Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 14 : Handing over of wounded, sick and shipwrecked to a belligerent
Text of the provision
All warships of a belligerent Party shall have the right to demand that the wounded, sick or shipwrecked on board military hospital ships, and hospital ships belonging to relief societies or to private individuals, as well as merchant vessels, yachts and other craft shall be surrendered, whatever their nationality, provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities for necessary medical treatment.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Discussion
  • Select bibliography
    A. Introduction
    1505  The right of warships of the Parties to the conflict to demand the surrender of the wounded, sick or shipwrecked found on board hospital ships or other vessels has long been recognized as serving legitimate belligerent interests. However, it has always been generally agreed that, in practice, it would be relevant only in exceptional situations.
    1506  It is apparent from the last part of the provision that this right is not unlimited. The wounded and sick must be in a fit state to be moved and the warship to which they are transferred must be adequately equipped to provide the necessary medical treatment.
    1507  These conditions should allay the fears of those who felt that the provision might lead to excessive suffering. Even without them, however, the belligerents would have had to comply with the other rules of the Convention, in particular Article 12 which stipulates that the wounded, sick and shipwrecked must be treated humanely in all circumstances. Article 14 should not be considered redundant, however, because it serves an important purpose by reemphasizing and clarifying the scope of the general rule of Article 12 for a specific situation.
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    B. Historical background
    1. 1868 Additional Articles relating to the Condition of the Wounded in War and 1899 Hague Convention (III)
    1508  According to Article 13, last paragraph, of the 1868 Additional Articles relating to the Condition of the Wounded in War, the wounded and shipwrecked on board the hospital ships of relief societies could not ‘be reclaimed by either of the combatants’. There was no such provision regarding the wounded and shipwrecked on board military hospital ships, whose surrender could therefore be demanded. That differentiation was made because, according to Article 9 of the Additional Articles, military hospital ships constituted booty of war.[1]
    1509  The 1899 Hague Convention (III) does not address this issue but it is clear from the records of that Conference that the plenipotentiaries present considered it legal for a belligerent to take over the wounded present on a hospital ship which it had boarded.[2] If at all, the right to demand the surrender of the sick, wounded and shipwrecked found on board hospital (and other) ships is implicitly recognized in Articles 4 and 9 of that Convention. Article 4 grants belligerents the right to control and visit hospital ships, and Article 9 provides that the ‘shipwrecked, wounded, or sick of one of the belligerents who fall into the hands of the other, are prisoners of war’.
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    2. 1907 Hague Convention (X)
    1510  During the Second Hague Peace Conference in 1907, the German delegation proposed, inter alia, the following provision: ‘Every vessel of war of one of the belligerent parties may claim the return of the sick, wounded, or shipwrecked received on board in the conditions above indicated … , whatever be the party to which they belong.’[3] In its report to the Third Commission, the committee of examination explained that it did not ‘think that the rule is new; if the formula is not written into the Convention of 1899, the spirit of that Convention is clear’.[4] It went on:
    When a belligerent cruiser meets with a military hospital boat, a hospital ship or a merchant ship, it has the right, either by virtue of Article 4 of the Convention or by virtue of the common law of nations, to visit them whatever their nationality. If it finds shipwrecked, wounded, or sick men on board it has the right to have them delivered up to it, because they are its prisoners, as stated in Article 9 of the Convention of 1899 … . We have here but the application of a general principle, by virtue of which the combatants of a belligerent who fall into the hands of the adversary thereby become prisoners of war.[5]
