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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.
. -- WOUNDED TAKEN ON BOARD A NEUTRAL WARSHIP
This provision corresponds to Article 13 of the 1907
text. Only three amendments were made in 1949: (1) the inclusion of a reference [p.108] to military aircraft; (2) the insertion of the phrase "where so required by international law", to which we shall revert; (3) the suppression of the word "possible", which is always unfortunate in a Convention.
The purpose of the Article is to make provision for wounded, sick or shipwrecked nationals of the Parties to the conflict when taken on board a neutral warship or neutral military aircraft (1). Here there can be no question of boarding by the belligerents nor of the right of surrender. In customary law, warships are considered as being part of the territory to which they belong (2). Such wounded persons will be taken to the neutral country concerned, where the authorities must intern them so as to ensure that they can take no further part in war operations.
In 1907, Louis Renault wrote as follows with regard to this provision (then Article 13 of the Tenth Hague Convention
): "It fills a gap in the 1899 Convention and cannot give rise to any difficulty. A case of this kind occurred during the last war and was settled, after some hesitation, in the way provided in the Draft. Wounded, sick or shipwrecked persons who are picked up by a neutral warship are in exactly the same situation as combatants who take refuge in neutral territory. They are not handed over to the adversary but must be guarded" (3).
In 1948, experts proposed that the present Article should be specified as being applicable only to wounded, sick or shipwrecked persons picked up on the high seas. The proposal was not adopted in 1949, because it was bound up with the notion of "the territorial sea" which had given rise to various disputes between States (4). [p.109] This in no way modifies the customary law in force, however (5). The present Article in general applies only on the high seas. Three possible cases might arise. The first instance is that of shipwrecked persons picked up by a neutral warship (or military aircraft) in a neutral territorial sea. They are considered in the same way as those who have reached the coast of neutral territory by their own means, and are free (6). The second case is that of shipwrecked persons picked up in the territorial sea of their own country. There is therefore all the more reason why they must remain free; they have escaped the adversary's control (7). On the other hand -- and this is the third possible case -- shipwrecked military personnel picked up in the territorial sea of the enemy country would be liable to internment, for they would not have escaped capture.
On a proposal of the British Delegation, the 1949 Conference inserted the words "where so required by international law" here and in all the Articles providing that belligerent personnel must be interned in a neutral country. That was no doubt a wise move. The plenipotentiaries at the Geneva Conference were authorized to lay down provisions of international law regarding war victims, but they had no authority to revise the Conventions dealing with the rights and duties of neutrals. They expressly stated that they did not consider themselves competent "to interpret international law concerning survivors who had been landed" in a neutral country, it being understood that "each contracting State would have complete liberty of interpretation" (8).
Internment in a neutral country forms a system on its own which also involves customary rules. In the absence of any specialists appointed for the purpose, something might have been overlooked. Moreover, those rules may evolve.
The fact that the plenipotentiaries were reluctant to commit themselves in this regard may also reflect an underlying desire to avoid clarifying rules which are sometimes confused and open to [p.110] varying interpretations, so as to make it possible in future as in the past to settle specific cases according to current circumstances.
There is also a definite reason for this addition to the Article. The delegation which proposed it gave the following justification: "It is not international law at present that a neutral Power should be bound to detain merchant seamen or civilian aircrews landing in their territory, even though they belong to a belligerent" (9). Article 13
states that the Convention is applicable to merchant seamen who do not benefit by more favourable treatment (10). Although during the Second World War the belligerents generally interned merchant seamen or took them prisoner (11), positive law (Eleventh Hague Convention of 1907, Articles 5
) does not require them always to do so, and nothing obliges a neutral Power to intern them.
The present Article requires the neutral Power to "ensure" that belligerent nationals taken on board "can take no further part in operations of war". Under Article 17
, they must be "so guarded by the neutral Power... that... etc. "The two expressions are equivalent, and mean that in practice belligerent nationals will be interned. Since, however, the neutral States are responsible for preventing such persons from leaving their territory, they must also take all necessary measures for guarding and supervising them so as to ensure that this requirement is met; they will decide whether the internment regulations can be relaxed in any way (12).
