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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.
. -- FIELD OF APPLICATION
We shall consider the two paragraphs of this Article together, since they form a whole. The first paragraph reproduces Article 22 of the 1907 Convention
(1). The second, which is new, merely serves to make the first more explicit.
As already noted, the First and Second Geneva Conventions of 1949 are in parallel; the latter is merely a faithful adaptation of the former to maritime warfare. Their titles give an adequate definition of their respective scope. The first applies to "the [p.40] wounded and sick in armed forces in ' the field '", while the second relates to "wounded, sick and shipwrecked members of armed forces ' at sea '".
Does it follow that the present Article is completely superfluous? No, for although the First Convention obviously applies to armed forces fighting on land, and the Second to engagements at sea, some doubt might have arisen in regard to amphibious operations. The present Article supplies the answer: both Conventions are applicable -- the First to combatants who are actually on land, and the Second to those who, at that same moment, are at sea. This division is logical and, in the absence of a specific provision to that effect, the same conclusion could no doubt have been reached. What would have made interpretation more difficult, however, is the fact that according to the text, the Maritime Convention will apply even to land forces who may be temporarily at sea, while the First Convention will be applicable to members of the naval forces who happen to be on land (2).
The expression "hostilities between land and naval forces" must not be interpreted too literally or in too restrictive a manner. The rule of division, as stated in the present Article, is in general valid, but there is one exception to it: Article 36
stipulates that members of the medical personnel and crews of hospital ships may not be captured while they are "in the service" of such ships. The Convention therefore remains applicable to them even if they have had to go ashore, and in no case may they be retained (3).
At the 1949 Diplomatic Conference, some delegates were in doubt as to whether or not the words "forces on board ship" actually covered all the persons protected by the Convention (4), and the Rapporteur emphasized that the expression must be taken in the broadest possible sense (5). Of that there is no doubt. The present Article is not actually intended to define the categories of [p.41] persons protected; other Articles are provided for that purpose (6). Its object is merely to indicate to both branches of the armed forces -- on land and at sea -- which Convention applies to them and which one they must observe. The provisions of the two instruments are actually very similar, if not identical, but it is nevertheless important to know which of them one is to apply.
There is yet another Article in the present Convention -- Article 23
-- which helps to clarify the relationship between the two Conventions, and the reader may refer to the commentary on it (7). Lastly, it should be noted that Article 27
affords protection to fixed coastal installations used by rescue craft, even though they are on land.
Why is there no equivalent here of Article 5
of the First Geneva Convention of 1949, which extends the duration of application of the Convention until the final repatriation of "protected persons"? The answer is that protected persons who are held by the Parties to the conflict for any considerable period will be on land, and the First, Third or Fourth Convention will therefore be applicable to them.
* (1) [(1) p.39] Although the following text, written by the
Rapporteur, Louis RENAULT, appears in the records of the
1899 Conference ' (Actes ', pp. 28 and 37): "In the
provisions which the Committee submits to the Conference,
mention is made of the wounded, sick and shipwrecked, but
not of the victims of maritime warfare. The latter
expression, which would be correct in most cases, is not
always so, and must therefore be avoided. The relevant
rules become applicable from the moment when there are
wounded or sick persons on board a sea-going vessel,
regardless whether they were wounded or fell ill at sea or
on land. If a ship is detailed to transport by sea wounded
or sick members of the land forces, the provisions of our
draft text will therefore apply to that vessel and to the
wounded and sick on board. Conversely, it is self-evident
that if wounded or sick sailors are put ashore and placed
in an ambulance or a hospital, the Geneva Convention will
be fully applicable to them. This comment seems to us to
answer the remarks made in the Sub-Committee, and we
consider that there is no need to include a special
provision on this subject";
(2) [(1) p.40] Similarly, the air forces must apply, and will
be covered by, the First Convention while they are on land
or over land, and the Second while they are on or over the
(3) [(2) p.40] Generally speaking, when a ship is in port and
members of its crew are ashore on duty or even on shore
leave, they have the same legal status as if they were on
(4) [(3) p.40] (See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 138;
(5) [(4) p.40] Ibid., p. 200;
(6) [(1) p.41] The expression "forces on board ship" (meaning
military personnel on board ship) would obviuosly be quite
inadequate to designate protected persons. The latter
include not only wounded, sick and shipwrecked members of
the armed forces and persons with similar status
(including members of the merchant marine, although they
are not part of the armed forces) in accordance with
Article 13, but also members of the medical personnel
(Articles 36 and 37) and even the dead (Article 18, 19 and
20). As for the shipwrecked, they are, unfortunately, not
always "on board ship".
(7) [(2) p.41] See below, p. 161;