Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 22 : Notification and protection of military hospital ships
Text of the provision*
(1) Military hospital ships, that is to say, ships built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.
(2) The characteristics which must appear in the notification shall include registered gross tonnage, the length from stem to stern and the number of masts and funnels.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1925  Article 22 deals with the protection of military hospital ships of the Parties to an international armed conflict.[1] Such ships must be distinguished from hospital ships utilized by National Red Cross or Red Crescent Societies, by officially recognized relief societies or by private persons regulated by Articles 24 and 25. Moreover, they must be distinguished from coastal rescue craft (Article 27), small craft used by the medical service (Article 43(3)) and ships chartered for the transport of medical equipment (Article 38).[2]
1926  The regulation of the protection of military hospital ships of the Parties to the conflict in a separate provision is justified by the fact that they are State ships that would constitute lawful booty of war were they not ‘built or equipped … specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them’.[3]
1927  Their exclusively humanitarian function of providing assistance impartially to the wounded, sick and shipwrecked is the reason they are granted special protection. Article 22 extends to hospital ships the protection which Article 12 confers on the wounded, sick and shipwrecked; such ships are protected because specially designed or equipped vessels are the most efficient means of achieving the overall goal of the Second Convention, which is to protect wounded, sick and shipwrecked members of armed forces at sea. In order to fulfil their functions, military hospital ships enjoy special protection ‘at all times’, i.e. whether or not they are actually carrying victims of armed conflict (unless they commit an act harmful to the enemy; see Article 34). Article 36 confers special protection on a hospital ship’s personnel and crew because they are crucial for the ship’s operation and for the performance of its humanitarian functions. While military hospital ships are subject to the same rules as the ships covered by Articles 24 and 25, the conditions for their protection are different.
1928  Currently, there are a limited number of States which operate military hospital ships in the sense of the Second Convention.[4] This may be explained by the fact that it is expensive to build and equip military hospital ships. Moreover, such ships (and, where applicable, their helicopters) are difficult to protect against advanced weapons technology.[5] Some States have decommissioned their former military hospital ships because they are no longer prepared to expose them to the risk of accidental or intentional attacks. Instead, they have turned to equipping some of their warships with modules designed for medical treatment, thus turning them into ‘casualty-receiving ships’,[6] which do not meet the conditions for special protection under Article 22. However, should fighting occur on board the warship, these modules are entitled to protection on the basis of Article 28. This development deprives the victims of armed conflict of a unique platform providing rapid and efficient medical care at sea.[7]
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B. Historical background
1929  During the 18th and 19th centuries, ships accompanying naval forces in order to collect, treat and transport the wounded and shipwrecked were a common feature.[8] Military hospital ships were also deployed near the coast of territories where fighting was going on in order to provide care to the wounded in the field. During the Second World War, military hospital ships ‘began by general consent to undertake the transport of casualties from land warfare’.[9]
1930  The protection of hospital ships was first introduced into international humanitarian law by the 1868 Additional Articles relating to the Condition of the Wounded in War (hereinafter “Additional Articles”).[10] While the Additional Articles never became binding treaty law, they were clearly inspired by the general conviction that military hospital ships already constituted a specially protected category of ships under customary international humanitarian law. According to the Additional Articles, military (and private) hospital ships[11] enjoyed a specially protected status of ‘neutrality’, i.e. they were protected against attack unless they engaged in acts harmful to the enemy. Whether ‘neutrality’ also included a prohibition on capturing military hospital ships was unclear,[12] although the wording and context of Article 9, paragraph 1, of the Additional Articles suggest that military hospital ships were also protected from capture.[13]
1931  During the First Hague Peace Conference in 1899, the Additional Articles were ‘considered as capable of constituting the best basis’ for adapting ‘to maritime wars the stipulations of the Geneva Convention of 1864’.[14] The commission entrusted with the preparation of draft articles on hospital ships emphasized the necessity of removing ‘the ships under consideration from exposure to the vicissitudes of warfare, and at the same time to take precautions against the commission of abuses’.[15] The term ‘neutrality’ was avoided and replaced by the phrase ‘shall be respected and cannot be captured’.[16] The uncertainty about the exact scope of protection, i.e. whether it included a prohibition on capture, was thereby eliminated.
1932  Accordingly, Article 1, paragraph 1, of the 1899 Hague Convention (III) provided that:
Military hospital ships, that is to say, ships constructed or assigned by States specially and solely for the purpose of assisting the wounded, sick or shipwrecked, and the names of which shall have been communicated to the belligerent Powers at the beginning or during the course of hostilities, and in any case before they are employed, shall be respected and cannot be captured while hostilities last.
1933  At the Second Hague Peace Conference in 1907, the delegates did not consider it necessary to substantially modify the 1899 provision. Hence, the first paragraph of Article 1 of the 1907 Hague Convention (X) was almost identical to its 1899 predecessor, and was adopted without discussion.[17]
1934  The 1899 Hague Convention (III) and the 1907 Hague Convention (X) enhanced the legal protection granted to military hospital ships,[18] but the practice of the First and Second World Wars demonstrated the necessity of clarifying and progressively developing some of the rules applicable to such ships, and thereby enhancing their protection under international humanitarian law. The two world wars witnessed abuses, or alleged abuses, of military hospital ships and attacks against hospital ships because they, allegedly or in fact, did not qualify for protection or had lost their protection by committing acts harmful to the enemy.[19] In particular, the lack of an agreed-upon minimum tonnage proved to be one of the main reasons why the protection of military hospital ships was less effective than envisaged by the drafters of the Hague Conventions.[20] After the end of the Second World War, the time had come to improve the protection of (military) hospital ships.
1935  In comparison to Article 1 of the 1899 and 1907 Hague Conventions, Article 22 is certainly more detailed, and has thus contributed to legal clarity as regards the functions of military hospital ships (by explicitly including the treatment and transportation of the wounded, sick and shipwrecked); as regards their comprehensive protection (by emphasizing that they ‘may in no circumstances be attacked’ and must ‘at all times be respected and protected’); and as regards the characteristics of such ships that must appear in the notification. However, Article 22 has not enhanced the material protection of military hospital ships, as it had already been generally agreed under the Hague Conventions that, in view of their humanitarian functions, military hospital ships may not be attacked as long as they are exclusively engaged in such functions, which included the transportation of the wounded, sick and shipwrecked.[21]
1936  Moreover, issues which gave rise to disputes during the two world wars, such as the minimum tonnage requirement, have not been entirely resolved.[22] Article 22 lacks a definition of the term ‘ship’, although the 1946 Preliminary Conference of National Societies recommended that a ‘minimum tonnage for hospital-ships be decided upon’,[23] and although the drafts of 1947 (article 9)[24] and 1948 (article 19)[25] provided for a minimum of 1,000 tons gross. Article 26 of the Second Convention, which deals with tonnage, is limited to a mere recommendation. Lastly, the protective scope of Article 22 is almost as limited as that of its precursors, insofar as it focuses mainly on the assistance rendered to wounded, sick and shipwrecked members of armed forces.[26]
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C. Paragraph 1: Protection of military hospital ships
1. Definition of ‘military hospital ship’
a. Ship
1937  While the Convention lacks a definition of the term ‘ship’, the wording, context, object, purpose and drafting history of Article 22 suggest that not all craft capable of traversing the sea and of rendering some form of assistance to victims at sea can qualify as military hospital ships.[27]
1938  Although ‘ships’ are sometimes distinguished from ‘boats’ by their size,[28] international lawyers and practitioners have no generally agreed measure for objectively determining the size or tonnage which qualifies a craft as a ‘ship’ rather than a ‘boat’.[29] Since there is no consensus on the definition, the use of the term ‘ship’ as such is inconclusive as to their means of propulsion[30] or the size or tonnage required for military hospital ships.[31]
1939  Still, the fact that, according to Article 26, protection under Article 22 ‘shall apply to hospital ships of any tonnage’ does not mean that the tonnage is altogether irrelevant. First, Article 26 also refers to the lifeboats of hospital ships. Hence, lifeboats cannot be considered as hospital ships, although they are engaged in searching, rescuing or transporting the shipwrecked, wounded and sick.[32] Such lifeboats are mere appurtenances of a hospital ship, they must therefore be of a significantly lesser tonnage than the ship they belong to. Second, Article 27 applies to ‘small craft … employed for coastal rescue operations’ which, because of their small size, do not qualify as (hospital) ships either. Third, a ship can perform the humanitarian tasks of assisting, treating and transporting the wounded, sick and shipwrecked only if it has on board the equipment necessary for providing at least a minimum degree of first aid and if there is sufficient space for the persons collected at sea, near the coast and on land. Hence, although there is no agreement on the exact tonnage necessary for a vessel to be recognized as a hospital ship, small vessels, lifeboats and other small craft which lack the necessary minimum capacity for providing medical treatment do not qualify.
1940  This finding – though ambiguous – is confirmed by State practice and by the drafting history of Articles 22 and 26 of the Second Convention.[33] However, the dispute over whether military hospital ships must have a minimum tonnage has not been resolved entirely by the compromise formulas that eventually became Articles 22, 26 and 27. Of course, a position according to which only ships of over 2,000 tons gross are entitled to protection under the Convention would be untenable.[34] However, ships can perform a hospital ship’s humanitarian functions of assistance, treatment and transportation only if their size or gross tonnage exceeds that of coastal rescue craft.
1941  The term ‘ship’ is sufficiently broad to cover surface and subsurface vessels. Theoretically, it would therefore be possible to include submarine (military) hospital ships within the scope of Article 22. The minimum tonnage recommendation in Article 26 would not be an insurmountable obstacle as, for instance, strategic submarines have a displacement exceeding 6,000 tonnes.[35] Still, the obligation to respect and protect military hospital ships ‘at all times’ would become an empty shell if the protection granted to surface ships were extended to submarines. First, the right of belligerents to supervise and search all hospital ships (Article 31(1) of the Second Convention), which is considered a ‘necessary counterpart of their immunity’,[36] would be functionally nullified by the nature of submarine capabilities. Second, the detection, and even more so, the identification of submerged vessels is a most difficult operation. Submarine contacts that cannot be clearly identified will always be considered a threat and thus run the risk of provoking an attack. Therefore, at present it seems difficult to conceive of military hospital ships as anything but surface ships. The theoretical possibility of converting a submarine into a military hospital ship that will navigate only on the surface is not a counterargument, because the mere capability of navigating in submerged mode will prevent States from granting protection to such vessels under Article 22.
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b. Military
1942  Like its predecessors,[37] the Second Convention distinguishes between military hospital ships of the Parties to the conflict, on the one hand, and hospital ships utilized by National Red Cross or Red Crescent Societies, recognized relief societies or private persons of either the belligerent State or neutral States, on the other hand.[38] Hence, the term ‘military hospital ships’ may be negatively defined as not applying to hospital ships utilized by (enemy or neutral) private entities or individuals.
