Treaties, States Parties and Commentaries
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Commentary of 2017 
Introduction
Contents

A. The ICRC project to update the Commentaries
1. Background and scope of the project
1  The 1949 Geneva Conventions and their 1977 Additional Protocols constitute the foundation of international humanitarian law today. They contain the essential rules of humanitarian law protecting civilians, persons who are hors de combat and medical and religious personnel, as well as a range of protected objects such as civilian objects and medical units and transports. At the time of writing, the Geneva Conventions have been universally ratified or adhered to. Furthermore, a large majority of countries, more than five out of every six, are party to the 1977 Additional Protocols.[1]
2  Upon the adoption of the Conventions in 1949, a group of ICRC lawyers who had been involved in the drafting and negotiation of the Conventions set out to write a detailed commentary on each of their provisions. This led to the publication between 1952 and 1960 of a Commentary on each of the four Conventions, under the general editorship of Jean Pictet.[2] Similarly, when the Additional Protocols were adopted in 1977, ICRC lawyers involved in their negotiation set out to write a commentary on both Protocols. These were published in 1986–1987.[3]
3  Over the years, these six ICRC Commentaries have come to be recognized as well-respected and authoritative interpretations of the Conventions and their 1977 Additional Protocols, essential for the understanding and application of the law.[4]
4  The original Commentaries were based primarily on the negotiating history of these treaties, as observed at first hand by the authors, and on prior practice. In this respect, they retain their historic value. They often contain a detailed comparison with previous conventions, e.g. a comparison between the Second Convention and the 1907 Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906 (or between the First and Third Conventions of 1949 and their predecessors, the 1929 Geneva Conventions on the Wounded and Sick and on Prisoners of War).
5  However, with the passage of time and the development of practice, a genuine need was felt to update the Commentaries. The ICRC therefore decided to embark upon an ambitious project to achieve that purpose. This update seeks to reflect the practice that has developed in applying and interpreting the Conventions and Protocols during the decades since their adoption, while preserving those elements of the original Commentaries that are still relevant. The objective is to ensure that the new editions reflect contemporary practice and legal interpretation. Therefore, the new editions are more detailed as they have the benefit of more than 60 years of application of the Conventions – 40 years in the case of the 1977 Additional Protocols – and their interpretation by States, courts and scholars. The new Commentaries reflect the ICRC’s current interpretations of the law, where they exist. They also indicate the main diverging views where these have been identified.
6  The update preserves the format of the original Commentaries, that is to say an article-by-article analysis of each of the provisions of the Conventions and Protocols. The commentaries on the common articles have been drafted to cover the four Conventions. They are adapted to the specific context of a Convention where this is particularly relevant or based on the text of the provision, for example the definition of ‘shipwrecked’ in the context of the Second Convention (see Articles 3 and 12).
7  The present volume is the second instalment in a series of six updated Commentaries. A commentary on Additional Protocol III that was published in 2007 is not being updated as part of this project.[5]
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2. The ICRC’s role in the interpretation of the Conventions and Protocols
8  The ICRC mandated the writing of the original Commentaries pursuant to its role as guardian and promoter of humanitarian law. The same is true for the current updated edition. This role is recognized in the Statutes of the International Red Cross and Red Crescent Movement, in particular the ICRC’s role ‘to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof’.[6] But it also follows from its role ‘to undertake the tasks incumbent upon it under the Geneva Conventions’ and ‘to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law’.[7] In many cases, these tasks require the ICRC to interpret the humanitarian law treaties underlying this mandate. Hence, the interpretation of humanitarian law is at the heart of the organization’s daily work across its operations.
9  A wide variety of other actors also interpret the Conventions and Protocols, in particular States (through government lawyers in ministries, military commanders, staff officers and lawyers, advocates before courts), national and international courts and tribunals, arbitral tribunals, international organizations, components of the Red Cross and Red Crescent Movement, and non-governmental organizations and academics. Where relevant, the interpretations given by these actors have been taken into account in this Commentary, in particular interpretations by States and decisions of courts and tribunals which are among the most important sources of interpretative guidance.
10  In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.
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B. Drafting process
11  The research and coordination for this Commentary has been carried out by an ICRC project team. Together with a group of external contributors and some additional ICRC staff lawyers, they drafted this Commentary. All draft commentaries were submitted for review to the group of contributors, the Reading Committee.
12  At the same time, many drafts were also submitted for review to other ICRC staff, including staff working in the field of integration and promotion of the law, policy, cooperation within the Red Cross and Red Crescent Movement, protection and assistance. For specific issues, additional consultations with governmental, military and National Red Cross or Red Crescent Society lawyers took place, as well as with international organizations dealing with maritime issues.
13  The draft commentaries were subsequently submitted to an Editorial Committee comprising senior ICRC and external humanitarian law experts for review. Based on the Committee’s comments, new drafts were prepared and submitted to a comprehensive process of peer review by a wide selection of nearly 50 scholars and practitioners from around the world involved in the study and implementation of humanitarian law. For the Second Convention, the peer reviewers included many persons with particular expertise in the law applicable to naval warfare, as well as its operational aspects. Based on the feedback from the peer review, the project team prepared a final draft for approval by the Editorial Committee. The final text is thus the result of a collaborative process.[8]
14  These various steps of consultation and review sought to ensure that the updated Commentary, being written almost 60 years after the initial 1960 Commentary, reflects current practice as accurately as possible and provides up-to-date legal interpretations based on the latest practice, case law, academic commentary and ICRC experience. Details on the treaties, other documents, military manuals, national legislation, national and international case-law referred to can be found in the corresponding tables at the end of this volume.
15  The updated Commentary has been drafted to serve a wide audience including, in particular, practitioners of international humanitarian law such as military commanders, staff officers and lawyers, judges and lawyers at national and international courts and tribunals, the ICRC and other components of the Red Cross and Red Crescent Movement, NGO staff, as well as academics and scholars.
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C. Methodology
1. Introduction
16  The updated Commentary applies the methodology for treaty interpretation as set out in the 1969 Vienna Convention on the Law of Treaties, in particular Articles 31–33.[9] Even though that Convention was adopted 20 years after the Geneva Conventions, these rules are generally considered to reflect customary international law.[10]
17  The text below addresses how the methodology has been applied to the interpretation of the Conventions, in particular the Second Convention.
18  Pursuant to Article 31 of the Vienna Convention on the Law of Treaties, a treaty must be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Although this rule of interpretation has different elements, which are examined under separate headings below, the interpretation itself must combine all the elements.[11]
19  The obligation to interpret the terms of a treaty in good faith flows from the general obligation to respect treaty obligations in good faith, known under the Latin maxim as pacta sunt servanda (‘agreements must be honoured’).[12]
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2. Ordinary meaning of the terms
20  The ordinary meaning of most of the terms in the Conventions can easily be ascertained. They tend to be written in plain language and provide significant details in the provisions themselves (see e.g. many of the detailed provisions of the Third Convention).
21  In order to achieve their objectives, the Conventions were drafted in such a way that they should easily be understood by soldiers, sailors and their commanders, as well as by civilians. The Conventions provide for their study to be included in programmes of military instruction,[13] and for the Third Convention to be posted in its entirety in prisoner-of-war camps, ‘in the prisoners’ own language, at places where all may read [it]’.[14] The purpose is for prisoners of war to be able to read the Convention and to be made fully aware of their rights under the Convention during their internment. Similarly the Conventions foresee a role for the civilian population, for example in the search for and collection of the wounded, sick and shipwrecked, and hence it is important that civilians be able to understand the (plain) text of the Conventions. Furthermore, civilians are protected under the Fourth Convention, which makes it all the more relevant that they be able to fully understand this treaty.
22  However, as practice in the application and interpretation of the Conventions over the past six decades have shown, the meaning of the Conventions’ terms is not always clear or may give rise to a need for further interpretation. Where necessary, this Commentary determines the ordinary meaning of terms with reference to authoritative, standard English dictionaries such as the Concise Oxford English Dictionary, or legal dictionaries such as Black’s Law Dictionary.
23  Although the updated Commentary has been drafted in English, the authors have consistently consulted and compared the French version of the Convention, which is equally authentic.[15] Where divergences between the two versions appear to exist, the Commentary proposes an interpretation which reconciles both versions.[16] To ascertain the meaning of the terms in the French version of the Convention, the authors consulted authoritative, standard French dictionaries, such as Le Petit Robert or Le Petit Larousse.
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3. Context
24  Pursuant to Article 31(1) of the Vienna Convention on the Law of Treaties, in order to determine the ordinary meaning to be given to the terms of the treaty those terms have be placed ‘in their context’. According to Article 31(2), the context to be considered for treaty interpretation comprises not only the text of treaty, but also its preamble and annexes.
25  The Second Convention has one annex, providing a model identity card for medical and religious personnel attached to the armed forces at sea. This annex is referred to where relevant in the context of a particular provision.[17]
26  The context also comprises the structure of the Conventions, their titles, the chapter headings and the text of the other articles in the same Convention, as well as in the other three Conventions.[18] The Final Act and the annexed 11 resolutions adopted by the 1949 Diplomatic Conference of Geneva are also considered part of the context for the purposes of interpretation of these respective treaties.[19]
27  In the case of the Conventions, the marginal titles are neither part of the text nor of the context because these were established after the Diplomatic Conference by the depositary, the Swiss Federal Council. This was done for ease of reference, as the articles of the Conventions have no titles, unlike the articles of the Protocols.[20] The marginal titles of some articles have been slightly adapted in the present Commentary to better identify their subject matter.
