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Commentary - Other medical ships and craft
    [p.261] Article 23 -- Other medical ships and craft.


    [p.262] General remarks

    882 Article 23 covers medical ships and craft as defined in Article 8 ' (Terminology) ', and not covered by Article 22 ' (Hospital ships and coastal rescue craft) ' of the Protocol or by Article 38 of the Second Convention. Article 22 ' (Hospital ships land coastal rescue craft) ' extended the protection of ships and craft covered by Articles 22 , 24 , 25 and 27 of the Second Convention, and therefore all ships and craft covered by that Convention are excluded from the scope of Article 23 .

    883 In the system of the Conventions only the transportation of civilian wounded and sick, (1) of the infirm and maternity cases, which is undertaken by ships assigned to such transportation, falls under the scope of this article with any certainty. (2) Although this question is not mentioned in the first Convention, it is also clear that in the case of armed conflict taking place on land, the transportation of the wounded and sick, or of medical equipment, covered by Article 35 of the First [p.263] Convention, also come into this category when it is carried out by water (for example, on canals or across lakes).

    884 Protocol I extends the concept of "medical ships and craft". It covers "any medical transports by water", (3) medical transports (4) and medical transportation (5) having been previously defined.

    885 Thus any means of transportation by water fulfilling the following conditions may be considered to be "medical ships and craft":

    - they must be exclusively assigned, for the duration of their assignment (which may be short) to medical transportation as defined above;
    - they must be placed under the control of a Party to the conflict.

    886 For example, a simple fishing boat requisitioned exclusively for the transportation of medicines to a hospital situated on an island falls under the category of medical ships and craft as long as the transportation lasts. For this reason several delegates during the CDDH considered that it was necessary to make a distinction and single out ships and craft whose protection is subject to stricter requirements, and to provide two articles. Indeed, as one of the delegates stated, the majority considered that it was not possible to grant the "wider protection of the Second Geneva Convention of 1949 to ships and craft which did not meet the difficult requirements which that Convention set as a condition of such protection". (6)

    887 The basic difference between the two types of medical ships and craft lies in the fact that the former are "permanent and could not change their status during the conflict": for this reason it is accepted that they may not be seized by the enemy, while the latter, whose status could change during the conflict so that they could subsequently contribute to the enemy war effort "enjoyed less protection and could be seized if they fell into enemy hands". (7)

    888 Thus Article 23 is devoted to this second category of medical ships and craft.

    Paragraph 1

    ' First sentence '

    889 The hospital ships and craft concerned here are all "medical ships an craft" as described above, with the exception of those covered by Article 22 of the Protocol ' (Hospital ships and coastal rescue craft), ' viz.:

    - military hospital ships,
    - hospital ships used by relief societies or private individuals,
    - hospital ships used by relief societies or private individuals of neutral countries,
    [p.264]
    - hospital ships made available to a Party to the conflict by a State not Party to that conflict, or by an impartial international humanitarian organization,
    - coastal rescue craft, (8)

    and with the exception of those covered by Article 38 of the Second Convention, i.e., ships chartered by a Party to the conflict to transport medical equipment intended for the treatment of the wounded covered by Article 13 of the same Convention.

    890 The conditions for according protection to ships and craft not covered by Article 23 are stricter, and, accordingly, the rules according protection are more extensive. However, there is an exception with regard to the use of the distinctive emblem, which is laid down for all medical ships and craft, but not for the ships covered by Article 38 of the Second Convention. Article 43 of the Second Convention, which lays down the rules regarding the marking of hospital ships and other craft, does not provide for the use of the distinctive emblem for ships covered by Article 38 of that Convention. Such ships, which must meet more stringent conditions for protection than those required for all the ships and craft covered by Article 23 of the Protocol -- the particulars regarding their voyage must be "notified to the adverse Party and approved by the latter" -- would not be entitled to use the emblem, unlike all other medical ships and craft. This is illogical, and common sense requires that this discrepancy should be eliminated. It does not seem that anyone could be opposed to such ships using the distinctive emblem in future, particularly as they fall under the definition of medical ships and craft given in the Protocol. (9)

    891 The ships and craft covered by Article 23 must be "respected and protected (10) in the same way as mobile medical units under the Conventions and this Protocol".

    892 Article 19 of the first Convention provides that mobile medical units, as indeed fixed establishments, "may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict".

    893 It adds that "should they fall into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick".

    894 It follows from this that the medical ships and craft covered by Article 23 are not exempt from being seized, unlike those covered by Article 22 ' (Hospital ships land coastal rescue craft) ', but that as everywhere else in the Conventions, the interests of the wounded and sick remain the prime consideration. In no case may the care administered to the wounded on board ship be interrupted.

    895 The question of ships and craft only transporting medical personnel or even medical equipment is not actually clearly resolved by reference to the Conventions. However, an examination of paragraph 2 of Article 23 inevitably [p.265] leads to the conclusion that the medical duties of such ships or craft were not considered sufficiently important to prohibit them from being seized, as long as such duties had not been accomplished. On this point the ships covered by Article 38 of the Second Convention enjoy a significant additional guarantee, since they do enjoy exemption from being seized.