    1511  There was, however, no consensus on whether the right to demand surrender also applied to the wounded, sick and shipwrecked found on board neutral hospital ships. During the deliberations, the British delegate stated that he did not think that ‘the British Government could accept a proposition similar to that contained in the third paragraph of Article 6 of the German draft, and that, without further instructions from the Government, the British delegation could not adopt this paragraph’.[6] The committee of examination referred to concerns that ‘it would be inhuman to compel a neutral vessel to hand over the wounded whom it had charitably picked up’.[7] According to one author, the British delegate’s concern ‘went back to the incident of the Deerhound in the American Civil War: it was founded on the theory that a neutral flag is inviolable and that in consequence a belligerent warship ought not to be allowed to take enemy sick and wounded from a neutral hospital ship’.[8] The committee of examination rejected those concerns by stating, inter alia: ‘if shipwrecked men … were permitted to escape captivity by the mere fact of their having been taken on board a neutral vessel, the belligerents would disregard the philanthropic action of the neutrals the moment such action might result in causing them irreparable injury’.[9] Although the British delegate repeated his reservation,[10] Article 12 of the 1907 Hague Convention (X) was eventually adopted without exceptions regarding the handing over of the wounded, sick or shipwrecked found on board neutral hospital ships or other ships.[11] In signing the Convention, Great Britain entered a reservation, declaring that ‘His Majesty’s Government understands Article 12 to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part.’[12]
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    3. State practice during the world wars
    1512  During the First World War, the British Admiralty, because of the country’s reservation to Article 12 of the 1907 Hague Convention (X), had difficulty accepting a belligerent right to demand the surrender of the wounded, sick and shipwrecked found on board neutral hospital ships and neutral merchant vessels.[13] However, according to one author, ‘British practice during two wars indicates that this theory is dead beyond recall’.[14]
    1513  During the Second World War, British forces diverted the German hospital ships Tübingen and Gradisca to Allied ports, where about ‘4,000 prisoners were made. … This action brought forth no protest from the German Government.’[15] Thus, the practice during the two world wars ‘shows that a belligerent cannot allow valuable enemy personnel, often comprising technical grades and lightly wounded, to pass through its lines unmolested; and if the Convention is to maintain contact with the realities of war, the Article will have to be retained’.[16]
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    4. Drafts preceding the 1949 Diplomatic Conference
    1514  At its meeting convened by the ICRC in 1937, the Commission of Naval Experts discussed whether the right to demand the surrender of the wounded, sick and shipwrecked on board a hospital ship should be limited, because ‘through its exercise such persons might find themselves worse off in the matter of treatment and care [because] a small destroyer stopping a large hospital ship would not itself be in a position to provide proper care’.[17] However, the Commission ‘argued that, in practice, the limitation of this right of war vessels would be virtually impossible’.[18] It also pointed out that, in view of the limited space on board warships, commanders would, in most cases, refrain from demanding the surrender and that ‘the improper exchange of sick and wounded should be precluded by the very explicit terms of Article 1 of the Draft, which requires belligerents to provide similar treatment for all sick and wounded, without distinction of nationality’.[19] Hence, the 1937 meeting decided to retain Article 12 of the 1907 Hague Convention (X) without limitations. The 1947 Conference of Government Experts took the same approach.[20]
    1515  A limitation of the right to demand the surrender of the wounded, sick and shipwrecked was first introduced during the 1948 International Conference of the Red Cross in Stockholm. Draft article 13 was almost identical to Article 12 of the 1907 Hague Convention (X), with the important qualification that the obligation applied only ‘provided that the wounded and sick are in a fit state to be moved’.[21]
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    5. 1949 Diplomatic Conference
    1516  At the 1949 Diplomatic Conference, the Italian delegate raised doubts as to whether draft article 13, which had been adopted at the 1948 Stockholm Conference, could be applied in practice because there ‘was no available space in a warship’ and because it was unclear ‘who would be competent to decide who was to remain on the hospital ship’.[22] He proposed an amendment to the effect that belligerents should be authorized to retake wounded of their own or an allied nationality, but not to capture enemy wounded.[23] The delegate of Monaco, who had similar doubts about the practicability of the provision, suggested going further than the Italian amendment and giving hospital ships ‘complete immunity’. Other delegates were in favour of the Stockholm text, and the Italian amendment was rejected.[24] As a compromise, the Canadian delegate suggested: ‘If it was desired to afford every safeguard for the treatment of the wounded, the words “… and that the warship can provide adequate facilities for the necessary medical treatment” might be added at the end of Article 13’.[25] This proposal was accepted and draft article 13, which became Article 14 of the Second Convention, was amended accordingly.[26]
    1517  There is no particular reason why the term ‘belligerent Party’ was maintained and was not replaced by ‘Party to the conflict’ as was done throughout the rest of the Convention;[27] the drafters simply copied the 1907 text.
