Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 36 : Protection of the personnel of hospital ships
Text of the provision
The religious, medical and hospital personnel of hospital ships and their crews shall be respected and protected; they may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board.
Reservations or declarations
None
Contents

A. Introduction
2439  In general, the Second Convention adapts the principles and rules of the First Convention to the specific circumstances of armed conflicts at sea. In this vein, the first part of Article 36 states that the ‘religious, medical and hospital personnel of hospital ships and their crews’ are to be ‘respected and protected’, thus mirroring Articles 24 and 26 of the First Convention.
2440  Under the First Convention, when they fall into enemy hands, persons covered by Articles 24 and 26 must be returned to the Party to the conflict to which they belong, except when their retention is required in view of the state of health, spiritual needs and number of prisoners of war.[1] It is immaterial how they fell into enemy hands, i.e. the rule also applies when they have been captured (which, under the First Convention, is not necessarily unlawful).[2] On this point, the Second Convention adopts the opposite, and more protective, view when it comes to the religious, medical and hospital personnel and the crews of hospital ships: during the time they are in the service of the hospital ship, they not only must be respected and protected, but may not be captured either.
2441  Persons covered by Article 36 are protected because of the functions they perform: tending to the wounded, sick and shipwrecked, meeting their spiritual needs or making sure the hospital ship can operate as such. Thus, from the perspective of alleviating human suffering during armed conflict at sea,[3] Article 36 is of paramount importance: when persons covered by this provision are unable to assist the wounded, sick and shipwrecked – for example because they are attacked or captured – the adverse consequences may be wide-ranging.[4]
2442  Persons covered by Article 36 are one of the categories of persons protected under the Second Convention.[5] Therefore, the acts listed in Article 51 of the Second Convention, if committed against them, may qualify as grave breaches of the Convention.[6]
2443  The Second Convention does not explicitly address the legal status of the various categories of personnel which may be involved in the operation and deployment of coastal rescue craft, which are covered by Article 27. Section C.2.d discusses their status under international humanitarian law.
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B. Historical Background
2444  While both the 1899 Hague Convention (III) and the 1907 Hague Convention (X) stipulated explicitly that hospital ships are exempt from capture,[7] neither instrument specifically discussed the status of the personnel and crews of those ships.[8] The commission in charge of preparing the 1899 Hague Convention (III) was of the view that ‘[t]here is no need, theoretically, to concern ourselves with the medical personnel on board a hospital ship; as the ship itself is respected, the personnel it carries will not be disturbed in the discharge of duty.’[9] In other words, the drafters considered it self-explanatory that the protection conferred on hospital ships, which ‘cannot be captured while hostilities last’,[10] would automatically extend to their personnel which, from an operational perspective, are an inherent part of them. Yet no treaty provision said so explicitly.
2445  The 1937 Naval Expert Report contained the first seeds of what would eventually become Article 36. The purpose of the draft article was to state explicitly what thus far had been merely implicit, i.e. that the personnel and crews of hospital ships are entitled to the same exemption from capture as the vessels they serve.[11] A similar draft article appeared at all the preparatory stages leading up to the Diplomatic Conference of Geneva of 1949.[12]
2446  During the Diplomatic Conference itself, only one aspect of the draft article triggered debate, namely the temporal scope of the protection conferred by the provision. While the draft submitted to the Conference defined this scope as ‘during the time they are pursuing their duties’, this was changed to ‘during the time they are in the service of the hospital ship’.[13]
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C. Discussion
1. Religious, medical and hospital personnel of hospital ships and their crews
2447  Article 36 covers the personnel and crews of the three categories of hospital ships protected under the Second Convention, i.e. those referred to under Articles 22, 24 and 25.[14] Because the protection to which hospital ships are entitled under the Second Convention extends to the lifeboats of these hospital ships, qualifying persons on board such lifeboats are also entitled to the protection of Article 36.
2448  The words ‘religious, medical and hospital personnel’ are not further defined in Article 36. A better understanding of which persons are covered can be gained by considering its parallel provision, Article 24 of the First Convention. On this basis, Article 36 can be understood to cover the ‘[m]edical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease’. The term ‘hospital personnel’ can be equated to what Article 24 calls ‘staff exclusively engaged in the administration of medical units and establishments’, i.e. persons involved in the running of such units or establishments and not in the medical activities referred to in Article 24, nor in the operation of the vessel (which is what the crew does). In addition, there may be technical personnel on board the hospital ship in charge of the upkeep, maintenance and repair of medical equipment and who may also be part of the ‘hospital personnel’. Lastly, the category of ‘religious personnel’ refers to what Article 24 calls ‘chaplains’.[15]
2449  The term ‘crews’ is to be interpreted in accordance with its ordinary meaning, i.e. ‘a group of people who work on and operate a ship, boat, aircraft or train’.[16] Examples of persons who contribute to the operation of a hospital ship are the captain, the navigators, the meteorologists, the guards, the (helicopter) pilots, maintenance staff, etc. When these persons are ‘in the service of the hospital ship’, they are protected by Article 36 on the same legal basis as religious, medical and hospital personnel.
2450  No rigid distinctions may be drawn between the foregoing categories of personnel: on board a hospital ship, it may be that internal regulations and organization require the electricians, chef, food supply manager, storekeepers, etc., to contribute not only to the ship’s general operation but also to the operation of the hospital side. Ultimately, all such personnel are entitled to the protection conferred by Article 36, and this regardless of their nationality.[17]
2451  There is, however, an important difference between Article 24 of the First Convention and Article 36 of the Second Convention: whereas only members of the armed forces come within the scope of application of the former,[18] the latter extends its coverage to all persons ‘in the service of the hospital ship’. Thus, civilians can be covered by Article 36. Examples would be a civilian contractor working for the armed forces, or a civilian contractor or employee in the service of a hospital ship which is deployed on the basis of Articles 24 or 25 of the Second Convention.
