Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 38 : Ships used for the conveyance of medical equipment
Text of the provision*
(1) Ships chartered for that purpose shall be authorized to transport equipment exclusively intended for the treatment of wounded and sick members of armed forces or for the prevention of disease, provided that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter. The adverse Power shall preserve the right to board the carrier ships, but not to capture them or to seize the equipment carried.
(2) By agreement amongst the Parties to the conflict, neutral observers may be placed on board such ships to verify the equipment carried. For this purpose, free access to the equipment shall be given.
Reservations or declarations
None
* Paragraph numbers have been added for ease of reference.
Contents

A. Introduction
2542  This article was included for the first time in the law regulating the protection of victims of naval warfare in 1949. It creates a new category of vessels that are entitled to protection from attack, seizure or capture by the adverse Power. Ships chartered for the transport of equipment exclusively intended for the treatment of wounded and sick members of the armed forces or for the prevention of disease are protected, provided that the adverse Party has been notified of the particulars of their voyage and has approved them. The material scope of the article is limited to ships chartered by one Party to the conflict for the transport of such equipment.[1] It is unclear whether States have made use of Article 38 in the last 60 years and, if so, whether they have placed neutral observers on such ships to guarantee the faithful application of this provision.[2]
2543  Article 38 does not cover the transport of medical supplies intended for the civilian population and the provision of relief supplies to the population of an occupied territory. The transport of medical supplies, essential foodstuffs or clothing intended for the civilian population is regulated by Article 23 of the Fourth Convention and by Article 70 of Additional Protocol I. Similarly, the provision of relief supplies to the population of occupied territories is regulated by Articles 59–63 of the Fourth Convention.
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B. Historical background
2544  The proposal to facilitate the transport of medical supplies during armed conflict at sea was first put forward by the American Red Cross during the meeting of the Commission of Naval Experts convened by the ICRC in 1937, which considered the revision of the 1907 Hague Convention (X).[3] During the First World War, the American Red Cross attempted to send medical supplies, including articles made of cotton and rubber, to some belligerents. Difficulties arose as to whether such supplies were to be regarded as contraband and therefore subject to capture.[4] The American Red Cross suggested including in a future convention the possibility for belligerents to agree to the placing on hospital ships, and on ships transporting medical supplies, of neutral observers who would attest that the ship was not being used for purposes other than the transportation of the sick and wounded or an agreed-upon list of hospital supplies.[5]
2545  The 1947 Conference of Government Experts agreed to include a new article in the draft convention for the protection of war victims submitted to the 1948 International Conference of the Red Cross in Stockholm. The draft article reiterated the original proposal of the American Red Cross, with the clarification that, on their return journey, such ships may transport only medical personnel or supplies.[6] This additional stipulation seems to have been a direct response to the incident in which a Japanese ship, the Awa Maru, was torpedoed on its return journey by an American submarine, with thousands of lives lost. The Awa Maru was a Japanese passenger and cargo ship, which, under an agreement between Japan and the United States guaranteeing safe passage, successfully delivered Red Cross relief supplies to American and Allied prisoners of war in 1945. On its return journey, the Awa Maru was loaded with rubber, tons of crude oil and oil-drilling machinery, tin ingots and tungsten and was carrying about 2,000 Japanese officials, technicians and soldiers, in violation of the safe passage agreement.[7]
2546  The clarification that, on their return journey, such ships may transport only medical personnel or supplies was not retained by the Stockholm Conference. The draft article adopted by the Conference required instead that the adverse Power approve the route and particulars of the planned medical transport.[8] The delegates at the 1949 Diplomatic Conference stressed the need to protect ships transporting exclusively medical equipment, and attempted to clarify the conditions under which such transport was protected by the Second Convention.[9]
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C. Paragraph 1: Protection of ships used for the conveyance of medical equipment
1. Ships authorized to transport medical equipment for the treatment of the wounded and sick or for the prevention of disease
2547  Neither Article 38 nor the international law of the sea provides a generally accepted definition of the term ‘ship’.[10] There seems to be no agreed minimum tonnage for a vessel to be recognized as a ship. Any ship, no matter how small, which is able to transport equipment intended for the treatment of the wounded and sick or for the prevention of disease can therefore be covered by Article 38. Following the same reasoning as for hospital ships in the commentary on Article 22, the term ‘ship’ is broad enough to encompass both surface and subsurface vessels. In practice, however, it would be difficult to ensure the protection of submarine vessels transporting medical equipment, and impossible to preserve the right to board such vessels, if Article 38 were to cover them.[11]
2548  Hence, any surface ship chartered by a Party to the conflict to transport equipment exclusively intended for the treatment of the wounded and sick or for the prevention of disease can fall within the scope of Article 38.