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    C. Discussion
    1. The right to demand from hospital or other ships the surrender of wounded, sick or shipwrecked
    a. General
    1518  The right to demand the surrender of the wounded, sick and shipwrecked found on board a hospital or other ship was of minor practical relevance in 1949, and it is even less likely that commanders of warships today will make use of it. In fact, they are more likely to refrain from doing so, since it is to their advantage to leave the wounded and sick where they are rather than incur the considerable hindrance of taking them on board. Space is limited on a warship and additional passengers, in particular during the early part of a voyage, are a capability hindrance. By stopping or slowing down, warships also run greater risk of air or submarine attacks. Nevertheless, the right continues to be recognized and its exercise is subject to the condition stipulated at the end of the article.
    1519  The right to demand surrender under Article 14 constitutes a belligerent right. Therefore, this right may not be exercised in the internal waters, territorial sea or archipelagic waters of neutral States.[28]
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    b. Limitation of the right to warships
    1520  Only a warship of a Party to the conflict may exercise the right to demand the surrender of the wounded, sick and shipwrecked found on board a hospital or other ship.[29] Ships that do not qualify as warships, such as auxiliary vessels or merchant vessels, are not so entitled.[30]
    1521  Similarly, a military hospital ship, even if it qualifies as a warship,[31] may not exercise the right to demand such surrender because it may not be used ‘for any military purpose’ which includes the exercise of the belligerent rights of visit and search.[32] In addition, a military hospital ship must refrain from any act harmful to the enemy or else lose its protection, pursuant to Article 34. That said, the transfer of the wounded, sick and shipwrecked to a military hospital ship could still be carried out with the intervention of a warship, whereby the warship effects the boarding operation and orders the transfer of the patients to the military hospital ship.
    1522  The right pursuant to Article 14 does not necessarily have to be exercised at the location of the encounter. In some circumstances, the warship may need to divert the ship transporting the wounded, sick and shipwrecked to another sea area or a port, in particular if the sea or weather conditions at the location of encounter are too dangerous for a transfer to the warship.
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    c. Ships obliged to surrender the wounded, sick or shipwrecked
    1523  The wording of the article makes it clear that, with the exception of neutral vessels enjoying sovereign immunity (see para. 1525), all ships transporting the wounded, sick or shipwrecked are obliged to comply with a demand to surrender them to an intercepting warship. These are hospital ships pursuant to Articles 22, 24 and 25 (including merchant vessels that have been converted into hospital ships), coastal rescue craft pursuant to Article 27,[33] and neutral vessels that have taken on board wounded, sick or shipwrecked persons pursuant to Article 21.
    1524  The obligation to surrender also applies to neutral vessels that have taken wounded, sick or shipwrecked on board on their own initiative rather than at the behest of the Parties to the conflict. It also applies to enemy merchant vessels because the wording of the provision (‘and other craft’) means it is not limited to the vessels expressly regulated by the Second Convention. Accordingly, yachts, i.e. medium-sized sailing or other boats equipped for cruising or racing,[34] are likewise obliged to comply with a demand.
    1525  The neutral status of a hospital ship or merchant vessel does not preclude a Party to the conflict from exercising its right to demand the surrender of the wounded, sick or shipwrecked. However, neutral warships are excluded from the scope of this provision: owing to the sovereign immunity enjoyed by such ships, the warships of Parties to the conflict may not exercise their right to demand the surrender of any wounded, sick or shipwrecked persons taken on board a neutral warship pursuant to Article 15.[35] This is also the case for neutral State ships, i.e. those that are ‘owned or operated by a [neutral] State and used only on government non-commercial service’.[36]
    1526  It is important to note that, in view of the wording of Article 14 (limited to demanding surrender of wounded, sick or shipwrecked ‘on board’ vessels), this right my not be exercised when they are in flight inside an aircraft, including when the latter flies above the sea.
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    d. Persons to be surrendered on demand
    1527  The right pursuant to the present provision serves two purposes. First, the Parties to the conflict are entitled to demand the surrender of their own nationals, be they military personnel or civilians, who are wounded, sick or shipwrecked, with a view to helping them resume their original (military or commercial) activities or repatriating them. Second, they have an equally legitimate interest in preventing enemy nationals, in particular enemy personnel, from resuming hostile activities.[37] Upon falling into the hands of the Party exercising the right of Article 14, enemy personnel become prisoners of war.[38]
    1528  The scope of applicability ratione personae of the Second Convention is limited to protected persons belonging to the categories enumerated in Article 13. The logic of that provision might therefore suggest that all persons who do not belong to any of the listed categories (i.e. enemy civilians, other than those referred to, and neutral civilians) are excluded from the scope of Article 14.
