Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 31 : Right of control and search of hospital ships and coastal rescue craft
Text of the provision*
(1) The Parties to the conflict shall have the right to control and search the vessels mentioned in Articles 22, 24, 25 and 27. They can refuse assistance from these vessels, order them off, make them take a certain course, control the use of their wireless and other means of communication, and even detain them for a period not exceeding seven days from the time of interception, if the gravity of the circumstances so requires.
(2) They may put a commissioner temporarily on board whose sole task shall be to see that orders given in virtue of the provisions of the preceding paragraph are carried out.
(3) As far as possible, the Parties to the conflict shall enter in the log of the hospital ship, in a language he can understand, the orders they have given the captain of the vessel.
(4) Parties to the conflict may, either unilaterally or by particular agreements, put on board their ships neutral observers who shall verify the strict observation of the provisions contained in the present Convention.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2276  Article 31 entitles the Parties to the conflict to control and search all categories of hospital ships and coastal rescue craft to verify whether their employment conforms to the provisions of Articles 30 and 34 and to the other provisions of the Convention. The right to control and search these vessels is unconditional; there is no requirement of reasonable grounds for suspicion that they are not innocently employed in their normal role to warrant search and control. It is a necessary corollary to the protection granted to those vessels, without which States would have been unwilling to grant and gradually extend their special status. Although Article 31 in many of its parts reflects corresponding rules from 1868, 1899 and 1907, many of the uncertainties as to the proper interpretation and implementation of these rules have been removed by more specific provisions.
2277  The practical significance of Article 31 in contemporary armed conflicts at sea may no longer be as great as it was in the 20th century and earlier. This is because Article 31 aims to prevent misuse and to safeguard the interests of military security predominantly through control measures that must be taken by individuals physically present on board hospital ships and coastal rescue craft. Today, the innocent employment of these vessels can often be ascertained by other means, at least to some extent, in particular by satellites and other means of reconnaissance. Still, the physical presence of those controlling hospital ships and coastal rescue craft may be equally necessary to ascertain other elements. For States that do not have satellites and other means of reconnaissance at their disposal, such physical presence may be the only way to ascertain these elements.
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B. Historical background
2278  Article 31 is mostly identical to Article 13, §graph 7, of the 1868 Additional Articles relating to the Condition of the Wounded in War;[1] to Article 4, paragraphs 5 and 6, of the 1899 Hague Convention (III);[2] and to Article 4, paragraphs 5 and 6 of the 1907 Hague Convention (X).[3] However, there is one important difference. While Article 13 of the Additional Articles, like Article 31, provided that the belligerents ‘will be at liberty to refuse their assistance’, Article 4 of the 1899 Hague Convention (III) and the 1907 Hague Convention (X), in their non-authentic English wording, provided that the belligerents ‘can refuse to help them’. Obviously, that difference was caused by a translation error. The authentic French version of Article 4 of both the 1899 and 1907 Conventions read: ‘ils pourront refuser leur concours’. Accordingly, the English text should have read: ‘they may refuse their help/assistance’. During the 1949 Diplomatic Conference, the Drafting Committee implicitly recognized this understanding of the text. In considering the French and English versions of draft article 26(1) (which mirrored the text of paragraph 5 of Article 4), the Committee noted that the words ‘refuser leur concours’ had been ‘très mal interprétés’ (very poorly construed), and accordingly proposed that the French text be amended to refer to ‘le concours de ces navires’ (assistance from these ships).[4]
2279  In 1899, the right to control and search hospital ships was considered the ‘necessary counterpart of their immunity’. It was emphasized that search is not a violation of the protected status of hospital ships but ‘merely a condition of the more favorable status granted them’.[5] The detention of a hospital ship was to be permissible ‘in particularly serious circumstances’ only as, for instance, ‘when necessary to preserve absolute secrecy of operations’.[6] In 1907, the substance of Article 4 of the 1899 Hague Convention (III) was accepted, with only minor linguistic changes to paragraph 5 of Article 4 of the 1907 Hague Convention (X).[7]