2549  Article 38 uses the words ‘ships chartered for that purpose’. The preparatory work makes it clear that States intended to adopt a provision that would guarantee the protection of transport of medical equipment intended for the treatment of the wounded and sick.[12] The words ‘chartered for that purpose’ imply that the normal use of any vessel could change, and that a vessel could be employed for another purpose, such as the transport of medical supplies. It would be too restrictive to interpret the word ‘chartered’ as implying that a Party to the conflict cannot use any of its own ships but would need to charter other types of vessels to transport medical equipment.[13] This would mean that only properly chartered vessels would be protected under Article 38. The object and purpose of the article, as well as its negotiating history, do not support such a restrictive interpretation.
2550  These ships transport equipment exclusively intended for the treatment of wounded and sick members of the armed forces or for the prevention of disease. The term ‘medical equipment’ used in the first draft was replaced during the 1949 Diplomatic Conference by ‘equipment exclusively intended for the treatment of wounded and sick members of the armed forces or for the prevention of disease’.[14] The new wording adopted in the final version of Article 38 is broad; it encompasses any equipment used for the treatment of the wounded and sick, including a wide range of supplies, such as medical instruments, as well as medicine. Importantly, these ships can also transport any equipment intended for the prevention of disease, whether it benefits able-bodied military personnel or civilians.[15] The prevention of disease is one of the activities carried out by medical personnel, as defined in Article 24 of the First Convention.[16]
2551  Lastly, historical precedents, such as the sinking of the Awa Maru, and the need to prevent abuse prompted the drafters to include the word ‘exclusively’ in Article 38. These ships must exclusively transport equipment intended for the treatment of wounded and sick members of armed forces or for the prevention of disease. Arguably, a vessel used for this purpose may not transport personnel over and above the number normally required to operate it. Similarly, such vessels may not transport the wounded and sick. Nor may they be used to transport, at any time, any other supplies or personnel, whether military or civilian.
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2. Notification of the particulars regarding their voyage and acceptance by the other Party
2552  To be granted protection under Article 38, a belligerent must notify the other Party of the particulars of the voyage in question. In the absence of such notification and its acceptance, the vessel is not protected under Article 38.
2553  The purpose of notification is to inform the other Parties to the conflict, in a reliable, precise and timely manner, of the deployment of ships chartered for the transport of medical equipment. It enables the adversary to accept the particulars of such transports and to advise its armed forces accordingly, so as to ensure the protection of the ships.[17] Traditionally, a notification was a formal communication, such as a diplomatic note.[18] It certainly must originate from a competent authority but need not be limited to the traditional and formal manner of a diplomatic note. Article 38, as well as Article 22, which uses the same term, does not define the form that the notification may take.[19] Similarly, notification can take place directly between the Parties to the conflict or through a Protecting Power or the ICRC.
2554  The text of Article 38 states that the adverse Power must be notified of and approve ‘the particulars regarding the [ship’s] voyage’. Similar phrases, such as ‘routes and duties’ or ‘conditions of voyage’, were used during the negotiations before the final text was adopted.[20] Article 38 does not list the exact particulars to be notified, but they should include the date of departure and the ship’s course, speed and destination.[21] Other details may also be made known, such as the vessel’s registered gross tonnage, its length from stem to stern, and the number of masts and funnels,[22] together with the call sign or other recognized means of identification, the guarded radio frequencies and the languages used.[23] The drafters chose not to define these particulars as strictly as in Article 22, but a detailed notification, including all available information that will help to identify the type of vessel used,[24] can only strengthen the protection of such vessels.
2555  The preparatory work makes it clear that the adverse Power ‘may in no case regard the medical character of the equipment transported as a reason for refusing its approval. Only the conditions of the voyage, e.g. route, destination, etc., may be contested.’[25] The adverse Party cannot challenge the right to organize the shipment of equipment intended for the treatment of the wounded and sick and for the prevention of disease. However, without its approval of the particulars of the voyage, vessels carrying such equipment will not be protected under Article 38.
