Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 25 : Hospital ships utilized by relief societies and private persons of neutral countries
Text of the provision
Hospital ships utilized by National Red Cross Societies, officially recognized relief societies, or private persons of neutral countries shall have the same protection as military hospital ships and shall be exempt from capture, on condition that they have placed themselves under the control of one of the Parties to the conflict, with the previous consent of their own governments and with the authorization of the Party to the conflict concerned, in so far as the provisions of Article 22 concerning notification have been complied with.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Discussion
  • Select bibliography
    A. Introduction
    2077  This provision and Article 24 both deal with National Red Cross and Red Crescent Societies (hereinafter National Societies), officially recognized relief societies, or private persons which operate, under the control of a Party to the conflict, a hospital ship for the benefit of persons protected by the Second Convention, i.e. wounded, sick or shipwrecked members of armed forces at sea, along with certain categories of civilians referred to in Article 13.
    2078  The two provisions’ scope of application hinges upon the belligerent or neutral status of the entity which carries out this humanitarian activity: entities belonging to a Party to the conflict in the case of Article 24, and entities belonging to neutral countries in the case of Article 25. Therefore, the requirements for hospital ships to qualify for protection under Article 25 differ from those set out in Article 24.
    2079  With these provisions, the High Contracting Parties have recognized that the hospital ships of National Societies, of officially recognized relief societies and of private persons may complement, or even substitute for, their own capabilities to meet the needs of persons protected by the Second Convention.
    2080  Once a vessel meets the definition of a hospital ship under the Convention (Articles 22, 24 or 25), it will be subject to the provisions of the Convention applicable to all three categories of hospital ships. For details, paragraph 2034 of the commentary on Article 24 is applicable here, mutatis mutandis.[1]
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    B. Historical background
    2081  Article 3 of the 1899 Hague Convention (III) was the first provision of contemporary international humanitarian law to explicitly regulate the conditions under which ‘hospital ships, equipped wholly or in part at the cost of private individuals or officially recognized societies of neutral countries’ are entitled to protection.[2] At the time of the adoption of that provision, no previous practice existed with regard to hospital ships of relief societies or private persons of neutral countries.[3]
    2082  In the 1899 Hague Convention (III), the requirements set down were the same as those applicable to hospital ships made available by officially recognized relief societies or by private individuals belonging to the Parties to the conflict. This parallelism was to change with Article 3 of the 1907 Hague Convention (X).[4] The latter provision modelled the requirements pertaining to hospital ships made available by relief societies or private persons of a neutral country on those found in the parallel provision on assistance provided by neutral non-governmental entities in the context of land warfare, i.e. Article 11 of the 1906 Geneva Convention, the predecessor of what is now Article 27 of the First Convention. The reason for this change can be traced back to the desire to control more stringently the charitable activities of neutral non-governmental entities, both on land and at sea.[5]
    2083  The 1937 Commission of Naval Experts replaced ‘equipped wholly or in part at the cost of’ with ‘operated by’. Thus, it is immaterial who owns or has built, equipped or paid for the hospital ship.[6]
    2084  The Preliminary Conference of National Societies in 1946 introduced one further change: instead of referring generically to hospital ships operated by ‘officially recognized relief societies’, it explicitly added those operated by ‘National Red Cross Societies’.[7] Thus modified, the provision was adopted by both the International Conference of the Red Cross in Stockholm in 1948[8] and the Diplomatic Conference of Geneva in 1949,[9] without further substantive changes.
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    2085  To date, neither Article 25 nor any of its predecessors is known to have been applied in practice. The considerations put forward in paras 2039 and 2040 of the commentary on Article 24 apply here, mutatis mutandis.
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    C. Discussion
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    1. Hospital ships covered by Article 25
    2086  Article 25 applies to ‘[h]ospital ships utilized by National Red Cross Societies, officially recognized relief societies, or private persons of neutral countries’. On the interpretation of these terms, see paragraphs 2041, 2042, 2044–2051 and 2053–2055 of the commentary on Article 24, which apply here, mutatis mutandis.