What treatment should be afforded in a neutral country to military personnel who have been picked up and interned pursuant to the present Article? A definition may be found in Chapter II of the Fifth Convention of 1907 of The Hague, which, although in principle applicable only to war on land, is the sole instrument that refers to the treatment to be given by a neutral State to internees. It may therefore be taken as a guide for internment in [p.111] maritime warfare. Reference may also be made, by analogy, to the 1949 Geneva Conventions (Second Convention, Article 5
; Third Convention, Article 4.B (2)
). The costs of internment will be borne by the State on which the persons concerned depend, in accordance with the principles of international law (Article 12 of the Fifth Hague Convention of 1907
) and as indicated in Article 17, paragraph 2
, of the present Convention; indeed, the latter provision might well have been included here also.
The Article commented on above lays down the rules applicable to wounded, sick and shipwrecked persons taken on board a warship. What happens if they are taken on board a neutral merchant vessel? In the absence of any formal text, one must be guided by custom and doctrine, which generally concur that such persons will be free if the neutral merchant vessel has not encountered a warship of the adverse Party or has not made any promise to the contrary to that Party (13). The present solution differs in that a belligerent is entitled to board and search a merchant vessel and demand the handing over of any wounded or sick who may be in it, but he may not do so in the case of a neutral warship. After the search, the belligerent may also leave the wounded on board the merchant vessel in exchange for a promise that they will be interned on arrival in the neutral country. Otherwise, as we have already said, the wounded, sick or shipwrecked will be free; they must not be interned, but must be allowed to return to their country of origin and resume active
service. In that event, landing in a neutral port is merely the end of the rescue and has nothing in common with the military operation in which they were engaged before being shipwrecked, as the neutral merchant vessel would merely have been following its normal course and returning to its home country.
[p.112] It should be noted again, however, that the 1949 Diplomatic Conference deliberately refrained from laying down rules governing this and several other questions relating to the internment of war victims in neutral countries; we shall revert to this matter in commenting on Article 17
If, as is to be hoped, a general study is one day made of these questions, the situation of shipwrecked persons who are taken on board a neutral merchant vessel will obviously have to be reviewed in the light of the general solution then adopted.
* (1) [(1) p.108] In the present Convention, Articles 15, 17 and
40 relate to the situation of wounded, sick or shipwrecked
nationals of the belligerents when in neutral territory or
on board a neutral vessel. Article 15 should logically be
followed by Article 17, both being preceded by Article 16;
(2) [(2) p.108] The present Article will be extended by
analogy to other neutral public vessels employed solely on
government service for non-commercial purposes. See
OPPENHEIM-LAUTERPACHT, op. cit., par. 348, note 2;
(3) [(3) p.108] ' Actes ' of the 1907 Conference, Vol. III, p.
310. For instances of application of this provision, see
FAUCHILLE, op. cit. (1395 -- 35 and 36). See also
FRANCOIS: ' Handboek van het Volkenrecht, ' 1950, Vol.II,
(4) [(4) p.108] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 61. See also
BRIGGS: ' The Law of Nations, ' 1938, pp. 194-197;
(5) [(1) p.109] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 105. See
also the Italian Law of 1938 on neutrality (Art. 27);
(6) [(2) p.109] See OPPENHEIM-LAUTERPACHT, op. cit., Vol. II,
par. 348 a);
(7) [(3) p.109] See R. GENET, op. cit., p. 59;
(8) [(4) p.109] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 104, 105
and 201. See also the commentary on Article 17, p. 116 ff.
(9) [(1) p.110] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, p. 220;
(10) [(2) p.110] As regards this reservation, see the
commentary on Article 13 (5), p. 98 ff. above;
(11) [(3) p.110] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, p. 552 ff.;
(12) [(4) p.110] Article 24, paragraph 4, of the Thirteenth
Convention of The Hague provides that interned
ships'officers may be released on parole;
(13) [(1) p.111] (13) This conclusion is drawn from Louis
RENAULT (' Actes ' of the 1907 Conference, Vol. I, p. 76,
and Vol. III, p. 311). See also the ' Oranjeboek ' of the
Netherlands Government (July 1914-October 1915, p. 34;
October 1915-July 1916, pp. 27 and 32); FAUCHILLE, op.
cit., par. 1395 -- 36 and par. 1463 -- 28;
OPPENHEIM-LAUTERPACHT, op. cit., ' Vol. II, p. 734 (
348a, note 2); ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, pp. 107 and 201;
Netherlands proclamation of neutrality, 1939, Article 5;