    1529  It should be borne in mind, however, that, according to Article 35(4), hospital ships are allowed to extend their humanitarian activities to wounded, sick or shipwrecked civilians, even if they do not belong to any of the categories mentioned in Article 13. Besides, the crews and passengers of neutral merchant vessels may have taken an active part in the hostilities. In that case, the aggrieved belligerent would have a legitimate interest in preventing them from resuming military activities.
    1530  Accordingly, a commander of a belligerent warship is entitled to demand the ‘surrender’ of all the wounded, sick or shipwrecked on board, be they enemy or own (military) personnel, or enemy or neutral civilians. However, as provided for in Article 13(4), wounded, sick or shipwrecked members of the merchant marine who have given a written undertaking, in accordance with Article 6 of the 1907 Hague Convention (XI), not to resume any service connected with military operations, cannot be taken on board the intercepting warship because they are, for the duration of the armed conflict, no longer subject to the command and control of the adverse Party.[39]
    1531  It is important to note that the right to demand the surrender of wounded, sick or shipwrecked civilians who do not belong to any of the categories mentioned in Article 13 of the Second Convention has been considerably limited by Article 22(1) of the 1977 Additional Protocol I, according to which such civilians ‘shall not … be subject to surrender to any Party which is not their own’.[40]
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    2. Limitations on the right to demand the surrender of the wounded and sick
    1532  The exercise of the right to demand the surrender of the wounded, sick and shipwrecked is subject to two conditions.[41]
    1533  First, the wounded and sick whose surrender is demanded must be ‘in a fit state to be moved’. A reference to the shipwrecked was deliberately omitted from the condition, as it does not apply to able-bodied persons. If shipwrecked persons are in good health, the condition is not applicable to them. If their health is affected, they will be considered as wounded or sick. The mere fact that persons are sick or wounded does not preclude a Party to the conflict from exercising its right to demand their surrender. If they can be moved to the intercepting warship (or to another sufficiently equipped ship), without aggravating their physical condition, there is no reason why they should be allowed to remain on board.
    1534  The determination of whether a wounded or sick person is indeed in a ‘fit state to be moved’ must be based on sound medical judgement. Accordingly, whenever there is any concern that handing over such a person will have an adverse effect on their health – a concern that may be expressed by the inspected ship’s master or a member of its medical personnel – the commander of the intercepting warship should normally seek the advice of a physician or other person with the necessary medical expertise.
    1535  Secondly, the wounded and sick may be moved only if the ‘warship can provide adequate facilities for necessary medical treatment’. The determination of whether the warship’s facilities are ‘adequate for necessary medical treatment’ depends on the physical condition and state of health of the wounded and sick. It must also be based on sound medical judgement, taking into account the respective needs of the wounded and sick women and men.[42] The warship’s facilities will usually not be adequate if the wounded and sick are, at the time of interception, undergoing surgery or treatment that requires advanced medical skills. It may be recalled that the commander of the warship may order the wounded and sick to be transferred to a hospital ship of his or her nationality. In that case, the legality of the surrender does not depend on the warship’s facilities.[43]
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    Select bibliography
    See the select bibliography of the commentary on Article 12 of the Second Convention.

    1 - See the commentary on Article 22, section B.
    2 - Pictet referred to the Proceedings of the 1899 Hague Peace Conference, pp. 37–38; see Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 104. However, that part of the report merely deals with the prohibition of capturing neutral merchant vessels solely because they are transporting the sick, wounded or shipwrecked of the belligerents.
    3 - Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 687.
    4 - Ibid. p. 310.
    5 - Ibid.
    6 - Ibid. p. 566.
    7 - Ibid. p. 310.
    8 - Mossop, p. 405.
    9 - Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 310.
    10 - Ibid. p. 302.