1943  Positively defined, the term ‘military’ means that the hospital ships must be operated by, or under the exclusive control of, the armed forces of a State Party. This requirement is met if they qualify as either ‘warships’ or ‘auxiliary vessels’ as defined in international treaty law and customary law.[39] ‘Military’ is to be understood as ‘relating to … armed forces’.[40] This term is broad enough to apply equally to ‘warships’ and to ‘auxiliary vessels’, as long as they are in fact operated by, or under the exclusive control of, the armed forces. Article 32, according to which military hospital ships ‘are not classed as warships as regards their stay in a neutral port’, does not mean that military hospital ships must meet the requirements of the definition of ‘warships’.[41]
1944  The interpretation of Article 22, according to which States are free to use either auxiliary vessels or warships as military hospital ships, is confirmed by State practice. The Peace Ark is operated by the People’s Liberation Army Navy (PLAN) of the People’s Republic of China under the command of a duly commissioned officer and manned by a crew under regular armed forces discipline. Hence, it qualifies as a warship. However, the PLAN considers it to be an ‘auxiliary vessel’ since it is specially and solely built and equipped as a hospital ship. The US Naval Ship (USNS) Comfort and the USNS Mercy are operated by the US Military Sealift Command, with a civilian master and crew, but the medical staff is under the command of an officer of the medical corps.[42] The same holds true for the Russian Federation’s naval hospital ships Irtysh, Svir and Yenisey. The Russian and US hospital ships thus qualify as auxiliaries. It is clear that, notwithstanding the technical qualification of a vessel – be it as a warship or auxiliary vessel – once it fulfils the requirements of a hospital ship, it is entitled to the special protection due to it under the law.
1945  Since neither auxiliaries nor warships must be ‘owned’ by the State, there is no need for such ships to qualify as government property in accordance with the applicable domestic regulations. The ship’s use by the armed forces for exclusively non-commercial government purposes – which, of course, must be limited to the humanitarian functions justifying protection under Article 22 – is sufficient. Hence, a merchant vessel converted into a hospital ship will become a ‘military hospital ship’ if it is operated by, or under the exclusive control of, the armed forces, and if it exclusively serves the humanitarian functions described in Article 22.[43] The same holds true for a hospital ship leased from a private owner, whether an individual or a company. This stringent criterion remains without prejudice to the fact that vessels operated by other agencies may, depending on the circumstances, qualify for protection on the basis of other provisions of international humanitarian law, such as Article 21 of the Fourth Convention.
1946  Military hospital ships need not be operated by the navy; they may be operated by, or be under the exclusive control of, any branch of a State’s regular armed forces. However, hospital ships operated by State organs or government institutions other than the armed forces do not enjoy protection under Article 22 because they do not qualify as ‘military’. Hospital ships operated by State organs other than the armed forces would qualify as State ships that may be captured as booty of war. It must be emphasized, however, that State ships are not liable to attack unless they qualify as lawful objects of attack as a result of their use, location or purpose.[44]
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c. Nationality of military hospital ships
1947  Article 22 refers to ‘the Powers’ that must have built or equipped military hospital ships.[45] According to a textual interpretation, that provision could be understood as applying to military hospital ships of the States that are Parties to the conflict and also to those flying the flags of neutral States. The fact that the term ‘Powers’ is used does not necessarily indicate that it means ‘belligerent Powers’, because in other provisions of the Second Convention, the term ‘Powers’ is used for ‘Protecting’ or ‘neutral Powers’[46] and for ‘adverse Powers’.[47] However, the remaining wording and the context of Article 22 reveal that its scope of application is limited to military hospital ships flying the flag of a belligerent State, i.e. they must have the nationality of one of the Parties to an international armed conflict. The express prohibition of attacks against military hospital ships only makes sense if they are of enemy nationality. The same holds true with regard to the belligerents’ rights under Article 31(1). Neutral military hospital ships are warships or auxiliaries, enjoying sovereign immunity,[48] and an attack against them or visiting and searching them would constitute a violation of the flag State’s rights.[49] Neutral non-military hospital ships, i.e. those operated by neutral National Red Cross or Red Crescent Societies, officially recognized relief societies or private individuals, are regulated only in Article 25 of the Second Convention. Had the drafters of the Convention intended to grant protection to neutral military hospital ships, an explicit reference to such ships would have been necessary and included in the treaty. Also, the drafting history of the 1899 Hague Convention (III) shows that the delegates distinguished only between belligerent hospital ships that are either government or private ships, and neutral hospital ships that are utilized by private entities or individuals. There was no reference to (military) hospital ships belonging to, or operated by, a neutral flag State.[50]
1948  It needs to be emphasized, however, that, according to Article 22(2)(a) of Additional Protocol I, the protection granted to neutral hospital ships has been extended to hospital ships ‘made available … to a Party to the conflict: (a) by a neutral or other State which is not a Party to that conflict’. Of course, if a neutral State makes one of its military hospital ships available, it waives that ship’s sovereign immunity to a considerable extent. If neutral military hospital ships are not made available to a Party to the conflict, but remain under the neutral flag State’s control, they are not specially protected as hospital ships by either the Second Convention or by Additional Protocol I; however, as sovereign immune ships, they are protected under general international law and under international humanitarian law by the rules of the conduct of hostilities.
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d. Construction and equipment
1949  According to Article 22, military hospital ships must be either ‘built’ or ‘equipped’ for the performance of their humanitarian functions.[51] It is therefore immaterial whether a ship was originally designed to serve as a military hospital ship or to perform another function. In the latter case, the vessel, such as a military transport ship or passenger liner, will usually have undergone ‘transformation’ into a military hospital ship, after which the prohibition in Article 33 applies to them.[52] Subject to the necessity of an unspecified minimum tonnage,[53] there is no requirement for a certain design or means of propulsion.
1950  A significant modification of the law has, however, occurred with regard to those ships that have not been so built, equipped or modified. Under the 1899 and 1907 Hague Conventions, a ship would have qualified as a military hospital ship if the State had merely ‘assigned’ it to perform humanitarian tasks, i.e. if the government had designated or allocated such tasks to a given warship or auxiliary vessel.[54] At the turn of the 19th century, tasking a ship with transportation of the wounded, sick and shipwrecked without the capacity to provide medical treatment on board seems to have been considered sufficient. Hence, no special design, construction or equipment was provided for. Under Article 22, mere assignment is not sufficient. The use of the verb ‘equip’ means that a ship must in fact be supplied with the items, devices, material and personnel necessary for the treatment and transportation of the wounded, sick and shipwrecked.[55] Although it is impossible to state in absolute terms the precise quantity of such items and personnel, it is safe to conclude that it must be sufficient to perform life-sustaining measures on board. A military hospital ship must have the capability of ‘assisting the wounded, sick and shipwrecked’, i.e. of ‘treating … and … transporting them’. Vessels that are not constructed or equipped in such a manner as to be capable of treating and transporting patients do not qualify as military hospital ships.
1951  As to the meaning of the phrase ‘specially and solely’, see section C.1.e.ii.
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e. Humanitarian function
1952  Military hospital ships must be ‘built or equipped … specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them’. It follows from this wording and from the context of Articles 30 and 34 that military hospital ships are limited to the performance of exclusively humanitarian functions.
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i. Assistance, treatment and transport
1953  The wording of Article 22 seems to indicate that ‘assistance’, ‘treatment’ and ‘transport’ are three distinct functions and that, in order to be recognized as such, a military hospital ship must be built or equipped in such a manner as to be capable of performing each of these three functions. Indeed, the report presented by Committee I of the 1949 Diplomatic Conference seems to affirm that a vessel should not be limited to performing only one of the three functions: ‘It is not sufficient for the vessel in question to be merely capable of rescue operations. It must be so equipped that it is in a position to care for and transport the wounded, sick and shipwrecked. A very clear distinction is therefore drawn between hospital ships and lifeboats.’[56] However, this part of the report merely aims at precluding from the protective scope of Article 22 small boats that, because of their size and lack of medical equipment, are limited to rescue operations strictu sensu. Moreover, it merely states that hospital ships must be built or equipped in such a manner that the wounded, sick and shipwrecked can be treated and transported, which reflects a correct interpretation of Article 22.
1954  According to a textual and systematic interpretation, the term ‘assisting’ is the all-encompassing concept that comprises not only the transport but also the treatment of the wounded, sick and shipwrecked. The phrase ‘to treating … and … transporting them’ appears after the sentence’s object, ‘wounded, sick and shipwrecked’. The term ‘assist’ means to provide help to a person with a view to enabling him or her to accomplish or perform something that the person is unable to accomplish or perform alone or only with difficulty.[57] The generic character of the term ‘assist’ is also confirmed by the fact that the rescue of shipwrecked persons very often implies the necessity of detaching small boats that will collect those in distress at sea and return them to the hospital ship for treatment and transportation. Understood in that sense, ‘assistance’ would also cover the evacuation of the sick and wounded of the land forces. Accordingly, treating and transporting the wounded, sick and shipwrecked are but subcategories of the overall ‘assistance’ that is to be rendered to them. Hence, the conjunction ‘and’ is limited to ‘treatment and transportation’. This means that a military hospital ship qualifies for protected status within the meaning of this article so long as it performs two (as opposed to three) distinct and cumulative humanitarian functions: first, to treat, and second, to transport victims of armed conflict. In any event, every wounded, sick or shipwrecked person who has been taken aboard a military hospital ship will of necessity be transported and, to a greater or lesser extent, provided with the necessary medical care. It is therefore the ability to perform these two tasks that distinguishes hospital ships from coastal rescue craft and other medical transports that are usually limited to providing expeditious transport to a medical facility and basic life-sustaining measures.
1955  This interpretation is confirmed by the drafting history of Article 22. According to Article 1 of both the 1899 Hague Convention (III) and the 1907 Hague Convention (X), the humanitarian function of military hospital ships was limited to ‘assisting the wounded, sick and shipwrecked’. The 1937 Commission of Naval Experts used the term ‘succouring’ rather than ‘assisting’. During the meeting of the Commission, the ICRC had proposed to add the words ‘to transporting them, or to evacuating the wounded and sick of military forces’. The Commission agreed that hospital ships ‘may be used for the transport or evacuation of the wounded of the land armies from one territory to another’. The ‘majority of its members, however, thought it unnecessary to specify this …, as the practice was generally recognized’.[58] Hence, it is safe to conclude that, in the light of State practice preceding the 1937 meeting, the term ‘assisting’ in the Hague Conventions was considered sufficiently broad to cover also the transportation of the wounded and sick. At the 1949 Diplomatic Conference, the British delegate stated that hospital ships ‘were used almost exclusively for the transport of wounded, sick and shipwrecked and it would therefore be necessary to add … the words: … “or to transport them …”.’[59] The British proposal was eventually accepted, but the ‘or’ was replaced by ‘and’.[60]
1956  The term ‘treating’ means the provision of medical care to patients for their illnesses or injuries.[61] It also applies to the first aid given to shipwrecked but uninjured persons who have been collected, for example relieving them of swallowed sea water and bringing their body temperature back to normal.[62] For details on the concept of ‘care’, see the commentaries on Article 12, section F.1.b, and Article 18, section C.6.
