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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.
. -- RIGHT OF CONTROL AND SEARCH
This provision dates back to the 1868 Draft; it was subsequently expanded in 1907 (Article 4, paragraphs 5 and 6
) and 1949. The principal changes made by the 1949 Conference are the following: the reference to Article 27
means that the provision [p.182] applies not only to hospital ships but also to coastal rescue craft: the belligerents are now authorized to control telecommunication by hospital ships; the right to detain a hospital ship has been limited to a period of seven days; the task of a commissioner who may be put on board has been defined; and a new paragraph permits the belligerents to put neutral observers on board hospital ships.
PARAGRAPH 1. -- EXERCISE OF CONTROL
In the preceding Article
, the Powers have undertaken not to use hospital ships and rescue craft for any military purpose. They must be able to assure themselves that this is indeed the case, to take practical precautions on occasion and, since hospital ships can move about freely because of their duties and their immunity, the Powers must, if necessary, be able to ensure that no secret information regarding military operations will be divulged by the crew.
The States are given five means of exercising such control: they may search a hospital ship, give it certain orders, control the use of telecommunication, detain it, or put a commissioner on board. The last of these means is provided for in paragraph 2.
A. ' Search '. -- The inspectors belonging to the adverse Party may make a thorough search of the hospital ship, examine its equipment and supplies, verify lists of patients, check the identity of the crew, etc.
A search may serve not only to make sure that a hospital ship is not being used for any other purpose, but also to determine the situation of the wounded on board, in accordance with Articles 14
B. ' Orders '. -- The Parties to the conflict may refuse assistance from hospital ships and rescue craft, order them off or make them take a certain course, for reasons of military security (1).
[p.183] C. ' Telecommunication '. -- If the need and occasion arise, the adverse Party may control the use by a hospital ship of wireless and other means of communication, that is to say both visual and auditory (2).
As will be seen in connection with Article 34
, hospital ships may not use a secret code for telecommunication.
At the 1899 Hague Conference, the Rapporteur for the Maritime Convention, Louis Renault, noted a proposal that certain signals should be established for use by vessels requesting assistance and by hospital ships offering such assistance. The Conference considered, however, that the International Code of Signals, adopted by all navies, seemed sufficient for the purpose (3).
At the 1949 Diplomatic Conference, the Italian Government stressed the advisability of regulating and improving means of communication between hospital ships, on the one hand, and warships and aircraft on the other hand, and proposed that an international code be drawn up for the purpose. The Conference considered that it was not competent to study the question, but it stressed the importance of the matter in resolution No. 6 of the Diplomatic Conference, and expressed the hope that the Powers would entrust the matter to a committee of experts for study (4).
The Swiss Government has consulted the maritime Powers regarding the resolution, in its capacity as depositary of the Geneva Conventions, and a committee of experts will probably be asked to study the problem at some future date.
D. ' Detention '. -- In order to ensure absolute secrecy regarding a military operation, the adverse Party may even be justified in detaining a hospital ship temporarily. Such a measure must be considered as exceptional, for the text states "if the gravity of the circumstances so requires".
The 1907 Convention merely stated that hospital ships might be detained, without specifying for how long such a measure might be imposed. The provision was clearly inadequate and dangerous, [p.184] and moreover it actually led to a hospital ship being immobilized for eight months (5).
In order to prevent the detention of a hospital ship from amounting to capture, the 1949 Diplomatic Conference adopted a proposal by the Netherlands Delegation (6) that such detention should not last longer than seven days. The time-limit is counted from the time of interception, that is to say from the time when the hospital ship is located and an order given to it.
A week seems a reasonable period. It covers the possible duration of an engagement, with a few days to enable warships to proceed elsewhere in all security.
Under ' paragraph 2 ', a belligerent may put a commissioner temporarily on board a hospital ship of the adverse Party. A similar provision was included in the earlier Conventions, but the task of the commissioner was not defined. Renault wrote in 1899 that his task was "to ensure the proper execution of the orders given" (7). The 1949 text is now explicit: "whose ' sole ' task -- the emphasis does away with any need for further comment -- shall be to see that orders given in virtue of the provisions of the preceding paragraph are carried out" (8).