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4. Object and purpose
28  Strictly speaking the object of a treaty may be said to refer to the rights and obligations stipulated by the treaty,[21] while the purpose refers to the aim which is to be achieved by the treaty provisions.[22] However, the terms ‘object and purpose’ are used as ‘a combined whole’.[23] Thus, a treaty’s object and purpose is said to refer to its ‘raison d’être’,[24] its ‘fundamental core’,[25] or ‘its essential content’.[26]
29  Consideration in good faith of the object and purpose will ensure the effectiveness of the treaty’s terms:
When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation be adopted.[27]
As can be seen from this quote, and as recognized by the International Court of Justice, a treaty may have several objects and purposes.[28] A usual place to look for the object and purpose of a treaty is its preamble.[29] In the case of the Geneva Conventions, the preambles are very short and provide only limited guidance, contrary to the Additional Protocols which have more substantial preambles.[30] However, beyond the preambles, the whole text of the Conventions, including the titles and annexes, has to be taken into account in ascertaining their object and purpose.[31]
30  On this basis, it can be ascertained that the overall object and purpose of the Second Convention is to ensure respect for and protection of the wounded, sick and shipwrecked, as well as the dead, in international armed conflict at sea or other waters. The other provisions in the Convention are geared towards this purpose, for example the rules on the search for and collection of the shipwrecked, wounded and sick and of the dead. In addition, the rules that require respect for and protection of medical and religious personnel, transports, such as hospitals ships and coastal rescue craft, and the distinctive emblems all serve the purpose of protecting and caring for the shipwrecked, wounded and sick. Lastly, a number of other provisions are intended to ensure respect for the Convention through its promotion, implementation and enforcement.
31  Common Article 3 provides the Second Convention, and indeed all four Conventions, with another object and purpose, as it serves to protect persons not or no longer participating in hostilities, including the shipwrecked, in situations of non-international armed conflict.
32  The balance between humanitarian considerations, on the one hand, and military necessity, on the other, is a hallmark of international humanitarian law. This balance is reflected in the text of the Conventions adopted by the Diplomatic Conference of 1949.
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5. Additional elements of interpretation
33  Pursuant to Article 31(3) of the Vienna Convention on the Law of Treaties, together with the context, the interpretation provided in the Commentary also has to take into account:
(a) any subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the Parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the Parties.
Items (b) and (c) are particularly important considerations when interpreting the Geneva Conventions. It is important to ascertain the subsequent practice in the application of the Conventions which has accumulated over the decades since their adoption.
34  Subsequent practice that does not fulfil the criteria of this provision, i.e. to establish the agreement of the Parties regarding the interpretation of a treaty, may still be relevant as a supplementary means of interpretation under Article 32.[32] This consists of conduct by one or more Parties in the application of the treaty after its conclusion.[33] The weight of such practice may depend on its clarity and specificity, as well as its repetition.[34] The six decades since the adoption of the Geneva Conventions have seen the development of significant practice in their application, which is particularly useful in this respect.
35  Other relevant rules of international law include customary humanitarian law and the three Additional Protocols, as well as other relevant treaties of international law, including international criminal law and human rights law where applicable.[35] The latter bodies of law were still in their infancy when the Geneva Conventions were adopted in 1949 but have grown significantly since then. As stated by the International Court of Justice: ‘[A]n international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’[36]
36  In the context of the Second Convention, it is also relevant to examine the interplay with other sources of international law regulating activities at sea.
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a. International criminal law
37  With respect to international criminal law, the growing body of case law from the various international criminal courts and tribunals, as well as national courts, illustrates the way in which identical or similar concepts and obligations of international humanitarian law have been applied and interpreted for the purpose of assessing individual criminal responsibility. To the extent that this is relevant for the interpretation of the Conventions, this has been examined.
38  For example, the 1979 International Convention against the Taking of Hostages has become a starting point for the interpretation of the notion of the taking of hostages. This is also borne out by subsequent practice, e.g. in the form of the war crime of hostage-taking in the 1998 ICC Statute, the definition in the 2002 ICC Elements of Crimes, and case law.[37]
39  That said, it is important to underscore that the humanitarian treaty obligation may be broader than the criminalized parts of it in a rule contained in an instrument of international criminal law. The humanitarian treaty obligation exists independently of the rule of international criminal law on which the case law is founded. The content of the obligation may therefore not be identical in both bodies of law and differences are pointed out wherever they exist.
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b. International human rights law
40  With respect to the relationship between humanitarian law and human rights law, it is generally recognized that human rights law applicable in situations of armed conflict complements the protection afforded by humanitarian law because the two bodies of law share a common value of protecting human life and dignity.[38] The relationship between these bodies of law is, however, complex and still subject to further clarification and evolution. It is also highly contextual and therefore the interaction between the two bodies of law depends on the issue at hand. The Commentaries do not purport to set forth a general theory of the relationship applicable to all possible interactions between every rule of the Conventions and human rights law. It will address the relationship on a case-by-case basis, based on the premise of the complementary nature of both bodies of law.
41  Therefore, human rights law has been referred to where relevant in order to interpret shared concepts (e.g. cruel, inhuman and degrading treatment). This does not mean that human rights law and interpretations can be transposed mechanically to humanitarian law provisions and differences have been pointed out where relevant. For example, the definition of torture is set forth in the 1984 Convention against Torture, although ICTY case law and the ICC Elements of Crimes have interpreted this notion to be wider in humanitarian law than in the Convention against Torture.[39]
42  Human rights law, while retaining its separate existence and scope of application, may also be relevant where the application of the Conventions may be affected by international human rights obligations. For example, the commentary on common Article 3 (and on Articles 100–101 of the Third Convention and Article 68 of the Fourth Convention) which anticipates the possibility of the use of the death penalty, would be incomplete without a reference to international treaties aiming to abolish the death penalty.[40] These references are not so much a matter of interpreting the obligations in the Conventions through human rights law, but of mentioning parallel obligations in order to provide a complete overview of the relevant international legal rules.
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c. The Additional Protocols
43  A special issue is the relationship between the Geneva Conventions of 1949 and the Additional Protocols of 1977 and 2005. The original Commentaries on the Conventions were drafted prior to the adoption of the Additional Protocols. The updated Commentaries aim to provide the clearest picture of the content of the obligations set forth in each article of the Conventions, in the light of the obligations for States that are party to the Additional Protocols.
44  Therefore, the updated Commentaries indicate, where relevant, the legal impact of relevant Protocol rules on the interpretation of the Conventions. The commentary on the Additional Protocols will indicate in detail how a Protocol rule has altered, supplemented and/or reinforced a related rule in the Conventions. For example, the definition of shipwrecked in Article 8(b) of Additional Protocol I is taken into account for the interpretation of the same term in Articles 3 and 12 of the Second Convention (Articles 3 and 12). Similarly, the impact of Article 22(3) of Protocol I on the notification requirement in Article 27 of the Second Convention is assessed in the commentary on the latter provision.
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d. Customary international humanitarian law
45  Another issue is the relationship between treaty law and customary humanitarian law. The Geneva Conventions have been ratified by 196 States and are generally considered to be part of customary law.[41] Nevertheless, references have been made to relevant rules of customary international humanitarian law as identified by international courts or other bodies, or from the ICRC study on the subject, in situating a provision of the Conventions in the general context of international law.
46  However, the updated Commentaries do not seek to determine for each provision whether it amounts to customary law, because this is beyond their scope and, as noted, the Conventions are generally considered to be customary. Therefore, the absence of a reference to the customary status of a provision should not be interpreted as meaning that that provision is not part of customary international law; the issue was simply not examined as part of updating the Commentaries.
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e. UN Convention on the Law of the Sea
47  On a number of occasions, this Commentary refers to the 1982 UN Convention on the Law of the Sea (UNCLOS), a treaty concluded more than 30 years after the adoption of the Second Convention.[42] While an exhaustive analysis of the relationship between international humanitarian law and UNCLOS is outside the scope of this Commentary, the following considerations are relevant.
48  The outbreak of an armed conflict at sea does not necessarily terminate or suspend the applicability of UNCLOS.[43] Instead, it is widely accepted that, by and large, most provisions of UNCLOS will remain in operation in time of armed conflict, both in the relationship between the Parties to the conflict and, in the case of an international armed conflict, the relationship between the Parties to the conflict and neutral Powers.[44] Thus, for example, the term ‘warship’, which is used several times in the Second Convention, has nowadays to be interpreted on the basis of the requirements reflected in Article 29 of UNCLOS.[45] Lastly, even if a State was to withdraw from UNCLOS, or suspend its operation, it remains bound by those of its rules which reflect customary international law.[46] Those rules are equally binding upon States which have not become party to UNCLOS.
49  In turn, some of the rules of UNCLOS state that they are to be exercised ‘subject to this Convention and to other rules of international law’,[47] which includes international humanitarian law, notably the rules of naval warfare.[48] This may lead to a temporary suspension of the applicability of an individual rule of UNCLOS, but not of the Convention as a whole.
50  In addition, some rules of UNCLOS explicitly allow for the suspension of certain rights for security considerations, a notion which encompasses armed conflict. By way of example, reference can be made to Article 25(3) of UNCLOS. Under certain conditions, this provision allows a coastal State, ‘without discrimination in form or in fact among foreign ships’, to ‘suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security’. An armed conflict may qualify as such a circumstance.[49]
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f. Treaties adopted under the auspices of the International Maritime Organization
51  Since 1949, a significant number of treaties have been adopted under the auspices of the International Maritime Organization (IMO), a specialized agency of the United Nations. These include, among others, the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention), as amended, covering a wide range of measures designed to improve the safety of shipping; and the 1979 International Convention on Maritime Search and Rescue (SAR Convention), as amended, dealing with the rescue of persons in distress at sea.
52  Most IMO treaties exempt warships, troopships and other vessels on non-commercial government service from their substantive norms. While in some cases the exemption is near-absolute,[50] in other cases States party to these treaties are obliged to apply the rules of the treaty or code ‘to the greatest extent practicable’.[51] In some cases, however, no exemption for warships is specifically prescribed in the treaty.[52]
53  Unlike certain human rights law treaties, none of the treaties adopted by States under the auspices of the IMO include a provision which would explicitly allow them to derogate from some or all of the treaty commitments in case of an armed conflict.