2280  The 1937 Commission of Naval Experts, in its report to the 16th International Conference of the Red Cross (London, 1938), seemingly worked on the basis of a version of the 1907 Hague Convention (X) that differed considerably from the text adopted by the 1907 Second Hague Peace Conference.[8] In the first sentence of paragraph 5 of Article 4, the right of belligerents ‘to control and search them’ as adopted in 1907 had been replaced by ‘shall be entitled to supervise and search such vessels’. The second part of the original first sentence (‘they can refuse to help them [which should have read: ‘they can refuse their assistance’], order them off, make them take a certain course, and put a commissioner on board; they can even detain them, if important circumstances require it’) became the second sentence, which read: ‘They may refuse their assistance, order them to withdraw, give them sailing orders and place a commissioner on board, or even detain them should the gravity of the circumstances warrant this course.’ The authentic French version of paragraph 5 of Article 4 of the 1907 Hague Convention (X) read as follows: ‘Les belligérants auront sur eux le droit de contrôle et de visite; ils pourront refuser leur concours, leur enjoindre de s’éloigner, leur imposer une direction déterminée et mettre à bord un commissaire, même les détenir, si la gravité des circonstances l’exigeait.’ (The belligerents shall have the right of control and search; they can refuse their assistance, order [these vessels] off, make them take a certain course, place a commissioner on board or even detain them, if the gravity of the circumstances so requires.) On that basis, the Commission of Experts proposed draft article 12, which was mostly identical to what the experts believed Article 4 of the 1907 Hague Convention (X) provided, except that the words ‘place a commissioner on board or even detain them’ were replaced by the words ‘and temporarily place a commissioner on board or even provisionally detain them’. The Commission also considered a proposal on placing a ‘non-belligerent commissioner’ on board hospital ships to ‘ensure that the Convention was strictly observed’.[9] Eventually, the Commission decided not to amend the draft article but to provide a recommendation on ‘setting up some supervisory agency, perhaps through the medium of ad hoc agreements’.[10]
2281  Article 12 of the 1937 draft found its way into the Report of the Preliminary Conference of National Societies of 1946. The Commission recommended that the 1937 draft be amended by a provision on ‘placing neutral observers on board hospital ships’.[11] The 1947 Conference of Government Experts, in its draft article 13, accepted the proposal and agreed to insert a third paragraph.[12] It was emphasized that the neutral observers ‘would in no case have power to take control or to issue orders to the captain, who must keep his full liberty of action’.[13] With regard to the exceptional right of detention, the time limit of seven days was considered necessary in order to ‘avoid the risk of disguised capture of hospital-ships’.[14] Draft article 13 eventually became draft article 26, which served as a basis for the deliberations at the 1949 Diplomatic Conference.[15]
2282  At the 1949 Diplomatic Conference, the Dutch delegation proposed inserting into the first paragraph of draft article 26 the words ‘control the use of their wireless’ and to define the duties of the commissioner under that paragraph by adding ‘whose sole duty shall be to ensure the carrying out of such orders’.[16] The British delegation proposed replacing the time limit for detention by the word ‘temporarily’. The Dutch delegate responded that the period of seven days had been chosen in 1947 ‘for practical reasons; it conformed roughly to the maximum period … during which medical treatment could be interrupted’.[17] While the Dutch proposals were adopted unanimously, the British proposal was rejected. The Drafting Committee inserted into paragraph 1 the words ‘and other means of communication’.
2283  In its report to the 1949 Diplomatic Conference, Committee I explained that:
The protection afforded to hospital ships and to lifeboats does not exclude the exercise of certain rights by the adverse Party. For this reason, Committee I stipulated that over and above the measures that a Party is entitled to take in virtue of the Hague Convention of 1907, it may control the use of the wireless installations on such vessels, as well as that of other means of communication, i.e., visual signals, sound signals or any other which might serve for communicating with other ships or the land.
It was also stipulated that neutral observers could be taken on board whose duty it would be to note the strict observance of the present Convention.
On the other hand, the scope of certain provisions was limited. Thus the commissioner whom the adverse Party may place on board a hospital ship shall have the exclusive duty of ensuring the execution of the orders given in virtue of this Article.[18]
2284  Draft article 26, as amended, was eventually adopted. Later in the Diplomatic Conference its scope of application was extended to coastal rescue craft.
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C. General considerations
2285  Hospital ships and coastal rescue craft must strictly observe the conditions for their protection. However, States have never been satisfied merely with agreeing on provisions such as those laid down in Article 30. One of the reasons for their hesitation to gradually extend the protection of such vessels, in particular coastal rescue craft, has been a deep-rooted suspicion that they may be misused for military purposes. Unfortunately, the practice of the Russo-Japanese War and of the two world wars confirmed such suspicions.[19] Accordingly, the rights of control and search under Article 31, including the possibility of placing neutral observers on board, are to be considered a necessary corollary of the special status granted to such vessels.[20] These rights are unconditional and they apply to all the Parties to the conflict. There need not be reasonable grounds for suspicion that the vessel in question is not employed in its innocent role. Whenever a Party to the conflict wishes to exercise these rights, it may not be prevented from doing so. Nor is their exercise subject to reciprocity. It applies to all Parties to the conflict, including those that have no hospital ships or coastal rescue craft. The rights provided for in Article 31 are unique insofar as they have no parallel in the law of land warfare.