1957  In view of their task of treating the wounded, sick and shipwrecked, it cannot be doubted that military hospital ships may carry medical stores and supplies (including nutrition) for use on board. However, it is unclear whether and to what extent they are allowed to transport such items, along with medical personnel, if they are destined for the forces in the field (or for other hospital ships). It has been rightly observed that ‘the fact that [such ships] usually have a one-way flow of passengers … makes it economical to use them to transport medical stores and supplies for the forces in the field on the outward voyage’.[63] However, considerations of economy are not necessarily a convincing argument for broadening the specially protected humanitarian functions military hospital ships may perform under international humanitarian law. Rather, the argument should be based on the goal of special protection, that is, to provide assistance not only to the members of naval forces, but to the members of all armed forces, whether at sea, in the air or on land.[64] Still, too much should not be made of such considerations. The primary functions of hospital ships are to collect, treat and transport those in need of assistance at sea. The evacuation of wounded and sick members of land forces, while certainly a lawful and protected activity, does not imply that hospital ships may in an unlimited and exclusive manner deliver medical items to land forces or that they can be used as transport ships for medical personnel and items. Hence, the carriage of surplus medical stores and supplies ‘must be subordinate to the dominant object of the voyage, i.e. to pick up casualties at its destination’.[65] This finding is supported by Article 35(5). Although the transportation of medical personnel and equipment over and above their normal requirements may not be considered as depriving hospital ships of their protection, it does not mean that they may be used exclusively for the transportation of a disproportionate quantity of medical personnel and equipment.[66] It may be added that ships used for the transportation of medical equipment, are the subject of Article 38.
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ii. Exclusive character (‘specially and solely’)
1958  The adverbs ‘specially’ and ‘solely’ qualify the phrase ‘built or equipped’. ‘Specially’ means that the ships must be built or equipped for a particular purpose, i.e. rendering assistance to the wounded, sick and shipwrecked. ‘Solely’ means ‘not involving anyone or anything else; only’.[67] Accordingly, the construction and/or equipping of such ships may not serve any other than the said humanitarian purpose. This is re-emphasized by Articles 30(2), 34 and 35.
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f. Beneficiaries of assistance rendered by military hospital ships
1959  The 1868 Additional Articles, the 1899 Hague Convention (III) and the 1907 Hague Convention (X) were based on the assumption that only wounded, sick and shipwrecked members of armed forces needed to be protected. Hence, the primary goal was to provide protection for members of the naval forces who were wounded, sick or shipwrecked at sea, although it was understood that wounded members of land forces taken on board hospital ships were equally entitled to the benefits of the respective Conventions. That is why Article 11 of the Additional Articles applied not only to ‘sailors’ but also to ‘soldiers’. ‘Soldiers’ were also included within the scope of protection by Article 8 of the 1899 Hague Convention (III) and Article 11 of the 1907 Hague Convention (X).[68]
1960  Despite minimal discussion,[69] there was general agreement that the 1899 and 1907 Hague Conventions also applied to wounded members of the land forces on board hospital ships, and that military hospital ships were entitled to evacuate and transport casualties suffered as a result of operations on land.[70] Still, those cases were not explicitly provided for in the Hague Conventions, and it was considered ‘safer, in the light of practical experience, to be guided by the principle of inserting words ex abundanti cautela [out of an abundance of caution]’.[71] It is important to note, however, that during the Second World War, ‘hospital ships began by general consent to undertake the transport of casualties from land warfare’.[72]
1961  However, the assistance rendered by hospital ships was reserved for members of the armed forces of the Parties to the conflict. The wounded, sick and shipwrecked crews and passengers of merchant vessels, and civilians in general, did not fall within the scope of the 1899 and 1907 Conventions. This was considered a severe deficit,[73] which has, to a certain extent, been redressed by the Second Geneva Convention.
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i. Wounded, sick and shipwrecked members of armed forces
1962  In view of the primary function military hospital ships used to serve, i.e. to accompany warships and to provide assistance ‘at the scene of action’[74] at sea, all wounded, sick and shipwrecked members of naval forces are undoubtedly among the beneficiaries of the assistance rendered by such ships. Members of the armies (land forces) who are wounded on land and taken on board a hospital ship, while always having been considered protected persons,[75] are now clearly included in Articles 12(1) and 13(1) of the Second Convention, so that no doubts exist as to their entitlement to such assistance.[76] Article 13(2) extends protection to members of militias, volunteer corps and organized resistance movements, provided that they fulfil the four conditions set out in that provision.
1963  For an interpretation of the terms ‘wounded’, ‘sick’ and ‘shipwrecked’ in the Second Convention, see the commentary on Article 12, section D.3.
1964  It is an unresolved issue whether the sick and wounded may be carried on a hospital ship ‘until the last possible moment before restoration to full health’.[77] Mossop states that it is a breach of the Convention to carry convalescent personnel in hospital ships.[78] This proposition seems too absolute. It may well be that some injuries or illnesses can be treated within a short period of time. Moreover, a hospital ship may not be in a position to unload those passengers who have recovered or are convalescent. Hence, everything will depend on the circumstances prevailing at the time. Apart from that, it will be in the interest of the officer or master commanding a military hospital ship to provide space for new arrivals as soon as possible, and thus to unload those who are no longer in need of medical treatment.
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ii. Crews of enemy merchant vessels and civil aircraft
1965  Under the Hague Conventions, there was no obligation to protect the crews (and passengers) of enemy merchant vessels because, according to prize law, the exceptional right of destroying a captured enemy merchant vessel was permissible only after the safety of the crew and passengers had been provided for.[79] The practice of attacks against enemy merchant vessels had simply not been envisaged by the authors of the Hague Conventions. Therefore, according to Mossop, a
curious anomaly … existed in the case of merchant seamen: in some countries they are embodied in the armed forces and casualties are clearly entitled to use hospital ships, whereas in other countries they are still civilians and, on a strict reading of the [Hague] Convention, not entitled to its protection. The unsubstantial nature of a distinction founded on an accident of domestic law applied to men facing identical risks led in 1943 to an Allied decision at the highest level to permit the carriage of sick and wounded merchant seamen in hospital ships, whatever their status might be by their domestic law.[80]
1966  However, it was not only the varying status under domestic law that necessitated a reconsideration, and thus a widening of the protective scope. Enemy merchant vessels had become increasingly involved in belligerents’ war efforts by effectively contributing to their military action.[81] By that conduct they had become military objectives and liable to attack.[82] Therefore, the masters and crews of merchant vessels had to be assimilated, to a certain extent, to the members of the regular armed forces. According to Article 13(5), the wounded, sick and shipwrecked masters and crews of ‘the merchant marine’ of the Parties to the conflict who do not benefit by more favourable provisions of international law are protected persons. This means, inter alia, that they may benefit from the services of a military hospital ship.[83]
1967  There is, however, an important exception with regard to the crews (and passengers) of enemy merchant vessels captured as prize and, as an exceptional measure, destroyed at sea.[84] It has been rightly stated that the ‘duty of a hospital ship is to take on board wounded, sick and shipwrecked persons, and it does not come within her functions to provide accommodation for uninjured passengers and crews taken from destroyed merchant vessels, thereby rendering valuable assistance to the warship from which they are received’.[85] It must be borne in mind that the right to destroy merchant vessels captured under prize law is limited and exceptional in character. It relieves the commander of the intercepting warship of the principal obligation to detach a prize crew that will bring the vessel to a port, or to escort the vessel to a port. This exceptional right is dependent on the obligation to provide for the safety of the crew and passengers.
1968  It is the obligation of the captor to provide for the safety of the crews and passengers of merchant vessels captured as prize and to be destroyed, which can often be accomplished only by taking them on board the intercepting warship. Therefore, military hospital ships may not be abused to relieve the capturing warship of the burden of transporting them to a place of safety. If a military hospital ship were allowed to receive the merchant vessel’s crew and passengers who are neither wounded nor sick, it would result in an almost unlimited destruction of merchant vessels captured as prize. Although a warship is prohibited from abusing a hospital ship for the sole purpose of destroying a merchant vessel as prize, the hospital ship continues to be under an obligation to provide assistance to crew members and passengers who are shipwrecked due to the destruction of their vessel. Such assistance will always be in compliance with the Second Convention.
1969  Similarly, if individual crew members or passengers of a merchant vessel are in need of immediate life-sustaining treatment, they must, in view of the overarching requirement under the Geneva Conventions to respect and protect the wounded and sick, receive such treatment. If they are taken on board a military hospital ship, this does not relieve the warship’s commander of the obligation to provide for the safety of the remaining crew members and passengers of a merchant vessel captured as prize.
1970  The foregoing considerations apply equally to the crews (and passengers) of enemy civil aircraft. Enemy civil aircraft may become lawful targets, provided that they meet the relevant criteria.[86] The crews of enemy civil aircraft, according to Article 13(5), are entitled to the assistance rendered by military hospital ships. The exception for vessels captured as prize and destroyed would, in principle, also apply to captured enemy civil aircraft.[87] However, the capture of civil aircraft (and their ensuing destruction) will almost always be accomplished on land. Hence, the practical relevance of the exception will likely be limited to situations in which a hydroplane has been forced to land on sea in order to exercise capture there – a rather uncommon scenario.
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iii. Crews of neutral merchant vessels and civil aircraft
1971  The Second Convention is silent on the protection of the crews (and passengers) of neutral merchant vessels and neutral civil aircraft that have been attacked.[88] Article 13(5) explicitly refers only to the crews of the merchant marine and to the crews of civil aircraft of the Parties to the conflict. Since neutral merchant vessels and neutral civil aircraft contributing to the enemy’s military action are sometimes considered to have acquired enemy status,[89] one might be inclined to extend the scope of protection to the crews (and passengers) of such vessels and aircraft. The dictates of humanity would clearly justify such an extension. Still, the wording of Article 13(5) is clear, and it is therefore doubtful, on the basis of the Second Convention, whether rendering assistance to the crews (and passengers) of neutral merchant vessels and civil aircraft that have been attacked as lawful military objectives is a legitimate task of a military hospital ship.
1972  However, such crews (and passengers) are civilians, whose presence on board a military hospital ship, according to Article 35(4) of the Convention, may not be considered as depriving it of protection under Article 22.
1973  For the States party to Additional Protocol I, the issue has been resolved by Article 22(1) of the Protocol, under which hospital ships are allowed to extend assistance to wounded, sick and shipwrecked civilians ‘who do not belong to any of the categories mentioned in Article 13 of the Second Convention’.
1974  Still, the exclusion from the protective scope of Article 22 of the crews (and passengers) of enemy merchant vessels captured as prize and destroyed (which is to be clearly distinguished from an attack against a lawful military objective) also applies to the crews (and passengers) of neutral merchant vessels captured as prize and destroyed at sea.[90] Again, it is the captor’s obligation to provide for the safety of the crews and passengers of merchant vessels captured as prize, and military hospital ships may not be abused to relieve the capturing warship of the burden of transporting them to a place of safety. As noted in section C.f.ii, a military hospital ship is only allowed to take on board individual crew members and passengers who are in need of immediate life-sustaining treatment (in which case they need to receive such treatment, though not necessarily on board the military hospital ship) on the basis of the overarching requirement underpinning the Geneva Conventions to respect and protect the wounded and sick.[91]
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iv. Civilians
1975  The Second Convention has also contributed to a certain, although not entirely satisfactory, increase in legal clarity with regard to civilians transported by military hospital ships who are not members of the crews of enemy merchant vessels or enemy civil aircraft.