    896 Article 19 of the first Convention also provides that the responsible authorities must ensure that medical units are, as far as possible, positioned in such a manner that attacks against military objectives cannot imperil their safety. A warship which sought to benefit from the protection granted the ships and craft covered by Article 23 by sailing close to such ships would be violating this provision. By doing so, it would endanger the safety of the ships and craft covered by Article 23 , as the possibility of damage caused by the enemy to such ships and craft could not then be excluded. (11)

    897 The first sentence of paragraph 1 of Article 23 also refers to the protection granted medical units under this Protocol. The reference is in particular to Article 12 of the Protocol ' (Protection of medical units). ' That article principally attempts to define the conditions under which civilian medical units enjoy identical protection to that accorded military medical units. (12)

    898 Finally, the first sentence of paragraph 1 specifies that the respect and protection of the ships and craft covered by Article 23 is an obligation applicable whether they are "at sea or in other waters". It was stated above that hospital ships are protected everywhere. (13) With regard to the ships and craft covered by Article 23 which are not exempt from being seized, it was important to specify clearly that protection extends to all waters. In particular there are some very large lakes on which such ships and craft must be able to accomplish their medical duties. The same applies, for example, if they have to carry the wounded or medicines to an inland hospital along canals.

    ' Second sentence '

    899 This sentence begins with a statement: unless they are clearly marked, medical ships and craft cannot be recognized as such, and therefore run the risk of not being respected, particularly in a combat area. Consequently it is desirable that such ships and craft can be identified, i.e., that it is possible to identify them as ' medical ' ships and craft, on the one hand, and to recognize on which Party to the conflict they depend, on the other. The inclusion of the words "and recognized" means exactly this. Reference is made to the second paragraph of Article 43 of the Second Convention, which requires that the national flag is hoisted, and that a white flag with a red cross is flown "at the mainmast as high as possible".

    [p.266] 900 In addition, the second sentence of paragraph 1 of Article 23 indicates that such ships and craft should be "marked with the distinctive emblem", without giving any further particulars. In this respect, reference may be made to Article 18 ' (Identification). ' Paragraph 1 of this article requires that each Party to the conflict shall endeavour to ensure that medical units, in particular, are identifiable, while paragraph 6 refers to Annex I to the Protocol for the application of this provision. The Annex lays down the basic rule that the distinctive emblem should be "as large as appropriate under the circumstances". (14) Thus there is no restriction regarding the way in which ships and craft, covered by Article 23 , should be marked with the distinctive emblem. (15)

    901 These provisions on marking are laid down only in the form of recommendations. The absence of formal rules is justified by the large measure of flexibility which the Parties to the conflict must enjoy in order to assign ships and craft to medical tasks without delay in case of emergency. It means that marking is not a constitutive element of the protection, as is, for example, the notification of names and characteristics of hospital ships to Parties to the conflict ten days before they are used. Thus ships and craft covered by Article 23 are protected even when they are not marked, though in this case they obviously run the risk of sustaining damage due to mistaken identity. This is why compliance is recommended as far as possible with the proposals contained in the second sentence of paragraph 1.

    Paragraph 2

    ' First sentence '

    902 "The ships and craft referred to in paragraph 1 shall remain subject to the laws of war". This is the rule laid down in the first sentence, while exceptions to this rule are contained in the second and third sentences.

    903 References to "the laws of war" (in French "le droit de la guerre" or "les lois de la guerre") were already made in the first Convention, particularly in Articles 33 and 35 , with regard to the buildings and materials of fixed medical establishments and medical transports. (16) In this respect the Commentary on the first Convention remarks that the rules of the laws of war are "often summary and not very precise, and have not always been accepted unanimously by legal authorities". (17) Besides, this remark applies particularly to the treaty provisions enumerated below, and for the whole of the laws of war at sea.

    [p.267] 904 Various Conventions adopted in The Hague in 1899 and 1907 relate to the laws of war at sea. (18)

    905 However, none of these Conventions applies to the ships and craft covered by Article 23 , as their existence had simply not been anticipated as legally relevant, before the Protocol was adopted.

    906 On the other hand, as regards legal literature, the Manual adopted by the Institute of International Law in 1913 in Oxford, on the laws of war at sea governing the relations between belligerents, (19) gives some indications, particularly in Articles 32 -40, relating to publicly and privately owned vessels other than those of the navy, and other than hospital ships.

    907 It follows fairly clearly that the ships and craft covered by Article 23 are subject to capture, except for the reservations made in the next two sentences of paragraph 2, and that goods on board are liable to seizure. Moreover, it is specified that such capture and seizure are permitted "even when the vessels or the goods have fallen into the power of the belligerent because of force majeure, through shipwreck or by being compelled to put into port". (20)

    908 Some grounds for extenuation of the principle of capture, which are also laid down in the Oxford Manual, especially for ships in an enemy port at the outbreak of hostilities, or ships which had left their last port of departure before the commencement of the war, (21) could also be taken into account.

    909 However, it seems obvious that only if States are prepared to re-examine naval war overall would it become possible to precisely define the present state of the laws of war at sea.

    ' Second and third sentences '

    910 The second and third sentences of paragraph 2 contain detailed rules limiting the application of the general laws of war, i.e., essentially limiting the right of a warship to seize ships and craft belonging to the adverse Party, which are covered by Article 23 .