    2087  The only difference between Articles 24 and 25 is that, whereas Article 24 applies to hospital ships utilized by entities belonging to a Party to the conflict, Article 25 applies to those utilized by the same entities, but ‘of neutral countries’. Keeping in mind that Article 25 constitutes a variant of Article 24, the use of the word ‘of’ should be seen merely as descriptive; the relief society must be registered in the neutral country (though it need not have its headquarters there), without being part of the neutral country’s public authorities. Similarly, in view of the terminology ‘of neutral countries’, it seems safe to conclude that Article 25 applies only to hospital ships flagged in a neutral country.
    2088  The Second Convention does not regulate the eventuality that a neutral Power may wish to place its hospital ship(s) at the disposal of a Party to the conflict.[10] Article 25 is limited, indeed, to hospital ships utilized by ‘National Red Cross Societies, officially recognized relief societies, or private persons’ of neutral countries. In turn, Additional Protocol I now regulates the possibility for a neutral Power to make a hospital ship available ‘for humanitarian purposes to a Party to the conflict’.[11]
    2089  Within the logic of the Second Convention, hospital ships covered by Article 25 are to render assistance to persons protected by that Convention. In view of the scope of protection of each of the Geneva Conventions, rendering assistance to wounded, sick or shipwrecked civilians (except those covered by Article 13(4)–(6)) does not constitute one of the core humanitarian functions of a hospital ship covered by Article 25.[12]
    2090  Where only the Conventions apply, hospital ships of National Societies, of officially recognized relief societies and of private persons (belligerent and neutral alike) operated for the benefit of wounded, sick or shipwrecked civilians do so on the basis of the Fourth Convention, not on the basis of the Second Convention.[13] However, for Parties to Additional Protocol I, this has changed, as it states that hospital ships (including those covered by Article 25) are equally protected when they ‘carry civilian wounded, sick and shipwrecked who do not belong to any of the categories mentioned in Article 13 of the Second Convention’.
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    2. Requirements to qualify for protection
    2091  Article 25 contains four requirements for a hospital ship to be entitled to the same protection as the hospital ships covered by Article 22. By complying with these requirements, both the Party to the conflict and the neutral Power leave no doubt that they wish the hospital ship to be treated on the same legal basis as a military hospital ship of a Party to the conflict.
    2092  In contrast to Article 24, there is no requirement for the hospital ship to be issued with an ‘official commission’ or a control certificate. In turn, the requirements prescribed by Article 25 are more stringent in terms of the degree to which the States involved (both the Party to the conflict and the neutral Power) need to confirm their agreement to the hospital ship’s deployment.
    2093  The observations in paragraph 2059 of the commentary on Article 24 regarding the implementation of treaty obligations in good faith apply, mutatis mutandis, to all of the following requirements.
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    a. Control of one of the Parties to the conflict
    2094  In order to be covered by Article 25, the hospital ships of a National Society, of a relief society or of a private person of a neutral country need to ‘have placed themselves under the control of one of the Parties to the conflict’. During the 1907 Diplomatic Conference, a differently phrased and seemingly less stringent proposal, which would have required the hospital ship in question to ‘place itself in the service of the belligerent’, was rejected.[14]
    2095  It must be emphasized from the outset that placing oneself ‘under the control of one of the Parties to the conflict’ only applies to the hospital ship, its personnel and crew, and not to the relief society as such.
    2096  Being ‘under the control’ of a Party to the conflict that accepts the assistance of the entities covered by Article 25 means that that State is entitled to direct the activities of the hospital ship assigned to the task.[15] Conversely, the hospital ship is not entitled to act unless directed to do so. Therefore, in international legal terms, it operates under the responsibility of the State it is assisting.[16]
    2097  The Convention does not specify which organ or unit of the State should exercise such control. It may be, but need not be, the armed forces’ medical service.
