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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.
Art. 21. Chapter II : Wounded, sick and shipwrecked
. -- APPEALS TO NEUTRAL VESSELS
The present Article evolved in the successive versions of the Convention drawn up from 1868 to 1949, in line with the corresponding provisions in the First Convention.
[p.151] As compared with Article 9 of the 1907 Convention
, this Article contains the following changes: (a) a reference to the shipwrecked and the dead has been added in the first paragraph to the statement that neutral vessels may take on board wounded and sick persons; (b) in the second paragraph it is now specified that the provision would apply to neutral vessels of any kind; (c) in the same paragraph, the term "certain immunities" has been replaced by "facilities to carry out such assistance" which is more satisfactory from the legal point of view.
This provision may be compared with Article 11 of the Brussels Convention of 1910.
PARAGRAPH 1. -- APPEALS TO CHARITY
The present provision is based on a fundamental principle of the Red Cross which dates back to the beginnings of that institution. Not only must a wounded, sick or shipwrecked member of the armed forces be respected; he must also be collected and cared for without delay. The task is so urgent that if the navy medical services cannot cope with it, all ships which may be in the vicinity must be asked to help. In the same way, anyone who finds a shipwrecked man can and must pick him up and give him help (1). At sea, international fellowship is even more necessary than on land.
The provision is nevertheless optional. The Parties to the conflict ' may ' appeal to the charity of neutral vessels. Similarly, as will be seen from the next paragraph of the Article, such vessels are not bound to give the assistance requested. It is to be hoped, however, that whenever there are lives to be saved and suffering to be assuaged, there will be true co-operation among all concerned.
The terms employed (merchant vessels, yachts or other craft, and vessels of any kind) show that the Article refers also to warships or public vessels used for non-commercial purposes. No special mention is made of neutral warships since in any case they are not [p.152] liable to capture and have no need of any special protection. But the spirit of the provision also applies; there is no reason why an appeal should not be made to their charity and why they should not respond, and in fact Article 15
expressly refers to the case where shipwrecked persons are taken on board a neutral warship.
PARAGRAPH 2. -- PROTECTION AND FACILITIES
As we have already seen, this rule is optional for neutral vessels. The authorities of a belligerent country may try to arouse the humanitarian feelings of those commanding such vessels, but cannot oblige them to act.
The 1864 Convention contained a somewhat sweeping statement: "The presence of any wounded combatant receiving shelter and care in a house shall ensure its protection". Since that time, there has been a return to more realistic proportions, by referring to special protection and facilities.
The form of the protection and facilities will depend on circumstances. For instance, a safe-conduct may be issued to ships, enabling them to continue on their course without being stopped and boarded by other warships of the same nationality (2). In no case can this protection imply the right to display the red cross emblem.
The 1949 Diplomatic Conference considered, and rightly so, that the provision should specify that the special protection and facilities mentioned were accorded "to enable ships to carry out such assistance". Here as elsewhere, the purpose of protection is solely to improve the lot of war victims. The doctor is not protected on his own account, but on account of the treatment he gives. Similarly, no reward is due to neutral vessels which have given charitable assistance.
The necessary protection must be accorded to such vessels by all the belligerents and not merely by the belligerent which has appealed to them for assistance.
[p.153] PARAGRAPH 3. -- EXEMPTION FROM CAPTURE
This paragraph is in complement to the preceding one. If charitable vessels receive protection and facilities, all the more reason why they should not be captured while giving assistance.
Neutral merchant vessels may be captured only for violation of neutrality (giving military assistance), transporting war contraband, or for breach of blockade. Tending the sick never constitutes interference in the conflict, it is never a reprehensible act, and this brings us back to one of the fundamental principles of humanitarian law (3).
"On the other hand" wrote Louis Renault in 1899 (4) "such vessels cannot, merely on account of their charitable co-operation, escape the consequences of conduct contrary to the duties of neutrality... They must bear the normal consequences of any such act."
The Convention nevertheless makes a reservation: "in the absence of any promise to the contrary". This phrase may seem surprising, and R. Genêt wrote recently (5): "it is hard to imagine what kind of promises to the contrary the belligerents might give to such benevolent helpers so as to render them immune from the consequences of violation of the laws of maritime warfare".
But Renault had already provided an answer to those objections in 1907 (6). His statement is so curious that we shall give it in full, and it requires no additional comment: "In fact, it is a matter of a merchant vessel receiving an appeal from a belligerent ship in absolute need of immediate assistance. It might therefore be in its own interest for the warship to overlook any infringements which the merchant vessel may have committed previously and to promise, for instance, not to exercise its right to search it."
* (1) [(1) p.151] In the event of a naval engagement off the
coast of a neutral country, the authorities of that
country might conceivably send a hospital ship or coastal
rescue craft, similar to those referred to in Article 27
in the case of belligerent countries, to assist the
(2) [(1) p.152] When the Commission of Experts met in 1937,
the International Committee of the Red Cross proposed a
provision specifying that neutral vessels which had picked
up shipwrecked persons should not be diverted from their
course. In view of imperative military requirements which
might arise, however, the suggestion was not adopted;
(3) [(1) p.153] See First Convention, Article 18, paragraph 3,
and Article 27, paragraph 3;
(4) [(2) p.153] See ' Actes ' of the 1899 Conference, p. 35;
(5) [(3) p.153] See R. GENET, op. cit., p. 64;
(6) [(4) p.153] See ' Actes ' of the 1907 Conference, Vol.
III, p. 301;