54  Hence, for States party to these treaties and to the Second Convention, the question may arise whether, and if so to what extent and how, the IMO treaties apply in case of an armed conflict which takes place, in part or in entirety, at sea. The practical relevance of this question, which arises on a number of occasions in this Commentary,[53] may easily be demonstrated by referring to the SAR Convention: ‘Parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.’[54] This commitment is different from the one found in Article 18(1) of the Second Convention, drafted specifically for armed conflict at sea: ‘After each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.’ (Emphasis added.)
55  An analysis of the exact interplay between the Second Convention and the Conventions adopted by States under the auspices of the IMO is outside the scope of this Commentary. At the time of writing, this question had not been specifically addressed by States or in published academic writings. The lack of analysis on this topic remains without prejudice to the fact that the general rules on treaty interpretation apply to the analysis of the interplay between the two bodies of international law.
56  In the framework of the International Law Commission’s 2011 Draft Articles on the Effects of Armed Conflicts on Treaties, however, these IMO treaties arguably qualify as ‘multilateral law-making treaties’. Such treaties are one of the categories of ‘treaties the subject matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict’.[55]
57  The answer to the question of the interplay between the two bodies of international law may be different with regard to the relationship between the Parties to an international armed conflict (to which international humanitarian law may generally be considered to be better adapted) from that between the Parties to an international armed conflict and neutral Powers (where the latter may seek to invoke the armed conflict as a justification for why they cannot be expected to comply with the full extent of their IMO treaty obligations).
58  As far as the relationship between the Parties to an armed conflict is concerned, it may be argued that the more a question is linked, or the closer it occurs to, actual hostilities, the more the Second Convention prevails. This Convention, indeed, by taking the specificities of military necessity into account, was specifically intended to regulate such situations. Thus, in terms of this relationship, situations far from the battlefield or not linked to actual hostilities may still be regulated by IMO treaty commitments. Between belligerent Parties, the Second Convention nevertheless still regulates issues not covered by IMO treaties.[56]
59  In addition, the relationship between the Second Convention and the IMO treaties may also differ in how it plays out in international armed conflicts versus non-international armed conflicts (common Article 3).
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6. Special meaning of terms
60  According to Article 31(4) of the Vienna Convention on the Law of Treaties, ‘a special meaning shall be given to a term if it is established that the Parties so intended’. With respect to the Second Convention, this rule is relevant, for example, to the definition of the shipwrecked, wounded and sick, which is both narrower and wider than the ordinary meaning of these words.[57]
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7. Preparatory work
61  Lastly, according to Article 32 of the Vienna Convention on the Law of Treaties, ‘recourse may be had’ to the treaty’s preparatory work and the circumstances of its conclusion in order to confirm the meaning resulting from the application of the general rule of interpretation, or to determine the meaning when the application of the general rule leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
62  The formulation ‘recourse may be had’ gives the impression that recourse to the preparatory work is optional. In practice, however, most academic commentaries on treaties examine the preparatory work as a matter of standard research, and do not use it only in cases where the meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.[58]
63  Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’, which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 15 and 17, when it comes to the interpretation of the words ‘where so required by international law’, as well as for Article 26 of the Second Convention dealing with the tonnage of hospital ships.
64  The preparatory work that has been examined in this Commentary is listed in the corresponding table at the end of this volume.
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8. Absence of practice and desuetude
65  Certain provisions of the Convention do not seem to have been applied extensively in the past six decades. However, the absence of practice in the application of a provision does not, in and of itself, lead to the falling into desuetude of such a provision. Desuetude means that a treaty rule is no longer applicable or has been modified, a conclusion that should not be reached lightly. It is subject to stringent conditions and requires the agreement, at least tacit, of the Parties or the emergence of an inconsistent rule of customary international law.[59]
66  Examples of provisions in the Second Convention with no or only limited practice include:
– Articles 8 and 10 on Protecting Powers and their substitutes, which have rarely been used since 1949;
– Articles 11 and 53 on the conciliation and enquiry procedures, which have not been relied upon as such in recent conflicts;
– Article 28 on the protection of sick-bays should fighting occur on board a warship. This was of minor practical relevance in 1949 and is even less likely to occur nowadays.
– Articles 24–25 dealing with hospitals ships utilized by National Red Cross or Red Crescent Societies, by officially recognized relief societies or by private persons. Since 1949 these provisions are not known to have been applied.
Yet these provisions continue to exist as valid treaty rules and must be applied where their conditions for application are fulfilled.
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D. Structure of the commentaries
67  Each commentary presents the text of the provision in question. For multiple-paragraph articles, the paragraph numbers have been added for ease of reference. Following the text of the provision, reservations and declarations as at the time of publication are listed.
68  The commentary itself is preceded by a table of contents which serves as an outline of the issues addressed. It allows the reader to navigate easily within a commentary and to identify quickly which parts of a commentary may be most relevant. Each commentary is structured in a similar way:
69  Introduction: The introduction serves as an executive summary of the commentary. It highlights the main issues covered and allows for a quick overview of what a given provision deals with. Further details can be found in the discussion section. In some cases the introduction is merged with the next section on historical background.
70  Historical background: This part highlights the main phases in the development of a specific provision, rather than seeking to give an exhaustive overview of the entire drafting history. The length of this part depends on the relevance of the historical background for the current understanding of the provision and the amount of change and development over time for a specific provision. The footnotes in this part guide the reader to the necessary details.
71  Those elements of the drafting history that have a direct impact on the interpretation of a particular aspect of a provision are included in the discussion section.
72  For multiple-paragraph articles, such as common Article 3, this section focuses on the general historical background of the provision rather than on that of each paragraph. The historical background of a specific paragraph may then be set out in a separate section, or elements of it may be interwoven with the introduction or with the discussion of the paragraph.
73  Discussion: This part forms the core of each commentary. For single-paragraph articles this part may be divided into thematic sections. For multiple-paragraph articles, it is divided by paragraph and may have additional thematic subsections. The commentary outlines and explains the content of the provision. As noted, the commentary follows the rules on interpretation set out in the Vienna Convention on the Law of Treaties. The precise content of the discussion section depends on the article under scrutiny, but in general the aims of this section include:
– providing an interpretation of the ordinary meaning of the text in the light of its context and the object and purpose;
– setting out the practice in implementing a provision where this helps to clarify its scope and content;
– analytically describing any interpretations of the article by international courts and tribunals;
– indicating areas where the exact requirements of a rule are subject to debate;
– setting forth the broad outlines, including references, of the most authoritative academic doctrine on the issue focusing on the main fault lines among diverging opinions;
– indicating the ICRC position, if any, in relation to how the article should be interpreted and applied and the rationale for this position;
– providing key elements for implementing the obligation from a practical perspective, both humanitarian and military;
– describing briefly, where relevant, how the application in practice of a provision may affect women, men, girls and boys differently; and
– indicating briefly, where relevant, whether a violation of a provision entails the individual criminal responsibility of the author under international law.
74  Select bibliography: When specific literature on the provision is available, a select bibliography is appended to the commentary. This includes the specific works cited, as well as further reading. Treaties, other documents, military manuals, national legislation, national and international case-law referred to are referenced in the tables at the end of this volume.
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E. The Second Geneva Convention
1. Introduction
75  The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea is the second of four Conventions adopted by the Diplomatic Conference of Geneva of 1949.
76  The decision to revise the 1907 Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906 and to establish a fuller legal framework for the protection of victims of armed conflict was prompted by the violence of the Second World War, which was unprecedented in its scope and in the suffering and casualties it caused among both combatants and the civilian population. While improvements of the protection afforded by international humanitarian law had been under discussion well before the outbreak of the Second World War, the experiences of that war persuaded the governments participating in the Diplomatic Conference to fill some of the gaps in conventional international humanitarian law that the Second World War had exposed.
77  Over 65 years later, the four Geneva Conventions of 1949 continue to constitute the bedrock of international humanitarian law, and are among the most important treaties governing the protection of victims of armed conflict. These victims include the wounded and sick, the shipwrecked, prisoners of war, civilian internees, and civilians living under the control of an enemy State, under occupation or in the territory of an adverse Party, including specific categories of persons, such as women, children and displaced people. As such, the Conventions contain the essential rules protecting persons who are not, or no longer, taking a direct part in hostilities.
78  The 1949 Conventions rapidly gained broad acceptance by States and have generally always been ratified by them as a set. The four Conventions entered into force on 21 October 1950 after the first two ratifications.[60] They were ratified by another 74 States in the 1950s and obtained a further 48 ratifications in the 1960s. The ratifications steadily increased in the 1970s and 1980s. A wave of 26 new ratifications occurred in the early 1990s, resulting in particular from the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. With the last few ratifications since the year 2000, the applicability of the Geneva Conventions has become universal, with 196 States Parties at the time of writing.[61] Furthermore, they are generally considered to be part of customary law.[62] The universal ratification of the four Geneva Conventions and the customary-law character of their rules are important testimony to the commonly shared conviction that wars, including those conducted at sea, must have limits.
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2. Historical background
79  Maritime law developed from a branch of ancient laws relating to trade. Mercantile and maritime issues were often intertwined and, by the early medieval period, had developed in to an international code of customary law and were often referenced together as the lex maritima et mercatoria. Most of these ancient and medieval laws, although their main thrust was commercial matters, had a humanitarian element, particularly with regard to the shipwrecked, hostages, the return of captured seamen, and an obligation to aid vessels in distress.[63] In addition, bilateral and multilateral agreements contained rules aimed at protecting victims of armed conflict at sea.[64]
80  In preparation for what eventually became the first Geneva Convention, i.e. the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, [65] the Comité international de secours aux militaires blessés (which changed its name to International Committee of the Red Cross in December 1875) drafted a proposal, the final paragraph of which read: ‘Des stipulations analogues à celles qui précèdent, relatives aux guerres maritimes, pourront faire l’objet d’une Convention ultérieure entre les puissances intéressées.’[66] (‘Similar provisions to the preceding ones, relating to maritime warfare, could be the subject of a later Convention between the Powers concerned.’) The proposed article was not accepted in the final text ‘either because it was considered as being outside the terms of the Conference, or because the delegates had not received instructions on the matter from their respective governments’.[67]
81  The 1864 Geneva Convention thus did not apply to warfare at sea. The Convention nonetheless laid a foundation that has never since been shaken. It embodied the principle that members of the armed forces who are hors de combat because they are wounded or sick, and without means of defence, must be protected and cared for regardless of their nationality. As a corollary, and in the exclusive interest of the wounded, it added that ambulances and military hospitals, as well as the medical personnel, were to be protected against hostile acts. The distinctive emblem of a red cross on a white ground was chosen as the visible sign of this protection.