2452  Article 35(5) of the Second Convention provides that the ‘[t]ransport of … personnel intended exclusively for medical duties, over and above the normal requirements’ may not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them. In the context of Article 36, this wording matters in that, during the 1949 Diplomatic Conference, the view was that religious, medical and hospital personnel who are transported aboard a hospital ship ‘over and above the normal requirements’ are not entitled to the protection conferred by Article 36. In the logic of this argument, indeed, such personnel are not ‘in the service of the hospital ship’. Among such personnel, those who meet the criterion of Article 37(1) (i.e. are ‘assigned to the medical or spiritual care of the persons designated in Articles 12 and 13’), while they may initially be captured, will have their status regulated by that article.[19] The status of those who do not meet the criterion would, upon their falling into enemy hands, need to be assessed on the basis of either the Third or the Fourth Convention.
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2. Scope of the protection
a. Temporal and geographic scope
2453  The wording ‘during the time they are in the service of the hospital ship’ was carefully chosen by the drafters of the Second Convention in view of the flexibility it allows: once a person is no longer in the service of the hospital ship, for example after being transferred to serve on a warship, the protection of Article 36 no longer applies.[20] By the same token, the person may previously have served in other, non-protected functions at sea.
2454  There was an additional reason why the terminology ‘during the time they are in the service of the hospital ship’ was preferred. The draft adopted by the 1948 International Conference of the Red Cross in Stockholm used the phrase ‘during the time they are pursuing their duties’.[21] During the 1949 Diplomatic Conference, it was felt that this wording would be too restrictive. The example of a crew member ‘smoking a cigarette after dinner’ was given. While smoking a cigarette, this person would not be ‘pursuing [his/her] duties’, yet would still be ‘in the service of the hospital ship’.[22] Hence, the drafters of the Second Convention felt that the temporal scope of the protection needed to be status-based rather than conduct-based. At the same time, they wished to ensure that a person who had served only one day on the hospital ship and who subsequently carried out medical or religious duties on land could not continue to claim protection on the basis of Article 36, without prejudice, of course, to the possibility that this person may have a protected status on the basis of another rule of treaty or customary law.[23] In order to strike a middle ground, the wording ‘during the time they are in the service of the hospital ship’ was eventually adopted.[24]
2455  A strict reading of the text might suggest that the qualifier ‘during the time they are in the service of the hospital ship’ relates only to the prohibition of capture. Logically, however, as far as Article 36 is concerned, it may also be considered to apply to the requirement to respect and protect persons covered by this provision. In any event, the same requirement would apply as a matter of customary international humanitarian law.[25] Furthermore, the issue of their being attacked, directly or indirectly, is regulated by the relevant rules of Additional Protocol I regarding the conduct of hostilities, as well as by customary international law.[26]
2456  For a person to be covered by Article 36, it is immaterial ‘whether or not there are wounded and sick on board’. While Article 36 only mentions this in the second part of the sentence, the object and purpose of the article indicates that the phrase applies to both parts. This precludes the enemy from invoking (for example, at the very beginning of the armed conflict, prior to any engagement) the absence of wounded and sick persons on board as an argument to deny protection under Article 36.
2457  While Article 36 clearly covers the qualifying personnel and crew of a hospital ship when they are on board the ship, there are also circumstances in which such persons remain covered by this provision when they are ashore, including in a port, whether its own, an enemy or a neutral port.[27] For example, when a helicopter attached to the hospital ship takes off, the pilot will remain covered by Article 36 throughout the flight, including when landing ashore. Similarly, persons covered by Article 36 may go ashore, for example in the context of a special agreement concluded to return wounded, sick and shipwrecked persons to the Party to which they belong. In both examples, the persons in question remain ‘in the service of the hospital ship’. In this respect, Article 36 constitutes an exception to Article 4(2) of the Second Convention, which states that ‘[f]orces put ashore shall immediately become subject to the provisions of’ the First Convention.
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b. Respect and protect
2458  The first sentence of Article 36 requires that ‘religious, medical and hospital personnel of hospital ships and their crews … be respected and protected’.
2459  Compliance with the obligation to ‘respect and protect’ persons protected by Article 36 is generally less burdensome in maritime warfare than in land warfare: Articles 22, 24 and 25 inherently entail respect for and protection of the personnel and crews of the vessels covered by these provisions. Such persons thus benefit from the protection conferred on the type of vessel on which they work. This goes back to the provision’s drafting history: while it had long been considered that the personnel and crews benefited automatically from the protection to which hospital ships were entitled, it was felt preferable to say so explicitly.[28]
2460  The multi-faceted nature of what it means to ‘respect and protect’ cannot be reduced to a checklist of measures to take, or actions from which to abstain. Furthermore, it is frequently impossible to clearly separate the obligation to ‘respect’ from the obligation to ‘protect’. The same behaviour may reflect an expression of both obligations. The following paragraphs, therefore, merely serve to highlight, by way of example, some of the dimensions inherent in the practical implementation of the requirement to ‘respect and protect in all circumstances’. Depending on the circumstances, additional steps may be required in order to come to a meaningful implementation of this obligation. Conversely, some of the steps outlined in what follows may be irrelevant in certain situations.
2461  The obligation to ‘respect’ and the obligation to ‘protect’ both apply in two different types of relationships. First, they apply in the relationship between a Party to the conflict and the religious, medical and hospital personnel and crews of the enemy’s hospital ships. Second, they apply in the relationship between a High Contracting Party and such personnel and crews of its own hospital ships (whether covered by Articles 22, 24 or 25). The latter dimension may be particularly relevant when it comes to the duty to ‘protect’.