2556  Article 38 does not specify what form that approval should take. Given the nature of the activity, the adverse Party should not unduly delay its response and should communicate it clearly to the State wishing to rely on Article 38. The object and purpose of Article 38 suggests that negotiations between the Parties should continue until the particulars of the voyage can be agreed upon.[26]
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3. Right to board the ship but not to capture it or to seize its equipment
2557  Article 38 provides that the adverse Power has the right to board the ship, but not to capture it or to seize the equipment carried. The object and purpose of Article 38 is to create a new category of protected vessels that are entitled to protection from attack, seizure or capture by the adverse Power. The article bears similarities to the concept of ‘cartel ship’, which is granted safe conduct by agreement between the belligerent Parties for the purpose of performing a specific function, in this case the conveyance of medical equipment.[27]
2558  The prohibition on attacking such vessels is not spelt out in Article 38, but is a necessary corollary of the protection granted to vessels transporting equipment intended exclusively for the treatment of the wounded and sick or the prevention of disease. During the time that they transport medical equipment, these vessels cannot be captured by an adverse Party and their equipment cannot be seized as legitimate booty of war. This represents a limitation of the traditionally recognized right to take and use freely any movable public property of the enemy as booty of war.[28]
2559  As mentioned in the commentary on Article 22, the prohibition of capture in the naval context applies to all acts of asserting control over a vessel to the exclusion of the flag State.[29] Usually, the capture of a vessel can be carried out by deploying a boarding team that will then exercise control over the ship and its crew.
2560  The right to board the ship remains open to the adverse Party. It can conduct searches on board and verify that the vessel only transports equipment intended for the treatment of the wounded and sick or for the prevention of disease. These searches should not, however, unduly delay the journey of such vessels, as this will hamper the delivery of essential goods or equipment for the care of the wounded and sick. Pursuant to Article 38(2), the right to verify the nature of the equipment carried is also granted to neutral observers, who can be placed on board such vessels through an agreement between the Parties.
2561  Article 38 does not state whether or under what conditions protected vessels might lose that protection. In accordance with the logic underpinning the regime of protection of medical personnel and transports under the Geneva Conventions, it is submitted that the privileges conferred on vessels under Article 38 are conditional and can be lost if they engage in ‘acts harmful to the enemy’.[30] If this occurs, the adverse Party is no longer bound to confer protection. Similarly, should the vessel contain other items or goods not intended for the treatment of the wounded and sick or for the prevention of disease, the vessel could lose its protection under Article 38 and be open to capture or the seizure of its cargo.[31]
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D. Paragraph 2: Neutral observers placed on board to verify the equipment carried
2562  Parties to the conflict may, by mutual agreement, allow neutral observers to be placed on board vessels transporting equipment intended exclusively for the treatment of the wounded and sick or for the prevention of disease.[32] An agreement under paragraph 2 is a ‘special agreement’ in the sense of Article 6 and therefore subject to the conditions laid down in that article.[33] Such an agreement could also cover other aspects not regulated by Article 38, such as the status of the personnel on board these vessels,[34] or the use of protective emblems and signals.[35] As to the status of the personnel on board, it can be argued that they are protected during the time they work on vessels transporting medical supplies under Article 38, inasmuch as such vessels are granted protection.
2563  Paragraph 2 contains no obligation and is recommendatory in character. It serves the very important purpose, however, of establishing mutual trust between the Parties and preventing abuse of the agreement reached between them or accusations of improper use of the protected vessels.
2564  The observers’ nationality must be that of a neutral State, i.e. one that is not a Party to the conflict. In order to avoid any suspicion of partiality, such observers should not be nationals of a State which, while not a Party to the conflict, is formally or informally allied with a Party to the conflict whose vessels they are to be placed on.[36] Such observers could also be representatives of a Protecting Power or delegates of the ICRC.[37]
2565  Once on board, the observers’ task is to verify that the equipment carried is exclusively intended for the treatment of the wounded and sick or for the prevention of disease. Paragraph 2 provides that, to accomplish this task, the neutral observers must be given ‘free access to the equipment’. All sections of the vessel and all equipment carried must therefore be available for inspection. The phrase ‘medical equipment’ was initially used during the 1949 Diplomatic Conference, but the word ‘medical’ was deleted in order to ‘enable observers to inspect all the equipment carried and so prevent smuggling’.[38] Objective inspection by observers should enable any possible breach of the agreement between the Parties to be proven or the captain of a vessel to be cleared of any unfounded accusations.[39]

1 - The scope of Article 38 is not affected by Article 23 of Additional Protocol I, which regulates medical ships and craft other than those referred to in Article 38.