    [p.268] 911 A distinction is made between two situations, i.e., that in which such ships and craft are "needed for the wounded, sick and shipwrecked on board", and that in which they are not. Similar rules, protecting the interests of the wounded and sick, can be found in several places in the Conventions. In the first situation, such ships and craft are the only ones able to provide adequate care for the wounded, sick and shipwrecked they shelter. (22) It should be noted that this refers only to the wounded on board. For example, a ship transporting medical personnel or equipment needed by the wounded in a hospital situated on an island would therefore not be covered. However, it is to be hoped that in such cases belligerents would act in a humanitarian spirit and permit such a ship to accomplish its task.

    912 The second situation means that the wounded, sick and shipwrecked can be cared for in another way -- for example, by being transferred onto a hospital ship or taken onto land (23) -- or that such ships and craft are not transporting wounded or sick persons, but only medical personnel or equipment. (24)

    1. ' Ships and craft are needed for the wounded, sick and shipwrecked on board '

    913 In principle, only specific types of ships may give orders to the ships and craft in question, and such orders themselves are subject to restrictions.

    1.1.' Ships allowed to give orders '

    914 Paragraph 2 refers to "any warship on the surface able immediately to enforce its command".

    915 The expression ' warship ' in the Protocol is not defined here, though it was defined in the Convention on the High Seas of 29 April 1958. (25) It is clear that medical ships and craft, even if they are attached to the naval forces of a State, cannot be considered as warships. In this respect the definition could lead to some ambiguity, though international humanitarian law does not leave any room for doubt. Warships, being by their very nature military objectives, are ships whose purpose or use "make an effective contribution to military action". (26) By contrast, [p.269] medical ships and craft, which cannot display the distinctive emblems of warships and which do not make such a contribution, enjoy privileged protection. (27)

    916 In addition, such a warship must sail on the surface. In this respect, Committee II clearly specified that naval submarines which have surfaced are included in this definition. (28)

    917 Finally, such a warship must be able immediately to enforce its command. Thus the warship must have the military capacity to impose its will on the ship or craft to which the order has been given. Moreover, it is clear that it must be on the spot: the obligation to obey "existed only while the ship was present and able to enforce its command". (29) Thus it should be recognized that the warship must have the other ship or craft in sight.

    918 Some ships are equipped with weapons which can hit a long-range target with precision, and by imposing this specific requirement, it was hoped to avoid such ships abusing their power on the navigation of the ships and craft covered by Article 23 in a very wide area.

    1.2.' Orders which may be given '

    919 The above-mentioned warships may order the ships and craft covered by Article 23 "to stop, order them off, or make them take a certain course". A similar provision is laid down in Article 31 of the Second Convention, while this article also mentions the possibility of controlling "the use of their wireless and other means of communication, and even detain them for a period not exceeding seven days from the time of interception, if the gravity of the circumstances so requires". These two last possibilities have not been mentioned in paragraph 2 under discussion here. Yet, the abuse of means of communication constitutes an act harmful to the enemy which can lead to the loss of protection of the ship or craft concerned. (30) As regards the possibility of detaining the ship or craft for a period up to seven days, this was not included for the ships and craft covered by Article 23 , because, unlike the ships and craft covered by Article 31 of the Second Convention, they may be seized as long as the wounded and sick on board are cared for. Moreover, it should be noted that a warship retains the possibility of escorting a ship containing wounded in need of care to its own territory, as long as the voyage is not too long, and could for that reason have an unfavourable effect on the condition of the wounded.

    920 There is nothing to indicate that the orders given, which all relate to navigation, must comply with a special motive. However, they may not be purely arbitrary. [p.270] The commentary on Article 31 of the Second Convention (31) indicates that such orders must be given "for reasons of military security". (32) This interpretation seems to apply equally in the context of Article 23 under consideration here.

    921 Paragraph 2 also mentions the obligation for the ship or craft covered by Article 23 to obey such commands. The consequences of disobeying are implied in paragraph 3 and reference should be made to the commentary thereon. (33)

    2. ' Ships and craft which are not needed for the wounded and sick on board '

    922 Ships and craft covered by Article 23 , which are in this situation, (34) may be diverted from their medical duties in other ways. In this case the general laws of war (35) apply to such ships and craft. In this respect it should be recalled primarily that they may be ' seized ' and assigned to other purposes.

    Paragraph 3

    923 This paragraph deals with the termination of protection accorded ships and craft covered by this article.

    924 The term ' protection ' is a form of shorthand which is frequently used. As indicated in paragraph 1, it is used here to mean the respect and protection as provided for mobile medical units by the Conventions and Protocol. (36)

    925 As regards Articles 34 and 35 of the Second Convention, which are referred to here, the former relates to the termination of protection, while the latter describes conditions not depriving hospital ships of protection. The rules laid down in this respect for medical units and establishments (or medical units as this term used in the Protocol covers both expressions) in Articles 21 and 22 of the first Convention are adapted here for ships. The principle is that such protection can only cease if the ships are used to commit acts harmful to the enemy, such as, for example, firing at a warship, transporting able-bodied soldiers or weaponry, or transmitting military information.

    926 Such harmful acts to the enemy are not mentioned specifically, with the exception of one, namely, the possession or use of a secret code for communication. (37) On the other hand, five situations are listed which at first glance could be considered as equivalent to acts harmful to the enemy, but precisely must not be considered as such.

    [p.271] 927 The first of these situations is the personnel of such ships and craft being armed -- which is therefore implicitly tolerated. However, it should be remembered that such (light) arms can only be used for the purpose of keeping order on board ship, or for dealing with acts of piracy. Their use against a warship attempting to stop and search a medical ship or craft would undoubtedly constitute an "act harmful to the enemy".