2462  At a minimum, ‘respect’ requires compliance with the duties of abstention, such as not to attack qualifying personnel and crews of hospital ships (be it directly, indiscriminately or in violation of the principle of proportionality),[29] not to kill them if they fall into one’s hands, and not to ill-treat, harm in any way, injure, kidnap, threaten, intimidate, physically assault, or subject them to arbitrary arrest.[30] Respect for the legal framework protecting the medical ethics under which they operate is also required. In this regard, Article 16 of Additional Protocol I contains the rule that medical personnel may not be forced to act contrary to the applicable ethics. Thus, for example, medical personnel are not to be harassed or threatened with punishment in order to obtain information about the wounded and sick they may have treated.[31]
2463  Furthermore, the qualifying personnel and crews of hospital ships may not be made to renounce the rights secured to them by the applicable law.[32]
2464  For all of the foregoing acts, the mere threat of such action is equally unlawful, even if the threat is not carried out. Thus, for example, it is prohibited to threaten to attack qualifying personnel and crews of hospital ships in order to discourage them from carrying out their work.[33] The obligation to ‘respect’ applies both to the State and to its organs, each of which may bear responsibility under applicable international law, be it State responsibility or individual criminal or disciplinary responsibility.
2465  It should be kept in mind that the religious, medical and hospital personnel covered by Article 36 are required to wear the distinctive emblem.[34] Under the 1998 ICC Statute, it is a war crime in both international and non-international armed conflict to ‘intentionally direc[t] attacks against … personnel using the distinctive emblem of the Geneva Conventions in conformity with international law’.[35] Similarly, the obligation to respect will be violated if the personnel are made the object of belligerent reprisals.[36] In this context, it bears recalling that persons covered by Article 36 are persons protected under the Second Convention. Therefore, the acts listed in Article 51 of the Second Convention, if committed against them, may qualify as grave breaches of the Convention.
2466  The obligation to ‘protect’ qualifying personnel of hospital ships, and their crews, entails, at a minimum, an obligation to take steps to ensure that they can carry out their work and to refrain from unduly interfering with their work, such as by arresting them simply for performing their assigned duties.[37] As with the obligation to ‘respect’, the obligation to ‘protect’ applies both to the State and to its organs, each of which may bear responsibility under applicable international law, i.e. be it State responsibility or individual criminal or disciplinary responsibility. The overarching objective of the obligation to protect is to ensure that the persons entitled to such treatment can reach those in need – that is, in the case of medical personnel, the wounded and sick.
2467  Depending on the circumstances, the obligation to ‘protect’ may equally entail an obligation to ‘ensure respect’ by third parties. This may be relevant where looters, marauders or pirates seek to interfere with the ability of qualifying personnel and crews of hospital ships to carry out their work. In such cases, practical steps must be taken to put a stop to the interference. In short, one needs to come to the defence, assistance or rescue of religious, medical and hospital personnel of hospital ships and their crews.
2468  Without prejudice to the absolute nature of both the obligation to ‘respect’ and the obligation to ‘protect’, it must be acknowledged that the practical implementation of the obligation to allow them to fulfil their medical duties may, in some circumstances, have to be temporarily delayed for reasons of military necessity.[38] In this regard, the obligation to ‘respect’ is different from the obligation to ‘protect’ because it suffers no exception whatsoever, not even in case of urgent military necessity.
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c. Capture
2469  Like the hospital ship itself, its religious, medical and hospital personnel and crew are exempt from capture.[39] The rationale for this exemption is that, if the personnel and crew are taken away from the hospital ship they serve, the ship would no longer be able to function and, thus, to fulfil its purpose. Were this to happen, the hospital ship would become ‘useless’.[40]
2470  The prohibition on capturing the personnel and crew of a hospital ship is not violated in cases where a Party to a conflict exercises its rights of control and search under Article 31. These rights may, under certain circumstances, extend to detaining the hospital ship ‘for a period not exceeding seven days from the time of interception’. Under the conditions outlined in Article 31, such detention remains a lawful option.[41] If it is exercised, the personnel and crew will also be lawfully detained for that period of time.
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d. Status under international law of the personnel and crews of coastal rescue craft and installations
2471  In general, as per Article 27, rescue craft and the fixed coastal installations associated with them have to comply with the same conditions as those applicable to hospital ships. In turn, they are entitled to the same protection (‘shall also be respected and protected’), but only ‘so far as operational requirements permit’. Provided that they comply with certain conditions, the coastal rescue craft themselves may not be captured either. [42]
2472  The Second Convention remains silent, however, as to the legal status of the personnel and crews of these craft and installations. This has created uncertainty about their status as a matter of international law.
2473  As far as the obligation to ‘respect and protect’ the rescue craft and installations is concerned, it seems uncontroversial to suggest that the logic underpinning Article 27 applies to their personnel and crews, i.e. they must be respected and protected as if they were the personnel and crew of a hospital ship, but only ‘so far as operational requirements permit’.[43] Using a somewhat different standard on this point, during a meeting held with the ICRC in 1984, a Special Working Committee of the International Lifeboat Conference submitted the following recommendation with a view to enhancing the protection of coastal rescue craft:
Crews of State or officially recognized lifeboat institution rescue craft should be ‘respected and protected’ in the same manner as religious and medical personnel (see Articles 36 and 37 of the Second Geneva Convention) during the time they are involved in rescue operations. The same protection should apply to personnel of fixed installations when involved in rescue operations. [44]
In any event, when it comes to such craft and installations being attacked, directly or indirectly, the relevant rules of Additional Protocol I regarding the conduct of hostilities apply, as do those of customary international law.[45]
2474  Regarding whether the personnel and crews of neutral rescue craft (and installations) may be captured, ‘only those members of the crew who have committed an act of hostility may be detained’.[46] It follows therefore that, in principle, such personnel and crews may not be captured.
