Traités, États parties et Commentaires
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Commentaire of 2016 
Article 20 : Protection of hospital ships
Text of the provision
Hospital ships entitled to the protection of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, shall not be attacked from the land.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Discussion
    A. Introduction
    1822  This provision of the First Convention deals with a very specific scenario: attacks launched from land against hospital ships at sea. The provision prohibits such attacks. If launched from any platform at sea, be it beneath the surface, e.g. a submarine, or above, including from an aircraft, the attack would be prohibited on the basis of Articles 22, 24 or 25 of the Second Convention. Thus, an attack on a hospital ship is prohibited, regardless of its geographic point of departure.
    1823  Article 20 goes hand in hand with Article 23 of the Second Convention: the former prohibits attacks from land against hospital ships entitled to the protection of the Second Convention, while the latter prohibits attacks from the sea against land-based establishments entitled to the protection of the First Convention.
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    B. Historical background
    1824  Article 20 has no precursor in previous treaties. It originates from an amendment introduced by the United Kingdom during the 1949 Diplomatic Conference.[1] In the initial version, the amendment combined the substantive elements of what eventually became Article 20 of the First Convention and Article 23 of the Second Convention. In the UK proposal the amendment was to be included in the Second Convention.[2]
    1825  When the amendment was discussed, some delegations questioned whether it had any added value. Did it not state the obvious in that the three categories of hospital ships recognized under the Second Convention ‘may in no circumstances be attacked … but shall at all times be respected and protected’ (emphasis added)?[3] It was felt that the more generally phrased rule aptly captured the protection of hospital ships, and that there was no need to go into particular scenarios. Indeed, an attack from land is only one among several possible scenarios in which hospital ships might find themselves attacked. One of these is attack from an aircraft, which is equally prohibited, irrespective of whether the aircraft is flying above land (in which case the First Convention applies) or above sea (in which case the Second Convention applies).[4]
    1826  When a proposal by one delegation to delete the UK amendment was put to a vote, it failed to attract sufficient support.[5] Other than a sense that the provision undoubtedly reflected the humanitarian considerations which the Convention sought to turn into binding law, the main reason the article was retained seems to have been an excess of caution. The delegates at the 1949 Diplomatic Conference who opted in favour of including the amendment were concerned that commanders of ‘armed forces in the field’ would not be familiar with the substantive rules of the Second Convention and that commanders of ‘armed forces at sea’ would not be familiar with the substantive rules of the First Convention.[6]
    1827  In line with this concern, it was decided to split the substance of the amendment into two parts, becoming Article 20 of the First Convention and Article 23 of the Second Convention, respectively. Thus, the message could be delivered where it was felt to be most needed.
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    C. Discussion
    1. The prohibition on attacking hospital ships
    1828  Under Article 20, it is prohibited to ‘attack’ ‘from the land’ ‘[h]ospital ships entitled to the protection of’ the Second Convention. Each of these three terms is analysed below.
    1829  The words ‘from the land’ need to be understood in their ordinary meaning, i.e. in geographic terms, starting as of the coast. In line with this approach, islands, including rocks, equally qualify as ‘land’ for the purposes of interpreting this provision.[7]
    1830  Article 20 applies to any persons on land or in the air while flying over land, and this irrespective of the branch of the armed forces they belong to. This understanding also flows from the logic underpinning Article 4 of the Second Convention.[8]
    1831  The prohibition only covers attacks against ‘[h]ospital ships entitled to the protection of’ the Second Convention. The three categories of vessels concerned are dealt with in Articles 22, 24 and 25 of the Second Convention, respectively.[9] By adopting the wording ‘entitled to the protection of’, the rule remains without prejudice to circumstances in which hospital ships might lose their protection.[10]
    1832  Under the Geneva Conventions, no definition exists of the verb ‘[to] attack’.[11] Under Additional Protocol I, the noun ‘attack’ is defined as ‘acts of violence against the adversary, whether in offence or in defence’.[12]
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    2. The place of Article 20 in contemporary international humanitarian law
    1833  The stated rationale for including Article 20 in the First Convention stemmed from the desire to ensure that armed forces on land – familiar with the First Convention – were aware of the protection due to hospital ships under the Second Convention. The prohibition on attacking hospital ships is also contained in the much more generally phrased, and wider, obligation to ‘respect and protect’ them, which flows from Articles 22–24 and 25 of the Second Convention.