1976  To the authors of the 1899 Hague Convention (III),
the consequences of warfare at sea were confined to the combatants on either side; they – and they alone – needed the protection conferred by the Convention. … In 1907 civilians stood safely outside the arena and required neither consideration nor protection in a Convention expressly stated to be intended as an adaptation to maritime warfare of the principles of the Geneva Convention relating to warfare on land.[92]
1977  Although it was argued that civilians, if they were shipwrecked, were entitled to be collected, treated and transported by military hospital ships,[93] the wording of the Hague Conventions would stand against that conclusion.[94] Certainly, during the Second World War, military hospital ships were not entitled to be employed for the evacuation of civilian refugees. When the ‘German Government wanted to evacuate refugees from the Baltic States in 1939 in a hospital ship, they removed its markings and operated it as an ordinary liner’.[95]
1978  It is important to note that Articles 12 and 13 do not formally extend the Convention’s protective scope to wounded, sick and shipwrecked civilians who do not belong to one of the six categories enumerated in Article 13.[96] Hence, it is safe to conclude that, under the Second Convention, as under its predecessors, rendering assistance to wounded, sick and shipwrecked civilians does not constitute one of the core humanitarian functions of (military) hospital ships. The fact that, according to Article 35(4), hospital ships may not be denied the protection due to them if they are carrying wounded, sick and shipwrecked civilians is not sufficient proof of the contrary. Interpreted in the light of Articles 12 and 13, Article 35(4) may be understood as merely stating that, although the carriage of wounded, sick and shipwrecked civilians goes beyond the primary functions of specially protected (military) hospital ships, it is still to be considered as the performance of a genuinely humanitarian function and, for that reason, does not deprive a hospital ship of its protected status under international humanitarian law. Still, the relation between Article 35(4) and Articles 12, 13 and 22 is not entirely clear.[97]
1979  In any event, Article 35(4) justifies the conclusion that (military) hospital ships are allowed to assist wounded, sick and shipwrecked civilians.[98] This certainly holds true if they are wounded, sick or shipwrecked as a result of naval action.[99] However, since the causes of shipwreck, sickness and injury are irrelevant,[100] every wounded, sick or shipwrecked civilian, of whatever nationality, may benefit from the services of military hospital ships. This finding has two important practical consequences. First, as far as the requirements flowing from the Second Convention are concerned, every wounded, sick or shipwrecked civilian found at sea may be taken on board a military hospital ship, if it is on the scene. It does not matter whether the shipwreck has been caused by armed hostilities, a collision, grounding (‘average’), bad weather or sea conditions, or merely by the poor condition of the vessel. Further, the causes of sickness or injury are equally irrelevant. So, as far as the requirements flowing from the Second Convention are concerned, refugees and migrants found in distress at sea may be assisted by military hospital ships even though they may have decided to take to sea for reasons unrelated to the armed conflict. Second, sick or wounded civilians may be taken on board a military hospital ship in port.[101] In this context it is important to emphasize, however, that rules of international humanitarian law outside the Second Convention, and this depending on the circumstances, may have the effect that such persons found in distress at sea must be taken on board a military hospital ship.[102]
1980  Article 22(1) of Additional Protocol I provides that (military) hospital ships may ‘carry civilian wounded, sick and shipwrecked who do not belong to any of the categories mentioned in Article 13 of the Second Convention’. In view of the above findings, Article 22(1) of the Protocol is not to be considered as having progressively developed international humanitarian law, but as having merely reaffirmed the provisions of the Second Convention. Still, the article has helpfully clarified an issue that was a matter of controversy in the literature.[103]
1981  There is, however, one category of civilians that does not benefit from the assistance provided by military hospital ships: civilians in port or on land who are neither wounded nor sick. The wording of Article 35(4) of the Second Convention is clear on this point. Civilians taken on board a military hospital ship must be in need of assistance because of their physical condition. Although women, children and the elderly are, in principle, considered as vulnerable and thus entitled to special respect and protection,[104] they cannot be considered as wounded or sick unless they are ‘in need of immediate medical assistance or care’.[105] The same applies to civilians who may find themselves in a desperate situation (e.g. refugees on land). The only available remedy is a cartel ship or aircraft, i.e. a specific vessel or aircraft that the Parties to the conflict have, in an agreement, identified as being entitled to transport civilians and refugees without being interfered with by the enemy.[106]
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2. Prohibition of attack and capture
a. Development of the prohibition
1982  In the 1868 Additional Articles, the protected status of (military) hospital ships was described as one of ‘neutrality’. In 1899, the term ‘neutrality’ was rejected as inexact. Article 1 of the 1899 Hague Convention (III) therefore provided that military hospital ships ‘shall be respected and cannot be captured’. It was generally understood that the duty to respect predominantly implied a prohibition of attack and an obligation to protect hospital ships ‘from being made the object of measures employed against ships of war’.[107] Moreover, Article 9, paragraph 1, of the Additional Articles, according to which ‘the stores’, i.e. the cargo, remained ‘under Martial Law’,[108] was dismissed because it was considered to ‘stand in the way of ratification’.[109] Instead, the First Subcommission of the Second Commission of the 1899 Hague Peace Conference agreed on an exemption from capture of military hospital ships ‘provided they have not on board either arms, ammunition or war material’.[110] Eventually, the Second Commission proposed to provide for an exemption from capture in Article 1 and to include the prohibition of the use of military hospital ships for military purposes in Article 4 of the Hague Convention (III).[111] It was considered necessary to explicitly prohibit capture because, according to the concept of booty of war, all enemy government vessels would otherwise have been subject to capture.[112]
1983  Article 1 of the 1907 Hague Convention (X), while, like its predecessors, not explicitly prohibiting attacks against military hospital ships, was also understood as prohibiting not only the capture of hospital ships but also attacks against them, as long as they exclusively served their humanitarian function.[113]
1984  The First and, in particular, the Second World War witnessed numerous attacks on hospital ships. Some of these were due to difficulties in identification or to their deployment in the vicinity of naval hostilities, while others were deliberate.[114] Still, the 1937 draft and the 1947 proposal did not contain an explicit prohibition of attack. The present wording of Article 22 was first introduced in the draft submitted by the ICRC to the 1948 Stockholm Conference and was included in article 19 of the 1948 draft. Obviously, the delegates agreed, in view of the experience of the two world wars, on the need to emphasize the protection of military hospital ships against attacks (although that had already been covered by the duty to respect) and to widen the obligation of belligerents to respect and protect them ‘at all times’.[115]
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b. Prohibition of attack
1985  The prohibition of attack applies to every act of violence aimed at destroying, sinking or otherwise inflicting damage on a military hospital ship. It is not limited to the use of common naval weaponry, such as a warship’s guns, torpedoes, naval mines or missiles, but applies to the use of all methods and means of warfare and to all measures that may have a negative impact on the functioning of a military hospital ship.[116] Prohibited attacks are therefore not limited to the use of conventional weapons that have kinetic effects. They also include the use of means and methods that, by whatever mechanisms or effects, severely interfere with the functioning of the equipment necessary for the operation of a military hospital ship, such as so-called ‘cyber-attacks’.[117]
1986  Because they are specifically constructed or equipped with a view to assisting the wounded, sick and shipwrecked, military hospital ships are often complex platforms. Their structure, components and equipment are to a considerable extent interdependent and are, individually or in their interaction, essential for the performance of their humanitarian functions. Hence, the prohibition of attacks against military hospital ships must be interpreted in the broadest possible sense, having regard to the object and purpose of the prohibition. Furthermore, it applies not only to acts that actually damage or destroy ships or their equipment, but also to acts that have remained unsuccessful or are intercepted or repelled.
1987  However, the prohibition does not apply to damage accidentally or unavoidably inflicted on a hospital ship or its equipment.[118] Rather, the prohibition of attack is limited to intentional attacks and to those launched in neglect of the obligation to take feasible precautions. According to Article 30(4), (military) hospital ships ‘[d]uring and after an engagement … will act at their own risk’. If they are damaged, for instance while they are operating in the immediate vicinity of ongoing hostilities, this is not necessarily considered an attack prohibited under Article 22.[119]
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c. Prohibition of capture
1988  The object and purpose of the prohibition against capturing enemy military hospital ships is to avoid the consequences usually attached to their status as enemy auxiliaries (or warships) and hence as legitimate booty of war, and to safeguard, for the duration of an armed conflict at sea, the performance of their humanitarian functions.
1989  In the naval context, the prohibition of capture applies to all acts of asserting control over a vessel to the exclusion of the flag State concerned.[120] Usually, this will be achieved by deploying a boarding team that will then exercise control over the ship and its crew. Since captured enemy government vessels, as booty of war, need not be adjudicated on by a prize court, ownership passes to the captor as soon as capture has been accomplished.[121]
1990  ‘Capture’ must be distinguished from the measures provided for in Article 31(1), i.e. diversion[122] (in the sense of ‘ordering off’), control and search, and detention. Although all these measures result in an exercise of control, they are temporary and do not aim at an appropriation of the ship.
1991  In view of the specially protected humanitarian functions of military hospital ships and the potential complexity of their design and equipment, the prohibition of capture would, however, fall short of its object and purpose were it limited to acts aimed at acquiring overall control over the hospital ship. Although not expressly provided for, the prohibition of capture also applies to parts of the structure, to the equipment (such as lifeboats) and to the material on board hospital ships, if they, either individually or in concert, are prerequisites for the performance of a hospital ship’s tasks.[123] This finding is not only based on a teleological interpretation, but is affirmed by the drafting history of Article 22. It may be recalled that Article 9, paragraph 1, of the 1868 Additional Articles provides that ‘military hospital ships remain under Martial Law in all that concerns their stores’. This meant that the ‘stores’ of military hospital ships were not protected against capture. In 1899, that exception was removed. Since then, the prohibition of capture has been neither limited nor qualified.
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d. ‘in no circumstances’
1992  According to the wording of Article 22(1) (‘in no circumstances’), the prohibition against attacks on and capture of military hospital ships seems to be absolute. Indeed, both the wording and the object of the provision suggest that, subject to those exceptions expressly provided for in Article 34 of the Second Convention, there are no circumstances that would deprive a military hospital ship of its protection from attack or capture. In particular, such protection does not depend on the presence on board of the wounded, sick or shipwrecked. It is sufficient for the ship to be ‘an instrument ready to assist the victims’.[124] Moreover, it is immaterial whether a military hospital ship is lying in port (neutral, own or allied), heading towards its deployment area, actively engaged in rescuing the shipwrecked, or returning from an engagement.