2286  The rights of Article 31 can be exercised both vis-à-vis all three categories of hospital ships protected under the Second Convention (Articles 22, 24 and 25) and vis-à-vis coastal rescue craft covered by Article 27. In practice, it has been doubted whether the measures set out in Article 31(2)–(4) are of any practical value for rescue craft.[21]
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D. Paragraph 1: Belligerent rights vis-à-vis hospital ships and coastal rescue craft
2287  The primary aim of paragraph 1 is to enable the Parties to the conflict to verify that hospital ships and coastal rescue craft are indeed exclusively employed in their humanitarian role, as specified in Articles 30 and 34. Furthermore, they must be able to take practical precautions on occasion and, since hospital ships can move about freely because of their duties and their specific protection, the Parties must, if necessary, be able to ensure that no secret information regarding military operations will be divulged by the crew.
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1. Control and search
2288  The right to control and search hospital ships and coastal rescue craft is unconditional and may be exercised by all Parties to the conflict. It is dependent neither upon reasonable grounds for suspicion that the respective vessel is not employed in its humanitarian role nor upon reciprocity, i.e. the right applies even though the other Party to the conflict may not exercise it.
2289  Search and control will regularly be exercised at sea. For this purpose, the respective vessel must be summoned to stop or to slow down in order to receive the inspection team, from either a boat or a helicopter. If this is impossible at the place of encounter because of bad sea or weather conditions, the vessel may be ordered to a sea area where the search can be undertaken safely. The inspection team may conduct a thorough search. It is not limited to verifying whether the vessel is in compliance with the provisions of Article 30 or whether it has committed an ‘act harmful to the enemy’ in the sense of Article 34. It may also examine its equipment and supplies, verify lists of patients, check the identity of the crew, etc. Moreover, the search may serve to determine the situation of the wounded on board, in accordance with Articles 14 and 16.. Hence, the search may be conducted not only to verify whether the vessel has been employed in its innocent role, but also to ascertain whether the wounded, sick and shipwrecked are in a fit state to be moved to the warship that wishes to demand their surrender in accordance with Article 14.
2290  Although the exercise of the right to control and search hospital ships and coastal rescue craft is unconditional, it is not unlimited. The Parties to the conflict controlling and searching those vessels continue to be bound by the fundamental obligation under Article 12 to respect and protect the wounded, sick and shipwrecked ‘in all circumstances’. Accordingly, control and search must be exercised with a constant view to the needs of the protected persons on board. Any measure that would aggravate their condition or that would delay or otherwise interfere with their effective and timely treatment may, depending on the circumstances, be in violation of Article 12, even if it may be considered necessary for verification purposes.
2291  Hospital ships and coastal rescue craft are obliged to comply with an order to submit to control and search.[22] In this context it is important to recall that, prior to the 1949 Diplomatic Conference, it was unclear whether hospital ships would lose their protection if they travelled under convoy of enemy warships.[23] Travelling under convoy of a warship could legitimately be regarded as an intention not to submit to control and search by an enemy warship under paragraph 1,[24] provided the warship’s obvious task is to prevent the exercise of that right. Hence, a hospital ship may lose its specific protection under the Convention if it is travelling under such convoy. Minesweepers escorting a hospital ship in order to ensure a safe passage are not considered to prevent the exercise of the right to control and search. The opposing Party may, of course, still communicate its intent to exercise its rights on the basis of Article 31.
2292  It has been rightly pointed out, however, that in practice it is impossible to determine whether a hospital ship is merely accompanying an enemy warship or whether it is sailing under convoy.[25] Therefore, it will lose its protection only if it clearly resists a navigationally reasonable order to submit to control and search.
2293  The Parties to the conflict are entitled to control the use of the ‘wireless and other means of communication’.[26] This right is not limited to radio-telegraphic or satellite communications equipment (such as INMARSAT), but applies to any means of communication, including visual and sound signals. Today, every computer or other electronic device may be considered a means of communication, if connected to an open or classified network. The express mention of the right to control the wireless and other means of communication in the second sentence is redundant, insofar as the right to search hospital ships and coastal rescue craft certainly includes the right to establish whether the wireless or other means of communication have been used for military purposes or for an ‘act harmful to the enemy’. Still, it was considered necessary because the presence of a wireless system on board hospital ships has, since its recognition in Article 8, paragraph 2, of the 1907 Hague Convention (X), been looked upon with a considerable degree of suspicion[27] and because, during the world wars, hospital ships had misused their means of communication for military purposes.[28]
2294  Apart from that, it needs to be stressed that the Parties to the conflict are not limited to verifying the lawful uses of means of communication, in that they may also ‘control’ their use. To ‘control’ means to ‘have control or command of’ or to ‘regulate’ something.[29] Accordingly, the Parties to the conflict may also limit or prohibit the use of all means of communication, if absolutely necessary for reasons of military security.[30] However, such measures will be impermissible, if they render a further performance of the vessel’s humanitarian functions impossible. In this context, it should not be forgotten that hospital ships and coastal rescue craft have to communicate with the forces they are accompanying, or with their authorities based on land, in order to carry out their missions. Moreover, means of communication are necessary to ensure the safety of their voyage. Therefore, depriving them of those means will be permissible only in exceptional cases. For instance, the means of communication on board a hospital ship or coastal rescue craft disclosing the position of the intercepting warship may be removed, if this is the only way to prevent an attack on the warship and if the intercepted vessel is sufficiently close to a port that it can reach it without using its means of communication.