    1834  The insertion of Article 20 in the First Convention was done at a time when – at least in terms of treaty law – the law applicable to the conduct of hostilities had not yet undergone the development and refinement it would eventually undergo in Articles 48–58 of Additional Protocol I. In the framework of Additional Protocol I, it is clear that hospital ships ‘entitled to the protection of’ the Second Convention cannot be considered military objectives.[13] Furthermore, a violation of Article 20 of the First Convention may amount to the war crime of intentionally directing attacks against medical transports using the distinctive emblems of the Geneva Conventions in conformity with international law.[14]
    1835  Since Article 20 states an obvious point, it has attracted no debate or controversy. The provision remains valid but stands in the shadow of more generally phrased rules (such as Article 22(1) of the Second Convention), of which it is simply an illustration of a particular point.
    1836  Hospital ships are but one of the categories of vessels which may not be attacked from the land. Any type of vessel which does not qualify as a ‘military objective’ must not be the object of such an attack.[15] The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea lists no less than nine other classes of enemy vessels which are exempt from attack and whose protection can only be lost if they qualify as a military objective and provided additional conditions are met.[16]

    1 - The historical record of the Second World War reveals numerous instances of attacks against hospital ships, albeit launched mostly from aircraft or submarines; see Philippe Eberlin, Crimes de Guerre en Mer 1939−1945, MDV – Maîtres du Vent, 2007, pp. 115–124.
    2 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 146.
    3 - Second Convention, Article 22(1), to which both Articles 24 and 25 refer on this point.
    4 - Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, Vol. I, 12th session held on 9 May 1949, p. 48.
    5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 147.
    6 - Ibid.
    7 - Article 121(1) of the 1982 United Nations Convention on the Law of the Sea defines an ‘island’ as ‘a naturally formed area of land, surrounded by water, which is above water at high tide’. While Article 121(3) of the same Convention stipulates that ‘[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’, this has no implications for the provision commented upon here. Thus, ‘rocks’ at sea qualify as being ‘land’ for the purposes of Article 20 of the First Convention.
    8 - For details, see the commentary on Article 4 of the Second Convention.
    9 - Article 22(1)–(2) of Additional Protocol I further expands the categories of vessels entitled to the protection of the Second Convention.
    10 - For details on loss of protection, see the commentary on Article 34 of the Second Convention.
    11 - It should be noted that Article 23 of the Second Convention (which mirrors Article 20 of the First Convention for all armed forces at sea) speaks of ‘bombardment or attack’. For a discussion, see the commentary on Article 23 of the Second Convention.
    12 - Additional Protocol I, Article 49(1).
    13 - Technically speaking, Articles 48–67 of Additional Protocol I do not apply – as a matter of treaty law – to the scenario in Article 20 of the First Convention, i.e. an attack by armed forces on land against a hospital ship at sea. See Article 49(3) of Additional Protocol I, which states: ‘The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.’ (Emphasis added.) Despite this technicality, it is nowadays uncontroversial to conclude that the rule embedded in Article 20 of the First Convention is in line with contemporary customary international humanitarian law applicable to the conduct of hostilities, regardless of the interaction between land, sea and air components of modern warfare.
    14 - See ICC Statute (1998), Article 8(2)(b)(xxiv).
    15 - Under the Second Convention, it is similarly prohibited to attack lifeboats of hospital ships (Article 26) and small craft employed by the State or by the officially recognized lifeboat institutions for coastal rescue operations (Article 27).
    16 - Rule 47 of the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea states: The following classes of enemy vessels are exempt from attack: (a) hospital ships; (b) small craft used for coastal rescue operations and other medical transports; (c) vessels granted safe conduct by agreement between the belligerent parties including: (i) cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war; (ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the survival of the civilian population, and vessels engaged in relief actions and rescue operations; (d) vessels engaged in transporting cultural property under special protection; (e) passenger vessels when engaged only in carrying civilian passengers; (f) vessels charged with religious, non-military, scientific or philanthropic missions, vessels collecting scientific data of likely military applications are not protected; (g) small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection; (h) vessels designed or adapted exclusively for responding to pollution incidents in the marine environment; (i) vessels which have surrendered; (j) life rafts and life boats.