1993  The loss of protection is subject to strict requirements and procedures. According to Article 34(1), the protection of (military) hospital ships ceases if they ‘are used to commit, outside their humanitarian duties, acts harmful to the enemy’, even if they continue to treat and transport the wounded, sick and shipwrecked.[125] The obligation to use military hospital ships exclusively for recognized humanitarian functions is a necessary corollary of their far-reaching, almost absolute protection. The very fact that the Second Convention expressly provides for the loss of protection is clear evidence that the protection under Article 22 is relative in nature. It depends on whether military hospital ships comply with the conditions for their exemption from attack or capture, in particular that they are not ‘used to commit, outside their humanitarian duties, acts harmful to the enemy’.[126]
1994  Lastly, it is obvious that, despite the protection to which they are entitled, military hospital ships will always run the risk of being affected by armed hostilities, especially while in port and while located in the vicinity of military objectives.[127] Of course, mere presence in an enemy port does not render a military hospital ship a lawful target by location. Therefore, the attacker remains bound by the rules of the conduct of hostilities, for example the obligation to take all feasible precautions to spare a military hospital ship lying in a port or near another vessel that qualifies as a military objective.[128] However, at the same time, the commander or master of a military hospital ship is obliged not to ‘expose his ship more than is absolutely necessary’,[129] i.e. the ship should avoid hazardous areas if that is possible without impeding the performance of its humanitarian tasks.
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3. Obligation to respect and protect
1995  While the obligation to respect military hospital ships was already contained in Article 1 of the 1899 and 1907 Hague Conventions, those provisions lacked any qualification. The obligation to respect was understood as prohibiting attacks against military hospital ships while not unduly interfering with or hampering the exercise of their humanitarian functions.[130] In other words, the Hague Conventions were limited to prohibitions and did not oblige the Parties to the conflict to take positive, i.e. protective, measures for the benefit of military hospital ships.
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a. ‘respect and protect’
1996  The obligation to respect is not exhausted by the explicit prohibition of attacks against military hospital ships.[131] Rather, it obliges belligerents at all times (including when they establish special zones under the law of naval warfare)[132] to refrain from all actions that interfere with or prevent such ships from performing their humanitarian tasks,[133] unless and to the extent that such interference is explicitly provided for in the Second Convention (Article 31). For instance, a military hospital ship may not be prevented from launching and recovering its lifeboats for the rescue of the shipwrecked, unless assistance has been refused or it has been ordered off in accordance with Article 31(1).
1997  To ‘protect’ means to ‘keep safe from harm or injury’[134] or ‘to come to someone’s defence, to lend help and support’.[135] The duty to protect implies the taking of positive measures by a Party to the conflict to ensure respect for military hospital ships by others (e.g. non-State actors, in particular pirates).[136]
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b. ‘at all times’
1998  The wording and context of the obligation to respect and protect military hospital ships ‘at all times’ seem to suggest that its temporal scope of application may not be suspended or terminated. Certainly, ‘at all times’ must be understood as meaning ‘while hostilities last’,[137] or as long as international humanitarian law applies. Still, it is difficult to determine the meaning of this element without reference to the ‘circumstances’ or to the situation a military hospital ship might find itself in.[138] Hence, it is safe to conclude that the obligation to respect and protect is not dependent on the presence of the wounded, sick and shipwrecked on board. The obligation to respect and protect only ceases if a military hospital ship is used to commit acts harmful to the enemy and if a warning has remained unheeded. Accordingly, ‘at all times’ is subject to the same exceptions as ‘in no circumstances’.[139]
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4. Notification
a. Development of the rule
1999  Article 1 of both the 1899 and the 1907 Hague Conventions provided that the names of military hospital ships must be ‘communicated to the belligerent Powers’ at the beginning (1899), the commencement (1907) or during the course of hostilities, and in any case ‘before they are employed’.[140] While the form of communication was left open, one can deduce from the preparatory work of those treaties that publication in the belligerent’s official gazette was considered sufficient only vis-à-vis neutral States.[141] In relations between the belligerents, only a direct communication would comply with the provision. Formal notification via diplomatic channels was the usual means for such communication.
2000  In 1899, the delegates did not consider it necessary for the communication to contain more than the name of the ship.[142] As for the time of the communication, the original draft prepared for the 1899 Conference required that it be done ‘before they are employed’. Since that wording could be interpreted as meaning that only a notification sent long before the opening of hostilities would suffice, the wording was changed.[143]
2001  Article 9 of the 1937 draft and of the 1947 proposal did not contain any changes to the original wording as regards the time and content of the communication. That changed with article 19 of the 1948 draft, according to which the protection of military hospital ships was dependent on the condition ‘that their names and descriptions have been notified to the belligerent Powers and that the handing out of this notification has been confirmed by the Protecting Power thirty days before the said ships are employed’. The ICRC doubted the value of the last condition, and considered the 30-day period too long.[144] At the 1949 Diplomatic Conference, the British delegate agreed with the ICRC and proposed deleting the last condition.[145] He also suggested the addition of a paragraph giving the details to be contained in the notification.[146]
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b. Form, addressees and contents of the notification
2002  The purpose of notification as a precondition for protection under Article 22(1) is to inform the adversary in a reliable, precise and timely manner of the deployment of military hospital ships, thus enabling the adversary to advise its armed forces of their presence in the region of operations. Hence, it would not be sufficient for the flag State of a military hospital ship to confine itself to some form of official announcement, such as publication in the official gazette. Instead of ‘communication’, as in the 1899 and 1907 Hague Conventions, the term ‘notification’ is used to emphasize the need for exchange of information between the States party to an armed conflict. Traditionally, a ‘notification’ was a formal diplomatic communication, such as a note verbale.[147] The delegates to the 1949 Diplomatic Conference may have believed that such a formal notification was the only reliable method of communicating the deployment of a military hospital ship. Certainly, the communication must be attributable to the flag State and must reliably originate from a competent authority, for example the Ministry of Foreign Affairs or the respective military authority. It is, however, doubtful whether it must be limited to the traditional and formal manner in which States used to communicate. The aim is to relay the necessary information from one Party to the armed conflict to another. As long as there is sufficient certainty that it has reached the competent authorities of the addressee, there seems to be no need to limit the flag State to a given form of communication.
2003  The information concerning military hospital ships must be ‘notified to the Parties to the conflict’, which certainly includes the adverse Parties. If the notification is made at the beginning of or during the hostilities, it may be sent through the Protecting Power.[148] Another option would be to make use of the ICRC as an intermediary between the belligerents.[149] If the notification is made prior to the commencement of an armed conflict, it may be ‘sent to States in general or to the probable parties to a foreseeable armed conflict’.[150] There is no requirement to inform neutral States of the deployment of military hospital ships. Of course, if they are destined for a neutral port, their access will in any event be subject to prior authorization by the neutral State concerned. Still, it is desirable for the notification to be brought to the knowledge of neutral States as well, even though the ships may not call in one of their ports,[151] because neutral warships and other State ships will continue to use the high seas and it would certainly enhance the protection of military hospital ships if neutral States were aware not only of their presence but also of their names and other characteristics. Lastly, while not a legal requirement, a Party to the conflict may also decide to include information concerning its military hospital ship in a ‘Notice to Mariners’.
2004  The information on military hospital ships that must appear in the notification are their names and their ‘descriptions’. As regards the meaning of the latter term, see section D.2.
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c. Time limit
2005  The 1899 and 1907 predecessors of Article 22 did not provide for a time limit. This requirement was first introduced during the 1948 Stockholm Conference. During the 1949 Diplomatic Conference, the originally proposed time limit of 30 days was considered to ‘result in an increased degree of protection’ because ‘there was sufficient time [for the adversary] to communicate it to its own vessels’.[152] Although the time limit was reduced to ten days, it became clear that its purpose was to provide the Parties to the conflict with sufficient time to inform their armed forces and other relevant authorities of the presence of enemy military hospital ships and to enable them to identify those ships according to the information given by the adversary. In other words, the time limit was introduced with a view to increasing the safety of military hospital ships.
2006  In 1949, a period of ten days was considered sufficient to achieve that purpose because of ‘the means of rapid communication … available’.[153] While communications technology has improved considerably since 1949, that alone does not justify a reduction of the time limit, because the wording is abundantly clear. The foregoing remains without prejudice to the possibility, for the Parties to the armed conflict, to conclude a special agreement in the sense of Article 6, by virtue of which they would grant the special protection of Article 22 before the expiry of the ten days.[154] Lastly, even before the expiry of the ten days, the vessel will qualify as a civilian object.
2007  It must be borne in mind that this time limit is a minimum requirement, in the sense that the notification must be made no later than ten days before military hospital ships are employed. There is general agreement that the ‘notification does not have to be [given] precisely ten days before they are used, but can take place at an earlier date’.[155] Hence, ‘States may beforehand make general notification of the characteristics of their hospital ships’[156] or they may notify other States in anticipation of a specific international armed conflict.[157] However, while the latter case does not create any substantial difficulties, a general notification made long before the commencement of an armed conflict may be problematic from a practical perspective.[158] The purpose of the notification is to contribute to the safety of military hospital ships. It is not a mere formality that, once complied with, becomes irrelevant. In other words, the mere fact that the adversary was informed at one point and thus has, or should have, knowledge of the employment of enemy hospital ships, cannot in practice always be considered sufficient for ensuring the respect and protection due to military hospital ships during an international armed conflict. Therefore, it is indeed ‘desirable, by way of precaution, to confirm earlier notifications at the opening of hostilities’.[159] It should be emphasized that, once a notification has been made, the precondition for the protected status of a military hospital ship has been fulfilled, even if the specific armed conflict was not foreseeable at the time notification was given. Only the early and general notification, not its confirmation, is therefore constitutive of protection.
2008  It seems to follow from the wording of the provision, and from subsequent State practice, that the protection of military hospital ships comes into effect only after the ten-day time limit has elapsed. According to Article 22(1), the protection of military hospital ships is dependent only on the notification having been sent ten days prior to their employment (‘on condition that’). There is no indication that special protection is to commence prior to the expiry of the time limit. Moreover, States have refrained from employing their military hospital ships earlier than ten days after the notification has been communicated.[160] However, the purpose of the time limit is to enable the adversary to inform its armed forces of the deployment of a military hospital ship, and thus to enhance its safety.[161] If the addressee of the notification has not only taken note of its content, but also been able to inform its armed forces of the ship’s employment and its characteristics, there is no reason to deny a military hospital ship protection under Article 22(1). Still, as Pictet rightly stated, the ‘commissioning of a hospital ship is an important event[;] … it cannot be improvised. … [T]here is no reason why the notification should not be sent when the ship is nearing completion, so that not a single day need be lost.’[162]
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D. Paragraph 2: Characteristics to be communicated
1. Development of the rule
2009  In 1899, the delegates to the First Hague Peace Conference did not consider it necessary for the notification to contain ‘any other statement’ than the name of a military hospital ship.[163] The same approach was taken in 1907. During the 1947 Conference of Government Experts, the US delegate suggested that the content of the notification should be defined in the Convention.[164] Draft article 19, adopted at the 1948 Stockholm Conference, already provided for a notification containing the ‘names and descriptions’ of military hospital ships. During the 1949 Diplomatic Conference, the British delegation suggested the addition of the following paragraph: ‘The details which shall be given in the notification must include gross registered tonnage, length from bow to stern, and number of masts and funnels.’[165] The British delegate explained that ‘experience had shown that a standardization of the required particulars was essential’.[166] Eventually, the British proposal became paragraph 2 of the present article.