    928 The second situation is the presence on board of apparatus exclusively intended to facilitate navigation or communication. This is related to the explicitly mentioned prohibition of using secret codes. (38) Moreover, it should be noted that the question of signalling and identification of medical ships and craft is currently being developed. (39)

    929 The third situation is the presence on board of portable arms and ammunition taken from the wounded, sick or shipwrecked, when it has not yet been possible to hand it over to the proper service.

    930 Finally, the fourth and fifth situations do not really need to be mentioned with regard to the ships and craft covered by Article 23 . They relate to the fact that such ships and craft also transport ' civilian ' wounded, sick or shipwrecked, and the fact that such ships transport equipment and personnel "exclusively for medical duties, over and above the normal requirements". These two situations were actually exceptions allowed by the Second Convention, which intended that hospital ships should solely be devoted to providing relief, treating and transporting wounded, sick and shipwrecked soldiers and equivalent categories, but they also take part, in the same way as the others, in tasks assigned t "medical ships and craft" as defined in the Protocol. (40)

    931 In addition to the rules of Articles 34 and 35 of the Second Convention, paragraph 3 adds another act specifically defined as constituting an act harmful to the enemy, namely, a clear refusal to obey a command given in accordance with paragraph 2 (that paragraph, in any case, imposes the obligation on ships and craft covered by Article 23 to obey such an order). The word ' clear ' shows the intention to avoid a situation where a misunderstanding may lead to a disaster. It must be plain that a medical ship or craft has ' refused ' to obey, and has not simply misunderstood the command, for a warship to consider that it is the victim of a harmful act and take measures accordingly.

    932 Finally, it should be noted that Article 34 of the Second Convention in all appropriate cases imposes the obligation to give due warning, naming a time-limit, before attacking a medical ship or craft which has committed a harmful act. (41)

    [p.272] Paragraph 4

    933 The first sentence of this paragraph consists of a recommendation, the second of an obligation which arises when effect is given to this recommendation.

    ' First sentence '

    934 The notification provided for here is a recommendation and not an obligation. Thus protection is not dependent on the notification. However, it provides an additional guarantee for the ships and craft concerned by making the authorities of the adverse Party "responsible" and enabling them to notify their warships of the presence of medical ships and craft. Moreover, the sooner such authorities receive such notification, the better they can transmit it, and this is the reason why the notification is asked to be made "as far in advance of sailing as possible".

    935 Without constituting an obligation, the recommendation is made in more pressing terms for larger ships, and the figure of 2,000 gross tons mentioned here is taken from Article 26 of the Second Convention. (42)

    936 The content of the notification requires little comment, particularly as the details mentioned in paragraph 4 -- name, description, estimated speed -- are given only by way of example. It is apparent from the end of the sentence that the notification may include any appropriate information which would facilitate identification and recognition of the medical ship or craft.

    937 It should be recalled with regard to the characteristics which appear in the notification, that Article 22 , paragraph 2, of the Second Convention requires that in all cases "the registered gross tonnage, the length from stem to stern and the number of masts and funnels" must be included.

    ' Second sentence '

    938 Though the Parties to the conflict remain free to notify the adverse Party or not, any Party receiving such notification is obliged to acknowledge receipt as soon as it has received it. It is even specified that such a Party must acknowledge receipt "of such information", which indicates that the acknowledgement of receipt should be fairly detailed in order to avoid any confusion.

    939 In addition, it should be noted that if the notification or the acknowledgement of receipt cannot be made directly between the Parties to the conflict because of a lack of communication, the Protecting Powers, their substitute or the ICRC could take care of the transmission.

    [p.273] Paragraph 5

    940 This paragraph relates to medical and religious personnel of ships and craft covered by Article 23 when they have fallen into the hands of an enemy. Article 37 of the Second Convention basically provides that such personnel shall be respected and protected; that they may continue to carry out their duties as long as this is necessary for the care of the wounded and sick on board ship; that they shall afterwards be repatriated to the extent that this is possible; and finally, that they will be subject to the provisions of the first Convention if they are landed in the territory of the adverse Party. (43)

    941 Moreover, it should be noted that the crew of such ships and craft are considered as medical personnel in the sense of the Protocol, (44) and that they are therefore also covered by Article 37 of the Second Convention. (45)

    Paragraph 6

    942 This paragraph regulates the fate of the wounded, sick and shipwrecked on board ships and craft covered by Article 23 in the event that such ships and craft are boarded and searched or captured by the adverse Party. The basic rule which should be kept in mind is that nothing which could jeopardize the care due to the wounded and sick is permitted. Apart from this, a distinction is made between military wounded, sick and shipwrecked and those with equivalent status, on the one hand, and civilian wounded, sick and shipwrecked, on the other.

    ' First sentence -- Military wounded, sick and shipwrecked persons and those with equivalent status '

    943 The persons referred to here are first of all those covered by Article 13 of the Second Convention, i.e., basically the wounded, sick and shipwrecked who are members of the armed forces of a Party to the conflict. (46) However, it should be stressed that Article 13 , sub-paragraph (5), of the Convention, which relates in particular to members of crews of the merchant marine, cannot apply by analogy to members of crews of ships and craft covered by Article 23 of the Protocol, since the latter are considered as medical personnel, as mentioned in the previous paragraph, and therefore enjoy a more favourable status.