82  The importance of the codification of the principle that the wounded and sick of the armed forces must be protected and cared for without distinction cannot be overemphasized. It was the starting point for unceasing efforts by governments, the ICRC and National Red Cross and Red Crescent Societies to revise and improve the protection afforded to victims in times of war. While this protection was initially extended only to the wounded and sick in the armed forces and covered neither the shipwrecked nor civilians, it developed into the comprehensive body of international humanitarian treaty law that today governs the protection of all victims of armed conflict.
83  At the time of the Battle of Lissa, which involved hostilities at sea in 1866 between the Austrian Empire and Italy, there was no rule of international law requiring that the shipwrecked be rescued, respected or protected.[68] As on land before 1864, the lack of organized medical aid or standards of protection applicable during this naval battle caused the needless deaths of many combatants. In light of this experience, the 1867 International Conference of the Red Cross adopted a text recommending the extension of the essential provisions of the 1864 Geneva Convention to armed forces at sea.[69]
84  In line with this recommendation, the Swiss Federal Council convened a Diplomatic Conference in 1868.[70] This Conference adopted a text, containing 15 articles, entitled ‘Additional Articles relating to the Condition of the Wounded in War’. It dealt, among other things, with the status and protection of ‘boats which, at their own risk and peril, during and after an engagement pick up the shipwrecked or wounded’, ‘military hospital ships’ (without granting them an exemption from capture) and ‘hospital ships which are equipped at the expense of the aid societies’, as well as with the status of medical and hospital personnel.[71] However, owing to the lack of enthusiasm of the naval Powers, this text was never ratified by any State and it never entered into force. Therefore, victims of warfare at sea remained without protection under international law.[72] Prospects for addressing protection concerns in naval warfare were further compromised when, at the 1874 Brussels Conference, Britain vetoed any discussion about the law of naval warfare.[73]
85  During the 1880s and 1890s, several International Conferences of the Red Cross again addressed the need to adapt the principles of the 1864 Geneva Convention to the conditions of warfare at sea.[74]
86  In 1899, Russia convened the First Hague Peace Conference, whose agenda included naval warfare. At this conference, the Additional Articles were ‘considered as capable of constituting the best basis’ for adapting ‘to maritime wars the stipulations of the Geneva Convention of 1864’.[75] Pursuant to this consideration, the Conference adopted the ‘Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864’, the 1899 Hague Convention (III). This Convention, which entered into force in 1900, was the first treaty protecting victims of armed conflict at sea. It clarified the rules regulating the use and identification of hospital ships, and contained further details regarding the protection of the wounded, sick and shipwrecked, as well as of those caring for them.[76]
87  The United States published ‘The Laws and Usages of War at Sea: A Naval War Code’ for its own armed forces in 1900.[77] While it revoked this Code in 1904, the provisions it contained inspired the discussions among States in subsequent years.
88  In 1907, a year after the revision of the 1906 Geneva Convention governing land warfare, the Second Hague Peace Conference revised the 1899 Convention in light of the new Geneva Convention. While keeping most of the provisions of the 1899 Convention, several new ones were added in what became the Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention.[78]
89  In 1913, the Institute of International Law adopted the Oxford Manual on the Laws of Naval War Governing the Relations between Belligerents. The text of the Manual was elaborated by the Institute of International Law and was not a treaty. Several of its provisions, however, deal with topics nowadays regulated by the Second Convention, and in some cases are direct precursors of articles in the Convention.[79] The 1928 Havana Convention on Maritime Neutrality contained one article dealing with the protection of victims of warfare at sea.[80]
90  While the 1929 Diplomatic Conference revised the 1906 Geneva Convention governing law warfare and adopted a new Convention relative to the Treatment of Prisoners of War, it did not make any changes to the 1907 Hague Convention (X).
91  The 15th International Conference of the Red Cross, held in Tokyo in 1934, gave the ICRC a mandate to convene a Commission of Experts, whose task was ‘to consider in what respects the modification of the Hague Convention of 1907 would appear to be desirable and possible’.[81] After preparatory research by the ICRC, the Commission met in Geneva in 1937. It was composed of representatives of governments, National Red Cross and Red Crescent Societies, and the ICRC. The result of its work was a ‘Draft Revised Maritime Convention’, accompanied by an article by article explanation.[82] The 16th International Conference of the Red Cross, held in London in 1938, approved this draft and placed it on the agenda of the Diplomatic Conference, which the Swiss Federal Council had convened for 1940.[83] Owing to the outbreak of the Second World War, the Conference never took place.[84] After the end of that war, in 1945, the 1937 Draft Revised Maritime Convention became the starting point for what eventually became the Second Geneva Convention of 1949.
92  As noted above, the revisions that followed in the years 1946–1949 were heavily influenced by the experience of the Second World War. A choice had to be made between developing more detailed rules covering all possible eventualities, or formulating general principles sufficiently flexible to be adapted to the existing circumstances in each country. In the end, the Diplomatic Conference agreed on a compromise that involved detailed provisions and included certain general and inviolable principles. It is these principles that today give all four Geneva Conventions of 1949 their specific legal characteristics. They ensure that protection under the Convention is absolute for those persons and objects meeting the conditions set out for that protection, and that the Conventions’ reach extends beyond the inter-State level to ultimate beneficiaries who cannot renounce the rights secured to them.[85] While the possibility was left open for special agreements along the lines indicated by the model agreements and regulations annexed to the Conventions, these agreements cannot lower the level of protection provided by the Conventions. For the first time, the Conventions explicitly provide that the States Parties undertake to respect and ensure respect for the Conventions. The interests protected by the Conventions are of such fundamental importance that every State Party has a legal interest in their observance. The proper functioning of the system of protection provided by the Conventions demands that States Parties not only apply the provisions themselves, but also do everything reasonably in their power to ensure that the provisions are respected universally. The Conventions thus create obligations erga omnes partes, i.e. obligations towards all of the other High Contracting Parties.[86]
93  To get to these results, several expert conferences were convened in Geneva, where preparatory material gathered by the ICRC and first drafts were centralized and discussed. The most important were the Preliminary Conference of National Red Cross Societies in 1946 and the Conference of Government Experts in 1947. The drafts prepared by these Conferences were presented to the 1948 International Conference of the Red Cross in Stockholm, where further amendments were adopted.
94  The Stockholm drafts served as the basis for negotiation at the Diplomatic Conference which, convened by the Swiss Federal Council as depositary of the 1929 Conventions, met in Geneva from 21 April to 12 August 1949. Fifty-nine States were officially represented by delegations with full powers to discuss the texts; four States sent observers. The Conference immediately set up four main committees, which sat simultaneously and considered (1) the revision of the First Geneva Convention and the drafting of the Second Geneva Convention, which would, as per its preamble ‘revis[e] the Xth Hague Convention of October 18, 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906’;[87] (2) the revision of the Geneva Convention on Prisoners of War; (3) the drafting of a completely new convention that for the first time addressed the protection of civilians; and (4) the provisions common to all four Conventions.
95  Besides numerous working groups,[88] a Coordination Committee and a Drafting Committee, which edited the text for uniformity and consistency, were formed towards the end of the Conference.
96  The discussions and results obtained in these different committees and working groups are reflected in the commentaries on the individual articles, usually in the historical background sections, and thus need not be summarized here. Nevertheless, it merits mentioning that the records of the Diplomatic Conference, which are published,[89] as well as the reports from individual participants, testify to the plenipotentiaries’ unstinting work for almost four months. They reflect a remarkable humanitarian spirit and a willingness to cooperate that, despite divergent opinions, prevailed throughout the Diplomatic Conference.
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3. Content of the Second Geneva Convention
97  The basic principle underlying all four Conventions is respect for the life and dignity of the individual, even – or especially – in situations of armed conflict. Those who suffer during armed conflict must be aided, protected and cared for. They must in all circumstances be treated humanely, without any adverse distinction founded on sex, race, nationality, religion, political opinions or any other similar criteria.
98  The same principle forms the basis for the specific rules found in the Second Convention with regard to wounded, sick and shipwrecked members of armed forces at sea, as well as other individuals falling within the protective scope of the Convention (such as certain civilians referred to in Article 13, as well as religious, medical and hospital personnel). The Convention contains, above all, the central obligation for the Parties to respect and protect them in all circumstances, treat them humanely and care for them without any adverse distinction based on the criteria mentioned above. This protection applies to situations both at sea and when they are in enemy hands. Moreover, all possible measures must be taken to search for and collect shipwrecked, wounded and sick members of armed forces at sea, and to protect them against pillage and ill-treatment.
99  Closely related to this obligation are the provisions related to the dead. These obligations demand that the dead be searched for and protected from despoliation. Measures must be taken to record information that can assist in the identification of the wounded, sick, shipwrecked or dead, so that information about their fate can be forwarded to the Power on which they depend and, ultimately, to their families. Burial of the dead must be preceded by a careful examination with a view to establishing identity.