    2098  By extension, the same requirement can be considered to be equally applicable to the crew and personnel of the hospital ships.[17] In practice, the question may arise whether being ‘under the control of’ means that the personnel and crews of hospital ships covered by Article 25 must be ‘subject to military laws and regulations’ (an even more stringent and formal requirement applicable to persons covered by Article 26 of the First Convention).[18] Based on the clear textual differences, the conclusion can be reached that if the drafters had meant this to be the case, they would have used identical terminology. This difference in wording also makes sense from the perspective of the law of neutrality, in that a neutral State cannot be expected to agree to have its nationals made ‘subject to military laws and regulations’ of a Party to an armed conflict.[19]
    2099  Still, the requirement for the hospital ship, its crew and personnel to be under the ‘control’ of a Party to the conflict is stringent, and means that they will need to accept a loss of their operational autonomy. This requirement, which does not appear in Article 24, has been justified as being the ‘only one consistent with the needs of a unified command, the maintenance of discipline, and sound administration, as well as with the guarantees of security which military operations demand’.[20] The purpose of this ‘control’ requirement is to strengthen the enemy’s confidence that the hospital ship will operate in accordance with international humanitarian law.
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    b. Previous consent of its own government
    2100  The neutral Power’s National Society, officially recognized relief society, or private person needs to have obtained the ‘previous consent’ of its own (i.e. neutral) government. For an analysis of the notion of ‘neutral Powers’, see the commentary on Article 5, section C.1.
    2101  Previous consent means that the neutral government agrees that the National Society, officially recognized relief society, or private person may offer its hospital ship to assist a Party to an international armed conflict. This requirement is critical: Article 25 can only apply if the neutral government allows a qualifying entity to serve on the basis of this provision. Consent can be given either on a case-by-case basis or in advance of any specific instance in which the entity would be called upon to act. In all instances, the Party to the conflict accepting the hospital ship’s assistance is still required to notify its adversary, in keeping with Article 22.
    2102  Article 25 does not specify whether consent – which remains either a bilateral arrangement between the neutral government and the entity concerned or a unilateral administrative act of the State – needs to be expressed in writing. It is advisable that it be so expressed, and that a copy of the document be included in the ship’s log. Also, when the Party to the conflict proceeds to comply with the notification requirement on the basis of Article 22 (see subsection d below), it is prudent that it includes in the notification a copy of the document attesting such consent.
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    c. Authorization of the Party to the conflict concerned
    2103  In addition to the consent of its own government, the National Society, officially recognized relief society, or private person of a neutral country also needs to obtain the ‘authorization of the Party to the conflict concerned’. The Party ‘concerned’ here refers solely to the Party to the conflict which wishes to accept the assistance of the hospital ship. Through such authorization, the Party to the conflict gives its official permission for the entity in question to provide, through the assistance of its hospital ship, medical care to persons protected by the Second Convention.[21]
    2104  Article 25 does not specify how the authorization is to be given. In practice, it is better for the Party to the conflict to convey the authorization in writing. Further, it is advisable that a copy of this authorization be included in the ship’s log. In any event, in practical terms it will be possible to deduce that authorization has been given where the requirement to notify the Party’s adversary in accordance with Article 22 has been met.
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    d. Notification
    2105  For a hospital ship to qualify on the basis of Article 25, the Party to the conflict which accepts its assistance needs to comply with ‘the provisions of Article 22 concerning notification’.
    2106  This obligation rests exclusively with the Party to the conflict which accepts the assistance of the hospital ship, not with the neutral Power or the relief society or the individual.[22] To avoid any doubt, it is advisable that the notification include a reference to both the neutral government’s own consent and to the authorization of the Party to the conflict.
    2107  On the requirement of notification, see section D of the commentary on Article 22 and Section C.2.b of the commentary on Article 24, which apply here, mutatis mutandis.
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    e. Considerations pertaining to the implementation of the requirements to qualify for protection
    2108  The Convention provides no guidance as to what would happen if a Party to the conflict or a neutral Power failed to comply with one or more of the procedural obligations, i.e. it does not specify whether this entitles the enemy of the Party to the conflict to refuse to treat the hospital ship as if it were a military hospital ship. For this hypothesis, see section C.2.d of the commentary on Article 24.
    2109  At all times, the failure to comply with one or more of the requirements prescribed by Article 25 leaves open the possibility for the Parties to the conflict to appeal to the hospital ship’s charity on the basis of Article 21. In that case, the vessel will not be protected as a hospital ship, but will be entitled to ‘special protection and assistance’ within the meaning of Article 21(2).