    944 Combatants who, pursuant to Article 44 ' (Combatants and prisoners of war) ' of the Protocol, are entitled to prisoner-of-war status if they fall into the hands of the adverse Party, have the same status as persons covered by Article 13 of the [p.274] Second Convention. Under the provisions of the Conventions, they were not yet considered as combatants, and, in case of capture, as prisoners of war. (47)

    945 The "provisions of the Second Convention" to which reference is made, and which are applicable to such persons, are basically:

    -- Article 12 , which provides that they must be respected and protected in all circumstances, and be treated and cared for humanely;
    -- Article 14 , which provides that warships have the right to require the surrender of such persons, provided that they can provide adequate facilities for necessary medical treatment;
    -- Article 15 , which deals with wounded, sick and shipwrecked persons taken on board a neutral warship and requires that the State to which such a warship belongs ensure that such persons can take no further part in hostilities;
    -- Article 16 , which deals with the fate of wounded, sick and shipwrecked persons who have fallen into enemy hands, and provides that the enemy may decide, according to circumstances, "whether it is expedient to hold them, or to convey them to a port in the captor's own country, to a neutral port, or even to a port in enemy territory", provided the treatment required by their condition is ensured.

    In the last case, "prisoners of war thus returned to their home country may not serve for the duration of the war". In the event that they are landed in a neutral port, Article 17 of the Second Convention applies. Basically this provides that in general the wounded, sick and shipwrecked must be guarded by the neutral Power so that "the said persons cannot again take part in operations of war". Finally, in the case that they are kept in custody, or sent to a port of the Party to which the ship that captured them belongs, they become prisoners of war. The Third Convention applies to them in addition to the Second Convention, as long as they are at sea, or if they are wounded or sick, both the first and Third Conventions apply from the moment they land. (48)

    ' First part of the second sentence -- Wounded, sick and shipwrecked civilians '

    946 Apart from civilians covered by Article 13 of the Second Convention, this provision covers all civilian wounded, sick and shipwrecked on board the ships and craft covered by Article 23 .

    947 When such persons are at sea, they may not be surrendered "to any Party which is not their own", nor may they be removed from such ships or craft. Each of these provisions requires comment.

    948 In the first place, the rule only applies to ships and craft at sea. In fact, this ought to read on the high seas, to be quite accurate, as the intent is that they do not find themselves within the jurisdiction of any State. Nevertheless, this lack of [p.275] accuracy may have an advantage, as it is often difficult to establish whether a ship is in fact situated on the high seas or whether it is within the territorial sea of a State. (49) In case of doubt, it should therefore be assumed that it is "on the high seas". In any case there can be no doubt that the rule does not apply to a ship or craft sailing within the territorial waters of a State, whether they are sea, lake, river, canal or anything else.

    949 "At sea", therefore, such persons are not subject to "surrender to any Party which is not their own". This means that if the ship or craft covered by Article 23 holds wounded, sick or shipwrecked persons (whether they have military or equivalent status or are civilians) belonging to the adverse Party, such persons may be claimed by a warship of the latter. Though such a warship can also require the surrender of ' military ' wounded, sick or shipwrecked persons (or those of equivalent status) of the adverse Party, i.e., belonging to the Party to which the medical ship or craft belongs, it cannot do so in the case of ' civilians. ' Indeed, this is perfectly logical: civilians are obviously not military objectives and although certain rules have been provided for the event that they happen to be in territory controlled by the enemy, they cannot be captured outside such territory.

    950 In addition, such civilian wounded, sick and shipwrecked may not be subjected ' to removal from such ships or craft. ' This means that if persons belonging to a State Party to the conflict refuse to be transferred to a ship of that State -- particularly if they have deliberately left that State to seek refuge elsewhere -- such a transfer cannot be imposed upon them. (50)

    951 However, as we saw above, a certain course may be imposed on a medical ship or craft, and it may be escorted by a warship of the adverse Party to territory controlled by the latter, as long as this is not harmful to the wounded and sick on board.

    952 In this case, as in any case when a medical ship or craft is within the territorial limits of a State, the question deserves to be re-examined in its entirety.

    953 If the medical ship or craft is within the territorial limits of the State to which it belongs, the answers given for the high seas remain applicable. The warship of the adverse Party stopping and boarding it is obviously taking a greater risk since it is venturing into enemy territory, but this is purely a question of fact. Obviously, from a legal point of view, the possibility cannot be excluded that in the context of armed conflict, such a warship could enter enemy territory.

    954 If, in exceptional circumstances, the medical ship or craft is within the territorial limits of the adverse Party, the solution still remains the same, with one exception: [p.276] such a Party cannot be prevented from exercising jurisdiction over its own civilian nationals, even if they are sick or wounded, if any are present on the medical ship or craft. Apart from this, it is obvious that in such a case the outcome will probably be the capture of the medical ship or craft, but this again is purely a question of fact, subject to the rules laid down in Article 23 .

    955 Finally, what happens if a medical ship or craft is within the territorial limits of a neutral or other State not Party to the conflict? (51) There is no real problem if it is only passing through such territorial waters, as, like any other ship, it enjoys the right of "innocent passage". (52) On the other hand, various problems arise if it docks in a port of the neutral State.