2 - It is reported that, during the Falkland/Malvinas Islands conflict (1982), the Parties to the conflict did not rely on Article 38. The United Kingdom, for example, used hospital ships to transport medical equipment for the care of the wounded and sick. See Gabriella Venturini, ‘Jus in bello nel conflitto anglo-argentino’, in Natalino Ronzitti (ed.), La questione delle Falkland-Malvinas nel diritto internazionale, A. Giuffrè, Milan, 1984, pp. 187–268, at 240. With regard to this conflict, see the commentary on Article 17, para. 1613.
3 - See Naval Expert Report of 1937, Part III, pp. 44–47.
4 - A modern definition of contraband is ‘goods which are ultimately destined for territory under the control of an enemy Belligerent Party and which are susceptible for use in international armed conflict’; see Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 1(n). See also the regime of contraband detailed in Articles 22–44 of the London Declaration concerning the Laws of Naval War (1909). According to its Article 28, raw cotton and rubber, inter alia, may not be declared contraband of war.
5 - See Naval Expert Report of 1937, Part III, p. 45. The Commission of Naval Experts decided not to include this suggestion in the draft revised maritime convention, but referred it to the Conference of Government Experts, which did not take place until 1947; see ibid. pp. 46–47.
6 - See Minutes of the Conference of Government Experts of 1947, pp. 391–392. This new article became Article 31 of the draft sick and wounded convention submitted to the 1948 Stockholm Conference. It read: Hospital ships, and all ships chartered to this end shall be authorized to transport medical equipment, provided their routes and tasks have been notified to the adverse Power. The latter, duly advised, shall keep the right to board, but not to capture them. In agreement with the belligerents, neutral observers may be placed on board these ships to verify the medical equipment carried. On their return journey, hospital ships, having neither sick nor wounded on board, may transport only medical personnel or supplies. Draft Conventions submitted to the 1948 Stockholm Conference, p. 46.
7 - See Roger Dingman, Ghost of War: The Sinking of the Awa Maru and Japanese-American Relations, 1945–1995, Naval Institute Press, Annapolis, 1997, p. 101. Word of the protected status and the projected course of the Awa Maru had been broadcast to US submarines, but the commander of the Queenfish submarine did not receive the information and mistakenly believed that the Awa Maru was a Japanese destroyer. The US government acknowledged responsibility for the wrongful sinking of the Awa Maru and the commander was court-martialled. The court found the violation of the safe passage agreement by Japan to be irrelevant, as the commander of the submarine had no prior knowledge of this fact. He was found guilty of negligence.
8 - See Draft Conventions adopted by the 1948 Stockholm Conference, Article 35, p. 43.
9 - See, in particular, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 87–89, 140–141 and 204–205, and Vol. II-B, pp. 254–255.
10 - See the in-depth discussion on this topic in the commentary on Article 22, section C.1.a.
11 - See ibid. para. 1941.
12 - See, in particular, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 254–255, where the representative of the USSR stated that ‘the transport of medical equipment intended exclusively for the care of wounded and sick should be guaranteed in all circumstances’. See also Vol. II-A, Article 35, p. 204: ‘The Geneva Convention ensures the protection of transports of medical equipment. The present Article introduces similar provisions into the Maritime Convention. Transport ships must be employed for this purpose, and may only transport material intended for the treatment of the wounded and sick or for the prevention of disease.’
13 - The ordinary meaning of the word ‘chartered’ is ‘to hire, rent or lease for a temporary use’. See Black’s Law Dictionary with Pronunciations, 6th edition, 1990, p. 236: ‘Chartered ship. A ship hired or freighted.’ See also Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 240. The concept of chartering ships has been developed since 1949 by the maritime industry on the basis of contractual relations. Charter parties are contracts for the use of a vessel; they can take different forms, i.e. voyage charter, time charter, bareboat charter or demise charter. For an introduction to this area of maritime law, see United Nations Conference on Trade and Development (UNCTAD) Secretariat, ‘Charter parties: A comparative analysis’, UN Doc. TD/B/C.4/ISL/55, 27 June 1990.
14 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 140–141.