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2. Characteristics
2010  The characteristics of military hospital ships that must appear in the notification are self-explanatory, save for the indication of their tonnage. The measurement of a ship’s tonnage is a rather complicated matter.[167]
2011  An example of characteristics made known in accordance with paragraph 2 is the US circular note of 16 November 1990 that was communicated prior to the outbreak of the 1991 Gulf War:
The two hospital ships are ‘USNS Mercy’ (T-AH 19) and ‘USNS Comfort’ (T-AH 20). These two converted San Clemente class tankers, Ex-SS Worth and Ex-SS Rose City, have identical characteristics: tonnage 54,367 gross, 35,958 net; dimensions feet (meters) 894 length, 105.6 width, 32.8 draft, I.E. depth, (272.6 x 32.2 x 10 meters); one mast forward, one funnel aft.[168]
2012  It is understood that, under international humanitarian law as it now stands, the characteristics enumerated in Article 22(2) are what must appear in the notification. The example of the US circular note shows that States do not consider it necessary to give a fuller description, although it would enhance the protection of military hospital ships if a notification included ‘all available information on the means whereby the ship may be identified’.[169] The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea suggests that
in addition to the facts indicated in Article 22 of the Second Geneva Convention, the following information be included in the notification:
– the call sign or other recognised means of identification of the hospital ship;
– radio frequencies guarded and languages used;
– whether the hospital ship is accompanied by other medical transports, for example, medical helicopters;
– whether it is equipped with means of defence; and
– the position of the hospital ship, its intended route and estimated time en route and of departure and arrival as appropriate.[170]
2013  The ‘recognised means of identification’ refer to those set out in Annex I of Additional Protocol I and could, moreover, include the acoustic signature of the hospital ship,[171] providing the acoustic signature could enhance protection against submarines, naval mines and torpedoes equipped with targeting technology. The same holds true for the electromagnetic signature of hospital ships, because some naval mines and torpedoes respond to such signatures. Similarly, to the extent a particular hospital ship has an IMO number, a Party to a conflict may also communicate that number. With regard to a merchant vessel that has been converted to a hospital ship, while not legally required, it may also be useful to ‘indicate the previous use of the vessel and any major modifications carried out’.[172]
2014  The above details suggested by the San Remo Manual may in certain situations contribute to enhancing the safety of military hospital ships. Very often, however, governments will be unwilling to provide any information on the position or route of their military hospital ships. Because of their size, such ships are comparatively slow and must be ordered to their area of engagement well in advance. Disclosing the routes and positions of military hospital ships could mean informing the enemy of the location of a planned naval or military operation. Moreover, in situations of asymmetric threats, for instance from non-State actors or terrorists, it is unlikely that governments will be prepared to disclose such information.
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Select bibliography
Colombos, C. John, The International Law of the Sea, 6th revised edition, Longmans, London, 1967.
Fenrick, William J., ‘Legal Aspects of Targeting in the Law of Naval Warfare’, Canadian Yearbook of International Law, Vol. 29, 1992, pp. 238–282.
Galloy, J., L’Inviolabilité des navires-hôpitaux et l’expérience de la guerre de 1914–1918, Librairie du Recueil Sirey, Paris, 1931.
Garner, James W., International Law and the World War, Vol. 1, Longmans, Green & Co., London, 1920.
Grandclément, Vice-amiral, ‘Les navires-hôpitaux’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 20, No. 233, May 1938, pp. 395–427.
Grimord, David L. and Riggs, G. William, ‘The Unique and Protected Status of Hospital Ships under the Law of Armed Conflict’, in Richard B. Jaques (ed.), Issues in International Law and Military Operations, International Law Studies, U.S. Naval War College, Vol. 80, No. XIV, 2006, pp. 263–269.
Grunawalt, Richard J., ‘Hospital Ships in the War on Terror: Sanctuaries or Targets?’, Naval War College Review, Vol. 58, No. 1, Winter 2005, pp. 89–119.
IHS Jane’s International Defence Review, ‘Fighting Hospital Ships’, Vol. 25, No. 3, March 1992, p. 246.
Junod, Sylvie-Stoyanka, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985.
Mikos-Skuza, Elżbieta, ‘Hospitals’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 207–229.
Mossop, J.C., ‘Hospital Ships in the Second World War’, British Year Book of International Law, Vol. 24, 1947, pp. 398–406.
O’Connell, Daniel P., The Influence of Law on Sea Power, Manchester University Press, 1975.
The International Law of the Sea, I.A. Shearer (ed.), Vol. I–II, Oxford University Press, 1984.
Lauterpacht, Hersch (ed.), Oppenheim’s International Law, 7th edition, Longmans, Vol. II, Green and Co., London, 1952.
Pearce Higgins, Alexander, ‘Hospital Ships and the Carriage of Passengers and Crews of Destroyed Prizes’, Law Quarterly Review, Vol. 26, 1910, pp. 408–414.
– ‘The Revision of the Hague Convention (No. X of 1907) for the Adaptation of the Principles of the Geneva Convention to Naval Warfare’, British Year Book of International Law, Vol. 14, 1933, pp. 141–143.
Smith, Arthur M., ‘Has the Red-Cross-Adorned Hospital Ship Become Obsolete?’, Naval War College Review, Vol. 58, No. 3, Summer 2005, pp. 121–131.
Takahashi, Sakuyé, International Law Applied to the Russo-Japanese War, with the Decisions of the Japanese Prize Courts, Stevens and Sons, Ltd., London, 1908.
Tucker, Robert W., The Law of War and Neutrality at Sea, US Government Printing Office, Washington, D.C., 1957.

1 - The specially protected category of military hospital ships does not exist under the law of non-international armed conflicts. After all, such conflicts will in most cases be limited to the territory, including the internal waters and the territorial sea, of the respective State. Nonetheless, ships used in a non-international armed conflict for the transport and treatment of the wounded, sick and shipwrecked will qualify as protected medical transports as long as they are exclusively employed in their humanitarian role. See Additional Protocol II, Article 11, and Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, commentary on Rule 29, pp. 99–100, available at https://www.icrc.org/customary-ihl/eng/docs/v1_rul.
2 - Military hospital ships must also be distinguished from ‘specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases’ covered by Article 21 of the Fourth Convention.
3 - On the concept of booty of war, see Yoram Dinstein, ‘Booty in Warfare’, version of March 2008, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
4 - Among those States operating military hospital ships at the time of writing (2017) are the People’s Republic of China (hospital ship No. 866 Peace Ark), the Russian Federation (Irtysh, Svir and Yenisey) and the United States (USNS Comfort and USNS Mercy).
5 - See Grunawalt; see also Grimord/Riggs, pp. 266–267.
6 - See Smith, p. 126: ‘[T]he Royal Navy initiated the innovative construction of an internal airtight citadel, housing a casualty-receiving hospital, in a portion of its grey-hull helicopter-training ship RFA Argus, recognizing that this arrangement best suited the needs of the combatant command.’ See also IHS Jane’s International Defence Review, p. 246.
7 - Moreover, without hospital ships, States will no longer be capable of providing medical assistance to the victims of an international armed conflict between other States. According to Article 22(2)(a) of Additional Protocol I, military hospital ships may be made available to a Party to a conflict by ‘a neutral or other State which is not a Party to that conflict’.
8 - Military hospital ships were to ‘accompany the fleet to sea and wait on the outskirts of the engagement with a view to picking up the wounded and drowning’; Mossop, p. 399. For the practice of States during the 18th and 19th centuries, see Grandclément. For the use of vessels to transport the wounded in antiquity, see Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 154. For an example of hospital ships used in the 16th century, see Neil Hanson, The Confident Hope of A Miracle: The True History of the Spanish Armada, Vintage, 2003, p. 407.
9 - Mossop, p. 399.
10 - See Additional Articles relating to the Condition of the Wounded in War (1868), Article 9.
11 - Article 9 of the Additional Articles distinguished between ‘military hospital ships’ (para. 1) and ‘floating hospital ships’ (para. 2). In paragraph 2, the latter were referred to as ‘vessels not equipped for fighting which, during peace, the government shall have officially declared to be intended to serve as floating hospital ships’. During the 19th century, suitably equipped vessels whose engines had been removed were used for the treatment of sailors who had contracted contagious diseases and could not be treated in hospitals on land (see Milt Riske, ‘A History of Hospital Ships’, Sea Classics, March 1973, p. 2). Hence, the 1868 distinction was appropriate. Interestingly, however, the Commission of Naval Experts, convened in 1937 by the ICRC to review the 1907 Hague Convention (X), seemingly assumed that ‘floating hospital ships’ were hospital ships belonging to private individuals or relief societies of either neutral or belligerent countries. The Commission emphasized that both categories were governed by the same rules and therefore abandoned the use of two different terms; see Naval Expert Report of 1937, p. 23. The ICRC stated that, ‘had the old terminology been retained there would, indeed, have been a risk … that the generic, though nowhere defined, expression “hospital ships” would come to be identified with naval and military hospital ships, to the exclusion of hospital ships belonging to private individuals or relief societies in belligerent and neutral countries’. Ibid. fn. 1.
12 - Pictet suggests that, under the 1868 regime, military hospital ships were liable to capture; see Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 156.
13 - According to Article 9, paragraph 1, of the Additional Articles, ‘military hospital ships remain under Martial Law in all that concerns their stores’. This means that only the ‘stores’ (cargo), but not the ships as such, were liable to capture. The ‘complete neutrality’ accorded to ‘floating hospital ships’ under Article 9, paragraph 2, included their stores. Hence, the conclusion that military hospital ships enjoyed a status of ‘relative neutrality’ – which, however, included protection from capture – seems correct.
14 - Proceedings of the Hague Peace Conference of 1899, p. 444.
15 - Ibid. p. 33.
16 - Ibid. p. 34.
17 - Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 63.
18 - See also Article 41(1) of the 1913 Oxford Manual of Naval War.
19 - See, inter alia, Lauterpacht, pp. 504–505; Colombos, pp. 602–603; and Galloy. For allied hospital ships attacked during the Second World War, see United Kingdom, House of Commons Debates, 27 May 1943, Vol. 389, cols. 1740–1743, which lists 36 attacks in the period from May 1940 to May 1942. For the attacks against the British hospital ships Dover Castle and Llandovery Castle during the First World War, see G.G. Battle, ‘The Trials Before the Leipsic [sic] Supreme Court of Germans Accused of War Crimes’, Virginia Law Review, Vol. 8, No. 1, 1921, pp. 1–26, at 15–17, and Fenrick, pp. 247–248.
20 - See Report of the Preliminary Conference of National Societies of 1946, p. 58: ‘In their Report to the Conference, the International Committee stated that during the recent War, controversy had arisen between belligerents with regard to the minimum tonnage of hospital-ships. Some belligerents refused to recognise certain hospital-ships as such, on the grounds of insufficient tonnage.’ The issue of tonnage is now addressed in Article 26 of the Second Convention.