2475  Whether the personnel and crews of enemy rescue craft and installations may be captured depends on whether they are members of the armed forces or civilians. Across the world, this varies greatly in terms of the legal status of the entities engaged in rescue operations. Depending on the country, these may be coastal municipalities, private associations, individual volunteers (not necessarily under any form of State control) or State organs, be they the armed forces or other governmental institutions.[47]
2476  When the personnel or crews of rescue craft covered by Article 27 are civilians, the question is regulated, in principle, by the Fourth Convention: at all times, regardless of whether they are engaging in rescue operations, they are protected against capture on the basis of this Convention, which allows their internment only in specific circumstances.[48]
2477  When the personnel or crew are members of the armed forces, the question is regulated, in principle, by Article 37 which, as a matter of treaty law, does not render their capture unlawful. If a member of the armed forces does not meet the ‘assignment’ criterion in Article 37, their status in enemy hands is regulated by the Third Convention.
2478  Additional Protocol I does not explicitly address the status of coastal rescue personnel and crews either.[49] However, States that so wish may take steps to ensure that the personnel of coastal rescue craft qualify as ‘medical personnel’ in the sense of Article 8(c) of Additional Protocol I, for example by assigning them exclusively to the medical purposes set out in Article 8(e) of the Protocol, which include the ‘search for, collection, transportation … of the wounded, sick and shipwrecked’. Still, this does not change the foregoing in terms of their status to be protected, or not, against capture.
2479  For its part, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea states that ‘[m]embers of the crews of rescue craft may not be captured while engaging in rescue operations’.[50] This rule, which seems to use the term ‘crews’ as also encompassing medical personnel, if any, on a rescue craft, makes no difference to the individual status of the persons concerned (members of the armed forces or civilians). As explained in the Manual’s commentary, ‘[t]he term “engaging” is used in order to indicate that [the crews of rescue craft] are also protected when transiting to an area where they have to perform rescue operations’.[51] Conversely, this means that civilian ‘volunteers serving on a part-time basis’ are not protected against capture on the basis of this rule outside the timeframe in which they are ‘engaging in rescue operations’.[52] However, as already mentioned, they would be protected against capture pursuant to the Fourth Convention.[53]
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e. Loss of protection
2480  Article 36 does not say whether the entitlement to be ‘respected and protected’ can be lost in certain circumstances. Nevertheless, the logic of the protective regime for medical and religious personnel entails that, under certain circumstances, protection can be lost. The reasoning behind this is that on the basis of Article 36, the High Contracting Parties confer a privileged status on these persons, which comes with corresponding duties that preclude abuse of that protection.[54] Privileges conferred on such personnel are conditional, and can be lost in the case of their engaging in ‘acts harmful to the enemy’, if the commission of that act takes place ‘outside their humanitarian duties’.[55] It bears emphasis that an ‘act harmful to the enemy outside their humanitarian duties’ is the sole legal criterion whereby the entitlement to protection can be lost. No other reasons, such as military necessity, may be invoked to justify that loss.
2481  Prior to analysing this notion, it must be emphasized that it is less relevant in this context than in the context of land warfare: the personnel and crew of a hospital ship form an integral part of the protected platform, and an act harmful to the enemy committed in isolation by a single member of the personnel will not, in principle, alter the hospital ship’s protected status.
2482  The criterion of ‘acts harmful to the enemy outside their humanitarian duties’ is also used in Article 34 of the Second Convention in connection with the loss of protection of hospital ships. Article 35 provides, also in connection with hospital ships, a non-exhaustive list of ‘conditions’ which may not be considered as leading to a loss of protection. While both provisions have been written from the perspective of the loss of protection of hospital ships, the same criteria should be applied mutatis mutandis to persons providing medical or religious services aboard such ships. Thus, for example, the fact that they ‘are armed for the maintenance of order, for their own defence or that of the sick and wounded’ and the fact that their ‘humanitarian activities … extend to the care of wounded, sick or shipwrecked civilians’ cannot be considered as acts harmful to the enemy.[56]
2483  In practice, it is of critical importance to know what exactly amounts to an ‘act harmful to the enemy outside their humanitarian duties’. At the level of treaty law, outside the list of ‘conditions’ in Article 35, no definition exists and little work has been undertaken to clarify the notion. The absence of a treaty-based definition may lead to some uncertainty. Therefore, in view of the humanitarian values at stake, in case of doubt as to whether a particular type of behaviour qualifies as an act harmful to the enemy, it ought not to be considered as such.
2484  During the negotiation of the Geneva Conventions, the ICRC proposed the following definition of the term ‘acts harmful to the enemy’: ‘acts the purpose or the effect of which is to harm the adverse Party, by facilitating or impeding military operations’.[57] While this proposal was not incorporated into the text of the Conventions, it remains useful to gain a better understanding of the notion. The following examples were provided by the ICRC in the 1952 Commentary, albeit in relation to objects: ‘the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack’.[58]
2485  As is clear from the words ‘purpose or effect’ in the ICRC proposal, the criterion of ‘acts harmful to the enemy’ is to be understood broadly: every form of behaviour – outside the humanitarian duties of medical or religious personnel – which harms the enemy may be considered as an act harmful to the enemy. Depending on the circumstances, this criterion may be fulfilled in such cases where a person covered by Article 36 takes up arms against the enemy (other than in self-defence),[59] assists in the operation of a weapon system or in the planning of a military operation, or transmits intelligence of military value.[60] However, acts not to be considered as harmful to the enemy for persons covered by Article 36 include assistance with the health planning aspects of the military operation and involvement in the transmission of the health details of enemy patients, even though in some circumstances this information may have military value.