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    3. Status of a hospital ship, and its crew, covered by Article 25
    2110  A vessel which qualifies as a hospital ship in the sense of Article 25 ‘shall have the same protection as military hospital ships and shall be exempt from capture’. Thus, sections C.2 and C.3 of the commentary on Article 22 applies, mutatis mutandis, to such vessels.
    2111  Article 25 is silent about the status of the personnel and crews of the hospital ships covered by this provision.[23] As discussed in section C.2.a, they need to have placed themselves under the control of one of the Parties to the conflict. More generally, their status is regulated by Article 36.
    2112  The stipulation in Article 27(3) of the First Convention that the assistance provided may in no circumstances ‘be considered as interference in the conflict’ can be applied equally to the type of assistance set forth in Article 25.[24] Yet in both cases, the fact that relief societies or private persons of neutral countries are providing such assistance may evoke concern among some of the Parties involved that their actions fail to comply with the Fundamental Principle of neutrality (applicable to all components of the International Red Cross and Red Crescent Movement), or with the applicable rules of the law of neutrality. There is no reason to view the situation in such a way: assisting a Party to an international armed conflict with a hospital ship is a purely humanitarian activity, which violates neither of these normative frameworks.
    2113  As is the case with a military hospital ship, a vessel qualifying as a hospital ship in the sense of Article 25 needs to act on an impartial basis, i.e. it must treat the wounded, sick and shipwrecked of all Parties to the conflict solely on the basis of medical considerations and ‘without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria’.[25]
    2114  For an overview of the Convention’s substantive provisions applicable to hospital ships covered by Article 25, see para. 2034.
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    Select bibliography
    See the select bibliography of the commentary on Article 22 of the Second Convention.

    1 - See, however, Article 43. While this provision as a whole applies to hospital ships covered by Article 25, see, in particular, Article 43(2), which, in the second part of its first sentence, contains a rule specifically dealing with such hospital ships: ‘All hospital ships shall make themselves known by hoisting their national flag and further, if they belong to a neutral state, the flag of the Party to the conflict whose direction they have accepted. A white flag with a red cross shall be flown at the mainmast as high as possible.’
    2 - For a discussion of the legal framework as it developed in the decades prior to 1899, see the commentary on Article 24, paras 2036–2037. Article 3 of the 1899 Hague Convention (III) reads: Hospital ships, equipped wholly or in part at the cost of private individuals or officially recognized societies of neutral countries, shall be respected and exempt from capture, if the neutral Power to whom they belong has given them an official commission and notified their names to the belligerent Powers at the commencement of or during hostilities, and in any case before they are employed.
    3 - See Proceedings of the Hague Peace Conference of 1899, p. 35: ‘The future will tell whether neutral relief work will take place in naval wars and if so to what extent.’
    4 - Article 3 of the 1907 Hague Convention (X) reads: Hospital ships, equipped wholly or in part at the expense of private individuals or officially recognized societies of neutral countries shall be respected and exempt from capture, on condition that they are placed under the control of one of the belligerents, with the previous consent of their own Government and with the authorization of the belligerent himself, and that the latter has notified their names to his adversary at the commencement of or during hostilities, and in any case, before they are employed.
    5 - For a discussion of why the procedural requirements are modelled on land warfare, rather than on the premise of hospital ships made available by non-State entities belonging to Parties to the conflict, see Proceedings of the Hague Peace Conference of 1899, pp. 68–69, and Proceedings of the Hague Peace Conference of 1907, Vol. III, pp. 293–296.
    6 - For details, see the commentary on Article 24, para. 2042.
    7 - Report of the Preliminary Conference of National Societies of 1946, pp. 57–58.
    8 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 20, p. 33.
    9 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 109 and 145.
    10 - See Naval Expert Report of 1937, pp. 38–39. See also United States, Law of War Manual, 2016, para. 7.12.1.3. In contrast, this possibility has been regulated in Article 25 of the 1928 Havana Convention on Maritime Neutrality: If as the result of naval operations beyond the territorial waters of neutral States there should be dead or wounded on board belligerent vessels, said states may send hospital ships under the vigilance of the neutral government to the scene of the disaster. These ships shall enjoy complete immunity during the discharge of their mission.
    11 - For details, see Article 22(2) of Additional Protocol I and the commentary on Article 22 of the Second Convention, para 1948.