21 - During the 1937 meeting of the Commission of Naval Experts, the ICRC had proposed adding the words ‘to transporting them, or to evacuating the wounded and sick of military forces’. The Commission agreed that hospital ships ‘may be used for the transport or evacuation of the wounded of the land armies from one territory to another’. The ‘majority of its members, however, thought it unnecessary to specify this in Article 9, as the practice was generally recognized’; Naval Expert Report of 1937, p. 25. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 64 (the British proposal).
22 - See paras 1934, 1940 and 1949.
23 - See Report of the Preliminary Conference of National Societies of 1946, p. 58.
24 - See Report of the Conference of Government Experts of 1947, p. 88.
25 - See Draft Conventions adopted by the 1948 Stockholm Conference, p. 38.
26 - Of course, Articles 12 and 13 of the Second Convention have widened the scope of protection, especially to the crews of merchant vessels. For this, and for the question of whether civilians may benefit from hospital ships, see the discussion in section C.1.f.ii–iv.
27 - For the interpretation of the words ‘at sea’ for the purpose of the Second Convention, see the commentary on Article 12, section D.2.
28 - See the definition of ‘boat’ in René de Kerchove, International Maritime Dictionary, Van Nostrand Reinhold, New York, 1961.
29 - In its ordinary meaning, a ‘ship’ is ‘a large seagoing boat’, and a ‘boat’ a ‘small vessel propelled by oars, sails, or an engine’ (Concise Oxford English Dictionary, 12th edition, 2011, p. 1330). The fact that in the equally authentic French text the term ‘bâtiment’ used in the 1907 Hague Conventions was replaced by ‘navire’ is but of minor help. The international law of the sea does not provide a generally accepted definition of the term ‘ship’. See George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention, Martinus Nijhoff Publishers, Leiden, 2012, pp. 300–301, and Vaughan Lowe, ‘Ships’, in Nerina Boschiero et al. (eds), International Courts and the Development of International Law: Essays in Honour of Tullio Treves, T.M.C. Asser Press, The Hague, 2013, pp. 291–298. In 2016, a regional treaty, the African Charter on Maritime Security and Safety and Development in Africa, defined ship as ‘a vessel or mobile facility of any type whatsoever operating in the marine and or inland waterways environments and includes hydrofoil boat, aircushion vehicles, submersibles, floating craft and fixed or floating platforms operated for the purpose of providing movement of goods and passengers and the provision of marine services’ (Article 1(1)).
30 - Arguably, a hospital ship need not be self-propelled. Hence, platforms equipped for the treatment of the wounded, sick and shipwrecked but towed by a vessel may qualify as hospital ships.
31 - See O’Connell, 1984, Vol. II, pp. 747–750.
32 - The lifeboats of hospital ships are protected pursuant to Article 26; see the commentary on that provision, section C.2.b.
33 - For a detailed discussion of the historical background and State practice, see the commentary on Article 26, section B.
34 - During the 1949 Diplomatic Conference, the US and British delegates insisted on a minimum gross tonnage of 1,000 or 2,000; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 63–65.
35 - For details, see Commodore Stephen Saunders, IHS Jane’s Fighting Ships 2013–2014, Jane’s Information Group, London, 2013.
36 - See Proceedings of the Hague Peace Conference of 1899, p. 36.
37 - Additional Articles relating to the Condition of the Wounded in War (1868), Articles 9 and 13; Hague Convention (III) (1899), Articles 1, 2 and 3; and Hague Convention (X) (1907), Articles 1, 2 and 3.
38 - Second Convention, Articles 24 and 25.
39 - For the definitions of ‘warship’ and ‘auxiliary vessel’, see the commentary on Article 14, para. 1520.
40 - Concise Oxford English Dictionary, 12th edition, 2011, p. 906.
41 - For further details, see the commentary on Article 32, para. 2325.
42 - Until 1986, every US military hospital ship was designated a ‘United States Ship’ (‘USS’), which is the usual designation for US warships. These ships, which were assimilated to hospitals on shore, were commanded by naval medical officers detailed by the Department of the Navy. However, they were not manned by a crew under regular military discipline, but by a ‘merchant crew and officers’. See United States, Navy Regulations, 1913, Article 2914. If the crew also consisted of naval reservists, they had to be on inactive duty. The civilian masters performed the regular duties with regard to the navigation of the ships. Hence, despite their ‘USS’ designation, US military hospital ships did not qualify as warships, but as naval auxiliaries.
43 - For more information, see section C.1.d.
44 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 40.
45 - The 1899 Hague Convention (III) and the 1907 Hague Convention (X) refer to ‘States’.
46 - See Articles 5, 8, 10, 11, 17 and 40.
47 - See Article 38.
48 - See UN Convention on the Law of the Sea (1982), Article 29.
49 - See United States, Naval Handbook, 2007, para. 2.2.2.
50 - See Proceedings of the Hague Peace Conference of 1899, pp. 32–37. See also the commentary on Article 25, para. 2088.
51 - Under Article 1 of both the 1899 Hague Convention (III) and the 1907 Hague Convention (X), military hospital ships had to be ‘constructed or assigned’ for the humanitarian purpose of assisting the wounded, sick and shipwrecked. Since the verb ‘construct’ is synonymous with ‘build’, Article 22 did not introduce any changes to the law for ships that have been built for the particular purpose of serving as military hospital ships.
52 - During the Falkland/Malvinas Islands conflict (1982), for instance, Great Britain converted the cruise ship SS Uganda, as well as several smaller survey vessels, into hospital ships with over 1,000 beds, which treated more than 700 wounded or sick combatants throughout the conflict. Similarly, Argentina converted the former Antarctic support ship ARA Bahía Paraíso into a hospital ship, along with two other vessels. For more details, see J.G. Williams, et al., ‘Assessment of Ships Taken Up From Trade and Other Ships for Use as Emergency Facilities in Wartime’, Journal of the Royal Naval Medical Service, Vol. 69, 1983, pp. 17–20; J.M. Beeley, ‘Hospital ship SS Uganda – at war in the South Atlantic’, Journal of the Royal Naval Medical Service, Vol. 69, 1983, pp. 21–25; R.J. Leicester, ‘Conversion of SS Uganda to a Hospital Ship’, Journal of the Royal Naval Medical Service, Vol. 69, pp. 10–16; Junod, p. 24; Captain Arthur M. Smith, ‘Until the First Bloodied Body Goes By’, Naval Institute Proceedings, Vol. 119, 1993, pp. 64–69; and David Foxwell and Rick Jolly, ‘The RFA Argus: A Gas-Tight, Floating Field Hospital’, International Defense Review, Vol. 24, No. 2, 1991, pp. 116–117. For the more general question of requisitioning of merchant ships in times of war, see Elizabeth Chadwick, ‘Merchant Ship Conversion in Warfare, the Falklands (Malvinas) Conflict and the Requisition of the QE2’, Journal of the History of International Law, Vol. 12, No. 1, 2010, pp. 71–99.
53 - See Article 26.
54 - In 1899, however, there was already general agreement that, to avoid abuse, the assignment of a vessel to hospital service could not, after notification had been given to the adversary, be changed while the war lasted. Otherwise, a ship assigned as a hospital ship could reach a given destination and then be transformed into a warship. See Proceedings of the 1899 Hague Peace Conference, pp. 33–34. For the current rule, see Article 33.
55 - This is particularly relevant for merchant vessels transformed into military hospital ships, see section C.1.d.
56 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 202.
57 - ‘Assist’ means ‘help … by doing a share of the work’ or ‘by providing money or information’; Concise Oxford English Dictionary, 12th edition, 2011, p. 79.
58 - See Naval Expert Report of 1937, p. 25.
59 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 64.
60 - At its 31st meeting, Committee I adopted Article 19 (later Article 22 of the Second Convention) without any further amendments; see ibid. p. 145.
61 - See also Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1536: ‘give medical care or attention to’.
62 - See also Article 8(e) of Additional Protocol I, which, in its list of ‘medical purposes’, explicitly includes ‘first-aid treatment’. For a discussion of the legality of transporting convalescent personnel, see section C.1(f)(i).
63 - Mossop, p. 401.
64 - See also Pearce Higgins, 1933, p. 142: ‘the whole spirit as well as the words of the articles [of Hague Convention (X)] point to legitimating of the giving of assistance to sick and wounded by bringing the necessary material and personnel to the place where they may be needed’.
65 - See Mossop, p. 401: ‘[I]t would not be a legitimate use of a hospital ship simply to visit neutral ports and there collect medical stores under the immunity afforded by the Convention.’
66 - In its report, Committee I of the 1949 Diplomatic Conference explained: The intention of this provision is to prevent hospital ships being used as a means of transport for large quantities of material, in particular rolling-stock, or large units of medical personnel. Had this paragraph not been inserted, difficulties might have arisen from the presence on board a hospital ship of personnel on their way to undertake the care of wounded and sick, on the pretext that they were not members of its usual personnel. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 203.
67 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1373.
68 - In the Proceedings of the Hague Peace Conference of 1899, p. 403, it was explained that: The rules set forth are to be applied from the moment that there are wounded and sick on board sea-going vessels, it being immaterial where the wound was given or sickness contracted, whether on land or at sea. … As this observation seems to us to respond fully to the remarks made in the subcommission on this point, we think it unnecessary to insert any provision dealing especially with it. In the Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 310 , it was merely stated that Article 11 of the Hague Convention (X) ‘corresponds to Article 8 of the Convention of 1899, which it completes to harmonize with Article 1, paragraph 1, of the Geneva Convention’. Tucker (p. 118) seems to believe that, under the Hague Convention, protection was accorded only to ‘those combatants sick or wounded as a result of hostilities at sea’.
69 - One delegate remarked that the ‘provisions of the Geneva Convention of 1864 and the additional Articles of 1868 did not provide for the case of the transportation by sea of the sick and wounded of land armies’. Since that issue had arisen during both the Sino-Japanese War and the Greco-Turkish War, the delegates considered it necessary for the Committee’s report to take it into consideration; see Proceedings of the Hague Peace Conference of 1899, p. 453.
70 - During the 1937 Commission of Naval Experts, the ICRC had proposed adding the words ‘to transporting them, or to evacuating the wounded and sick of military forces’. The Commission agreed that hospital ships ‘may be used for the transport or evacuation of the wounded of the land armies from one territory to another’. The ‘majority of its members, however, thought it unnecessary to specify this in Article 9, as the practice was generally recognized’; see Naval Expert Report of 1937, p. 25.
71 - Pearce Higgins, 1933, p. 142.
72 - Mossop, p. 399, believes that that was ‘a usage which … was not contemplated by the authors of a convention framed to protect the casualties of maritime war’.
73 - See Mossop, p. 400; Tucker, pp. 119–120; and Pearce Higgins, 1933, p. 142.
74 - Tucker, p. 118.
75 - See Naval Expert Report of 1937, p. 25.
76 - See Tucker, p. 119.
77 - Mossop, p. 400.
78 - Ibid.
79 - See Submarine Protocol (1936). See also Pearce Higgins, 1910, pp. 409–412.
80 - Mossop, p. 400.
81 - For State practice during the two world wars, see O’Connell, 1975 pp. 46–50, and Tucker, pp. 64–66.
82 - See International Military Tribunal for Germany, Case of the Major War Criminals, Judgment, 1946, p. 558, where in relation to one of the accused, Admiral Dönitz, it was held that British merchant vessels which had been armed or integrated into the war effort had lost their protection. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 60.