2486  Another scenario which may amount to an act harmful to the enemy is when medical personnel help able-bodied combatants of their State to hide in a hospital ship. Depending on the circumstances, and provided the constitutive requirements have been met, engaging in any of the foregoing may also qualify as prohibited perfidy and/or, separately, as an improper use of the distinctive emblem.[61]
2487  The phrase ‘outside their humanitarian duties’ makes clear that certain acts may fulfil the criterion of ‘acts harmful to the enemy’ without entailing a loss of protection.[62] Even if a particular act may be considered as an ‘act harmful to the enemy’, it will still not lead to a loss of protection if it was committed as part, or as a result of, the exercise of the said ‘humanitarian duties’. This nuance is important in that the work of medical and religious personnel may at times temporarily inconvenience military operations, for example when they perform their duties close to military operations or when the collection of the wounded, sick and shipwrecked impedes the enemy’s ability to manoeuvre. Provided they remain within the boundaries of the prescribed ‘humanitarian duties’, the acts in question do not lead to a loss of protection.
2488  The criterion of ‘acts harmful to the enemy outside their humanitarian duties’ bears some similarity to the criterion of ‘taking a direct part in the hostilities’. However, both notions are separate, have their own scope of applicability and engender different consequences. The criterion of ‘taking a direct part in the hostilities’ only applies to civilians and not to persons covered by Article 36. Thus, these notions are not to be conflated.[63]
2489  In terms of acts covered, the scope of application of the notion of ‘acts harmful to the enemy’ is broader than that of ‘direct participation in hostilities’.[64] Thus, every single act which, if committed by a civilian, qualifies as ‘taking a direct part in hostilities’ will, if committed by a person entitled to respect and protection under Article 36, qualify as an ‘act harmful to the enemy outside their humanitarian duties’. The opposite is not the case, however, as not every ‘act harmful to the enemy’ would constitute a ‘direct participation in hostilities’ if committed by a civilian.
2490  While the notion of ‘acts harmful to the enemy’ is broad, it is not open-ended. It may occur that personnel covered by Article 36 find themselves in close proximity to combatants. This must not be considered an ‘act harmful to the enemy outside their humanitarian duties’.[65] This very proximity, indeed, may serve to facilitate access to the wounded, sick and shipwrecked. However, the prohibition on using the presence of religious, medical or hospital personnel in an attempt to shield military objectives from attack needs to be respected.[66] Similarly, the mere fact that some of such personnel may wear the uniform of the enemy armed forces cannot be considered, as such, to be an ‘act harmful to the enemy outside their humanitarian duties’.[67]
2491  In line with the conditions listed in Article 35(1), the religious, medical and hospital personnel and crews of hospital ships and sick-bays may be armed.[68] Whether or not such personnel may in fact carry arms falls to the national authorities to decide.[69] If it is decided at the domestic level to authorize (or compel)[70] medical and religious personnel to carry permitted types of weapons, the mere fact of their being so armed cannot be considered an ‘act harmful to the enemy outside their humanitarian duties’. The weapons in question, however, can only be used for two specific purposes: for the persons’ ‘own defence’ or for the defence of the ‘wounded and sick in their charge’. Thus, even when the use of the weapons is defensive in nature, they may not be used for the defence of other persons, let alone for the defence of military objectives.[71] If this were allowed to occur, the line dividing medical and religious personnel from combatants would become all too easily blurred. Further, such personnel may not take up arms on their own initiative, for example for offensive purposes, or in a defensive military operation in which the ‘defensive’ element would go beyond the bounds of the two permitted purposes.[72] When they take up arms for offensive or for non-recognized defensive purposes, that action may be considered as an ‘act harmful to the enemy outside their humanitarian duties’, but in any case it will depend on the circumstances.
2492  The entitlement to use arms for the two permitted purposes – self-defence and defence of the wounded, sick and shipwrecked – may result in these persons becoming actively engaged in the fighting, not only against marauders or pirates, but also in situations that may resemble combat. Religious, medical and hospital personnel of hospital ships therefore need to be aware at all times of the potential danger inherent in using their weapons in self-defence and defence of the wounded, sick and shipwrecked in their charge. Doing so too quickly – even when for permitted purposes – may engender widespread distrust of their position as persons protected under the Second Convention.
2493  The consequences of medical or religious personnel committing an ‘act harmful to the enemy outside their humanitarian duties’ need to be measured in a nuanced way. On the battlefield, the commission of such an act will in any event lead to the loss of the entitlement to be ‘protected’. This means, for example, that the enemy can no longer be expected to facilitate that person’s work. That said, when it comes to the loss of the entitlement to be ‘respected’, the commission of an ‘act harmful to the enemy’ does not, in and of itself, mean that the person automatically becomes a lawful target. In practice, however, it is hard to conceive of circumstances in which it would not do so, i.e. generally, engaging in an act harmful to the enemy will lead to the loss of the person’s entitlement to be protected. However, when this happens, the requirements of Article 34 apply above and beyond the general provisions of the law on the conduct of hostilities: ‘Protection may, however, cease only after due warning has been given, naming in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.’[73] Thus, according to the conditions discussed in the commentary on Article 34, the person needs to be given an opportunity to cease the behaviour in question. At all times, persons covered by Article 36 need to be aware of the dangers inherent in committing acts harmful to the enemy. These may quickly taint other protected personnel, resulting in a weakening of the overall protection regime.
2494  If just one act harmful to the enemy has been committed, the loss of protection is arguably only temporary, i.e. the protection provided for in Article 36 is regained once that act has ceased to produce its effects.[74] In other words, the commission of a single act harmful to the enemy would not lead to a permanent loss of protection for that person for the remainder of the armed conflict.