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2. Refusal of assistance
2295  At first glance, the right to refuse assistance from hospital ships and coastal rescue craft seems to be unlimited. It must be borne in mind, however, that the obligation under Article 12(1) to respect and protect the wounded, sick and shipwrecked is not limited to persons belonging to the enemy. Assistance may therefore not be refused arbitrarily and in defiance of the needs of victims of the armed conflict at sea.[31] It follows from the context and object of Article 31 that the Parties to the conflict may refuse assistance only if they are in fact otherwise able to comply with their obligation to protect and respect the wounded, sick and shipwrecked.
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3. Ordering off (diversions)
2296  In a similar vein, the right to order hospital ships and coastal rescue craft off or to make them take a certain course, i.e. to divert them, may not be exercised arbitrarily. In accordance with Articles 22, 24 and 25, hospital ships must be respected and protected. The same holds true for coastal rescue craft, although, under Article 27, the obligation to respect and protect them is subject to operational requirements. While the right may, e.g., be exercised in the immediate vicinity of naval operations, the obligation of respect prohibits belligerents from unduly interfering with the performance of these vessels’ humanitarian functions. Under paragraph 1, a diversion is lawful only if it is necessary, if a search cannot be exercised in the sea area in which these vessels have been encountered, and if it does not result in a violation of Article 12. For instance, a Party to the conflict may not divert a hospital ship or a coastal rescue craft that is about to collect shipwrecked persons.[32]
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4. Detention
2297  In the context of paragraph 1, detention is a measure by which hospital ships and coastal rescue craft are prevented from proceeding.[33] This means that they can be intercepted at sea and ordered to remain at the location of interception, or they may be diverted to a specified sea area or port which they are prohibited from leaving, if and insofar as the conditions of paragraph 1 are met. Detention must be distinguished from capture and from control and search. Although a detained vessel is prevented from proceeding, this does not necessarily mean that the intercepting Party to the conflict has taken control of the detained vessel or that the vessel has been boarded. If, however, detention is enforced by a boarding team sent on board the detained vessel, which takes control of the vessel, Article 16 applies. This means that the wounded, sick, and shipwrecked on board the detained vessels must be treated as prisoners of war.
2298  It follows from the wording – ‘if the gravity of the circumstances so requires’ – that the right to temporarily detain these vessels (not the other rights under paragraph 1) is highly exceptional. Already in 1899, detention was considered permissible ‘in particularly serious circumstances’ only, as, for instance, ‘when necessary to preserve absolute secrecy of operations’.[34] In view of the obligation to respect and protect these vessels, other reasons justifying detention will be rather rare. Under the conditions of contemporary naval operations, the secrecy of an operation will normally not be compromised by a hospital ship or coastal rescue craft that is allowed to proceed, because the information can easily be obtained by other means, such as satellites or long-range reconnaissance aircraft, whether manned or unmanned.[35] Hence, the practical relevance of the right of detention is rather limited.
2299  The maximum duration of detention may under no circumstances exceed seven days from the time of interception, i.e. the point at which the vessel has been ordered either to discontinue its voyage or to make for a sea area or port where it is to remain. Article 4, paragraph 5, of the 1907 Hague Convention (X) does not specify the duration of detention. This led, during the Second World War, ‘to a hospital ship being immobilized for eight months’,[36] i.e. to a de facto capture of the ship. The object of limiting the duration of detention is, therefore, to prevent the capture of hospital ships and coastal rescue craft under the guise of detention for reasons of military security. The maximum period of seven days was chosen because, according to the Dutch delegate at the 1949 Diplomatic Conference, ‘it conformed roughly to the maximum period … during which medical treatment could be interrupted’.[37] Seemingly, the delegates at the 1949 Diplomatic Conference believed that the wounded, sick and shipwrecked could stay at sea for that period without an urgent necessity of treating them on land.
