Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 16 : Status of the wounded, sick and shipwrecked who have fallen into enemy hands
Text of the provision
Subject to the provisions of Article 12, the wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them. The captor may decide, according to circumstances, whether it is expedient to hold them, or to convey them to a port in the captor’s own country, to a neutral port or even to a port in enemy territory. In the last case, prisoners of war thus returned to their home country may not serve for the duration of the war.
Reservations or declarations
None
Contents

A. Introduction
1564  Article 16 defines the status of a wounded, sick or shipwrecked member of the armed forces who falls into enemy hands.[1] In that situation, a member of the armed forces is both a wounded, sick or shipwrecked person, possibly needing medical care, and an individual who is entitled to become – and thus becomes – a prisoner of war. The Second and Third Conventions will therefore apply simultaneously.
1565  Article 16 corresponds to Article 14 of the First Convention.
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B. Historical background
1566  Article 16 of the Second Convention was modelled on Article 14 of the 1907 Hague Convention (X) and its predecessor, Article 9 of the 1899 Hague Convention (III).[2] The modifications made in Article 16 compared to its predecessors were designed to ensure consistency between the First and Second Geneva Conventions of 1949.
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C. Discussion
1. ‘Subject to the provisions of Article 12’
1567  Wounded, sick and shipwrecked combatants who have fallen into enemy hands are prisoners of war, and as such are covered by both the Second and Third Conventions. The clause ‘[s]ubject to the provisions of Article 12’ makes clear that the paramount concern in their regard is that they are respected and protected, treated humanely and cared for, as required by Article 12. Thus, for example, in urgent cases a Power detaining wounded, sick or shipwrecked persons must prioritize medical care, and in the case of the shipwrecked basic life-saving measures, over measures to restrict their liberty.
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2. ‘who fall into enemy hands’
1568  Article 16 stipulates that the ‘wounded, sick and shipwrecked of a belligerent who fall into enemy hands’ are prisoners of war. The phrase ‘fall into enemy hands’ is sufficiently broad to cover capture or surrender. It makes no difference whether a person was captured after an engagement, is provisionally – after having been rescued or because he or she is wounded or sick – on a hospital ship of the enemy armed forces, or was taken off a neutral merchant vessel (Article 14). What matters is that a person who meets the criteria spelled out in Article 13 is in enemy hands. When wounded, sick or shipwrecked combatants are being tended to by the adverse Party, that Party is in a position to exert a degree of control over them, amounting to a situation that entails prisoner-of-war status.
1569  Article 9 of the 1899 Hague Convention (III) uses the phrase ‘fall into the hands of the enemy’, as does Article 2 of the 1929 Geneva Convention on the Wounded and Sick, while Articles 1 and 2 of the 1929 Geneva Convention on Prisoners of War use the word ‘capture’.[3] During the Second World War, some Detaining Powers denied prisoner-of-war status to combatants who had surrendered, arguing that surrender was not the same as ‘capture’.[4] To avoid the recurrence of such situations, Article 4 of the Third Convention adopted the wording ‘fallen into the power of the enemy’, such that the First, Second and Third Conventions are now, in essence, identical on this point.[5]
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3. ‘shall be prisoners of war’
1570  The status of wounded, sick or shipwrecked persons in enemy hands as prisoners of war does not depend on what kind of vessel they are on. If a person is on a hospital ship belonging to or operated by enemy armed forces, that person is both a prisoner of war and a wounded, sick or shipwrecked person.[6]
1571  As the wording of Article 16 makes clear, a member of the armed forces is a prisoner of war when he or she has fallen into enemy hands. No active ‘capture’ is necessary.[7] Medical personnel, transports and units are given special protection under international humanitarian law and must care for all wounded, sick and shipwrecked persons without distinction, but medical personnel may nevertheless be (non-combatant) members of enemy armed forces.[8] Likewise, a hospital ship may belong to one of the States party to the conflict. This means that wounded, sick or shipwrecked persons who are being cared for by medical personnel or units or on hospital ships of the enemy armed forces may be considered to have fallen into enemy hands and are prisoners of war, without, however, the personnel of the medical unit or hospital ship being considered to have committed an act of war.
