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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
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;