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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- EMPLOYMENT OF HOSPITAL SHIPS AND SMALL
[p.179] This Article corresponds to the first four paragraphs of Article 4
of the Tenth Hague Convention of 1907; the last two paragraphs of that Article have been embodied in Article 31
of the present Convention. The text is almost identical to that of 1907, 1899 and even 1868. Through the reference to Article 27
, however, it no longer applies only to hospital ships, but also to coastal rescue craft. At the various Diplomatic Conferences, this provision has not given rise to any noteworthy discussion.
' Paragraph 1 ', relating to the charitable mission of hospital ships and rescue craft, is explicit and merely serves as a reminder of the ideas already expressed in Articles 12
. The reader should therefore refer to the commentary on those provisions.
One remark is called for: the great principle of "non-discrimination" is stated here in the concise wording used in earlier Conventions. Only the criterion of nationality is mentioned, but the other similar distinctions mentioned in Article 12
are certainly also forbidden here.
' Paragraph 2 ' is self-explanatory. In return for the immunity which they enjoy, hospital ships must refrain from participating in any way in the armed conflict or war effort. This refers to acts even more serious than the "acts harmful to the enemy" referred to in Articles 34
(1). What sanction is applied if a hospital ship commits a flagrant violation of its neutral status? It simply loses its right to protection.
' Paragraph 3 ' does not call for much comment. During an engagement, hospital ships must not hamper the movements of other vessels, and the authors might have added that they must not get in the line of fire. Any deliberate breach of the present [p.180] provision would constitute an act harmful to the enemy, in the sense of Article 34
, and the hospital ship committing it would then lose its right to protection under the Convention, according to the procedure laid down in that clause. If, on the other hand, it had not acted with intent, the case would then be very close to that dealt with in the following paragraph, which should be referred to. The hospital ship would not lose its right to protection, but it would in fact be deprived of security.
' Paragraph 4 ' specifies that during and after an engagement, hospital ships will act at their own risk. To act means to advance into the combat area in order to give assistance to the victims. As has already been pointed out, and rightly so (2), "after" an engagement means "immediately after", that is to say when danger may still be present, in particular when there may be mines laid by the combatants. Otherwise the expression would be absurd.
Even if hospital ships do not hamper the combatants, in the sense of the preceding paragraph, they may be hit accidentally by shots wide of the mark.
In 1937, the question was raised as to whether a hospital ship should not waive the protection of the Convention when being escorted by warships since it would then no longer be possible to stop and search it. In fact, that was the position taken by certain countries during the Second World War (3). A hospital ship is obviously bound to lose its immunity under the Convention if it is being escorted by warships (4), except when the escort vessels are minesweepers in order to ensure a safe passage. One would, however, have to be able to prove the fact conclusively, which would most often be impossible. In the course of their duties, hospital ships are often obliged to get in touch with warships, and one of their tasks is to follow naval squadrons. It would be [p.181] difficult to determine objectively whether a hospital ship was accompanying warships or was being escorted by them.
On the basis of the opinion expressed by the experts in 1937 one may therefore formulate the following principle as being necessary and sufficient to solve this problem and any others which may arise in connection with the interpretation of the present paragraph: if hospital ships draw near to warships, they do not lose the protection of the Convention but they may in fact expose themselves to danger.
The expression "act at their own risk" must be understood in that sense. In such a case, the enemy would never be authorized to fire deliberately on a hospital ship, but the latter must take the responsibility for any damage which it may incur accidentally.
* (1) [(1) p.179] By way of example, two cases well known in
doctrine may be cited: (1) During the Russo-Japanese war,
the Russian hospital ship ' Orel ' was condemned by a
Japanese prize court for having transported able-bodied
prisoners of war and military equipment. (2) During the
First World War, the German hospital ship ' Ophelia ' was
convicted by a British court of having carried signalling
equipment (lamps and rockets) without-adequate
justification for doing so. It had also thrown documents
overboard and sent a message in code just before being
boarded. (See HURST and BRAY, Vol. II, ' Russian and
Japanese Prize Cases, ' 1912-1913, p. 354; PITT COBBETT,
' Cases on International Law ', Vol. II, London 1937, pp.
164, 224-226; ' American Journal of International Law ',
1916, p. 653 ff.);
(2) [(1) p.180] See Julius STONE: ' Legal Controls of
International Conflict ', p. 676, note 69;
(3) [(2) p.180] See MOSSOP: op. cit.; see also the case of the
hospital ship ' America-Maru ', in B. H. BRITTIN:
' International Law for Sea-going Officers ', U.S. Naval
Institute, Annapolis, 1956, par. 1025;
(4) [(3) p.180] Which does not mean that the humanitarian
principles would not be applied in such a case, or that
one would be justified in deliberately firing on the