1572  It has been pointed out that this understanding has a number of implications. First, since medical personnel may not engage in acts of war, they may not undertake tasks, duties or measures that involve administering, guarding or holding prisoners of war. Thus, for example, if a wounded, sick or shipwrecked person attempts to escape from the ship, the medical personnel on board the ship may not use force to prevent that escape. Force may only be used within the strict limits necessary to ensure order on board the ship. Second, a hospital ship may not be made into a prisoner-of-war camp, which means that other military personnel may not be present on the ship to, for example, administer, hold or interrogate the wounded, sick or shipwrecked persons. In addition, a hospital ship may be boarded and persons who are in a fit state to be moved may have to be handed over to a belligerent, which means that if they are returned to their own Power, their prisoner-of-war status would end.[9] In this sense, wounded, sick and shipwrecked persons on board an enemy hospital ship have prisoner-of-war status and are entitled to the rights set down in the Third Convention, even though the powers that may flow from the Third Convention may not be enforced by the personnel of the hospital ship, nor may a hospital ship carry personnel that can do so.[10]
1573  The 1960 Commentary took a different approach, stating:
A hospital ship cannot take prisoner wounded or shipwrecked members of the enemy forces. If it rescues them at sea or receives them from a ship of their own nationality, they must not be considered as being prisoners of war.[11]
That Commentary reasoned that it would be an ‘act of war’ if a hospital ship were ‘to capture military personnel or hold them by force’.[12] According to this interpretation, which is supported by valid arguments, persons being cared for on hospital ships have the status of ‘wounded’, ‘sick’ or ‘shipwrecked’ and must be accorded all the care, protection and treatment they require in accordance with that status. Furthermore, the Party in whose hands they are may not exercise over those persons any of the powers that flow from detaining prisoners of war. However, should enemy personnel on the hospital ship begin exercising powers beyond what is necessary to provide medical care and treatment, such as interrogating them or taking their personal effects, those wounded, sick or shipwrecked persons must also be considered prisoners of war, entitled to the protection of the Third Convention.
1574  As noted in the commentary on Article 13, the interpretation of the criteria for determining whether a person is entitled to prisoner-of-war status has been the subject of some controversy. These debates are most relevant to – and can best be understood in the context of – provisions relating to prisoners of war and are therefore discussed in the commentary on Article 4 of the Third Convention.
1575  Although in setting down who is a prisoner of war Article 16 uses the looser formulation ‘the wounded, sick and shipwrecked of a belligerent’ rather than the more technical terms used in Article 13, the definition of prisoners of war in the Second Convention is not meant to diverge from that in the Third Convention.
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4. Protection afforded to prisoners of war under international law
1576  Article 16 states not only that the wounded, sick and shipwrecked who fall into enemy hands ‘shall be prisoners of war’, but also that all ‘the provisions of international law concerning prisoners of war shall apply to them’. This phrase was chosen over only a reference to the Third Convention to make clear that all international law relating to the protection of prisoners of war would remain applicable, in particular in the event that some States became party to the First and/or Second Conventions but not to the Third, or that the text of the Third Convention was revised but not that of the First or Second Conventions.[13] That fear did not materialize, however, as all States have ratified the four Geneva Conventions together, such that the detailed provisions of the Third Convention will apply.[14] In any case, the Third Convention is also generally considered to reflect customary international law.[15]
1577  Wounded, sick or shipwrecked members of the armed forces who fall into enemy hands are thus protected, until their recovery, by the Second and Third Conventions simultaneously. Even after recovery, they remain protected by the Third Convention until their final release and repatriation.[16] The level of detail in each Convention is tailored to the circumstances and context in which it is anticipated to apply. Thus, on a ship, the obligations set out in the Second Convention will predominate. Where possible, and as soon as necessary, however, the more detailed provisions of the Third Convention will apply. In any event, as soon as wounded, sick or shipwrecked persons are transferred to land, the First and Third Conventions will apply.