100  Recognizing an important means by which its obligations may be implemented, the Second Convention affords protection to hospital ships: both military hospital ships and hospital ships utilized by National Red Cross or Red Crescent Societies, by officially recognized relief societies or by private persons. It also affords protection to small craft employed by the State or by officially recognized search and rescue organizations, to ships chartered for the transport of medical equipment and to medical aircraft. Importantly, like the First Convention, it also provides protection for religious, medical and hospital personnel tending to the needs of persons protected by the Second Convention. The Second Convention also stipulates certain circumstances under which such protection may be lost. These clearly defined and limited circumstances, however, only add weight to the fundamental obligation that medical transports protected by the Second Convention, as well as the religious, medical and hospital personnel that serve them, may not be made the object of attack and must be respected and protected by the Parties to the conflict.
101  As a means of improving the protection of wounded, sick and shipwrecked members of armed forces at sea (in particular, but not only, naval forces) and members of the armed forces’ medical service, the Second Convention confirms the red cross or red crescent on a white ground as the distinctive emblem to be used by the medical service of a country’s armed forces.[90] The distinctive emblem indicates that its bearers enjoy specific protection from attack, undue harm, or other interference with their tasks. The medical service of the armed forces is considered to be the primary user of the emblems. The Second Convention requires the Parties to respect and ensure respect for and control of the use of the emblems and to prevent their misuse at all times.
102  Given that the majority of today’s armed conflicts are of a non-international character, and may also be waged at sea, common Article 3, which applies to such conflicts, has become one of the key provisions of international humanitarian law and has gained an importance that was probably not foreseen by the drafters in 1949. Common Article 3 was one of the first treaty provisions to specifically address non-international armed conflict. It is, in many respects, a mini-convention within the Convention,[91] and the fundamental character of its provisions has been recognized as a reflection of ‘elementary considerations of humanity’ and as a ‘minimum yardstick’ binding in all armed conflicts.[92] Common Article 3 has been supplemented in a number of important areas by Additional Protocol II and by the continuous development of customary international law in this area.
103  Lastly, the Second Convention contains a comprehensive set of provisions on the suppression of abuses, including penal sanctions, aimed at ensuring respect for the Convention and increasing the protection it provides. These provisions were completely new in 1949, and similar provisions were incorporated in all four Conventions. Article 50 obliges States Parties to enact legislation providing effective penal sanctions, and to either prosecute or extradite, regardless of their nationality, alleged offenders who are suspected of having committed one of the grave breaches listed in Article 51.
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4. Structure
104  The title of the Second Convention indicates that it is ‘for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea’. The full titles of the 1899 and 1907 Hague Conventions (III) and (X), respectively, recall that they were ‘for the adaptation to maritime warfare of the principles of’ the corresponding Geneva Convention on land warfare. This reflected the spirit of both Hague Conventions: affirming that the protective rules agreed upon for land warfare extended to armed conflict at sea. In 1949, in view of the expansion of the number of rules and their being ever more tailored to the specific needs of naval warfare, this approach was abandoned, and the Convention now has a title which reflects its self-standing character.[93] Use of the term ‘members of armed forces at sea’ makes clear from the outset that the protection conferred by the Convention is not limited to naval forces, but to members of all branches of the armed forces when they are wounded, sick, shipwrecked or dead at sea in time of armed conflict. Lastly, it must be kept in mind that the Convention also confers protection on certain categories of civilians, referred to in Article 13, as well as to the religious, medical and hospital personnel assigned to the care of the wounded, sick and shipwrecked.
105  The Second Convention starts with the common provisions, which are practically identical in all four Conventions. Yet, importantly, these provisions have been adapted to the naval context by the addition of the ‘shipwrecked’ alongside the ‘wounded and sick’. These common provisions contained in Chapter I deal with the obligation to respect and to ensure respect for the Convention, and set out the Conventions’ scope of application. They also provide for the conclusion of special agreements between the Parties, prohibiting those that might waive or lower the level of protection afforded in the Convention, and they confirm the inalienability of the rights of protected persons. They outline the role foreseen for the Protecting Powers or their substitutes, and provide for a conciliation procedure between Parties. They also enshrine the right of the ICRC and other impartial humanitarian organizations to offer their humanitarian activities for the protection of the wounded, sick and shipwrecked to the Parties to an international armed conflict.
106  As mentioned above, common Article 3 is a convention in miniature, which lays down rules applicable in non-international armed conflicts, including when they take place at sea, even if only in part. In the Second Convention, this article specifically provides protection for wounded, sick and shipwrecked persons.
107  Provisions common to the four Conventions are also found at the end of the Second Convention, notably those on dissemination, translations, reprisals and penal sanctions, and the final provisions, which define the procedure for signature, ratification and entry into force of the Convention, and for accession to it.
108  Chapter II represents the core of the Convention, as it contains the rules regarding the protection of the wounded, sick and shipwrecked of the armed forces. Article 12 contains a list of prohibited acts, which include attempts upon life, torture, and wilfully leaving the wounded, sick or shipwrecked without medical assistance or care. Article 12 is complemented by Article 18, which imposes on the Parties certain core obligations vis-à-vis the wounded, sick, shipwrecked and dead, including the obligation to search for them and to collect and remove them from the danger zone. While Article 13 enumerates the categories of persons entitled to protection under the Convention when they are wounded, sick or shipwrecked, Article 16 makes it clear that the military wounded, sick and shipwrecked who fall into enemy hands are prisoners of war and, as such, enjoy the protection of both the Second and the Third Conventions. The information to be given about wounded, sick and shipwrecked captives and the duties in respect of the dead, including when they are buried at sea, are defined in Articles 19 and 20. In Article 14, Chapter II also deals with the right of warships of a Party to the conflict to demand that wounded, sick and shipwrecked persons protected by the Second Convention be surrendered, as well as with the conditions under which this right may be exercised. Further, this chapter also deals with the eventuality that wounded, sick or shipwrecked persons end up in the hands of a neutral Power (Articles 15 and 17). Lastly, the chapter stipulates that the Parties to the conflict may appeal to the charity of neutral vessels to take on board and care for wounded, sick and shipwrecked persons, and to collect the dead, and regulates the status of vessels doing so.
109  Chapter III deals with hospital ships and with small craft employed by the State or by officially recognized search and rescue organizations. While the latter are dealt with in a single provision (Article 27), hospital ships are dealt with in 11 provisions, which regulate the following: the conditions which must be met before a vessel legally qualifies as a hospital ship entitled to the specific protection of the Convention (Article 22); the types of entities which may utilize hospital ships covered by the Second Convention (Articles 22, 24 and 25); the conditions for the loss of their protection and the conditions which are not considered as depriving them of their protection (Articles 34 and 35); recommended minimum tonnage (Article 26); how hospital ships must be employed (Article 30); the measures of search and control the enemy may exercise vis-à-vis them (Article 31); and three special scenarios: when a hospital ship is in a port fallen into enemy hands (Article 29) or is in a neutral port (Article 32), and when a merchant vessel has been converted into a hospital ship (Article 33). Lastly, Chapter III also deals with a very different topic: the status of sick-bays of warships should fighting occur on board such vessels (Article 28).
110  Chapter IV addresses the legal status of the religious, medical and hospital personnel of hospital ships and their crews (Article 36) and of such personnel when they have been retained owing to the spiritual and medical needs of persons protected by the Second Convention if they fall into enemy hands (Article 37). Chapter V regulates two specific types of ‘medical transports’: ships chartered for the purpose of transporting medical equipment (Article 38) and medical aircraft (Articles 39–40).
111  Chapter VI contains the provisions relating to the use and protection of the distinctive emblem of the red cross or red crescent. This chapter reaffirms the protective functions of the distinctive emblem and clarifies the parameters of its use by the personnel covered by Chapter IV as well as by hospital ships and coastal rescue craft. This chapter also contains provisions on preventing and punishing misuses of the emblem.
112  Chapter VII deals with the execution of the Convention and with its dissemination as an essential condition for its effective application and an important element in creating an environment conducive to lawful behaviour. This chapter also contains a provision stipulating an absolute prohibition of belligerent reprisals against the wounded, sick and shipwrecked and the personnel, vessels and equipment protected by the Convention. It is through this prohibition that persons protected under the Second Convention on all sides of an armed conflict are safeguarded from the risk of rapid and disastrous deterioration in the treatment provided to them because of belligerent Parties responding to offences by taking identical or similar action.
113  The Second Convention ends with Chapter VIII, which contains articles relating to the repression of abuses and infractions, and with a final section containing the final provisions.
114  Since its adoption in 1949, the Second Convention has been supplemented in some respects by Additional Protocol I. Among other things, this Protocol eliminated the distinction between the military and civilian wounded, sick and shipwrecked, by extending protection to all wounded, sick and shipwrecked persons. This, as well as other additions and clarifications, are addressed in greater detail in the commentary on Additional Protocol I. Article 8 contains, for the purposes of the Protocol, several definitions that are relevant to enhanced protection of the wounded, sick and shipwrecked at sea (such as ‘medical transportation’ and ‘medical ships and craft’ in Article 8(f) and (i) of the Protocol). For Parties to the Protocol, Articles 22 and 23 extend or even modify some of the rules of the Second Convention.
115  Also since 1949, the Second Convention has been supplemented by the development of customary international law. Furthermore, in the context of armed conflicts at sea, special mention must be made of the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, which, in its own words, is a ‘contemporary restatement – together with some progressive development – of the law applicable to armed conflicts at sea’ and which ‘has been drafted by an international group of specialists in international law and naval experts’.[94] At the time of writing this Commentary, the San Remo Manual is, for the most part, still a valid restatement of customary and treaty international law applicable to armed conflicts at sea. It has been argued, however, that it may be time to consider updating parts of the Manual.[95]
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5. Contemporary relevance and challenges
116  For any international armed conflict that takes place in part or in entirety at sea, the Second Convention would be as relevant today as it was at the time of its adoption. The fundamental values of humanity and dignity on which all the Geneva Conventions are based are timeless. Warfare is changing and new weapon systems are being developed, including in the context of warfare capabilities at sea, but there remains the distressing reality: in case of an armed conflict at sea, members of the armed forces, as well as other categories of persons, may become wounded, sick and shipwrecked, and therefore in need of protection and assistance. Enhancing the protection of vessels and aircraft helping the wounded, sick, shipwrecked and dead, as well as of medical personnel and resources, thereby facilitating the effective performance of medical duties and ensuring that victims of armed conflict can be assisted and protected, thus continues to be an imperative warranting the due attention of the international community.
