Treaties, States Parties and Commentaries
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Commentary of 1960 

The 1868 draft provided that belligerent ships could not require the handing over of wounded persons on board hospital ships of relief societies, but that they could take over those on board military hospital ships, since such vessels were liable to capture. The 1899 Convention made no reference to the matter, but it is clear from the records of that Conference that the plenipotentiaries present considered it legal for a belligerent to take over the wounded on board a hospital ship which it had boarded (1). In 1907 an express stipulation was laid down (Article 12 ), identical to the present Article except for the new "humanitarian reservation" included at the end of the latter.
The wording calls for a few comments. First of all, it was not for any particular reason that the term "belligerent Party" was not replaced by "Party to the conflict" as was done throughout the rest of the Convention; the drafters simply copied the 1907 text. A reference to the shipwrecked was deliberately omitted from the "humanitarian reservation", which does not apply to able-bodied persons. If shipwrecked persons are in good health, [p.105] the reservation is not applicable to them. If their health is affected, they will be considered as wounded or sick.
We come now to the commentary on the Article (2).

A. ' The right of surrender. ' -- If a warship meets a hospital ship or a merchant vessel, it is entitled to search it, under Article 31 and the present Article of the Second Convention. It may require the handing over of any wounded, sick or shipwrecked found on board. If the men are of its own nationality, it can thus release them from war captivity. If they are of enemy nationality, it takes them prisoner, in accordance with the general principle set forth in particular in Article 16 that combatants, even though wounded, who fall into enemy hands become prisoners of war.
The belligerents'right of surrender can apply to hospital ships of all categories (Articles 22 , 24 and 25 ) as well as to rescue craft and merchant or other vessels, also without distinction as to nationality (3).
If an enemy warship finds on board a hospital ship or other vessel any wounded, sick or shipwrecked members of the merchant marine who have given a written undertaking, in accordance with Article 6 of the Eleventh Convention of The Hague of 1907, not to resume any service connected with military operations, then that warship cannot take them on board, for they are already free men.
Obviously, however, the belligerents are in no way obliged to exercise their right of surrender. And in fact they will usually refrain from doing so, since it is to their advantage to leave the wounded and sick where they are rather than incur the considerable hindrance of taking them on board. Space is limited on a warship and useless passengers are not welcome, particularly during the early part of a voyage. By stopping or slowing down, warships also run greater risk of air or submarine attacks. There are, however, known cases where the right of surrender has been exercised (4).
[p.106] Can a hospital ship take prisoner wounded persons on board another hospital ship or a merchant vessel? Certainly not, for a hospital ship is not a warship. It must therefore refrain from any act of force -- or else lose its protection, pursuant to Article 34 -- and may not stop and examine another ship (5). On the other hand, a transfer of that kind could be carried out with the intervention of a warship, the latter effecting the boarding operation, and ordering the transfer of the wounded to a hospital ship of its own nationality.

B. ' Limitation of the right of surrender. ' -- There has always been some concern over the right of surrender, and proposals have been made for its limitation on humanitarian grounds (6). In 1937, experts pointed out the risks involved for the wounded if small warships, despite their inadequate equipment and facilities, were to remove patients from hospital ships and take on board men whose health was seriously impaired. Later, at the 1949 Diplomatic Conference, the Italian Delegation proposed that belligerents should be authorized to retake wounded of their own or an allied nationality, but not to capture enemy wounded. It was pointed out that capture was an act of war, and should therefore not occur on board a charitable ship (7).
The right of surrender was nevertheless retained. In 1907 Renault wrote as follows to justify it: "In a given case, it may be essential not to let pass wounded or sick persons who could still render great services to their country. This is still more understandable in regard to able-bodied shipwrecked persons. It has been said that it would be inhuman to force a neutral vessel to hand over the wounded whom it had collected charitably. In order to overcome that objection, one need merely think of the situation [p.107] which would prevail in the absence of any Convention. Under positive international law, it would be permissible not only to take prisoner any enemy combatant found on board a neutral vessel, but also to seize and confiscate that vessel for having acted in an "un-neutral" manner. Moreover if, for instance, shipwrecked persons could escape captivity merely by seeking asylum on board a neutral vessel, then the belligerents would try to prevent charitable action by neutrals wherever such action might cause irreparable damage to the belligerents. Humanity would not gain thereby."
In our view, the right of surrender is generally consistent with the Convention, for the humanitarian system which the latter establishes does not impede the rights of the belligerents, and it is on that account that the Convention is respected. As has already been stated, the right of surrender will be exercised only rarely because of the burden which it imposes on vessels of war.
The 1949 Conference nevertheless inserted what we have referred to as a humanitarian reservation, which is of a dual nature. The right of surrender is subject to the condition "that the wounded and sick are in a fit state to be moved" (proposed by the International Committee of the Red Cross) and "that the warship can provide adequate facilities for necessary medical treatment" (proposed by Italy and Canada).
This clause should allay the fears of those who felt that excessive suffering might be involved. Even without, it, however, the belligerents would have had to take account of those considerations in accordance with the general principles of the Convention, for Article 12 stipulates that the wounded, sick and shipwrecked must be treated humanely in all circumstances.

* (1) [(2) p.104] See ' Actes ' of the 1899 Conference, pp.
37-38. See also ' Actes ' of the 1907 Conference, Vol.
III, p. 310;

(2) [(1) p.105] The reader should refer to the corresponding
passage in the report by Louis RENAULT, on which this
portion of the commentary is largely based ' (Actes ' of
the 1907 Conference, Vol. III, p. 310);

(3) [(2) p.105] As regards neutral persons landed in a neutral
country by a merchant vessel over which the belligerents
have not exercised their right of surrender, see below, p.

(4) [(3) p.105] See J. C. MOSSOP: "Hospital Ships in the
Second World War", ' British Yearbook of International
Law, ' 1947, p. 405;

(5) [(1) p.106] Similarly, it may not capture military
personnel. See the commentary on Article 16, p. 113 below;

(6) [(2) p.106] In signing the Tenth Hague Convention of 1907,
Great Britain entered a reservation to the relevant
Article, stating that it would be applied only to
combatants collected before and after a naval engagement
in which British forces had taken part. During the Second
World War, however, Great Britain applied the Article in
full to its adversaries. See MOSSOP, op. cit., p. 405;

(7) [(3) p.106] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 55;