2495  The Second Convention provides no answer to the following scenario: if a hospital ship loses its protection on the basis of Article 34, what are the implications for the protection of the personnel under Article 36? Obviously, if the ‘act harmful to the enemy’ is of such an extreme nature as to justify an attack on the vessel – the vessel having become a military objective and subject to compliance with the legal framework applicable to the conduct of hostilities – it may be factually impossible to comply in full with the obligation to ‘respect and protect’ persons covered by Article 36. When the hospital ship no longer operates in accordance with the requirements pursuant to which it deserves protection, this will inevitably impact on the protection enjoyed by the persons in its service. However, other than in such extreme scenarios, the loss of protection of the hospital ship cannot be considered to extend automatically to its personnel and crew.
2496  There are circumstances in which a hospital ship or a coastal rescue craft may merely lose its exemption from capture.[75] There are no established rules, agreed upon by States, regulating the status of the personnel and crews of a hospital ship that has been lawfully captured.[76] The following constitutes guidance for a good-faith assessment of the situation. Here, the starting assumption is that a loss of protection of the hospital ship or of the coastal rescue craft does not automatically mean that the personnel and crew on board lose their entitlement to respect and protection. The responsibility for committing the harmful act does not necessarily lie with all persons on board the ship, but rather with one or more persons on board. Therefore, unless an individual member of the religious, medical and hospital personnel was personally involved in the commission of the act harmful to the enemy which justified the capture of the hospital ship in the first place, nothing justifies the capture of such personnel. They should be allowed to return to the Party for which they worked. As the humanitarian needs of the wounded and sick on board persist after capture, recourse to Article 37 of the Second Convention would seem to be in order. Since Article 37 does not apply to the crew, however, resort cannot be had to that provision. Instead, irrespective of whether the crew were responsible for the commission of the ‘act harmful to the enemy’, their status is to be determined on the basis of either the Third or the Fourth Convention.[77]
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Doswald-Beck, Louise, ‘Vessels, Aircraft and Persons Entitled to Protection during Armed Conflicts at Sea’, British Year Book of International Law, Vol. 65, 1994, pp. 211–301, at 279–285.

1 - See Articles 28, 30 and 31 of the First Convention, as well as Article 33 of the Third Convention.
2 - See the commentary on Article 28 of the First Convention, para. 2163.
3 - For the interpretation of the term ‘at sea’ in the context of the Second Convention, see the commentary on Article 12, section D.2.
4 - See similarly the commentary on Article 24 of the First Convention, para. 1948.
5 - With regard to their identification, see Article 42. For the relevant provisions in Additional Protocol I, see Articles 8(c)(i) and 43(2) of that Protocol.
6 - For further details, see para. 2465.
7 - See Articles 1, 2 and 3 of both the 1899 Hague Convention (III) and the 1907 Hague Convention (X).
8 - Both Article 7 of the 1899 Hague Convention (III) and Article 10 of the 1907 Hague Convention (X) dealt with ‘the religious, medical, and hospital staff of any captured ship’. Since, under the regime of both Conventions, hospital ships ‘cannot be captured while hostilities last’, neither of them specifically addressed the status of the personnel and crews of hospital ships. For a discussion of these provisions, see the commentary on Article 37, section B.
9 - Proceedings of the Hague Peace Conference of 1899, p. 402.
10 - See Article 1(1) of both the 1899 Hague Convention (III) and the 1907 Hague Convention (X).
11 - Naval Expert Report of 1937, draft article 16 and its commentary, pp. 34–35.
12 - Report of the Preliminary Conference of National Societies of 1946, draft article 16; Report of the Conference of Government Experts of 1947, draft article 17. See also Draft Conventions submitted to the 1948 Stockholm Conference, draft article 27, adopted as draft article 30 by the Stockholm Conference. For the text of the latter, see fn. 21.
13 - For a substantive analysis of this modification, see section C.2.a.
14 - For Parties to Additional Protocol I, see also Article 22(1) of the Protocol, which declares that the provisions of the Conventions relating to the ‘personnel and crews’ of ‘vessels described in Articles 22, 24, 25 and 27 of the Second Convention … shall also apply where these vessels carry civilian wounded, sick and shipwrecked who do not belong to any of the categories mentioned in Article 13 of the Second Convention’. For its part, Article 22(2) of Additional Protocol I extends ‘[t]he protection provided by the Conventions to vessels described in Article 25 of the Second Convention … to hospital ships made available’ by certain entities other than those explicitly referred to in Article 25. If a hospital ship operates on the basis of the paradigm of Article 22(2) of Additional Protocol I, Article 36 of the Second Convention applies to qualifying persons on board such a ship.
15 - For a discussion, see the commentary on Article 24 of the First Convention, section C.3, which apply mutatis mutandis here.
16 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 338.
17 - Article 8(c) of Additional Protocol I includes ‘persons assigned, by a Party to the conflict, exclusively … to the operation … of medical transports’ as part of the overarching category of ‘medical personnel’.
18 - For further discussion of this point, see the commentary on Article 24 of the First Convention, paras 1969–1971, which apply mutatis mutandis here.
19 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 204. Similarly, see Jean-Pierre Schoenholzer, ‘Le médecin dans les Conventions de Genève de 1949’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 35, Nos 410/411, February/March 1953, pp. 94–126 and 169–194, at 181. For the meaning of the expression ‘over and above the normal requirements’, see the commentary on Article 35(5), section H. For a discussion of the ‘assignment’ criterion in Article 37, see the commentary on Article 37, section C.1.
20 - See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 162.1: ‘The immunity ceases once the crew is no longer assigned to the hospital ship.’