117  Since 1949, there have been a number of international armed conflicts with hostilities taking place at sea, with the Second Convention applicable to them. Among these, one stands out in terms of the wide range of topics which played a role and which are addressed and regulated by the Second Convention: the Falkland/Malvinas Islands conflict (1982).[96] In that conflict, the Second Convention proved crucial for ensuring the protection and care of wounded, sick, shipwrecked and dead members of the armed forces.
118  Non-international armed conflicts may also take place, and have taken place, in part or in entirety, at sea. Within the framework of the Geneva Conventions, Article 3 applies to such conflicts.
119  While the positive effects of the Geneva Conventions are not easy to quantify, this does not mean that there are no such effects at all: ICRC delegates present in armed conflicts around the world witness them time and again. Indeed, when it comes to armed conflicts on land, the millions of individuals who have been harmed by such conflicts, but who have survived with their dignity intact, are perhaps the greatest testament to the humanitarian influence of the Conventions. The distinctive emblems of the red cross and the red crescent have enhanced the protection of innumerable hospitals, medical units and personnel, as well as countless wounded and sick persons. These emblems, which derive their protective value from the First and Second Conventions, are known throughout the world.
120  Despite the specific protective regime set up by the Second Convention and its successes, the protection of the wounded, sick and shipwrecked continues to face challenges. It must be stressed that the fundamental challenges posed by such incidents are not due to the inadequacy of the rules of humanitarian law. The rules contained in the Second Convention can only be effective, however, if they are respected and properly implemented by the belligerents. Without neglecting the possibility of and need for specific improvements in the law, the ICRC is therefore convinced that the key to increasing the care and protection of the wounded, sick, shipwrecked and dead of the armed forces during armed conflict is respect for and better implementation of the existing rules.
121  Since the adoption of the 1899 Hague Convention (III), the rules of international humanitarian law protecting wounded, sick, shipwrecked and dead members of armed forces at sea have been consolidated in the Second Geneva Convention. In order to fully appreciate the significance of this Convention more than 65 years after its adoption, it must not be viewed in isolation, but in conjunction with the other three Conventions, as well as the Additional Protocols and the rules of customary international humanitarian law that exist today, including in the realm of naval warfare. Taken together, these rules represent the principal legal regime intended to alleviate human suffering during armed conflicts at sea.
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Select bibliography
Abi-Saab, Georges, ‘The specificities of humanitarian law’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 265–280.
Aust, Anthony, Modern Treaty Law and Practice, 3rd edition, Cambridge University Press, 2013, pp. 205–226.
Buffard, Isabelle and Zemanek, Karl, ‘The “Object and Purpose” of a Treaty: An Enigma?’, Austrian Review of International & European Law, Vol. 3, 1998, pp. 311–343.
Corten, Olivier and Klein, Pierre (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Oxford University Press, 2011.
Dörr, Oliver and Schmalenbach, Kirsten (eds), Vienna Convention on the Law of Treaties: A Commentary, Springer, Berlin, 2012.
Fitzmaurice, Gerald, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points, British Yearbook of International Law, Vol. 33, 1957, pp. 203–293.
Gardiner, Richard K., ‘The Vienna Convention Rules on Treaty Interpretation’, in Duncan B. Hollis, The Oxford Guide to Treaties, 2012, pp. 475–506.
Treaty Interpretation, 2nd edition, Oxford University Press, 2015.
Reuter, Paul, Introduction to the Law of Treaties, 2nd edition, Graduate Institute of International Studies, Geneva, 1995.
Sinclair, Ian, The Vienna Convention on the Law of Treaties, 2nd edition, Manchester University Press, 1984.
Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009.

1 - For a continuous update, see the websites of the ICRC (http://www.icrc.org/ihl) and the depositary (https://www.fdfa.admin.ch/depositary).
2 - Geneva Convention I: commentary by Jean S. Pictet, with contributions by Frédéric Siordet, Claude Pilloud, Jean-Pierre Schoenholzer, René-Jean Wilhelm and Oscar M. Uhler, published in 1952 (French original and English). Geneva Convention II: commentary by Jean S. Pictet, with the co-operation of Rear-Admiral M.W. Mouton (Netherlands), with contributions by Frédéric Siordet, Claude Pilloud, Jean-Pierre Schoenholzer, René-Jean Wilhelm and Oscar M. Uhler, published in 1959 in French and in 1960 in English. Geneva Convention III: commentary by Jean de Preux, with contributions by Frédéric Siordet, Claude Pilloud, Henri Coursier, René-Jean Wilhelm, Oscar M. Uhler and Jean-Pierre Schoenholzer, published in 1958 in French and in 1960 in English. Geneva Convention IV: commentary by Oscar M. Uhler and Henri Coursier, with Frédéric Siordet, Claude Pilloud, Roger Boppe, René-Jean Wilhelm and Jean-Pierre Schoenholzer, published in 1956 in French and in 1958 in English.
3 - Additional Protocol I (and Annex I): commentary by Claude Pilloud, Jean de Preux, Yves Sandoz, Bruno Zimmermann, Philippe Eberlin, Hans-Peter Gasser and Claude F. Wenger. Additional Protocol II: commentary by Sylvie S. Junod. Both commentaries were prepared under the editorship of Yves Sandoz, Christophe Swinarski and Bruno Zimmermann and published in French in 1986 and in English in 1987.
4 - See e.g. W. Hays Parks, ‘Pictet’s Commentaries’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 495–497.
5 - Jean-François Quéguiner, ‘Commentary on the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)’, International Review of the Red Cross, Vol. 89, No. 865, March 2007, pp. 175–207.
6 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(g). On the ICRC’s role in the interpretation of international humanitarian law, see also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 914–922.
7 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(c).
8 - For details concerning the persons involved in the research, drafting and review, see the Acknowledgements.
9 - What follows is only a summary of the issues raised by these articles. For a more detailed commentary on these provisions, see Aust, pp. 205–226; Gardiner, 2015; Sinclair, pp. 114–158; and the sections on Articles 31–32 in Corten/Klein, Dörr/Schmalenbach, and Villiger.
10 - See e.g. ICJ, Kasikili/Sedudu Island case, Judgment, 1999, paras 18–20; Application of the Genocide Convention case, Merits, Judgment, 2007, para. 160; ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 1.1 (provisionally adopted), Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/68/10, 2013, p. 11.
11 - See ILC, Yearbook of the International Law Commission, Vol. II, 1966, p. 220, paras 9–10; ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 1.5 provisionally adopted’, Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/68/10, 2013, p. 11; Gardiner, 2015, pp. 31–32; and Aust, p. 208.
12 - Vienna Convention on the Law of Treaties (1969), Article 26. For more details, see Gardiner, 2015, pp. 167–181.
13 - First Convention, Article 47; Second Convention, Article 48; Third Convention, Article 127; and Fourth Convention, Article 144.
14 - Third Convention, Article 41. Similarly, the Fourth Convention needs to be posted inside camps for civilian internees; see Fourth Convention, Article 99.
15 - See Second Convention, Article 54, and Vienna Convention on the Law of Treaties (1969), Article 33.
16 - For further details, see the commentary on Article 54, section B.2.
17 - See the commentary on Article 42.
18 - See e.g. the commentaries on Articles 16, para. 1579; 37, section F; and 43, para. 2760, referring to the Third, First and Fourth Conventions respectively as context for the interpretation of the Second Convention.
19 - See Aust, p. 211; Gardiner, 2015, p. 86; Sinclair, p. 129; and Villiger, p. 430.
20 - See Marginal Headings (or Titles of Articles) Established by the Swiss Federal Political Department, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, Part III.
21 - Reuter, p. 186, para. 283; see also Buffard/Zemanek, pp. 331–332.
22 - Buffard/Zemanek, pp. 331–332.
23 - Villiger, p. 427, with further references; Gardiner, 2015, pp. 212–213 (‘a composite item’); David S. Jonas and Thomas N. Saunders, ‘The Object and Purpose of a Treaty: Three Interpretive Methods’, Vanderbilt Journal of Transnational Law, Vol. 43, No. 3, May 2010, pp. 565–609, at 578 (‘a unitary concept’).
24 - ICJ, Reservations to the Genocide Convention, Advisory Opinion, 1951, para. 23.
25 - Alain Pellet, ‘Article 19. Formulation of reservations’, in Corten/Klein, pp. 405–488, at 450–451.
26 - David S. Jonas and Thomas N. Saunders, ‘The Object and Purpose of a Treaty: Three Interpretive Methods’, Vanderbilt Journal of Transnational Law, Vol. 43, No. 3, May 2010, pp. 565–609, at 576.
27 - ILC, Yearbook of the International Law Commission, Vol. II, 1966, p. 219, para. 6. See also ICJ, Territorial Dispute case (Libya v. Chad), Judgment, 1994, para. 51: in international law, effet utile is regarded as ‘one of the fundamental principles of interpretation of treaties’.
28 - ICJ, Morocco case, Judgment, 1952, p. 196; see also Villiger, p. 427, para. 11; Mark E. Villiger, Customary International Law and Treaties, Martinus Nijhoff Publishers, Dordrecht, 1985, pp. 321–322; Gardiner, 2015, p. 214 (‘sometimes there seems no particularity in distinguishing between the object and purpose of the treaty and the purpose of particular provisions’); Sinclair, p. 130; and Fitzmaurice, p. 228. But see Jan Klabbers, ‘Some Problems Regarding the Object and Purpose of Treaties’, Finnish Yearbook of International Law, Vol. 8, 1997, pp. 138–160, at 152–153 (potential problems of admitting arguments based on object and purpose of individual provisions).
29 - ICJ, Morocco case, Judgment, 1952, p. 196; see also Fitzmaurice, p. 228, and Sinclair, pp. 125–126.