2300  However, such a reference to a time span, applied equally to all the wounded, sick and shipwrecked irrespective of the actual circumstances, is untenable today. Rather, the right of detention should be limited to a minimum and be subject not only to the ‘gravity of the circumstances’ and an abstractly determined maximum period, but also to the fundamental obligation to respect and protect the wounded, sick and shipwrecked on board the detained vessels. Hence, the question how the right of detention may be exercised depends on the actual medical condition and needs of the protected persons. First, in view of the obligations under Article 12, hospital ships and coastal rescue craft may not be detained at sea if effective treatment of the wounded, sick and shipwrecked is impossible because of the weather and sea conditions or because the equipment on board is not sufficient to treat them for the entire period of detention. In that case, the vessels must either be diverted to a sea area where they can be detained safely, or they must be allowed to proceed to a port with the medical facilities necessary for effective treatment. Second, hospital ships and coastal rescue craft may not be detained, or may be detained for a short time only, if adequate treatment at sea or in a port is not possible. Third, coastal rescue craft may be detained only if the wounded, sick and shipwrecked can be treated adequately. If the intercepting warship does not have a properly equipped sickbay, and if adequate treatment in port is impossible (e.g. because of distance), the coastal rescue craft must be allowed to proceed.
2301  Lastly, reference must be made to Article 43(5) of the Second Convention: ‘Hospital ships which, in accordance with Article 31, are provisionally detained by the enemy, must haul down the flag of the Party to the conflict in whose service they are or whose direction they have accepted.’[38]
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E. Paragraph 2: Commissioner
2302  Paragraph 5 of Article 4 of the 1899 Hague Convention (III) and the 1907 Hague Convention (X) defines neither the tasks of the commissioner nor the duration of his or her presence on board hospital ships. Both ambiguities have been resolved by paragraph 2 of the present article. In 1899 there was already agreement that the commissioner is ‘to ensure complete execution of the orders given’.[39]
2303  The use of the term ‘commissioner’ indicates that the person in question need not be a member of the regular armed forces. A commissioner is ‘a person appointed to a role on or by a commission’ or ‘a representative of the supreme authority in an area’.[40] It therefore suffices if the person has been appointed by the respective Party to the conflict to perform the tasks under paragraph 2.
2304  In view of the complexity of modern navigational systems and means of communication one commissioner may not suffice. Hence, a team of commissioners will be admissible, if this ensures the execution of the orders given. Alternatively, if there is only one commissioner, this person may be accompanied by several assistants, if this is necessary to achieve the task in hand.
2305  The right to temporarily place a commissioner on board a hospital ship or coastal rescue craft may be exercised only if a Party to the conflict has given orders ‘in virtue of’ paragraph 1. Neither the other Party to the conflict nor the captain/master of the hospital ship or coastal rescue craft may deny the exercise of that right.
2306  The ‘sole task’ of the commissioner is ‘to see that orders given in virtue of’ paragraph 1 are carried out. It follows from the context of paragraph 1 and from the equally authentic French text (‘assurer’ meaning ‘ensure’) that the verb ‘to see’ is to be understood in the sense of ‘to ensure’. If the orders remain unheeded, the commissioner is not entitled to enforce them; this right is reserved to the commander of the warship to which the commissioner will and must be able to report.
2307  The term ‘sole’ indicates that a commissioner may not take measures in excess of what is necessary to ensure compliance or that would be contrary to navigational requirements. In that regard, the master/captain of the respective vessel retains full responsibility and authority.
2308  A commissioner may be placed on board a hospital ship or coastal rescue craft only ‘temporarily’. While paragraph 2 does not specify the duration of their stay on board, it follows from their task that they must leave the vessel as soon as the orders have been complied with, or if it is no longer necessary to ensure that the vessel is in compliance with orders previously given.
2309  In view of their ‘sole task’, commissioners will normally be members of the armed forces. In theory, therefore, they can be captured and made prisoners of war, if the vessel on which they have been placed is controlled and searched by a warship of the opposing Party. Commissioners cannot be assimilated to the protected crew or medical personnel of the vessels they are supervising.[41] In view of the functions the commissioners performs, however, capturing this person ought to remain a right which is not to be exercised lightly. If commissioners are not members of the armed forces, they are civilians and must be treated as such, even though they are performing an official or governmental function.