21 - See Draft Conventions adopted by the 1948 Stockholm Conference, article 30, p. 41: ‘The religious, medical and hospital personnel of hospital ships and their crews shall be respected and protected; they may not be captured during the time they are pursuing their duties, whether or not there are wounded and sick on board.’ The text was identical to that in the Report of the Conference of Government Experts of 1947, Article 17, p. 92. See also Report of the Preliminary Conference of National Societies of 1946, Article 17, p. 60: The religious, medical and hospital staff of hospital-ships shall be respected and protected in all circumstances; their members cannot under any circumstances be taken prisoner. The same shall apply to the crews of hospital-ships, as also to the crews of aircraft attached to such ships, during the period when they are carrying out their functions. Of note is that, in the 1946 draft, the temporal restriction initially applied only to the ‘crews’.
22 - See Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, Vol. I, 15th meeting, p. 24.
23 - Ibid. Vol. II, 28th meeting, p. 2.
24 - In the equally authentic French version, the phrase adopted was ‘pendant le temps où ils sont au service de ces navires’; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 129.
25 - See ICRC Study on Customary International Humanitarian Law (2005), Rules 25 and 27.
26 - See Additional Protocol I, Articles 48–58, and ICRC Study on Customary International Humanitarian Law (2005), Rules 1–24.
27 - Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, Vol. II, 28th meeting, p. 33. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea, para. 162.1: ‘The immunity continues even if the crew leaves the ship temporarily.’
28 - See section B.
29 - See Laurent Gisel, ‘Can the incidental killing of military doctors never be excessive?’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 215–230. For a different view, see United States, Law of War Manual, 2016, paras 4.10.1 and 7.8.2.1 (the latter requiring, however, that in any event ‘feasible precautions must be taken to reduce the risk of harm to military medical and religious personnel.’)
30 - Arbitrary arrest would cover, for example, arrests carried out unlawfully or for purposes of intimidation. That said, the arrest of medical personnel who have committed a violation of applicable law remains lawful. However, this may, depending on the circumstances (e.g. when carried out on a wide scale or under false pretences), still amount to a violation of the obligation to ‘respect’ medical personnel.
31 - Alexander Breitegger, ‘The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 83–127, at 118–121.
32 - See Article 7.
33 - In this context, Article 18(3) of the First Convention is relevant: ‘No one may ever be molested or convicted for having nursed the wounded or sick.’ See also Article 16 of Additional Protocol I (General protection of medical duties).
34 - The display of the emblem, in and of itself, does not confer protection; it is merely an outward sign indicating the protected status of the person displaying it. For details, see the commentary on Article 42, section C.1.
35 - See ICC Statute (1998), Article 8(2)(b)(xxiv) and (e)(ii).
36 - See also Article 47.
37 - More broadly, within the context of Additional Protocol I, this entails an obligation to comply with its Article 16 (General protection of medical duties). This obligation applies vis-à-vis both one’s own medical personnel and enemy medical personnel, for example when they are in enemy hands.
38 - See e.g. Benin, Law of Armed Conflict Manual, 1995, Fascicule III, p. 5 (‘Specially protected persons may not take a direct part in hostilities and must not be attacked. They shall be allowed to carry out their tasks as long as the tactical situation permits.’); Croatia, Commanders’ Manual, 1992, paras 7 and 12 (‘Specifically protected persons may not participate directly in hostilities and may not be attacked. They shall be allowed to perform their tasks, when the tactical situation permits.’); and Nigeria, IHL Manual, 1994, p. 45, para. (f) (‘Specifically protected persons … recognised as such must be respected. Specifically protected persons are to be allowed to fulfil their activity unless the tactical situation does not permit.’)
39 - For a discussion of the exemption from capture of hospital ships, see the commentary on Article 22, section C.2.d. See also the commentaries on Articles 24, para. 2073, and 25, para. 2110.
40 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 203: ‘Without its crew, a hospital ship is useless, and the entire protection granted to its medical personnel becomes inoperative if the crew can be captured.’ See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 162.1: ‘The reasoning behind this protection is to ensure that the hospital ship is always operational, which would not be the case if it were deprived of its crew.’
41 - See the commentary on Article 31, section D.4.
42 - See the commentary on Article 27, section C.3.
43 - In this vein, see IAMSAR Manual, para. 6.1.2: The SAR services recognized by their Administrations are afforded protection for their humanitarian missions so far as operational requirements permit. Such protection applies to coastal rescue craft, their personnel, and fixed coastal SAR installations, including RCCs and RSCs as far as these centres are located in coastal areas and are used exclusively to co-ordinate search and rescue operations.’ (Emphasis added.)
44 - Minutes of the Meeting of the Special Working Group with the International Committee of the Red Cross, held at the Henry Dunant Institute, Geneva, 16–17 April 1984, Appendix B, para. 3.
45 - See Additional Protocol I, Articles 48–58, and ICRC Study on Customary International Humanitarian Law (2005), Rules 1–24.
46 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 162.2.
47 - See the commentary on Article 27, para. 2149.
48 - Fourth Convention, Article 42. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 167. See also J. de Preux, ‘Protection du sauvetage maritime côtier’, in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 103‒111, at 107: [C]’est la protection des embarcations de sauvetage côtières et de leurs installations fixes qui détermine l’étendue de la protection de leur personnel. Cela signifie que lorsque ce personnel ne se trouve ni en opération de sauvetage, ni à l’intérieur des installations côtières fixes, il n’a pas de statut particulier. Il bénéficie simplement de la protection accordée à toutes les personnes civiles. (It is the protection accorded to coastal rescue craft and the fixed installations associated with them that determines the scope of protection of their personnel. This means that while these personnel are not engaged in a rescue operation, or are not in the fixed coastal installations, they have no particular status. They simply benefit from the same protection accorded to all civilians.)
49 - Article 22(3) of the Protocol only deals with coastal rescue craft but not their personnel and crews.