    11 - Article 12 of the 1907 Hague Convention (X) reads: ‘Any war-ship belonging to a belligerent may demand that sick, wounded, or shipwrecked men on board military hospital ships, hospital ships belonging to relief societies or to private individuals, merchant ships, yachts, or boats, whatever the nationality of these vessels, should be handed over.’ This article was reproduced as Article 83 of the 1913 Oxford Manual of Naval War.
    12 - Reprinted in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts, 4th edition, Martinus Nijhoff, Leiden, 2004, p. 404.
    13 - Mossop, p. 405.
    14 - Ibid.
    15 - Ibid. Mossop also mentions that the action ‘did not pass without criticism in the higher councils of the Allies – criticism possibly provoked not so much by legal considerations as by the fear that the Japanese might be tempted to initiate similar action against Allied hospital ships in the Pacific theatre’.
    16 - Ibid.
    17 - See Naval Expert Report of 1937, p. 13.
    18 - Ibid. p. 14.
    19 - Ibid. (emphasis in original).
    20 - Report of the Conference of Government Experts of 1947, p. 79.
    21 - Draft Conventions adopted by the 1948 Stockholm Conference, pp. 35–36.
    22 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 55.
    23 - Ibid.
    24 - Ibid. p. 56.
    25 - Ibid.
    26 - For further information about the discussions during the 1949 Diplomatic Conference, see Paul de La Pradelle, La Conférence diplomatique et les nouvelles Conventions de Genève du 12 août 1949, Les Editions internationales, Paris, 1951, pp. 192–194.
    27 - Except in Article 17, which uses the term ‘belligerent Powers’.
    28 - See the 1907 Hague Convention (XIII), Articles 1–2 and the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, para. 15.
    29 - The right of surrender is a belligerent right. According to customary international law, the exercise of belligerent rights is limited to warships. See, inter alia, Germany, Military Manual, 2013, para. 1019, and United States, Law of War Manual, 2016, paras 13.3.3, 13.8.2 and 15.13.
    30 - Article 29 of the 1982 UN Convention on the Law of the Sea, which reflects customary international law on this point, defines ‘warship’ as a ‘ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline’. See also UN Convention on the High Seas (1958), Article 8(2); Hague Convention (VII) (1907), Articles 2–4; and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 13(g). An ‘auxiliary vessel’ is a ‘vessel, other than a warship [i.e. non-commissioned], that is owned or under the exclusive control of the armed forces of a State and used for the time being on government non-commercial service’ and a ‘merchant vessel’ is a ‘vessel, other than a warship, an auxiliary vessel, or a State vessel such as a customs or police vessel, that is engaged in commercial or private service’, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 13(h) and (i).
    31 - On the question of whether a hospital ship may qualify as a warship, see the commentary on Article 22, section C.1.b.
    32 - See Article 30(2).
    33 - See also 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 281–282.
    34 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1671.
    35 - See UN Convention on the Law of the Sea (1982), Article 95.
    36 - See ibid. Article 96.
    37 - See Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 310: ‘in some cases, it will be indispensable not to allow wounded or sick to go free who are still in condition to render great services to their country; this is easily seen in regard to shipwrecked men who are in good health’.
    38 - For details, see Article 16.
    39 - Article 6 of the 1907 Hague Convention (XI) provides that: ‘The captain, officers, and members of the crew, when nationals of the enemy State, are not made prisoners of war, on condition that they make a formal promise, in writing, not to undertake, while hostilities last, any service connected with the operations of the war.’
    40 - See also 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 280–281.
    41 - Treaties such as the 1974 SOLAS Convention and the 1979 SAR Convention contain a requirement that persons rescued at sea, regardless of their status or the circumstances in which they are found, be delivered to a ‘place of safety’; see SOLAS Convention (1974), Chapter V, Regulation 33-2, and SAR Convention (1979), Annex, Chapter 3, para. 3.1.9. On the meaning of the term ‘place of safety’, see International Maritime Organization, Resolution MSC.167(78), Guidelines on the Treatment of Persons Rescued at Sea, Doc. MSC 78/26/Add.2, 20 May 2004. On the question of whether these Conventions apply in time of armed conflict, see Introduction, section C.5.(e)-(f).
    42 - See the commentary on Article 12(4) of the First Convention, section H, for guidance on the inclusion of a gender perspective.
    43 - See para. 1521.