83 - See Tucker, p. 119. See also the commentary on Article 13, para. 1500.
84 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 139–140. For the continuing validity of prize law, see Helsinki Principles on the Law of Maritime Neutrality (1998), para. 5.2; United States, Naval Handbook, 2007, paras 7.4–7.4.2.; and James Kraska, ‘Prize Law’, version of December 2009, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
85 - Pearce Higgins, 1910, p. 414; see also Colombos, p. 591.
86 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 40, and Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 27.
87 - See Hague Rules of Air Warfare (1923), Articles 57 and 58.
88 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 67 and 70; Helsinki Principles on the Law of Maritime Neutrality (1998), para. 5.1.2; and Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 174.
89 - See United States, Naval Handbook, 2007, para. 7.5.
90 - See Pearce Higgins, 1910, pp. 412–414.
91 - The exceptional destruction of neutral civil aircraft captured as prize at sea or in the airspace above is not feasible without clearly violating international humanitarian law, unless the aircraft in question is a hydroplane that has been forced to land at sea; see Hague Rules of Air Warfare (1923), Article 59.
92 - Mossop, p. 399.
93 - Ibid. p. 400: ‘the sick and wounded civilian has not so far, illogical though it might seem to the framers of the Convention, obtained protection, unless he or she is shipwrecked or falls within the limited categories mentioned above’. Mossop also notes that, during the Second World War, protection was extended to ‘sick and wounded persons attached to the armed forces generally, whether on land, at sea, or in the air, and later to the sick and wounded wives and dependants of both classes’.
94 - The Hague Conventions were likewise inapplicable to sick and wounded civilians taken in port. Therefore, Mossop (p. 400) suggests that, ‘quite apart from the desirability of specifying the classes of casualties entitled to be carried, it is essential as a matter of both logic and common humanity to extend the protection offered by hospital ships to sick and wounded civilians when the Convention is next revised’.
95 - Ibid. p. 399.
96 - Tucker, p. 120, fn. 77, rightly observes that the ‘fact that “shipwreck” is defined as meaning “shipwrecked from any cause” does not alter this situation, since whatever the cause it still applies only to the persons mentioned in Article 13’.
97 - See also ibid. fn. 76: ‘May a belligerent at least object to such carriage … ? This ambiguity and potential source of confusion with respect to a highly important matter must be regarded as a serious defect in the drafting of the 1949 Convention.’
98 - For further details, see the commentary on Article 35, section G.
99 - This is conceded by Tucker, but he emphasizes that ‘this is not expressly provided for in the Convention’ (ibid.).
100 - See section C.1.f.i.
101 - For the opposing view, see Tucker, p. 120, fn. 76.
102 - For an overview of these rules, see the commentary on Article 21, para. 1872.
103 - See Tucker, p. 120, fn. 76.
104 - For this argument, see Mossop, p. 400.
105 - See Article 8(a) of Additional Protocol I, which expressly includes ‘the infirm or expectant mothers’.
106 - For the categories of cartel ships and aircraft, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 47(c), and Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 1(g) and 64.
107 - See Proceedings of the Hague Peace Conference of 1899, p. 34.
108 - This meant that the ‘stores’ could be captured and would, as booty of war, ‘become the property of the captor’. However, Article 9, paragraph 1, also provided that the captor ‘must not divert them from their special appropriation during the continuance of the war’.
109 - See Proceedings of the Hague Peace Conference of 1899, p. 445.
110 - See Proceedings of the Hague Peace Conference of 1899, pp. 450–451. The Subcommission adopted, by a vote of 14 to 2, a French proposal to that effect that had been sponsored by the British delegation. Interestingly, the British delegate, together with the US delegate, voted against the French proposal (p. 451). See also Article 35(3).
111 - See Proceedings of the Hague Peace Conference of 1899, p. 33.
112 - See ibid. p. 34.
113 - Ibid. See also Proceedings of the Hague Peace Conference of 1907, Vol. I, p. 63.
114 - See the commentary on Article 43, para. 2722. See also Tucker, p. 120. See, further, the statement by the US Department of State with regard to alleged attacks on Japanese hospital ships: 3. It must be pointed out … that international law expressly recognizes certain circumstances under which belligerents may be unable to accord immunity to hospital ships. These circumstances arise, for example, when a hospital ship at its own risk and peril stations itself in the vicinity of a legitimate military target whether in port or on the high seas, or when a hospital ship fails to provide itself with adequate and clearly visible markings and illuminations as it is under obligation to do by the terms of Article 5 of the Hague Convention. See United States, Department of State memorandum, 8 January 1944, File No. 740.00117 Pacific War/61.
115 - At its 31st meeting, Committee I of the 1949 Diplomatic Conference adopted Article 19 without amendment; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 145.
116 - For the prohibition of attacks against hospital ships from land, see Article 20 of the First Convention.
117 - See Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), Rule 70.
118 - Subject to the prohibition against causing excessive damage; see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 42(b)(ii) and 46(d).
119 - For further details, see the commentary on Article 30(4), section G.
120 - See Tucker, p. 344, fn. 35.
121 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 138.1. On the concept of booty of war, see Yoram Dinstein, ‘Booty in Warfare’, version of March 2008, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
122 - Note that diversion from the ship’s declared destination must be distinguished from diversion for the purpose of visit and search. See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 119 and 121.
123 - According to Article 36, this protection is extended to the crews and personnel of (military) hospital ships.
124 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 157.
125 - See Lauterpacht, pp. 504–505, fn. 2: [I]n 1905, during the Russo-Japanese war, the Orel (also called the Aryel), a Russian hospital ship, was captured and condemned by the Japanese Prize Courts for having performed, while serving as a hospital ship, certain services to the Russian fleet which amounted to use for military purposes. … Again, in 1915, during the First World War, the Ophelia, a German hospital ship, was captured and condemned by the British Prize Court, because, while adapted as a hospital ship, she was also fitted up as a signalling ship for military purposes. See also Takahashi, pp. 620–622; Pearce Higgins, p. 409; Garner, pp. 244–249; and Colombos, p. 591.
126 - For the conditions that have to be fulfilled before a (military) hospital ship is liable to capture, see the commentary on Article 34, section C.4.
127 - See also Article 30(4).
128 - For the obligation to take precautions in attack, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 46; see also ICRC Study on Customary International Humanitarian Law (2005), Rules 15–21.
129 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 157.
130 - See section B.
131 - For further clarification of the requirement to ‘respect’ medical objects, see the commentaries on Article 19 of the First Convention, section C.2.b, and on Article 35 of the First Convention, section C.2.a.
132 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 105–108.
133 - Manual on International Law Applicable to Air and Missile Warfare (2009), commentary on Rule 71; see also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 89–91.
134 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1153.
135 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 90 (referring to the definition of the French term in the dictionary of the Académie française).
136 - For further analysis of the term ‘protect’, see also the commentary on Article 19 of the First Convention, paras 1805–1808 and on Article 35 of the First Convention, para. 2387.
137 - See Hague Convention (III) (1899), Article 1, and Hague Convention (X) (1907), Article 1.
138 - See section C.2.d.
139 - Ibid.
140 - A communication to neutral States was considered unnecessary because that would only become an issue if the hospital ship was to enter a neutral port, although the delegates considered it desirable that the names of the belligerents’ military hospital ships should be sent to neutral States. For details, see Proceedings of the Hague Peace Conference of 1899, p. 33.
141 - See ibid. p. 133, and the deliberations within the First Subcommission during its meeting on 13 June 1899, p. 459.
142 - However, the question was raised whether ‘any other statement should be added’ (ibid. p. 459).
143 - See ibid. pp. 33 and 460.
144 - On the origin of the proposal to require a confirmation by the Protecting Power, see Report of the Conference of Government Experts of 1947, p. 5. For the ICRC’s comments on this point, see ICRC Remarks and Proposals on the 1948 Stockholm Draft, p. 28.
145 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 64.
146 - Ibid. See also section D.2 of this commentary. At the 23rd meeting of Committee I of the 1949 Diplomatic Conference, the reference to confirmation by the Protecting Power was deleted. At the same time, the delegates decided to maintain a period of notice prior to employment, but changed the proposed period of 30 days to 10 days. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 112.
147 - See Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim’s International Law, Volume I: Peace, 9th edition, Longmans, London, 1992, p. 1193.
148 - In the Russo-Japanese War, Japan installed 20 hospital ships and communicated their names to the US Government with a request that they transmit this notification to the Russian Government. See Takahashi, p. 376. During the Falkland/Malvinas Islands conflict (1982), both Parties notified each other via the Protecting Powers appointed in that conflict; see François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 531; Junod, p. 24; and the commentary on Article 8, section H.
149 - This option was exercised during the Second World War, during the 1956 Suez crisis and during the international armed conflict between the United States and Vietnam; see François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 176 and 531.
150 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 169.3.
151 - See Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 161.
152 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 64.
153 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 161.
154 - Junod, p. 43: ‘In emergencies, this period may be shorter if the parties are in agreement.’
155 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 169.2.
156 - See ibid. para. 169. See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 161, fn. 1: ‘Although the Convention refers to “Parties to the conflict”, the validity of a notification sent before the commencement of a conflict cannot be disputed, as the purpose is fully achieved.’
157 - For instance, the US circular note on the deployment of the USNS Mercy and the USNS Comfort to the sea areas around the Arabian Peninsula was sent on 16 November 1990, but the Gulf War commenced in January 1991. On 29 January 1991, the Swiss Federal Department of Foreign Affairs transmitted the US circular note to the States party to the Geneva Conventions (https://www.eda.admin.ch/content/dam/eda/fr/documents/aussenpolitik/voelkerrecht/geneve/910129_2-GENEVE_e.pdf). See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 169.2, and Louise Doswald-Beck, ‘Vessels, Aircraft and Persons Entitled to Protection during Armed Conflicts at Sea’, British Yearbook of International Law, Vol. 65, 1994, pp. 211–301, at 215.
158 - During the discussions leading to the 1899 Hague Convention (III), the delegates believed that ‘a notification made long before the opening of hostilities would suffice’; see Proceedings of the Hague Peace Conference of 1899, pp. 33 and 460.
159 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 161. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 169.3: ‘It is recommended, however, in the case of such general notification before a conflict, to remind parties to the conflict of the notification once hostilities have begun.’
160 - For example, the deployment of the USNS Mercy and USNS Comfort during the 1991 Gulf War.
161 - See Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 161.
162 - Ibid.
163 - See Proceedings of the Hague Peace Conference of 1899, pp. 459–460.
164 - See Report of the Conference of Government Experts of 1947, p. 5.
165 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 64.
166 - ibid.
167 - For details, see the commentary on Article 26, section C.1.
168 - For further details on the US circular note, see fn. 157.
169 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 169. See also Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 162: ‘[It] seems to us highly desirable that a ship’s silhouette should be included in the notification for it is the best means of identification and is widely used in the navy.’
170 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 169.6 (footnotes omitted).
171 - Ibid. p. 235, fn. 274.
172 - 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. 315–28, at 317 (containing further recommendations).