1578  Article 16 does not specifically provide for the conclusion of special agreements on matters such as the return of the wounded and sick or their transfer to a neutral State; however, common Article 6 of the 1949 Conventions provides for the possibility of concluding such agreements with respect to protected persons, as long as they do not derogate from the protections afforded by the Conventions.[17]
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6. Second sentence: Holding on ship or conveyance to port
1579  The second sentence of Article 16 indicates that the captor may determine whether to ‘hold’ wounded, sick and shipwrecked persons on board ship or convey them to a port. This determination is to be made based on what is ‘expedient’ in the ‘circumstances’. The word ‘expedient’ should be understood in the sense of what is necessary and appropriate.[18] The type of circumstances that may be invoked might include operational reasons that do not permit the ship to change its course immediately, or possibly where holding the persons on board ship, temporarily, is safer and the conditions more suitable than the alternative.[19] That being said, with respect to ‘holding’ a person on a ship, this article must be read in conjunction with Article 22 of the Third Convention, which sets down (in part) that ‘[p]risoners of war may be interned only in premises located on land’. Accordingly, persons may only be held on board a ship as a temporary measure, pending transfer to land. If the ship is a warship, it is especially important that the time a person is held on board is limited to the absolutely necessary.
1580  If the captor conveys the persons to a port in its own territory, those persons remain prisoners of war. If they are still wounded or sick, the First and Third Conventions will apply to them simultaneously. If, however, they are not or no longer wounded or sick, they will be protected by the Third Convention until their final release and repatriation.[20]
1581  The captor may also convey the persons to a port in neutral territory. During the Falkland/Malvinas Islands conflict (1982), for example, large numbers of wounded, sick and shipwrecked persons were taken on board ships, including hospital ships. The Parties to the conflict concluded agreements whereby these ships would dock in the port of a third State to allow the transfer of persons from one Party to the other. Regardless of whether that third State is a ‘neutral’ State in the legal sense of the term, such an arrangement may facilitate the rapid repatriation of prisoners of war. In cases where special agreements are made, the requirements of Article 6 must be respected. Where the receiving State is a neutral State, Article 17 will govern the conditions for landing and the status of the persons in that territory.[21]
1582  Lastly, the wounded, sick and shipwrecked can be conveyed directly to a port in their home country. While there may not be examples of conveyance to such a port, there is practice of the transfer of persons from a ship directly to a ship of the adverse Party, which took place during the Falkland/Malvinas Islands conflict (1982) pursuant to an unwritten agreement between the two belligerent States.[22] The Second Convention does not explicitly mention the possibility of such a transfer; nevertheless, the arrangement is perfectly within the spirit of the Convention.[23] This practice illustrates that the list in Article 16 of the options open to the captor are not exhaustive.
1583  In addition, it should be recalled that seriously wounded or sick prisoners of war should be sent back to their own country.[24]
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7. Third sentence: Prisoners of war returned home may not serve for the duration of the war
1584  Article 16 closes with a prohibition: prisoners of war returned home ‘may not serve for the duration of the war’. This is a standard clause, a parallel of which can be found in Article 117 of the Third Convention relating to wounded and sick prisoners of war. In this light, ‘serve’ should be interpreted in the same way as ‘be employed on active military service’.
1585  Although the option is not explicitly listed in Article 16, it may be that the wounded, sick and shipwrecked are brought to a port in the territory of a co-belligerent. In that event, it would constitute a transfer from one Detaining Power to another, in which case the requirements for transfer in Article 12 of the Third Convention must be met.
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Select bibliography
Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 192–194.
Junod, Sylvie-Stoyanka, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1985.

1 - For the purposes of the commentary on this article, the phrase ‘member of the armed forces’ includes those persons who are not members of the armed forces of a Party to a conflict but who nevertheless come within the scope of Article 13 of the Second Convention.
2 - Article 14 of the 1907 Hague Convention (X) stated: The shipwrecked, wounded, or sick of one of the belligerents who fall into the power of the other belligerent are prisoners of war. The captor must decide, according to circumstances, whether to keep them, send them to a port of his own country, to a neutral port, or even to an enemy port. In this last case, prisoners thus repatriated cannot serve again while the war lasts. That article was first adopted in 1899 as Article 9 of the Hague Convention (III).