    956 Article 17 of the Second Convention deals with the problem of wounded, sick and shipwrecked persons with military or equivalent status who are landed by a hospital ship in a neutral port. The commentary on this article underlines the fact that the text does not specify the duty of neutral States in the case where the hospital ship wishes to land wounded, sick or shipwrecked persons. The author of the commentary proposes his own solution, and suggests that the wounded, sick and shipwrecked members of the armed forces (or persons with equivalent status) of the Party to which the hospital ship belongs, should remain interned until hostilities have ceased, and that those belonging to the adverse Party should be left free. (53) This solution was proposed because in both cases it avoids a situation in which it might be in the interests of a hospital ship to get rid of the wounded, sick and shipwrecked it has on board, in a neutral port. In any case, it seems clear that there was no question that the neutral State should, or could, impose the landing of wounded, sick and shipwrecked persons belonging to the adverse Party of the State to which the hospital ship belonged.

    957 However, this question should be raised. Neither hospital ships nor a fortiori ships and craft covered by Article 23 , enjoy extraterritorial status, unlike warships. (54) Furthermore, medical ships and craft cannot ' capture ' wounded, sick or shipwrecked members of the enemy armed forces. (55) These only really become prisoners of war when they are transferred onto a warship or taken to enemy territory. Thus what right could medical ships and craft have to keep on board such persons against their will, when they are within the territorial limits of a neutral State?

    958 The solution which seems to be most logical is to permit the neutral State to accept such persons if ' they ' express a wish for this, and not at the request of the medical ship or craft.

    [p.277] 959 The question remains whether or not they should be interned. Reference to the corresponding provisions of the Hague Convention of 18 October 1907 Respecting the Rights and Duties of Neutral Powers and Persons in War on Land suggests a choice between two possible solutions. Belligerent troops seeking refuge in neutral territory must be prevented from taking part in hostilities again. The same applies to wounded soldiers who reach neutral territory in a convoy of their enemy. (56) On the other hand, escaped prisoners of war who are admitted by a neutral Power will remain free. (57) As we recommend that the choice with regard to this decision should be left to the persons concerned, precisely because they cannot be considered as prisoners of the medical ship or craft, we believe that such persons should be treated as belligerents reaching neutral territory, and should therefore be interned. (58)

    960 As regards wounded, sick or shipwrecked members of the armed forces of the Party to which the medical ship or craft belongs, the solution proposed by the author of the commentary on the Second Convention seems indisputable: the decision to hand over those whose medical condition in their judgment requires this, must be taken by the medical ship or craft in the knowledge that the neutral State will be responsible for preventing them from taking part again in hostilities (i.e., in general, for interning them).

    961 In addition, Article 23 of the Protocol means that the problem of civilian wounded, sick and shipwrecked must be considered. For those who do not belong to the Party to which the medical ship or craft belongs, there is little doubt as to the solution to be adopted: they must be considered to be perfectly free in deciding whether to remain on the ship or craft, or to disembark. As for the neutral State, it is obliged to take care of any wounded and sick entrusting themselves to it, but is not obliged to intern them. As soon as their state of health permits, such civilians are free to return to their State of origin, or to any other State of their choice, even to remain in the neutral State on a long-term basis, if the latter is willing to accept them. There is only one restriction on the freedom of choice of such civilian wounded, sick or shipwrecked: while they are in the territory of the neutral State, and subject to its jurisdiction, they can be disembarked against their will if the jurisdiction of the neutral State so requires, particularly if the persons concerned are wanted by this State for a crime or for an investigation.

    962 However, the most delicate problem is that of civilians belonging to the Party to the conflict to which the medical ship or craft belongs. It would seem that if such civilians are in neutral territory (for it must be remembered that medical ships and craft do not enjoy extraterritorial status), those in charge of the medical ship or craft -- however much authority they might have in their own territory in civil matters -- could not oblige them to remain on the ship or craft. Thus such civilians should enjoy the same prerogatives as civilians who do not belong to the [p.278] Party to the conflict to which the ship or craft belongs. As regards criminals or anyone accused of a crime, it would seem that the neutral State should intern them and then decide on the basis of its own legislation and its international obligations whether to extradite them, prosecute them itself, execute a penalty or an additional penalty or allow them to go free. With regard to this, it is important to emphasize that though international humanitarian law imposes an obligation on the neutral State to treat wounded, sick and shipwrecked persons humanely, (59) the fate of such civilians in other respects does not fall under this body of law. This is a matter in particular of human rights law, as well as the national legislation and the international obligations of the neutral State.

    963 Finally, for the sake of completeness, it should be noted that a belligerent warship does not have the right to capture or even to stop and board a medical ship or craft in the territorial waters of a neutral State. (60) Thus the question of persons whose transfer could be required in these conditions does not arise.