Can a belligerent take prisoner a commissioner who has been placed on board a hospital ship if the latter is joined by a warship of the same nationality? This curious question was raised during the discussion at the 1907 Conference, and a negative conclusion was arrived at, in the following terms: "Since the armed personnel put on board hospital ships may not be taken prisoner, then neither may the commissioner who has been put on board to supervise and direct the personnel" (9). Some confusion is involved here, in our [p.185] view. Those incorrectly referred to above as "armed personnel" are actually the medical personnel. The term relates to a category of persons who, by tradition, are not involved in the conflict and enjoy a status of immunity. If the commissioner were a member of the medical personnel, then indeed he could not be taken prisoner but would have to be treated in the same way as other persons in that category. It is hardly conceivable, however, that a member of the Medical Service would be made responsible for giving orders of a military
character to a ship's commanding officer. The commissioner would more probably be a naval officer, and one cannot see how or why he could escape capture.
In conclusion, the fate of the commissioner will be determined by his personal status.
' Paragraph 3 ' already existed in substance in the earlier Conventions. Renault wrote as follows on the subject (10): "In order to avoid any dispute as to the existence or meaning of an order, it is desirable that the belligerent enter it in the log of the hospital ship. One can understand that this may not always be possible: conditions at sea or extreme urgency may prevent this formality being carried out, and it cannot therefore be made a compulsory requirement. The hospital ship would not be allowed to cite the fact that orders had not been entered in the log as justification for not obeying them, if there was some other evidence of the existence of such orders".
The 1949 text specifies -- and rightly so -- that orders must be entered in the log in a language which the captain of the vessel can understand.
PARAGRAPH 4, -- NEUTRAL OBSERVERS
This paragraph is entirely new. It was inserted because of the serious events which occurred during the First World War, when the belligerents accused each other of making improper use of hospital ships and a number were sunk. Following the conclusion of an agreement between some of the belligerents in 1917, Spanish officers went on board hospital ships as observers in order to ensure, [p.186] as direct and permanent witnesses, that the ships were used properly. The agreement seems to have brought at least some improvement in the situation (11). At the 1937 meeting of experts, and subsequently in 1946 and 1947, it was therefore recommended that provision should be made for such a procedure in the revised Convention.
This was done but in the form of an optional and not a compulsory clause. Even without it the belligerents could have had recourse to such a measure, as a token of their good faith. It was nevertheless a good thing to make it official and bring it to the attention of the Powers. The procedure may be initiated either unilaterally by a belligerent, or by special agreement between two or more Parties to the conflict. The observers, who must be of a neutral nationality, will no doubt usually be representatives of the Protecting Power.
Their task will be to "verify the strict observation of the provisions contained in the present Convention". One must add that they must verify in order to make a report. Their objective evidence will make it possible to prove any breach which may be committed, or to clear the captain of the vessel of any unfounded accusations and thus to prevent reprisals. Observers must not give orders to the captain, who must retain full freedom of action. They may, however, always give an opinion if consulted or if circumstances so warrant.
In accordance with the general right of scrutiny which Article 8
confers on the Protecting Powers, the latter may themselves take the initiative of placing observers on board hospital ships.
* (1) [(1) p.182] A similar provision was included in the Report
of the Commission of Jurists at The Hague in 1922-1923
(Part I, Articles 7 and 8);
(2) [(1) p.183] A similar provision was included in the Report
of the Commission of Jurists at The Hague in 1922-1923
(Part I, Articles 7 and 8);
(3) [(2) p.183] See ' Actes ' of the 1899 Conference, p. 34;
(4) [(3) p.183] See below, p. 287;
(5) [(1) p.184] The Netherlands hospital ship ' Op ten
Noort ', detained in Japan during the Second World War,
before being finally captured;
(6) [(2) p.184] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 75;
(7) [(3) p.184] See ' Actes ' of the 1899 Conference, p. 34;
(8) [(4) p.184] Here the French text differs slightly, and
states: "assurer l'exécution des ordres donnés", making
the commissioner responsible for acting, and not merely
seeing that the orders are carried out;
(9) [(5) p.184] See ' Actes ' of the 1907 Conference, p. 300.
The case considered was only that of a belligerent
commissioner on board a hospital ship when the latter was
stopped by a warship. There seems no reason, however, why
the problem should not be considered on a more general
(10) [(1) p.185] See ' Actes ' of the 1899 Conference, p. 34;
(11) [(1) p.186] See ' Bulletin international de la
Croix-Rouge, ' October 1917; FAUCHILLE: op. cit., p. 515;