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F. Paragraph 3: Entry of orders in the log of the hospital ship
2310  According to the wording, the obligation under paragraph 3 applies only to the orders given to hospital ships. Since coastal rescue craft were added late in the course of the 1949 Diplomatic Conference, it may well be that the lack of a reference to these craft was merely an inadvertent omission. The object of the rule is ‘to obviate disputes respecting the existence or the meaning of an order’.[42] In accordance with paragraph 1, coastal rescue craft are subject to the same orders as hospital ships. Therefore, and in view of its rather relative nature, the obligation to enter in the log the orders given can be considered to apply equally to rescue craft.
2311  The entry in the log is merely a formality, made with a view to providing evidence should a dispute arise concerning the existence or meaning of an order. Hence, a ‘hospital ship would not be permitted to invoke the absence of such a record from its log in order to justify it in disregarding the orders received, if these orders could be provided in another way’.[43]
2312  The predecessors of Article 31 merely provided for the entry in the log without obliging the Parties to the conflict to use a language that the captain of the vessel could understand. An amendment to that effect was inserted in draft article 13 agreed upon in 1947.[44] The language need not be the native language of the captain; it can be any language intelligible to him or her.
2313  The obligation under paragraph 3 is not absolute in character. In 1899, the words ‘as far as possible’ were already part of the rule, because ‘the condition of the sea or extreme urgency may preclude this formality’.[45] Indeed, an entry in the log will regularly necessitate physical presence on board the vessel. If the sea and weather conditions are such that it would be either dangerous or too time-consuming to send a person on board to execute the entry, an absolute obligation would imply an injunction to accomplish the impossible.
2314  The words ‘as far as possible’ in the beginning of the paragraph relate not only to the physical feasibility of the entry but also to the language that the vessel’s captain can understand. It would therefore suffice to enter the orders in the log in the language of the commander of the warship who has issued the orders, if nobody on board the warship has skills in any of the languages that the captain can understand.
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G. Paragraph 4: Neutral observers
2315  The Parties to the conflict may at all times enter into agreements on any subject they consider appropriate, including the placing of neutral observers on board hospital ships and coastal rescue craft. It is reported that:
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, as direct and permanent witnesses, that the ships were used properly. The agreement seems to have brought at least some improvement in the situation.[46]
2316  Paragraph 4 is a new rule that 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.[47] It contains no legal obligation, but is only a recommendation.
2317  Accordingly, the Parties to the conflict may by mutual agreement allow the placing of neutral observers on board their hospital ships and even on coastal rescue craft, if that is practically feasible. An agreement under paragraph 4 is a ‘special agreement’ in the sense of Article 6 (which itself explicitly refers to Article 31) and therefore subject to the conditions laid down in that provision.
2318  A Party to the conflict may also unilaterally place neutral observers on board its hospital ships and coastal rescue craft, i.e. without having entered into an agreement with the opposing Party to the conflict.[48] Such a confidence-building measure is certainly an appropriate means to ensure that hospital ships and coastal rescue craft are exclusively employed in their innocent role.
2319  The observers’ nationality must be that of a neutral State, i.e. a State that is not party to the conflict.[49] In view of their task of verifying the strict observance of the provisions of the Second Convention, their neutrality should not be determined in a formal manner only. In order to avoid any suspicion of partiality, they should not be nationals of a State that, although not a Party to the conflict, is formally or informally allied with the Party to the conflict whose vessels they are to be placed on. Therefore, the ‘neutral observers’ should preferably be either representatives of a Protecting Power or delegates of the ICRC.[50] The opposing Party to the conflict is entitled to verify, by exercising its right of control and search under paragraph 1, whether the observers are indeed those agreed upon or, in case of a unilateral commitment, whether the observers are in fact nationals of a neutral State or institution.
2320  As indicated, the Parties to the conflict may decide by mutual agreement to invite the ICRC to send one or more neutral observers to act on the basis of Article 31(4). However, in line with its humanitarian activities in general and as a matter of international law, the ICRC is not obliged to accept such an invitation. It remains within the ICRC’s discretion whether or not to accept.[51] Furthermore, the ICRC will only accept to act in the sense of this provision on the basis of an agreement with all the Parties to the conflict concerned, and provided doing so respects the confidentiality of its work, including with regard to any written observations it may share with those Parties.[52]
2321  Theoretically, the Parties to the conflict are free, provided they are acting on the basis of a mutual agreement, to limit the tasks of neutral observers.[53] It would, however, be odd if they were placed on board hospital ships or coastal rescue craft for purposes other than verifying the strict observance of the Second Convention. These observers, therefore, need to have access to all sections of the vessel and to the entire technical and medical equipment, including the means of communication. Of course, they must always pay due regard to the execution of the humanitarian tasks with which such vessels are entrusted.