30 - For more details, see the commentary on the Preamble.
31 - See Gardiner, 2015, p. 213; Fitzmaurice, p. 228; and Buffard/Zemanek, p. 332.
32 - ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 1.4 provisionally adopted, Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/68/10, 2013, p. 11.
33 - Ibid. Conclusion 4.3 provisionally adopted, p. 12.
34 - ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 8.3 provisionally adopted, Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/69/10, 2014, p. 169.
35 - It should be noted that treaties, other than the Conventions themselves, that are referred to in the Commentaries are used on the understanding that they apply only if all the conditions relating to their geographic, temporal and personal scope of application are fulfilled. In addition, they apply only to States that have ratified or acceded to them, unless and to the extent they reflect customary international law.
36 - ICJ, Namibia case, Advisory Opinion, 1971, para. 53. For further details, see also ILC, Conclusions of the work of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, reproduced in Report of the International Law Commission on the work of its fifty-eighth session, UN Doc. A/61/10, 2006, Chapter XII, para. 251, subparagraphs (17)–(23), pp. 413–415.
37 - For details, see the commentary on common Article 3, section G.3.
38 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, para. 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para. 106; and Armed Activities on the Territory of the Congo case, Judgment, 2005, paras 215–220. See also ICRC, Handbook on International Rules Governing Military Operations, ICRC, Geneva, 2013, p. 67; Cordula Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, Israel Law Review, Vol. 40, No. 2, Summer 2007, pp. 310–355; and Cordula Droege, ‘Elective affinities? Human rights and humanitarian law’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 501–548.
39 - For details, see the commentaries on Article 3, section G.2, and Article 51, section D.2.a.
40 - See European Convention on Human Rights (1983), Protocol 6; Second Optional Protocol to the International Covenant on Civil and Political Rights (1989); and Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990).
41 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, paras 79 and 82; Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 40; and Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 31.
42 - For examples, see the commentaries on Article 5, paras 970–971; Article 12, para. 1374; Article 14, paras 1520 and 1525; Article 15, paras 1537 and 1547; Article 18, para. 1622; Article 22, para. 1947; Article 24, para. 2043; Article 26, para. 2142; Article 27, paras 2183 and 2186; Article 29, para. 2244; Article 32, para. 2332; Article 39, para. 2610; and Article 40, para. 2637.
43 - See Article 7 of the 2011 Draft Articles on the Effects of Armed Conflicts on Treaties, with its annex containing ‘[a]n indicative list of treaties the subject-matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict’. The annexed list refers, inter alia, to (in (b)) ‘Treaties declaring, creating or regulating a permanent regime or status or related permanent rights, including treaties establishing or modifying land and maritime boundaries’; (in (e)) to ‘Treaties of friendship, commerce and navigation and agreements concerning private rights’; and (in (g)) to ‘Treaties relating to the international protection of the environment’.
44 - For details, see Michael Bothe, ‘Droit international humanitaire : un régime spécial en voie d’« autonomisation » ?’, in Raphaël van Steenberghe (ed.) Droit international humanitaire : un régime spécial de droit international ?, Bruylant, Brussels, 2013, pp. 321–331, at 330; Natalie Klein, Maritime Security and the Law of the Sea, Oxford University Press, 2011, p. 259; and James Kraska and Raul Pedrozo, International Maritime Security Law, Martinus Nijhoff Publishers, Leiden, 2013, p. 864. On the definition of ‘neutral Powers’, see the commentary on Article 5, section C.1.
45 - For a discussion, see the commentary on Article 14, para. 1520.
46 - See Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Article 10.
47 - See e.g. UN Convention on the Law of the Sea (1982), Articles 2(3) and 34 (exercise of sovereignty over the territorial sea and over straits used for international navigation, respectively), Articles 19 and 21 (innocent passage through the territorial sea and laws and regulations relating to that topic, respectively), and Articles 58 and 87 (exercise of rights in the exclusive economic zone and exercise of the high seas freedoms, respectively).
48 - John E. Noyes, ‘Treaty Interpretation and Definitions in the Law of the Sea Convention: Comments on Defining Terms in the 1982 Law of the Sea Convention’, California Western International Law Journal, Vol. 32, No. 2, 2001, pp. 367–383, at 375–379; George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention, Martinus Nijhoff Publishers, Leiden, 2012, pp. 267–269.
49 - Wolff Heintschel von Heinegg, ‘Methods and Means of Naval Warfare in Non-International Armed Conflicts’, International Law Studies, U.S Naval War College, Vol. 88, 2012, pp. 211–236, at 217.
50 - SOLAS Convention (1974), Chapter 1, Regulation 3.
51 - Ibid. Chapter 5, Regulation 1-1, and International Convention for the Prevention of Pollution from Ships (1973), Article 3.
52 - See e.g. SAR Convention (1979).
53 - For examples, see the commentaries on Article 14, para. 1532; Article 18, para. 1622; Article 21, paras 1872, 1905 and 1907; Article 27, paras 2172, 2173, 2182, 2187, 2188 and 2191; Article 30, para. 2261; Article 31, para. 2296; and Article 35, para. 2423.
54 - SAR Convention (1979), Annex, para. 2.1.10.
55 - See Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Article 7, and the commentary on the Annex with the ‘Indicative list of treaties referred to in Article 7’, paras 15–21.
56 - For theoretical considerations on such issues, see United Nations, Report of the International Law Commission, Fifty-sixth session (3 May–4 June and 5 July–6 August 2004), UN DOC A/59/10, paras 304–311.
57 - See the commentary on Article 12, section D.3.
58 - See e.g. Corten/Klein; Dörr/Schmalenbach; Villiger; Jiří Toman, The Protection of Cultural Property in the Event of Armed Conflict: Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, Dartmouth/UNESCO, Aldershot, 1996; Stuart Maslen (ed.), Commentaries on Arms Control Treaties, Volume I: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, Oxford University Press, 2004; Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd revised edition, N.P. Engel, Kehl am Rhein, 2005; Manfred Nowak and Elizabeth McArthur (eds), The United Nations Convention Against Torture: A Commentary, Oxford University Press, 2008; Jiří Toman, Commentary on the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Publishing, Paris, 2009; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010; Gro Nystuen and Stuart Casey-Maslen (eds), The Convention on Cluster Munitions: A Commentary, Oxford University Press, 2010; Andreas Zimmermann, Jonas Dörschner and Felix Machts (eds), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Oxford University Press, 2011; Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary, 3rd edition, Oxford University Press, 2012; Christian J. Tams, Lars Berster and Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary, Beck/Hart/Nomos, Oxford, 2014; Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015; and Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, 3rd edition, Hart Publishing, Oxford, 2016.
59 - Jan Wouters and Sten Verhoeven, ‘Desuetudo’, version of November 2008, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com, paras 10–11. For example, the current application of Article 41 of the Second Convention, like Article 38 of the First Convention, on the use of the distinctive emblems may be considered a rule that has been modified by a subsequent rule of customary international law, as well as by the tacit agreement of the High Contracting Parties. For further details, see the commentaries on Article 41 of the Second Convention and Article 38 of the First Convention.
60 - Switzerland and Yugoslavia were the first two countries to ratify the Geneva Conventions, on 31 March and 21 April 1950, respectively; see ‘Les Conventions de Genève du 12 août 1949 entrent dans le droit positif’, Revue de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 32, No. 378, June 1950, p. 448. On the entry into force of the Second Convention, see also the commentary on Article 57.
61 - For the current status of ratification and the dates of ratification or accession by States Parties, see www.icrc.org/eng/resources/documents/misc/party_main_treaties.htm or www.fdfa.admin.ch/depositary.
62 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, paras 79 and 82.
63 - See e.g. Stanley S. Jados, Consulate of the Sea and Related Documents, The University of Alabama Press, 1975, pp. 53–54 and 212–220. More generally, see David H. Anderson, ‘Early Modern through Nineteenth-Century Law’, in John H. Hattendorf (ed.), The Oxford Encyclopedia of Maritime History, Vol. 2, Oxford University Press, 2007, pp. 330–332.
64 - See e.g. Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 3, referring to ‘the treaty for the exchange of all prisoners taken at sea, concluded between France and England on March 12, 1870’, which contained clauses ‘ensuring the inviolability of vessels carrying exchanged prisoners’.
65 - For a discussion of the history of that Convention, see the Introduction on the First Convention, section E.2.
66 - Article 11 of the draft submitted by the Comité international de secours aux militaires blessés to the 1864 Conference, available in the ICRC Archives under ACICR, A AF 21-3b. This article disappeared as of the new draft adopted after the first debate. For a discussion, see Christophe Lueder, La Convention de Genève au point de vue historique, critique et dogmatique, E. Besold, Erlangen, 1876, p. 94.
67 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 4. See also Pierre Boissier, History of the International Committee of the Red Cross: From Solferino to Tsushima, ICRC/Henry Dunant Institute, Geneva, 1985, p. 190: The Committee had neither the time nor the expertise to prepare an exhaustive study on sea warfare. It considered, nevertheless, that that which applies to land warfare could, mutatis mutandis, be applied to naval warfare. It seemed just as reasonable to neutralize hospital ships as it was to neutralize field hospitals. But the conference had avoided this issue for which it had not been convened and, besides, there had been no recent naval engagement to draw attention to the fate of wounded and shipwrecked sailors. In a nutshell, there had been no maritime Solferino.
68 - Ibid. pp. 190–192.
69 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 4–5.
70 - For the text of the invitation, see Christophe Lueder, La Convention de Genève au point de vue historique, critique et dogmatique, E. Besold, Erlangen, 1876, pp. 157–158.
71 - For an overview of the preparation of and debates during and after the 1868 Diplomatic Conference, see Pierre Boissier, History of the International Committee of the Red Cross: From Solferino to Tsushima, ICRC/Henry Dunant Institute, Geneva, 1985, pp. 215–225; J. Galloy, L’inviolabilité des navires-hôpitaux et l’expérience de la guerre 1914–1918, Sirey, Paris, 1931, pp. 30–47; Christophe Lueder, La Convention de Genève au point de vue historique, critique et dogmatique, E. Besold, Erlangen, 1876, pp. 159–198; and Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, pp. 5–10.