15 - Such equipment could include vaccines, but also, for example, chlorine tablets, disinfectants or bed nets to prevent the spread of malaria. The wording used in Article 38 – ‘any equipment intended for the prevention of disease’ – shows that this equipment could benefit not only able-bodied military personnel but also civilians, as a disease can spread from civilians to soldiers, and vice versa.
16 - Article 24 of the First Convention defines the category of medical personnel protected under the Convention by reference to the type of activities they perform, i.e. the search for, collection, transport or treatment of the wounded or sick and the prevention of disease. Disease-prevention activities include hygienic and prophylactic measures, the administration of vaccines and the disinfection of barracks. See the commentary on Article 24 of the First Convention, para. 3.
17 - For more details on the concept of notification, see the commentary on Article 22, section C.4.
18 - See Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim’s International Law. Volume I: Peace, 9th edition, Longmans, London, 1992, p. 1193.
19 - See the commentary on Article 22, para. 2002.
20 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 167–168 and 254–255, and Vol. II-A, pp. 140–141 and 204–205.
21 - See, in particular, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 254, and Vol. II-A, p. 205. It is accepted that speed may vary significantly during the journey.
22 - Similarly to the provision for military hospital ships in Article 22(2); see the commentary on Article 22, section D.2.
23 - See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Explanation, para. 169.6, and the commentary on Article 22 of the Second Convention, section D.2. The recognized means of identification refer to those set out in Annex I of Additional Protocol I, and they could also include the vessel’s acoustic signature.
24 - Article 43, the main provision in the Second Convention addressing the identification and marking of vessels, does not refer to vessels covered by Article 38. Article 43 could, however, provide guidance for the identification of vessels, which Parties could usefully include in their notifications. The distinctive emblems and signals prescribed for hospital ships under Article 43 could be used for the marking and self-identification of ships under Article 38. See Philippe Eberlin, ‘Identification of hospital ships and ships protected by the Geneva Conventions of 12 August 1949’, International Review of the Red Cross, Vol. 22, No. 231, November–December 1982, pp. 315–328, at 320–321, and ICRC, Manual for the Use of Technical Means of Identification by Hospital Ships, Coastal Rescue Craft, Other Protected Craft and Medical Aircraft, ICRC, Geneva, 1990, p. 29.
25 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 205.
26 - The USSR attempted to have the requirement that the other Party approve the particulars of the voyage removed from the text of Article 38. The amendment was rejected by 16 votes to 11, with 13 abstentions. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 254–255.
27 - See the reaffirmation of the definition of ‘cartel aircraft’ in Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 1(g), and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 47(c) and 136(c).
28 - There is a recognized right in international armed conflict to capture as war booty any movable property belonging to the enemy State. See Customary International Humanitarian Law (2005), Rule 49: ‘The parties to the conflict may seize military equipment belonging to an adverse party as war booty.’ Booty of war covers all types of enemy movable public property that can be used for military operations, such as arms and munitions, as well as money and food supplies.
29 - See Robert W. Tucker, The Law of War and Neutrality at Sea, US Government Printing Office, Washington, D.C., 1957, p. 344, fn. 35; Manual on International Law Applicable to Air and Missile Warfare (2009); and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 138.
30 - For more details on the concept of ‘acts harmful to the enemy’ and its application, see the commentary on Article 36, section C.2.e, as well as on Article 34.
31 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para 137.
32 - A similar provision exists for hospital ships; see the commentary on Article 31(4).
33 - For further details, see the commentary on Article 6.
34 - In contrast, the personnel and crews of hospital ships are protected under Article 36.
35 - Article 23 of Additional Protocol I partially filled these gaps. See Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, paras 882–964. Under that article, medical ships, other than those covered by Article 22 of Additional Protocol I and Article 38 of this Convention, must be respected and protected; they can use the distinctive emblem, and their personnel are subject to the protection granted under Article 37. In contrast to Article 38, however, Article 23 of Additional Protocol I does not prevent these vessels from being seized by the other Party to the conflict.
36 - See the commentary on Article 31, section G.
37 - Ibid. The commentary on Article 31(4) notes that during the 1982 Falkland/Malvinas Islands conflict, an ICRC delegate performed this task on board hospital ships. In general, the ICRC will only accept to carry out such a mission on the basis of an agreement with all the Parties to the conflict concerned, and provided that doing so is in conformity with its standard rules regarding the confidentiality of its work, including any report it may decide to share with those Parties. See the commentary on Article 31, paras 2319–2320.
38 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 141.
39 - For more details, see the commentary on Article 31, para. 2322.