    ' Second part of the second sentence -- Civilian wounded, sick and shipwrecked in the power of a Party other than their own '

    964 The word "néanmoins" (nevertheless) is used in the French text because the sentence in which it is used refers to circumstances which can only occur within the constraints of the preceding part of the sentence. However, the English text has correctly refrained from using this term, as it might give the incorrect impression that the situation referred to is an exception. In fact, this is not the case. A medical ship or craft may dock in an enemy port, either because of natural circumstances (e.g., storms, damage etc.), or because it is forced to do so by a warship. Moreover, a medical ship or craft may rescue shipwrecked persons of the adverse Party and take them to the territory of its own State. In all such cases there is no doubt that the civilian wounded, sick and shipwrecked of the adverse Party to that in whose territory they are disembarked, are in the power of the latter and are therefore protected by various provisions of international humanitarian law. The same applies to nationals of a neutral State, if this State does not have "normal diplomatic representation". (61)

    ' Y. S. '


    NOTES

    (1) [(1) p.262] In the usual sense of the expression and not as defined by the Protocol in Art. 8, sub-para. (a);

    (2) [(2) p.262] Cf. Art. 21 of the Fourth Convention;

    (3) [(3) p.263] Art. 8, sub-para. (i);

    (4) [(4) p.263] Art. 8, sub-para. (g);

    (5) [(5) p.263] Art. 8, sub-para. (f);

    (6) [(6) p.263] O.R. XI, p. 412, CDDH/II/SR.38, para. 28;

    (7) [(7) p.263] (7) Ibid., p. 559, CDDH/II/SR.49, para. 58;

    (8) [(8) p.264] Cf. in the order Art. 22, Art. 24, Art. 25, Second Convention; Art. 22, para. 2, Protocol I; Art. 27, Second Convention;

    (9) [(9) p.264] Cf. commentary Art. 8, sub-para. (i), supra, pp. 131-132;

    (10) [(10) p.264] On these concepts, cf. commentary Art. 10, para. 1, supra, p. 146;

    (11) [(11) p.265] In this respect, cf. by analogy Arts. 57 and 58 of Protocol I, as well as the commentary thereon;

    (12) [(12) p.265] On this subject, cf. commentary Art. 12, and in particular, commentary para. 2, supra, pp. 167-169;

    (13) [(13) p.265] Cf. supra;

    (14) [(14) p.266] Art. 3, para. 1;

    (15) [(15) p.266] For further details, cf. also Annex I, Arts. 3 and 4, and their commentary, infra, p. 1173;

    (16) [(16) p.266] Cf. respectively Arts. 33 and 35, Second Convention;

    (17) [(17) p.266] ' Commentary I, ' p. 274;

    (18) [(18) p.267] Apart from the Hague Convention for the Adaptation to Maritime Warfare of the Principles of the 1864 Geneva Convention, which forms the basis of the Second Convention of 1949, the following conventions of 1907 deserve a mention:
    1) Convention Relative to the Status of Enemy Merchant-Ships at the Outbreak of Hostilities;
    2) Convention Relative to the Conversion of Merchant Ships into Warships;
    3) Convention Relative to the Laying of Automatic Submarine Contact Mines;
    4) Convention Respecting Bombardment by Naval Forces in Time of War;
    5) Convention relative to Certain Restrictions to the Exercise of the Right of Capture in Naval War;
    6) Convention Relative to the Establishment of an International Prize Court;
    7) Convention Concerning the Rights and Duties of Neutral Powers in Naval War;

    (19) [(19) p.267] The content of this manual can be found in particular in M. Deltenre, op. cit., pp. 666-715. As regards recent literature, cf. in particular, the bibliography produced by Y. Dinstein, "Sea Warfare", in Bernhardt (ed.), op. cit., Instalment 4, 1982, pp. 211 ff.;

    (20) [(20) p.267] Cf. the above-mentioned Oxford Manual of 1913, Arts. 33-34;

    (21) [(21) p.267] Ibid., Arts. 36-40;

    (22) [(22) p.268] In the same sense, cf. Commentary I, p. 274 (Art. 33, para. 2);

    (23) [(23) p.268] Cf. however, infra, commentary para. 6, regarding persons who cannot be obliged to leave ship;

    (24) [(24) p.268] With regard to this situation, cf. supra, pp. 264-265;

    (25) [(25) p.268] This Convention was adopted by the United Nations Conference on the Law of the Sea and entered into force on 30 September 1962. It had 57 States Parties as of 31 December 1984, including notably the United States, theUnited Kingdom and the USSR. Article 8, paragraph 2, reads as follows: "For the purposes of these Articles, the term "warship" means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline." A similar definition was introduced in Article 29 of the Convention of the United Nations on the Law of the Sea of 10 December 1982, though this has not yet entered into force;

    (26) [(26) p.268] Cf. Art. 52, para. 2, which defines a military objective;

    (27) [(27) p.269] In favour of the opposite point of view, arguments could certainly be drawn from Article 14 of the Hague Convention of 18 October 1907 concerning the Rights and Duties of Neutral Powers in Naval War, since Article 14 of this Convention refers to: "warships devoted exclusively to religious, scientific or philanthropic purposes". However, international humanitarian law prefers a clear distinction. Commentary H, p. 113, states unambiguously: "A hospital ship may belong to the naval forces, but it is not a warship in the proper sense of the term";

    (28) [(28) p.269] Cf. O.R. XII, pp. 42-43, CDDH/II/SR.59, para. 28; also cf. para. 30;

    (29) [(29) p.269] Ibid., p. 43;

    (30) [(30) p.269] Cf. commentary para. 3, infra, pp. 270-271;

    (31) [(31) p.270] Commentary based on the Rules for the Control of Radio in Time of War and Rules for Air Warfare, prepared by the Commission of Jurists responsible for investigating and reporting on the revision of the laws of war, which met in The Hague on 11 December 1922. Cf. M. Deltenre, op. cit., pp. 819-849;