2322  The observers must verify the facts/situation in order to make a report. Their objective evidence should in principle make it possible to prove any breach which may be committed, or to clear the captain of the vessel of any unfounded accusations. Observers may not give orders to the captain, who must retain full freedom of action.[54] They may, however, always give an opinion if consulted or if circumstances so warrant.
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Select bibliography
See the select bibliography of the commentary on Article 22 of the Second Convention.

1 - Article 13, paragraph 7, of the 1868 Additional Articles relating to the Condition of the Wounded in War provided that: ‘The belligerents shall have the right of controlling and visiting them; they will be at liberty to refuse their assistance, to order them to depart, and to detain them if the exigencies of the case require such a step.’
2 - Paragraphs 5 and 6 of Article 4 of the 1899 Hague Convention (III) provided that: The belligerents will have the right to control and visit them; they can refuse to help them, order them off, make them take a certain course, and put a commissioner on board; they can even detain them, if important circumstances require it. As far as possible the belligerents shall inscribe in the sailing papers of the hospital ships the orders they give them.
3 - Paragraphs 5 and 6 of Article 4 of the 1907 Hague Convention (X) are identical to their counterparts in the 1899 Convention, apart from paragraph 6, in which the words ‘inscribe in the sailing papers’ were replaced by ‘enter in the log’.
4 - Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Vol. I, p. 66; see also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 148.
5 - Proceedings of the Hague Peace Conference of 1899, p. 36.
6 - Ibid.
7 - Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 64. See also Article 41(10)-(11) of the 1913 Oxford Manual of Naval War.
8 - See Naval Expert Report of 1937, p. 27.
9 - Ibid. p. 28.
10 - Ibid. p. 29.
11 - Report of the Preliminary Conference of National Societies of 1946, p. 59.
12 - Report of the Conference of Government Experts of 1947, p. 90. Draft article 13 read as follows: The belligerents shall have the right to control and search the ships mentioned in Articles 9, 10 and 11. They can refuse them help, order them off, make them take a certain course, and put a commissioner temporarily on board; they can even detain them for a maximum period of seven days, if the gravity of circumstances requires. As far as possible, the belligerents shall enter into the log of the hospital-ships, in a language intelligible to the commander of the ship, the orders which they give them. Belligerents may, either unilaterally or by particular agreements, put on board their hospital-ships neutral observers, who shall verify the strict observation of the stipulations contained in the present Convention.
13 - Ibid. p. 91. The Commission considered it feasible, however, to provide for neutral observers on board hospital-ships, whose main function would be to ascertain facts and be able to report thereon. Their evidence would make it possible to verify possible breaches, or to exonerate the captain from unfounded charges, thus avoiding reprisals. While not instructing the captains, the neutral observers could at least draw their attention to the possible consequences of their acts.
14 - Ibid. p. 90.
15 - Draft Conventions adopted by the 1948 Stockholm Conference. It was only then that the translation error referred to above was corrected. Accordingly, the English text of the second sentence of paragraph 1 referred to the right of belligerents to ‘refuse their help’.
16 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 75.
17 - Ibid.
18 - Ibid. p. 203.
19 - See, inter alia, Oppenheim, Vol. II, pp. 504–505; Colombos, pp. 591–592; Takahashi, pp. 620–625; Garner, pp. 244–249; and Mossop, pp. 398–406.
20 - See Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Vol. I, p. 66;
21 - See de Preux, p. 105. For further details, see the commentary on Article 27 at para. 2202.
22 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 48(b), according to which one of the conditions of protection is that these vessels shall ‘submit to identification and inspection when required’. In the case of military hospital ships, their sovereign immunity is no obstacle to the exercise of the right of control and search.
23 - See the commentary on Article 30, section G and the commentary on Article 34, section C.2.
24 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 60(d) and 67(e).
25 - Naval Expert Report of 1937, p. 30.
26 - For the use of a wireless and other means of communication, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, Resolution 6, p. 362, and the commentary on Article 34, section D.
27 - Article 8, paragraph 2, provides, inter alia, that ‘the presence of wireless telegraphy apparatus on board[] is not a sufficient reason for withdrawing protection’. During the Second Hague Peace Conference in 1907, the President of the Third Commission doubted the wisdom of the rule because ‘[the] presence [of such apparatuses] is … of a nature to beget suspicions’. Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 300.
28 - For the cases of the Ophelia (First World War) and the Rostock (Second World War), see Oppenheim, p. 504, and Mossop, p. 404.
29 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 311.