72 - For a detailed overview of the initiatives taken in the period preceding the First Hague Peace Conference of 1899, see Georges Cauwès, L’extension des principes de la Convention de Genève aux guerres maritimes, L. Larose, Paris, 1899.
73 - Neville Wylie, ‘Muddied Waters: The Influence of the First Hague Conference on the Evolution of the Geneva Conventions of 1864 and 1906’, in Maartje Abbenhuis, Annalise Higgins and Christopher Barber (eds), War, Peace and International Order? The Legacies of the Hague Conferences of 1899 and 1907, Routledge, 2017, pp. 52–68, at 56.
74 - Calls to extend the principles of the 1864 Geneva Convention to maritime warfare were made before and during the International Conference of 1884; see Annexe à la Circulaire du Comité international de la Croix-Rouge, Liste des sujets proposés pour les délibérations de la Conférence internationale des Sociétés de la Croix rouge qui devait se tenir à Vienne, No. 14, 25 January 1884: ‘Il est à désirer que la prochaine Conférence ait pour résultat la rédaction d’articles additionnels à la Convention de Genève, conçus dans le même esprit que ceux de 1868.’ (‘It is desirable that the next Conference results in the drafting of additional articles to the Geneva Convention, conceived in the same spirit as those of 1868.’) See also IIIe Conférence internationale des sociétés de la Croix-Rouge, Compte-rendu, Geneva, 1884, pp. 24–25 and 225. At the 1884 Conference there was, however, no specific drafting proposal. Subsequently, at the 5th International Conference of the Red Cross in 1892, ‘la cinquième Conférence internationale des Sociétés de la Croix-Rouge émet le vœu que les Puissances signataires de la Convention de Genève s’entendent pour étendre les bienfaits de cette Convention aux guerres maritimes, dans les conditions et dans la mesure qui leur sont applicables’ (‘the 5th International Conference of Red Cross Societies expressed the wish that the Powers signatory to the Geneva Convention agree to extend the benefits of this Convention to maritime warfare under the conditions and to the extent that they are applicable to it.’); see Ve Conférence internationale de la Croix-Rouge, vœux et résolutions, Rome, 1892, p. 1. Also here, there was no specific drafting proposal. A similar statement was made at the 6th International Conference of the Red Cross in 1897: ‘[L]a VIe Conférence internationale renouvelle le vœu émis par la Ve Conférence réunie à Rome en 1892, invitant les Puissances signataires de la Convention de Genève à s’entendre pour étendre les bienfaits de cette Convention aux guerres maritimes dans les conditions et dans la mesure qui leur sont applicables.’; see VIe Conférence internationale de la Croix-Rouge, résolutions, Vienna, 1897, p. 1. For the draft proposal at the 1897 International Conference, see ICRC Archives at ACICR, A AF 30-3. A number of national Red Cross committees had submitted reports to the 1897 Conference; see, in particular, Rapport présenté par la comité central italien à la conférence internationale des associations de la Croix-rouge sur l’activité maritime de la Croix-rouge. La Convention de Genève dans les Guerres Maritimes. Reports were also presented by the French and Russian national committees; see VIe Conférence internationale des sociétés de la Croix-Rouge, Compte-rendu, Vienna, 1897, pp. 106–107 (Russian committee) and 118 (French committee).
75 - Proceedings of the Hague Peace Conference of 1899, p. 444. For a historical overview of the various initiatives undertaken between 1867 and 1899, see Neville Wylie, ‘Muddied Waters: The Influence of the First Hague Conference on the Evolution of the Geneva Conventions of 1864 and 1906’, in Maartje Abbenhuis, Annalise Higgins and Christopher Barber (eds), War, Peace and International Order? The Legacies of the Hague Conferences of 1899 and 1907, Routledge, 2017, pp. 52–68, at 53–59.
76 - For details, see Proceedings of the Hague Peace Conference of 1899, pp. 31–44. See also J. Galloy, L’inviolabilité des navires-hôpitaux et l’expérience de la guerre 1914–1918, Sirey, Paris, 1931, pp. 48–69.
77 - Charles H. Stockton, The Laws and Usages of War at Sea: A Naval War Code, Naval War College, US Government Printing Office, Washington, D.C., 1900. See also U.S. Naval War College, International Law Discussions, 1903: The United States Naval War Code of 1900, US Government Printing Office, Washington, D.C., 1904.
78 - For details, see Proceedings of the Hague Peace Conference of 1907, Vol. III, pp. 305–322. See also J. Galloy, L’inviolabilité des navires-hôpitaux et l’expérience de la guerre 1914–1918, Sirey, Paris, 1931, pp. 70–90.
79 - See Articles 41–44, 64, 79 and 81–87 of the Second Convention.
80 - Havana Convention on Maritime Neutrality (1928), Article 25: ‘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.’ See also the commentary on Article 25, para. 12.
81 - For the full text of that resolution, see Naval Expert Report of 1937, p. 1.
82 - For a detailed overview of all the steps that were undertaken, see Naval Expert Report of 1937, pp. 1–8.
83 - André Durand, History of the International Committee of the Red Cross, Volume II, From Sarajevo to Hiroshima, Henry Dunant Institute, Geneva, 1978, pp. 385–386.
84 - Following the 16th International Conference of the Red Cross, in view of the looming threat of war, the ICRC became worried that the approved texts would remain mere drafts if no Diplomatic Conference could be convened. Max Huber, the President of the ICRC at the time, wrote to the Swiss Federal adviser Giuseppe Motta to stress that a Diplomatic Conference should be held as soon as possible. On 10 June 1939, the Swiss Political Department transmitted to all Parties to the Geneva Conventions, inter alia, the ‘Draft Revised Maritime Convention’. No specific date was given for the next Diplomatic Conference, yet the hope was expressed that a convocation could be dispatched for the Conference to be held in 1940. However, at the end of August 1939, when it became clear that a war was inevitable, the ICRC shifted its focus from consulting governments on the draft convention to offering them its services. The outbreak of the Second World War abolished any hope of a Diplomatic Conference; see André Durand, History of the International Committee of the Red Cross, Volume II, From Sarajevo to Hiroshima, Henry Dunant Institute, Geneva, 1978, pp. 391, 396 and 397–398. See also ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, pp. 213–214.
85 - See common Article 7 of the Conventions (Article 8 in the Fourth Convention). See also Abi-Saab, pp. 267–268.
86 - See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para. 157 (‘In the Court’s view, these rules [of humanitarian law applicable in armed conflict] incorporate obligations which are essentially of an erga omnes character.’); ICTY, Kupreškić Trial Judgment, 2000, para. 519 (‘[N]orms of international humanitarian law do not pose synallagmatic obligations, i.e. obligations of a State vis-à-vis another State. Rather … they lay down obligations towards the international community as a whole …’); and Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 25 (‘It is not an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.’). See also the commentary on common Article 1 and Abi-Saab, p. 270.
87 - With regard to the Second Convention’s relation to the 1907 Hague Convention (X), Article 58 specifies that it replaces the 1907 Hague Convention (X) in relations between the High Contracting Parties.
88 - While the French text of the preparatory work refers to ‘groupes de travail’, these groups are referred to as ‘Working Parties’ in the English version.
89 - See Final Record of the Diplomatic Conference of Geneva of 1949, 4 volumes, Volume I, Volume II-A, Volume II-B, Volume III, Federal Political Department, Berne, 1950.
90 - The red lion and sun emblem, which is also mentioned in Article 38 of the First Convention, has not been used by any State since 1980. The red crystal emblem, established in the 2005 Third Additional Protocol to the 1949 Geneva Conventions, has the same status and role as the red cross and red crescent emblems. It has not yet been used in the context of armed conflict at sea.
91 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 35, 98 and 326.
92 - See ICJ, Military and Paramilitary Activities in and against Nicaragua, Merits, Judgment, 1986, paras 218–219.
93 - Referring to the debates at the Diplomatic Conference which adopted the 1868 Additional Articles, see Pierre Boissier, History of the International Committee of the Red Cross: From Solferino to Tsushima, ICRC/Henry Dunant Institute, Geneva, 1985 p. 223: ‘[T]he committee straight away ruled out the idea of simply making a few alterations to the 1864 Convention. Naval combat differed too greatly, in every respect, from land warfare for it to be possible to merely “extend” the Convention.’
94 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), back cover. For further information, see Louise Doswald-Beck, ‘The San Remo Manual on International Law Applicable to Armed conflicts at Sea’, American Journal of International Law, Vol. 89, 1995, pp. 192–208. Parts of the Manual that are particularly relevant for the topics dealt with by the Second Convention are paras 13(e), 47–57 and, most prominently, Part VI (paras 159–183), entitled ‘Protected persons, medical transports and medical aircraft’. Paragraph 159 states that ‘[e]xcept as provided for in paragraph 171, the provisions of this Part are not to be construed as in any way departing from the provisions of the Second Geneva Convention of 1949 and Additional Protocol I of 1977 which contain detailed rules for the treatment of the wounded, sick and shipwrecked and for medical transports’. For a discussion of paragraph 171 of the Manual, see the commentary on Article 34 of the Second Convention, para. 2402.
95 - See, in particular, Wolff Heintschel von Heinegg, ‘How to Update the San Remo Manual on International Law Applicable to Armed Conflicts at Sea’, Israel Yearbook on Human Rights, Vol. 36, 2006, pp. 119–148.
96 - Disclaimer: The designations employed in this commentary do not imply official endorsement or the expression of any opinion whatsoever on the part of the ICRC concerning the legal status of any territory, or concerning the delimitation of its frontiers or boundaries. Whenever a disputed territory is given different names by the parties concerned, the ICRC uses those names together, in French alphabetical order.