the latter. In such cases they should obviously not be treated as civilians covered by Article 13 of the Second Convention, who become prisoners of war, but as aliens within the territory of a Party to the conflict.

    874 If they are nationals of an adverse Party, the fourth Convention applies to them, particularly Section II (Aliens within the territory of a Party to the conflict) of Part III, and in the case that they are interned, Section IV (Regulations for the treatment of internees). As regards the Protocol, one or more provisions of Section III (Treatment of persons in the power of a Party to the conflict) of Part IV may also be applicable to them, depending on the circumstances.

    875 If they are nationals of a neutral or other State not Party to the conflict, the above-mentioned provisions of the fourth Convention and the Protocol apply to them only if the State of which they are nationals has no "normal diplomatic representation in the State in whose hands they are". (15) The general question of the status of shipwrecked persons, and the rights and obligations arising therefrom, was examined above. (16)

    Paragraph 2

    876 Article 25 of the Second Convention provides for the possibility that hospital ships are used by National Red Cross Societies, or other officially recognized relief societies, or even private persons of ' neutral countries ' -- according to the terminology of Protocol I, of a "neutral or other State not Party to the conflict" (17) -- under the control of a Party to the conflict. The present paragraph deals with the possibility, not provided for in Article 25 of the Second Convention, that a hospital ship is made available directly to a Party to the conflict by a neutral or other State not Party to the conflict, or by an impartial international humanitarian organization.

    877 Such a hospital ship must be made available "for humanitarian purposes".

    878 This last point was hardly necessary considering it is a requirement for all hospital ships. However, it was stressed in this context to remove any possible doubt regarding the character of the donor's intention.

    879 Article 25 of the Second Convention specifies that the hospital ship is "utilized" by the society or the private person making it available, which implies that the latter provides the necessary crew and medical personnel. As the present [p.260] paragraph does not specify whether the hospital ship is made available with or without an adequate crew and medical personnel, it must be recognized that both possibilities exist.

    880 In any case, protection is granted such a hospital ship only if the conditions listed under Article 25 of the Second Convention are fulfilled, viz.:

    - the hospital ship is placed under the control -- and under the responsibility -- of the Party to the conflict to which it has been made available;
    - it has been made available with the consent not only of the Party receiving it, but also with that of the government of those providing it. This last condition is obviously superfluous when the neutral State itself provides the hospital ship. Its meaning is more difficult to determine when it is provided by an impartial international humanitarian organization, (18) but it would seem that in most cases the agreement of a government other than that of the beneficiary State is not required. Nevertheless, a more precise answer could be given only after an analysis of the various organizations concerned;
    - the provisions of Article 22 of the Second Convention concerning notification must be observed: the names and characteristics of hospital ships made available in this way must be notified to the Parties to the conflict ten days before those ships are used. Moreover, it is specified that "the characteristics which must appear in the notification shall include registered gross tonnage, the length from stem to stern, and the number of masts and funnels". (19)

    Paragraph 3

    881 This paragraph makes a more flexible provision for one of the conditions to which the protection of coastal rescue craft is subject. In fact, it seemed excessively formal to make the notification of such craft a condition of their protection, as is the case in Article 27 of the Second Convention. Thus the Protocol recommends such notification, which provides an additional guarantee for such craft to be respected, but it does not make it a ' condition ' of protection. Thus, this should prevent such craft from being immobilized at a time when their services could be of enormous value from a humanitarian point of view.

    ' Y.S. '


    NOTES

    (1) [(1) p.254] Supra, pp. 245-247;

    (2) [(2) p.255] Cf. particularly O.R. III, pp. 116-117, CDDH/II/249 and Add.2 and 3; CDDH/II/258 and Add.1;

    (3) [(3) p.255] Cf. Art. 22, para. 2;

    (4) [(4) p.255] O.R. XI, p. 409, CDDH/II/SR.38, para. 12;

    (5) [(5) p.255] Cf. Art. 22, Second Convention;

    (6) [(6) p.255] Cf. Art. 13, Second Convention;

    (7) [(7) p.255] Cf. Art. 27, Second Convention;

    (8) [(8) p.256] Cf. Art. 26, Second Convention;

    (9) [(9) p.256] In this respect, it should be recalled that the crew is also considered as personnel in the sense of the Protocol, cf. Art. 8, sub-paras. (c) and (d);

    (10) [(10) p.257] Cf. supra, commentary Art. 8, sub-paras. (a) and (b), pp. 116-124;

    (11) [(11) p.257] Persons following the armed forces without forming part of them and who have received authorization to do so, members of the crew of the merchant navy and civil aviation of the Parties to the conflict, if they do not enjoy more favourable treatment under the provisions of international law, and the civilian population taking up arms spontaneously, provided they carry them openly and respect the laws and customs of war; cf. Art 13, paras. 4-6, Second Convention;

    (12) [(12) p.257] Cf. Art. 12, Second Convention;

    (13) [(13) p.258] On this subject, cf. commentary Art. 75, infra, p. 861, and Art. 73, infra, p. 845;

    (14) [(14) p.258] Cf. commentary Art. 23, para. 6, infra, pp. 273-278;

    (15) [(15) p.259] Cf. Article 4, Fourth Convention;

    (16) [(16) p.259] Cf. commentary Art. 8, sub-para. (b), pp. 118-124;

    (17) [(17) p.259] Cf. commentary Art. 2, sub-para. (c), pp. 61-62;

    (18) [(18) p.260] On the meaning of this expression, cf. commentary Art. 9, para. 2, supra, p. 143;

    (19) [(19) p.260] Art. 22, para. 2, Second Convention;