    12 - See the commentary on Article 22 section C.1.f.
    13 - During the Vietnam War (1955–1972), the Red Cross Society of the Federal Republic of Germany (known at the time as the West German Red Cross Society) sent a hospital ship, the Helgoland, to aid civilians affected by the conflict. Since the hospital ship was not intended to serve persons covered by the First or Second Convention, the West German Red Cross Society maintained that this operation must be carried out on the basis of Articles 18–21 of the Fourth Convention. At the same time, the ICRC was asked to notify the Parties to the conflict, in line with the regulation pertaining to notification contained in Article 25 of the Second Convention. The West German Red Cross Society did not, however, regard the Second Convention as an appropriate legal basis, for two reasons. First, since the Helgoland was intended to serve civilians instead of wounded, sick or shipwrecked members of the armed forces, the Second Convention was considered inapplicable. Second, the National Society did not wish to fall under the ‘control’ of a Party to the conflict as required under Article 25. For details, see Anton Schlögel, ‘Völkerrechtliche Aspekte des Einsatzes des Hospitalschiffes “Helgoland”’, Jahrbuch für Internationales Recht, Vol. 16, 1973, pp. 92–112, at 98–100. More generally, see the report of the West German Red Cross Society, Hospitalschiff “Helgoland”, Ein Bericht des Deutschen Roten Kreuzes, Bonn, 1972. See also Heimfried C. Nonneman, ‘The German Hospital Ship “Helgoland” in Vietnam’, in Rudolph Frey and Peter Safar (eds), Types and Events of Disasters Organization in Various Disaster Situations: Proceedings of the International Congress on Disaster Medicine, Mainz 1977, Vol. 1, Springer Verlag, Berlin, 1980, pp. 225–227. For the text of the agreement between the Federal Republic of Germany and the Republic of Vietnam concerning the use of the Helgoland, see Bundesgesetzblatt, 1966, Vol. II, pp. 322–326, in particular Article 4(2).
    14 - See Proceedings of the Hague Peace Conference of 1907, Vol. III, p. 296. For further historical consideration of the way in which this sensitive requirement used to be dealt with, see Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 168.
    15 - See also Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 311, defining ‘control’ as ‘the power to influence people’s behaviour or the course of events’. There was no such requirement in the 1899 Hague Convention (III), for a discussion see the Proceedings of the Hague Peace Conference of 1899, p. 35: ‘There was some thought of requiring neutral hospital ships to place themselves under the direct authority of one or the other of the belligerents, but careful study has convinced us that this would lead to serious difficulties. What flag would these ships fly? Would it not be somewhat inconsistent with the concept of neutrality for a ship with an official commission to be incorporated in the navy of one of the belligerents? It seemed to us sufficient to have these vessels, which are primarily under the control of the Government from which they have received their commissions, subjected to the authority of the belligerents … .’
    16 - For an analysis of what this means, see the commentary on Article 24, para. 2075 applicable here, mutatis mutandis.
    17 - In this respect, Article 25 of the Second Convention is not as detailed as Article 27 of the First Convention, which explicitly requires that both the ‘personnel’ and the ‘units’ of ‘a recognized Society of a neutral country’ ‘shall be placed under the control of [a] Party to the conflict’.
    18 - For the meaning of the words ‘subject to military laws and regulations’, see the commentary on Article 26 of the First Convention, section D.2.
    19 - The same interpretation applies to personnel covered by Article 27 of the First Convention. See the commentary on that provision, § 2132.
    20 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 168.
    21 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 88: to ‘authorize’ means to ‘give official permission for or approval to’.
    22 - In this respect, Article 25 of the Second Convention differs from Article 27 of the First Convention, where a double notification requirement applies; see the commentary on Article 27 of the First Convention, section D.
    23 - For a different approach, see Article 27 of the First Convention, which indicates that both the ‘personnel’ and the ‘units’ need to be ‘placed under the control of (the) Party to the conflict’ whom they serve.
    24 - United States, Law of War Manual, 2016, paras 15.5.2.1 and 15.6.2.2.
    25 - For details, see the commentaries on Article 12(2), section F.1.c, and Article 30(1), section D.