50 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 162, reads in full: ‘Members of the crews of hospital ships may not be captured during the time they are in the service of these vessels. Members of the crews of rescue craft may not be captured while engaging in rescue operations.’ The same wording is used in the United Kingdom’s Manual of the Law of Armed Conflict, 2004, para. 13.116.
51 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 162.2.
52 - Ibid.
53 - See para. 2476.
54 - The idea was stated explicitly, as far as ‘vessels taken or seized’ were concerned, in the 1913 Oxford Manual of Naval War, Article 64, para. 5: ‘The religious, medical, and hospital staffs lose their rights of inviolability, if they take part in hostilities, if, for example, they use their arms otherwise than for defense.’
55 - Article 13(1) of Additional Protocol I speaks of ‘humanitarian function’ instead of ‘humanitarian duties’; Article 11(2) of Additional Protocol II speaks of ‘hostile acts’ instead of ‘acts harmful to the enemy’. These small terminological differences have no substantive implications.
56 - See Article 35(1) and (5), respectively.
57 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 59. See also Draft revision of the 1929 Geneva Convention submitted by the ICRC to National Societies in 1937, p. 3.
58 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 200‒201.
59 - For a discussion of the contours of the notion of ‘self-defence’, see the commentary on Article 35(1), paras 2416–2418.
60 - For example, guidance issued to the US armed forces states that ‘chaplains must not engage directly or indirectly in combatant duties; will not conduct activities that compromise their noncombatant status; must not function as intelligence collectors or propose combat target selection; and will not advise on including or excluding specific structures on the no-strike list or target list’; United States, Religious Affairs in Joint Operations, 2013, p. I-2.
61 - As to the types of perfidious conduct that qualify as prohibited perfidy, see the first sentence of Article 37(1) of Additional Protocol I. For proper and improper use of the distinctive emblem, see Article 42 of the Second Convention and Article 38(1) of Additional Protocol I, respectively.
62 - For further details, see the commentary on Article 34, para. 2373.
63 - ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, by Nils Melzer, ICRC, Geneva, 2009, p. 20: ‘Where IHL provides persons other than civilians with immunity from direct attack, the loss and restoration of protection is governed by criteria similar to, but not necessarily identical with, direct participation in hostilities.’
64 - See United States, Law of War Manual, 2016, para. 7.8.3; See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague, 1982, p. 411; Robert W. Gehring, ‘Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I’, Military Law Review, Vol. 90, 1980, pp. 49–87; and Nils Melzer, Targeted Killing in International Law, Oxford University Press, 2008, p. 329.
65 - Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, commentary on Rule 25, p. 85: [T]he equipment of medical personnel with small arms to defend themselves or their patients and the use of such arms for this purpose do not lead to loss of protection. Furthermore, in analogous application of the similar rule applying to medical units, it is not to be considered a hostile act if medical personnel are escorted by military personnel or such personnel are present or if the medical personnel are in possession of small arms and ammunition taken from their patients and not yet handed over to the proper service.
66 - See Additional Protocol I, Article 12(4). See also ICC Statute (1998), Article 8(2)(b)(xxiii), and ICRC Study on Customary International Humanitarian Law (2005), Rule 97.
67 - For a further discussion of this issue, see the commentary on Article 39(2) of Additional Protocol I.
68 - As explained in the commentary on Article 35(1), para. 2415, which only mentions ‘the crews of [hospital] ships or sick-bays’, this provision must be interpreted as being equally applicable to the religious, medical and hospital personnel of these vessels. For a further discussion of this issue, including the types of permissible weapons, see the commentary on Article 22(1). See also Alexander Breitegger, ‘The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies’, International Review of the Red Cross, Vol. 95, No. 889, March 2013, pp. 83–127, at 112. [T]he mere use by medical personnel … of personal protective equipment such as helmets, bulletproof vests, or gas masks, or the use of armoured vehicles, would not go beyond the permissible limits of individual defence, as such items serve the exclusively defensive purpose of absorbing the impact of explosive devices or reducing exposure to chemicals or hazardous material.
69 - For an overview of the considerations which may inform this decision, see ICRC, Ambulance and Pre-hospital Services in Risk Situations, ICRC, Geneva, 2013, pp. 35–38, under the heading ‘The question of personal protective equipment (PPE) should be analysed by country and/or context and proper training provided’.
70 - At the domestic level, a decision may be taken whereby medical or religious personnel are not just entitled, but compelled, to carry weapons within the limits of what is permissible under international humanitarian law. It could also be the case that the personnel in question would prefer not to follow this order (for example, for religious reasons). However, as long as the order remains within the limits of international humanitarian law, they would have no legal basis under international law for not complying with it.
71 - United Kingdom, Allied Joint Doctrine for Medical Support, with UK National Elements, 2015, p. 1-98: ‘Medical personnel must not be used to support the collective protection of non-medical facilities and assets. Commanders at all levels have a responsibility to ensure that the protected status of medical personnel is maintained.’
72 - See also United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 7.16: ‘The [medical] unit may be “guarded by a picket or by sentries or by an escort” [footnote inter alia referring to Article 22(2) of the First Convention]. However, the guard also may only act in a purely defensive manner and may not oppose the occupation or control of the unit by the enemy.’
73 - See the commentary on Article 34, section C.3.
74 - For an overview of the same question with regard to hospital ships, the considerations in relation to which apply mutatis mutandis here also, see the commentary on Article 34, para. 2384.
75 - For details, see the commentary on Article 22. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 135–137.
76 - The only provision dealing with this hypothesis is Article 82 of the 1913 Oxford Manual of Naval War: ‘In case of the capture or seizure of an enemy vessel or a hospital ship that has failed in its duty, the sailors and soldiers on board, when sick or wounded, as well as other persons officially attached to fleets or armies, whatever their nationality, shall be respected and tended by their captors.’
77 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 163.6, 163.7 and 163.8.