30 - During the deliberations on the 1907 Hague Convention (X), some delegates took the position that ‘the belligerents will always have power to remove the aerial wires or even the whole transmitting installation’. However, they were not prepared to grant belligerents an unlimited right to do so, because ‘the employment of such apparatuses is so widespread as to have become an absolute necessity for navigation’. See Proceedings of the Hague Peace Conference of 1907, Vol. III, pp. 300–301. It is important to note that, in 1907, ships were equipped with separate apparatuses for transmitting and receiving. The removal was considered lawful only with regard to the ‘transmitting installation’. In view of contemporary technology, such a differentiation is no longer possible. Therefore, the removal of a hospital ship’s means of communication is no longer permissible.
31 - See the commentary on Article 9, section C.4.b.
32 - See also SOLAS Convention (1974), Chapter V, Regulation 33-1, which requires that, if a rescuing ship is unable to provide assistance, or considered it unreasonable or unnecessary to proceed to provide assistance, the master must enter the reasons for failing to proceed, and should inform the appropriate search and rescue service accordingly. On the question of whether the SOLAS Convention applies in time of armed conflict, see Introduction, section C.5.(e)-(f).
33 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 390.
34 - Proceedings of the Hague Peace Conference of 1899, p. 36.
35 - But see, for a contrary view, United States, Law of War Manual, 2016, para. 7.12.2.6: ‘[A] belligerent may delay the passage of a hospital ship belonging to its adversary in order to avoid interference with its military operations.’
36 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 184, referring to the Dutch hospital ship Op ten Noort, which was detained in Japan and eventually captured.
37 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 75. See, however, Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 184, who takes the view that the period ‘covers the possible duration of an engagement, with a few days to enable warships to proceed elsewhere in all security’. This may have been a valid consideration in 1949. Today, it seems to be of less relevance in view of the technologies available. For instance, the course of warships can be traced by satellites. Hence, the detention of a hospital ship with the aim of enabling a warship to proceed would not add much to the warship’s security.
38 - It may not be required to fly the flag of the belligerent detaining it.
39 - Proceedings of the Hague Peace Conference of 1899, p. 34.
40 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 288.
41 - During the 1907 Hague Peace Conference, the following conclusion was arrived at: ‘Since the armed personnel placed on board hospital ships cannot be made prisoners all the more reason for not making prisoner of the commissioner whose duty it is to watch over and direct the personnel.’; Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 300. Pictet rightly states that ‘[s]ome confusion is involved here’. Unless the commissioner is a member of the medical personnel, ‘one cannot see how or why he could escape capture’; Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 184–185. See, however, Article 64, paragraph 4, of the 1913 Oxford Manual of Naval War.
42 - Proceedings of the Hague Peace Conference of 1899, p. 36.
43 - Ibid.
44 - See Report of the Preliminary Conference of National Societies of 1946, p. 59.
45 - Proceedings of the Hague Peace Conference of 1899, p. 36.
46 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 185–186.
47 - For the 1946 and 1947 drafts and the drafting history, see Naval Expert Report of 1937, pp. 27–29; Report of the Preliminary Conference of National Societies of 1946, p. 59; and Report of the Conference of Government Experts of 1947, p. 90. See also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 532–533.
48 - In principle, the ICRC will not accept to act as a neutral observer in the sense of this provision solely on the basis of a unilateral request by one Party to the armed conflict.
49 - For details on the notion of neutral Powers or States, see the commentary on Article 5, section C.1. .
50 - During the 1982 Falkland/Malvinas Islands conflict, for example, ‘at the request of the two Parties, the ICRC despatched an expert with instructions to visit the British and Argentine hospital ships in order to verify that the installations are in conformity with the requirements of the Second Convention’; see Sylvie-Stoyanka Junod, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985, p. 26. See also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 533–534.
51 - See the commentary on Article 9, section C.1.
52 - For further information about the confidentiality of the ICRC’s activities, see the commentary on Article 9, section C.2.b.
53 - While Article 31(4) explicitly foresees the placing of neutral observers on board hospital ships pursuant to a unilateral decision, the same cannot be said for a modification of the scope of their mandate (‘verify the strict observation of the provisions contained in the present Convention’). Such a modification requires a special agreement in the sense of, and with the need to respect the conditions of, Article 6.
54 - Report of the Conference of Government Experts of 1947, p. 91: The duty of these observers would be to see that no misuse was made of hospital-ships. They would in no case have power to take control or issue orders to the captain, who must keep his full liberty of action. The Commission considered it feasible, however, to provide for neutral observers on board hospital-ships, whose main function would be to ascertain facts and be able to report thereon. Their evidence would make it possible to verify possible breaches, or to exonerate the captain from unfounded charges, thus avoiding reprisals. While not instructing the captains, the neutral observers could at least draw their attention to the possible consequences of their acts. See also Report of the Preliminary Conference of National Societies of 1946, p. 59: ‘The duty of these observers would be to ensure that no misuse was made of the ships.’