    (32) [(32) p.270] ' Commentary II, ' p. 182;

    (33) [(33) p.270] Cf. infra;

    (34) [(34) p.270] In this respect, cf. supra, pp. 264-265;

    (35) [(35) p.270] On this subject, cf. supra, pp. 266-268;

    (36) [(36) p.270] On this subject, cf. supra, pp. 263-266;

    (37) [(37) p.270] Cf. Art. 34, para. 2, Second Convention;

    (38) [(38) p.271] Ibid;

    (39) [(39) p.271] On this subject, cf. particularly Ph. Eberlin, "Identification of Hospital Ships and Ships Protected by the Geneva Convention of 12 August 1949", IRRC, Nov.-Dec. 1982, pp. 315 ff. Cf. in addition, commentary Annex I, Chapter III, infra, p. 1185;

    (40) [(40) p.271] Cf. Art. 8, sub-paras. (f), (g) and (i);

    (41) [(41) p.271] For further details on Articles 34 and 35, cf. Commentary II, pp. 189-198. With regard to the warning, cf. also commentary Art. 13, para. 1, second sentence, supra, pp. 175-176;

    (42) [(42) p.272] Which indicates this as the minimum recommended limit for hospital ships called upon to transport the wounded, sick and shipwrecked over long distances on the high seas;

    (43) [(43) p.273] On this subject, cf. in particular, Arts. 28 (Retained medical personnel and chaplains), 30 (Return of medical and religious personnel), and 31 (Selection of personnel for return);

    (44) [(44) p.273] Cf. commentary Art. 8, sub-para. (c), supra, pp. 124-127;

    (45) [(45) p.273] For further details, cf. also ' Commentary II, ' pp. 207-211;

    (46) [(46) p.273] Apart from this, cf. Article 13 of the Second Convention, as well as ' Commentary II ', pp. 93-104;

    (47) [(47) p.274] On this subject, cf. commentary Art. 44, infra, p. 519;

    (48) [(48) p.274] On this subject, cf. in addition, ' Commentary II ', Art. 12, pp. 84-92; Art. 14, pp. 104-107; Art. 15, pp. 107-112; Art. 16. pp. 112-116, Art. 17, pp. 116-129, Art. 19, pp. 136-146; Art. 20, pp. 146-150;

    (49) [(49) p.275] In legal terms, the concept of territorial sea and that of the contiguous zone (where the coastal State is also granted certain prerogatives) are defined in the Convention on the Territorial Sea and the Contiguous Zone, adopted on 29 April 1958 by the United Nations Conference on the Law of the Sea. This Convention entered into force on 10 September 1964 and had 46 States Parties as of 31 December 1984, including notably the United States, the United Kingdom and the USSR. The United Nations Convention on the Law of the Sea, referred to in note 25 supra, deals with this question in its Part II, Arts. 2-31;

    (50) [(50) p.275] Nevertheless, see Arts. 22-23 of the Convention on the High Seas of 29 April 1958, referred to in note 25, supra. These articles deal with the right of visit and the right of hot pursuit, respectively. On that Convention, cf. note 25, supra. These articles were included, with some changes, in the Convention on the Law of the Sea (also referred to in note 25, supra) as Arts. 110 and 111;

    (51) [(51) p.276] On the meaning of this expression, cf. commentary Art. 2, sub-para. (c), supra, pp. 61-62. 1n the commentary on this paragraph we use the term "neutral State" for the sake of simplicity to designate any State covered by this expression;

    (52) [(52) p.276] Cf. on this subject, the Convention of 29 April 1958 on the Territorial Sea and the Contiguous Zone, quoted supra, note 49, Arts. 14-23, and the Convention of the United Nations on the Law of the Sea, cited supra, note 25, Arts. 17-32;

    (53) [(53) p.276] Cf. ' Commentary II, ' pp. 125-129. On this subject, cf. in addition, K. Özerden, ' Le sort des militaires belligérants, victimes de la guerre, débarqués dans un port neutre, d'après la Convention de Genève ', Paris, 1971;

    (54) [(54) p.276] On this subject, cf. ibid., p. 190, note 1;

    (55) [(55) p.276] Cf. ibid., p. 114;

    (56) [(56) p.277] cf. Arts. 11 and 14 of that Convention;

    (57) [(57) p.277] Art. 13, first sentence of that Convention;

    (58) [(58) p.277] However, it should be recalled that Article 11 of the Hague Convention mentioned here allows a neutral State the possibility of deciding "whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission";

    (59) [(59) p.278] On this subject, cf. commentary Art. 19, supra, p. 237;

    (60) [(60) p.278] In this respect, Article 2 of the Hague Convention of 18 October 1907 concerning the Rights and Duties of Neutral Powers in Naval War is perfectly clear: "Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden."

    (61) [(61) p.278] Cf. Art. 4, para, 2, Fourth Convention and ' Commentary IV, ' pp. 57-58. The Fourth Convention applies to such persons, particularly Section II (Aliens within the territory of a Party to the conflict) and. if applicable, Section IV (Regulations for the treatment of internees), Part III; Protocol I is also applicable, particularly Section 111 (Treatment of persons in the power of a Party to the conflict) of Part IV. In the context of the commentary on this article we cannot summarize these numerous provisions. Thus we refer the interested reader to these provisions and the commentary thereon;