3 - For its part, Article 14 of the 1907 Hague Convention (X) uses the phrase ‘fall into the power of’ (emphasis added).
4 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 50. See also Bugnion, p. 194: ‘[I]n 1945 the Allies refused prisoner-of-war status for German and Japanese soldiers who fell into their hands after the capitulation of their respective countries, claiming that their situation was not covered by the 1929 Convention. Instead, they were classed as “Surrendered Enemy Personnel”.’
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 237. The French text of Article 14 of the First Convention and Article 4 of the Third Convention is even closer: ‘tombés au pouvoir de l’adversaire’ (Article 14) and ‘tombées au pouvoir de l’ennemi’ (Article 4).
6 - Canada’s Prisoner of War Handling Manual, 2004, p. 3C-1, states: ‘A belligerent warship may approach a hospital ship (military or civil) and free its own forces held there as PW [prisoners of war].’ Military manuals of other States indicate that wounded, sick or shipwrecked combatants captured at sea simultaneously have prisoner-of-war status, and the authors of this Commentary are not aware of any that specifically exclude wounded, sick or shipwrecked persons on hospital ships. The United Kingdom’s Joint Doctrine Prisoners of War, 2006, p. 1-1, states that ‘[t]he handling of PW captured at sea differs from that of PW captured on land in that until they are landed and handed over to the land-based Prisoner Handling Organisation (PHO), their treatment is governed by GC II [Second Geneva Convention]’.
7 - See the commentary on Article 14 of the First Convention, paras 1470–1471.
8 - See the commentaries on Article 24 of the First Convention and Article 36 of the Second Convention.
9 - See Article 14 and its commentary. See also Canada, Prisoner of War Handling Manual, 2004, p. 3C-1.
10 - We are grateful to Martin Fink for his insightful remarks in this regard.
11 - Pictet (ed.), Commentary on the Second Geneva Convention, ICRC, 1960, p. 113.
12 - Ibid.
13 - Draft Conventions submitted to the 1948 Stockholm Conference, commentary on draft article 11, pp. 10–11.
14 - Where applicable, Additional Protocol I may also be relevant in determining who is entitled to prisoner-of-war status. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 106.
15 - See Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim 17, Partial Award, 1 July 2003, para. 41, and Prisoners of War, Ethiopia’s Claim 4, Partial Award, 1 July 2003, para. 32.
16 - The Second Convention does not contain an article equivalent to Article 5 of the First Convention, which extends the duration of application of the First Convention until the repatriation of protected persons. This is because it is anticipated that wounded, sick or shipwrecked persons who are held for any length of time will be transferred to land, and therefore covered by the First, Third or Fourth Conventions.
17 - Article 6 common to the First, Second and Third Conventions and Article 7 of the Fourth Convention. For the predecessors of Article 14 of the First Convention in previous conventions, see Article 2, second paragraph, of the 1906 Geneva Convention and Article 2, second paragraph, of the 1929 Geneva Convention on the Wounded and Sick. As regards the 1949 Conventions, Article 15 of the First Convention affirms that agreements can be made to exchange the wounded on the battlefield and Articles 109–111 of the Third Convention regulate the return of sick or wounded prisoners of war and provide for the conclusion of agreements in that regard.
18 - The equally authoritative French text uses the verb ‘convenir’, meaning ‘to be appropriate’ or ‘to be suitable’. See Winston G. McMillan, ‘Something More Than a Three-Hour Tour: Rules for Detention and Treatment of Persons at Sea on U.S. Naval Warships’, The Army Lawyer, February 2011, pp. 31–45, at 36.
19 - See e.g. United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, 2–1(b), p. 5. The US Law of War Manual of 2016 does not explain what expedient and circumstances might mean.
20 - Third Convention, Article 5.
21 - See also First Convention, Article 4, and Third Convention, Articles 4(B)(2) and 111.
22 - Junod, p. 26; San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 160.1. The transfer occurred within a zone on the high seas that was declared neutral and was known as the ‘Red Cross Box’.
23 - Junod, p. 26.
24 - Third Convention, Articles 109–110.